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Hays lawyer files motion for dismissal of county countersuit
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Lawsuits, countersuits, motions and amended motions continue to fly between the lawyer representing William Durden and Samuel Hays, and Newton County Attorney W. T. “Tommy” Craig’s offices over disputed violations of Georgia’s Open Records Request Act.

The latest motions have Durden’s and Hay’s lawyer, John Strauss, filing a motion to add to the official court record in the former case, and a motion to dismiss the county’s countersuit against the latter.

The incident at the foundation of the legal actions centers around a wrongful termination charge brought by Durden, a landscape contractor, against the county in 2013.

In June, Durden settled out of court with the county for $45,000. After the settlement, Durden’s attorney, John Strauss, filed a Motion for Remand in the court of appeals about the Open Records Act requests on communications between former County Manager John Middleton and county commissioners.

The motion, which had asked the appeals court to send Durden’s Open Records Request case back to the lower court for further action, was dismissed. Hay filed his suit alleging violation of Georgia’s Open Records Request Act in mid-September.

In addition to the motion to dismiss, Strauss filed an amendment to Hay’s complaint of an Open Records Request violation against the county. The amendment describes a “fact sheet,” supposedly containing libelous information about Durden’s landscaping business.

The fact sheet had been found in the county administrative files, but, according to the amendment, administrative services had rebutted the “fact sheet” was untrue, nor was it evident whether the sheet had been distributed to county officials prior to Durden’s dismissal.

The Hay’s amendment also states the county spent in excess of $300,000 in attorney fees defending the open records request violation and wrongful termination suits.

In Durden’s case, Strauss filed a Motion to Supplement the Record—specifically, to include correspondence between Durden and County Clerk/Open Records Clerk Jackie Smith over the open records request.

Strauss also filed a motion to dismiss the county’s countersuit against Hay, filed by Craig and attorney Ed Tolley in mid-September. The legal action alleged Hay was colluding and conspiring with Durden to extort money from Newton County and seeks that his case be dismissed, Durden be made a party to the action, judgment against the two be taken, along with recompense be made to Newton County and past court-ordered penalties against Hay be paid.

In the motion for dismissal, Strauss writes the counterclaim “is clearly designed to threaten or intimidate the Plaintiff and somewhat less directly, his counsel, in an obvious attempt to infringe upon the Plaintiff's right to assert a grievance against his government through this Honorable Court.”

He said Hay had been a vocal critic of how the county terminated Durden, that the county had failed to communicate Durden has a separate lawsuit against at least two county officials, and that communication referencing settlement demands, newly discovered evidence—“to wit, admissions by a County Commissioner that the Defendant had failed to disclose communications involving Mr. Durden (despite Open Records Act Requests)--do not constitute ‘extortion’."

Strauss repeatedly refers to the “substantial” attorney’s fees, which the suit estimates to be $300,000 or more, the county has racked up to defend against Durden and Hay, and that telling the county to “stop wasting money on legal fees” is not extortion.

In response to Craig’s request that Hay “has a pattern and practice of filing frivolous actions against Newton County, its officials, commissioners and counsel” and has shown contempt by failing to pay court-ordered legal fees—over $3,000 in 2001 and $4,800 in 2004—the motion states Hay cannot be held in contempt because he had “never actually ordered to affirmatively pay attorney’s fees,” and the judgment is uncollectible due to dormancy.