David J. Marmins

Partner

Fax: 404.873.8127

Biography

David is a partner in the Litigation and Real Estate practices and co-chair of AGG’s Retail Industry team. David has concentrated his practice on complex civil litigation since becoming a lawyer in 1995.

While David handles a variety of high stakes disputes, he has developed a specialty in litigation related to commercial real estate and the retail industry. This focus gives him a unique understanding of how to solve problems that arise among owners, developers, managers, landlords, tenants, builders, and contractors. Clients hire him to resolve construction and leasing contract disputes, environmental nuisance and toxic tort matters, construction payment and defect claims, easement and right-of-way disputes, and various other disagreements over land use and ownership. When appropriate, David leverages his experience toward negotiating early and alternative resolutions to disputes.

David also has extensive experience handling banking and related lending matters. He has particular expertise litigating fraudulent conveyance claims, having chased evasive debtors for banks when real estate development crashed in the late 2000’s.

David’s practice is deeply rooted and personally inspired. Not long after leaving his first job as a civil litigator at the Georgia Attorney General’s office, David represented a family of nine brothers and sisters that had been fighting the State of Georgia for access to their family farm for 36 years. In that matter, David successfully won a jury verdict condemning an interest in land from the State for a private families’ use for the first time in history. Following that victory, David began focusing more on real estate litigation and has amassed a string of significant victories at trials, on appeals, and in arbitrations. In 2012, David moved his practice to AGG in large part due to this firm’s strong, national, commercial real estate practice. The combination has proven successful as David has continued to win real estate disputes, only now throughout the country instead of just in Georgia.

David is a dedicated community servant, both through AGG and other avenues. David chairs the firm’s Community Engagement Committee, directing AGG’s participation in volunteer and charitable activities. David also serves on the firm’s Diversity Committee. Outside of AGG, David is a Board Member of the Georgia Interfaith Public Policy Council. David also serves on The Temple’s Rothschild Social Justice Institute Council and chairs its Anti- Sex Trafficking group. David graduated from the Anti-Defamation League’s Glass Leadership Institute in 2010, has served on the ADL Southeastern Board of Directors, and currently sits on the ADL Civil Rights Committee.

As the beneficiary of valuable mentorship himself, David devotes significant time to helping young litigators learn from his experience. Many AGG attorneys have taken their first deposition, argued their first motion, and/or had their first jury trial on David’s cases. David started and runs AGG’s Trial Day litigation training exercise.

David is also a twice-published author. He is the Editor of the legal treatise, Georgia Nuisance Law, and wrote the narrative non-fiction book, Appalachian State Silences the Big House: Behind the Greatest Upset in College Football History, published by McFarland & Co. in 2017.

David lives in Smyrna, Georgia with his wife Amanda, son Alec, and daughter Tatum.

Experience

  • Successfully defended Wolverine World Wide, a leading national footwear retailer (Stride Rite, Hush Puppies, Keds, etc.) against a Complaint for an Emergency Injunction brought by Indianapolis-based Simon Property Group, the largest REIT and mall operator in the country. The Indiana Superior Court denied Simon’s request following an evidentiary hearing involving several expert and corporate representative witnesses.

  • Successfully represented Sysco Corporation, the largest food service distribution network in the world, in an emergency injunction case in Texas involving a lease dispute over the use of its loading dock, implicating the daily production of $200,000 a day receiving, storing, and distribution warehouse. The loading dock was restored to full operating capacity within 45 days of AGG bringing the Complaint following a 2-day evidentiary hearing.

  • Won a multi-million dollar arbitration decision following a week-long evidentiary hearing on behalf of Dewberry Capital, the largest owner of commercial property on Atlanta’s Peachtree Street. Tenant Georgia’s Own Credit Union sued Dewberry for overcharging it for taxes and other expenses. The arbitrator excluded Georgia’s Own’s expert testimony on the key issues, directed a verdict for Dewberry, and awarded Dewberry its attorneys’ fees for defending the claim.

  • Resolved a $1.5 million dollar contract rescission claim for the return of earnest money on behalf of Costco Wholesale Corporation in a case brought by a potential buyer of the property where a former Costco was located. Following the deposition of the Plaintiff’s representative and several other witnesses, they withdrew many of the key allegations and, shortly thereafter, agreed to walk away for the amount offered prior to bringing suit.

  • Won summary judgement for Atlanta Retailers Association of more than 800 stores in defense of a class action in which plaintiffs alleged that the group’s membership criteria and contracts with vendors discriminated on the basis of race and, therefore, violated 42 U.S.C. Section 1981.

  • Prevailed in a week-long arbitration on behalf of a midtown Atlanta office building owner against a tenant claiming the owner had overcharged it millions of dollars in “fabricated tax expenses.” The owner defeated the tenant’s tax claims following the arbitrator’s ruling that the tenant’s expert’s testimony should be excluded. The arbitrator also awarded the owner $216,056 on its counterclaim against the tenant for the underpayment of certain operating expenses. Finally, the arbitrator ruled that the tenant’s fraud claim was frivolous and awarded the owner $174,610 for its attorney’s fees.

  • Represented franchisor in lawsuit brought by franchisee after franchisor terminated franchisee following poor audit reports and operational defaults. Following a day-long hearing on franchisee’s complaint for an injunction stopping the termination, the Court upheld the termination. Shortly thereafter, the franchisee dropped the suit, agreed to transfer the restaurant to another franchisee and paid a significant portion of AGG’s fees.

  • Successfully resolved claims by condominium association that a new restaurant was violating its covenants regarding new construction, allowing restaurant to open on time.

  • Obtained approval for a developer’s application for special use permit after local city council tried to force the developer to make costly improvement to shopping center in exchange for the permit. The permit was approved without the conditions.

  • Successfully resolved claims against office tenant client brought by former owner based on allegedly incorrect estoppel certificate.

  • Successfully represented big box developer against a property owner who was attempting to back out of a purchase and sale agreement for a parcel that was part of a large assemblage of properties necessary for the development of the store and surrounding shopping center.

  • Successfully represented commercial property purchaser against competing purchaser based on our client’s option agreement, which constitutes a contract, trumping the competing purchaser’s letter of intent from the seller, which was not a contract.

  • Obtained favorable settlement for commercial property owner against prospective tenant that backed out of binding lease agreement.

  • Successfully resolved construction defect claims by a restaurant tenant on favorable terms for landlord without litigation.

  • Won a jury trial on behalf of shopping center owner against a failed purchaser suing for specific performance of an alleged purchase and sale agreement. After trial, the judge awarded AGG’s client all of its attorney’s fees and costs.

  • Successfully resolved construction defect and nuisance claims by office tenant against landlord without the need for litigation.

  • Represented the plan administrator of the bankruptcy estate of Cornerstone Ministries Inc. Duties included reviewing more than 6,000 claims totaling more than $300 million for objections; pursuing claims against directors, officers and professionals for fraud and other misfeasance; prosecuting adversary proceedings involving preference and deficiency claims; and providing general representation services in all facets of this Chapter 11 matter.

  • Won an injunction stopping a Recall Election of the Chairman of the Gwinnett County Board of Commissioners. The Court ruled that the Gwinnett Recall Committee did not prove there was probable cause to believe that the Commissioner had committed any acts that adversely affected the citizens of the County and enjoined the Elections Director from proceeding with the Recall Election.

  • Resolved construction defect claims for payment of $1.375 million by tile general contractor, developer and architect to compensate homeowners in an Atlanta condominium, Aqua Condominiums, for waterproofing and structural problems with the building.

  • Won summary judgment on behalf of Homeowners of Magnolia Plantation Condominiums seeking rescission of their contacts for non-completion of their homes. The developer claimed it was absolved of its duty to complete the homes due to an Act of God, specifically Hurricane Katrina. The Court ruled that the Act of God defense was not applicable because Hurricane Katrina at most made it more difficult for the developer to complete the homes.

  • Won a Georgia Court of Appeals reversal of a jury verdict on behalf of a brother opposed by his five siblings and father contesting their ownership of a 250-acre family farm. The court clarified the law on fraud and constructive trusts in Georgia and held that the trial court should have granted the brother’s directed verdict motion.

  • Won a jury trial in a case of first impression establishing a citizen’s right to take state land for a road to access private property. State eventually paid $1.5 million to landowners in lieu of appealing the decision.

  • Won a jury trial on behalf of Lake Hartwell, Ga., homeowners against the owners of a nearby motorcross track. The Jury found that the public operation of the motorcross track was a nuisance.

  • Defeated application to change agriculturally zoned land to manufacturing for the construction and operation of an asphalt plant.

  • Obtained declaratory judgment that homeowners using a wood burning stove to heat their home were creating a nuisance in their neighborhood and obtained a permanent injunction prohibiting homeowners from using the wood burning stove.

  • Won a jury trial on behalf of RaceTrac, a petroleum company, requiring developer of land to pay for installation of sewer to property the company had purchased.

  • Won an emergency injunction stopping the construction of condominiums in a Dekalb County subdivision comprised of more than 1,000 detached homes. Recovered more than $600,000 for national periodical distributor from big box retailer in a commercial contract dispute.

  • Won summary judgment on all claims brought against Healthier Choice Flooring, which was sued for allegedly contributing to underground water and soil contamination resulting from a three-day warehouse fire near Dalton, Georgia, where carpet industry by-product was stored. AGG presented affidavits and other evidence establishing that Healthier Choice had not contributed to the cause of the fire and that any items it stored at the warehouse were intended to be recycled, not disposed of, exempting it from the relevant environmental laws.

Credentials

  • Georgia State University College of Law, Juris Doctor — 1995
    • Best Oralist Award, National Criminal Procedure Moot Court Competition
    • American Jurisprudence Award—Litigation
  • Emory University, Bachelor of Arts — 1991,

    magna cum laude

  • State of Georgia 1995
  • Georgia Court of Appeals 1995
  • Supreme Court of Georgia 1995
  • United States Court of Appeals for the Eleventh Circuit 1995
  • United States District Court for the Northern District of Georgia 1995
  • United States District Court for the Middle District of Georgia 1995
  • United States District Court for the Southern District of Georgia 1995
    • Georgia Bankers Association
    • American Bar Association, Real Estate Litigation Committee, Land Use Committee co-chair
    • International Council of Shopping Centers
    • Community Association Institute
    • Anti-Defamation League, Southeastern Board of Directors, 2010-present; Civil Rights Committee, 2012–present; Glass Leadership Institute, 2009–10
    • Community Association Institute, Education Session Speaker
    • Professional Education Systems Institute LLC, Speaker
    • Lorman Education Services, Speaker
    • Truancy Intervention Project, handled stalking, child support recovery and other domestic pro bono cases

Recognition

  • Georgia Super Lawyers, 2009–13
  • “Rising Star,” Georgia Super Lawyers, 2005–09

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