Published on:

By

When you are pursuing a commercial litigation action in Georgia, you might find yourself faced with many different types of arguments about why you should not be allowed to pursue your case. While some may relate directly to the facts of your case, others may have nothing at all to do with the underlying facts that led you into court. Whether the arguments against your case are factual, statutory, or procedural, it helps to have an experienced Georgia commercial litigation attorney on your side to make sure that your rights and interests are sufficiently represented and protected.

One case recently decided by the Georgia Court of Appeals involved a defense argument built on a specific statute:  Georgia’s Anti-SLAPP law. The seeds of the dispute dated back to 2015, when members formed a Cumming, Ga.-based LLC holding company to hold some 2,718 acres in Santa Rosa County, Fla. An additional entity was formed at the same time for the express purpose of serving as the managing member of the holding company. There were four entities that were members of that managing member LLC.

Less than a year later, allegations were made that several entities had breached the holding company’s operating agreement. Specifically, the allegation was that they hadn’t made required capital contributions, a claim they denied. Nevertheless, the manager LLC was voted out as the managing member of the holding company and replaced with a different LLC. The members of that new managing member then announced their intention not to develop the bulk of the Florida property but instead to donate it to the government of Santa Rosa County as a tax write-off.

Continue reading →
Published on:

By

The zoning of a parcel can be a critical concern for a buyer when entering into a purchase and sale agreement. In a recent Georgia appellate decision, a buyer appealed from summary judgment in favor of the defendants regarding fraud in the sale of real property. The buyer argued that the question of fraud was one for the jury since the defendants had knowingly misrepresented the zoning and concealed the city’s intent to demolish the property and the buyer shouldn’t be charged with constructive knowledge of demolition orders that were brought outside the chain of title.

The appellate court affirmed the part of the lower court’s order granting the defendants summary judgment for their misrepresentations about zoning, but reversed the lower court’s order granting summary judgment to the defendants with regard to misrepresentations about the city’s planned demolition of the property.

In 2012, the bank (trustee for two loan trust entities) foreclosed on two real property parcels that were sold to the buyer. The city had zoned the property as Urban Rural – Historical Infill. The zoning prevented multi-family housing, and the parcels had been granted a legal non-conforming use status. The city planner believed that a property’s legal non-conforming use could be verified through completion of an Application for Zoning Verification that could be attained by the city.

Continue reading →

Published on:

By

Your breach of contract case may start out looking seemingly straightforward to you, but it may still eventually come to have many unexpected twists. These may involve the facts of your case, the law, the rules of procedure, or all of the above, which is one reason among many why an experienced Georgia business litigation attorney can benefit the pursuit of your case. For example, one north Georgia business lost its bid to litigate a contract breach dispute in this state when the Georgia courts concluded that the more appropriate forum for the case was California.

The case began when a north Georgia business that produced training events for other businesses fell into a dispute with the California business it had hired to perform projects for it. Eventually, the California company decided to file a lawsuit in that state. The Georgia business sued here, alleging breach of contract and fraud.

The California company asked the Georgia court to throw out the case here on the basis of something called forum non conveniens. Forum non conveniens is a Latin phrase that translates to “forum not agreeing” and essentially means that a case should not be heard in a particular forum (location) because there is a forum elsewhere better positioned to handle the case.

Continue reading →
Published on:

By

If you should find yourself in the position, as a judgment creditor, of needing to pursue an adversary proceeding against a Chapter 11 debtor, it is important to understand that there are many procedural rules involved in the process. While the courts may allow parties a bit of leeway because the law favors decisions made on the merits as opposed to procedural technicalities, some procedural flaws can have disastrous results. By working with a skilled Georgia creditors’ rights lawyer, you can make sure that you are doing everything possible to avoid falling into procedural pitfalls.

One example of a case in which a procedural imperfection led to considerable federal litigation was a dispute that arose between two business partners, Gary and David. In the 1990s, Gary and David developed a plan to establish a business that dealt in discount home improvement and building supplies. The plan seemed strong, but the business never took off. By 2007, with business still poor, Gary sued David, and David countersued. Eventually, in 2011, a jury ruled for David and awarded him damages in the amount of $318,025.

The next year, Gary filed for Chapter 11 bankruptcy. David sought to file an action within that bankruptcy, asking the bankruptcy judge to declare the damages award handed down a year earlier to be a non-dischargeable debt in accordance with 11 USC 523. The bankruptcy judge gave David until Oct. 12, 2012 to file a complaint and initiate an adversary proceeding under Section 523. However, David didn’t file a complaint and initiate an adversary proceeding, at least not at first. He filed a “Motion to Dismiss or for Determination of Non-Dischargeability of His Debt” prior to the deadline. Then, on Oct. 17, he filed an adversary complaint.

Continue reading →
Published on:

By

In a commercial litigation situation, there may be multiple different ways to achieve success. There can also be a variety of ways to damage or destroy your case. One of these is failing to complete various procedural necessities, or failing to do them on time. Procedural compliance, even though it is often completely independent of the facts of your case, can still make all of the difference between a favorable and an unfavorable outcome. To be sure your case doesn’t get tripped up by these types of problems, make sure that you retain skilled Georgia business litigation counsel.

A recent lawsuit between a contractor and a financier of commercial equipment was an example of this risk. The finance company asked for, and received, a summary judgment in its favor. The trial court’s summary judgment order effectively ended the case.

Not satisfied, the contractor sought to appeal the summary judgment in favor of the finance company. The contractor filed its notice of appeal in a timely manner. Unfortunately for it, it fell short with regard to several other procedural requirements. When you are seeking to appeal a court order that went in favor of your opponent, several things need to be done. A notice of appeal must be filed within the time period allotted by the law. Additionally, you must also make a timely request to the trial court to have a transcript created of the hearing that produced the order you are appealing. Furthermore, there may be certain court costs that you must pay and pay within a specific deadline.

Continue reading →
Published on:

By

Ideally, in a perfect world, corporate shareholders of a family-owned business would always get along and cooperate effectively. Unfortunately, the real world is not a perfect world, and sometimes shareholder disputes arise and end up in litigation. That is when you need to be sure you have experienced Georgia business attorneys on your side. One such shareholder dispute recently went all the way to the Georgia Supreme Court earlier this year, with that court reversing a trial judge’s decision and sending the case back for more action.

The corporate entity at the center of this dispute demonstrates the issues that can arise when family relationships and business relationships collide. The business, an electric services contractor, had been in existence since 1937 and incorporated since 1959. In 1988, the incorporator decided to award ownership interests to each of his three sons, all of whom were working for the company at the time. (The bylaws restricted stockholders to employees of the entity.) Two sons, Gary and Phillip, got 25% each. A third son, Doss, received 16.67%. (The father retained 33.33% himself.)

The sons moved in different directions. Doss ended his employment at the family business in 1994. Gary and Phillip went on to become the company’s CEO and CFO, respectively. By 2011, the brothers were in court. Doss alleged that he had not received a payment that the business owed him for his stock. All sides agreed that only employees of the business could be stockholders and that Doss ceased being an employee in 1994. Doss, in his complaint, contended that the entity’s bylaws required the company to buy out his stock and to pay him for his ownership interest based upon the book value of the stock. This buyout and payment, Doss alleged, never took place.

Continue reading →
Published on:

By

Whenever any business person or entity decides to create a new joint venture, the people behind that venture likely hope for great success. Sometimes these joint ventures do go on to yield positive results. Other times, however, the venture doesn’t work out. When joint ventures fail and break up, that can sometimes lead to litigation. When they do, the exact language that was contained in your operating agreement may prove to be the key to resolving the case. Whether your joint venture has failed and entered into the court system, or you are at the beginning phase and are fleshing out the terms of an operating agreement, it is important to make sure you have experienced Georgia business attorneys handling your case.

An example of a joint venture that didn’t meet with success and did trigger litigation was an Athens-based LLC formed to develop medical technology. Ownership of the joint venture was split equally between a holding company and another LLC, Healthy-IT, that was formed expressly for the purpose of entering into the joint venture. Specifically, the venture’s goal was to develop electronic medical record software.

Eventually, the venture devolved into a dispute, and the joint venture LLC, along with the holding company and others, sued Healthy and related entities for, among other things, breach of contract, breach of fiduciary duty, and misappropriation of trade secrets. The defendants filed a counterclaim that accused the plaintiff of breach of contract, among other things.

Continue reading →
Published on:

By

GreenvilleOnline.com recently reported on the closure of several fast-food chicken restaurants in that area. The restaurant chain, headquartered in Atlanta, indicated that the 24 locations in Georgia and South Carolina were closed after the landlords of those properties evicted the fast-food tenants. Fortunately for Atlanta-area fans of the chain’s chicken, there are still many locations open in north Georgia. The sudden closure of these restaurants may lead one to wonder, though:  what is required for a landlord in Georgia to evict its commercial tenant? The reality is that there are multiple steps required by the law, and they must be carried out with precision to ensure that the court will grant the eviction order, which is why a Georgia commercial landlord should make sure to work with an experienced Georgia landlord-tenant attorney when it comes time to pursue an eviction.

Of course, the first thing that must happen for a landlord to seek an eviction is that the tenant must be in default. The commercial lease agreement between the landlord and tenant will typically state the actions or inactions that will lead to the tenant being in default. These can be things like non-payment of rent, late payment of rent, continuing to occupy the property after the end of the lease term, or using the property for a purpose expressly forbidden by the lease.

Once one or more of these things happens, the landlord must follow the rules laid out in the Georgia Code. First, the landlord must submit to the tenant a “demand for possession” letter. This letter informs the tenant that it is in default and that the landlord intends to begin legal proceedings to evict the tenant. That letter will also tell the tenant that it must vacate the property and return possession to the landlord.

Continue reading →
Published on:

By

When you decide to pursue a breach of contract lawsuit, it is very important to make sure that all T’s are crossed and I’s dotted. Even seemingly small imperfections may do grave damage to your case. In one recent case, the lack of a contractor’s license proved to be a major problem for the plaintiff who sought damages for an alleged breach. Whether you are pursuing or defending a breach of contract action, you need to make sure you have an experienced Georgia commercial litigation attorney on your side.

The plaintiff in the lawsuit was a home building company that signed a contract for the construction of a residence in Cumming. After the builder had partially constructed the house, disputes arose between the owner and the builder. The owner terminated the contract before the job was completed. The sole owner of the building company, who had signed the contract on behalf of the building company, did not have a Georgia builder’s or contractor’s license when the builder did its work on the house.

After the owner terminated the agreement, the builder sued for breach of contract. The owner, in opposition, filed a motion with the court asking the judge to grant summary judgment, which would end the builder’s case before it even got to trial. The owner’s argument was that the owner of the building company was not properly licensed in Georgia, and Georgia law prohibits unlicensed contractors from enforcing a contract “or the performance of work for which a license is required.”

Continue reading →
Published on:

By

In any commercial contract, there are likely several things you desire to get from the arrangement, which is why the agreement you sign hopefully has been carefully negotiated prior to execution. To make sure that you get the benefit for which you negotiated, it is important to understand what types of clauses are, and which are not, enforceable under Georgia law. To be sure your contract or any of its clauses won’t be thrown out as unenforceable, ensure you’re relying on representation from a knowledgeable Georgia commercial contracts attorney.

A recent case decided by the federal 11th Circuit Court of Appeals was one that looked at what type of fee provisions could, or could not, be enforced under Georgia law. The underlying deal was one between a chain of “quick service” Mexican restaurants and a supplier of tortillas. The deal called for the tortilla company to supply the restaurant’s tortilla needs. The deal had a provision in it for the imposition of something called a “resolution fee.” In this agreement, the obligation to pay a resolution fee was triggered only if the restaurant didn’t order at least $2.5 million worth of products from the supplier over the span of contract term.

So, if the restaurant cleared $2.5 million, the resolution fee was $0. If it fell short of $2.5 million, the resolution was equal to 5% of the difference between $2.5 million and the value of the products that the restaurant actually ordered and accepted. The deal called for the restaurant to pay the fee within 30 days, if one was owed.

Continue reading →
Contact Information
3562 Habersham at Northlake Building J
Suite 200
Tucker, GA 30084
Phone: 404-373-4008 Fax: 888-709-5723
We serve clients throughout Georgia including those in the following localities: Fulton County including Atlanta; DeKalb County including Decatur and Tucker; Bibb County including Macon; Cherokee County including Canton; Clayton County including Jonesboro; Cobb County including Marietta; Douglas County including Douglasville; Forsyth County including Cumming; Gwinnett County including Lawrenceville; Henry County including McDonough; and Rockdale County including Conyers.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2020, Poole Huffman, LLC
JUSTIA Law Firm Blog Design