Wednesday October 18th, 2017 11:48PM

SCOGA to hear appeals out of Habersham, White counties

By Ken Stanford Reporter
ATLANTA - The Supreme Court of Georgia (SCOGA) Monday is to hear appeals by the city of Baldwin in a dispute over a contract with an engineering firm and a White County man who was convicted of aggravated assault growing out of an incident in Helen in 2008.

The city of Baldwin is appealing a ruling by the Georgia Court of Appeals that it must pay $203,000 to an engineering firm for work it did on the city s wastewater treatment plant. The city argues there was never a valid contract for the work.

In the other case, a man convicted of aggravated assault in White County is appealing a Georgia Court of Appeals ruling that the trial judge was not authorized to later grant him a new trial on the ground that he was immune from prosecution.

Here are the postings from the state Supreme Court, outlining, in details, the particulars of each case:


FACTS: In 2008, federal stimulus funds became available for construction projects through the Georgia Environmental Financing Authority. The city of Baldwin had an old wastewater treatment plant in need of repairs, so it approached Woodard & Curran, Inc., an engineering and design firm, to help it apply for the funds. In May 2009, the city and firm entered into a contract stating that for $5,000, Woodard and Curran would provide supporting engineering documents for the city s funding application for the stimulus funds. The May agreement also stated that  under separate covers we will be preparing a scope, budget and schedule for the actual design work and a grant application to fund the development of a master plan for the wastewater system. In June 2009, the firm submitted a proposal which contained a schedule of the work and a scope of services for a total fee not to exceed $210,000. Then-Mayor Michael Kelley signed the June proposal, authorizing the firm to proceed with the work necessary to continue the application process, which included hiring surveyors, hiring geo-technical core drillers, getting bids for the work, and completing the design plans. The city paid Woodard & Curran the $5,000 as it had contracted to do. But when the engineering firm submitted an invoice to the city for $203,870.44, after completing a substantial amount of the work, the city denied payment, claiming the June proposal was  ultra vires  or unauthorized  and therefore not binding because it had not been approved by a quorum of the city council, as the city charter required. The city also claimed that the June 2009 proposal was to secure the stimulus funds and the firm failed to get them. (The stimulus funds had dried up before the city submitted its application.)

Woodard & Curran then sued the city in Habersham County Superior Court, seeking $210,000 for breach of contract or, in the alternative, $203,870.44 as the value of the services it had already provided. At trial, a tape was played for the jury of a city council meeting in September 2009 where representatives of Woodard & Curran told the city officials about the work they had completed and the work that still needed to be done before filing the application for funds. The jury returned a verdict in favor of Woodard & Curran for $203,000. On appeal, the Court of Appeals upheld the verdict. The city now appeals to the state Supreme Court.

ARGUMENTS: The city s attorneys argue that under the state Supreme Court s 2005 decision in H.G Brown Family Limited Partnership v. City of Villa Rica, a legal claim for services rendered  or a claim under the  quasi-contractual theory of quantum meruit  is not an available remedy against a municipality when the municipality has entered into a contract that is unauthorized. Under Brown, the state Supreme Court ruled that if a city charter  specifically provides how a municipal contract shall be made and executed, the city may only make a contract in the method prescribed; otherwise, the contract is invalid and unenforceable.  The June proposal was never presented in a public meeting subject to the notice requirements of [Georgia statutory law], never agreed to by a quorum of the city council in a public meeting, and never had council approval entered in the public city council minutes pursuant to& the Baldwin city charter, the attorneys argue in briefs. It was always the council members understanding that nothing over $5,000 would be owed to Woodard & Curran until funding was committed to the project, as clearly stated in the May agreement.  The June Proposal never received committed funding, a precondition to the assessment of additional fees according to the plain language of the May agreement, the lawyers contend. The Court of Appeals also erred, they argue, in determining that the jury was allowed to consider the breach of contract claim concerning the May contract. The May agreement states that additional services would be provided for  under separate cover   that is, in a separate agreement, the attorneys argue. The May agreement also states that  additional engineering fees will only be contracted once funding has been committed. Furthermore, the May agreement contained no price terms.  The concept that the May agreement authorizes the provision of additional services at an unstated price is befuddling not only under the language of the May agreement itself but also under the law of this state, the city s attorneys argue.  Where an agreement clearly contemplates that there must be a subsequent agreement to set the amount of money due thereunder, the agreement is merely an agreement to negotiate in the future.

Attorneys for Woodard & Curran argue that under Brown, the  quasi contractual theory of quantum meruit is an available remedy against a municipality under the facts of this case. Woodard & Curran  is entitled to be paid for the work which it performed that was accepted by the City pursuant to the May contract, or alternatively, pursuant to quantum meruit, the firm s lawyers argue in briefs.  The agreement at issue was not [unauthorized] due to the inability of the city to contract upon the matter. Rather, the subject matter of the contract was one where the city did have the power to contract, but the city failed to follow its own charter and obtain the requisite approvals, which was a procedural defect, thus allowing a quantum meruit claim. There is no evidence that the city lacked the authority to hire the engineering firm to complete the work, if they had the required approvals. Second, the Court of Appeals did not err in determining that the jury was properly allowed to consider the breach of contract claim concerning the May contract. The contract language does not mean that a separate contract would be submitted under separate cover.  The lack of a specific pricing term in the May contract, and the agreement to supply the pricing specifics  under separate cover is not fatal to the validity of the May contract under Georgia law where the price was indeed supplied under separate cover as agreed, thus completing the essential contract terms, the lawyers argue. Even the city s three witnesses, including the former mayor, testified that the work resulting in the $203,000 bill was performed based on the May contract, which was a valid contract.

Attorneys for Appellant (City): R. David Syfan, Jessica Lund

Attorneys for Appellee (Woodard & Curran): James Weidner, Ernest Woods, III


A man convicted of aggravated assault in White County is appealing a Georgia Court of Appeals ruling that the trial judge was not authorized to later grant him a new trial on the ground that he was immune from prosecution.

FACTS: Mark Allen Hipp and his son, Mark Allen Hipp, Jr. regularly played pool at various around Helen, GA. The night of Sept. 12, 2008, they were playing at the Hayloft with Timmy Rolsen, who was there with friends. Toward the end of the game, Rolsen began trying to distract Hipp, Jr. by rubbing his hands across the table and dancing in front of the pocket. Hipp told Rolsen to stop and when Rolsen refused, Hipp shoved him. According to the defense, Rolsen s angry drunken friends then advanced upon Hipp who pulled out a folding knife but never opened it. According to the state, after Hipp shoved Rolsen, he immediately pulled out a folding knife and snapped the blade open. The bar s owner took the knife from Hipp and called police. Hipp was later indicted for Simple Battery for shoving Rolsen and for Aggravated Assault for pulling the knife on him. His attorney filed a motion seeking a pre-trial determination that he was immune from prosecution under state law because he had acted in self-defense. The judge held a hearing and denied the motion the same day, finding that the evidence suggested mutual combat rather than self-defense. The case went to trial where his attorney argued Hipp was justified in pulling the knife, and where the state was permitted to present to the jury evidence of five  similar transactions, including an incident in which Hipp had once forced Hipp, Jr. off the road by ramming his truck with a car, and a pair of domestic assaults against his former wife, one of which involved him striking her with a book, and the other of which took place in front of Hipp, Jr. A woman and her boyfriend testified about a fourth assault in which Hipp pulled a gun on them, and another couple testified about a fifth incident in which Hipp had intentionally rammed their vehicle.

In November 2009, the jury found Hipp guilty of both charges. Hipp s attorney filed a motion for new trial. Following a hearing on the motion, in May 2011, the trial judge ruled that the evidence was sufficient to support Hipp s convictions, but she granted the motion for new trial, in part based on her finding that she was in error for not initially ruling that Hipp was acting in self-defense and immune from prosecution. The state appealed, and the Georgia Court of Appeals reversed the lower court s ruling, noting that under state law, a court may only decide a motion for immunity  before, not after trial, and that the trial court s post-conviction grant of immunity to Hipp  was not authorized by the evidence and impermissibly invaded the province of the jury. The Court of Appeals also noted that  the trial court s determination that the State proved beyond a reasonable doubt that Hipp committed the crimes charged is irreconcilable with its finding that Hipp proved by a preponderance of the evidence that he acted in self-defense. Hipp now appeals to the state Supreme Court.

ARGUMENTS: Hipp s attorney argues that a trial court is authorized to correct its own rulings and the Court of Appeals erred by failing to distinguish between  immunity as used in one statute and  justification as used in another.  The idea that once a jury has heard the case a defendant loses his right to a review of immunity is a misunderstanding of the distinction between immunity and justification, his attorney argues in briefs.  Immunity as asserted at a pre-trial immunity hearing and justification as argued at trial in the form of self-defense are two separate and distinct defenses. The two theories have different burdens and standards of proof. The trial court also has inherent power to revise its own order in the same court term that it made the order.  The trial court acted within her broad plenary powers in granting Appellant s Motion for New Trial and correcting her earlier erroneous ruling, Hipp s attorney argues. The very purpose of a motion for new trial  is to allow the trial court to correct its own error before or instead of the matter having to be heard by an appellate court. While the actual evidence heard at trial may have supported the jury s verdict,  no trial should have occurred, the attorney argues.

The state argues the Court of Appeals ruled correctly and that while immunity and self-defense are invoked at different stages of the court process,  both require that a defendant s conduct be justified under [Official Code of Georgia] § 16-3-21 in order to relieve them of criminal responsibility. The statute says a  person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other s imminent use of unlawful force& . But a  person is not justified in using force& if he& [w]as the aggressor or was engaged in a combat by agreement& . Both a request for immunity and self-defense rely on the same underlying claims.  Simply put, there is no  immunity defense, as Appellant misleading refers to it, the state argues in briefs.  Immunity is the result of asserting a defense of justification prior to trial, as opposed to during trial, not the defense itself. The defense remains one of justification& . Here, after hearing from many witnesses, including Hipp, Jr., the jury rejected Hipp s justification defense.  The grant of a motion for new trial on a claim of justification that has been rejected by the jury is outside the trial court s authority to revise its own orders, the state contends. There is  a profound difference between a trial court s changing its own rulings and reversing a jury verdict by accepting a defense that the jury has rejected.  The trial court s grant of a motion for new trial substituted the court s judgment for that of the jury and was an improper exercise of the court s discretion, the state argues.

Attorney for Appellant (Hipp): Jeffrey Wolff

Attorneys for Appellee (State): Jeffrey Langley, District Attorney, Jeremy Clough, Sr. Asst. D.A.
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