Lee
Welborn’s defendant,
who rerouted a small stream without a permit to do so, obtained an order on
January 4, 2012 granting summary judgment in a Clean Water Act case. The
co-defendant sold the adjoining downstream parcel of land to the plaintiffs,
who used the building next to the stream as a warehouse. In September
2009, the building flooded when the stream came out of its banks, and the
plaintiffs sued in federal court. In an unusual procedural move, the
plaintiffs moved for summary judgment on the Clean Water Act violation. In
response, Lee obtained an expert hydrologist who concluded that the 500 year
flood would have flooded the plaintiffs’ building whether the stream was in its
original channel or in its new location. The co-defendant filed its
motion for summary judgment in response. Prior to the expiration of time
for the defendants to file their dispositive motions, Judge Harold Murphy
considered the expert hydrologist’s undisputed affidavit and entered an Order
granting summary judgment to all defendants. Plaintiffs have appealed the
court’s ruling to the Eleventh Circuit Court of Appeals.
Court of Appeals Affirms Summary Judgment and Trial Court Awards Fees Under Offer of Judgment Statute
By Order filed February 28,
2012, the Superior Court of Bartow County granted Lee
Welborn’s motion for attorney’s fees and expenses, after the
plaintiff refused the defendants’ offer of judgment made pursuant to O.C.G.A. §
9-11-68(a). The plaintiff, a driver for UPS, suffered a severe hand
injury when her glove became caught in a conveyor belt serviced several weeks
earlier by the defendants. After deposing every UPS worker who had any
contact with the belt, defense counsel was able to establish that no one from
UPS observed or reported a protruding wire in the lacing of the conveyor belt
after the defendants serviced the facility. Defendants tendered their
contract with UPS into evidence, which proved that defendants could only work
at the facility when specifically called out by UPS, and that there was no
ongoing contractual obligation to inspect and maintain the facility.
Defendants’ motion for summary judgment was granted by the trial court, which
was upheld by the Court of Appeals in Dempsey v. Southeastern Industrial
Contracting Co., Inc., 309 Ga.
App. 140 (2011). In ruling upon defendants’ motion for attorney’s fees
and expenses, Judge Carey Nelson found that defendants had made a good faith
offer of $60,000, which was rejected by the plaintiff, and that defendants’
$14,359.05 in attorney’s fees and expenses incurred after plaintiff rejected
the settlement offer were reasonable and necessary.
Lee Welborn's 100th Jury Trial
Lee Welborn tried his 100th jury trial recently, a week-long jury trial in
Clayton State Court before Judge John Carbo the week of February 27,
2012. The Plaintiff, who had slipped and fallen off of the front
steps of a motel, alleged that the welcome mat was defective and not securely
fastened. Plaintiff's attorneys presented the Clayton County Fire Chief
who testified that the Fire Code required all mats to be securely fastened, as
well as an expert engineer who testified that the tile on the front entrance
was an unsuitable building material due to being too slippery, in addition to
testifying that welcome mats must be attached to the floor surface
underneath. The Plaintiff fractured her right ankle, which required
surgery with plates and screws. Plaintiff sought recovery for her $54,000
in medical bills as well as pain and suffering.
For the
defense, Lee proved that the Plaintiff only came to the motel to find her
ex-husband and get her past due alimony payments. This relegated her to the
status of a licensee rather than an invitee, which meant that the motel owner
only owed her the duty not to willfully and wantonly allow her to encounter a
hidden peril. The jury learned that the mats outside of the Fire Chief's
office and outside of the Plaintiff's expert's office were merely laid down on
the surface underneath without being attached, which was also consistent with
the mats outside of the metal detectors at the entrance to the
courthouse. The Plaintiff's expert admitted that he had not measured the
surface roughness coefficient of friction necessary to determine whether the
tile met Code. He further admitted that the authoritative treatise
he referenced in his deposition supported the defense position, and not the
Plaintiff's position. Just prior to the close of evidence, the
Plaintiff's attorneys dismissed the individual motel owner, and proceeded only
against the corporation. Plaintiff asked the jury to award $2.5 million
in closing argument.
After two days
of deliberations, the jury deadlocked with 10 jurors in favor of the defense,
and 2 jurors holding out for the Plaintiff. As a result, a mistrial was
declared. The case will appear on the May 2012 calendar for the
retrial. Lorraine
Merrow v. Dahyahai Patel and Punit, Inc. d/b/a Budget Inn, Civil Action
File No. 2009CV11621C
2012 Continuing Legal Education Seminar
Sean L. Hynes chaired the 2012 CLE Seminar "Defense of a Personal Injury
Claim" held at the State Bar of Georgia Headquarters in Atlanta,
Georgia. Russell B. Davis gave a presentation to the attorneys at the
seminar titled: "Survey of Current Trends in Responding to Time-Limited
Demands."
Georgia Supreme Court Affirms Ruling in our Client's Favor
The Supreme Court of Georgia affirmed a ruling in favor of a homeowners association represented by Russell B. Davis and Josh S. Ruplin. The suit involved claims against a homeowner's association for increased storm water runoff. Russell and Josh obtained a favorable ruling for the association in Court of Appeals and the Supreme Court then affirmed the ruling in favor of their client.
The citation for the Supreme Court's decision is Kennedy Dev. Co., Inc. v. Camp, 719 S.E.2d 442 (Ga. 2011), reconsideration denied (Dec. 8, 2011).
The citation for the Supreme Court's decision is Kennedy Dev. Co., Inc. v. Camp, 719 S.E.2d 442 (Ga. 2011), reconsideration denied (Dec. 8, 2011).
Subscribe to:
Posts (Atom)