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Thumbnail image for Contract Newer.jpg“How can I be sure that this non-compete contract is fair and enforceable?” is a question many clients ask us whether they be employers or employees.

For employers:

Our advice is this: Don’t go it alone! Believe it or not, there are many employers who think that it is okay to just “cut and paste” whatever contract they find googled over the internet. This is the fastest way to draft a bad contract. The most important thing for any contract is enforceability. That means you know that in the event of a dispute your contract will hold up as “enforceable” in a court of law. Cutting and pasting a contract is the surest way to have your important legal agreement fail to hold up in a court of law, thus failing to protect your and your company.

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belinda-mcmilan.jpgMARTA bus driver Belinda McMillan was arrested and charged with reckless conduct after being accused of dragging a 62-year-old woman– Lettie Robinson who was just trying to get off her bus this past Sunday night.

According to Atlanta Police, Miss Robinson was exiting MARTA bus 2977 on route 51 at about 8:30 p.m,when her pocketbook got stuck inside the bus. The MARTA bus driver continued driving while dragging her approximately 63 feet.

A passenger on the bus described the bus driver as acting agitated against the victim Miss Robinson even before she got off the bus. The passenger who wished to remain anonymous stated: “people were trying to notify her that she was dragging this person. It was like she had no regard. She just wanted to close the door and move as quickly as possible.”

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“Can I plead both fraud and breach of contract in suing over a business dispute?” is a question our business litigation clients sometimes ask.

You may be wrongly informed by the Defendant that you as a Plaintiff cannot plead both fraud and contract. Nevertheless, this is incorrect and flouts over forty years of Georgia law:

a. For over four decades Georgia courts have allowed a complaint to contain “as many separate claims against defendants as one may have, regardless of inconsistency. They may be based on legal grounds and equitable grounds, and may arise out of tort and also out of contract.” Giordano v Stubbs, 129 Ga. App. 283, 286 (1973).

b. A party may sue under one theory and recover under another if supported by the evidence. See Barnett v. Freeman, 157 Ga. App. 760.

c. An individual’s affirmation of a contract that he claimed he was induced to enter by fraud does not bar him from seeking damages because the two remedies are coexistent. Atlanta Car Wash, Inc. v. Schwab, 215 Ga. 319, 1959 Ga. LEXIS 463 Ga., September 11, 1959, decided.

d. It has been well established for decades in Georgia law that the Plaintiff can plead alternative theories of both breach of contract and fraud and is entitled to pursue inconsistent remedies until judgment. Accord Larkins, Ga. Contracts §3-18.

Consequently, there is no doubt: Georgia law absolutely permits Plaintiff to plead both fraud and breach of contract. Thus, even though these are two inconsistent remedies, as a matter of legal strategy a good business lawyer may utilize both causes of action in an effective legal pleading.
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Thumbnail image for contract.jpg“Can I enforce this contract?” “Can I get out of this contract?” “Is this contract enforceable?” These are all questions we often hear from clients. Under Georgia law, a contract does not exist nor is enforceable unless the parties agree on all “material” (that means essential, significant and substantial) terms.

The Georgia Court of Appeals recently addressed this issue in recent years in the case of Kitchen v. Insuramerica Corp., 296 Ga. App. 739, 675 S.E.2d 598 (2009). The contract dispute and subsequent lawsuit was between an employee by the name of Mr. Kitchen, and his former employer, Insuramerica Corporation. In this case, Mr. Kitchen sued his former company because he claimed that it had promised him a 25 percent interest in their subsidiary companies in exchange for his employment.

When a dispute arose concerning the parties agreement, the trial court ruled that the parties’ alleged agreement to transfer a 25 percent interest in the subsidiaries to the employee was unenforceable because the parties did not have a meeting of the minds on certain essential terms.

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Thumbnail image for bullying.jpgPolice arrested a 14-year-old New Jersey City boy for allegedly threatening two 12-year-old boys on Facebook by threatening to kill and hurt them, calling them “gay” and “fat” and stating to one boy that he would tie him to a pole, attach a rope and hook to the boys stomach, tie it to a car and drive off tearing off his body. He allegedly did all this because he believed they were interested in his girlfriend.

The fourteen year old now faces charges of harassment and making terroristic threats.

According to the prosecutor, he used fake screen names on Facebook to threaten one victim, using a second and third name after the first was blocked. Shockingly, investigators do not believe he knew the boys personally.

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Thumbnail image for Baroda-Lake_Civil_Forfeiture.JPGWilliams Oinonen LLC often receives phone calls from Georgia citizens, innocent owners of vehicles, homes, and/or cash who have had their property taken by law enforcement agents because, supposedly, their property is related to a drug offense. The process of taking property in this manner is called forfeiture. And Georgia Code 16-13-49 primarily governs forfeitures related to alleged drug sales/transactions. What’s important for you to know is that you can fight to regain your property. But you must act quickly, because forfeiture laws and rules are complicated, and very time sensitive.

For example, Georgia Code 16-13-49 requires you to respond within thirty (30) days of receiving notice that your property is subject to forfeiture. If you don’t respond within thirty (30) days, then, “all right, title, and interest in the property is forfeited to the state and the district attorney shall dispose of the property as provided” by Georgia law.

Furthermore, your claim (response to notice of forfeiture) must be sent by certified mail, return receipt requested or staturory overnight delivery. And your claim must:

1. Be signed by the owner or interest holder of the property under penalty of perjury;

2. Be sent specifically to both the law enforcement agency that took your property and the relevant District Attorney; and

3. Contain specific details such as (a) the nature and extent of your interest in the property; (b) the specific provision of O.C.G.A. § 16-13-49 relied on in asserting that your property is not subject to forfeiture; and (c) all essential facts supporting each assertion, amongst other specific details required by law.

You must comply with the above-mentioned, and more, in order to have a mere “opportunity” at getting your property back. Then, if you do comply with the requirements of Georgia law to challenge what is called an administrative forfeiture proceeding, you still must challenge a potential judicial forfeiture proceeding. Simply put, the state agency will first attempt to take your property through an administrative proceeding, which is discussed above. If you meet those deadlines and other legal requirements, the state will most likely file a “judicial action” (complaint for forfeiture) in an attempt to take your property through a judicial forfeiture proceeding. You then must comply with more strict guidelines, rules, and laws!

If all that was not enough (and I’ve only touched on a few aspects of this complicated area of law) the state may turn your case over to the federal government in what is commonly referred to as adoptive forfeiture. The federal government will then file a judicial forfeiture action in an attempt to take your property.

You must have an attorney who understands both federal forfeiture law and Georgia forfeiture law in order to adequatley protect your rights.

Significantly, state and federal agencies attempting to take your property must comply with strict procedural timelines and laws, too, meaning you may be able to get your property back by demonstrating that the government failed to comply with mandated, legal requirements. And there are many defenses that may apply to your case such as an “innocent owner” defense or a due process defense. However, as I’ve stated, you need a good attorney who understands this area of the law.
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SBA.jpgGood Georgia Contract Lawyers will explain that one of the primary purposes to incorporate your business or create an LLC is to protect yourself from personal liability for business debts and claims. While business owners who incorporate or convert their business into an LLC enjoy limited personal liability for many of their business transactions, this protection is not absolute.

Despite having one’s business incorporated or formed into an LLC, an owner can be held personally liable if he or she: personally injures someone; personally guarantees a bank loan or business debt on which the business later defaults; intentionally does something considered fraud, illegal, or reckless that harms the company or someone else, or co-mingles funds: i.e. treats the LLC as an extension of his or her personal affairs, rather than as a separate legal entity.

This type of conduct is also called “piercing the corporate veil.” The reason for this term is because your legal entity is considered a veil or shield that protects you from personal liability. Once you violate the rules surrounding it, the veil is considered “pierced” just as if a sword had stuck into it. Once the corporate veil is pierced, it can no longer protect you as a business owner.

Thus, it is important to carefully protect yourself and your business by avoiding such conduct that would be considered veil-piercing.

In Soerries v. Dancause, 248 Ga. App. 374 (Ga. Ct. App. 2001), a sole business owner of a nightclub was sued when the family of an intoxicated 18-year old girl left the nightclub severely drunk. Although a city ordinance prohibited individuals under 21 years old from entering nightclubs, it is undisputed that the club employees did not check the girl’s identification to establish her age. After drinking that night, the girl left at approximately around 3:00 a.m. with a beer in her hand and was killed when she lost control of her car and struck a tree.

The jury pierced the corporate veil and found the business owner jointly liable with his corporation because he had commingled individual and corporate assets by personally assuming the corporation’s financial liabilities, waiving corporate rental payments, and using corporate funds to directly pay his personal mortgage notes and other expenses.

Therefore, the Court ruled that the jury could disregard the corporate entity and that there was evidence to sustain the verdict finding him personally liable for compensatory and punitive damages.

In Pazur v. Belcher, 290 Ga. App. 703 (Ga. Ct. App. 2008), the Georgia Supreme Court stated that an officer’s personal liability for corporate debts due to a piercing of the corporate veil rests on the notion that a corporate officer, or owner, who has abused the corporate form by commingling personal and corporate assets, should be held liable for corporate debts and liabilities. The Court explained that the focus in that type of liability is the abuse of the corporate form, not the personal participation of the officer in the tortious conduct at issue.

The Court further enumerated that the concept of piercing the corporate veil is applied in the State of Georgia to remedy injustices which arise where a party has over extended his privilege in the use of a corporate entity in order to defeat justice, perpetuate fraud or to evade contractual or tort responsibility. To prevail based upon that theory, it is necessary to show that the shareholders disregarded the corporate entity and made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist. Personal participation in the tort is irrelevant. Pazur v. Belcher, 290 Ga. App. 703 (Ga. Ct. App. 2008)

If you are a small to mid size business owner, you need to be aware of these important issues in order to protect yourself and your business by avoiding such acts that would be considered veil-piercing.
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DOC.jpgOn Monday, February 21st, seven prison guards from Macon State Prison were arrested on charges of beating Mr. Terrence Dean, a client of Williams Oinonen LLC, so badly that he sustained brain injuries and was partially paralyzed.

The Georgia Bureau of Investigation found that the guards had assaulted Mr. Dean: Georgia Bureau of Investigation spokesman John Bankhead stated that the seven prison guards– Christopher Hall, Ronald Lach, Derrick, Wimbush, Willie Redden, Darren Douglass Griffin, Kerry Bolden and Delton Rushin — were arrested Monday after they reported to work at the prison.

The GBI investigation began amid reports that guards attacked inmates at two state institutions – Macon State Prison and Smith State Prison near Savannah. The alleged assaults came at the end of a six-day protest and work stoppage at nearly a dozen facilities.

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Thumbnail image for decision making.jpgGeorgia business lawyer explains: Implied Warranties in Georgia: What if a merchant sells you a product “as is” that turns out to be defective? Is there anything you can do?

Under Georgia law the answer is perhaps. First, if the seller made an express warranty to you (such as claiming that the product was new or in great condition and it turned out to be defective) they cannot get out of honoring that express warranty to you despite disclaiming an implied warranty. In City Dodge, Inc. v. Gardnere , 232 Ga. 766, 208 S.E.2d 794 (1974), the Georgia Supreme Court said that an express warranty that the car dealer made was not negated even though the car dealer sold the car “as is” in the purchase agreement.

Additionally, even if a seller has sold you a defective product “as is” you can “revoke the acceptance” as soon as the product is delivered to you. Esquire Mobile Homes, Inc. v. Arrendale, 182 Ga. App. 528, 356 S.E.2d 250 (1987). The Georgia Court of Appeals has stated that revocation of acceptance under O.C.G.A. § 11-2-608 is an available remedy even where the seller has attempted to limit its warranties .

What is “Revocation of Acceptance?” Revocation is an available remedy even where the seller has attempted to limit its warranties by use of “as is” language under O.C.G.A. § 11-2-316. See Prudential Metal Supply Corp. v. Atlantic Freight Sales Co., 204 Ga. App. 439, 419 S.E.2d 520 (1992).

A buyer must pay at the contract price for any goods accepted. Ga. Code Ann. § 11-2-607(1). However, a buyer is entitled to accept or reject goods which fail to conform to the contract by rejecting or accepting the whole, or by accepting any commercial unit or units (Ga. Code Ann. § 11-2-105(6)), and rejecting the rest. Ga. Code Ann. § 11-2-601. Acceptance occurs when, after a reasonable opportunity to inspect the goods, the buyer indicates the goods are conforming or that he will take them despite the nonconformity, or the buyer acts in a manner inconsistent with the seller’s ownership. Ga. Code Ann. § 11-2-606. Acceptance of any part of a commercial unit is acceptance of the whole unit. Ga. Code Ann. § 11-2-606(2).

So how do I revoke acceptance? Within a reasonable time after delivery or tender, you the buyer are entitled to reject nonconforming goods under the provisions of Ga. Code Ann. § 11-2-602 if you seasonably (that means timely) notifiy the seller of your rejection. Moreover, even after acceptance, you the buyer have a right to revoke acceptance under the provisions of Ga. Code Ann. § 11-2-608 for nonconformance that substantially impairs the value of the goods. (For example the car you bought blew up or the bags of rice you purchased are filled with rat droppings) Griffith v. Stovall Tire &c. Inc., 174 Ga. App. 137, 139 (329 S.E.2d 234) (1985)

Most importantly, revocation is an available remedy even where the seller has attempted to limit its warranties by use of “as is” language under Ga. Code Ann. § 11-2-316.

Consequently, we have discussed two ways to seek remedy even when the seller disclaimed the implied warranty. First, if an express warranty was made, the implied warranty disclaimer is negated. Second, even if there was an implied warranty disclaimer, the buyer can still “revoke acceptance” if the goods don’t conform as to what was expected and you notify the seller in a timely manner or if the goods are so bad that they substantially impair the value of the goods, you can still revoke the acceptance even after acceptance has been made.

Other grounds for seeking remedy even if an implied warranty has been disclaimed are actions for fraud, deceit, negligent misrepresentation, and our favorite cause of action—the Georgia Fair Business Practices Act.
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decision making.jpgGeorgia Contract Lawyer explains: When you are sold a product in Georgia, the product is generally covered by something called an “implied warranty.” This means the seller (who needs to be a regular merchant for the type of goods he sold you) warranties that what they’ve sold you is okay for use. The legal terminology is that they are warranting that the product they sold you is “fit for the ordinary purpose that the good is generally used for.”

The only way that a seller can get out of such an implied warranty is if he tells you (the consumer) before he actually sells you the product that he is selling it “as is” i.e. without a warranty.

Let’s look at what the law states under OCGA § 11-2-314 about implied warranties:

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