ABUSIVE LITIGATION
ICLEABUSIVELITIGATIONPROGRAM MATERIALS February 14, 2019
Thursday, February 14, 2019ABUSIVE LITIGATION6 CLE Hours including2.5 Ethics Hours 6 Trial Practice HoursSponsored By: Institute of Continuing Legal EducationICLE: State Bar Series
Copyright 2019 by the Institute of Continuing Legal Education of the State Bar of Georgia.All rights reserved. Printed in the United States of America. No part of this publication may bereproduced, stored in a retrieval system, or transmitted in any form by any means, electronic,mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.The Institute of Continuing Legal Education’s publications are intended to provide current andaccurate information on designated subject matter. They are offered as an aid to practicingattorneys to help them maintain professional competence with the understanding that thepublisher is not rendering legal, accounting, or other professional advice. Attorneys shouldnot rely solely on ICLE publications. Attorneys should research original and current sources ofauthority and take any other measures that are necessary and appropriate to ensure that theyare in compliance with the pertinent rules of professional conduct for their jurisdiction.ICLE gratefully acknowledges the efforts of the faculty in the preparation of this publicationand the presentation of information on their designated subjects at the seminar. The opinionsexpressed by the faculty in their papers and presentations are their own and do not necessarilyreflect the opinions of the Institute of Continuing Legal Education, its officers, or employees. Thefaculty is not engaged in rendering legal or other professional advice and this publication is nota substitute for the advice of an attorney. This publication was created to serve the continuinglegal education needs of practicing attorneys.ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiringa competent attorney or other professional. If you require legal or other expert advice, youshould seek the services of a competent attorney or other professional.Although the publisher and faculty have made every effort to ensure that the informationin this book was correct at press time, the publisher and faculty do not assume and herebydisclaim any liability to any party for any loss, damage, or disruption caused by errors oromissions, whether such errors or omissions result from negligence, accident, or any othercause.The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promotinga well organized, properly planned, and adequately supported program of continuing legaleducation by which members of the legal profession are afforded a means of enhancing theirskills and keeping abreast of developments in the law, and engaging in the study and researchof the law, so as to fulfill their responsibilities to the legal profession, the courts and the public.Printed By:
ABUSIVE LITIGATION4 of 380HOWCAN WEHELP YOU?Who are we?How does SOLACE work?What needs are addressed?SOLACE is a program of the StateIf you or someone in the legalcommunity is in need of help, simplyemail SOLACE@gabar.org. Those emailsare then reviewed by the SOLACECommittee. If the need fits within theparameters of the program, an emailwith the pertinent information is sentto members of the State Bar.Needs addressed by the SOLACEprogram can range from unique medicalconditions requiring specialized referralsto a fire loss requiring help with clothing,food or housing. Some other examplesof assistance include gift cards, food,meals, a rare blood type donation,assistance with transportation in amedical crisis or building a wheelchairramp at a residence.Bar of Georgia designed to assistthose in the legal community whohave experienced some significant,potentially life-changing event in theirlives. SOLACE is voluntary, simple andstraightforward. SOLACE does notsolicit monetary contributions butaccepts assistance or donations in kind.Contact SOLACE@gabar.org for help.
The purpose of the SOLACE program is to allow the legal community toprovide help in meaningful and compassionate ways to judges, lawyers,court personnel, paralegals, legal secretaries and their families whoexperience loss of life or other catastrophic illness, sickness or injury.TESTIMONIALSIn each of the Georgia SOLACE requests made to date, Bar members have graciouslystepped up and used their resources to help find solutions for those in need.A solo practitioner’squadriplegic wife neededrehabilitation, and membersof the Bar helped navigatediscussions with theirinsurance company to obtainthe rehabilitation she required.A Louisiana lawyer was in needof a CPAP machine, but didn’thave insurance or the meansto purchase one. Multiplemembers offered to help.A Bar member was dealingwith a serious illness and inthe midst of brain surgery,her mortgage companyscheduled a foreclosure onher home. Several membersof the Bar were able tonegotiate with the mortgagecompany and avoided thepending foreclosure.Working with the SouthCarolina Bar, a formerparalegal’s son was flownfrom Cyprus to Atlanta(and then to South Carolina)for cancer treatment.Members of the Georgia andSouth Carolina bars workedtogether to get Gabriel andhis family home from theirlong-term mission work.Contact SOLACE@gabar.org for help.
ABUSIVE LITIGATION6 of 380FOREWORDDear ICLE Seminar Attendee,Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing thisprogram. Also, we would like to thank the volunteer speakers. Without the untiring dedicationand efforts of the Chairperson(s) and speakers, this seminar would not have been possible.Their names are listed on the AGENDA page(s) of this book, and their contributions to the successof this seminar are immeasurable.We would be remiss if we did not extend a special thanks to each of you who are attending thisseminar and for whom the program was planned. All of us at ICLE hope your attendance willbe beneficial as well as enjoyable We think that these program materials will provide a greatinitial resource and reference for you.If you discover any substantial errors within this volume, please do not hesitate to inform us.Should you have a different legal interpretation/opinion from the speaker’s, the appropriateway to address this is by contacting him/her directly.Your comments and suggestions are always welcome.Sincerely,Your ICLE StaffJeffrey R. DavisExecutive Director, State Bar of GeorgiaTangela S. KingDirector, ICLERebecca A. HallAssociate Director, ICLEiii
ABUSIVE LITIGATION7 of 380AGENDAPRESIDING: Frank J. Beltran, Program Co-Chair; The Beltran Firm, AtlantaKim M. Jackson, Program Co-Chair; Bovis Kyle Burch & Medlin LLC, Atlanta7:30REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in uponarrival. A removable jacket or sweater is recommended.)8:10INTRODUCTION AND OVERVIEW OF STATUTES RELATING TO ABUSIVE LITIGATIONFrank J. BeltranKim M. Jackson8:20CLAIMS FOR ATTORNEY’S FEES AND EXPENSES UNDER OCGA §9-15-14A. Statutory Framework and Operation of OCGA §9-15-14B. OCGA §9-15-14 Damages – Only Attorney’s Fees and CostsC. Examination of the Overlap Between OCGA §9-15-14 and OCGA §51-7-80Christine L. Mast, Hawkins Parnell & Young LLP, Atlanta9:05RECOVERY OF ATTORNEY’S FEES UNDER OCGA §13-6-11A. Bad FaithB. Stubbornly LitigiousC. Unnecessary Trouble & ExpenseD. Relationship of OCGA §13-6-11 to OCGA §9-15-14 and §51-7-80, et seq.E. Relationship of OCGA §13-6-11 to OCGA §33-4-6 and OCGA §51-12-5, 5.1 and 6F. Introduction of Normally Prohibited Settlement Negotiations via OCGA §13-6-11G. Ethics Regarding Recovery of Attorney’s FeesJames W. Penland, Attorney at Law, Atlanta9:50BREAK10:00LEGISLATIVE CHANGES AND TECHNICAL DEFENSESA. Overview and Examination of Any Legislation Relating to OCGA §9-15-14 and OCGA§51-7-80, et seq.B. Technical Defenses:1. Defenses to frivolous litigation claims withdrawal, good faith, substantial justification2. Proper notice issues3. Statute of limitations issues4. Second opinion issues and defensesKim M. Jackson10 :45FEE SHIFTING UNDER THE RULES OF CIVIL PROCEDUREA. OCGA §9-11-68 and Offers of SettlementB. Fed. R. Civ. P. 11 and SanctionsC. Fed. R. Civ. P. 68 and Offers of JudgmentD. Other RulesHugh C. Wood, Wood & Meredith LLP, Tucker11:25DEFENDING CLAIMS AND GRIEVANCESBrian R. Smith, The Smith Law Practice, Atlanta11:45LUNCH (Included in registration fee.)
ABUSIVE LITIGATION8 of 380AGENDA12:10PANEL ON ETHICALLY DEALING WITH THE ABUSIVE LITIGATORA. Related Ethics and Professionalism Issues as to Abusive Litigation ClaimsB. Questions and AnswersModerator: Julia A. Merritt, Cheeley Law Group LLC, AlpharettaPanelists:Robert D. Cheeley, Cheeley Law Group, LLC, AlpharettaDavid F. Root, Carlock Copeland & Stair LLP, AtlantaFrank J. Beltran1:10PERSPECTIVES OF OCGA §9-15-14 AND OCGA §51-7-80, ET SEQ.: ACTIONS FROM THETRIAL BENCH; THE OCGA §9-15-14 EVIDENTIARY HEARING; LIMITS OF TRIAL COURTJURISDICTIONHon. Christopher S. Brasher, Judge, Fulton County Superior Court, Atlanta2:10BREAK2:20PANEL ON FRIVOLOUS APPEAL PENALTIES UNDER GEORGIA COURT OF APPEALSRULE 15(b)A. Provisions of Rule 15(b)B. Elements of a Frivolous Appeal1. Absence of supporting law2. Failure to provide record or transcript on appeal3. Failure to cite facts or legal authority or make argument4. Misrepresentation of facts or law5. Obvious use of delaying tacticsC. Changes Over Time in Application of the RuleD. When and Why the Rule is AppliedModerator: Hon. Carla Wong McMillian, Judge, Court of Appeals of Georgia, AtlantaPanelists:Hon. Anne Elizabeth Barnes, Presiding Judge, Court of Appeals of Georgia, AtlantaHon. Amanda H. Mercier, Judge, Court of Appeals of Georgia, AtlantaHon. Brian M. Rickman, Judge, Court of Appeals of Georgia, Atlanta3:05ADJOURN
ABUSIVE LITIGATION9 of 380TABLE OF CONTENTSPageForeword. 6Agenda. 7-8ABUSIVE LITIGATION.10- 380Appendix:ICLE Board. 1Georgia Mandatory CLE Fact Sheet . 2
8:10 INTRODUCTION AND OVERVIEW OFSTATUTES RELATING TO ABUSIVE LITIGATIONFrank J. BeltranKim M. Jackson
8:20 CLAIMS FOR ATTORNEY’S FEES ANDEXPENSES UNDER OCGA §9-15-14A. Statutory Framework and Operation of OCGA§9-15-14B. OCGA §9-15-14 Damages – Only Attorney’sFees and CostsC. Examination of the Overlap Between OCGA§9-15-14 and OCGA §51-7-80Christine L. Mast, Hawkins Parnell & Young LLP,Atlanta
ABUSIVE LITIGATION12 of 380AWARDS OF ATTORNEY'S FEES AND LITIGATION EXPENSESUNDER O.C.G.A. § 9-15-14: A PRIMERFebruary 14, 2019CHRISTINE L. MASTLAUREN WAJSMANHAWKINS PARNELL & YOUNG, LLP303 PEACHTREE STREET NESUITE 4000ATLANTA, GA 30308TELEPHONE: (404) 614-7400FAX: (404) 614-7500cmast@hpylaw.comlwajsman@hpylaw.com
ABUSIVE LITIGATION13 of 380TABLE OF CONTENTSI.II.SUBSTANTIVE AREAS OF O.C.G.A. § 9-15-14 . 2A.Actions To Which The Statute Applies. 2B.Procedure For Seeking An Award Under O.C.G.A. § 9-15-14 . 9C.To And Against Whom Awards May Be Made . 24D.Elements Of A Claim Under O.C.G.A. § 9-15-14 . 29E.1.The Mandatory Award . 292.The Discretionary Award . 303.The Good Faith Exception . 314.What Exactly Is Sanctionable Conduct? . 32The Amount Of The Award . 49F.Appellate Issues . 56CONCLUSION . 58i
ABUSIVE LITIGATION14 of 380TABLE OF CASESPageCasesAdams v. Pinetree Trail Enterprises, LLC 347 Ga. App. 697, 820 S.E.2d 735 (2018) . 22Allstate Ins. Co. v. Reynolds, 210 Ga. App. 318, 436 S.E.2d 57 (1993) . 27Andrew, Merritt, Reilly & Smith, LLP v. Remote Accounting Solutions, Inc., 277 Ga.App. 245, 626 S.E.2d 204 (2006) . 27, 28Avren v. Garten, 290 Ga. 186, 710 S.E.2d 130 (2011) . 12Bailey v. McNealy, 277 Ga. App. 848, 627 S.E.2d 893 (2006) . 23Bankhead v. Moss, 210 Ga. App. 508, 436 S.E. 2d 723 (1993) . 6Bankston v. Warbington, 319 Ga. App. 821, 738 S.E.2d 656 (2013) . 16, 20Barbour v. Sangha, 346 Ga. App. 13, 815 S.E.2d 228 (2018) . 14Belcher v. Belcher, 298 Ga. 333; 782 S.E.2d 2 (2016). 57Belcher v. Belcher, 346 Ga. App. 141, 143, 816 S.E.2d 82, 84-85 (2018) . 19Bellah v. Peterson, 259 Ga. App. 182, 576 S.E.2d 585 (2003) . 24Betallic, Inc. v. Deavours, 263 Ga. 796, 439 S.E.2d 643 (1994) . 24Bethelmie v. Heritage Place, LLC, 325 Ga. App. 655, 754 S.E.2d 624 (2014) . 21Bienert v. Dickerson, 276 Ga. App. 621, 624 S.E. 2d 245 (2005) . 44, 57Bill Parker & Assocs. v. Rahr, 216 Ga. App. 838, 456 S.E.2d 221 (1995) . 57Bircoll v. Rosenthal, 267 Ga. App. 431, 600 S.E.2d 388 (2004) . 28, 41Bishop v. Goins, 809 S.E.2d 280 (2018) . 6Blanchard v. DeLoache-Powers, 286 F.3d 1281 (11th Cir. 2002) . 3Bloom v. Camp, 336 Ga. App. 891; 785 S.E.2d 573 (2016) . 54Boomershine Pontiac-GMC Truck v. Snapp, 232 Ga. App. 850, 503 S.E.2d 90 (1998) . 14,20Bouve and Mohr, LLC v. Banks, 274 Ga. App. 758, 618 S.E.2d 650 (2005) . 10Bowen v. Laird, No. A18A0915, 2018 Ga. App. LEXIS 622 (October 20, 2018) . 42, 43ii
ABUSIVE LITIGATION15 of 380Brewer v. Paulk, 296 Ga. App. 26, 673 S.E.2d 545 (2009). 37Brown v. Gadson, 298 Ga. App. 660, 680 S.E.2d 682 (2009) . 38Brown v. Kinser, 218 Ga. App. 385, 461 S.E.2d 564 (1995) . 33Bruce v. Wal-Mart Stores, Inc., 699 F. Supp. 905 (N.D. Ga. 1988) . 3Butler v. Lee, 336 Ga. App. 102; 783 S.E.2d 704 (2016) . 53Cagle v. Davis, 236 Ga. App. 657, 513 S.E.2d 16 (1999) . 1, 9Campbell v. The Landings Assoc. Inc., 311 Ga. App. 476, 716 S.E.2d 543 (2011) . 24Capricorn Sys., Inc. v. Godavarthy, 253 Ga. App. 840, 560 S.E.2d 730 (2002) . 56Carbajal-Ramirez v. Bland Farms, 234 F.Supp. 2d 1353 (S.D. Ga. 2001) . 3Carson v. Carson, 277 Ga. 335, 588 S.E.2d 735 (2003). 42, 47Castro v. Cambridge Square Towne Houses, Inc., 204 Ga. App. 746, 420 S.E.2d 588(1992) . 6Caudell v. Toccoa Inn, Inc., 261 Ga. App. 209, 585 S.E.2d 180 (2003) . 32Cavin v. Brown, 246 Ga. App. 40, 538 S.E.2d 802 (2000) . 29, 40CEI Servs. v. Sosebee, 344 Ga. App. 508, 811 S.E.2d 29 (2018) . 48Century Ctr. at Braselton, LLC v. Town of Braselton, 285 Ga. 380, 677 S.E.2d 106(2009) . 2Chatman v. Palmer, 328 Ga. App. 222, 761 S.E.2d 616 (2014) . 13Chrysler Financial Services Americas, LLC v. Benjamin, 325 Ga. App. 579, 754 S.E.2d157 (2014) . 28Citizens for Ethics in Government v. Atlanta Development Authority, 303 Ga. App. 724,694 S.E.2d 680 (2010) . 52, 58City of Albany v. Pait, 335 Ga. App. 215; 780 S.E.2d 103 (2015) . 19, 20, 53City of Griffin v. McKemie, 240 Ga. App. 180, 522 S.E.2d 288 (1999), rev’d, 272 Ga. 843,537 S.E.2d 66, on remand, 247 Ga. App. 251, 543 S.E.2d 785 (2000) . 3, 57Cobb County v. Sevani, 196 Ga. App. 247, 395 S.E.2d 572 (1990) . 6Coen v. Aptean, Inc., 346 Ga. App. 815, 16 S.E.2d 64 (2018). 50Cohen v. Feldman, 219 Ga. App. 90, 464 S.E.2d 237 (1995). 14, 15, 5112485974iii
ABUSIVE LITIGATION16 of 380Cohen v. Rogers, 341 Ga. App. 146, 798 S.E.2d 701 (2017) . 44, 55Cole v. Cole, 333 Ga. App. 753, 777 S.E.2d 39 (2015) . 19Colvin v. Chrisley, 315 Ga. App. 486, 727 S.E.2d 232 (2012) . 10Condon v. Vickery, 270 Ga. App. 322, 606 S.E.2d 336 (2004) . 13, 50, 56Connolly v. Smock, 338 Ga. App. 754; 791 S.E.2d 853 (2016) . 47Contract Harvesters v. Clark, 211 Ga. App. 297, 439 S.E.2d 30 (1993) . 5, 6Cotting v. Cotting, 261 Ga. App. 370, 582 S.E.2d 527 (2003) . 23Crane v. Cheeley, 270 Ga. App. 126, 605 S.E.2d 824 (2004) . 7, 8Dallow v. Dallow, 299 Ga. 762; 791 S.E.2d 20 (2016) . 37Dan J. Sheehan Co. v. The Fairlawn on Jones Homeowners Assoc., Inc., 312 Ga. App.787, 720 S.E.2d 259 (2011) . 22Dave Lucas Co., Inc. v. Lewis, 293 Ga. App. 288, 666 S.E.2d 576 (2008) . 52David G. Brown, P.E., Inc. v. Kent, 274 Ga. 849, 561 S.E.2d 89 (2002) . 6Davis v. Dunn, 286 Ga. 582, 690 S.E.2d 389 (2010) . 35, 36Deavours v. Hog Mountain Creations, 213 Ga. App. 337, 445 S.E.2d 579 (1994) . 9DeKalb County v. Adams, 263 Ga. App. 201, 587 S.E.2d 302 (2003) . 6, 23, 38DeKalb County v. Gerard, 207 Ga. App. 43, 427 S.E. 2d 36 (1993) . 6DeRossett Enters., Inc. v. Gen. Elec. Capital Corp., 275 Ga. App. 728, 621 S.E.2d 755(2005) . 23Dismer v. Luke, 228 Ga. App. 638, 492 S.E.2d 562 (2007) . 2Dixon v. Home Indem. Co., 206 Ga. App. 623, 426 S.E.2d 381 (1992) . 7Dodson v. Walraven, 318 Ga. App. 586, 734 S.E.2d 428 (2012) .
ABUSIVE LITIGATION 7 of 380 AGENDA PRESIDING: Frank J. Beltran, Program Co-Chair; The Beltran Firm, Atlanta Kim M. Jackson, Program Co-Chair; Bovis Kyle Burch & Medlin LLC, Atlanta 7:30REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in upon arrival. A removable jacket or sweater is recommended.) 8:10INTRODUCTION AND OVERVIEW OF STATUTES RELATING TO ABUSIVE LITIGATION
Prevention of Shaken Baby Syndrome and Abusive Head Trauma PAGE 1–ABUSIVE HEAD TRAUMA Welcome to the prevention of shaken baby syndrome and abusive head trauma section of the museum. . doll. Um, they might have trouble breathing. There might even be File Size: 576KBPage Count: 19
recognize common examples of harassment and abusive conduct in the workplace. 2. Describe w ho harassment and abusive conduct affects workers. 3. Identify trategies of s the employer, supervisors, and co-workers in preventing and addressing wrongful conduct. 4. Describe ptions for workers experiencing o sexual harassment or abusive conduct at work.
Outside Counsel through In-House Counsel Generally case law uses the terms attorney/counsel 5 When rIssuance of the Litigation Hold Notification Letter Issue a Litigation Hold Notification Letter at the onset of litigation or whenever litigation is reasonably anti
patent litigation compensate for lawsuits that are unlikely to succeed). 10. The relationship between social media and litigation is not unilateral. While litigation can fuel social media activity, social media activity can also increase the possibility and affect the outcomes of litigation by increasing the information available to attorneys.
litigation on key factors that have contributed to recent patent litigation; (3) what developments in the judicial system may affect patent litigation; and (4) what actions, if any, PTO has recently taken that may affect patent litigation in the future. GAO reviewed relevant laws, analyzed patent infringement litigation data from 2000
abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate com-merce. (e) Purposes It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt
Page 1 of 10 REVISED May 3, 2017 UNFAIR, DECEPTIVE, OR ABUSIVE ACTS OR PRACTICES (UDAAP) REFERENCE: 2012 CFPB Examination Manual OVERVIEW Unfair, deceptive, or abusive acts and practices (UDAAPs) can cause significant financial injury to
Basis for the industry’s worldwide operations Foundation of self-supporting programs including API Monogram More than 7000 active volunteers representing over 50 countries API Standards Program API publishes close to 700 technical standards
