Atlanta Business Litigation Attorney
If you are involved in a business dispute, you should consult with an experienced Georgia business litigator. Many large law firms have the required expertise, but are not a cost effective option. We evaluate legal and business problems from the perspective of trial lawyers and business people. We have successfully litigated multi-million dollar commercial matters.
Robert J. Fleming is an experienced Atlanta business trial lawyer who represents clients in commercial and business disputes. In addition to a law degree, Mr. Fleming has earned an MBA in finance, has acted as general counsel to a number of businesses, and has a successful business background. This unique skill set has enabled Mr. Fleming to achieve record successes for his business clients. Some of the different types of cases we handle are:
Most large corporations try to force people into executing one-sided contracts, and then insist on fully enforcing the terms. However, many of these contracts are not enforceable because they are considered onerous or contracts of adhesion. A contract is unenforceable if it is found by a court to be so one-sided that it is flagrantly unfair. Many times the terms of a consumer contract are so unfair to the customer that the court refuses to enforce the contract. This is the genesis of much of the business litigation in Georgia. While not every unfair contract is unenforceable, many of them are. In addition to this defense, there are many other defenses available to inhibit the enforcement of a business contract. Much depends on the facts of the particular case and the precise wording of the contract provisions.
Applicable Georgia Law
The construction of a contract is a question of law for the Court. O.C.G.A. Section 13-2-1. (1) If the contract language is unambiguous, those terms are enforced, (2) if the language is ambiguous, the Court applies the rules of construction to resolve the ambiguity, and (3) only if an ambiguity remains is the meaning of the contract to be determined but the jury. Under the second step of this process, even ambiguous contracts are to be construed by the court and this is so even when the contract is difficult to construe.
Ambiguity exists when the language may be understood in more than one way. Language that is unambiguous will not be construed as ambiguous based on extrinsic circumstances. Walton v. Datry, 363 S.E.2d 295 (Ga. App. 1987). Where the language of the contract is unambiguous, and no construction is necessary or even permitted, the contractual language must be afforded its literal meaning and it is the duty of the court to enforce the contract as written. First Data POS, Inc. Willis 546 S.E.2d 781 (Ga. 2001).
O.C.G.A. Section 13-2-2 sets out 9 non-exclusive rules of construction, of which the following are most relevant:
One important non-statutory rule of construction is: Where the purpose of a contract would be defeated by one interpretation of a clause but would be given effect by another interpretation, the meaning ascribed to the clause will be the one that gives effect to the main apparent purpose of the contract. Wright v. Piedmont Eng. & Constr. Co. 126 S.E.2d 865 (Ga. App. 1962).
Article 2 of the UCC also recognizes and exception to the parole evidence rule in that it allows an agreement to be explained or supplemented (but not contradicted by) course of dealing between the parties and OCGA 11-2-208 states that express terms, course of performance, and course of dealing or usage shall construed whenever reasonable as consistent with each other.
The most successful way to avoid being forced to litigate over a one-sided contract is to not enter it in the first place. Often, clients come to me after the fact and wish to enforce contracts that the client (or their former attorney) drafted. In some cases, even though their prior business attorney drafted the contract, it does not provide the protection they need. The way to avoid this is for you and your lawyer to have a clear understanding of what your business is, who you will be doing business with, what concerns you wish to protect against and what outcome you wish to achieve under different scenarios that could take place under the contract. Importantly, this should all be covered prior to the contact being drafted.
Common concerns related to Georgia contracts usually include where you are comfortable litigating if the contract is breached (venue clause); how and to whom notice should be sent if notice under the contract is required (notice provision); to what extent either party is liable to the other for damages (damages clause); to what extent the parties can rely upon prior agreements, oral representations, and subsequent oral or written statements (merger clause); indemnification and limitation of liability clauses; subrogation clauses; what constitutes a default under the contract and which remedies are available upon default; whether the prevailing party is entitled to recoup its attorneys‘ fees if forced to litigate under the contract; and which state’s law will govern any disputes under the contract (governing law provision).
While lawsuits are sometimes unavoidable, we make every effort to protect our clients‘ interests by advising them of their rights and obligations under a contract prior to a lawsuit being filed. In may cases, this can avoid the need for costly and protracted litigation. We represent Georgia partners and shareholders who desire to leave their firms and start a competing business. We also represent individual employees who are planning to leave their employer and work for a competitor (here in Georgia or elsewhere) or start a competing business. This usually involves negotiating a severance package and analyzing the departing employee’s duties under any existing non-solicitation, non-compete and non-disclosure agreements which may have been in the original employment agreement or which appear in the proposed severance agreement.
If you are involved in an Atlanta business dispute and would like help in evaluating the merits of your case, please call Robert J. Fleming, at (404) 525-5150 or contact us online. We are here to help.