Georgia Home Law

In the Law, Time Is Everything

2011-10-20T11:40:00.000-07:00

Image No. 1340423 from www.sxc.hu

You know the often used, all-important saying in real estate - "Location, location, location"? Well, in the law the equivalent mantra should be: "Time, time, time."

Case in point: Back in 2006, homeowners Dennis Riddick and Sylvia Riddick filed suit against the contractor of their home. The contractor, Williams & Bowling Developers, LLC, asked the court to move the case to arbitration, which it did. The arbitration was held and the arbitrator issued an award in the Riddicks' favor on April 7, 2007. Let's stop right here.

Under Georgia law, when you receive an award in an arbitration proceeding you must have it confirmed (i.e., made "official") with a court. It then becomes a judgment of the court, which gives you the power to enforce it (i.e., garnish the other guy's wages, or do whatever else courts can do to help you get paid). Some people - even if they lose in an official proceeding such as arbitration - just won't pay you unless they are made to by a court of jurisdiction. And even then, they may fight it out. I'm not saying that's what happened in this case, I'm just pointing out the reality, folks. But to even get to the point where one is able to enforce an arbitration award with a court, one must follow the applicable deadlines set forth in the law. Georgia law states that you must file your petition to confirm the arbitration award within one year of the award date. (O.C.G.A. Section 9-9-12). OK - back to the story.

About a year later, on April 21, 2008, the court ordered the parties to get clarification from the arbitrator on a procedural issue. The arbitrator gave a response on a document dated May 28, 2008. However, the parties did not receive the response until May 6, 2009. About eight months later, on January 7, 2010, the Riddicks filed their petition to have the award confirmed.

What do you think happened? The court ruled, and the Court of Appeals agreed, that the petition was too late. The Riddicks made arguments for the delay, but the courts rejected them all. They were out of luck.

So what's the lesson here? In the law, time is everything. This case demonstrates that time is even more important than who wins. It is so easy to get caught up in our daily lives to remember everything it is we have to do. But the courts are not forgiving. If you ever find yourself in litigation, make sure that you understand the applicable deadlines. Ask your lawyer upfront. And hound your lawyer up until the deadline comes. You'll be glad you did.

The case is Riddick v. Williams & Bowling Developers, LLC, (Ga. Court of Appeals, 9/14/11).

Foreclosures: Can you Challenge Them?

2010-10-14T12:35:00.000-07:00

Since foreclosures have been in the news a lot lately (see this link to today's Atlanta Business Chronicle), this re-post is especially timely:

Here's a question: When you pay your mortgage in full, can you challenge the foreclosure? A recent case in Georgia has the following answer: Yes, but you must file a separate lawsuit; you cannot use it as a defense in an eviction proceeding. Good to know. It means that you have to go through about 20 different proverbial "hoops," though.

Case in point: A Georgia couple, Mr. and Mrs. Vines, got foreclosed by their bank, LaSalleBank National Association. After the foreclosure, the Vines did not move from the property so LaSalle filed an eviction proceeding in DeKalb county. At the eviction trial, Mr. and Mrs. Vines argued that the foreclosure was wrongful because they had paid their mortgage in full. The court issued a writ for dispossession (i.e., eviction) at the end of the trial. The Vines' appealed to the Georgia Court of Appeals.

The Court of Appeals held that Mr. and Mrs. Vines could not use the "we made our payment in full" defense in the eviction proceeding because it was procedurally improper. Instead, they should have filed a separate case to set aside the foreclosure. Oh, and when you appeal a case, you should also attach the transcript from the lower court, which the Vines failed to do.

So now you know. If you want to allege that your foreclosure was wrongful - and you wait until the bank has already started proceedings to evict you from your fully paid-for house - then you better get down to the courthouse right away to file your own lawsuit.

The case is Vines v. LaSalle Bank Natl. Association, 10 FCDR 422 (February 26, 2010).

The Truth About Attorney's Fees

2010-09-14T11:03:00.000-07:00

Stock illustration by Svilen Milev at www.sxc.hu

I apologize if the title of this post is misleading. Today's topic is about recovering your attorneys' fees in court, not about unleashing some top-secret information on how attorneys calculate or justify their fees. But it's a catchy title, don't you think?

All kidding aside, you will probably be shocked to hear this: it is very difficult to get someone else (i.e., the wrongdoer, also known as your arch enemy) to pay your attorneys' fees for you if you end up in court.

First, a little background. Nine times out of ten - and assuming you don't have a rich uncle to help you out - you will have to pay your own attorneys' fees along the way. This usually occurs on a monthly basis when you get a bill from your law firm detailing all the work your attorneys did on your case for the month. You will be expected to pay your attorneys every month or your attorney will most likely resign from the case.

So, knowing that you will have to pay your attorneys regardless, the real question is about reimbursement. Will you get reimbursed from your enemy for those thousands that you paid to your law firm? Or will you have to chalk it up to the value of having your "day in court?" In the American legal system we have a long-standing belief that parties to a lawsuit should shell out their own money for justice. This is opposed to other legal systems in the world where the loser pays all the legal fees for the winning party.

So if the underlying policy in this country is "pay your own way," then how do you get around that? The truth is there are limited options. In Georgia, there are only a handful of claims you can make that will entitle you to ask for compensation for your fees. They are centered around the "bad" and intentional behavior of the opposite party. In other words, you have to prove that the other guy acted with bad faith or the intent to cause you harm. Note the way that I phrased this: I used the word "prove." It is simply not enough to say that someone acted in bad faith or with the intent to harm you. You have to show evidence of it, either through documents or witnesses who can testify.

There's still another hurdle in your quest to get your money back. Not only do you have to show evidence of wrongdoing, but a jury has to believe you and calculate the exact amount to which you are entitled. And the jury can pick any amount they want. For instance, early in my career, I had a case wherein we alleged that the other side sold my client's house out from under her without her permission. We presented evidence of this in trial. The jury ultimately decided that the other guys did not have the intent early on in their relationship with my client, but developed it later. They awarded my client 80% of the amount she paid to the law firm. So she was not made whole. Folks - this happens a lot.

In summary, I've attempted to take a very broad topic and discuss only a small fraction of it. As with almost everything in the law, there are many more rules and exceptions to these rules that cannot possibly be addressed in full via a blog post. But hopefully you've gotten the gist:. You should know that it is very, very difficult and rare to have your attorneys' fees paid by someone else. Period. So if you are about to go down that road, set your expectations low and you may end up better off for it.

Civil Murder Case Affects Landlords and Tenants

2010-09-09T06:33:00.000-07:00

Stock photo by David Latt on www.sxc.hu

In a brand new case, Georgia landlords gain a victory over tenants who are harmed on the landlord's property. And it has the potential for changing the scope of landlord/tenant law as a whole.

In a case titled Herrera v. Miles Properties, a DeKalb County woman, Ann Herrera, sued her landlord after her son was shot on the premises. Her son died a month later after incurring $180,000.00 in medical bills. When Ms. Herrera filed the lawsuit, she alleged that the landlord had notice that criminal activity was happening at the complex due to many prior crimes committed there. She alleged that the landlord was responsible for her son's death because the landlord was aware of the criminal activity and did nothing to prevent the crimes from occurring. At some point, the perpetrators were also brought into the lawsuit even though the shooter is now serving a life sentence in prison.

In the past, Georgia law provided that damages could be relegated against one defendant or any of them. Not anymore. Pursuant to a new Georgia statute, damages can be specifically apportioned by the jury according to the amount of fault the jury assigns to them. In the Herrera case, the jury awarded Ms. Herrera $184,000.00 - which covers her son's medical bills plus funeral expenses. But the jury determined that the landlord was only 5% at fault, while the perpetrators were 95% to blame. According to the verdict, then, Mills Properties has only to pay Ms. Herrera $9,210.00.

Ms. Herrera's lawyer, Andrew T. Rogers, was understandably upset over the verdict. He said "The whole point of the civil case is to hold these people responsible for the failure to keep their properties safe. There's nothing to be gained by suing the criminals. It's like having a dangerous lion at the circus who gets out and attacks someone. The ringmaster knows he's dangerous, but this is like suing the lion and holding him responsible."

The lawyer for Mills Properties, David C. Marshall was happy with the result. He praised the new law for its "common sense" and holding responsible those people who actually commit a misdeed rather than those with the deep pockets.

There were undoubtedly many, many facts and details of the case that cannot be reiterated here. Bust based on the above synopsis, what do you think? Good law or bad?

What Not to Wear...to Court: Men's Edition

2010-09-07T05:18:00.000-07:00

After a long summer break, I have finally returned to writing the blog. And today's post is for the guys.

Believe it or not, I was in court recently and saw grown men dressed like this:

Needless to say, this is not appropriate for court. Hey guys - just as with the ladies, think about what impression you want to make to the judge, i.e., the only person who is able to determine the fate of your case. Do you want him or her to think you would rather be at the beach? Or at a concert? Do you want him or her to think that you really don't care about the outcome of your case? Of course not. So don't look like it.

Clearly, you can't go wrong with a suit and tie.

But the goal is to look put together, clean, and groomed. In my opinion, khakis and a sport coat work just as well. If you are giving witness testimony in a trial, a golf shirt tucked into a pair of khakis looks fine. Remember: as long as you are "put together" you will be fine.

And a note about grooming, fellas. You do not need to shave your facial hair or cut your long braids. All you need to do is make sure it looks nice. Clean your face or pull your hair back; that's all you really need.

What Not to Wear...to Court: Hair, Jewelry and Make-up

2010-07-29T07:54:00.000-07:00

The final installment of the ladies' version of What Not to Wear...to Court concerns personal grooming issues, specifically: how to do your hair, what jewelry is appropriate for court, and how to wear your make-up. If you've read the last few posts on this topic, then you won't be surprised by the suggestions you find here.

Before we launch into a discussion on the specifics, let me call your attention back to the goals of dressing appropriately for court. The goals, as listed in our July 22nd post, are:

To show respect for the court process; and
To be taken seriously.

With those goals in mind, let's look at our personal grooming recommendations.

How to Wear Your Hair to Court

Your hair should be clean and neat, and appropriately styled for daytime. It should be combed and left natural or pulled back with as few accessories as possible. Updo styles that remind you of the prom are not cool. Take a look at these:

While this woman's tank top and jewelry are entirely inappropriate for court, her hair looks great. It looks clean, neat and natural. So does this woman's:

If you wear your hair pulled back, do it in a simple, neat, and low ponytail. Like this:

NOT like this:

This woman's hair is too messy and juvenile for court. Stay away from any style that is too fussy.

Get the idea? Good. Then let's move on to jewelry.

What Jewelry is Appropriate for Court

Your jewelry should be kept to a minimum. Remember, the goal is to be taken seriously, and you just can't take anyone seriously if she is covered in gawdy, distracting jewels. Here are some examples:

Hillary Duff looks cool for TV or for a day out shopping with friends, but her jewlery is NOT cool for court. Way too much earring, ring and bracelets to be taken seriously by a judge or jury.

And the beautiful Eva Mendes looks great for a classy evening event, but her jewelry is way too flashy for court. I'd also add that her updo is more appropriate for evening, not a day in a courtroom.

Now take a look at these ladies who picked jewelry that is tasteful for court:

She is wearing small earrings and a few bracelets. If she was my client I'd ask her to remove a bracelet or two, but otherwise, her jewelry is great.

This woman is wearing some small hoop earrings and that's it. Perfect.

Finally, let's discuss appropriate ways to wear your make-up for a court appearance.

How to Wear Make-Up for Court

As with jewelry, when putting on your make-up, less is more. Keep your face clean and natural, with just a little neutral color. Deborah Kaplan has it right:

Just a little eye make-up, some natural blush and a natural, light lip color. Beautiful.

Ditto with Sanna Lathan. Her make-up (and her hair) looks gorgeous and perfect for a day in the courthouse.

That's it, ladies! If you have any further questions about how to dress for an upcoming court appearance, feel free to email me at kim@tpflaw.com.

Gentlemen, you are up next. Our next post will focus on what men should wear to court. See you next time.

What Not to Wear...to Court: Ladies' Dos and Don'ts

2010-07-27T07:45:00.000-07:00

If you read our last post, you are ready for the next installment of What Not to Wear...to Court. Today's installment features a Dos and Don'ts List especially for the ladies. Without further adieu, let's get right down to it.

Whatever you do, DON'T wear these things:

A t-shirt that has a cute (or not so cute) saying on it.

Stock photo from www.sxc.hu

Mini skirts and shorts. Just not appropriate. Period.

Stock photo from www.sxc.hu

Ripped jeans. Just say no.

Stock photo from www.sxc.hu

Tank tops. Even if it's 100 degrees in the shade, do not wear a tank top to court.

Stock photo from www.sxc.hu

Any shirt that exposes your midriff. Yes, people really do it. And this picture reminds me - don't wear a hat, either.

Stock photo from www.sxc.hu

Jeans, even if they are not ripped. In my opinion, the look is too casual for court. Save your jeans for every other day of the year.

Stock photo from www.sxc.hu

Lace. Save it for evening. Or Halloween.

Stock photo from www.sxc.hu

Sandals. The people at the courthouse do not - I repeat, do not - want to see your feet.

Stock photo from www.sxc.hu

Stilettos. Too sexy for court, and besides, you don't want to risk falling down in front of the jury.

DO wear these things, and you'll be sufficiently dressed for your day in court:

A suit. Or a coordinated top and bottom.

Stock photo from www.bananarepublic.com

Nice pants, a plain shirt and a neutral jacket. Note: A neutral jacket is always good to wear to court.

Stock photo from www.talbots.com

A dress (that's not too tight) in a nice, neutral color. That comes down to your knees.

Stock photo from www.talbots.com

A solid-colored skirt (that is not too tight) and a plain, long sleeved dress shirt.

Stock photo from www.talbots.com

Closed-toe shoes in a neutral, solid color and with a low (or no) heel. Black or brown works best. Boring, but true.

Stock photo from www.sxc.hu

Panty hose if it's winter, of if it's summer and you have bruises on your legs.

There you have it.

Check back for our next post on how to wear your hair, make-up and jewelry for your day in court. See you then.

What Not to Wear...to Court: WHY to Dress Appropriately

2010-07-22T08:15:00.000-07:00

Our first post in the series "What Not to Wear...to Court" is a bit like an undergraduate psychology textbook. We'll discuss WHY you should dress appropriately for court. And no, it's not because there are going to be a bunch of snobby lawyers there. We dress appropriately because we have two goals in mind. They are:

To show respect for the process; and
To be taken seriously.

No doubt you've heard the cliche "You never get a second chance to make a first impression." It's true. And in court, you only get one chance to make any impression. Since you have only one chance, and not a lot of time to tell the judge/attorneys/jury about yourself, what you look like matters. They will - not might, but will - draw conclusions about your credibility and your truthfulness based upon what you look like. It's sad and superficial, but it's also human nature.

So, on that note, let's discuss specifics.

First, think about the reason you are going to court in the first place. Are you asking a judge to modify a child support arrangement? Have you been evicted from your apartment and summoned to come to a hearing? Are you going to ask a jury to award you a million dollars for a bad car accident? Whatever the reason, you are either asking the court to do something that you can't do yourself, or you are asking the court to prevent someone else to do something to you. And most likely, the stakes are high. You need to realize that the people you are going to see - a judge or jury - have the power to do something to you or for you. Remember that. And then dress in a manner that shows you respect their power.

Think about this.

Imagine you are the judge making a decision whether to award a mom more money in child support. Do you get the impression from this outfit that the woman respects your authority?

Stock photo from www.sxc.hu

Probably not.

What if the woman came to court wearing this?

Stock photo from www.bananarepublic.com

The two women above probably evoke vastly different feelings in you. With the first lady, you might get the feeling that she doesn't care very much about the process and why she's there. After all, court is not a "something you do everyday" kind of thing. But she decided instead to wear something one would wear everyday: jeans and a t-shirt. If she doesn't care enough to distinguish her day in court from every other day in her life, then why should the judge or jury care about her case? She doesn't appear to have very much respect for the process.

Plus, believe it or not, the woman's outfit in the first picture is distracting. If I'm the judge, my mind is racing with thoughts like, "Is something wrong with her and is that why she is wearing jeans, a t-shirt, and a bandanna to court?" or "Does she have enough money to buy a suit?" I may also be wondering, "Is she so upset with the state of things that she was too depressed to get dressed up this morning?" or "Did she spill coffee on her suit and this was all she had in her car to wear?" I don't know the answers to these questions, but my mind wants to figure out what's happening.

On the other hand, the woman in the second picture looks like she cares about the process, is put together, and she is ready to take care of the business at hand. Her outfit does not distract me, so I feel ready to hear what she has to say.

Second, whatever the reason for your court appearance, you will probably have to testify (or answer questions asked of you). You want the judge or jury to believe you, right? Otherwise, what's the point? So, dress so that you look worthy of being taken seriously. Dress so that you look truthful.

Does this outfit inspire the feeling in you that this lady will tell you the truth?

Stock photo from www.sxc.hu

What about this outfit?

Stock photo from www.talbots.com

Note - and this is important - you do NOT have to wear a suit to court. The outfit on the woman above is appropriate. She looks like she respects the process, is put together and ready to talk business. Additionally, her clothes do not distract me from the job at hand. I would recommend, however, taking a neutral-colored cardigan or jacket (bright colors may be distracting) because most courtrooms I've been in have been very, very cold.

Stay tuned; our next post will be a "Do" and "Don't" list of specific items to wear. See you then!

What Not to Wear...to Court

2010-07-20T09:07:00.000-07:00

Although I have been practicing law for years and have been to court lots of times, I am still astounded by what I see people wearing in the courtroom. Believe it or not, there really are people who show up at court dressed like this:

Stock photo from www.sxc.hu

And like this:

Stock photo from www.sxc.hu

Sorry folks, but this is simply unacceptable. Well, if you want to win your case. If you don't care, then stop reading right now and check out another blog. For those of you who want to win your case in court - or for attorneys who don't know what kind of appropriate "fashion advice" to give to their clients - the next series of posts is for you.

Check back during the next 2 weeks for the series "What Not to Wear...to Court." We'll focus on clothing for men and women, as well as grooming suggestions for each. And for the women, we'll also discuss how to wear make-up and jewelry in the court setting. It should be a fun and lighthearted, yet also informative, series perfect for the middle of summer.

See you soon!

5 Things to Know About Getting Involved in a Lawsuit

2010-07-19T08:29:00.000-07:00

Stock photo by Wilson Souza at www.sxc.hu

Oftentimes clients come into my office in an angry or disheartened state. They feel they have been taken advantage of, or used by someone, or ripped off. They are usually fired up and ready to go "get" the perpetrator by filing a lawsuit against him or her. They firmly believe that they are right and the other guy is wrong, and therefore, they will prevail in the end - no matter what.

Folks, this is a romanticized and unrealistic view of the law. My guess is that people believe this way by virtue of all the legal shows on television. And they are all wrong.

Ask anyone who has been involved in a lawsuit - no matter whether they won or not - and they will most likely describe a long, depressing, vulnerable, and disheartening experience. Unfortunately, they are all right.

Lawsuits are not for the weak at heart, and here are the five things that you absolutely must know before getting involved:

Lawsuits are emotionally, financially, and mentally taxing. Above anything else, litigation is adversarial. It's meant to be. Think about it: If everybody were friends and got along all the time, there would be no reason for the law! The law exists to keep people in line and to resolve problems among people. But it's not pleasant. In a lawsuit, parties get emotionally involved, sometimes resulting in anxiety and depression. Lawsuits cost a lot of money. Even the most simple of cases that go all the way to a trial will cost over $10,000.00. And during a lawsuit, you will be asked to provide information about yourself that may be sensitive, private or embarrassing. Most clients literally feel like they've been beaten-up and abused during a lawsuit. I dare to say that if you don't feel that way, then something is wrong with you.
Lawsuits should be a last resort. Since you just read number 1 above, you now know that you will likely go through a version of hell on earth during a lawsuit. So, to avoid all the unpleasantness, lawsuits should always be a last resort. If there is any way you can work out your differences with the other party, you should. And make no mistake about it - there is always a way to resolve a dispute. The key is that BOTH parties must be willing.
Lawsuits almost always take a long time to reach any meaningful conclusion. Boy, this is the truth. In litigation, there are very specific deadline that must be followed. Those deadlines stretch out over a year, and are very often extended for a multitude of reasons. In addition, whenever you make a motion to a judge, you enter into a holding pattern where you are literally doing nothing but waiting. For months. Judges in more populated counties usually take longer to rule on motions or call a case up for trial, simply because there are more people and more problems. If you live in a metro area like Atlanta, you can plan to spend at least 2 years in litigation. Very often, you will have to wait even longer. So be prepared for the long haul.
A lawsuit is an investment. Many people view a lawsuit as their chance for vindication, i.e., their "day in court." They are willing to spend lots of money in order to get something back. The "something" they are after could be more money, satisfaction when the other guy loses, redemption, or perhaps merely an apology. No matter the reason, you are remiss if you don't view a lawsuit as an investment in a particular outcome.
A lawsuit is a risk. As with any investment, there are risks. If you do not settle with the other side (where you get to make the decision on what the outcome will be) you are leaving the decision-making in someone else's hands. When you do that, you lose control of the outcome. No matter how strong and valid your case may be - you will either win everything, lose everything, or get some of what you want, all because you are letting someone else decide for you. And you will never know what the answer is until the end. Make no mistake about it: a lawyer who tells you he or she can predict the outcome is lying to you.

So there you have it. And it's not pretty. Lawsuits are not pretty. I do not mean to discourage you when you have a real problem that cannot be resolved any other way. I only intend to give you a "reality check;" to let you know what to expect. Only then can you enter into a lawsuit with open eyes.

The Trickiness of Tax Sales

2010-07-08T08:01:00.001-07:00

Stock photo from www.sxc.hu

In recent years tax sales have become a popular investment tool. However, while you may end up with a piece of property at a fraction of its value, you need to be aware of the limitations of your investment. Today, I'd like to discuss what you need to know.

First, the basics: What is a Tax Sale?

A tax sale is a procedure used by investors to buy property (usually houses or other buildings) that is sold by the government. The government gains the right to sell the property because the owner has failed to pay taxes on the property. Usually the investor needs only pay the amount of the tax owed in order to obtain the title. The title comes in one of two forms; either by a tax deed or a tax lien. At some point I may give more detail than this. However, it is outside the scope of this post, so for now I will wait.

Second: What are the limitations to Tax Deeds or Tax Liens?

It is important to know that tax deeds and tax liens have limitations. It is equally important to read and understand the paperwork before making a decision to purchase a property via a tax sale. Here is an example:

In a recent case, an investment company bought a piece of property via a tax sale from the City of Savannah, GA. The property was home to a vacant and dilapidated building. According to the tax deed, the City kept a "Right of Redemption" to the property for up to 12 months after the sale. This meant that the city could come back, up to a year after the sale, and buy back the property - for any reason whatsoever. The deed also said that the investors' interest was second to the City's Right of Redemption.

The trouble started when, 11 months and 24 days after the sale, the City came to the property and demolished the building. The investors sued the City for trespassing and sought to recover the value of the building. However, when the court read the tax deed, it decided that the deed was crystal clear: since the City retained the right to buy the property back, it was still the legal owner of the property. Thus, it was entitled to demolish the vacant building.

So, the bottom line is this: tax sales can be a great deal, but only if you fully understand the limitations of them. You must do your research up front and know what you're buying. Also, if you don't completely understand the deed, lien, or other documents, it is well worth your time and money to get some legal advice. Please do not make the same mistakes as others have made before you.

*The case is Brown Inv. Group, LLC v. The Mayor & Aldermen of the City of Savannah, 10 FCDR 1576 (GA Court of Appeals, 5/21/2010).

Blog written by Kim Perez and transcribed by Jessica Oglesby

Atlanta Home Builder Settles Discrimination Lawsuit

2010-07-06T07:38:00.000-07:00

Stock photo from www.sxc.hu

One of our goals here at Georgia Home Law is to educate our readers on current events - not just legal cases - that affect homeowners and the housing industry. So, with that goal in mind, today's post contains news about a settlement reached in a lawsuit against a local home builder.

The builder at the center of the case is John Wieland Homes and Neighborhoods, Inc. ("JWH"). One of JWH's human resources representatives filed a complaint with the U.S. Equal Employment Opportunity Commission. The representative claimed that JWH's policy was to not hire black sales agents for white communities, no matter how qualified they were. This resulted in black agents making significantly less money than white agents because the white communities were generally higher-priced. The representative complained, and when no action was taken, she felt forced to resign.

The EEOC conducted an investigation and eventually filed suit against JWH in 2009, and the case was finally settled last week. Under the terms of the settlement, JWH must do the following:

Pay $378,500.00 plus an additional $1 million for salaries and fringe benefits to the victims of race and sex discrimination;
Hire at least 10 African Americans and women for management positions in the next 6 years; and
Implement nondiscriminatory hiring procedures.

The settlement is apparently the last of the several discrimination claims filed against JWH in the last six years.

Did You Know Contractors Are Required by Law to Provide Written Warranties?

2010-06-29T10:00:00.000-07:00

Stock photo from www.sxc.hu

In doing some recent reading, I came across a little article about Georgia's Written Warranty Act. I was aware of its existence, but had forgotten how new it is. So as a refresher for me, and hopefully a new lesson for you, today's post discusses the Written Warranty Act and what it means for home builders, contractors, and homeowners.

Signed into law in 2006 - yes, just four years ago - the Written Warranty Act requires home builders and contractors to provide a written warranty to their customers on jobs that exceed $2,500.00. The Act does little more than require the existence of a written contract. The State legislature gave authority to the State Licensing Board to come up with specific terms required to be in each warranty. The State Licensing Board formulated these rules in 2008. Therefore, as of 2008, all written warranties must contain the following:

The work and activities covered by the warranty;
The work and activities that are not covered by the warranty;
The standards used for evaluating the work, which are set forth in the Residential Construction Performance Guidelines published by the National Association of Home Builders;
The time period of the warranty;
How to go about filing and processing a claim;
The contractor’s response options (i.e., repair, replace or compensate); and
A list of manufacturer warranties which apply.

In addition, the contractor must attach a complete copy of the written warranty, or an identical but unsigned form to the contract before the contract is signed by the homeowner.

Many builders and contractors already provide written warranties for their work. In these cases, the only difference the Act makes is that it specifies the exact terms that must be in the warranty. Other terms may be added at the contractor’s discretion. If contractors are not currently providing a written warranty to customers, they need to draft one as soon as possible.

The Written Warranty Act might seem like a big burden to smaller contractors, but it is worth the time and money contractors will invest in drafting the warranty. Not only because it’s required by law, but because a written warranty protects the homeowner, as well as the contractor from possible lawsuits down the road. Plus, it establishes expectations between the parties early in the relationship. For these reasons alone, the investment in a written warranty is justified.

On Getting More Than You Bargained For

2010-06-24T08:20:00.000-07:00

Stock photo from www.sxc.hu

A new case out of the Georgia Court of Appeals demonstrates just what happens when you get more than you bargained for. And it's not pretty.

A Georgia couple, Mr. and Mrs. Lampkin, purchased a piece of property in September of 2000 from a man named Walter Walker, Jr. Mr. Walker conveyed the property to them via a warranty deed. Contained in that warranty deed was language stating that the deed was subject to another deed - a Deed to Secure Debt that Mr. Walker signed one month prior to the sale. It is unclear from the case whether the Deed to Secure Debt was attached to the sale papers, or whether the Lampkins read the Deed to Secure Debt. Was is clear, however, is that that Deed to Secure Debt was a contractual promise from Walker to his bank that covered the property at issue, plus all the future obligations of Walker to the Bank under any promissory note, contract, guaranty, or other evidence of debt existing now or executed after the deed.

If you've read this blog before, you already know what happens next. Things went south for Mr. Walker and by 2007 the Lampkins learned that their property was in foreclosure despite the fact that they made their required monthly payments. They tried to negotiate for the payoff of the property, the principal amount of which was $12,803.00. But the bank refused the offer because it turned out that Walker owed the bank more than $198,000.00 on various notes and contracts. The Lampkins' had no idea about Walker's subsequent loans.

The house was foreclosed and the bank bought it back for almost $26,000.00. The Lampkins' filed suit around this time, alleging fraud and asking the Court to stop the foreclosure. The Court declined, saying that the deeds were clear: the warranty deed that the Lampkins accepted when they purchased their property stated that the purchase was subject to the Deed to Secure Debt. And the Deed to Secure Debt clearly covered all subsequent loans Mr. Walker took from the bank. It made no difference that the Lampkins' had no knowledge of the other debt. The Lampkins' appealed, but on appeal, the Court upheld the foreclosure.

This case turned out to be a harsh result for the Lampkins', who presumably lost their investment and their home. But it is a good lesson for all home buyers out there. You cannot underestimate the importance of reading your contracts and understanding what they mean. Because as this case illustrates, you could end up with way more than you thought you'd bargained for.

New Water Use Law for Georgia Affects Home Builders, Homeowners & Home Inspectors

2010-06-22T08:17:00.000-07:00

Stock photo by Stephen Davies at www.sxc.hu

In early June, Governor Perdue signed into law the so-called Water Stewardship Act of 2010. This new law greatly affects Georgia homeowners and all those in the home building industry, as well as home inspectors. Here's the scoop:

On or before July 1, 2012, the state minimum residential codes will be amended. The new code must require that high-efficiency plumbing fixtures be installed in all new homes that are permitted on or after July 1, 2010. The fixtures included are toilets, shower heads, urinals, faucets, and similar devices. This is not necessarily new, since Georgia has required low-flow plumbing fixtures since 1992. What is new, however, is that the flow requirements will become much stricter in 2012.

Additionally, the new law prevents the use of outdoor sprinklers for landscape use from 10:00 AM to 4:00 PM daily. And the law created a Joint Committee on Water Supply to study new opportunities for enhancing water supply.

What do you think about the new law? Is it a good policy or not worth the time and extra cost?

On Loaning Money to Family to Buy a Home

2010-06-01T05:42:00.000-07:00

Stock photo of the Martinez Family by Marina Avila on www.sxc.hu

Almost everyone I know has done it: borrowed money from parents to buy their first house. In today's case, Yurevich v. Williams, the situation was no different. What was different, however, is that the family ended up in court. How did this happen, you ask? Read on.

In 1998, Ms. Yurevich loaned about $30,000.00 to her son and daughter in law so they could make a down payment on their first home. In conjunction with the loan, they executed a promissory note, whereby the son and daughter in law agreed to pay back Ms. Yurevich when one or both of them sold or transferred title to someone else. Plus, the parties agreed that Ms. Yurevich would take title to half of the property, while the son and daughter in law would split the other half. The Court hints in its opinion that the agreement did not contemplate what would happen in the instance of divorce.

You can probably tell where this story is headed.

The marriage faltered and in July of 2006, the daughter in law (Ms. Williams) quit-claimed her interest in the house to Ms. Yurevich. The following year, the divorce was finalized. As part of the divorce agreement, Ms. Yurevich ended up with a claim to $30,000.00* of the equity in the house, plus an additional $25,000.00 of the equity to reflect her half ownership in the house. Ms. Williams received about $12,000.00 in cash in exchange for her transferring title to Ms. Yurevich. Ms. Yurevich sued Ms. Williams in an effort to collect money from her pursuant to the promissory note.

Now, since the Court's opinion only tells a fraction of the whole story, it is difficult to ascertain exactly what amount of money Ms. Yurevich was seeking in her lawsuit. Maybe she wanted all the money that was given to Ms. Williams. Regardless, the Court held that Ms. Yurevich was "made whole" by getting her down payment back, plus about $25,000.00 more for her ownership interest in the house. Ms. Yurevich lost.

But I think that all the people involved in this case lost in a way. Whenever you involve family members in a transaction involving lots of money, things can get sticky. When a lawsuit ensues it gets even worse. All lawsuits involve a high degree of emotion, stress and fear - even when you barely know the other side. Add that to the emotions involved in family ties and you have a recipe for disaster.

If you enter into a transaction with a family member, the best piece of advice I can give you is twofold: 1) make the agreement crystal clear, trying to anticipate solutions to problems that may come up down the road, and 2) try your absolute best to work out any problems that arise. If you can't work them out on your own, it may be worth it to hire a neutral third party to craft solutions for you. Doing so will save your relationships, your money, and your sanity.

* All numbers are approximations.

Five Things to Know About Small Claims Court

2010-05-27T07:35:00.000-07:00

Stock photo by Jason Morrison at www.sxc.hu

Today we are taking a break from the traditional post of discussing new legal cases to talk about a more practical topic: small claims court. Why? Because people who have a run-in with the court system during their lifetime are not likely to go through a protracted legal battle - costing tens of thousands of dollars, and lasting several years. For most people, an experience in small claims court is more likely.

So how do you go about getting a case to small claims court? Here are five things you need to know about the process:

The Dollar Limit is $15,000.00 in Georgia. In Georgia, magistrate courts (the technical name for small claims court) only have jurisdiction to hear cases where the dollar amount in controversy is $15,000.00 or less. So if you have a dispute with your neighbor over a tree that costs $800.00 to chop down, or with a roofer over damage to a roof that costs $13,000.00 to replace, then magistrate court is the place to be.
It's Cheap. The cost to file the paperwork depends on the county, but is generally less than $100.00, including the service fees to have the defendant served by the sheriff. Being an attorney who has practiced law for almost 10 years, I can assure you that $100.00 is a small price to pay for justice.
Cases are Easy to File. To file a case, all you need to do is go to the county courthouse in the county where the defendant (the person you want to sue) lives. Ask the magistrate court clerk for the paperwork to file a case. He or she will get it for you and usually answer any questions you have about how to fill it out. Then you sign it, pay the filing fee, and you're done. Some counties now have internet filing, which makes the process even easier.
Lawyers are Optional. The process was created so that anyone walking off the street could have access to justice at a small cost. So you do not need a lawyer. In most cases, the attorneys' fees outweigh the dollar amount you are suing for, so it doesn't make economic sense to hire a lawyer. Most magistrate judges I have seen will help the parties along and even ask questions on their own.
You Can Appeal for Any Reason. You get a decision at the end of your hearing, then you have 30 days to decide if you want to appeal. In state and superior court you can only appeal for very specific, technical reasons. But in magistrate court, you can appeal for any reason. If you decide to appeal, you can bring in an attorney at that time. It may make sense to have an attorney at the appeal, because the stakes get higher.

These five tips should help you navigate the process in magistrate court. If you still have questions, it may be worth your while to "buy" an hour of an attorney's time to get advice on how to prepare and present your case.

Good luck!

When is it OK to Fix My House?

2010-05-25T07:46:00.000-07:00

Stock photo by Jon Wisbey at ww.sxc.hu

When clients come in to my office and need legal representation because the new home they bought is riddled with construction defects, the question I get most often is this: "When can I get my house fixed?" I usually tell them that although the question is a simple one, the answer is pretty complicated. Luckily for me, the Georgia Supreme Court issued an opinion recently that makes the answer a tad bit easier.

In Silman v. Associates Bellemeade, the issue to be resolved was whether it was OK to destroy evidence if you have no idea that it will be relevant to a lawsuit one day. This is important to my clients' question because, technically, the defects in your house are "evidence." So, if you go and fix your house without notifying the builder that you are doing so, you are destroying evidence. Are you with me so far?

To find out what you should do in this situation requires an analysis of the case. In the case, Mr. Silman was injured while standing on a back deck of his friends' house and the deck collapsed. After the accident, the property owners cleaned the debris and threw it away. Two years later, Mr. Silman filed a lawsuit and asked for penalties against the property owners for throwing away the evidence related to his lawsuit, or the debris from the collapsed deck.

After more complicated legal analysis, the Court reasoned that the owners could not be held responsible for destroying evidence because at the time they threw away the debris, they had no idea that a lawsuit would ensue. In fact, two years passed until a suit came to fruition. The Court then clarified the rule with regards to destroying evidence. The rule is that you should not destroy evidence when the potential for litigation exists. And the "potential for litigation" means that litigation is contemplated or pending.

So, in light of the clarification set forth in the Silman case, the answer is a bit easier for homeowners who want to know when they can get their houses fixed. And the answer is this: if you are coming to see a lawyer, then clearly you are contemplating a lawsuit and you should not hire that contractor to make repairs just yet. You'll have to live with the problems a little longer.

It's About Easements, Actually

2010-05-20T06:00:00.000-07:00

Stock image by Sue Byford at www.sxc.hu

I'd like to take a time out today to discuss a clarification to a previous post, as well as how that clarification applies to all the posts on this site. If you are looking for a post on some new law, then you'll just have to check back next week. Sorry.

First up, the clarification. In a case we discussed back in March, Kaplan v. City of Sandy Springs, I outlined the court's decision then gave my two cents about what I thought the implications would be for all homeowners in the future. My thought was that the homeowners would have to pay for the damage caused to their property by a public water pipe, rather than the city or county having to fit the bill. Boy was I wrong.

The homeowner in the case, Mrs. Kaplan, was nice enough to call me this week and educate me about what I missed. What I learned from the conversation is that the case is four years old, and over the course of that time, there exist many, many, details that could not possibly have made it into the court's opinion. And like most cases that make it up to the Georgia Supreme Court, the details are extremely complicated. But the gist is the case is essentially about easements and easement rights, rather than homeowner responsibility. The case was sent back to the county superior court and is awaiting a final resolution.

This case brings me to my second point and a note about all the posts on this site: There is no way that I can possibly understand the details of what is going on in every case or news article I read. Only those closest to the situation can decipher the real meaning and implication of the matter. However, it is my hope that I can find the human side of each story and the practical lesson to take away from each case. It is by explaining tedious legal opinions in this fashion that I hope we can: a) learn something, and b) start a discussion about it. It is never my intention to presume that I know something I don't, or to offend anyone. Learn and discuss. That's it. Because - truth be told - I actually like this stuff.

I hope you enjoy it enough to read again again next week. See you then.

Home Buyers: Always Read the Contract

2010-05-18T05:42:00.000-07:00

Stock photo by Jeff Hire at www.sxc.hu

How many times have you bought or sold a house in your lifetime? Of those times, how many times did you read the sales contract all the way through? Yep, that's what I thought. Zero.

Well, a recent case demonstrates just how important it is to read the contract. In Reynolds Properties, Inc. v. Bickelmann, a home buyer entered into a contract to purchase a house for $985,000.00. The contract provided for the standard brokers' commission of 7%, or 3.5% if split between two brokers. Bickelmann, the buyer, put down a $15,000.00 deposit as earnest money. In addition, the sales contract provided a clause saying that if a party decided not to close, the brokers could sue the non-closing party to recover their commission.

Sometime before closing was to occur, Bickelmann changed his mind and decided not to purchase the house. In so doing, his real estate agent drafted a termination agreement whereby Bickelmann agreed to let the sellers have the earnest money in exchange for Bickelmann walking away from the deal. As part of the termination agreement, the brokers agreed that they were not entitled to the commission unless, within 180 days of the termination, Mr. Bickelmann changed his mind and ended up buying the house after all.

You can probably guess what happened next. 180 days passed and Bickelmann did not come back to the table. He moved on with his life, and so did the sellers. But the brokers could not let that hefty commission go, so they sued Bickelmann. They argued that they were entitled to the commission based upon the sales contract.

In my head, I think the brokers were counting on Bickelmann not reading either contract, and they thought they could persuade him to pay up. But Bickelmann refused to give in. He pointed to the termination agreement, saying that it canceled the sales contract, and so, the duty to pay the commission was also canceled (unless he came to the closing table within 180 days). The Court of Appeals agreed with him.

The Court gave a simple analysis, saying that all you had to do was read the termination agreement to see who was right. According to the termination agreement, the brokers' right to the commission was gone, unless the 180 day provision kicked in. It did not, so Bickelmann had no duty to pay the brokers. Case closed.

So the lesson is this: You need to always read the sales contract, as well as any other contract you may sign. Understand it. Ask questions if you don't understand. Otherwise, someone else could take advantage of your ignorance, costing you thousands of dollars.

More on Avoiding Injuries at Construction Sites

2010-05-13T09:12:00.000-07:00

Stock photo by Patrick Moore at www.sxc.hu

On Tuesday we discussed what NOT to do when trying to avoid injuries on construction sites (remember that loose piece of plywood over a trash cute?). Today we will talk about what you CAN do when trying to avoid injuries.

In a case titled Ferguson v. Premier Homes, Inc., a subcontractor named Ivin Ferguson was performing work at a house owned by Premier Homes. Premier owned the house for two years prior to Ferguson's entrance. During those two years, various people accessed the attic via the pull down stairs with no problems. However, the day Ferguson was at the house, he used the pull down stairs to get to the attic and guess what? They split from the ceiling and fell to the ground with Ferguson on them. Needless to say, Ferguson sustained serious injuries.

After Ferguson sued Premier, Premier argued that it wasn't liable (i.e., responsible) because 1) there was no evidence prior to Ferguson's accident to suggest that anything was wrong with the stairs, and 2) since many people had used the stairs before Ferguson with no problem, then there was no way Premier could have known about a problem. Ferguson countered by saying that someone had to have notice of a problem - since stairs don't just fall out of the ceiling, after all - and Premier was in the best position to know about any defect.

The Court agreed with Premier, saying that if a builder has reason to know about a problem then it has a duty to investigate and act to avoid injuries. However, a builder does not have to use extraordinary measures to investigate a problem. The Court reasoned that since others used the stairs with no sign of trouble looming, then Premier did nothing wrong.

So today's lesson is this, home builders: if you know or have reason to know of a danger to others, then you must investigate, then act accordingly to prevent the danger. Otherwise, you are generally safe from liability.

Contractors: How Do You Prevent Injuries on Construction Sites?

2010-05-11T07:39:00.000-07:00

Stock photo from www.sxc.hu

Hey, contractors - How do you prevent injuries on construction sites? One interesting case out of the Georgia Court of Appeals doesn't exactly answer the question, but it does tell you what NOT to do. Definitely do NOT put a loose piece of plywood over the hole for a trash chute several stories in the air.

It seems like common sense, right? So why did the parties end up in litigation? Read on...

At the center of the case is a man named H. R. Baker, a construction supervisor. Mr. Baker was working on a large project known as the West Village Building Project, which consisted of seven mixed-use buildings. His employer was Foundation Contractors, Inc. which was responsible for all the concrete construction on the project. Foundation worked closely with another subcontractor, Harcon, Inc., who built and erected wooden "forms" into which Foundation poured the concrete. When the concrete was dry and hardened, Harcon would remove the forms. This process was repeated over and over again.

One building was different than the rest, though. Building 4000 was the only one on which Mr. Baker worked that was to have a trash cute - on the second level. Mr. Baker was aware of the trash cute, and even told Harcon about it being there.

After Foundation poured the concrete, Mr. Baker left the site to work on another building. Approximately 5-6 days later when the concrete had dried, Harcon disassembled the wooden forms and left a large piece of plywood over the hole to the trash chute. Guess what happened next? That's right. Mr. Baker went back to Building 4000 to remove trash and debris. And even though he knew where the trash chute was, he stepped onto the plywood and fell down the chute, sustaining very serious injuries.

Mr. Baker then sued Harcon for negligence by covering the trash cute hole with a simple piece of plywood and not putting up yellow tape or any other signage warning workers of the danger. Haron argued that Mr. Baker was partially at fault for knowing about the danger, but going up there to work anyway. Who won?

We don't know yet. At the Court of Appeals, Harcon asked the court to dismiss the case based on Mr. Baker's voluntary choice to return to the site, knowing of the danger. The Court refused to let Harcon out, saying there were too many issues of fact that needed to be resolved by a jury.

So there you have it. This case doesn't tell us how to avoid injuries; injuries will always happen because construction is an inherently dangerous job. But this case does tell us what not to do: don't be thoughtless. My educated guess is that if Harcon had put up signs notifying others of the hole in the floor, or put yellow tape around the hole, the case would have been dismissed.

Having said that while wearing my proverbial "legal hat," I don't want to downplay the trauma that Mr. Baker has undoubtedly suffered. My thoughts go out to him and his family, regardless of who is ultimately found at fault.

The case is Baker v. Harcon, Inc., A09A2398 (March 30, 2010).

If You Say You're Going to Do Something You Better Do It, Or Else

2010-05-06T05:30:00.000-07:00

Shaking hands by Rob Owen-Wahl at www.sxc.hu

In a recent and quite complicated case to come out of the Georgia Court of Appeals, we learn a very simple lesson: if you say you're going to do something, you better do it.

In the case, titled Georgia State Financing & Investment Commission v. XL Specialty Insurance Company, a general contractor (the "GC") was hired to build several new buildings for a state hospital. As most GC's do, he hired a subcontractor to do the roof work. Bontiz, the subcontractor, did the work and got paid. After several years passed, the walls in the hospital began to leak causing lots of damage. Then everyone involved (the owner of the building, the bond companies, the GC, the subcontractors) sued each other. What a mess.

So what happened next? After evidence came out during the discovery process of the lawsuit, Bontiz filed a motion to be removed from the case. Bontiz said that there was no evidence that what he did actually caused any damage. The trial court agreed, and removed Bontiz from the suit. But the Court of Appeals essentially said, "Not so fast, Buddy. Have you read your contract lately?!"

You see, in his contract with the GC Bontiz agreed to do lots of specific things, like

Install the ceiling grid supporting the acoustical tiles in such a way that the tiles would be able to bear at least 10 times the weight of the tiles;
Install the hangers holding up the grid so that they were spaced no further than 4 feet from each other; and
Attach the hangers to the structural members of the buildings with sufficient anchorage.

But even if there was no evidence that Bontiz's work actually caused the problems complained of, that wasn't good enough to get him off the hook. There was evidence that he did not do the things listed above, and therefore, that was enough to keep him in the lawsuit.

But, wait! What about damages? Bonitz argued that he did not cause any party to suffer a loss of money, so he can't be made to pay any party money. Makes sense, right? Nope, not in Georgia law. The Court pointed out the Georgia rule: if you negligently perform a contract, the other party may still get nominal damages from you to cover the costs of bringing the lawsuit.

So now you see the real consequences of not doing what you promised to do. In life, when you don't do what you promise, you could end up with ruined relationships. In the law, when you don't do what you promised to do, you could end up in the middle of a lawsuit spending lots of money and time, plus emotional energy. And really, who has any of those to spare?

An Update on Fire Sprinkler Legislation

2010-05-04T05:28:00.000-07:00

A typical fire sprinkler

If you recall an earlier post about a bill proposed in the Georgia legislature earlier this year having to do with fire sprinklers, then we have an update for you. At the end of April, the legislature approved and passed the bill, which no longer requires that builders install fire sprinklers in new homes. The new law will now read, "The state residential and fire building codes shall not include a requirement that fire sprinklers be installed in a single family dwelling." It should be signed by the governor and become effective very soon.

Before you start jumping to conclusions, a word of explanation is needed here. The law does not say that fire sprinklers are no longer allowed in new homes, just that they are not required to be installed. See the difference? The home building industry pushed this bill through the legislature so that builders could save money on construction costs. If home buyers want to have fire sprinklers installed, they need to insist that fire sprinklers be included in the purchase contract.

What do you think about this? Is it a worthy cost saving measure? Does simply having smoke detectors do the job, or should the legislature have kept the fire sprinkler requirement on the books?

The Importance of a Well Drafted Contract, aka A Million Dollar Mistake

2010-04-29T05:00:00.000-07:00

Stock photo by shho at www.sxc.hu

There have been a number of posts I've written showing what happens when you enter into a transaction and fail to get a written contract. Today I'm going to point out that merely having a written contract is not so good either. If you really want to protect your business, your assets - let's be honest here, your sanity - you need a well-drafted contract.

Case in point: In a construction project at Georgia Southern University, a plumbing contractor hired a plumbing subcontractor to do some installation work. The contractor, Gilbane Building Co., presented the sub, Jiminez, with two documents. One was called "Labor Contract, " which set forth various things Jiminez had to do. Among them were attending agenda and safety meetings, and providing a certificate of insurance. The other document was called "Insurance and Indemnity Subcontractor Agreement." This second document was the more important of the two because Gilbane ultimately got sued for defective work on the job site, which resulted in a burst pipe and about $1 million worth of damage. Using this "Insurance and Indemnity Agreement," Gilbane sought to be indemnified, or paid back, by Jiminez.

There was no dispute that Jiminez signed both documents. The dispute was whether the documents were enforceable. The court pointed out that the law in Georgia requires that a contract cannot be enforceable if the terms of it are not clear to both parties, are incomplete, or incomprehensible. The court then applied the rule to the document at issue.

In looking at the second document, the "Insurance and Indemnity Subcontractor Agreement," the court discovered the following:

It did not state Gilbane's name anywhere;
It was not dated;
It did not specify the location of the work to be performed;
It did not include a promise to pay Jiminez;
It mentioned additional documents, but none were attached; and
The indemnification paragraph failed to identify the person to be indemnified.

With so many terms undefined and so much information left out, the court ultimately decided that there was no way this "contract" could be enforced against Jiminez. In other words, Gilbane could not get indemnified from Jiminez. Gilbane most likely will have to eat the $1 million. Double ouch.

So what do we learn from today's lesson? Get a contract. Always. But just as important as having a contract is having a good contract. If you have to spend a few hundred dollars up front to get an experienced attorney to draft a solid contract for you, doesn't that make more sense that eating a $1 million lawsuit?

The case is Jiminez v. Gilbane Building Co., 10 FCDR 1053 (4/9/10).