Law Commons^™

Wills, Trusts, Guardianships, And Fiduciary Administration, Mary F. Radford

Mercer Law Review

This Article examines the major cases decided and legislation enacted during the period from June 1, 2004 through May 31, 2005. The cases and statutes discussed cover the substantive law relating to decedents' estates, trusts, and guardianships, and to the fiduciaries who administer these entities.

Administrative Law, Martin M. Wilson, Jennifer A. Blackburn

Mercer Law Review

Agency decision makers continue to shape just about every facet of l.fe as we know it. This Article discusses the peculiar procedures for obtaining final agency decisions and the review of those decisions. The survey period for this Article is from June 1, 2004 through May 31, 2005. Only cases from the Georgia Supreme Court and Georgia Court of Appeals have been reviewed, and there has been no attempt to usurp the prerogative of other authors for this issue. Thus, although the subject matters may overlap, such areas as local government law, workers' compensation law, insurance law, and others are …

Business Associations, Paul A. Quirós, Lynn S. Scott, William B. Shearer Iii, Travis C. Hargrove

Mercer Law Review

This Article surveys noteworthy cases in the areas of corporate, securities, and partnership law decided during the survey period by the Georgia Supreme Court, the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia. This Article also summarizes recent enactments by the Georgia General Assembly to the Official Code of Georgia Annotated ("O.C.G.A.") with respect to banking and finance laws.

Domestic Relations, Barry B. Mcgough, Gregory R. Miller

Mercer Law Review

This survey period saw major changes to domestic relations law. With the political changes in the state legislature came sweeping reforms to what seemed to be deeply entrenched laws. Although Georgia law presently requires appeals of all domestic relations cases occurring through the discretionary application process, the Georgia Supreme Court extended its 2003 pilot project into its third year, agreeing to accept all "non-frivolous" applications filed in divorce and alimony cases. As a result, those interested in domestic relations law have benefited from many more substantive decisions from the appellate courts on a variety of issues. Revisions to the Uniform …

Death Penalty Law, Holly Geerdes, Nikki Cox

Mercer Law Review

This Article surveys the death penalty decisions of the Georgia Supreme Court from June 1, 2004 through May 31, 2005. The cases discussed include those heard by the supreme court on interim appeal, on direct appeal, and on review of habeas corpus decisions. Focusing on the court's decisions that affect the trial and appeal of death penalty cases, this Article, with some exceptions, does not discuss holdings in capital cases that are common to all criminal appeals.

Evidence, Marc T. Treadwell

Mercer Law Review

During its 2005 session, the Georgia General Assembly passed legislation, commonly known as Senate Bill 3, that will, if upheld by the courts, dramatically impact Georgia's civil justice system. Two provisions of Senate Bill 3 will change Georgia evidence law. The Official Code of Georgia Annotated ("O.C.G.A.") section 24-9-67.1(f), discussed in more detail below, purports to adopt Federal Rule of Evidence 702, the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. , and create special rules for expert testimony in medical negligence actions. A new rule for the admission of mistake or error by medical providers …

Torts, Deron R. Hicks

Mercer Law Review

No abstract provided.

Trial Practice And Procedure, Jason Crawford, J. Clay Fuller, Dustin T. Brown, Kate S. Cook, E. Wycliffe Orr

Mercer Law Review

This survey period included significant legislative changes and yielded several interesting and important decisions to practitioners who prepare and try cases. This Article addresses judicial opinions that cover, among other topics that interest the trial practitioner, issues of damages, discovery, products liability, torts, standing, and sovereign immunity. The Article also highlights important changes in Georgia's statutory law that significantly impact trial practice.

Zoning And Land Use Law, Dennis J. Webb Jr., Marcia Mccrory Ernst, Victor A. Ellis

Mercer Law Review

This Article provides a succinct and practical analysis of the significant judicial decisions in the area of zoning and land use law pronounced by the United States Supreme Court and Georgia appellate courts between June 1, 2004 and May 31, 2005. The cases surveyed fall primarily within six categories: (1) condemnation; (2) nuisance and environmental; (3) zoning and related ordinances; (4) easements; (5) annexation; and (6) restrictive covenants.

Criminal Law, Laura D. Hogue, Franklin J. Hogue

Mercer Law Review

In this survey of Georgia criminal law, we have selected only those cases that we deemed to be of interest to those of us who practice in the area of criminal law. For space reasons, however, we could not include every interesting case, even in footnotes. Other writers of this survey would have selected differently, no doubt. We also were able to omit all death penalty cases and cases involving strictly evidentiary issues, as two other fine articles in this edition of the Mercer Law Review cover those cases.

Insurance, Stephen M. Schatz, Stephen L. Cotter, Bradley S. Wolff

Mercer Law Review

Several decisions rendered by the Georgia Court of Appeals which we discussed (and a few of which we criticized) in last year's survey were further clarified or overruled by the Georgia Supreme Court. As has been the pattern over the years, Georgia courts during this survey period reinforced that when any ambiguity exists in an insurance contract, courts will construe the contract in favor of finding coverage for the insured. However, when no ambiguity exists on the face of the insurance contract, courts will strictly enforce the provisions as written, and will rarely find any public policy preventing enforcement. One …

Labor And Employment, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii

Mercer Law Review

This Article surveys recent developments in state statutory and common law that affect labor and employment relations of Georgia employers. Accordingly, it surveys published decisions from the Georgia Court of Appeals and Georgia Supreme Court from June 1, 2004 to May 31, 2005. This Article also highlights specific revisions to the Official Code of Georgia Annotated ("O.C.G.A.").

Legal Ethics, Patrick Emery Longan

Mercer Law Review

The Georgia Supreme Court and the Georgia Court of Appeals decided a number of cases concerning the professional responsibilities of lawyers during the survey period. Those cases concerned attorney discipline, malpractice, bar admission, attorney fees and liens, ineffective assistance of counsel, and judicial ethics and recusal.

Real Property, Linda S. Finley

Mercer Law Review

This Article surveys case decisions and other developments in Georgia real property law during the current survey period (June 1, 2004 through May 31, 2005). The court decisions, legislation, and other information discussed below were chosen for their significance to real property law and, perhaps, their relevance to the day-to-day law practice. Unfortunately, it is not possible to review each important decision due to space limitations. Instead, the author seeks to identify new trends as well as changing law. Perhaps the most important trend in real property law is the criminalization of mortgage fraud relating to residential home loans. The …

Workers' Compensation, H. Michael Bagley, Daniel C. Kniffen, Katherine D. Dixon

Mercer Law Review

The Chairman's Advisory Council of the State Board of Workers' Compensation again submitted significant legislation for 2005. Perhaps the most significant amendment to the Workers' Compensation Act concerns the determination of catastrophic designation. If an injury has not already been accepted as a catastrophic injury by the employer, and the authorized treating physician has released the employee to return to work with restrictions, there will be a rebuttable presumption, during a period not to exceed 130 weeks from the date of injury, that the injury is not a catastrophic injury. In making a determination as to whether an injury is …

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

As a county attorney, I was involved in a zoning case.... One day, ... the judge summoned all of us to his chambers for a conference concerning the case. As we sat around his conference table, his law clerk brought in the accumulated papers in the case. The papers were then placed in two stacks: one stack originating from the landowner's attorneys, and the other from us. The judge then brought out a ruler and measured the two stacks. He then turned to the landowner's attorney and said, "Mr. Attorney, you have exceeded 12 inches. I will receive and consider …

Construction Law, Henry L. Balkcom Iv, Dana R. Grantham, Devin H. Gordon

Mercer Law Review

This Article surveys construction law decisions handed down by Georgia courts and construction-related legislation enacted by the Georgia General Assembly between June 1, 2004 and May 31, 2005. As in prior years, the selected cases primarily fall within five categories: (1) contracts, (2) torts, (3) mechanics' and materialmen's liens, (4) arbitration, and (5) miscellaneous. Recent legislation is highlighted in Section VI.

Reversion Back To A State Of Nature In The United States Southern Borderlands: A Look At Potential Causes Of Action To Curb Vigilante Activity On The United States/Mexico Border, Jessica Conaway

Mercer Law Review

Since the late 1980s and early 1990s, groups of concerned citizens have banded together to pick up where the federal government failed and to combat illegal immigration at its source: the unguarded borders. Armed with the concepts of citizen's arrest and property rights, vigilante ranchers in California, Arizona, New Mexico, and Texas began detaining illegal aliens and turning them over to the authorities. As the vigilante ranchers grew in number, so did the rumors of their violent and abusive tactics. Now, in the national post-9/l1 environment, vigilante ranchers have a renewed sense of purpose, and with the country on alert, …

Evidence, Marc T. Treadwell

Mercer Law Review

This year's survey must begin, as have most recent surveys, with a lament over the decreasing number of noteworthy Eleventh Circuit decisions addressing evidentiary issues. In stark contrast to the days when the Eleventh Circuit rigorously examined district court evidentiary decisions and freely reversed those decisions, the Eleventh Circuit now studiously defers to district court judges. The abuse of discretion standard, which has always been the standard of review of a district court's evidentiary rulings, has become the standard of review in practice as well as in name.

Judicial Estoppel And The Eleventh Circuit Consumer Bankruptcy Debtor, James D. Walker Jr., Amber Nickell

Mercer Law Review

Judicial estoppel is an equitable doctrine intended to prevent a litigant from making a mockery of the judicial system by asserting inconsistent positions in different legal proceedings. The peculiarities of bankruptcy, however, are not always conducive to the easy application of judicial estoppel, particularly when it harms the debtor's creditors. Since the Eleventh Circuit Court of Appeals decided its first bankruptcy-related judicial estoppel case in 2002, the court has not fully addressed some important complexities raised by bankruptcy.

Appellate Practice And Procedure, K. Todd Butler

Mercer Law Review

This Article reviews federal appellate procedure developments in the Eleventh Circuit during the 2004 calendar yea. As is the case each year, perhaps the most important procedural matter the Eleventh Circuit Court of Appeals considered was its own federal subject matter jurisdiction and that of the district courts in the Eleventh Circuit. If a matter is within the subject matter jurisdiction of the federal courts, or the federal appellate jurisdiction of the Eleventh Circuit, then the final order rule, along with the exceptions to the final order rule, dominate the consideration of whether a decision is subject to review. The …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

No one topic dominated bankruptcy cases arising in the Eleventh Circuit in 2004, but several developments took center stage. First, judicial estoppel re-emerged as a tool used to prevent a windfall to the debtor when the trustee is the real party in interest. Second, any benefit accruing to debtors after last year's Supreme Court decision on state sovereign immunity may have been effectively eliminated by a recent circuit court decision. Third, student loan creditors endeavored to eviscerate the last remnants of the undue hardship discharge by invoking the availability of the income contingent repayment plan. This Article addresses these and …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

Continuing the trend begun with the 2003 survey period, the 2004 survey period experienced a significant decrease in the number of decisions by the Eleventh Circuit Court of Appeals in the area of employment discrimination. On the other hand, the United States Supreme Court decided several noteworthy decisions in the employment arena. In Pennsylvania State Police v. Suders, the Court addressed the important issue of whether the Ellerth/Faragher affirmative defense' in hostile work environment sexual harassment cases is available when the plaintiff alleges that she was constructively discharged. In General Dynamics Land Systems, Inc. v. Cline, …

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2004 courts in the Eleventh Circuit addressed several Clean Water Act issues. The Eleventh Circuit Court of Appeals arguably expanded the scope of the injuries a plaintiff may allege to have standing to sue under the Clean Water Act. The court held that the federal court had jurisdiction over a Clean Water Act citizen suit alleging violations of a permit issued by the State of Georgia under its permitting program authorized under the Act. The Eleventh Circuit also addressed whether a Florida state regulation effectively revised or added to the state's Clean Water Act, which mandated water quality standards, …

Labor And Employment, Jerry C. Newsome, K. Alex Khoury

Mercer Law Review

This Article surveys notable developments in labor and employment law in the Eleventh Circuit from January 1 to December 31, 2004. During the survey period, the Eleventh Circuit Court of Appeals rendered notable decisions regarding the Family and Medical Leave Act ("FMLA") and the Labor Management Relations Act ("LMRA"). Several district courts also weighed in during this survey period with significant rulings on the FMLA and the Equal Pay Act ("EPA").

Chapter 7 Bankruptcy And Section 707(B): Should The Subjective "Substantial Abuse" Standard Be Replaced By An Objective "Means-Testing" Formula?, J. Kaz Espy

Mercer Law Review

Because our society has become more and more reliant on the concept of "credit," the level of individual indebtedness has risen and, as a direct corollary, individual filings for bankruptcy relief have also increased. Credit can be beneficial to John D. Consumer ("Consumer") by allowing him to take possession of goods and pay for them at a later date. This in turn stimulates the economy by giving consumers more buying power. However, when Consumer fails to use discretion in his use of credit, he quickly finds out how the seemingly wonderful concept of credit can become a nightmare. If Consumer …

Securities Regulation, David K. Brown, Valerie D. Barton

Mercer Law Review

This Article examines significant securities regulation cases originating in the Eleventh Circuit Court of Appeals during 2003 and 2004. In particular, Part I of this Article addresses a recent decision in the area of insider trading and familial relationships. Part II analyzes two recent cases involving the definition of "security" under the Securities Act of 1933. The three cases discussed below address two very different issues and draw from two separate areas of securities law, the Securities Act of 1933 and the Securities Exchange Act of 1934. However, a common theme connects these cases: the preservation of flexibility within the …

Form Over Substance? Qualified Immunity In Groh V. Ramirez, Lenard F. Harrelson Jr.

Mercer Law Review

In Groh v. Ramirez, the United States Supreme Court held in a 5-4 decision that a search warrant may be so facially defective that the executing officers cannot reasonably presume it to be valid. The Court reasoned that the warrant deficiency in this case, revolving around the particularity requirement, flows directly from the text of the Fourth Amendment, and thus, no reasonable officer could believe a warrant that obviously did not comply with this standard was valid. The Court proceeded to deny the executing officer qualified immunity by holding that reliance upon this facially defective warrant was objectively unreasonable. …

The Role Of The Federal Sentencing Guidelines In The Wake Of United States V. Booker And United States V. Fanfan, Rosemary T. Cakmis

Mercer Law Review

The year 2004 began much like previous years, at least when it came to decisions from the Eleventh Circuit Court of Appeals interpreting the United States Sentencing Guidelines ("U.S.S.G." or "federal sentencing guidelines" or "guidelines"). In less than one year, however, the federal sentencing guidelines and related Eleventh Circuit decisions took on a fascinating new dimension in light of 2004-2005 United States Supreme Court jurisprudence. This jurisprudence culminated with the January 12, 2005 Supreme Court decision in United States v. Booker, which was consolidated with United States v. Fanfan ("Booker/Fanfan"). Therein, the Supreme Court rejected the Eleventh …

Class Actions, Thomas M. Byrne, Suzanne M. Alford

Mercer Law Review

The year 2004 was an eventful one for the development of class action law in the Eleventh Circuit. In a series of decisions prior to 2004, the court consistently paid close attention to whether the individual issues raised by claims or defenses would predominate over any common issues and would thereby render a class action either unmanageable or unfair. For example, in Andrews v. American Telephone & Telegraph Co., the court reversed an order certifying a class of millions of telephone service customers who challenged their phone carriers' 900-number participation because of the impossibility of applying the gaming laws …