OCGA Sec. 13-6-11 Attorney's Fees Are Generally for A Jury

In the land of attorney’s fees, the Georgia Supreme Court held that attorney’s fee sought for by a litigant under OCGA § 13-6-11 may not be awarded by the Court, sitting without a jury, IF the issue associated with the OCGA § 13-6-11 attorney’s fees is a pure jury issue.  If the issue is a mere bench trial issue (where the trial court may sit as the trier of fact) the Court may rule upon and issue OCGA §13-6-11 attorney’s fees.   This provides a significant new defense against challenges for attorney's fees, if the issue is a pure jury fact issue on which fees are sought.
See:

696 S.E.2d 649 (Ga. 2010)
287 Ga. 445
COVINGTON SQUARE ASSOCIATES, LLC
v.
INGLES MARKETS, INC.
No. S10G0459.
Supreme Court of Georgia.
June 28, 2010
Page 650
Michael A. Kessler, Alpharetta, for appellant.
Adam N. Struletz, Atlanta, for appellee.
CARLEY, Presiding Justice.
Covington Square Associates, LLC (Covington) leased space in a
shopping center to Ingles Markets, Inc. (Ingles). After selling the
shopping center in 2004, Covington brought suit against Ingles for
damages allegedly resulting from its failure to pay a portion of the
cost to hire a security guard. In December 2005, Ingles mistakenly
sent a check for its portion of real estate taxes to Covington instead
of the new landlord. Ingles notified Covington of the mistake and
demanded return of the funds. However, Covington retained the funds as
partial payment of the claimed security costs. Ingles then filed this
action for conversion, attorney fees pursuant to OCGA § 13-6-11, and
punitive damages, which was stayed pending the outcome of the other
litigation. That litigation ended when the Court of Appeals affirmed
the grant of Ingles' motion for summary judgment, ruling that the
lease did not require payment of security guard expenses. Covington
Square Assoc. v. Ingles Markets, 283 Ga.App. 307, 641 S.E.2d 266
(2007).
Thereafter, the trial court in the case at bar granted partial summary
judgment in favor of Ingles, ruling that Covington wrongfully asserted
dominion or control over Ingles' property and that Ingles is entitled
to attorney fees and punitive damages, but leaving for trial
determination of the amounts thereof. The trial court based its
attorney fees ruling on the fact that Covington refused to refund the
money despite the outcome of the other litigation and caused Ingles
the unnecessary trouble and expense of bringing suit where no bona
fide controversy existed.
The Court of Appeals affirmed the trial court's rulings as to the
conversion claim and attorney fees, but reversed as to punitive
damages. With respect to attorney fees, the Court of Appeals held that
they can be awarded on summary judgment if the movant is entitled to
them as a matter of law and that, " [a]pplying the any evidence
standard under these circumstances, [cit.] the trial court did not err
in ruling that Ingles was entitled to attorney fees as a matter of
law...." Covington Square Assoc. v. Ingles Markets, 300 Ga.App. 740,
744(2), 686 S.E.2d 359 (2009). Having granted certiorari to review
this holding, we conclude that the language of OCGA § 13-6-11 prevents
a trial court from ever determining that a claimant is entitled to
attorney fees as a matter of law.
[287 Ga. 446] In its entirety, OCGA § 13-6-11 provides as follows:
The expenses of litigation generally shall not be allowed as a part of
the damages; but where the plaintiff has specially pleaded and has
made prayer therefor and where the defendant has acted in bad faith,
has been stubbornly litigious, or has caused the plaintiff unnecessary
trouble and expense, the jury may allow them.
For many years, the Court of Appeals has recognized that " [t]he
intent of the law, as shown by the words, ‘ the jury may allow them,’
is to leave the matter of expenses of litigation to the jury trying
the case. [Cit.]" Taylor v. Estes, 85 Ga.App. 716, 719(2), 70 S.E.2d
82 (1952). See also Hyde v. Gill, 236 Ga.App. 729, 734(3), 513 S.E.2d
278 (1999); American Medical Transport Group v. Glo-An, 235 Ga.App.
464, 467(3), 509 S.E.2d 738 (1998); J.M. Clayton Co. v. Martin, 177
Ga.App. 228, 232(6), 339 S.E.2d 280 (1985); Brannon Enterprises v.
Deaton, 159 Ga.App. 685, 687, 285 S.E.2d 58 (1981); Sapp v. Howe, 79
Ga.App. 1, 3(4), 52 S.E.2d 571 (1949); Patterson & Co. v. Peterson, 15
Ga.App. 680, 684(4), 84 S.E. 163 (1915).
As a result, " ‘ it has long been held ... that in suits where the
expenses of litigation might be recovered as part of the damages, it
is error for the trial court to direct a verdict therefor. The matter
of such expenses is left solely to the jury. (Cits.)’ [Cit.]" Polma,
Inc. v. Coastal Canvas Products Co., 199 Ga.App. 616, 618(7), 405
S.E.2d 531 (1991). See also Tab Sales v. D & D Distrib., 153 Ga.App.
779, 780(2), 266 S.E.2d 558 (1980); Patterson & Co. v. Peterson,
supra. Whether a plaintiff has " met any of the preconditions for an
award of attorney fees and litigation expenses set forth in OCGA § 13
-6-11[is] solely a question for the
Page 651
jury. [Cit.]" City of Atlanta v. Broadnax, 285 Ga.App. 430, 440(6),
646 S.E.2d 279 (2007) (affirming judgment on jury verdict in favor of
defendant). " [S]uch an award under this statute necessitates jury
determination. [Cits.]" Fontaine Condo. Assn. v. Schnacke, 230 Ga.App.
469, 471(3), 496 S.E.2d 553 (1998) (vacating trial court's award of
attorney fees after it denied jury trial thereon).
Consistent with this precedent, the Court of Appeals has correctly
held that, because both the liability for and amount of attorney fees
pursuant to OCGA § 13-6-11 are solely for the jury's determination, a
trial court is not authorized to grant summary judgment in favor of a
claimant therefor. Hyde v. Gill, supra; American Medical Transport
Group v. Glo-An, supra; Page v. HSI Financial Svcs., 218 Ga.App. 283,
286(5), 461 S.E.2d 239 (1995), rev'd on other grounds, Henderson v.
HSI Financial Svcs., 266 Ga. 844, 471 S.E.2d 885 (1996); [287 Ga. 447]
Joseph Camacho Assoc. v. Millard, 169 Ga.App. 937, 939(2), 315 S.E.2d
478 (1984); Fountain v. Burke, 160 Ga.App. 262, 264(3), 287 S.E.2d 39
(1981); Pritchett v. Rainey, 131 Ga.App. 521, 522, 206 S.E.2d 726
(1974).
Ingles argues that the Court of Appeals, citing City of Marietta v.
Holland, 252 Ga. 299, 304(3), 314 S.E.2d 97 (1984), has stated that "
[e]xpenses of litigation under OCGA § 13-6-11 can be awarded on
summary judgment, but the movant must be entitled to them as a matter
of law. [Cit.]" Rivergate Corp. v. BCCP Enterprises, 198 Ga.App. 761
(2), 403 S.E.2d 65 (1991) (reversing summary judgment). See also
Rasmussen v. Nodvin, 174 Ga.App. 203, 205(4), 329 S.E.2d 541 (1985)
(reversing summary judgment). However, the Holland opinion does not
state that litigation expenses under the statute can be awarded on
summary judgment. Instead, this Court examined whether there was any
genuine issue of material fact as part of its determination that the
trial court not only erroneously granted plaintiff's motion for
summary judgment, but also erred in denying summary judgment in favor
of the defendants. Therefore, rather than authorizing summary judgment
for a claimant under OCGA § 13-6-11, Holland is explained by the
proposition that " [o]nly in the rare case where there was absolutely
no evidence to support the award of expenses of litigation would the
trial court be authorized to grant summary adjudication on such
issues." American Medical Transport Group v. Glo-An, supra. See also
Brito v. Gomez Law Group, 289 Ga.App. 625, 628(2), 658 S.E.2d 178
(2008). Other cases relied on by Ingles, as well as statements that
determination of the preconditions in the statute is " generally" for
the jury, are also explained by the simple proposition quoted above
from American Medical Transport Group v. Glo-An, supra. Merlino v.
City of Atlanta, 283 Ga. 186, 191(4), 657 S.E.2d 859 (2008); Tyler v.
Lincoln, 272 Ga. 118, 122(2), 527 S.E.2d 180 (2000); Stargate Software
Intl. v. Rumph, 224 Ga.App. 873, 878(4), 482 S.E.2d 498 (1997);
Webster v. Brown, 213 Ga.App. 845, 846(2), 446 S.E.2d 522 (1994).
Both Ingles and the Court of Appeals relied on D & H Constr. Co. v.
City of Woodstock, 284 Ga.App. 314, 318-319(2), 643 S.E.2d 826 (2007)
and Graves v. Diambrose, 243 Ga.App. 802, 803-804(2), 534 S.E.2d 490
(2000). However, neither decision states that summary judgment can be
granted in favor of a claimant under OCGA § 13-6-11. Furthermore,
contrary to Ingles' argument and the Court of Appeals' opinion here,
it is not at all clear that the trial court in either case granted
summary judgment on the claim for attorney fees. The Court of Appeals'
application of the " ‘ any evidence’ standard of review" in D & H
Constr. Co. v. City of Woodstock, supra at 319(2), 643 S.E.2d 826, as
well as its determination that the trial court " could have properly
found" a statutory basis for attorney fees in [287 Ga. 448] Graves v.
Diambrose, supra at 804(2), 534 S.E.2d 490, was entirely inconsistent
with any such grant of summary judgment. Indeed, we note that, even if
attorney fees could be awarded pursuant to OCGA § 13-6-11 on summary
judgment, the Court of Appeals still erred in this case by utilizing
the " any evidence" standard. " Although the trial court may grant
attorney fees or litigation expenses under OCGA § 13-6-11 where it
sits as the trier of fact, [cit.], it is not a trier of fact on a
motion for summary judgment." Page v. HSI Financial Svcs., supra. See
also Rasmussen v. Nodvin, supra. Compare
Page 652
Artzner v. A & A Exterminators, 242 Ga.App. 766, 773(4), 531 S.E.2d
200 (2000) (where Court of Appeals looked for any evidence showing
that the grant of summary judgment to defendant was error).
Accordingly, the trial court erred by awarding expenses of litigation
pursuant to OCGA § 13-6-11 to Ingles on its motion for summary
judgment. American Medical Transport Group v. Glo-An, supra; Joseph
Camacho Assoc. v. Millard, supra. The judgment of the Court of Appeals
must therefore be reversed to the extent that it affirms the trial
court's grant of summary judgment in favor of Ingles with respect to
its claim for attorney fees. Our holding does not affect the remaining
rulings of the Court of Appeals.
Judgment affirmed in part and reversed in part.
All the Justices concur.
Overruling the 13-6-11 portion of the Court of Appeals Holding in:
686 S.E.2d 359 (Ga.App. 2009)
300 Ga.App. 740
COVINGTON SQUARE ASSOCIATES, LLC
v.
INGLES MARKETS, INC.
No. A09A2145.
Court of Appeals of Georgia.
November 3, 2009
Page 360
Michael A. Kessler, Cumming, for appellant.
Hartman, Simons, Spielman & Wood, Samuel R. Arden, Jill R. Johnson,
Atlanta, for appellee.
MIKELL, Judge.
Ingles Markets, Inc. (" Ingles" ) sued Covington Square Associates,
LLC (" Covington" ), for conversion, unjust enrichment, attorney fees,
and punitive damages arising out of its refusal to return a check
Ingles alleged it paid by mistake. The trial court granted partial
summary judgment to Ingles on its
Page 361
claims for conversion, attorney fees, and punitive damages, ruling
that Covington wrongfully asserted dominion or control over Ingles's
property; that Ingles is entitled to attorney fees and punitive
damages; and that the amounts of those damages are to be determined at
trial. Covington appeals these rulings. For the following reasons, we
affirm the trial court's ruling as to the claims for conversion and
attorney fees, but reverse as to the claim for punitive damages.
Our review of the grant of summary judgment is de novo.[1]
To prevail at summary judgment, the moving party must demonstrate that
there is no genuine issue of material fact and that the undisputed
facts, viewed in the light most favorable to the nonmoving party,
warrant judgment as a matter of law. Where the movant is the
plaintiff, she has the burden of presenting evidence to support her
claim and the burden of piercing the defendant's affirmative
defenses.[2]
So viewed, the record reflects that in 1987, Ingles and a prior owner
of Covington Square Shopping Center in DeKalb County (the " Shopping
Center" ) entered into an agreement for Ingles to lease certain space
in the Shopping Center (the " Lease" ). Under the terms of the Lease,
Ingles paid a portion of the real estate taxes for the Shopping
Center. In 1994, Covington purchased the Shopping Center and became
Ingles's landlord. According to Ron Freeman, Ingles's chief financial
officer, Ingles fully paid all real estate tax charges to [300 Ga.App.
741] Covington during the time it owned the Shopping Center. Ingles
also paid a portion of the cost to hire a security guard for the
Shopping Center.[3] IN 2004, NORTHEAST ENTERPRISES, INC. (" NORTHEAST
ENTERPRISES" ) purchased the Shopping Center from Covington.
On November 15, 2005, Ingles received a real estate tax statement from
Northeast Enterprises for the amount of $32,584.85, to cover 2005
county property taxes. On December 20, 2005, Ingles mistakenly sent a
check in the amount of $32,584.85 to Covington, its former landlord,
rather than Northeast Enterprises. According to Freeman, the check
represented Ingles's payment of its 2005 property taxes for the
Shopping Center.[4] Covington cashed the check, and Ingles had to
issue another check in the amount of $32,584.85 to Northeast
Enterprises to satisfy its property tax obligation. On February 3,
2006, Ingles notified Covington of its mistake and demanded return of
the funds. On February 13, 2006, Covington notified Ingles that it
would retain the funds as partial payment of the unpaid security costs
at issue in the DeKalb litigation.
Ingles filed the instant action on February 24, 2006. The trial court
stayed the case pending the outcome of the appeal in the DeKalb
litigation, and on December 14, 2007, following our ruling in the
DeKalb litigation, Ingles again demanded return of the funds. There is
no evidence in the record that Covington has returned the funds.
1. Covington contends that the trial court erred in granting summary
judgment to Ingles because " [t]he mistaken payment by Ingles amounts
to nothing more than an overpayment under the Lease. Therefore,
Ingles' claim to recover the payment sounds in contract and not in
tort or conversion." Covington does not dispute that Ingles is
entitled to a refund due to the DeKalb litigation,
Page 362
but disputes that there was a conversion. Covington relies on Kline v.
Atlanta Gas Light Co. [5] and Levenson v. Word, [6] to support its
argument.
[300 Ga.App. 742] With regard to Kline, the trial court correctly
distinguished that case because the excess payment was used to pay an
undisputed outstanding debt; [7] here, the alleged outstanding debt
was in dispute, and Covington specifically sued Ingles in the DeKalb
litigation to recover the disputed amount. Levenson is likewise
distinguishable and does not require reversal. In that case, there was
no dispute that the criminal defendant owed the retainer fee to the
defendants, and the plaintiff could not prove that the defendants'
exercise of dominion over the funds was wrongful. [8] Since any
outstanding debt in this case was in dispute at the time Ingles
mistakenly mailed the check to Covington, Kline and Levenson are
inapplicable.
Conversion consists of an unauthorized assumption and exercise of the
right of ownership over personal property belonging to another, in
hostility to his rights; an act of dominion over the personal property
of another inconsistent with his rights; or an unauthorized
appropriation. Any distinct act of dominion wrongfully asserted over
another's property in denial of his right, or inconsistent with it, is
a conversion. It is unnecessary to show that the defendant applied it
to his own use, if he exercised dominion over it in defiance of the
owner's right, or in a manner inconsistent with it.[9]
One way to prove that a defendant has exercised unauthorized dominion
over the property and has thereby converted the property is to present
evidence that " a defendant, who has lawfully come into possession of
the plaintiff's property, unlawfully refuses to return the plaintiff's
property after the plaintiff demands its return." [10] In this case,
Ingles mistakenly mailed to Covington a check intended for its current
landlord to cover its property tax bill. When Ingles realized the
error, it immediately notified Covington of the clerical error,
expressly noted that it had intended to submit the payment to its
current landlord, and demanded return of the check. The elements of
conversion have been satisfied.
We find Covington's arguments on this issue disingenuous. Covington
filed the DeKalb litigation specifically because the " Common Area"
costs for security charges were in dispute and because [300 Ga.App.
743] Ingles refused to pay Covington for these costs. In the face of a
disputed debt embroiled in litigation and an immediate demand letter,
it strains credulity for Covington to argue that it is guilty of
merely failing to refund an overpayment, and not guilty of conversion.
The trial court did not err in ruling that Covington converted the
check.[11]
2. Covington next contends that the trial court erred in granting
summary judgment to Ingles on its claim for attorney fees under OCGA §
13-6-11 because this issue must be resolved by a jury. The trial court
found that " [Ingles] is entitled to [attorney] fees based on
Covington's refusal to refund the money in spite of the outcome of the
DeKalb litigation and causing [Ingles] to bear the unnecessary expense
of bringing suit where no bona fide controversy exists" and ruled that
the amount of attorney fees is to be determined at trial. We affirm
this ruling.
OCGA § 13-6-11 provides that:
Page 363
The expenses of litigation generally shall not be allowed as a part of
the damages; but where the plaintiff has specially pleaded and has
made prayer therefor and where the defendant has acted in bad faith,
has been stubbornly litigious, or has caused the plaintiff unnecessary
trouble and expense, the jury may allow them.
While questions of bad faith, stubborn litigiousness, and unnecessary
trouble and expense are generally for the jury to decide, expenses of
litigation under this Code section can be awarded on summary judgment,
provided the movant is entitled to them as a matter of law.[12] The
amount of the award of attorney fees as damages, however, is to be
determined by a jury.[13]
In D & H Constr. Co., [14] a case very similar to this case, we
affirmed the trial court's grant of summary judgment to the plaintiff
on its claim for attorney fees, where the appellant retained a
duplicate payment to which it had no rightful claim. As in D & H
Constr. Co., the record here reflects that Covington accepted a [300
Ga.App. 744] payment from Ingles that was intended for Ingles's
current landlord and applied it to security costs, knowing that Ingles
disputed the security costs debt; that Covington refused to return the
check even after Ingles informed it of the mistake; and that Ingles
was forced to bring this lawsuit to recover the mistaken payment.
Additionally, as discussed in Division 1, supra, Covington's defense
was unreasonable and incredible. Applying the any evidence standard
under these circumstances,[15] the trial court did not err in ruling
that Ingles was entitled to attorney fees as a matter of law, and we
do the same here.[16] THE TRIAL COURT WAS also authorized to allow a
jury to determine the amount.
3. Covington contends that the trial court erred in granting summary
judgment to Ingles on its claim for punitive damages because this
issue must be resolved by a jury. We agree.
OCGA § 51-12-5.1(b) provides that:
Punitive damages may be awarded only in such tort actions in which it
is proven by clear and convincing evidence that the defendant's
actions showed willful misconduct, malice, fraud, wantonness,
oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences.
Subsection (d) of that Code section further provides:
(1) In any case in which punitive damages are claimed, the trier of
fact shall first resolve from the evidence produced at trial whether
an award of punitive damages shall be made. This finding shall be made
specially through an appropriate form of verdict, along with the other
required findings. (2) If it is found that punitive damages are to be
awarded, the trial shall immediately be recommenced in order to
receive such evidence as is relevant to a decision regarding what
amount of damages will be sufficient to deter, penalize, or punish the
defendant in light of the circumstances of the case. It shall then be
the duty of the trier of fact to set the amount to be awarded
according to subsection (e), (f), or (g) of this Code section, as
applicable. [17]
This Code section expressly provides that a jury must determine [300
Ga.App. 745] whether a complainant is entitled to punitive damages and
if so, the amount to be awarded. Although a trial court-and the
appellate courts-must consider whether there is any evidence to
support an award of punitive damages, the question of whether to
impose such an award is
Page 364
for the trier of fact.[18] Because we have found no authority and
Ingles cites to none holding that a trial court can grant summary
judgment to a claimant on its claim for punitive damages, we reverse
that portion of the trial court's order granting summary judgment to
Ingles on its claim for punitive damages and affirm the portion of the
order ruling that a jury must determine the amount of punitive
damages.
Judgment affirmed in part and reversed in part.
JOHNSON, P.J., and ELLINGTON, J., concur.
---------
Notes:
[1] Smith v. Gordon, 266 Ga.App. 814(1), 598 S.E.2d 92 (2004).
[2] (Footnotes omitted.) Id.
[3] See Covington Square Assoc. v. Ingles Markets, 283 Ga.App. 307,
641 S.E.2d 266 (2007) (" Covington Square I " or the " DeKalb
litigation" ). This is the second appearance of these parties before
this Court. As explained in Covington Square I, shortly after selling
the Shopping Center in 2004, Covington sought to collect unpaid
portions of security guard costs it billed to Ingles. When Ingles
refused to pay, Covington sued Ingles for breach of contract seeking
damages for unpaid rents under the Lease. Id. at 308, 641 S.E.2d 266.
We affirmed the trial court's grant of summary judgment to Ingles,
ruling that the Lease did not require Ingles to pay security guard
costs. Id. at 311(1), 641 S.E.2d 266.
[4] Although we cannot tell from the poor copy included in the record
on appeal, Freeman avers that the check indicates on its face that it
was for payment of Ingles's 2005 property taxes. In its order, the
trial court also notes that the check indicates on its face that it
was for payment of Ingles's 2005 property taxes.
[5] 246 Ga.App. 172, 538 S.E.2d 93 (2000).
[6] 294 Ga.App. 104, 668 S.E.2d 763 (2008).
[7] Kline, supra at 173-174, 538 S.E.2d 93.
[8] Levenson, supra at 106-107(1), 668 S.E.2d 763.
[9] (Citations and punctuation omitted.) Maryland Cas. Ins. Co. v.
Welchel, 257 Ga. 259, 261(1), 356 S.E.2d 877 (1987).
[10] (Citation and footnote omitted.) Williams v. Nat. Auto Sales, 287
Ga.App. 283, 285(1), 651 S.E.2d 194 (2007).
[11] See, e.g., D & H Constr. Co. v. City of Woodstock, 284 Ga.App.
314, 643 S.E.2d 826 (2007) (summary judgment on conversion claim
proper where evidence showed that plaintiff tendered to defendant
duplicate check; that plaintiff notified defendant of error and
demanded return of the check; and that defendant refused to return the
check); Rivergate Corp. v. BCCP Enterprises, 198 Ga.App. 761(2), 403
S.E.2d 65 (1991).
[12] See D & H Constr. Co., supra at 318-319(2), 643 S.E.2d 826. See
also Graves v. Diambrose, 243 Ga.App. 802, 803(2), 534 S.E.2d 490
(2000).
[13] See American Med. Transport Group v. Glo-An, Inc., 235 Ga.App.
464, 466(3), 509 S.E.2d 738 (1998).
[14] Supra.
[15] MDC Blackshear, LLC v. Littell, 273 Ga. 169, 174(5), 537 S.E.2d
356 (2000) (" [a]n award of fees and expenses [under OCGA § 13-6-11]
must be affirmed if there is any evidence to support it" ) (footnote
omitted).
[16] D & H Constr. Co., supra at 319(2), 643 S.E.2d 826.
[17] OCGA § 51-12-5.1(d)(1) & (2).
[18] Morales v. Webb, 200 Ga.App. 788, 790, 409 S.E.2d 572 (1991);
Petrolane Gas Svc. v. Eusery, 193 Ga.App. 860, 862(1), 389 S.E.2d 355
(1989). See also Wal-Mart Stores v. Forkner, 221 Ga.App. 209, 210, 471
S.E.2d 30 (1996) (following bench trial on damages, trial court
awarded plaintiff punitive damages).
---------
End
Hugh Wood, Esq.
Wood & Meredith, LLP
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Georgia Appellate Standards of Review

In researching standards for a recent appeal, I was surprised to find that the Georgia Court of Appeals has reorganized its website.  Now, the “standard of review,” for each type of claim is clearly stated on its website.   While the criminal standards go on for pages, I post below only the civil standards. 

Appellant Standards of Review – Georgia:

Selection of jurors. Reviewed for abuse of discretion but trial court is no longer permitted to rehabilitate jurors by using "loaded" questions to justify retaining biased jurors. Walls v. Kim, 250 Ga. App. 259 (549 SE2d 797) (2001).

Discovery rulings. Control over discovery including the imposition of sanctions is reviewed for "clear abuse of discretion." Time Warner Entertainment Co. v. Six Flags Over Georgia, 245 Ga. App. 334, 350 (3) (b) (537 SE2d 397) (2000).

Decision to bifurcate trial. Reviewed for clear and manifest abuse of discretion. Whitley v. Gwinnett County, 221 Ga. App. 18, 19 (2) (470 SE2d 724) (1996).

Evidentiary ruling. Decision to admit or exclude evidence including relevant evidence is reviewed for abuse of discretion. Dept of Transp. v. Mendel, 237 Ga. App. 900, 902 (2) (517 SE2d 365) (1999).

Qualification of witness as expert. Ruling will not be disturbed absent manifest abuse of discretion. Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 749 (5) (542 SE2d 151) (2000).

Construction of a contract. Reviewed de novo on appeal. Question of law for the trial court unless after the application of the rules of construction, the contract remains ambiguous. Sagon Motorhomes v. Southtrust Bank of Ga., N.A., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).

Denial of motion for mistrial. Reviewed for abuse of discretion. Whitley v. Gwinnett County, 221 Ga. App. 18, 25 (11) (470 SE2d 724) (1996).

Submission of special verdict form to jury. Reviewed for abuse of discretion. Southern Water Technologies v. Kile, 224 Ga. App. 717, 719 (1) (481 SE2d 826) (1997).

Grant of summary judgment. On appeal of a grant of summary judgment, the appellate court must review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

Denial of motion for directed verdict. On appeal, the standard of review of the trial court's denial of a motion for directed verdict is the "any evidence" standard. F.A.F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

Directed verdict or judgment notwithstanding the verdict. The standard of review of a directed verdict and a judgment n.o.v. is the same: a directed verdict is appropriate only when there is no conflict in the evidence as to any material issue, and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict. St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998).

Denial of judgment n.o.v. The standard of appellate review for the denial of a motion for judgment n.o.v. is the "any evidence" test. Under this test, the determinative question is not whether the verdict and the judgment of the trial were merely authorized, but whether a contrary judgment was demanded. Signsation, Inc. v. Harper, 218 Ga. App. 141, 142 (2) (460 SE2d 854) (1995).

Motion for directed verdict/motion for new trial. Both as to a motion for directed verdict and motion for new trial based on the general grounds, the proper standard on appellate review is the "any evidence" test. The court construes the evidence most favorably towards the party opposing the motion. Jordan v. Stephens, 221 Ga. App. 8, 10 (2) (470 SE2d 733) (1996).

Jury verdict. After approval of a jury verdict by the trial court, the judgment entered thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law. Horan v. Pirkle, 197 Ga. App. 151, 153 (2) (397 SE2d 734) (1990).

Validity of verdicts. Since there is a presumption in favor of the validity of a verdict, all the evidence and every presumption and inference arising from the evidence must be construed most favorably toward upholding the verdict. Nationwide Mut. Fire Ins. Co. v. Wiley, 220 Ga. App. 442, 443 (2) (469 SE2d 302) (1996).

In the absence of legal error, an appellate court lacks jurisdiction to interfere with a verdict supported by some evidence even when the verdict may be against the preponderance of the evidence. Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 219 (1) (308 SE2d 564) (1983).

Motion for new trial. The grant or denial of motion for new trial is a matter within the sound discretion of the trial court and will not be disturbed if there is "any evidence" to authorize the trial court's ruling. Professional Consulting Svcs. of Ga. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992).

In reviewing an order on a motion for new trial, appellate courts do not weigh the evidence or give an opinion on where the greater weight of the evidence lies but determine merely whether the record contains sufficient evidence to authorize the trial court's judgment. Milam v. Attaway, 195 Ga. App. 496, 497 (1) (393 SE2d 753) (1990).

Bench trials. The trial court's factual findings will not be set aside unless clearly erroneous, meaning that they will not be disturbed when there is any evidence to sustain them. Sam's Wholesale Club v. Riley, 241 Ga. App. 693 (527 SE2d 293) (1999).

Trial court's findings of fact. Reviewed under clearly erroneous standard. City of McDonough v. Tusk Partners, 268 Ga. 693, 696 (492 SE2d 206) (1997).

Question of law. De novo or independent review on appeal. Since no deference is owed to the trial court's ruling on a legal question, the "plain legal error" standard of review is applied. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

Damage awards. A reviewing court will not interfere with a jury's award of damages unless the amount is so small or so excessive that it justifies an inference of gross mistake or undue bias. Green v. Proffitt, 248 Ga. App. 477, 478 (1) (545 SE2d 623) (2001).

FELA damages. The jury's determination of FELA damages is otherwise inviolate, absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. Norfolk Southern R. Co. v. Jones, 219 Ga. App. 602, 608 (4) (a) (466 SE2d 260)(1995).

Attorney fees under OCGA § 13-6-11. Reviewed under the any evidence standard. City of Warner Robins v. Holt, 220 Ga. App. 794, 796 (1) (470 SE2d 238) (1996).

Attorney fees under OCGA § 9-15-14. Under subsection (a), reviewed under the any evidence standard. Under subsection (b), reviewed for abuse of discretion. Bankhead v. Moss, 210 Ga. App. 508, 509 (1) (436 SE2d 723) (1993).

Motion to open default. Reviewed for abuse of discretion, meaning that the trial court's ruling will stand unless there is no evidence to support a finding that the statutory grounds set forth in OCGA § 9-11-55 were met. K-Mart Corp. v. Hackett, 237 Ga. App. 127, 128 (1) (514 SE2d 884) (1999).

Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
twitter: USALawyer_
Phone: 404-633-4100
Fax: 404-633-0068

How to Determine Whether A Borrower can Stop a Foreclosure based on the Lack of a Proper Assignment

My firm seems to answer the following question, again and again:  Can I (borrower) stop my foreclosure in a Georgia Superior Court (generally, the County in which the house or property is located) by filing some action against the foreclosing lender?  

Well that action would be a Motion for a Temporary Restraining Order (OCGA § 9-11-65(b)) [1] or a Motion for a Permanent Injunction -- which must be filed shortly after the TRO, if granted, anyway.   TRO’s only last for thirty (30) days by law and then expire.  

The first thing we look for is whether the Security Deep upon which the lender if foreclosing is recorded as the last assignment.

For Example:   Assume you (borrower) borrowed $250,000.00 from Wells Fargo (original lender) in 2004.   Wells Fargo then sold the Note and Security Deed to Bank of New York/Mellon in 2007.   Then assume, Bank of New York/Mellon sold the Noted and Security Deed to Bank of America in 2009.

To determine whether you (borrower) have any chance of obtaining a Georgia TRO, examine the last Assignment of Record.   I will ignore the Mortgage Electronic Registration System (MERS) in this analysis, since the Georgia Supreme Court has yet to issue an opinion prohibiting nominee assignments by MERS.  

To determine whether you (borrower) have any chance of blocking the foreclosure sale on lack of a proper corporate assignment, conduct the following search.

Examine the Notice of Sale that was mailed to you by the lender and determine which lender is publishing the foreclosure.   It should read the last lender of record – or, in the above case, Bank of America.     If you cannot find it, search on-line for it at:

          http://georgiapublicnotice.com


Then you will need to search online for the last filed assignment.

The last filed assignment should be available online at:

          http://gsccca.org




Unfortunately, you will have to pay money to see your own assignment.  Unless you have a monthly account with GSCCCA, they will require you to purchase the viewing or printing of it with a credit card (sorry about that).


When on GSCCCA, using the search routine for your county, search to see if the last assignment is of record.   In the above example, it should be something like:   Bank of New York/Mellon to Bank of America.  However, it could be MERS to Bank of America.   Also, it could be something strange like Wells Fargo and MERS to Bank of America (with the Bank of New York/Mellon not visible because it went through MERS).   The last assignment needs to be to Bank of America, since that is the lender that is publishing the foreclosure.   [2]


Thus, in the above example is to the Bank of America, you probably will not be able to make out any claims associated with the Assignment.


If however there is no assignment of record and/or the last assignment is to the First National Bank of Willacoochee, you (borrower) may have a shot at stopping the sale.  [3]


Thus, if you (borrower) cannot stop the sale based on a faulty assignment or no assignment, you may need to consider looking to stop the sale with a Chapter 13 or Chapter 7 filing in bankruptcy.   A Chapter 7 will, in the long run, require the surrender (or allow the foreclosure of) the property.  [4]




Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
twitter: USALawyer_
Phone: 404-633-4100
Fax: 404-633-0068

[1]

OCGA § 9-11-65. Injunctions And Restraining Orders

(a) Interlocutory injunction.

(1) Notice. No interlocutory injunction shall be issued without notice to the adverse party.

(2) Consolidation of hearing with trial on merits. Before or after the commencement of the hearing of an application for an interlocutory injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for an interlocutory injunction which would be admissible upon the trial on the merits shall become a part of the record on the trial and need not be repeated upon the trial. This paragraph shall be construed and applied so as to save any rights of the parties which they may have to trial by jury.

(b) Temporary restraining order; when granted without notice; duration; hearing; application to dissolve or modify. A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if:

(1) It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and

(2) The applicant's attorney certifies to the court, in writing, the efforts, if any, which have been made to give the notice and the reasons supporting the party's claim that notice should not be required.

Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance, shall be filed forthwith in the clerk's office and entered of record, and shall expire by its terms within such time after entry, not to exceed 30 days, as the court fixes, unless the party against whom the order is directed consents that it may be extended for a longer period. In case a temporary restraining order is granted without notice, the motion for an interlocutory injunction shall be set down for hearing at the earliest possible time and shall take precedence over all matters except older matters of the same character; when the motion comes on for hearing, the party who obtained the temporary restraining order shall proceed with the application for an interlocutory injunction; and, if he does not do so, the court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification; and in that event the court shall proceed to hear and determine the motion as expeditiously as the ends of justice require.

(c) Security. As a prerequisite to the issuance of a restraining order or an interlocutory injunction, the court may require the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been enjoined or restrained wrongfully. A surety upon a bond or undertaking under this Code section submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the persons giving the security if their addresses are known.

(d) Form and scope of injunction or restraining order. Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice of the order by personal service or otherwise.

(e) When inapplicable. This Code section is not applicable to actions for divorce, alimony, separate maintenance, or custody of children. In such actions, the court may make prohibitive or mandatory orders, with or without notice or bond, and upon such terms and conditions as the court may deem just.

[2]

And for you diehards who persist in the “show me the Note,” challenge and/or look for the assignment of the Note, there is no public database (that is available to the public) to visualize the assignment of the Note.   As far as the author is aware (and I invite caselaw from anyone to the contrary – and I will post it) there is no body of law in Georgia that will stop a state foreclosure, based on a mere “show me the Note” challenge to the lender prior to foreclosure.

[3]

But do not be surprised if the lender produces the proper assignment on the Monday before the Tuesday sale.   Can the lender do that?  Yes.

[4] 

And be prepared for the Judge’s first question if you do file something (except in bankruptcy).   “Why didn’t you just pay the mortgage?”

How To File An Answer to a Complaint

“I was served last month with this Complaint thing and I think I need to do something,” or so many telephone conversations have gone over the years.

I am surprised how, out of lack of knowledge, paralysis or just fear, many business owners and individuals just panic when they are formally served with a complaint.   They just do nothing.

“When is the answer due?”  I will ask.

“Um.  Tomorrow, I think.” they will say.

And so it goes.  

Then the panic sets in.  

If you fail to file a written answer, you will be in default.  [1]

So, file an answer.  Almost any written answer is better than no answer.

While an answer does take some time to prepare, a Motion to Open a Default is a much more dicey affair.  A defendant has to show they were not served, or they were not served properly or there was some legal form of excusable neglect (like they were in the ICU or were dead for awhile).  It is an uphill battle to open a default.

Do not rely on this Blog, but instead read your Summons.  Generally, in Georgia a defendant has thirty (30) days from the date of service of a Complaint [2] to file a written answer with the Clerk of Court. [3]  If you miss the 30 day window, all is not lost.  A Defendant may move (as a matter of right – you do not have to ask the Court or Judge) to open default by paying all costs associated with Plaintiff’s filing of the Complaint and filing a Motion to Open Default (which will be granted as a matter of right) pursuant to the Official Code of Georgia (hereinafter the “OCGA”) 9-11-55 [4].  

There are certain complaints that may be heard prior to thirty (30) days.   Any type of injunction hearing probably will be heard prior to the thirty (30) days.  An answer to a Writ of Possession Suit (Eviction) is due within Seven (7) days.  And an answer in federal court (this article is not about a federal pleadings) is due within twenty one (21) days of service. [5].

While there is no particular “style,” in which the answer must  be prepared (see the OCGA for the vague outline), it must be in writing, it must respond (paragraph by paragraph) to the Complaint and it must be filed with the Clerk prior to the time for Default.

In a Georgia State or Superior Court the below template of an answer may be conformed to your particular needs.

http://www.scribd.com/doc/66234330/Blank-Civil-Answer

While I am reticent to cite to another States Court system, the Judiciary of the State of New Jersey has prepared a rather comprehensive overview for the filing of a civil answer in New Jersey.  While the dates for filing an answer and other pleadings differ in New Jersey (for example, you have 35 days and have to pay a fee to file in New Jersey) from Georgia, the document s is a well written overview of how to prepare a general answer.

http://www.judiciary.state.nj.us/prose/10554_ans_cmplt.pdf

Affirmative Defenses. 

There are some things that must be included in your answer or they are waived or abandoned.   They are things like: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. Generally, Affirmative Defenses are listed Prior to the response in a paragraph by paragraph format.  However, they may be listed anywhere in the answer.  [6]

Counterclaims and Cross-claims.

You really should consult an attorney if you feel compelled to assert a counterclaim or cross-claim.  I would avoid mentioning the counterclaim, except that if you have a compulsory counterclaim you must file it with your answer or lose it.   If the counterclaim arises out of the same set of facts as the complaint, it generally is compulsive and you must file it or lose it.   If it is some other set of unrelated facts but still about the same Plaintiff (Hey, he owes me $200,000 on a different piece of real estate) then it is probably a permissive counterclaim and may be filed with the answer or later as a separate complaint.   Here is the statute that sets out base meanings for same.  [7]

Don’t Argue Your Side of the Story in Your Answer.

An answer is NOT the place to argue your case or argue why your side of the “story,” is the correct side of the story.   Simply, admit or deny the claims made by the Plaintiff and sit down.  The time for your side of the story (unless you include brief outlines of same in your Affirmative Defenses and/or your Counterclaim) will come later in the lawsuit.  You will have plenty of opportunities to tell the Judge and Court how “wrong,” the Plaintiff facts are and how much of error it was for the Plaintiff to sue you.

While this little article may provide a place to start working on an answer, I would encourage the reader to hire counsel or review resources concerning Civil Procedure prior to preparing and filing an answer.

Hugh Wood, Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084

www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
twitter: USALawyer_
Phone: 404-633-4100
Fax: 404-633-0068

ENDNOTES

 

[1]

This Article is for those who have waited to late to hire an attorney to file the answer or are simply going to file an answer on their own.  If you file an answer on your own, the Court will formally refer to you as a Pro Se Defendant.   This Article is only about Georgia law.   Although any written answer is better than no answer, check your own state's civil procedure prior to filing an answer.

[2]

OCGA § 9-11-8. General Rules Of Pleading

(a) Claims for relief.

(1) "Action for medical malpractice" defined. As used in this Code section, the term "action for medical malpractice" means any claim for damages resulting from the death of or injury to any person arising out of:

(A) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such services or by any person acting under the supervision and control of a lawfully authorized person; or

(B) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.

(2) Form of complaint, generally; action for malpractice. An original complaint shall contain facts upon which the court's venue depends; and any pleading which sets forth a claim for relief, whether an original claim, counterclaim, a cross-claim, or a third-party claim, shall contain:

(A) A short and plain statement of the claims showing that the pleader is entitled to relief; and

(B) A demand for judgment for the relief to which the pleader deems himself entitled; provided, however, that in actions for medical malpractice, as defined in this Code section, in which a claim for unliquidated damages is made for $10,000.00 or less, the pleadings shall contain a demand for judgment in a sum certain; and, in actions for medical malpractice in which a claim for unliquidated damages is made for a sum exceeding $10,000.00, the demand for judgment shall state that the pleader "demands judgment in excess of $10,000.00," and no further monetary amount shall be stated.

Relief in the alternative or of several different types may be demanded.

(3) Sanctions. If the provisions of subparagraph (B) of paragraph (2) of this subsection are violated, the court in which the action is pending shall, upon a proper motion, strike the improper portion of the demand for judgment and may impose such other sanctions, including disciplinary action against the attorney, found in Code Section 9-11-37 as are appropriate.

(b) Defenses; form of denials. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state, and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.

Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in Code Section 9-11-11.

(c) Affirmative defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleadings as if there had been a proper designation.

(d) Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.

Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

(e) Pleading to be concise and direct; alternative statements.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

(2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has, regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in Code Section 9-11-11.

(f) Construction of pleadings. All pleadings shall be so construed as to do substantial justice.

[3]

OCGA § 9-11-12. Answer, Defenses, And Objections; When And How Presented And Heard; When Defenses Waived

(a) When answer presented. A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute. A cross-claim or counterclaim shall not require an answer, unless one is required by order of the court, and shall automatically stand denied.

(b) How defenses and objections presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion in writing:

(1) Lack of jurisdiction over the subject matter;

(2) Lack of jurisdiction over the person;

(3) Improper venue;

(4) Insufficiency of process;

(5) Insufficiency of service of process;

(6) Failure to state a claim upon which relief can be granted;

(7) Failure to join a party under Code Section 9-11-19.

A motion making any of these defenses shall be made before or at the time of pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.

(c) Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.

(d) Preliminary hearings. The defenses specifically enumerated in paragraphs (1) through (7) of subsection (b) of this Code section, whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) of this Code section shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination thereof be deferred until the trial.

(e) Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a proper responsive pleading, he shall nevertheless answer or respond to the best of his ability, and he may move for a more definite statement. The motion shall point out the defects complained of and the details desired.

If the motion is granted and the order of the court is not obeyed within 15 days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

(f) Motion to strike. Upon motion made by a party within 30 days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

(g) Consolidation of defenses in motion. A party who makes a motion under this Code section may join with it any other motions provided for in this Code section and then available to him. If a party makes a motion under this Code section but omits therefrom any defense or objection then available to him which this Code section permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in paragraph (2) of subsection (h) of this Code section on any of the grounds there stated.

(h) Waiver or preservation of certain defenses.

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived:

(A) If omitted from a motion in the circumstances described in subsection (g) of this Code section; or

(B) If it is neither made by motion under this Code section nor included in a responsive pleading, as originally filed.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Code Section 9-11-19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under subsection (a) of Code Section 9-11-7, or by motion for judgment on the pleadings, or at the trial on the merits.

(3) Whenever it appears, by suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

(i) Officer's defense of service. The officer making service of process and the principal officer in charge of service made by a deputy need not be made a party to any action or motion where the defense or defenses under paragraph (2), (4), or (5) of subsection (b) of this Code section are asserted by motion or by answer. Any party to the action may give notice of the objection to the service, made pursuant to such paragraphs, to the officer making the service and to the principal officer in case of service made by a deputy, and the court shall afford the officer or officers opportunity to defend the service, in which case the decision on the question of service shall be conclusive on the officer and on his principal in case of service by a deputy.

(j)(1)Stay of discovery.If a party files a motion to dismiss before or at the time of filing an answer and pursuant to the provisions of this Code section, discovery shall be stayed for 90 days after the filing of such motion or until the ruling of the court on such motion, whichever is sooner. The court shall decide the motion to dismiss within the 90 days provided in this paragraph.

(2) The discovery period and all discovery deadlines shall be extended for a period equal to the duration of the stay imposed by this subsection.

(3) The court may upon its own motion or upon motion of a party terminate or modify the stay imposed by this subsection but shall not extend such stay.

(4) If a motion to dismiss raises defenses set forth in paragraph (2), (3), (5), or (7) of subsection (b) of this Code section or if any party needs discovery in order to identify persons who may be joined as parties, limited discovery needed to respond to such defenses or identify such persons shall be permitted until the court rules on such motion.

(5) The provisions of this subsection shall not modify or affect the provisions of paragraph (2) of subsection (f) of Code Section 9-11-23 or any other power of the court to stay discovery.

[4]

OCGA § 9-11-55. Default Judgment

(a) When case in default; opening as matter of right; judgment. If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law.

The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages; provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages.

An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code section.





[5]

Federal Rule of Civil Procedure 12

Rule 12. Defenses and Objections: When and How Presented; Motion for

Judgment on the Pleadings; Consolidating Motions; Waiving Defenses;

Pretrial Hearing

(a) Time to Serve a Responsive Pleading.

(1) In General.

Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint;

or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

[6]

Affirmative Defenses

Examples

* civil law

o accord and satisfaction

o assumption of risk (when the plaintiff knowingly entered into a dangerous situation)

o authority

o consent

o defense of property

o estoppel

o contract specification

o contractual provision (when the defendant's liability for causing the plaintiff's injuries had been waived in the contract; however, these provisions are typically unconscionable in many situations.)

o contributory negligence (when the plaintiff's actions contributed to his own injury)

o fair use

o laches (similar to statute of limitation)

o merger doctrine

o repossession

o statute of frauds

o statute of limitations (too much time has elapsed between the tort and the complaint)

o waiver

* criminal law

o insanity defense

o necessity

o duress

o self defense

o statute of limitation

o truth

& & &

A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. An affirmative defense is known, alternatively, as a justification, or an excuse, defense.[1] Consequently, affirmative defenses limit or excuse a defendant's criminal culpability or civil liability.

A clear illustration of an affirmative defense is self defense.[2] In its simplest form, a criminal defendant may be exonerated if he can demonstrate that he had an honest and reasonable belief that another's use of force was unlawful and that the defendant's conduct was necessary to protect himself.

"Mistake of fact" is not an affirmative defense: it does not require proof but it does introduce doubt. In mistake-of-fact defenses, the defendant asserts that his mistaken belief prevents the establishment, beyond a reasonable doubt, of the required mens rea. It can be used with other defenses such as self defense. Self defense would still be available even if the defendant mistakenly believes that he was in imminent danger of harmful or offensive bodily contact.

Among the most controversial affirmative defenses is the insanity defense,[3] whereby a criminal defendant seeks to be excused from criminal liability on the ground that a mental illness, at the time of the alleged crime, prevented him from understanding the wrongful nature of his actions.

Most affirmative defenses must be pled in a timely manner by a defendant in order for the court to consider them, or else they are considered waived by the defendant's failure to assert them. The classic unwaivable affirmative defense is lack of subject-matter jurisdiction. The issue of timely assertion is often the subject of contentious litigation.

Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party who offers an affirmative defense bears the burden of proof.[4] The standard of proof is typically lower than beyond a reasonable doubt. It can either be proved by clear and convincing evidence or by a preponderance of the evidence. In some cases or jurisdictions, however, the defense must only be asserted, and the prosecution has the burden to prove beyond a reasonable doubt that the defense is not applicable.[citation needed]

Rule 8 of the Federal Rules of Civil Procedure governs the assertion of affirmative defenses in civil cases that are filed in the United States district courts. Rule 8(c) specifically enumerates the following defenses: "accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense."

Rule 11 of the Federal Rules of Civil Procedure requires that affirmative defenses be based on "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," and cannot consist of a laundry list of all known affirmative defenses.[5]

An affirmative defense can be different from a negating defense. A negating defense is one which tends to negate an essential element of the state's case. An example might be a mistake of fact claim in a prosecution for intentional drug possession, where the defendant asserted that he or she mistakenly believed that the object possessed was an innocent substance like oregano. Because this defense simply shows that an essential element of the offense is not present, the defendant does not have any burden of persuasion with regards to a negating defense. At most the defendant has the burden of producing sufficient evidence to raise the issue

© Wikipedia 2011.

[7]

OCGA § 9-11-13. Counterclaim And Cross-claim

(a) Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought an action upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Code section, or (3) the claim is not within the jurisdiction of the court.

(b) Permissive counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. But any such permissive counterclaim shall be separated for the purposes of trial, unless the parties otherwise agree.

(c) Counterclaim exceeding opposing claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

(d) Counterclaim against the state. This Code section shall not be construed to enlarge beyond the limits fixed by law the right to assert counterclaims or to claim credits against the state or an officer or agency thereof.

(e) Counterclaim maturing or acquired after pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

(f) Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.

(g) Cross-claim against coparty. A pleading may state as a cross-claim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(h) Additional parties may be brought in. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained.

(i) Separate trials; separate judgments. If the court orders separate trials as provided in subsection (b) of Code Section  9-11-42 judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of subsection (b) of Code Section 9-11-54 when the court has jurisdiction to do so, even if the claims of the opposing party have been dismissed or otherwise disposed of.



END 

&&&&

Form Answer Below:

_______________________________________________________________

IN THE _____________ [1] COURT OF ___________ [2] COUNTY

STATE OF GEORGIA

                                                                       

_____________________,            [3]           

                                                                       

                                    Plaintiff,                                CIVIL ACTION

                                                                                  FILE NO.

                                                                       

                                                             ________________ [5]

                                                  

vs.                                                                  

                                                                        

_____________________,            [4]            

                                                                      

                                    Defendant.               

________________________________     

DEFENDANT(S) ANSWER, and

AFFIRMATIVE DEFENSES [6]

COMES NOW, ___________________[3],  Defendant herein and hereby Answers, Responds, Replies and interposes Affirmative Defenses in response to Plaintiff’s Complaint filed in the _____________[1] Court of _____________[2] County, Georgia. 

Defendant shows the Court as follows:

FIRST DEFENSE

Plaintiff’s Complaint against _____________[4] fails to state a claim upon which relief may be granted and therefore, same should be dismissed.

SECOND DEFENSE

Plaintiff asserts [___] [7] insufficiency of process and/or [___] insufficiency of service of process, pursuant to OCGA § 9-11-4.  

THIRD DEFENSE

            To the extent as may be shown through discovery or pleadings in this action, _____________[3] raises all affirmative defenses as set forth in OCGA § 9‑11‑8(c), to the extent each on is checked:  [___] accord and satisfaction, [___] duress, [___] estoppel, [___] promissory estoppel, [___] payment, [___] set-off, [___] failure of consideration, [___] fraud, [___] illegality, [___] laches, [___] payment, [___] release, [___] res judicata, [___] statute of frauds, [___] statute of limitations, and [___] waiver. 

__________ DEFENSE

            By way of response to the specific allegations contained in Plaintiff’s Complaint against _____________[4]  and subject to all of the defenses set forth herein, _____________ [4] shows to this Court as follows:

COMPLAINT

1.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied. 

2.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied. 

JURISDICTION AND VENUE

3.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied. 

4.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied. 

5.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied.

6.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied.

7.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied.

8.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied.

9.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied.

10.

This Defendant is without sufficient knowledge or information to admit or deny this averment therefore this averment stands Denied.

Any paragraph of the Complaint not specifically admitted is hereby denied.

WHEREFORE, Defendant, with regard to Plaintiff’s Complaint, prays that this Court:

1)    Deny all relief that Plaintiff prays for in its Complaint; and,

2)    That Plaintiff’s Complaint be dismissed with all costs of this action cast upon the Plaintiff.

            This _____ day of __________________, 20___.       

                                                                        Respectfully submitted,

                                                                        _x______________________

                                                                        _____________,

                                                                        Pro Se

___________________

___________________

___________________

Address and Phone Number

of Defendant

_______________________________________________________________

IN THE _____________ [1] COURT OF ___________ [2] COUNTY

STATE OF GEORGIA

                                                                      

_____________________,            [3]           

                                                                       

                                    Plaintiff,                                CIVIL ACTION

                                                                                FILE NO.

                                                                       

                                                           ________________  [5]

                                                

vs.                                                                

                                                                      

_____________________,            [4]          

                                                                     

                                    Defendant.             

________________________________     

CERTIFICATE OF SERVICE OF

_____________’S ANSWER, and

AFFIRMATIVE DEFENSES

            I hereby certify that I have served a copy of:

_____________’S ANSWER, and

AFFIRMATIVE DEFENSES

on the Plaintiff by placing a true and correct copy of same in the United States Mail, First Class, postage prepaid, addressed to the Defendants as follows:        

[Name and Address of Plaintiff’s Attorney, or, if none –Plaintiff]

            This _____ day of __________________, 20___.       

                                                            Respectfully submitted,

                                                            _x______________________

                                                            _____________,

                                                            Pro Se

___________________

___________________

___________________

Address and Phone Number

of Defendant

_______________________________________________________________

FORM NOTES

[1]

            In Georgia, this will be either the SUPERIOR, or STATE or MAGISTRATE Court.

[2]
            In Georgia, this will be one of the 159 Counties.  For example, Fulton, DeKalb,    Cobb, Gwinnett, Chatham, Muscogee, Bibb, etc.

[3]

            Name of the Plaintiff who/that filed the suit.

[4]

            Name of the Defendant(s), who/that have been sued.

[5]

            This Number will be on the Complaint and Summons.  It needs to be written or    typed onto your Answer prior to filing.

[6]       

            An Answer is mandatory.  Affirmative Defenses are not mandatory; however, if    they are not raised in the initial answer they are waived.  Additionally, if   Defendant(s) chooses to file a Counterclaim, it should be listed (additionally) in  this header.  If you file a Counterclaim, you must ask for a Jury Trial at the time        you file your Counterclaim or it is waived.   Plaintiff may have already   petitioned for one in the main Complaint.

[7]

            Any box such as [___] indicates that Defendants should check any that apply.     Or, if it retyped (which it should be), list only the Affirmative Defenses that    apply.