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Lanier Golf owners awarded attorney’s fees

Ruling likely to be appealed

POSTED: May 1, 2013 12:30 a.m.
 

A neighbor of Lanier Golf Club and his lawyer have been ordered to pay nearly $87,000 in attorney’s fees for a portion of their multi-year lawsuit.

Visiting Judge Frank C. Mills heard arguments in Forsyth County Superior Court in December for the golf club owners’ motion for attorney’s fees in what they called a frivolous lawsuit.

The case originated in October 2007 when Michael Peck, who lives adjacent to the 172-acre course, filed suit against Lanier after the owners announced plans to sell the site for development.

Peck's suit was based on the grounds of an implied covenant when he bought his property.

Mills’ order, filed Friday, states that Peck and his attorney, Bob McFarland Sr., must pay all legal expenses incurred by the golf club owners after Sept. 8, 2008, which total $86,524.65.

On that date, a judge denied class action for the 25 plaintiffs seeking to join Peck in the suit, “finding that plaintiff could not prevail on the merits,” Mills wrote.

The 2008 order by Judge Albert Pickett determined that the course was not under a restrictive covenant.

Mills’ order finds that “all fees incurred after September 8, 2008 were incurred in defending an action that had been prolonged frivolously and for purpose of harassment or delay.”

He continued: “Arguments beyond that date were not a true attempt to create a novel point of law, but were, in fact, the assertion of a claim with respect to which there existed a complete absence of any justiciable issue of fact.”

McFarland disagrees that any portion of the case was frivolous. He plans to submit an application requesting the Georgia Court of Appeals to hear the matter.

“The unfortunate thing is under Georgia law, you don’t have the right to appeal, you have to make an application to appeal,” McFarland said.

The court then decides whether to grant that appeal, which McFarland expects it will in what he called a “case of first impressions.”

Attorney’s fees have not been granted before in a case of class action, one in which the appeals court reversed the trial judge once, and certainly not one reversed by the appeals court twice, McFarland said.

“I would think they would take that case because there’s not any other case like that,” he said.

Pickett’s September 2008 ruling was reversed in the first appearance in the state appellate court, he said.

In the second appeal, Peck was denied class-action status in the matter, but the court ruled that he still had a case, McFarland said.

Afterward, the course owners filed their request for summary judgment, which was granted by the trial court and upheld by the appeals court.

“Obviously, my position is that there’s never been anything frivolous,” McFarland said. “Even Judge Mills says in the order that initially the case was not frivolous … He said it’s all frivolous after [the Pickett ruling]. Well, after that, the court of appeals reversed him and reinstated the case. Obviously, we’re puzzled.”

The application to appeal must be filed prior to May 26.

Andrea Cantrell Jones, an attorney representing the club owners, said they were “obviously pleased” with Mills’ judgment.

“Hopefully, that’s the end of the case and the attorney’s fees will paid and we’ll be done,” Jones said.

The owners hope to be able to develop the site as a residential community and master planned district, according to a county rezoning that concluded a separate lawsuit.

That suit, also filed in 2007, saw the owners sue the county after the commission denied their request to rezone the site from agricultural to a master planned district.

An order from Judge Roger E. Bradley in May 2011 required the commission “to rezone the property to a constitutional zoning classification,” which was done in July.

The front 93.8 acres were rezoned from agricultural to a master planned district, with a conditional use permit for a continuing care retirement center.

The 78.6 acres in the rear of the site were rezoned from agricultural to Res 2, or residential with 1.5 to 2 units per acre.

That rezoning spurred two suits in August 2011 against the county and the golf club, one of which was dropped in January by resident group Save Lanier Golf Club.

The other suit, filed by Pedro Pedro Techologias, a corporation run by William Pulford out of his home on Fairway Lane, has a court date for May 15 on the defense’s motion for summary judgment.

 

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