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Frivolous Litigation:
Successfully obtained dismissal of frivolous case in trial court. The Court of
Appeals upheld the trial court in its decision that the failure to pay litigation expenses awarded
against a party for frivolous litigation in a prior case bars a subsequent suit against the same party.
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 was allowed to 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 was allowed to 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 amount of 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 were allowed to 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 marriageand 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). |
