Electronically Filed Erica L, Woodford, Cler Bibb County Supetior Cour Docket Date: 8/14/2017 2:08:54 PM Raven Alston IN THE SUPERIOR COURT OF BIBB COUNTY STATE OF GEORGIA KENNETH JOHNSON, et al. Plaintiffs CIVIL ACTION FILE NO. 2017-CV-067039 vs. BRANDON BELL, et al. Defendants MOTION OF LCSO DEFENDANTS TO DISMISS COMPLAINT. AND MEMORANDUM OF AUTHORITIES Purstuant to 0.C.G.A. § 9-11-12(b)(1} and O.C.G.A. § 9-15-14(g), Defendants Chris Prine, the Lowndes County Sheriff's Deparment [sic], James Thomton, Jack Winningham, Wanda Edwards, Stryde Jones, Aaron Pritchett, Logan Henderson, Randy Lightsey, Michael Adams, Jack Priddy, Kerry Quinn, Christi Griffin, Bryce Whitener, Christopher Burke, Roy [sic] Black, ‘Howard Fisher, Mark Maskule, Roy Hart and John Marion (collectively the “LCSO Defendants” or “these Defendants") file this MOTION TO DISMISS COMPLANT ad SUPPORTING MEMORANDUM OF AUTHORITIES and show the Court as follows: Motion to Dismiss Complaint for Lack of Jurisdiction 1. Plaintiff’ filed their complaint in this action on or about July 7, 2017. 2. Plaintiffs claim at page 3 of their complaint that “All court costs associated with any previously filed action reasserted herein have been paid in full following the submission of good faith inquiry to the Clerk’s office by [Plaintiffs counsel] ....” 3. The Affidavit of Plaintiffs’ counsel attached to the complaint avers at ]2 “That on July 5, 2017, visited the clerk's office for the Superior Court of Lowndes County and determine Inthe Supa Cot of Bib Couiy ha (Giml Action Fle Ne, 2007-C8-087009 Kenneth Jatncen,e a, 7 Seesdon Bll, ea Pagel ot[sic] that all court costs associated with any previously filed action reasserted herein have been paid in fall.” 4. Plaintiffs have previously had pending at various times four (4) different cases in the Superior Court of Lowndes County against the same parties that are defendants in this case. 5. Those four (4) Lowndes County cases are captioned as set forth on the Order Granting Defendants’ Motions jor Attomeys’ Fees and Expenses of Litigation, a true and correct copy of which is attached hereto as Exhibit A. 6. Those four (4) Lowndes County cases were all dismissed by Plaintifis on or before March. 1, 2016." 7. After those cases were dismissed, many of the defendants moved the Court for an award of attomeys? fees and expenses of litigation pursuant to O.C.G.A. § 9-15-14. 8 On August 18, 2016, the Court in Lowndes County communicated its decision to grant the defendants’ Motions for Attomeys’ Fees, and indicated the Court’s intention to reconvene a hearing to determine the amounts to be awarded to cach of the movants. See Notice of Filing, aitrue and correct copy of which is attached hereto as Ext B, 9. After litigation protracted by Plaintiffs and their counsel over the amounts of fees and expenses to be awarded, the Lowndes Superior Court entered the Order Granting Defendants’ Motions for Attorneys’ Fees and Expenses of Litigation on August 7, 2017. That Order incorporated the Court’s August 18, 2016 determination that the defendants? Motions for Attomeys” Fees would be granted and that fees and expenses would be awarded to each of the movants in some amount. See Exhibit A, 26. 1 After the dismissal ofthe four (4) Lowndes Couniy caves but befere coming tothis Court, Plains sued all ofthe same defendants in United States District Court for the Middle District of Georgia (Civil Action No. 7 16-CV-141) ‘The District Court Indge dismissed that cose for lace of service en any of the defendants on June 13, 2017 Inthe Supa Cot of Bib Couiy ha (Giml Action Fle Ne, 2007-C8-087009 ennathJatncen, ea, 7 Seesdon Bll, ea Page ot10. As evidenced by the Order Granting Defendants’ Motions for Attorneys’ Fees and Exponses of Ligation, the Lowndes Superior Court has awarded attorneys” fees and expenses in favor of defendants and against Plaintiffs and their counsel in the total amount of $292,105.67. * 11. “An award of reasonable and necessary aitomey’s fees or expenses under [O.C.G.A. § 9- 15-14]... shall be made by an order of the court and be enforceable as amoney judgment.” OCGA. § 9-15-14(0) 12, “Attomey’s fees and expenses of litigation awarded under [0.C.G.A. § 9-15-14] ina prior action between the same parties shall be treated as court costs with regard to the filing of any subsequent action.” 0.C.G.A. § 9-15-14(g). 13. The alfomeys” fees and expenses of litigation awarded to defendants in Plaintiffs’ prior actions against defendants are costs which must be paid before this action can proceed. 14, Plaintiffs and their counsel have not paid the costs in the prior actions 15. This court is without jurisdiction over the defendants 16. This case should be dismissed, Memorandum of Authorities Payment of costs is a jurisdictional matter and can never be waived. Tusker v. Mitchell, 252 Ga, $45 (1984) “[[]a the absence of payment of costs there is no suit pending.” Z2. The court has no jurisdiction and there is no suit pending until Plaintiffs and their counsel pay the costs that they have been ordered to pay based on their sanctionable conduct in their prior suits against all of the defendants. 2 the Lowndes Superior Court also fcund thet Plaintiffs’ counsel tock action to delay rulings ofthe Cou, including theruling awarding atlomeys’ feesto defendants Inthe Supa Cot of Bib Couiy ha (Giml Action Fle Ne, 2007-C8-087009 Kenneth Jatncen, ea, 7 Seesdon Bll, ea Page? otAttomey’s fees imposed as sanctions under O.C.G.A. § 9-15-14 are “costs” that must be paid before filing any subsequent action between the same parties. O.C.GA. § 9-11-15(g). Plaintiffs dismissed their suits against these same Defendants on or before March 1, 2016. Thereafter, almost all defendants filed motions for atlomey’s fees under O.C.G.A, § 9-15-14, ‘These motions were pending before Plaintidfs tried to re-new their claims in federal court in a case (see foomote 1) that has been dismissed, These attomeys’ fees motions were pending, and the Lowndes Superior Court had determined that fees and expenses would be awarded prior to Plaintiffs’ filing of the present suit in Bibb County. Generally, the law is that costs to be paid before re-filing a case do not include costs ‘unknown to aplaintiff after a good-faith inquiry. Sze Kroger Co. v. Michaels, 359 Ga. App. 626 (1987), While Plaintiffs and their counsel assert a good-faith inquiry in their complaint, that assertion is unavailing, if not false. The Kroger case retumed to the Court of Appeals two years later, Michaels v. Kroger Co., 193 Ga. App. 40 (1989), and the holding refutes any claim that not knowing the amounts of the costs permits the case to proceed, “Unpaid costs in a previous action which are unknown afier a good-faith inquiry, but discovered ajfer the filing of a.new action must be paid vathin a reasonable time in order to preserve jurisdiction.” (Emphasis added). £2. at 41 citing Daugherty v. Mrville Jndus., 174 Ga. App. 89 (1985). Here, Plaintifi’s and their counsel have known since August 18, 2016, the date the Lowndes Superior Court informed counsel for all the parties that the Court would award fees and costs were being imposed. Plaintiffs’ obligation to pay costs is mandatory under 0.C.G.A. § 9-15-14() and O.C.G.A. § 9-2-61.In Zroger, the Court of Appeals affirmed summary judgment for defendant on the grounds that “[plaintiff’s] obligation to pay those costs was mandatory and we conclude they ‘were not paid in a reasonable time.” Kroger Co., 193 Ga App. atl. Inthe Supa Cot of Bib Couiy ha (Giml Action Fle Ne, 2007-C8-087009 Kenneth Jatncen, ea, 7 Seesdon Bell, ea Page’ ot‘Unless Plaintiff’ and their counsel pay defendants” attorneys’ fees and expenses as awarded by the Lowndes Superior Court, these Defendants respectfully request that the Court enter an order dismissing Plaintifis° complaint against all defendants for lack of jurisdiction. * This 14" day of August, 2017, ELLIOTT, BLACKBURN & GOODING, PC (si James L. Elliott, James L. Elliott GA Bar No. 244244 Elliott, Blackbum & Gooding, PC Aitomeys at Law 3016 North Patterson Street Valdosta, GA 31602 Phone: 229-242-3333 Fax: 229-242-0696 2 Stiould Plaintsfls pay the costs within a reasonable tine — these Defendants suggest fourteen (14) days — or should the Court determine that dismissal is not appropriate at this time, this case should be transferred to the Superior Court of Lowndes County under the Unifcem Transfer Rules. Venue in Bibb County is purportedly predicated upon the residence in Bisb County of one or more of the defendants identified as OBI Agents, However, the Gecegia Tort Claims Act preckides suit against individual agerts As has bean shown by the Mition ta Dismiss the defendants ‘denbied as GBT agents, those defendants tnust be dsstrissed for Tack of jurssdiction inasmuch as they are no subject to suit, ‘The vast macedy of the remaining defendants are in Lowndes County. Ifthe case isnot ciamissed, it should be transferred to Lowndes County where venue would beg roper in the event that jurisdiction exists over the remaining defendants Inthe Supa Cot of Bib Couiy ha (Giml Action Fle Ne, 2007-C8-087009 ennathJatncen, ea, 7 Seesdon Bll, ea Page's otThis is to certify that I have this day served a copy of the foregoing upon all parties to this action by depositing copies in the United States mail, first-class postage prepaid, as follows: Chevene B. King, Ir ‘The CB. King Law Finn Post Office Drawer 3468 Albany, GA 31706 Brice Ladson Ladson Law Firm, PC P.O. Box 2819 Richmond Hill, GA 31324 Patrick O*Conner Paul Threlkeld Oliver Maner, LLP P.O. Box 10186 Savannah, GA 31412 John Gee Edwards Attomey At Law 108 East Valley Street Valdosta, Georgia 31601 ‘This 14 day of August, 2017. George T. Talley ‘Timothy M. Tanner Coleman Talley LLP P.O. Box 5437 Valdosta, GA 31603-5437 L, Warren Turner, Jr. P.O, Box 157 Valdosta, GA 31603-0157 Wayne S. Melnick Freeman, Mathis & Gary, LLP 100 Galleria Parkway, Suite 1600 Atlanta, GA 30339 Ronald 8. Boyter. Jr. Office of the Attomey General 40 Capital Square SW Atlanta, GA 30334 Byron D. Watson, P.C. 101 East Central Avenue Post Office Box 40 Valdosta, Georgia 31601 a James L. Elliott GA Bar No. 244244 Inthe Supa Cot of Bib Couiy ha (Giml Action Fle Ne, 2007-C8-087009 Kenneth Jatncen, ea, 7 Seesdon Bll, ea Pagel ot