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Archive for January, 2017

Eleventh Circuit Rules: Attorney’s Fees for Everyone! (Including Sureties and General Contractors)

Posted on: January 31st, 2017

By: Jake Carroll

In U.S.A. f/u/b/o RMP Capital Corp. v. Turner Construction Co., et al., 2017 WL 244066 (11th Cir. 2017) (unpublished), the Court of Appeals for the Eleventh Circuit clarified a previously undecided area of law in holding that general contractors and its insurer sureties may recoup attorney’s fees under the Miller Act.

In the underlying case, Turner, the general contractor, contracted with the Department of Veterans Affairs to construct a portion of the Community Living Center in Orlando, Florida. Pursuant to the Miller Act, Turner obtained a payment bond from several sureties. Inevitably, a dispute arose between Turner and a subcontractor regarding allegedly deficient work, and Turner did not pay the subcontractor the full contract amount. The subcontractor later assigned its accounts receivable to RMP, who brought suit against Turner and its sureties under the Miller Act. RMP determined on the first day of trial that it would drop its Miller Act claims, which prompted Turner and the sureties to move for attorney’s fees, based on the subcontractor’s contract. The district court denied the motion, finding that while Eleventh Circuit precedent supports an award for attorney’s fees for subcontractors, it does not afford the same to general contractors. Turner and the sureties appealed.

The circuit court reversed the district court, and clarified that while the Miller Act does not mention attorney’s fees, Eleventh Circuit precedent dictates that “attorney’s fees are a recoverable item under [a] Miller Act bond” when provided for in a contract. This includes attorney’s fees for both subcontractors and general contractors. The holding brings the Eleventh Circuit in line with several other circuits, including the 1st, 4th, 5th, 8th and 9th. In making its determination, the court relied on the American Rule, which states that each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise. Of course, while federal law may govern the availability of attorney’s fees in Miller Act cases, state law governs the interpretation of a contract provision allowing for attorneys’ fees. See U.S. ex rel. W.W. Gay Mech. Contractor, Inc. v. Walbridge Aldinger Co., 543 Fed. App’x. 937 (11th Cir. Nov. 1, 2013).

The opinion reminds every construction professional and attorney for both subcontractors and general contractors to: (1) practice careful contract drafting; and (2) always read the contract before seeking legal action. Courts have repeatedly upheld contractual provisions, and parties should be well-aware of the terms of the agreement not only during the project, but also when pursuing legal action. For RMP, the cost of this litigation is not limited to the $240,000.00 that went unpaid by Turner, but may also include an additional $47,580.91 in attorney’s fees for bringing suit in the first place.

For any questions, please contact Jake Carroll at [email protected].

Can Wrongdoers Do No Wrong?

Posted on: January 31st, 2017

By: Kevin R. Stone

In Goldstein, Garber & Salama, LLC v. J.B., the Georgia Court of Appeals was faced with a case in which a nurse anesthetist (Paul Serdula) sexually assaulted a dental patient (J.B.) while she was sedated for a surgical procedure.  Serdula pleaded guilty and went to prison.  J.B. filed a civil lawsuit against the dental practice (GGS) where the assault occurred.  At the time of trial, Serdula was not a defendant in the lawsuit.  Still, he was included on the verdict form so the jury could apportion fault between him and GGS.  Surprisingly, the jury determined that (1) Serdula, who committed the intentional assault, was 0% at fault; and (2) GGS was 100% at fault for Serdula’s actions, leaving it on the hook for the entire $3.7 million verdict.

The Court of Appeals held that the verdict was not void or plainly erroneous even though a literal reading of it indicates that Serdula, who undisputedly committed the assault, bears no fault.  In his dissent, Judge Ray astutely noted that “A finding that Serdula did not contribute to J.B.’s injuries is wholly incomprehensible.  A finding that Serdula was not at fault would logically be a finding that he did nothing wrong.  If he did nothing wrong by molesting J.B., how then can GGS be liable for negligently placing him in the position to molest her?  A finding of no fault on Serdula’s part would seemingly equate to a finding of no fault on GGS’ part.”

The issue is now before the Georgia Supreme Court (Case No. S16G0744) and the consequences of the outcome are far-reaching.  If the opinion stands as is, it allows a jury to hold an allegedly negligent actor at 100% fault for intentional, criminal acts that were undisputedly committed by someone else.  The Georgia Defense Lawyers Association (GDLA) submitted an amicus brief in support of the dissent’s view of the apportionment issue.  We will continue to follow this case and keep you updated.

For any questions, please contact Kevin Stone at [email protected].

Mind Your Manners

Posted on: January 30th, 2017

By: Sara E. Brochstein

It is widely known that the Fourth Amendment protects citizens from unreasonable searches and seizures. While this is often considered in the context of an arrest, it also applies to a mental health seizure where an officer stops an individual to ascertain that person’s mental state. An officer is generally warranted to make such a seizure if the officer has probable cause to believe the person is a danger to himself or others. 

However, the analysis does not end there; a seizure supported by probable cause could be rendered unconstitutional if carried out in an inappropriate manner. While we most often see this issue arise in excessive force cases, it is important to remember that physical force is not the only conduct that can make an otherwise justified seizure unreasonable. The Eleventh Circuit recently found that, while an officer making a mental health seizure may have had adequate justification for the seizure (i.e., there was probable cause to believe the person was a danger to herself or others), the officer was not entitled to qualified immunity in light of the manner in which he conducted the seizure. 

In Phillis J. May v. City of Nahunta, Georgia, et al, an armed male officer was alone in a locked room with an elderly female citizen. The officer ordered the woman, under the implicit threat of force, to disrobe in front of him to change into more suitable clothing so that he could transport her to a hospital. The Eleventh Circuit described these actions as “clearly inappropriate” and denied the officer qualified immunity on summary judgment. Although it may have been reasonable for the officer to transport the citizen to the hospital and even require her to change clothes beforehand for safety reasons, the manner in which the officer accomplished this task was inappropriate. 

Given the recent focus on highly publicized episodes of use of force by police, it is easy to forget that physical force is not the only means through which to render unconstitutional a seizure, which may otherwise be lawful. In other words, even when probable cause is present, conduct that is unusually harmful to an individual’s privacy or physical interests can be unconstitutional and result in loss of immunity for law enforcement officers.

For any questions, please contact Sara Brochstein at [email protected].


Trial Court Upholds City’s Zoning Decision

Posted on: January 24th, 2017


A Fulton County Court recently issued a final judgement in favor of FMG’s city client in a case tried by partner Dana Maine. This is Ms. Maine’s third consecutive trial success in the last 5 months, including a successful jury trial defense verdict. In the most recent case, the city had denied an application to rezone a parcel of property to allow for apartments. Finding that the property owner had not demonstrated that it suffered from a significant detriment from the exisitng zoning which allowed for commercial development, the Court ended its inquiry. Thus, the trial court ruled that it need not reach the issue of whether the property owner had demonstrated the lack of public benefit from the existing zoning. As the economy continues to improve, we are seeing an uptick in zoning cases, and claims of this type are becoming more frequent. For further information on this case, please contact Ms. Maine at 770.818.1408 or [email protected].


Changes May Be Coming for H-1B Visa Program

Posted on: January 12th, 2017

By: Timothy Holdsworth

Recently, Representative Darryl Issa (R-California) re-introduced legislation that would work several significant changes to the H-1B visa program by “closing a loophole” in the current legislation. Currently, Companies must first take good faith steps to recruit and offer a position to an American worker prior to filing an H-1B application unless the H-1B worker receives wages of at least $60,000 or has attained a master’s or higher degree in their field of work. Rep. Issa seeks to increase this threshold to $100,000, with annual adjustments for inflation, and eliminate the masters degree exemption (full bill here).

Rep. Zoe Lofgren (D-California) plans to introduce legislation that also eliminates the master’s degree exemption, but increases the wage exemption to over $130,000. Rep. Lofgren’s bill would also eliminate the lottery system and prioritize allocation of H-1B visas first to employers that hire mainly American workers and then to H-1B-dependent employers based on how much they pay their employees above the prevailing wage for their area of employment. Under the current lottery system, the U.S. Citizenship and Immigration Services performs a computer-generated process to randomly select 85,000 visas to review and rejects the remaining applications outright. Rep. Lofgren’s bill would also set aside 20% of the annual allocation of visas for small and start-up employers (those with 50 or fewer employees).

These proposed changes are not surprising given President-elect Donald Trump’s statement during his campaign that he will “end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions.”

Although any changes are unlikely to be instituted before this year’s filing period, we will continue to keep you apprised of any modifications to the H-1B visa program and are available to guide you through each step of the current process.