Law Commons^™

A Critical Review Of The Law Of Business Loss Claims In Georgia Eminent Domain Jurisprudence, Charles M. Cork Iii

Mercer Law Review

The Georgia Constitution provides that "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." While the courts have recognized that a business is property within the meaning of the constitution, case law would rewrite this provision more or less as follows:

Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid, except that the business of a property owner may be partially taken or damaged without compensation, and except that the business of a property owner or tenant may be temporarily …

Commercial Law, Robert A. Weber Jr.

Mercer Law Review

• Sales
• Notes and Guarantees
• Secured Transactions
• Drafting Considerations
• Collection Issues
• Miscellaneous

Engagement Letters In Transactional Practice: A Reporter's Reflections, D. Christopher Wells

Mercer Law Review

In recent years, lawyers have turned increasingly to written contracts, usually called "engagement letters," to memorialize their professional representations. This practice grows absent specific directives requiring such writings, apparently deriving from professional preference rather than mandatory rule. It grows also despite scant attention paid by law reviews and bar publications. Only infrequently do publications appear noting this practice or offering advice on drafting engagement letters. Even continuing legal education programs give them only occasional attention.

One of the most ambitious treatments of engagement letters came in 1997 from the State Bar of Georgia in the form of a report from …

Business Associations, Paul A. Quirós, Lynn S. Scott, George Ward Hendon Jr.

Mercer Law Review

This Article surveys recent developments in Georgia's corporate, securities, partnership, and banking law. It covers noteworthy cases decided during the survey period' by the Georgia appellate courts, United States district courts located in Georgia, and the Eleventh Circuit Court of Appeals. Also included in this Article are highlights of recent revisions to the Official Code of Georgia Annotated ("O.C.G.A.").

Administrative Law, Mark H. Cohen, David C. Will

Mercer Law Review

This Article covers important developments in Georgia administrative law for the two-year period from June 1, 1997 through May 31, 1999. Because administrative law has been omitted from major consideration in the Annual Survey of Georgia Law since 1987, this Article is an attempt to cover an additional period of review, which, the authors hope, will be continued in future surveys. This Article includes cases as well as a discussion of two significant legislative enactments during the survey period.

Construction Law, Brian J. Morrissey, Timothy N. Toler

Mercer Law Review

The decisions rendered by the Georgia Supreme Court and Georgia Court of Appeals during this one-year survey period included a small opening in lender liability, a minimalist view of the requirements of evidence as it pertains to the law of fraud, an extensive discussion of the law of damages as it applies to construction contracts, and a harsh result because of failure to comply with the requirements of the mechanic's and materialmen's lien statute. This Article addresses these significant movements in the law and some of the reaffirmations of existing law in the construction field between June 1, 1998, and …

Evidence, Marc T. Treadwell

Mercer Law Review

The survey period saw a number of cases raising significant evidentiary issues. Most notable is the continuing evolution of the necessity exception to the rule against hearsay. During the survey period, the Supreme Court added a third prong to the test for the admission of evidence pursuant to the necessity exception, and thus seemingly narrowed the scope of the exception. However, the court also expanded the circumstances that constitute the "unavailability" of a witness. The net effect seems to be an expansion of the necessity exception.

Trial Practice And Procedure, C. Frederick Overby, Jason Crawford, Teresa T. Abell, Matthew E. Cook

Mercer Law Review

This survey period yielded several notable decisions covering the professional malpractice affidavit/pleading requirement, renewal actions, attorney-client relations, and the summary judgment standard. Refinements in the areas of insurance practice, jury qualifications, releases, default judgment, and privileges lend important guidance to practitioners, judges, and scholars in the area of trial practice and procedure. The most significant legislative development of trial practice and procedure addressed the longstanding "vanishing venue" doctrine.

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

Mercer Law Review

Of the domestic relations cases decided by the Georgia Supreme Court and the Georgia Court of Appeals during the survey period, twenty-seven are digested here. Possibly the most notable events of the survey period were pieces of legislation that were not enacted. A bill to restore direct appeals for certain domestic relations cases did not make it to the Governor's desk, and the Governor vetoed a bill that would have required trial judges hearing custody cases to consider the custodial elections of children between the ages of twelve and fourteen. While the Georgia General Assembly otherwise focused on ways to …

Legal Ethics, Roy M. Sobelson

Mercer Law Review

This Article covers the rules, cases, ethics opinions, and other matters decided by the Georgia Supreme Court, the Georgia Court of Appeals, and a federal district court between June 1, 1998, and May 31, 1999, that have most affected, or may affect, Georgia lawyers. Many eyepopping headlines about lawyers and their profession filled the survey period. Although very few of the underlying cases made or changed any substantive law, they may well have substantially altered the landscape of lawyering, creating or illuminating various pitfalls and land mines.

One Georgia lawyer, disbarred for murdering his landlord, avoided the death penalty only …

Torts, Deron R. Hicks, Mitchell M. Mckinney

Mercer Law Review

• Premises Liability
• Damages
• Products Liability
• Defamation
• Dog Bite

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

The City Attorney served (in those days) simultaneously as Judge of the Recorder's Court. On convening that court one Monday morning, he was shocked to see one of the community's most prominent citizens before him, charged with "drunk and disorderly."

I inquired as to the type of plea he wished to enter. Evidently having heard of "nolo contendere" but not remembering the exact nature or pronunciation of the plea, the citizen responded: "I would like to plead low profile."

The "law" of local government, both decisional and statutory, frequently fosters a similar sentiment.

Wills, Trusts, And Administration Of Estates, Mary F. Radford

Mercer Law Review

This Article summarizes the major cases and legislative enactments relating to Georgia fiduciary law during the period June 1, 1998 through May 31, 1999. Most of the cases described in this Article were decided under Georgia's Probate Code as it existed prior to the extensive revisions that became effective on January 1, 1998. When appropriate, this Article will discuss briefly how the amendments that appear in the Revised Probate Code of 19981 will affect the issue under discussion.

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

Mercer Law Review

For the second year in a row, the survey period passed without dramatic legislative changes to Georgia's Workers' Compensation Act ("the Act").' Georgia's appellate courts, however, were active once again in examining the exclusive remedy doctrine and interpreting the Act's subrogation provisions.

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

Mercer Law Review

The Georgia Court of Appeals and Supreme Court produce a prodigious number of opinions in criminal cases every year. We reviewed 940 cases for this reporting period. We refrained from straying outside the reporting period, even though one recent case of significance tempted us greatly. Look for it in next year's review. We are trial lawyers, so we organized this article in roughly the order in which issues may arise in the average case. If no opinions of note came out of the appellate courts in a given area of law, such as in the area of bonds and pretrial …

Real Property, T. Daniel Brannan, William J. Sheppard

Mercer Law Review

This Article surveys case law and legislative developments in the area of real property law in Georgia during the period from June 1, 1998, to May 31, 1999. As in past surveys, the authors do not attempt to chronicle each case and statute that affects real property law. Rather, the authors selected the decisions and statutes discussed in this Article for their significance and interest to participants in the everyday practice of real estate law in this state. Several cases decided during the survey period present issues on which the appellate courts were sharply divided and provide lively discussions of …

Insurance, Stephen L. Cotter, Charles M. Mcdaniel Jr.

Mercer Law Review

During this survey period, Georgia appellate courts reviewed the usual number of insurance cases, fine-tuned policy terms and refined the insured/insurer relationship. One area of intense interest concerned limiting subrogation. Another area of interest involved the "limited release" used in uninsured motorist litigation. The Georgia General Assembly primarily focused on managed care, with litigation sure to follow as courts apply the remedial tools. Overall, insurers managed to enforce most adequately articulated policy terms and successfully avoided embarrassing and costly "bad faith" decisions through the timely use of declaratory judgment proceedings.

Administrative Law, Terri L. Carver

Mercer Law Review

In 1998 the Eleventh Circuit Court of Appeals decided a handful of cases dealing with administrative law issues. One of the cases concerned the suspension of an Immigration and Naturalization Service ("INS") deportation order. The Eleventh Circuit upheld the INS Board of Immigration Appeals in denying plaintiffs the opportunity to apply for suspension of deportation. The court found that plaintiffs failed to make a prima facie case for suspension of deportation and abused the immigration rules in delaying their stay in the United States.

The court decided three cases involving exhaustion of administrative remedies as a prerequisite for judicial review. …

Admiralty Law, Robert S. Glenn Jr., George M. Earle, Marc G. Marling

Mercer Law Review

The Court of Appeals for the Eleventh Circuit decided nine admiralty cases with written opinions in 1998. With one exception, these cases did not involve issues of first impression. They instead fell into the following categories: cases that were decided with reference to existing law; a case in which the court's decision put it at odds with the holding of other circuit courts; a case in which the court's holding continued an expansive trend in maritime law; and a case of first impression involving important constitutional issues.

The cases that were decided with reference to existing law were three admiralty …

Appellate Practice And Procedure, William M. Droze, Andrea L. Siedlecki

Mercer Law Review

Appellate practice and procedure often dictates the resolution of cases presented for review. Although procedural rules are not implemented in a vacuum, and the particular facts and legal questions raised by each case necessarily determine their application, an analysis of appellate practice provides a valuable tool in assessing judicial trends by portraying the judicial character in a manner that transcends the peculiar circumstances of a given case.

An evaluation of recent appellate practice reveals an increased emphasis on judicial economy and efficiency. During 1998, the Eleventh Circuit appeared aware of the necessity of providing practitioners, parties, and lower courts with …

Antitrust, Michael Eric Ross, Jeffrey S. Cashdan

Mercer Law Review

In 1998 the Eleventh Circuit published eight antitrust opinions. Some of these cases turned on procedural issues; some were decided on the merits. As in previous years, defendants generally were successful, but not always. Each of these decisions is briefly summarized below.

Southern Card & Novelty, Inc. v. Lawson Mardon Label, Inc. concerned the legality of a "full-line forcing" arrangement. Defendant, Lawson Mardon Label, Inc. ("Lawson"), manufactured postcards, which it sold to distributors throughout North America for resale to retail outlets, which in turn sold them to consumers. Lawson manufactured "local view" postcards depicting nonlicensed local images (for example, …

Environmental Law, W. Scott Laseter, Julie V. Mayfield

Mercer Law Review

Departing somewhat from the format of earlier environmental law survey articles, this Survey devotes substantial attention to a 1998 decision of the United States Supreme Court in a case that arose under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Although that case, United States v. Bestfoods, emerged from the Sixth Circuit, it will almost certainly have important ramifications for Eleventh Circuit jurisprudence in the area of CERCLA operator liability. Further, the case may signal a new conservative leaning by the Supreme Court that may extend beyond the narrow issue of that case to other questions arising under CERCLA. …

Constitutional Criminal Procedure: A Two Year Survey, James P. Fleissner, Jeffrey R. Harris

Mercer Law Review

This Article surveys significant constitutional criminal procedure decisions of the United States Court of Appeals for the Eleventh Circuit issued during 1997 and 1998. The "constitutional" branch of criminal procedure focuses on the interpretation of the Fourth, Fifth, and Sixth Amendments to the United States Constitution. In selecting "significant" decisions, we emphasized questions of first impression, other noteworthy cases, and issues likely to interest attorneys practicing in the courts of the Eleventh Circuit. We have endeavored to summarize the selected decisions and provide commentary that, hopefully, will illuminate the issues and assist the reader in understanding the importance and implications …

Burlington Industries, Inc. V. Ellerth: An Affirmative Defense Against Employer Liability For Supervisory Harassment, Joyelle K. Werner

Mercer Law Review

In Burlington Industries, Inc. v. Ellerth, the Supreme Court held that an employer is vicariously liable for its supervisor's harassment that creates a hostile work environment, subject only to the affirmative defense that the employer "exercised reasonable care to prevent and correct" the harassment and that the "employee unreasonably failed to take advantage" of the employer's remedial procedure or corrective opportunities offered after the fact.

Bankruptcy, W.H. Drake Jr., Christopher S. Strickland

Mercer Law Review

Undeniably, 1998 proved to be an important year for bankruptcy in the Eleventh Circuit Court of Appeals, with the circuit ultimately producing a total of fourteen opinions having material bearing upon the debt relief process. In keeping with the cosmopolitan nature of bankruptcy practice, these decisions involved the court's performance of diversified tasks, ranging from the interpretation of intricate Bankruptcy Code provisions, to the construction of governing requirements from the Uniform Commercial Code, and the resolution of potential conflicts between the bankruptcy process and various constitutional or state law provisions. Provided below is an overview of each decision rendered during …

City Of Chicago V. International College Of Surgeons: The Interplay Between Supplemental Jurisdiction And Cross-System Appeals, And The Impact On Federalism, Jacob Edward Daly

Mercer Law Review

In City of Chicago v. International College of Surgeons, the United States Supreme Court reversed a well-established rule in holding that federal district courts may exercise supplemental jurisdiction over state law claims for deferential review of local administrative agency decisions.

Federal Sentencing Guidelines, James T. Skuthan, Rosemary T. Cakmis

Mercer Law Review

The Eleventh Circuit decided several cases this past year covering a broad range of United States Sentencing Guidelines ("U.S.S.G.") issues. Two areas of particular concern were firearms and departures.

Due to the 1995 Supreme Court decision in Bailey v. United States, several defendants had their firearm convictions vacated and were resentenced. Thus, the Eleventh Circuit in 1998 was faced with reviewing these resentencings to determine the applicability of guideline enhancements for firearms.

The court also decided several cases relating to downward departures based on cultural differences, a defendant's impulse control disorder, the over-representation of a career offender's prior record, …

Employment Discrimination, Peter Reed Corbin, Richard L. Ruth

Mercer Law Review

The 1998 survey period presented an extremely active year in the employment discrimination arena, not only for the Eleventh Circuit, but also for the United States Supreme Court.' Three key decisions were rendered by the Supreme Court on sexual harassment and same-sex discrimination, and another decision was rendered on the arbitrability of ADA claims. Yet, ironically, in this year of inordinate Supreme Court activity in the field of labor and employment law, the Court's arbitration decision did not "live up to the hype" of being a landmark decision on the legality of mandatory predispute arbitration of statutory discrimination claims. On …

Trial Practice And Procedure, Philip W. Savrin, Robert W. Capobianco

Mercer Law Review

This Article surveys the 1998 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

II. STATUTE OF LIMITATIONS

III. JURISDICTIONAL ISSUES

IV. PREEMPTION

V. ABSTENTION

VI. APPELLATE JURISDICTION

VII. MISCELLANEOUS

Labor Law, Stephen W. Mooney, Leigh Lawson Reeves

Mercer Law Review

This Article surveys the 1998 decisions of the United States Court of Appeals for the Eleventh Circuit that addressed issues in the areas of traditional labor law. This article specifically discusses decisions by the Eleventh Circuit under the Labor Management Relations Act ("LMRA"), the National Labor Relations Act ("NLRA"), the Fair Labor Standards Act of 1938 ("FLSA7), and the Employee Retirement Income Security Act of 1974 ("ERISA"). As in the years past, the Eleventh Circuit decided several cases that involved issues of interest in the area of traditional labor law. Due to page limitations, however, this Article cannot survey every …