Law Commons^™

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant news during the current survey period continued to be the judiciary's efforts to come to terms with the "tort reform" legislation enacted by the General Assembly in 2005, particularly Official Code of Georgia Annotated ("O.C.G.A.") section 24-9-67.1, which purports to adopt, more or less, the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.

As discussed below, it is beginning to appear that Georgia courts will follow a somewhat different course than that followed by federal courts in their interpretation of Daubert and Daubert's codification in Federal Rule of Evidence 702. As discussed …

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

Mercer Law Review

This Article surveys administrative law developments in appellate cases from June 1, 2006 through May 31, 2007. Only cases from the Georgia Supreme Court and the Georgia Court of Appeals have been reviewed. As compared to prior years, the number of cases in which administrative law principles played a significant role showed no upward spike. There are many other topics that concern elements of administrative law, but this Article does not address cases containing those specific subject matter topics. There is likely some duplication of cases among the subject matter topics, but only the administrative law elements are emphasized in …

Appellate Practice And Procedure, Roland F.L. Hall

Mercer Law Review

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia appellate courts between June 1, 2006 and May 31, 2007. The cases discussed fall into the following categories: (1) appellate jurisdiction, (2) preserving the record, (3) timeliness of appeal, and (4) miscellaneous cases of interest.

Business Associations, Paul A. Quirós, Lynn S. Scott, William B. Shearer Iii, J. Haskell Murray

Mercer Law Review

This Article surveys noteworthy cases in the areas of corporate, limited liability company, partnership, agency, and joint venture 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 enactments at the 2007 Session of the Georgia General Assembly to the Official Code of Georgia Annotated ("O.C.G.A.") with respect to banking, finance, commerce, corporation, partnership, and associations laws.

Construction Law, Dana R. Grantham, David L. Hobson, David J. Mura Jr.

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, 2006 and May 31, 2007. The cases this year are divided into four general categories: (1) contracts, (2) torts, (3) liens and bonds, and (4) arbitration. Recent legislation is summarized in Section V of this Article.

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

Mercer Law Review

As in previous years, we cannot comment on every development in criminal law in Georgia that occurred this past year through appellate opinions and statutory changes. We cannot even footnote all of them. Instead, we have chosen cases that are the most important or the most interesting or those that may have the widest application to the future course of criminal practice and procedure. We hope this Article is useful to our colleagues who practice criminal law.

Death Penalty Law, Therese M. Day

Mercer Law Review

This Article provides a survey of death penalty case law in Georgia from June 1, 2006 through May 31, 2007. The cases include those that were heard by the Georgia Supreme Court on interim appeal and direct appeal,1 and discussion is limited to claims which present new issues of law, refine existing law, or are otherwise instructive. This Article does not discuss holdings in capital cases that are common to all criminal appeals because these are discussed elsewhere in this Survey.

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

Mercer Law Review

This survey period saw domestic relations law continue to evolve through new legislation and new case law. The 2006 Georgia legislature made dramatic changes to the child support calculations that took effect in 2007. The 2007 Georgia legislature has turned its focus to child custody issues, including passing laws requiring parenting plans in custody, allowing attorney fee awards, and allowing for direct appeals in child custody cases. The Georgia Supreme Court continued to accept nonfrivolous appeals in divorce cases, and as a result, the appellate courts have been able to give guidance to those interested in domestic relations law.

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

Mercer Law Review

The Georgia Supreme Court reviewed, and reversed, two cases featured prominently in last year's Insurance survey article, and it also held a key provision of tort reform preempted by federal law.

The Georgia Supreme Court reversed the decision in Ryder Integrated Logistics, Inc. v. BellSouth Telecommunications, Inc. and held that an agreement to name another as an additional insured could not be used to salvage an invalid indemnification clause in the parties' contract. The legislature amended Official Code of Georgia Annotated ("O.C.G.A.") section 13-8-2 to help avoid this type of litigation in the future.

However, both appellate courts continued …

Labor And Employment Law, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii, Glen R. Fagan

Mercer Law Review

This Article surveys recent developments in state statutory and common law that affect labor and employment relations between Georgia employers and employees. Accordingly, it surveys published decisions from the Georgia Court of Appeals and the Georgia Supreme Court from June 1, 2006 to May 31, 2007, as well as selected cases decided by the United States District Court, which purported to refine principles of Georgia employment law. 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

Issues of legal ethics arose during the survey year in the usual contexts of attorney discipline, malpractice, and ineffective assistance of counsel. In a handful of cases, the Georgia appellate courts also dealt with other issues related to legal ethics.

Local Government Law, R. Perry Sentell

Mercer Law Review

This particular [City Commission] meeting had drawn on for quite some time, until it was getting fairly late. We heard someone knocking very rapidly on the plate glass window. As I turned around, I observed an elderly woman, the wife of the Mayor. The Mayor appeared to ignore his wife and continued to conduct the meeting. Not getting any response from her knocking, the wife then walked into the building, grabbed the Mayor by the arm, and scolded him that it was ridiculous that the City Commission was meeting so late at night. "You," she informed the Mayor, "are going …

Product Liability, Franklin P. Brannen Jr., Richard L. Sizemore, Jacob E. Daly

Mercer Law Review

This Article surveys recent developments in Georgia product liability law. It covers noteworthy cases decided during the survey period by Georgia appellate courts, United States district courts located in Georgia, and the United States Court of Appeals for the Eleventh Circuit. In addition, the Article discusses relevant legislative enactments by the Georgia General Assembly revising the Official Code of Georgia Annotated ("O.C.G.A.").

Real Property, Linda S. Finley

Mercer Law Review

Each year, as the number of cases involving real property reported by Georgia's appellate courts continues to increase, it becomes more and more difficult to determine which cases to include in this survey Article. Nevertheless, this Article discusses case law and legislative developments in Georgia real property law from June 1, 2006 through May 31, 2007, selected either for their significance to real property law, to update attorneys who either regularly or from time to time practice or render opinions regarding real property, or to survey trends. However, as the reader may see, at times the cases surveyed were selected …

Torts, Deron R. Hicks, Travis C. Hargrove

Mercer Law Review

No abstract provided.

Trial Practice And Procedure, Kate S. Cook, Alan J. Hamilton, Brandon L. Peak, John C. Morrison Iii

Mercer Law Review

The Georgia Appellate Courts continue to consider and clarify the impact of the Tort Reform Act of 2005 on trial practice and procedure while addressing other legislation and case law similarly imperative to litigation in Georgia courts. Although the Georgia General Assembly enacted less legislation related to trial practice and procedure during this survey period than in recent years, the few laws passed are noteworthy.

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

Mercer Law Review

This Article describes the significant Georgia cases and legislation from the period of June 1, 2006 through May 31, 2007 that pertain to Georgia fiduciary law and estate planning. Specifically, this Article covers cases and legislation on matters relating to wills, trusts, the administration of decedents' estates, and the guardianship and conservatorship of minors and incapacitated adults.

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

Mercer Law Review

The year 2007 was relatively quiet for workers' compensation legislation in the Georgia General Assembly. However, there were several statutory modifications of note.

The Georgia Workers' Compensation Act has long excluded "farm laborers" from its coverage. The scope of that exclusion was clarified by including within the term farm laborer "any person employed by an employer in connection with the raising and feeding of and caring for wildlife, as such term is defined in paragraph (77) of [Official Code of Georgia Annotated ("O.C.G.A.")] Section 27-1-2." The Code section referenced defines wildlife as "any vertebrate or invertebrate animal life indigenous to …

Zoning And Land Use Law, Dennis J. Webb Jr., Marcia Mccrory Ernst, Joseph L. Cooley, John Chadwick Torri, 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 that were handed down by Georgia appellate courts between June 1, 2006 and May 31, 2007. The cases surveyed fall primarily within five categories: (1) condemnation, (2) nuisance and trespass, (3) easements and restrictive covenants, (4) zoning, and (5) miscellaneous.

Appellate Practice And Procedure, K. Todd Butler

Mercer Law Review

This Article reviews federal appellate procedure decisions in the Eleventh Circuit during the 2006 calendar year. Questions considered this year include the role of the notice of appeal in federal appellate jurisdiction, which is addressed in the first section below. The second section addresses the necessity of a final order for appeal, with emphasis on conditional final orders and when they are subject to appeal. The third section addresses the necessity of raising issues before the district court in order to preserve them for appeal.

Admiralty, Robert S. Glenn Jr., Colin A. Mcrae, Jessica L. Mcclellan

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit's admiralty docket was not particularly active this year, perhaps reflecting the state of the maritime practice. Interestingly, it was a good year for district court judges in the circuit, as the Eleventh Circuit affirmed nearly all of the lower courts' maritime decisions in the context of sovereign immunity, maritime statutes of limitation, jurisdiction, international carrier bonds, limitation of liability, allision, maritime liens, choice of law, and pollution.

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

"Stringent execution" may be the watch phrase for implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). The bankruptcy bar has lived with BAPCPA for well over a year, and if one common thread arises in the case law, it is judges dissatisfaction with what may kindly be referred to as "drafting flaws." Many courts have highlighted these flaws-and other perceived inadequacies in BAPCPA-by ruthlessly enforcing the statute's plain language. This has already led to the enactment of one amendment by Congress, as well as criticism from some of its members. Whether further amendments will follow …

Class Actions, Thomas M. Byrne

Mercer Law Review

In terms of significant class action decisions, 2006 was one of the Eleventh Circuit's busiest years in recent memory. Among other rulings, the court established the ground rules for Federal Rule of Civil Procedure 23(b)(2) classes. The year also presented the court with its first opportunity to address some of the many interpretative questions posed by the Class Action Fairness Act of 2005 ("CAFA").

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

Similar to the 2005 survey period, during the 2006 survey period, the Eleventh Circuit Court of Appeals continued its trend of issuing fewer and fewer published decisions in the area of employment discrimination. The court issued only six published decisions all year involving Title VII and only published nine opinions in the area of employment discrimination overall. With respect to unpublished opinions, however, the court continued to be extremely active, issuing 103 unpublished Title VII opinions and 148 unpublished employment discrimination opinions overall. This is further evidence of the fact that despite the proliferation of employment discrimination cases before the …

Environmental Law, Travis M. Trimble

Mercer Law Review

In general, 2006 was a good year to be a defendant in environmental cases that reached the Eleventh Circuit. The court placed a narrow construction on operator liability for corporate parents under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and backed agency interpretations of the Clean Air Act ("CAA") regulations in the face of challenges to their interpretation and use. In an issue of first impression, the court held that the agency's failure to carry out a nondiscretionary duty under the Endangered Species Act ("ESA") constituted a one-time, and not a continuing, violation for purposes of applying the …

Evidence, Marc T. Treadwell

Mercer Law Review

Several amendments to the Federal Rules of Evidence became effective December 1, 2006. Rule 404, which governs the use of character evidence offered to prove conduct, has been amended to clarify that character evidence is generally not admissible in civil cases. Apparently at the behest of the Criminal Division of the Department of Justice, Rule 408, which addresses the admissibility of evidence of conduct and statements made in settlement negotiations, has been amended to expand the use of settlement evidence in criminal cases. This change will be particularly relevant to Eleventh Circuit criminal law practitioners in light of the court's …

Federal Taxation, Michael H. Plowgian, Svetoslav S. Minkow, Mark S. Davis

Mercer Law Review

While the legal holdings of the tax cases decided in the Eleventh Circuit in 2006 do not appear remarkable at first blush, the cases present somewhat conflicting considerations of equity that make them noteworthy. The Eleventh Circuit held in Ellinger v. United States that a taxpayer, who owned half of the stock in three S corporations, could not rely on language in a closing agreement between the Internal Revenue Service (the "Service") and one of the corporations to determine his tax liability with respect to transactions between the first corporation and the other two corporations. Reversing a district court decision, …

Intellectual Property, Laurence P. Colton, Nigamnarayan Acharya, John C. Bush

Mercer Law Review

This Article surveys case law developments relevant to Georgia in the area of intellectual property during the period from January 1, 2006 to December 31, 2006. Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas of intellectual property law are patent law, trademark law, copyright law, and trade secret law. Because patent law and copyright law are provided for in the United States Constitution, these decisions are based in federal law and are litigated in federal courts. Trademark law and trade secret law have both federal and state aspects, and the cases regarding these …

Labor And Employment, W. Christopher Arbery, Valerie N. Njiiri

Mercer Law Review

The Eleventh Circuit's trial and appellate courts handed down several significant opinions affecting labor and employment law during this survey period (January 1, 2006 to December 31, 2006). For example, the Eleventh Circuit rendered notable decisions involving the Fair Labor Standards Act ("FLSA"), the Family and Medical Leave Act ("FMLA"), the Employee Retirement Income Security Act ("ERISA"), and federal and state Racketeer Influenced and Corrupt Organization ("RICO") statutes, and a district court decided a noteworthy decision under the Uniformed Services Employment and Reemployment Rights Act ("USERRA").

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2006 survey period yielded several noteworthy decisions in the Eleventh Circuit Court of Appeals relating to federal trial practice and procedure, many of which involved issues of first impression. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of class actions, subject matter jurisdiction, statutory interpretation, judicial estoppel, civil procedure, and other issues of interest to the trial practitioner.