- Civil Litigation
Frivolous Litigation: Successfully obtained dismissal of frivolous case in trial court, which was upheld by the Court of Appeals. Crane v. Cheeley, 270 Ga. App. 126, 605 S.E.2d 824 (2004).
Employment/Group Insurance: The trial judge’s grant of summary judgment to the employer was successfully reversed on behalf of the employee client. The employee could recover against her employer for breach of contract and for breach of duty for the employer’s failure to inform her that her group health insurance policy had terminated and that her pre-existing condition would not be covered under the replacement policy. Brandon v. Mayfield, 215 Ga. App. 735, 452 S.E.2d 181 (1994).
Privity/Claim: Obtained dismissal of the contract claim against the client, because the claimant was not a party to the contract. The negligence claim was also dismissed because one cannot recover for loss of the economic value of a defective product under the circumstances. Sofet v. Roberts, 185 Ga. App. 451, 364 S.E.2d 595 (1988).
Warranty/Damage to Realty/Statute of Limitations: General contractor could recover against subcontractor for damage to realty in a negligence tort action in case arising out of a contract. Bowen & Bowen, Inc. v. McCoy-Gibbons, Inc., 185 Ga. App. 298, 363 S.E.2d 827 (1987).
Real Estate/Condemnation: In a government land condemnation case, the prejudgment interest rate compensates the property owner for the use of funds generated in a condemnation action, not for the use of the property condemned. A property owner seeking to set aside a plat filed by the state in a proceeding collateral to the condemnee’s case should file a separate action to quiet title. Property owner is not allowed to assert a counterclaim for tort damages in a condemnation action. Brooks v. Department of Transportation, 254 Ga. 60, 327 S.E.2d 175 (1985).
Agency: Assumption of debt incurred by agent in real estate transaction may be shown by written agency agreement executed after the transfer of the property. Braselton v. Robinson, 166 Ga. App. 889, 305 S.E.2d 591 (1983).
Limitation of Damages: There is no claim for consequential damages from defective machinery due to a contractual limitation of damages in commercial goods. Frick Forest Products v. International Hardwoods, 161 Ga. App. 359, 288 S.E.2d 625 (1982).
Material Lien: Agreement between contractor and materialman for payment of judgment did not bar enforcement of materialman’s lien against real property owner. Owner’s partial payment of the contract price, when not properly applied, did not relieve the owner for the lien remaining unpaid. Henderson v. Mitchell Engineering Co., 158 Ga. App. 306, 280 S.E.2d 438 (1981).
Procedure/Evidence: The time for filing an answer runs from the date of actual service, not from the date of filing the return of service. Stipulation to extend deadline must be made before deadline and must be filed with the court. As a result of this case, a plaintiff’s right to a default judgment may be waived. Party cannot submit to ruling and later complain. Lay witness was permitted to give opinion regarding speed, even though he did not see the vehicle before impact, because he gave the basis for his opinion. Ewing v. Johnston, 175 Ga. App. 760, 334 S.E.2d 703 (1985).
Malicious Prosecution/Slander: Successfully obtained dismissal of claims against client. Although plaintiff’s conviction of bribery was reversed in a separate case, there was no claim against one who merely reported the facts he believed to be true to the prosecution, who made the ultimate decision to prosecute for bribery. Rice v. Mansour, 176 Ga. App. 617, 337 S.E.2d 25 (1985).
Wrongful Death/Capacity/Evidence: Surviving parents could bring an action over defense motion for summary judgment, despite evidence of their decedent child’s unresolved marriage to her estranged husband. Husband’s contradictory statement as to validity of his marriage to decedent rebutted defendant’s proof of marriage and discredited husband’s prior statement. Capps v. Mullen, 172 Ga. App. 297, 322 S.E.2d 297 (1984).
Evidence/Abusive Process: The statements of a co-conspirator are admissible if conspiracy has been proved. The mere issuance of a summons and complaint is not sufficient for a claim of malicious abuse of prosecution. Leiphart Chevrolet v. Ewing, 163 Ga. App. 416, 295 S.E.2d 128 (1982).
Wrongful Death/Default/Summons/Capacity: Defendant made a sufficient case of excusable neglect (defendant believed defense was being handled by insurance company) to authorize the opening of a default. Service of process is insufficient if it is left with a relative at defendant’s place of business. Wrongdoer’s relationship to her deceased mother did not bar wrongful death action against wrongdoer’s spouse. American Erectors v. Hanie, 157 Ga. App. 687, 278 S.E.2d 195 (1981).
Criminal/Evidence: Appeal of criminal conviction for attempting to elude police officer. Issues involved directed verdict of acquittal, identification of defendant, hearsay, alibi, jury instructions, and newly discovered evidence. Storey v. State, 205 Ga. App. 610, 422 S.E.2d 879 (1992).
Criminal/Statutory Construction: Accused’s behavior converted his marital bedroom from a constitutionally protected private place into a public place, even though it was not visible to members of the public who are outside of it. Greene v. State, 191 Ga. App. 149, 381 S.E.2d 310 (1989).
Affirmed without opinion: Emerson v. Fireman’s Fund, 691 F.2d 510 (11th Cir. 10/18/1982).
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