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Preserving Premature Rulings

The jury was still deliberating over the personal injury case in Showan v. Pressdee, No. 1:16-cv-00468-ODE (N.D. Ga.), when the senior U.S. district judge decided to “get the ball rolling” on an expected motion for damages for frivolous claims.

Georgia law allows a prevailing party to bring a motion “at the time that the verdict or judgment is rendered” asking the finder of fact to decide whether an opposing party presented a frivolous claim or defense. O.C.G.A. § 9-11-68(e). The statute requires the court to hold a bifurcated hearing where the finder of fact determines: (1) whether the party asserted a frivolous claim or defense; and (2) what damages, if any, to award. Id.

The plaintiff planned to make a motion under O.C.G.A. § 9-11-68(e) if he prevailed at trial. But rather than wait for the verdict, the court heard arguments and “dismissed” the plaintiff’s claim preemptively. See Showan v. Pressdee, No. 17-15547, 2019 WL 1891785 at* 9 n.10 (11th Cir. Apr. 29, 2019).

A less alert lawyer might have left it there. Instead, plaintiff’s counsel renewed his motion — knowing the court had already denied it — after the jury rendered a $330,000 verdict in his client’s favor. That was a good call.

The U.S. Court of Appeals for the Eleventh Circuit found the plaintiff had preserved his objection to the court’s ruling by making the motion a second time when the jury returned as required by O.C.G.A. § 9-11-68(e). Showan, 2019 WL 1891785 at* 9 n.10.

On appeal, the plaintiff won the reversal he sought solely on his objection to the court’s premature ruling. The Eleventh Circuit held that Georgia law required the district court in this diversity case to hold a hearing after the verdict. The jury would decide at the hearing whether the defendant’s claims or defense were frivolous and set damages. Showan, 2019 WL 1891785, at *14.

Practice Tip

When a statute requires a party to make a motion or take action at a particular time, do it at that particular time. If the court takes up the motion prematurely, renew the motion at the time required by law — even if you have already lost the motion. Otherwise, you will waive the right to appeal the court’s ruling.

©2011-2019 Carlton Fields, P.A.


About this Author

Richard Ovelmen Constitutional Law Attorney

For more than 30 years, Richard J. Ovelmen has practiced constitutional, land use, local government, media, class action, and intellectual property law, including particularly First Amendment, defamation, trademark and copyright litigation, litigation regarding access to government-held information, privacy, as well as antitrust and trade secret claims. His practice also includes appellate work in all courts, complex commercial litigation, Bert J. Harris Act Claims, litigation concerning developments of regional impact, local referenda and initiatives, and international litigation.

David Karp First Amendment Litigation Attorney
Of Counsel

David Karp focuses on appellate litigation and trial support with a special interest in First Amendment, media, and privacy law. He prepares briefs and argues appeals before the U.S. Court of Appeals for the Eleventh Circuit, the Florida Supreme Court, and Florida’s district courts of appeal. David also has significant trial court experience representing corporations in class actions and complex commercial litigation, including bad faith insurance cases, real property disputes, financial services cases, and government investigations.

David brings to his appellate advocacy more than a decade of experience crafting stories as a writer and editor at the St. Petersburg Times (now Tampa Bay Times). His work as an investigative reporter, interviewing witnesses and analyzing records to uncover facts, informs his approach to trial litigation. His writing has appeared in the Washington PostBoston Globe, and Best Newspaper Writing. His legal scholarship on appellate advocacy has been cited by numerous publications, including Vanity Fair, National Law Journal, and The New York Times.

David clerked for the Honorable Susan C. Bucklew, U.S. District Judge for the Middle District of Florida, and assisted the judge when she sat by designation on the U.S. Court of Appeals for the Eleventh Circuit.