Betts & Associates is committed to providing each of our clients with top quality legal representation and achieving successful outcomes for their cases. We specialize in representing individuals and businesses in all areas of complex civil litigation matters. Our firm provides legal services with skill, strength, and integrity to residents all over the state of Georgia.
Betts and Associates offer a wide range of skills in almost all areas of the legal practice. Our commitment to growing a wide range of more discrete practice areas allows us to better assess client needs and provide prompt and effective legal solutions. Our firm was founded on the belief in providing personal service and valuable legal counsel that addresses our client's needs creatively. After a decade, that has not changed. We ensure that every client's case is carefully handled every step of the way.
If you need advice about the best way to approach and resolve your case, consider Betts & Associates. To request a legal consultation, contact our office at 404-577-8888 to schedule an appointment. We are proud to provide personal service and practical solutions for those with even the most complex legal concerns.
Bedbug Problem in Georgia? Find Out How You Can Get Rid of These Unwelcome Pests in Your Bed for Good.
Bedbugs are still a problem in Georgia. Fortunately, there are legal measures you can take before the problem gets worse. Everyone deserves a good night's sleep free from unwelcome critters.
Don't let bedbugs bug you and your loved ones anymore. Contact an experienced Georgia attorney to discuss any legal options you may have to protect your bed and you health from these uninvited critters.
Georgia Personal Injury and Loss of Consoritum
When a married person is injured, the emotional toll of worrying about the health and well-being of the injured spouse can be overwhelming for the other spouse. In addition to the emotional hardship caused by the accident, a spouse may face demanding physical and financial burdens in caring for their injured loved one. Georgia law recognizes a separate claim for loss of consortium in personal injury cases where a married person suffers a loss of services and companionship as a result of an injury to their spouse caused by a third party's negligence or intentional misconduct.
Loss of consortium claims can also compensate the non-injured spouse for an increase in the demands and burdens caused by the ordeal. Often, once injured, spouses are unable to offer the same level of affection, intimacy, and companionship as before. For example, an injured spouse may not be able contribute to performing household chores or help out in other spousal duties such as childrearing to the same extent that he or she could before the accident, requiring the non-injured spouse to assume the role of primary caretaker. In Georgia, spouses have a right to recover damages for the loss of such services and companionship a spouse normally could provide absent the injuries, such as household and family expenses, property maintenance and household chores, child care and parenting duties, emotional support and care, affection and sexual intimacy between spouses.
It can be difficult to recover significant damages for loss of consortium in Georgia unless the spouse proves that the impact on the marriage relationship is severe as a result of the seriousness and extent of the injuries. Thus, it is important that spouses document and share all the facts and details about how the injury has affected their marital relationship when consulting an attorney.
If an injury has come between you and your spouse's ability to engage in activities related to your married life, then you may be entitled to damages for loss of consortium. Contact an experienced Georgia personal injury attorney to discuss your legal options.
Georgia Seniors: Have You Been Overcharged By Your Insurance Company?
If you are dealing with an insurance company, consult an experienced Georgia consumer attorney to ensure that your rights are protected.
Georgia Crossover Day 2013 Recap
Today was the last legislative day for Georgia lawmakers to debate and decide which bills would move forward (or "crossover") and have a chance to become law this year. To see the 2013 Roundup of Big Crossover Day Bills at the Georgia Capitol, click here.
Georgia Lawmakers Advance Gun Bill
Click here to see the AJC's list of major bills our legislators debated at the Georgia Capitol on Thursday.
Landlord's Options When Tenant Abandons Premises Prior to Lease Expiration
Unlike in some jurisdictions, Georgia does not require mitigation of damages in lease contracts. This gives landlords several options when a tenant abandons the premises before the lease term is up. First, the landlord may enter and obtain another tenant holding the original tenant liable for any deficiency. Alternatively, the landlord may leave the premises vacant and collect the agreed upon rent each month. Or, the landlord may terminate the lease under the terms of the lease. Lamb v. Decatur Fed. S & L Assn., 201 Ga.App. 583, 587(2) (1991). Note that in the event the landlord chooses this third option and terminates the lease, then he will be required to mitigate damages and make reasonable efforts to re-lease the premises. However, a landlord presumably can avoid triggering this duty to mitigate where the landlord terminates only the tenant's right of possession without terminating the lease. Georgia Color Farms v. K.K.L., Ltd. P'ship, 234 Ga. App. 849 (Ga. Ct. App. 1998).
Recovery of Rent
Landlords have two methods to recover future rent: (1) the landlord may accept the abandonment and sue at once for the excess of the rent reserved under the lease agreement over the reasonable rental value of the premises at the time of the breach; or, (2) may elect not to accept the abandonment and to treat the lease as remaining in full force and effect. If pursuing the latter method, then landlord may either permit the premises to remain vacant while collecting the agreed upon rent from the original tenant or obtain another tenant while holding the original tenant liable for any deficiency that may occur.
Rent Acceleration Clauses
Many leases contain rent acceleration clauses which are treated like liquidated damages by Georgia courts. Provided the lease contains an express acceleration clause, and upon tenant default, the landlord may accelerate rent for the balance of the lease term. Such clauses are generally enforceable if reasonable. A rent acceleration clause will be enforceable if it meets the three-part test in Southeastern Land Fund, Inc. v. Real Estate World, Inc., 237 Ga. 227 (1976) ("First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.") Thus, landlords wanting to enforce a rent acceleration clause should be careful in crafting the language of the provision to sound in liquidated damages rather than in penalty. For instance, provisions that reduce accelerated rent to present value and deduct from this amount the reasonable rental value for the premises for the remainder of the lease term are more likely to be enforced than provisions that otherwise make no attempt to take the future rental value and the likelihood of re-letting into account. See Peterson v. P.C. Towers, L.P., 206 Ga. App. 591 (1992).
Note that a landlord may pursue a handful of consistent or inconsistent remedies against a defaulting tenant. For instance, a landlord may seek specific performance of a lease or recover additional sums owed under contracts including default interest, late charges, or other monies. Special Georgia rules and statutes may govern these proceedings. Contact an experienced Georgia contract attorney to discuss your options.
Parties to a contract may stipulate damages or contain a method for fixing damages but generally the contract cannot provide a penalty. However, a penalty provision will be valid and enforceable if, at the time of the contract, (1) damages are difficult to estimate, and (2) the provision is a reasonable forecast of possible damages. Whether a party suffers actual damages is irrelevant so long as the penalty is a reasonable forecast at the time the contract was entered into.
The general measure of damages for breach of an ordinary contract is expectation damages. This means that the injured party is entitled to recover an amount that would put him in as good a position as if the contract had been performed.
The measure of damages in employment contracts depends on whether the breaching party is the employee or the employer. Let's say Matt Ryan contracts to work for the Georgia World Congress Center Authority as a spokesperson for 12 months for $85,000 to promote the building of a new Georgia Dome. If Matt Ryan quits after 4 days, and the Authority pays Joe Average $90,000 to replace him, then the Authority can recover $5,000 - the extra cost to replace Matt Ryan.
If however, the Authority wrongfully terminates Matt Ryan after he has worked for only four days, Matt Ryan could recover from the Authority the full contract price of $85,000 (minus any avoidable damages) for being Matty Iced out.
Land Sale Contracts
For land sale contracts, a party can elect to have specific performance and/or money damages. Let's assume for now that money damages are sought. If a seller who has contracted with a buyer to sell land breaches, then the buyer's damages are calculated by the difference between fair market value ("FMV") and the contract price. Thus, if a piece of land has a FMV of $100,000 and a seller breaches a contract to sell the land to a buyer for $80,000, then the buyer's damages are $20,000, the difference between FMV and the contract price.
Let's say a seller contracts to sell land to a buyer for $80,000 and the land has FMV of $75,000. If it is the buyer who breaches, then the seller's damages are measured by the difference between the contract price and FMV, or $5,000. This makes sense because if the contract had been performed, then the buyer would have paid $5,000 for the $75,000 piece of land; so, the seller would have the expectation of $5,000.
Keep reading below to find out how to calculate money damages for construction contracts and for more information.
Even if you can make out the elements for a claim of premises liability (that is, you are an invitee, an owner/occupier owed you a duty to keep premises safe and/or to inspect and that such duty was breached because the owner/occupier knew or should have known of the danger, and that breach of duty was the direct and proximate cause of your injury), there may still be another hurdle for you to recover...
The most common defense owners/occupiers raise in claims of negligence based on premises liability is the defense of assumption of the risk. In order to establish the defense of assumption of risk, defendants must show that a plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks. Admiral Ins. Co. v. State Broad. Corp., 314 Ga. App. 648, 650, 725 S.E.2d 789, 791 (2012), cert. denied (July 2, 2012).
Often patrons at amusement parks are said to have assumed the risk when they understand and appreciate risks associated with park rides and voluntarily expose themselves to the risk by going on the ride. However, this defense cannot overcome situations in which there are static conditions on the ride or premises nor can a judge grant summary judgment on issues such as how closely a particular retailer should monitor its premises and approaches.
Many questions regarding the defense of assumption of risk must be heard by a jury because of the factual issues involved. "[W]hat retailers should know about the property's condition at any given time, how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law." Williams v. GK Mahavir, Inc., 314 Ga. App. 758, 762 (2012), cert. denied (June 25, 2012), reconsideration denied (Mar. 13, 2012) quoting American Multi-Cinema v. Brown, 285 Ga. 442, 445(2) (2009).
Contact an experienced Georgia attorney to discuss any possible claims you may have.
First, we hope everyone is keeping safe from the slick, rainy conditions outside! Today, we will continue our discussion on Premises Liability in Georgia by talking about the types of knowledge an owner/occupier must have to be liable in negligence.
How Can I Prove Premises Liability for Hazardous/Dangerous Conditions?
An invitee can recover damages in a slip and fall if she proves two things: (1) that the owner/occupier had actual or constructive knowledge of the hazard, and (2) that despite the exercise of ordinary care, the invitee lacked knowledge of the hazard due to actions or conditions within the owner/occupier's control. Cocklin v. JC Penney Corp., 674 S.E.2d 48 (Ga. Ct. App. 2009). Absent knowledge of the dangerous condition, there can be no causation (an essential element to make out a claim in negligence).
Failing to use reasonable care in inspecting premises can give rise to constructive knowledge where the owner or occupier had an opportunity to discover the dangerous condition and to remedy it. This was the case in Valentin v. Six Flags Over Georgia, L.P., 286 Ga. App. 508, 510-11 (2007) where the appellate court found that Six Flags breached its duty by failing to conduct a reasonable inspection that would have allowed for discovery and remedy of an alleged unsecured mat and mildew hazard.
Thus, when the owner/occupier knows or should know about a dangerous condition on the premises, a plaintiff may likely have an actionable claim despite the defense of assumption of risk (which will be discussed in tomorrow's post).
Contact an experienced Georgia attorney to discuss any possible claims you may have.
Let's say you've recently suffered from a slip and fall accident at a Georgia business. Then, you're probably wondering how and what you can recover for your injuries. During the next few days, this blog will uncover the basics of Georgia premises liability.
Trespasser, Licensee, or Invitee?
Whether you can recover from an owner or occupier of land in Georgia depends on your classification as a trespasser, licensee or invitee. Landowners and occupiers of land owe different duties of care to each respective class; thus, it is important to establish your classification in any premises liability case.
A licensee is a person who (1) is neither a customer, servant, nor trespasser; (2) does not stand in any contractual relation with the owner of the premises; and (3) is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification. O.C.G.A. § 51-3-2(a); Sands v. Lindsey, 314 Ga. App. 160, 723 S.E.2d 471 (2012).
An invitee is one who is induced by express or implied invitation to come onto an owner's property. The typical invitee is a customer at a store but can also include employees of the owner to perform work on the property. Invitees may lose their status as invitees and become licensees if they exceed the scope of their invitation on the premises.
Let's say you're an invitee - what duty is owed to you by the owner/occupier on the premises?
In Georgia, an owner or occupier of land is liable to its invitees for injuries caused by its failure to exercise ordinary care in keeping the premises and approaches safe. Anderson v. Canup, 731 S.E.2d 786 (Ga. Ct. App. 2012).
This is basically a duty of ordinary care. And, though an owner or occupier is not an insurer of an invitee's safety; the law does require that he use such diligence toward making the premises safe as an ordinary prudent person would in such ways as he or she would be accustomed to use the premises. O.C.G.A. § 51-3-1. Kouche v. Farr, 730 S.E.2d 45 (Ga. Ct. App. 2012).
Common carriers and innkeepers owe a duty of utmost care, higher than the duty of ordinary care, to protect their passengers and patrons from injury. Hotel chains, bus, elevator and escalator companies fit into this category.
Stay tuned to find out more about premises liability basics or contact an experienced Georgia attorney to discuss any possible claims you may have.
Georgia Staffing Agency Job Turns Nasty For Employment Hopefuls: How to Spot Job-Duping Before It's Too Late
Fraud & Deceit in Georgia: Employment Hopefuls Lured From Georgia By "Job," Get Stranded In Missouri
WSB-TV and The Associated Press reported yesterday that dozens of workers had been scammed by a Georgia staffing agency through a Craigslist post promising two-year construction job positions in locations across the country. According to their stories, a new Marietta-based employment company called Everything Staffing assembled a group of prospective workers for subcontractor Black Sparta LLC on construction sites outside of Georgia. Black Sparta agreed to provide food, gas and lodging for all employees but when the workers started showing up for a job in Missouri, they were told they were no longer needed and forced to foot the bill. As a result, dozens of Georgians are stranded without hope and without the job they were promised; some do not have the means to make it back home to Georgia.
Everything Staffing intends to file a lawsuit against Black Sparta, but that won't ease the immediate pain felt by these adventurous job seekers duped by what appeared to be a promising opportunity but turned out to be a fraud stranding these people in an unfamiliar city.
Make Sure You Have a Valid Employment Contract
There are ways to protect yourself against job-duping if you find yourself in a similar situation whether you are a Georgia job-seeker looking for a construction job or a Georgia business or contractor looking for a sub-contractor. First, check to see whether the employer or business or other authorized person has promised you something in exchange for your performance at a job site. If the promise purports to be an employment agreement for work on a project that will take more than one year to complete performance, i.e., a 2-year construction contract, then the Georgia Statute of Frauds will apply to that promise. Georgia's Statute of Frauds requires that certain contracts be in writing and signed by the party to be charged in order to be enforceable. Specifically, O.C.G.A.§ 13-5-30 says that contracts that cannot be performed within one year at the time they are made must be in writing and signed by the party to be charged or his agent in order for you to bind them to the promise.
If you are a Georgia business or Georgia contractor worried about job-duping by a sub-contractor, agent or other harmful business relation, then you can, with the help of an experienced Georgia contract lawyer, come up with a standardized business contract to address your business needs and withstand new challenges to Georgia business practices. Have your business contracts reviewed by your lawyer to incorporate new terms reflecting important changes in the law, recent court decisions, and changes in Georgia business practices.
Fraud and Deceit in Georgia
Job-duping can affect both job-seekers and businesses in Georgia and its practice could amount to actionable fraud and deceit under Georgia law. Stay tuned to find out about pursuing these claims or contact an experienced Georgia contract lawyer at Betts & Associates about your matter.
What legal options do I have in Georgia when a person or business has been using my name, trade dress, brand, trademark, or logo for a long period of time without my knowledge? This is a question that we often hear from our business clients.
In Georgia, the equitable doctrine of laches can be applied to bar claims for relief that the plaintiff has delayed brining or that fall outside of the applicable statute of limitations period. With respect to trademark infringement and unfair competition claims, however, neither the Lanham Act nor its state law counterpart found in the Uniform Deceptive Trade Practices Act (UDTPA) contain specified limitations periods from which to judge which statute of limitations applies: the two-year statute of limitations period applied by Georgia courts to fill in statute of limitations where the legislature did not provide one (like in employment discrimination claims for relief) found in O.C.G.A. § 9-3-22; or the four-year statute of limitations governing injuries to personalty found in O.C.G.A. § 9-3-31. Another confusing aspect of claims for relief from infringement or unfair competition concern the legal theory to apply to determine when to begin measuring delay in some cases. Fortunately, there are some Georgia cases that shed light on both of these concerns.
The 11th Circuit first grappled with the issue of laches when a trademark owner has not learned of the infringement until after the statute of limitations has run on a claim for damages in 1997 when it decided Kason Industries, Inc. v. Component Hardware Corp., 120 F.3d 1199, 1203 (11th Cir.1997). In that case, the court borrowed from the closest analogous state law and held that the four-year period applicable to similar causes of action under Georgia's UDTPA governs the inquiry in Lanham Act cases. Kason, at 1206.
The Court went on to say that this period is not an absolute bar either because laches is an equitable doctrine that is to be applied flexibly. Id. at 1206. In calculating delay, the clock begins at the point in which the plaintiff "knows or should know she has a provable claim for infringement." Id. at 1206.; see also ProFitness Physical Therapy Center v. Pro-Fit Orthopedic & Sports Physical Therapy, P.C., 314 F.3d 62, 70 (2d Cir.2002) ("[A] plaintiff should not be obligated to sue until its right to protection has ripened such that plaintiff knew or should have known, not simply that defendant was using the potentially offending mark, but that plaintiff had a provable infringement claim against defendant.").
Some courts have found a second, perhaps more important basis to deny summary judgment on the issue of laches. See Angel Flight of Georgia, Inc. v. Angel Flight Se., Inc., 424 F. Supp. 2d 1366, 1371 (N.D. Ga. 2006) aff'd sub nom. Angel Flight of Georgia, Inc. v. Angel Flight Am., Inc., 522 F.3d 1200 (11th Cir. 2008) Because of the strong interest in protecting consumers from deception, courts should not deny a delayed trademark or trade dress owner from obtaining relief when there is strong evidence of likely or actual confusion on the basis of delay alone. Id. at 1370 (citing Restatement (Third) of Unfair Competition § 31, cmt. e (1995)).
These cases tell us that, in Georgia, even though estoppel of laches may bar a trademark owner's claim for money damages after the four-year period has run, a plaintiff may still be granted injunctive relief despite the delay.
Thus, if you have just now learned of past infringement of your trademark, trade name, brand, logo or other mark and want relief in Georgia, you may have a remedy in equity even though your claim is delayed. You should consult an experienced business attorney at Betts & Associates to ensure that your rights are protected.
What can I do when my business relationship with another goes sour through no fault of my own? This is a question that many of our clients ask us.
Fortunately, there are at least two actionable tort claims available in Georgia for a plaintiff who has been injured by wrongful interference with a business relationship: tortious interference with contractual rights and tortious interference with business relations.
These two distinct yet related torts require a plaintiff to show four common elements: that the defendant (1) acted improperly and without privilege, (2) acted purposefully and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff; and (4) for which the plaintiff suffered some financial injury. Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, (2011); Gordon Document Products, Inc. v. Service Technologies, Inc., 308 Ga. App. 445 (2011). In Georgia, without privilege means that the defendant must be a stranger to the contract and the underlying business in order to be liable. See Carey Station Village Home Owners Ass'n, Inc. v. Carey Station Village, Inc., 268 Ga. App. 461 (2004) (homeowners association not stranger to contract between developer and certain purchasers of subdivision lots).
Although these torts share common elements, there are a couple of subtle differences to keep in mind when deciding a theory of liability. First, a plaintiff asserting a cause of action for tortious interference with business relations must show that absent the interference, those relations were reasonably likely to develop down the road. Wilson v. City of Sardis, 264 Ga. App. 178 (2003). And, a plaintiff asserting a cause of action for wrongful interference with contractual rights must show the existence of a valid and enforceable contract. Wachovia Ins. Services, Inc. v. Fallon, 299 Ga. App. 440 (2009). Proof of a valid and enforceable contract need not be proved for interference of business relations.
A plaintiff need not wait to show that an interference resulted in breach to pursue tortious interference - he need only show interference that, because of the defendant's interference, a third party's performance of a contract was made more difficult, more expensive or actually caused the party not to perform the contract. St. Mary's Hosp. of Athens, Inc. v. Radiology Professional Corp., 205 Ga. App. 121 (1992).
In cases where a defendant's interference was not to an already existing business relationship or contract but to an anticipated business relationship, or economic expectancy, of plaintiff's, then, to make out a claim for tortious interference, the plaintiff must show that the defendant acted with malice and fraud, and present evidence that as a result of those malicious and fraudulent actions, the economic benefit or gift which would have flowed to him was diverted to the defendant. Ford v. Reynolds, 726 S.E.2d 687 (Ga. Ct. App. 2012).
If you feel like you have been a victim of wrongful interference of business relations or contract rights, then you should consult an experienced business attorney at Betts & Associates to ensure that your rights are protected.
Students are back in school after Christmas break and many parents are eager to see changes in their schools. Since the passage of the charter schools amendment Georgia voters approved last November and talks of new legislation that could give parents the option of having their schools changed from traditional public schools to charter schools, Georgia parents will no doubt want to get their legislators involved by taking action this session.
But will parent-driven changes actually lead to good outcomes for Georgia students? An article in today's Atlanta Journal Constitution reported that an advocacy group rated Georgia's school choice policies a D+, a low score compared to other states.
Talk to an experienced education lawyer at Betts & Associates to see how you can make a difference in a Georgia school.
A "trademark" functions as an identifier of goods or services, while a "trade name" primarily identifies the owner or operator of a business and may also be used to identify the goods handled by such owner. Stuart Enterprises Int'l, Inc. v. Peykan, Inc., 252 Ga. App. 231 (2001).
A person may acquire a trade name through long and extensive use of the name or through registering a business with the Georgia Secretary of State. However, if a person fails to register a trade name previously acquired, he will not be deprived of using the trade name if someone else does register the name. Giant Mart Corp. v. Giant Discount Foods, Inc., 247 Ga. 775 (1981); Pearl Optical, Inc. v. Pearle Optical of Ga., Inc., 218 Ga. 701 (1963).
There are numerous sources of protection for someone else using your trade name in the course of business. The Uniform Deceptive Trade Practices Act (discussed in a previous post) is one of them. Other forms of protection come from Georgia common law.
Moreover, a claim for common law trademark infringement is expressly excepted from the registration requirement of Georgia's trademark infringement statute. Diedrich v. Miller & Meier & Associates, Architects and Planners, Inc., 254 Ga. 734, 334 S.E.2d 308 (1985); SCQuARE Intern., Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347 (N.D. Ga. 2006).
If you are unsure whether your trade name or trademark are being adequately protected, make sure to contact an experienced business attorney at Betts & Associates to discuss your options with you over the phone or in person.