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May 28 15

CLIO Webinar Notes – Advanced Legal Research

by merlin

Joshua Lenon (Clio) & Ed Walters (CEO of FastCase)

 

Research Plans

  • Taught HOW to research in law school, but lawyers don’t tend to know WHEN to research
  • Clients don’t tend to know CONTEXT for the legal info they get
    • Often, though, clients aren’t willing to PAY for the research needed

 

MAINTAIN SUBJECT-MATTER COMPETENCY:

  • Look at BOTH academic AND non-academic resources for subject-matter;
  • CONFIRM with formal sources

 

  1. Alternative Sources for Legal Information
    • Legal journals were followed/cited extensively in the ‘70’s and ‘80’s, but not hardly as much in the 2000’s. This is STUPID.
    • Check SSRN eLibrary
      • #1 top download on that database is privacy article with many good references; #3 is on nature of marriage; #4 is 2nd Amendment – This stuff is VERY RELEVANT
    • HEINOnline – 90 years of scholarship from countries around the world (more than ABA Law Library collection, etc.)
    • Methodology is exactly what you should do:
  1. Source Material (Legislation; court opinions – check the black-letter rules and the surface interpretations given)
  2. Local and State resources (ex. libraries, Bar Association resources like FastCase, etc.)
  3. Non-profit Sources (Legal Information Institute [LII] – Cornell Law’s database, etc.)
  4. Non-Academic Writing (ex. lawyer blogs; use scholar.google.com!!!!)

 

  1. Modern Legal Search Engines

Filter + Sort

  • Filter: jurisdiction, date, keyword, etc. (but it really comes down to looking for words that are likely to appear in the opinion or law being searched)
  • Problem: Searches can be OVERinclusive (too many results) and UNDERinclusive (possibly misses the most germane results in the distilled outcome)
  • Google appears to not FILTER results the way that legal research would desire
  • Possible not to get the most relevant result b/c of, i.e., no mobile site (so it wouldn’t rank as high), some folks “gaming the algorithm” for SEO ranking priority, etc.

 

  1. Integrating Legal Research into your Practice

FastCase “relevance algorithm” – uses numerosity (number of responses), proximity (distance from each use), density (number of uses within the result), and diversity (use in different contexts); they also look to whether other things are citing to it, and look at aggregate history of use of the cite

  • Creative Citation Tool: Actually can see how many times case has been cited (lots of information by relevance)
  • Data visualization – LOOK AT THIS AGAIN (it is a 4-D graph of the results, based on the various filters used, that shows VISUALLY which results are going to be the most important in the search)
  • This involves the “forecite” tool – identifies other cases that don’t include the searched terms but appear relevant to the search topic

 

Oh – FastCase 7 is going to be released shortly.  Best thing they’ve done.

May 25 15

Memorial Day Solemnity

by merlin

Today being the day in which we remember veterans – ALL of those who gave their lives while serving in the military – made it appropriate to explore the history of the holiday.

This comes from Memorial Day history at snopes.com

KNOW YOUR HISTORY:

Memorial Day was started by former slaves on May, 1, 1865 in Charleston, SC to honor 257 dead Union Soldiers who had been buried in a mass grave in a Confederate prison camp. They dug up the bodies and worked for 2 weeks to give them a proper burial as gratitude for fighting for their freedom. They then held a parade of 10,000 people led by 2,800 Black children where they marched, sang and celebrated.

Origins:   The custom of holding observances (including the laying of flowers on burial sites) to remember and honor those who gave their lives in military service goes back many hundreds, if not thousands, of years. In the United States, that custom has long since been formalized in the creation of Memorial Day (formerly known as Decoration Day), a federal holiday observed on the last Monday in May to remember the men and women who died while serving in the United States Armed Forces. Traditionally, every year the President of the United States (or, in his absence, another high-ranking government official) visits Arlington National Cemetery on Memorial Day to honor all those Americans who have died in military service to their country by participating in a symbolic wreath-laying ceremony at the Tomb of the Unknowns.

In a formal sense, the modern Memorial Day originated with an order issued in 1868 by Maj. Gen. John A. Logan, the commander in chief of the Grand Army of the Republic, for the annual decoration of war graves:

Three years after the Civil War ended, on May 5, 1868, the head of an organization of Union veterans — the Grand Army of the Republic (GAR) — established Decoration Day as a time for the nation to decorate the graves of the war dead with flowers. Maj. Gen. John A. Logan declared that Decoration Day should be observed on May 30. It is believed that date was chosen because flowers would be in bloom all over the country.

The first large observance was held that year at Arlington National Cemetery, across the Potomac River from Washington, D.C.

The ceremonies centered around the mourning-draped veranda of the Arlington mansion, once the home of Gen. Robert E. Lee. Various Washington officials, including Gen. and Mrs. Ulysses S. Grant, presided over the ceremonies. After speeches, children from the Soldiers’ and Sailors’ Orphan Home and members of the GAR made their way through the cemetery, strewing flowers on both Union and Confederate graves, reciting prayers and singing hymns.

Regardless of when Decoration Day (or Memorial Day) may have been officially established, though, debate continues to this day regarding exactly when and where the first observance of this nature was held in the United States. In May 1966 the city of Waterloo, New York, was designated as the “Birthplace of Memorial Day” via a Congressional resolutions and presidential proclamation commemorating a patriotic observance held in that town one hundred years earlier:

The story of Memorial Day begins in the summer of 1865, when a prominent local druggist, Henry C. Welles, mentioned to some of his friends at a social gathering that while praising the living veterans of the Civil War it would be well to remember the patriotic dead by placing flowers on their graves. Nothing resulted from this suggestion until he advanced the idea again the following spring to General John B. Murray. Murray, a civil war hero and intensely patriotic, supported the idea wholeheartedly and marshalled veterans’ support. Plans were developed for a more complete celebration by a local citizens’ committee headed by Welles and Murray.

On May 5, 1866, the Village was decorated with flags at half mast, draped with evergreens and mourning black. Veterans, civic societies and residents, led by General Murray, marched to the strains of martial music to the three village cemeteries. There impressive ceremonies were held and soldiers’ graves decorated. One year later, on May 5, 1867, the ceremonies were repeated. In 1868, Waterloo joined with other communities in holding their observance on May 30th, in accordance with General Logan’s orders. It has been held annually ever since.

Waterloo held the first formal, village wide, annual observance of a day dedicated to honoring the war dead. On March 7, 1966, the State of New York recognized Waterloo by a proclamation signed by Governor Nelson A. Rockefeller. This was followed by recognition from Congress of the United States when the House of Representatives and the Senate unanimously passed House Concurrent Resolution 587 on May 17th and May 19th, 1966 respectively. This reads in part as follows: “Resolved that the Congress of the United States, in recognition of the patriotic tradition set in motion one hundred years ago in the Village of Waterloo, NY, does hereby officially recognize Waterloo, New York as the birthplace of Memorial Day…”

On May 26, 1966, President Lyndon B. Johnson, signed a Presidential Proclamation recognizing Waterloo as the Birthplace of Memorial Day.

Nonetheless, as the New York Times noted in 2012, dozens of other places still lay claim, based on a variety of criteria, to being the true birthplace of the modern Memorial Day:

According to the United States Department of Veterans Affairs, roughly two dozen places claim to be the primary source of the holiday, an assertion found on plaques, on Web sites and in the dogged avowals of local historians across the country.

Yet each town seems to have different criteria: whether its ceremony was in fact the earliest to honor Civil War dead, or the first one that General Logan heard about, or the first one that conceived of a national, recurring day.

Women in Boalsburg, Pa., which has a claim as the holiday’s birthplace, began decorating graves each year as early as October 1864. In and around Carbondale, Ill., according to the Jackson County Historical Society, there are two markers making such an assertion in two different cemeteries. James H. Ryan, a retired Army colonel, has descended into the Logan archives and come out with a strong case for the town where he lives, Petersburg, Va.

This — readers, please take note — is just a partial and by no means definitive list.

The multiplicity of sites that have claimed Memorial Day birthplace status for themselves are not all in the North; many contenders are Southern cities that were part of the Confederacy during the Civil War:

Columbus, Miss., was a hospital town, and in many cases a burial site, for both Union and Confederate casualties of Shiloh, brought in by the trainload. And it was in that Columbus where, at the initiation of four women who met in a 12-gabled house on North Fourth Street, a solemn procession was made to Friendship Cemetery on April 25, 1866.

As the story goes, one of the women spontaneously suggested that they decorate the graves of the Union as well as the Confederate dead, as each grave contained someone’s father, brother or son. A lawyer in Ithaca, N.Y., named Francis Miles Finch read about this reconciliatory gesture and wrote a poem about the ceremony in Columbus, “The Blue and the Gray,” which The Atlantic Monthly published in 1867.

Georgians dispute little of this. But they argue that the procession in the other Columbus was actually inspired by the events in their Columbus.

Professor Richard Gardiner has lived here for only a few years, but he has joined with an accountant named Daniel Bellware, an avid history sleuth originally from Detroit, and together they have written an academic paper making the case for Columbus, Ga.

“The ladies of the South instituted this memorial day,” read The New York Times on June 5, 1868. “They wished to annoy the Yankees; and now the Grand Army of the Republic in retaliation and from no worthier motive, have determined to annoy them by adopting their plan of commemoration.”

In his book Race and Reunion: The Civil War in American Memory, Professor David W. Blight made the case for Charleston, South Carolina, as Memorial Day’s birthplace, as that city was the site of an obscure (possibly suppressed) May 1865 event held at a racetrack turned war prison, during which freedmen properly reburied hundreds of Union dead found there and then held a ceremony to dedicate the cemetery:

African Americans founded Decoration Day at the graveyard of 257 Union soldiers labeled “Martyrs of the Race Course,” May 1, 1865, Charleston, South Carolina.

The “First Decoration Day,” as this event came to be recognized in some circles in the North, involved an estimated ten thousand people, most of them black former slaves. During April, twenty-eight black men from one of the local churches built a suitable enclosure for the burial ground at the Race Course. In some ten days, they constructed a fence ten feet high, enclosing the burial ground, and landscaped the graves into neat rows. The wooden fence was whitewashed and an archway was built over the gate to the enclosure. On the arch, painted in black letters, the workmen inscribed “Martyrs of the Race Course.”

At nine o’clock in the morning on May 1, the procession to this special cemetery began as three thousand black schoolchildren (newly enrolled in freedmen’s schools) marched around the Race Course, each with an armload of roses and singing “John Brown’s Body.” The children were followed by three hundred black women representing the Patriotic Association, a group organized to distribute clothing and other goods among the freedpeople. The women carried baskets of flowers, wreaths, and crosses to the burial ground. The Mutual Aid Society, a benevolent association of black men, next marched in cadence around the track and into the cemetery, followed by large crowds of white and black citizens.

All dropped their spring blossoms on the graves in a scene recorded by a newspaper correspondent: “when all had left, the holy mounds — the tops, the sides, and the spaces between them — were one mass of flowers, not a speck of earth could be seen; and as the breeze wafted the sweet perfumes from them, outside and beyond … there were few eyes among those who knew the meaning of the ceremony that were not dim with tears of joy.” While the adults marched around the graves, the children were gathered in a nearby grove, where they sang “America,” “We’ll Rally Around the Flag,” and “The Star-Spangled Banner.”

The official dedication ceremony was conducted by the ministers of all the black churches in Charleston. With prayer, the reading of biblical passages, and the singing of spirituals, black Charlestonians gave birth to an American tradition. In so doing, they declared the meaning of the war in the most public way possible — by their labor, their words, their songs, and their solemn parade of roses, lilacs, and marching feet on the old planters’ Race Course.

After the dedication, the crowds gathered at the Race Course grandstand to hear some thirty speeches by Union officers, local black ministers, and abolitionist missionaries. Picnics ensued around the grounds, and in the afternoon, a full brigade of Union infantry, including Colored Troops, marched in double column around the martyrs’ graves and held a drill on the infield of the Race Course. The war was over, and Memorial Day had been founded by African Americans in a ritual of remembrance and consecration.

Although contemporaneous accounts from the Charleston Daily Courier describe and document the 1865 ceremony that took place there, and the event was one the earliest known observances similar to what we would now recognize as Memorial Day, whether it was truly the first such ceremony, and what influence (if any) it might have had on later observances, are still matters of contention. Professor Blight termed it “the first Memorial Day” because it predated most of the other contenders, but he noted he has no evidence that it led to General Logan’s call for a national holiday in 1868: “I’m much more interested in the meaning that’s being conveyed in that incredible ritual than who’s first,” he said.

Last updated:   22 May 2015

Urban Legends Reference Pages © 1995-2015 by snopes.com.
This material may not be reproduced without permission.
snopes and the snopes.com logo are registered service marks of snopes.com.

Sources:

Robertson, Campbell.   “Birthplace of Memorial Day? That Depends Where You’re From.”    The New York Times.   26 May 2012.
   
Blight, David W.   Race and Reunion: The Civil War in American Memory.  Cambridge, MA: Belknap Press, 2001.   ISBN 1-674-00332-2   (pp. 69-71).

May 24 15

Georgia Uniform Superior Court Form SC-6.4(C)

by merlin

Had not written about this particular form before, but was well-aware of its existence.  I have put it here, without comment, for your future assistance.

SC-6.4(C) Sex Offender Special Conditions of Probation

State of Georgia v. __________________ Criminal Action #

These conditions are hereby incorporated into the Defendant’s sentence by reference. The Defendant is advised that violation of any Special Condition of Probation may subject the Defendant to a revocation of the balance of the period of probation and the Defendant may be required to serve up to the balance of the sentence in confinement. (Judge to designate conditions to be applied.)

1. _____ Contact with minors. You shall have no contact, whether directly in person or indirectly through any means of communication, with any child under the age of eighteen (18), including your own children, nor with any person unable to give consent because of mental or emotional limitations. Neither shall you attempt contact with the aforementioned except under circumstances approved in advance and in writing by the Court. If you have incidental contact with children, you will be civil and courteous to the child and immediately remove yourself from the situation. You will discuss the contact at your next meeting with your Probation Officer.

2. _____ Residence with a minor. You shall not reside with any child under the age of eighteen (18), including your own children, unless approved in advance and in writing by the Court.

3. _____ Residence change. You shall not change your residence without receiving prior approval by your Probation Officer.

4. _____ Victim contact. You shall have no contact with the victim, including correspondence, telephone contact, any form of electronic communication, or communication through a third party except under circumstances approved in advance and in writing by the Court. You shall not enter the premises, travel past, or loiter near where the victim resides.

5. _____ Employment. Your employment must be approved by your Probation Officer.

6. _____ Images of minors. Except as authorized by the Court or the Probation Officer, you shall not create, possess, access or control any type of photograph, video, rendering, or digital imagery of any minor.

7. _____ Relationships. You shall not date or marry anyone who has a child or children under the age of eighteen (18), unless approved in advance and in writing by the Probation Officer in consultation with the treatment provider or the sentencing Court. You are required to notify any such person of your criminal history.

8. _____ Sexually oriented material. You shall not possess or subscribe to any sexually oriented or sexually stimulating material to include mail, computer, or television, nor patronize any place where such material or entertainment is available.

9. _____ 900 numbers and post office boxes. You shall not utilize “900” telephone numbers. You shall not rent a post office box without permission in advance and in writing from your Probation Officer.

10. ____ Curfews. You shall abide by any curfew imposed by the Probation Officer.

11. ____ Evaluation and treatment. You shall attend and actively participate in sex offender evaluation and treatment at a program approved by the Probation Officer. You will abide by the rules of the treatment program and successfully complete the program to the satisfaction of the Probation Officer and the treatment provider. You will be financially responsible for all evaluations and treatment unless other arrangements have been made by your Probation Officer or treatment provider.

12. ____ Polygraph/plethysmograph. You shall submit, at your own expense, to any program of psychological or physiological assessment at the direction of the Probation Officer or treatment provider. This includes the polygraph and/or the plethysmograph to assist in treatment, planning, and case monitoring.

13. ____ Release of information. You shall sign releases of information to allow the Probation Officer to communicate with other professionals involved in your treatment program and to allow all professionals involved to communicate with each other. This will include a release of information to the therapist of the victim.

14. ____ Search. You shall submit to a search of your person, property, residence, or vehicle at any time of the day or night, with or without consent or a search warrant, whenever requested to do so by a Probation Officer or any other peace officer. You specifically consent to the use of any contraband seized as evidence in a probation violation proceeding.

15. ____ Alcohol. You shall not purchase, possess, or consume alcoholic beverages.

16. ____ Drugs. You shall not take into your body any controlled substance or mind altering drug except pursuant to a legal doctor’s prescription.

17. ____ Drug or alcohol screens. You shall submit to, and if necessary pay for, breath, urine, blood, or saliva tests for analysis for the possible presence of a prohibited drug or alcohol.

18. ____ Driving log. You shall keep a driving log and make it available to your supervising Probation Officer as requested.

19. ____ Driving. You shall never drive alone, especially through parks, playgrounds, school zones, or other areas where children are commonly known to be.

20. ____ Hitchhiking. You shall not hitchhike or pick up hitchhikers.

21. ____ Other special condition(s).

_____________________________________ _____________________________________

SO ORDERED this ____ day

of _______________________, 20______.

                                                                                             ___________________                                                                                              Judge of Superior Court

                                                                                             ________ Judicial Circuit

Acknowledgment: I have read the terms of this document or had them read and explained to me. I understand that violation of a special condition of probation could result in revocation of all time remaining on the period of probation.

_____________________________

Defendant

May 21 15

Documented Efforts to Collect on Attorney’s Fees (Part 4)

by merlin

In keeping with my tradition, after something is filed, I will post a form version of the document on which identifying features have been redacted.  Today, I supplementally finished the filing of the Complaint in this matter.

COMPLAINT FOR PAYMENT OF OUTSTANDING LEGAL FEES

 

            COMES NOW Merlinus Goodman Monroe, LLC and makes and makes and files this, its Complaint for Payment of Outstanding Legal Fees against XXXXX XXXXX XXXXX, Defendant herein, seeking money damages on the unpaid and outstanding legal debt of said Defendant, and in support thereof states the following:

1.

            Defendant XXXXX XXXXX XXXXX is a resident of XXXXX County, Georgia, and is subject to the jurisdiction of this Court.  Defendant may be personally served at XXXXX Street, Apartment XX, in XXXXX, Georgia 305XX-XXXX.

2.

            Defendant is indebted to Plaintiff on an account in the principal amount of $XXXXX (XXXXX Thousand, XXXXX Hundred Dollars), as more fully appears from the itemized statement of account, a copy of which is attached hereto and incorporated as if fully restated herein as Plaintiff’s Exhibit “A”, plus pre-judgment interest at the statutorily-authorized rate of one and one-half percent per month from the date of formal receipt of the ten-day demand letter, XXXXX XX, 2015, plus attorney’s fees as set forth in OCGA § 13-1-11, “15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00”, totaling $XX (XXXXX Dollars) for his stubborn and litigious action in forcing Plaintiff to rely on the power of the Courts in collecting a recognized, due, and owing debt, and all costs of this action.

3.

            A copy of the Attorney-Client Agreement setting forth this payment obligation, signed by Defendant and owing, is attached hereto and incorporated herein as Exhibit “B”.  A copy of the formal demand letter referred to above, setting forth the payment terms remaining on this obligation and providing a final opportunity to Defendant to pay this obligation without incurring any additional statutory fees is attached hereto and incorporated herein as Exhibit “C”.  A copy of the return receipt for delivery of Exhibit “C” by the United States Postal Service, bearing the signature of XXXXX XXXXX XXXXX, is attached hereto and incorporated herein as Exhibit “D”.

4.

         Exhibit “B1”, an engagement letter sent to Defendant and dated XXXXX XX, 2014, is hereby attached to and included in Exhibit “B”, evidencing a voluntary reduction made in the initial total payment obligation of Defendant by the undersigned, on behalf of Plaintiff law firm, reducing the total amount agreed-to for the representation by Defendant of $XX (XXXXX Thousand Dollars) to $XX (XXXXX Thousand Dollars), the amount of principal which has been sued upon.

5.

            Because Plaintiff has been forced to file suit against Defendant to collect money agreed-upon and owed, Plaintiff has been forced to incur certain expenses, in addition to the attorney’s fees previously requested.  These include costs for filing and costs for service by the XXXXX County Sheriff’s Office.  As of the date of this filing, these costs are approximately $XXXXX.00 (XXXXX Hundred XXXXX Dollars and XXXXX Cents).

            WHEREFORE, Plaintiff respectfully requests the following relief:

  1. For the grant of a judgment against Defendant on the pleadings affixed, which demonstrate a clear and lawful obligation and an inexcusable failure to pay, in the amount of $XXXXX plus statutory interest at a rate of one and one-half percent per month from XXXXX XX, 2015;
  2. For all costs of filing and service related to this action, which service by XXXXX has been necessitated by Defendant’s failure to enter into any dialogue with the undersigned to resolve this outstanding debt; and
  3. For such other and further relief as the Court in its discretion deems fit to grant.

 

Respectfully submitted, this XX day of XXXXX, 2015.

May 20 15

Documented Efforts to Collect on Attorney’s Fees (Part 3)

by merlin

In Georgia law, for certainty’s sake, a written contract should only ever be modified by a writing, and many contracts (such as my own Attorney-Client Agreement) require that any modifications be in writing, preferably signed by the party against whom the terms would be enforced.  Something in addition to the writing is known as “parol evidence”.  The Online Legal Dictionary defines “parol”, in part, as “A word; speech ; hence, oral or verbal; expressed or evidenced by speech only; not expressed by writing; not expressed by sealed instrument” at http://thelawdictionary.org/parol/

It is spoken to in the Official Code of Georgia at Section 13-2-2(1):

“(1) Parol evidence is inadmissible to add to, take from, or vary a written contract. All the attendant and surrounding circumstances may be proved and, if there is an ambiguity, latent or patent, it may be explained; so, if only a part of a contract is reduced to writing (such as a note given in pursuance of a contract) and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible;”

A case that talks about the rules surrounding use of parol evidence (or, rather, forbidding it, because it isn’t necessarily justifiable reliance to use parol evidence if the writing of the contract itself contradicts it) is Walden v. Smith, 546 S.E.2d 808, 249 Ga.App. 32 (Ga. Ct. App. 2001).  It does a good job of explaining exactly why claiming a fraud based on the conduct of the parties, when it is at odds with a written contract for the sale of land (a contract that is REQUIRED by the statute of frauds to be in writing), is ineffective, and why that is not justifiable reliance that would let the Court go beyond the writing:

Hatcher, Johnson, Meaney & Gothard, Ross L. Hatcher III, Chattanooga, TN, for appellants.

        Farrar & Corbin, Christopher L. Corbin, Summerville, for appellee.

        POPE, Presiding Judge.

        John and Marilyn Walden sued Conley Smith for breach of contract and fraud, alleging that Smith had misrepresented a material term in a lease/purchase agreement. Asserting several defenses, Smith moved for summary judgment. The trial court determined that the Waldens were estopped from pursuing claims for fraud or breach of contract due to their own conduct in failing to repudiate the contract after discovering the truth about the purported misrepresentation. Deciding that the Waldens’ claims were legally foreclosed, the trial court awarded summary judgment to Smith. We agree that Smith was entitled to judgment as a matter of law.

        On December 2, 1994, the Waldens and Smith executed a written lease/purchase agreement for a house and 18 acres in Dade County. The term was for 26 months at 400 per month. The purchase price was 79,995 with the Waldens receiving credit for rent paid during the lease. At the end of the 26-month period, on February 1, 1997, absent default, the Waldens would “have the exclusive right and option to purchase the property….” The contract contained a merger clause as well as a clause precluding any oral modification. The final paragraph of the contract stated: “[t]his document sets out the full and complete agreement of the parties, and any other agreements or amendments hereto not in writing shall be null and void.”

        Near the expiration of the twenty-six months, a third party expressed interest in purchasing about 1.92 acres on one corner of the property. The Waldens had no objection to that sale, so Smith sold that section to General Oliver Bryant and his wife, Penny M. Bryant. The deed for that sale was recorded on December 26, 1996. When the lease term ended, the Waldens were unable to buy the property because they did not have sufficient funds. It is undisputed that after February 1, 1997, when the contract expired, Smith and the Waldens did not enter into a new written agreement to amend, extend, or alter any terms of the contract.

        The Waldens continued to pay 400 per month in rent and to live in the house on the property. In September 1998, about 18 months after the expiration of the lease/purchase contract, John Walden told Smith that he had inherited some money from a recently deceased aunt and wanted to buy the property. Smith agreed to sell the property for 54,415, informing Walden he would give a 10,000 credit for the acreage sold to the Bryants and a 15,580 credit for the rent paid. In actuality, as Walden explained in his deposition, he had a side agreement with the Bryants to borrow 54,000 from them, buy the property, then convey it to them. Four days after purchasing the property from Smith, Marilyn Walden sold it to the Bryants for 73,594 with the Waldens retaining timber rights. John Walden later sold the timber for more than 20,000.

        When Walden recorded the warranty deed after the sale, he then discovered that the Bryants had paid 50,000 for the corner portion and not 10,000 as Smith had allegedly indicated to him.1 Walden believed that Smith had agreed to “knock off” or reduce the sales price by whatever amount the Bryants paid for the corner. Based on that premise, the Waldens brought suit.

        1. The Waldens contend that the trial court erred in granting summary judgment. They urge that the conduct of the parties established a waiver of the written modification requirement in the agreement. Under their theory, by continuing to accept their monthly rental payments, and by later giving them credit toward the purchase price for those payments, Smith evidenced his agreement to an oral extension of the term of the lease/purchase contract.

        Contracts for the sale of land or an interest in land must be in writing to comply with the Statute of Frauds. OCGA § 13-5-30(4). This rule applies equally to options to purchase land.Neely v. Sheppard, 185 Ga. 771, 775, 196 S.E. 452 (1938). “To comply with the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol.” Pettit v. Gray, 211 Ga.App. 439, 439 S.E.2d 673 (1993). When a contract is required by the Statute of Frauds to be in writing, any modification of the contract must also be in writing. Johnson v. Ashkouti, 193 Ga.App. 810(1), 389 S.E.2d 27 (1989). A contract for the sale of land that is partly in writing and partly in parol is unenforceable by reason of the Statute of Frauds. Stonecypher v. Ga. Power Co., 183 Ga. 498, 502(2), 189 S.E. 13 (1936).

        Although the Waldens claim that the written terms were changed by verbal agreement, unless an oral modification falls within an exception to the Statute of Frauds, such modification is ineffective. White v. Orton Indus., 224 Ga.App. 342, 343, 480 S.E.2d 620 (1997). Here, the purported oral modification, an agreement to reduce the purchase price by the amount paid by the Bryants, was never reduced to writing and never became a part of the lease/purchase agreement. Moreover, even if the modified agreement had been enforceable, it expired on February 1, 1997. After it expired, no enforceable contract existed—Smith could not compel the Waldens to purchase his property and the Waldens could not force him to sell it. Yet, under the Waldens’ theory, Smith remained obligated to sell the property to them for 79,995 less 50,000 and less the total paid in rent, on whatever date they ultimately decided to buy the property. This outcome contravenes fundamental principles of contract law as well as the Statute of Frauds. OCGA §§ 13-3-1; 13-5-30(4).

        Nor does any exception to the Statute of Frauds change this result. See Stonecypher, 183 Ga. at 503, 189 S.E. 13. When part performance of an oral agreement is relied upon to establish an exception to the Statute of Frauds, such part performance must be of an essential element of the contract sought to be enforced and of a character which would render it a fraud on the plaintiff if the defendant refused to comply. White, 224 Ga.App. at 344, 480 S.E.2d 620. Here, the Waldens merely paid the customary rent. They made no improvements to the property and did nothing to enhance its value. See Norris v. Downtown LaGrange Dev. Auth., 151 Ga.App. 343, 344, 259 S.E.2d 729 (1979).

        There was no evidence to show that Smith and the Waldens entered a written agreement as to the terms for the sale of the remaining realty after the sale of the corner portion. Absent a complete and binding agreement with respect to all essential terms, each party may freely withdraw its bid or proposition. OCGA § 13-3-2. Since a complete and legally sufficient contract did not exist, Smith was entitled to judgment as a matter of law. Firstline Corp. v. Valdosta-Lowndes County Indus. Auth., 236 Ga.App. 432, 434(1), 511 S.E.2d 538 (1999).

        Nor can the Waldens’ fraud claim survive summary judgment, since they rely on a faulty premise to support that claim, i.e., that Smith remained under a legal obligation to sell the property to them. Even with that assumption in place, the Waldens failed to establish a prima facie case of fraud. The tort of fraud requires proof of five elements: false representation, scienter, intent to induce another to act or to refrain from acting, justifiable reliance, and damage. Smalls v. Blueprint Dev., 230 Ga.App. 556, 559(1), 497 S.E.2d 54 (1998). But the Waldens can show neither justifiable reliance nor damage.2 When a buyer could have protected himself by the exercise of due diligence, he cannot show justifiable reliance on his part. Simmons v. Pilkenton, 230 Ga.App. 900, 901(2), 497 S.E.2d 613 (1998). “`The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity.'” Real Estate Intl. v. Buggay, 220 Ga. App. 449, 452(2), 469 S.E.2d 242 (1996). Although due diligence is generally a jury question, an exception occurs when a plaintiff cannot offer evidence that he exercised his duty of due diligence to ascertain the truth and to avoid damage. Wender & Roberts, Inc. v. Wender, 238 Ga.App. 355, 360(4), 518 S.E.2d 154 (1999).

        Here, the actual amount paid by the Bryants was a matter of public record and readily ascertainable upon inquiry. After the Bryants declined to reveal the purchase price, the Waldens could have easily obtained this information by examining public documents before buying the property. See Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754, 756(2),371 S.E.2d 217 (1988). This they failed to do. See Fowler v. Overby, 223 Ga.App. 803, 804(1), 478 S.E.2d 919 (1996). Because the Waldens did not meet their burden of presenting evidence to demonstrate justifiable reliance, Smith was entitled to judgment as a matter of law. Simmons, 230 Ga.App. at 901(1), 497 S.E.2d 613; Hill, 187 Ga.App. at 756(2), 371 S.E.2d 217.

        2. In light of this holding, other issues raised in this appeal are moot.

        Judgment affirmed.

        MILLER and MIKELL, JJ., concur.

——–

        

Notes:

        1. Smith testified that he had agreed to loan197,000 to the Bryants to enable them to purchase the land and construct a convenience store. Smith testified that the loan was for247,000 with the Bryants making a50,000 down payment.

        2. Including the amount paid in rent, the Waldens paid 64,800 for property which they sold four days later for 73,594 and for which they also received an additional 20,000 from the sale of timber.

——–

May 18 15

American Bar Association Webinar Notes – “Pot, Parenting, and Government Intervention”

by merlin

ABA CLE – Pot, Parenting, and Government Intervention

Webinar – May 18, 2015

 

Quick Review of Materials

Though Georgia makes medical cannabis legal in July, still illegal now

Mississippi decriminalized possession of small amounts of marijuana

 

Emma Ketteringham – Director, Family Practice (The Bronx Defenders)

South Carolina, Texas, a few others – prenatal exposure is AUTOMATICALLY neglect

·         Laws coalesced in 1980s with “crack baby” media (now understood to have been scientifically unsound)

·         Promoted 2 ideas: mothers using illegal drugs cause children born disadvantaged and harmed, and second idea is that said children more likely to engage in illegal activities as adults

·         CAPTA and ASFA

·         National racial disparity – black people 4x more likely to be arrested for it;

Zip code increases likelihood of birth testing

Black women are 10x more likely to be tested for illegal drugs at birth (even though white women shown to use in greater proportions during pregnancy)

·         Higher number of NICU screenings done on infants from black mothers (FACT)

Has looked at a “harm reduction” approach; every step aimed at REDUCING the harm or risk of harm to the child is positive; experts who talk about THAT approach over an “abstinence-only” approach

THIS IS VERSUS A “ZERO-TOLERANCE” MODEL

·         Again, pot decriminalized in small amounts in NY

·         Few cases filed based solely on parents’ use of marijuana; usually (like others) it is alongside other allegations (ex. mental health)

·         Cases filed for fathers’ failure to stop mothers from smoking during pregnancy!

·         How it is treated is not uniform among judges – some have no problem, but some require a clean test before unsupervised visits allowed

o   Drug MISUSE is the harm that can be prosecuted;

o   If parent is already voluntarily in treatment program, State must prove actual harm or risk of harm

o   NY Court of Appeals (highest court) held that MORE THAN positive test at birth required for negligence

There IS A LIST MAINTAINED of parents that have had issues related to marijuana use.

 

Kathryn Wells – Denver Health Clinic at the Family Crisis Center

Topical marijuana application – non-psychoactive

Drug Testing – specific to clinical area

·         Amino acid tested for

·         A false positive is rare; GCMS or LCMS is follow-up that is necessary then after a false positive

·         There is also a “sweat patch test”; wear it for a period of time and it collects evidence over time

·         Infants: If positive, test meconium (the thick, tarry stool that is shortly after birth)

·         A positive test CAN ONLY SHOW RECENT USE (7-10 days in an average user), not current use

·         Secondhand use is probably not going to show up unless it is STRONG EXPOSURE (positive test generally ONLY from direct use)

Colorado law passed that protects mother from prosecution by disclosure during pregnancy; they want full disclosure!!!!

·         Studies done that show that it is CRITICAL to keep mother together with baby where possible.  Is the child ACTUALLY at risk???

o   Allowing a PRESUMPTION of harm does more harm than use alone does

·         Only 3 longitudinal studies made (old; conflicting results) – consistently showed long-term impact on behavior from prenatal exposure

·         Effects may not appear until adolescence

·         NO KNOWN SAFE AMOUNT OF MARIJUANA DURING PREGNANCY

·         Breastfeeding will give THC to the baby

·         Caregiver Impairment – can affect child’s own brain growth

·         To understand issue better:

o   What was it prescribed FOR?

o   Ex. marinol prescribed to treat appetite disorders for a while

o   Cannabidiol is HIGH CBG (so does not have the same psychoactivity as cannabis)

o   None of the formal medical organizations (ex. AMA, American Psychiatric Association, etc.) endorse legalization and actively oppose use as medicine by smoking

·         Other than marinol, cannot foresee recommending cannabis-based medication to pregnant woman (as other medications address the issues she might have)

·         Marijuana smoke, according to her, has the same KIND of danger as cigarette smoke for lung cancer

·         Breast milk = FULL OF LIPIDS (marijuana likes lipids), so clean urine screen does not mean no marijuana in system

 

Jennie Laird – Commissioner, King County Superior Court

1.      Parental rights/time – “Not to be restricted”

2.      Can use the use to restrict, though – secondary effects of use can cause negligence

3.      Ex. long term use caused impairment that negatively impacts

·         Recreational marijuana law – over 21, can possess less than 1 OZ; no public use

o   Medical Cannabis use:          requires extensive conditions (incl. other treatments previously tried; not JUST medical marijuana card)

·         Generally sees marijuana used with other substances;

·         Issue is when marijuana is used to the extent that the parent is rendered unable to capably parent the child

·         Also an issue when marijuana is trafficked out of the home (police intervention, constant traffic, etc.)

o   It testing frequent or is it 1-time (1-time doesn’t tell a lot)?

o   Impact of use by parents on children?

o   Does use bleed into abuse (when it’s legal in the State)?

o   Attorneys should be MINDFUL that reality of the recommendations versus the ABILITY OF THE PARENTS to comply causes issues

·         Disproportionately seem to be families of color and families that are struggling (it is who is doing the reporting, it seems)

·         Alternatives to “Abstinence-Only”:

o   Treatment recommendations; not ALWAYS abstinence-only

o   Ongoing urine testing that shows DECLINING THC levels

 

Christopher Henderson – Rocky Mountain Children’s Law Center

In CO, use alone IS NOT A BAR to returning the child!

·         Edibles have become a huge issue in CO, because kids ingest unknowingly (think they are candy), take them to school, etc.

·         As a GAL, biggest issue he faces is kids taking it unknowingly.

o   Considers the home environment; do children have access to it; are they providing the necessities; what about emotional availability and parental responsibilities?

Treat marijuana use as merely one factor among other parenting factors (ex. mental health, employment, etc.)

·         Associated problems – huge increase in home robberies, etc., b/c $ can’t be deposited so $ kept in the home;

Problem of in-home cultivation

He has found that the judges are far more open to allowing some recreational use than the Department is (knee-jerk reaction).

 

 

 

May 9 15

Documented Efforts to Collect on Attorney’s Fees (Part 2)

by merlin

Due to the ongoing nature of this work, this will be a continuing series.  I have never before filed suit against a client, but this involves two different persons who simply refuse to make any payment arrangements with me and, despite obtaining exactly their goals (one matter requiring extensive negotiation and preparation for a really brutal trial, that wound up being unnecessary), had the gall to tell me that they didn’t feel I did that much for them.  I know otherwise; as many lawyers can attest, we often get accused of not doing very much because the dramatically larger portion of our work is the preparation, often for an ordeal that may not happen at all.  This is because successful negotiation can render that preparation unnecessary.  However, a contract is a contract, and I am unable to honor my own obligations if my clients are unwilling to honor theirs.

With that in note, one of the things that I did today was to make absolutely sure that the attorney’s fee statute for collections that I referenced previously can absolutely be applied to my own work in collecting unpaid fees.  It can, and that is the essence of the case below, Hal Wright Esq., P.C. v. Gentemann, 327 Ga. App. 650, 760 S.E.2d 624 (Ga. Ct. App. 2014):

Anthony Charles Lake, Atlanta, for Appellant.

Gerald Gentemann, pro se.

ANDREWS, Presiding Judge.

         Hal Wright, Esq., P.C. (the “P.C.”), the professional corporation for the law practice of Howell Franklin Wright, filed an action against Gerald Gentemann in the trial court to collect an unpaid invoice for attorney fees under a contract for legal services. Following a bench trial, the trial court entered a judgment for the P.C. in the amount of $19,715.70, which included an award of attorney fees and expenses the P.C. incurred in retaining outside counsel to represent it in the action. The P.C. appeals, arguing that the trial court also should have awarded it attorney fees for professional services Wright rendered in the action before the P.C. engaged outside counsel. 1 We conclude that the trial court refused to award the P.C. fees for Wright’s services on an erroneous legal ground, and we therefore reverse the trial court’s judgment in part and remand for the trial court to determine whether the P.C. proved that the fees in issue are reasonable.

         In an appeal from a bench trial, we apply a de novo standard of review to questions of law decided by the trial court. Antonios v. Gwinnett Clinic, 294 Ga.App. 101, 102(1), 668 S.E.2d 531 (2008).

         The evidence at trial showed that in or around June 2011, three of Gentemann’s former business associates, who resided in Japan, asserted that Gentemann had defrauded them, and Gentemann contacted Wright about these allegations. On or around July 1, 2011, Wright sent Gentemann a contract for legal services. Although Gentemann had not yet executed the contract for legal services, Wright corresponded with the attorney in Japan representing Gentemann’s business associates regarding evidence she provided to support the fraud allegations. On August 10, 2010, Wright sent the attorney in Japan a final response to the fraud allegations. On the same date, Gentemann executed the contract for legal services. The contract provided that Gentemann would pay an hourly rate of $260 for legal services, that a delinquency charge of one and a half percent interest per month would apply to statements that were unpaid after 30 days, and that “[the P.C.] is entitled to attorney’s fees and costs if collection activities are necessary.”

        On October 25, 2011, Wright sent Gentemann a letter stating that the P.C. had concluded its representation of Gentemann and that Gentemann owed attorney fees of $12,168. No payment was forthcoming, and the P.C. commenced its action against Gentemann. Wright initially represented the P.C. in the action, but the P.C. eventually retained outside counsel. Wright testified at trial that Gentemann owed the P.C. the fees specified in the October 25 letter and $3,723 in interest. According to an itemization of damages entered into evidence, the P.C. sought to recover a total of $19,239.90 in fees and expenses associated with bringing the action against Gentemann, broken down as follows: $12,189 in attorney fees and $497.72 in expenses for Wright’s representation of the P.C. and $4,840 in attorney fees and $1,713.20 in expenses in hiring outside counsel. A timesheet detailing Wright’s work on the matter and a detailed invoice from outside counsel were attached to the itemization, and Wright testified that in his opinion, the fees incurred were reasonable.

        At the conclusion of the bench trial, the trial court stated that it would enter judgment in the P.C.’s favor for $12,168 for legal services to Gentemann, $3,024 in interest, and $4,523.70 in attorney fees and costs for hiring outside counsel. The trial court excluded fees and expenses for Wright’s representation of the P.C., stating: “I’m not awarding any attorneys fees to Mr. Wright for his own work … in this case.” Regarding outside counsel’s fees and expenses, the trial court explained that it was excluding fees for leaving telephone messages and those associated with a motion for reconsideration that was ultimately withdrawn, stating there “wasn’t a reason for it.” Judgment was entered consistent with these rulings.

         The P.C. thereafter filed a motion for reconsideration, arguing that the trial court erred in excluding attorney fees and expenses associated with Wright’s legal services in the action against Gentemann. The P.C. filed its notice of appeal before the trial court ruled on the motion. The trial court then entered an order and amended judgment denying the motion with regard to recovery of additional attorney fees but awarding the P.C. an additional $497.72, representing Wright’s expenses in the action against Gentemann.

         1. The P.C. argues that the trial court erred in concluding that the attorney fee provision in the contract for legal services did not authorize an attorney fee award for Wright’s professional services in the action against Gentemann.

         “Generally an award of attorney fees is not available unless supported by statute or contract.” (Citation omitted.) Cason v. Cason, 281 Ga. 296, 299(3), 637 S.E.2d 716 (2006). The parties’ contract in this case expressly authorized an award of attorney fees, stating that “[the P.C.] is entitled to attorney’s fees and costs if collection activities are necessary.” When a contract for legal services contains a provision like this one, an award of attorney fees is available with respect to a firm or attorney’s self-representation in an action to collect fees owed by a client.Abrams v. Putney, 304 Ga.App. 626, 628–629(1), 697 S.E.2d 269 (2010) (evidence was sufficient to support fee award to attorney for his partial handling of collection action against former client); Vaughters v. Outlaw, 293 Ga.App. 620, 623(2), 668 S.E.2d 13 (2008) (attorney who filed suit to recover attorney fees from former client was entitled to attorney fees even though she did not retain outside counsel); Sprewell v. Thompson & Hutson, South Carolina, LLC, 260 Ga.App. 312, 315(3), 581 S.E.2d 322 (2003) (trial court did not err in determining that law firm was entitled to recover attorney fees and expenses associated with its work in collection action).

         Nonetheless, when it verbally announced its judgment, the trial court stated that it was excluding fees and expenses for Wright’s own work in the case. It gave no indication at the time that the fees were excluded as unreasonable. By contrast, when it addressed the fees and expenses for outside counsel, the trial court explained that it was excluding certain amounts as unwarranted or unreasonable. Based on the trial court’s remarks, we conclude that the trial court declined to award any attorney fees for Wright’s work in the action against Gentemann on the erroneous ground that the fee shifting clause in the contract for legal services did not allow a fee award for Wright’s own services. See Infinite Energy v. Cottrell, 295 Ga.App. 306, 311(5), 671 S.E.2d 294 (2008) (“[A] court’s oral pronouncements on the record may provide insight on the intent of [its] judgment”) (punctuation and footnote omitted). As such, we must reverse the trial court’s judgment in part and remand the case for the trial court to apply the proper standard. See Hill v. Clarke, 310 Ga.App. 799, 800, 714 S.E.2d 385 (2011) (reversing and remanding when trial court denied statutory attorney fees based on erroneous legal theory).

         While there is no per se rule that disallows the P.C.’s contractual claim for attorney fees for Wright’s services, “[i]t is well-settled that an award of attorney fees is to be determined upon evidence of the reasonable value of the professional services which underlie the claim for attorney fees.” Southern Cellular Telecom v. Banks, 209 Ga.App. 401, 403(1), 433 S.E.2d 606 (1993). Thus, on remand, the trial court must determine whether the P.C. met its burden of proving the value and reasonableness of the fees for Wright’s work. See Vaughters, supra, 293 Ga.App. at 624(2), 668 S.E.2d 13.

         2. In its order on the P.C.’s motion for reconsideration, the trial court concluded that the attorney fees at issue in this appeal were unreasonable, noting that, if awarded, the P.C. would recover a total of $16,712.98 in fees and expenses, an amount that would exceed Gentemann’s original debt. “Georgia law is clear that the filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” (Citation and punctuation omitted.) Lowe v. Center Neurology Assoc., P.C., 288 Ga.App. 166, 168(1), 653 S.E.2d 318 (2007); OCGA § 5–6–46(a). As such, the trial court’s order granting in part and denying in part the motion for reconsideration is void and of no effect. See Screven v. Drs. Gruskin & Lucas, P.C., 227 Ga.App. 756, 757(1), 490 S.E.2d 422 (1997).

        Judgment reversed in part and case remanded with direction.

McFADDEN and RAY, JJ., concur.

——–

Notes:

        1. Gentemann, who represented himself in the trial court, has not filed an appellee’s brief.

May 2 15

Limited Analysis (Desirability of the Iranian Negotiated Nuclear Agreement)

by merlin

Because there is considerable disagreement between the USA and Iran on the “objective” implementation of the international agreement between the two countries but I only have access to the formal White House version of the deal and the International Atomic Energy Agency (henceforth, “IAEA”) rendition of the arrangement, of which only the latter is considered “universally trustworthy” (given the Republican (strange) stance, also adopted now by the Iranian Ayatollah, and subsequently by President Rouhani), I will make every effort to list where a particular factual statement comes from, and to rely primarily on the IAEA report.  The basic thrust of my argument is that the interests of the Islamic Republic of Iran are addressed by the continued availability of alternative fuel sources in the form of nuclear energy and by the alleviation of economic, etcetera, sanctions; the interests of the United States (and its partners, but primarily the US, since that is the country that I live in and deal with) are addressed by the actions taken by Iran to reduce its existing enriched uranium stockpiles and eliminate its future acquisition of excessively enriched uranium, and thereby not obtain a nuclear bomb.  The Iranian side may be reassured as to US actions by the checks that are in place in a truly diligently-enforced (as it has been at an increasing rate) Foreign Corrupt Practices Act, to prevent abuse by domestic companies seeking to profit in Iranian markets, and the American parties to the agreement may be reassured as to Iran’s actions by the independent checks performed (on what is apparently a consistent and frequent basis) by the IAEA on Iranian nuclear stockpiles and Iranian nuclear facilities.

I ignore the glaring hypocrisy of the American stance (as Iran, unlike both the United States and the country that seems to be pushing its hand, Israel to act irrationally and aggressively, is a signatory to the Nonproliferation Treaty that eliminates and minimizes the nuclear capabilities of the country, while it is being harshly dictated to by a coalition of countries that continue to act in a relatively unstable manner and, at least as concerns the United States, eager to act aggressively).  Iran can and should embrace the United States’ economic actions in their favor, and take their claims at face value, because of the Foreign Corrupt Practices Act (henceforth referred to as “FCPA”), enacted into law in the United States Code at 15 USC 78dd et seq., and because of the binding force of treaties that are properly entered-into domestically on the United States’ international actions.  I actually attended a multi-day continuing education session on the FCPA and its implementation in Washington, D.C, and learned that it allows the government to criminally and civilly pursue companies that manipulate foreign markets and currency and bribe officials to do business or to aid their business ventures.  I am surprised has not been used as an aggressive tool more often but which may have been compromised by the payment of ridiculous fines.  However, its use has increased in frequency and intensity as a tool available to the federal government, and it can serve as a very useful tool for responding aggressively to abuse of the international rapprochement that Iran would enter into with the West and the Russian Federation.

The specific IAEA report that I describe as my primary objective source is dated February 19, 2015, and is entitled “Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran”, a report by the Director General.  It has certain key provisions that it begins with, that are the basic ideas of the Agreement and that are, to my knowledge, the objective provisions that govern the arrangement between Iran and the counties that are acting in concert to embargo and to restrict Iran.  From this document, the basic provisions that are an essential feature of the agreement between the two counties include the following highly relevant foundational statements of fact:

  • The Director General held talks with the foreign minister of Iran, HE Mohammed Javad Zarif on February 7, 2015, so the conclusions upon which this paper are based (as of February 19, 2015), were agreed-upon by the governments of the counties involved as recently as 2/7/15.
  • Since the JPA (the Joint Plan of Action – the agreed plan for Iran to comply with IAEA requirements and thereby obtain reduction in sanctions, etc., by the other involved nations) took effect (November 11, 2013) Iran has not enriched UFabove 5% U-235 (the percentage for use as nuclear fuel for alternative fuel purposes; it takes 20% to be weapons-grade) at any of its declared facilities (which are, apparently, all of their known facilities).
  • Since the JPA took effect, Iran has reduced its UFstock that was enriched up to 20% or more through downblending of conversion into uranium oxide.  I still have to look up downblending as a method, and uranium oxide toxicity, use for weapons/fuel/etc.
  • Iran apparently had an agreed rate of consistent production of UFthat was 5% enriched that the IAEA found acceptable as fuel, and this has supposedly remained consistent.  Apparently, this amount if 7,952.9 kg.

As concerns the specific operative legal principles governing in the United States that would give a positive outcome to the treaty negotiations for Iran, the source which I have chosen, since the Executive Branch seems to have agreed to the Legislative Branch’s insistence on involvement in the actual treaty negotiation process itself (which makes little Constitutional sense, I believe, but which is an analysis for a different occasion), is the document entitled “International Law and Agreements: Their Effect upon U.S. Law”, written by Michael John Garcia, Legislative Attorney, and published on February 18, 2015, in the Congressional Research Service, found at http://fas.org/sgp/crs/misc/RL3252.  This document contains the information that the Legislature would consider itself bound by, since it distrusts any interpretation of Constitutional authority available from the Executive Branch.  The specific difficulty that Congress has inserted into the negotiations with Iran are in the form of a delay by which the bodies of Congress would be able to evaluate the deal and the lifting of sanctions that accompanies any such deal.  Specifically, the following summary of that action is from the Washington Post article, “Iran Leader: We are in talks with ‘the major powers,’ not the U.S. Congress”:

“Throughout the debate over the legislation, the administration insisted that Congress had no power to approve or disapprove any deal Obama made with Iran and could vote only on lifting the sanctions it had passed. Those sanctions, which include waiver provisions that Obama has now given up for at least 30 days, are just part of the long-standing restrictions against Iran, which include other sanctions imposed over the years by executive order that the president retains the right to waive. Still more sanctions have been imposed by the United Nations and the European Union.”

As drawn from the document described above by Michael John Garcia, the power that Congress has in this case on the treaty arrangement with Iran solely comes from the perception of Congressional action being necessary to achieve a positive outcome in and from the United States; specifically, in order for the treaty to be fully executed, sanctions need to be lifted.  As noted above, Iran is fulfilling its own obligations under the treaty, and its progress is being monitored by the IAEA.  However, the reduction of sanctions has only been agreed-to by Congress if they approve the deal in its final form, 30 days after the final form of the agreement is decided by the parties.  The Congressional Research Service article, which is where Congress is getting its arguably inaccurate information, says of such treaties (that require some action to be taken domestically to become operative, such as the sanctions in this situation) that they and also “executive agreements that are not self-executing generally have been understood by the Courts to have limited status domestically; rather, the legislation or regulations implementing these agreements are controlling.”  The letter recently sent by certain Congressmen to the government of Iran in which they called into question the ability of the Administration to negotiate on behalf of the United States and the willingness of the United States to honor the obligations it has undertaken was plainly meant to add weight to the assertion that this treaty or executive agreement was not independently self-executing, kind of like the rhetorical tool of repeating a baseless assertion so often that it becomes an accepted assertion, even though it is untrue.

 Of course, this completely ignores the fact that the treaty negotiated by the Administration is a self-executing treaty or executive agreement, and the reduction of sanctions would be required under customary international law, since it is an obligation entered into by our country in good faith with other countries; interference by lesser parties would be tantamount to treason.  The Congressional Research Service article has this to say regarding self-executing treaties: “[they] have a status equal to federal statute; superior to U.S. state law, and inferior to the Constitution.”

Apr 25 15

The Uniform Transfer Rules – Appeals from Inferior to Superior Courts (In Brief)

by merlin

This is a public service announcement on the proper method to handle this situation if it should arise for you in the future in Georgia, as there are folks out there that would like to proceed with matters without the benefit of an attorney, and that is one of the most appreciated aspects of Magistrate Court – it is widely considered a Court for people to proceed in without need for a lawyer, and the maximum amount in controversy – $15,000 – typically addresses most disputes between private persons.

Section 15-10-41(b)(1) of the Official Code of Georgia puts forward the rule that “[e]xcept as otherwise provided in this subsection, appeals may be had from judgments returned in the magistrate court to the state court of the county or to the superior court of the county and the same provisions now provided for by general law for appeals contained in Article 2 of Chapter 3 of Title 5 shall be applicable to appeals from the magistrate court, the same to be a de novo appeal.”

The idea that the appeal is termed “de novo” means, would take place again, as if the prior trial did not exist at all.  It is defined by the Online Legal Dictionary (Black’s) as meaning “[a]new; afresh; a second time. A venire de novo is a writ for summoning a jury for the second trial of a case which has been sent back from above for a new trial.”

However, it is important to remember the concept of res judicata, which is often available as a defense against a claim that something is heard de novo.

The Online Legal Dictionary defines res judicata as follows: “Latin- a thing adjudicated. Once a lawsuit is decided, the same issue or an issue arising from the first issue cannot be contested again.”

This concept is terribly important as balanced against the idea of a de novo appeal when the other maxim that influences these concepts is considered – you cannot benefit from what you should have done when you chose the course of action that made you suffer.  An excerpt from the case below illustrates this better than I just said it:

Mahan v. Watkins, 256 Ga.App. 260, 568 S.E.2d 130 (2002) (where plaintiffs brought a suit in magistrate court that included equitable claims over which magistrate court had no jurisdiction, plaintiffs’ attempt to re-assert these equitable claims in subsequent superior court case was barred by res judicata, as “the [plaintiffs] chose the [magistrate court as their initial] forum and were bound by the limitations of the court that they chose”) (footnote omitted). See also Green v. Bd. of Directors of Park Cliff Unit Owners Assn., 279 Ga.App. 567, 631 S.E.2d 769 (2006) (condo owner who filed suit for money damages in magistrate court could not later assert equitable claims in superior court based on same set of facts).”

The case I just quoted here is listed in full below.  It illustrates that delicate balance between the two concepts.  This was an appeal from a Magistrate Court case that was decided – but incorrectly, because the Magistrate Court lacked jurisdiction to render a verdict, and the case should have been filed in Superior Court, since it had jurisdiction to decide the issues.  This case is Setlock v. Setlock, 286 Ga. 384, 688 S.E.2d 346 (Ga. 2010):

       Ann M. Vaughan, Blairsville, for appellant.

        Bryman & Clerke, David N. Bryman, Marietta, for appellee.

        MELTON, Justice.

        Steven Setlock and his father, Eugene Setlock, entered an alleged oral agreement to purchase a lake house property located in Blairsville, Georgia (“Lake House”). The agreement provided for Eugene to pay $150,000 of the $203,250 purchase price. Steven was to finance the remainder and pay the monthly mortgage payments, taxes, and insurance on the property. Despite the alleged oral agreement for the parties to purchase the property together, title to the property was acquired solely in Steven and his wife’s names, and Steven contends that Eugene and his wife were only allowed to live at the Lake House as Steven and his wife’s tenants. See, e.g., Browning v. Fed. Home Loan Mtg. Corp., 210 Ga.App. 115(3), 435 S.E.2d 450 (1993).

        While Eugene and his wife were living on the property, a dispute arose between the parties, which eventually led to Steven filing a dispossessory action against Eugene and his wife in the Union County Magistrate Court in July 2007. Eugene filed counterclaims seeking to quiet title, a declaratory judgment, and an injunction, and pursuing money damages that exceeded the $15,000 jurisdictional limit1 of the magistrate court (the “Lake House claims”).2 Based on his assertion of equitable claims and a request for money damages in excess of the magistrate court’s jurisdictional limit, Eugene petitioned to have the case removed to the Superior Court of Union County. However, the magistrate court denied transfer and entered a judgment, granting possession of the Lake House to Steven and granting a writ of possession in favor of Steven, requiring Eugene and his wife to vacate the premises. Eugene then attempted to appeal the magistrate court judgment to the Superior Court of Union County, but the superior court dismissed the appeal as untimely.

        On May 22, 2008, Eugene then filed in the Superior Court of Union County a petition to quiet title, which contained the same Lake House claims that he had previously filed as counterclaims in the magistrate court dispossessory action. Steven moved to dismiss the complaint, and the superior court granted the motion with regard to the Lake House claims, determining that the doctrine of res judicata barred Eugene from reviving in superior court the same claims that he had previously asserted as counterclaims in magistrate court. We granted Eugene’s application for discretionary appeal to determine whether the superior court erred in determining that Eugene’s Lake House claims were barred by res judicata. For the reasons that follow, we reverse.

        “The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.” (Citation and punctuation omitted.) Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 546, 629 S.E.2d 260 (2006). Before res judicata applies, three prerequisites must be satisfied — “(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” Id. Here, the first two elements are not at issue as the parties involved are the same and the claims Eugene filed in superior court were identical to the counterclaims he had previously alleged in magistrate court. The only question before this Court is whether the magistrate court was a court of competent jurisdiction regarding Eugene’s Lake House claims such that its judgment is binding, which would bar revival of Eugene’s Lake House claims in superior court.

Each magistrate court and each magistrate thereof shall have jurisdiction and power over … [t]he trial of civil claims … in which exclusive jurisdiction is not vested in the superior court and the amount demanded or the value of the property claimed does not exceed $15,000.00 … [and][t]he … issuance of writs and judgments in dispossessory proceedings.

        OCGA § 15-10-2(5) and (6). However, “[f]or the purpose of enabling all persons owning real estate within this state to have the title thereto settled and registered[,] … the superior court of the county in which the land is located shall have exclusive original jurisdiction of all petitions and proceedings had thereupon.” (Emphasis supplied.) OCGA § 44-2-60.

        Thus, here, although the magistrate court had jurisdiction over Steven’s dispossessory action, it did not have jurisdiction to render a binding judgment on Eugene’s Lake House counterclaims which included claims for declaratory judgment, to quiet title, and an injunction, and which sought money damages that exceeded the $15,000 jurisdictional limit of the magistrate court. See Myers v. North Ga. Title & Tax Free Exchange, LLC., 241 Ga.App. 379, 380(1), 527 S.E.2d 212 (1999). Indeed, unlike in the cases cited by Steven in his brief, here, Eugene did not “choose” the magistrate court as the forum within which to bring his Lake House counterclaims, thereby binding him to any judgment rendered in the magistrate court and preventing him from later re-asserting his claims in a future action. See Mahan v. Watkins, 256 Ga.App. 260, 568 S.E.2d 130 (2002) (where plaintiffs brought a suit in magistrate court that included equitable claims over which magistrate court had no jurisdiction, plaintiffs’ attempt to re-assert these equitable claims in subsequent superior court case was barred by res judicata, as “the [plaintiffs] chose the [magistrate court as their initial] forum and were bound by the limitations of the court that they chose”) (footnote omitted). See also Green v. Bd. of Directors of Park Cliff Unit Owners Assn., 279 Ga.App. 567, 631 S.E.2d 769 (2006) (condo owner who filed suit for money damages in magistrate court could not later assert equitable claims in superior court based on same set of facts). To the contrary, Eugene was the defendant in the dispossessory action here. He raised his counterclaims in response to an action that was initially filed by Steven in the magistrate court. To avoid potential waiver of his counterclaims that arose out of the transaction or occurrence that was the subject matter of Steven’s dispossessory action, Eugene was required to raise them in magistrate court. See OCGA 15-10-45(a) (compulsory counterclaims in magistrate court). However, the statutory requirement for Eugene to raise his compulsory counterclaims in magistrate court did not somehow confer jurisdiction in that court to resolve these claims over which, by law, it had no jurisdiction. See OCGA §§ 15-10-2 and 44-2-60.

        Due to the magistrate court’s lack of jurisdiction over the Lake House counterclaims raised by Eugene, it was not a “court of competent jurisdiction” to resolve these claims on the merits, and the doctrine of res judicata did not bar Eugene from re-asserting these same claims in superior court. See Brown Realty Assoc. v. Thomas, 193 Ga.App. 847(2), 389 S.E.2d 505 (1989)(Where party asserted as a defense in magistrate court dispossessory action that property had been fraudulently sold, res judicata did not bar the party from re-asserting this claim in superior court, because “[s]uperior courts have exclusive jurisdiction in cases respecting title to land … [and] [r]es judicata only applies if the [prior] judgment is from a court of competent jurisdiction”) (citations and punctuation omitted). Accordingly, the superior court erred in determining that the Lake House claims asserted in Eugene’s petition to quiet title were barred by res judicata.

        Judgment reversed.

        All the Justices concur.

—————

Notes:

1. See OCGA § 15-10-2(5).

2. Eugene also asserted claims of breach of fiduciary duty and conversion, but those claims are not at issue in this appeal.

—————

This case refers to the idea that the Magistrate Court did not have jurisdiction to decide the equitable claims made in the suit, and it should have been brought in Superior Court, which does have that jurisdiction.  The proper court to hear a dispute is governed by what are known as the Uniform Transfer Rules.  The following is the commentary that governs them:

The Uniform Transfer Rules “are adopted pursuant to the authority of Art. VI, Sec. IX, Par. I on the 1983 Constitution of the State of Georgia to implement Art. VI, Sec. I, Par. VIII of the 1983 Constitution which provides that: “Any court shall transfer to the appropriate court in this state any civil case in which it determines that jurisdiction or venue lies elsewhere.””

As is hinted at in the Setlock case above, the Uniform Transfer Rules would require an affirmative motion by a party who wanted a transfer and, where they apply, it would be error to deny that transfer.  Rule T-4 covers this situation:

These rules shall become operative when a party makes a motion to dismiss, or any other motion or defense, on the basis that the court in which the case is pending lacks jurisdiction or venue or both. Such motion shall be treated as a motion to transfer pursuant to these rules. A motion to transfer shall be made only in the court in which the case is pending. These rules also become operative when a court on its own motion, after a hearing thereon, determines that it lacks subject matter jurisdiction.”

Note that the Court has the power to do this “on its own motion”, but it requires a hearing on the issue and the Court then gets to hear evidence and argument from the two sides concerning the issue.  Again – this is why an attorney is ABSOLUTELY NECESSARY.

Apr 22 15

Documented Efforts to Collect on Attorney’s Fees (Part 1)

by merlin

This is the first entry in an intended series of posts to describe efforts which I have initiated against certain recalcitrant clients after their cases finished (as they requested, I might add) and they failed to pay me.  I initially attempted to request payment from them informally, but there is a documented route to take that I have not attempted to follow in some time, and the judicial process is overall best for everyone involved – it has security and safety for both the former client who does not want to be “shaken down” by the attorney they no longer view favorably, and for the lawyer, as well, since they will then have access to garnishments, liens, and other mechanisms of enforcement.

Please, feel free to make any comments or suggestions to this document, as it is important to improve the basic form I have created for use in this process and I am more than a little rusty at the statutory collection scheme!

____________________________________________________

Of course, the actual letter is sent on my letterhead:

____________ ______, 2015

 

_________________ ________________

XXXX ___________________ Road

_______________, Georgia 305XX

 

RE:   Services rendered (___/____/________/____/____);

           Criminal Defense – Superior Court of XXXX County

           Case no. XXXXXXXXX

         

Mr. ___________________:

This is an attempt to collect a debt.  Any information obtained will be used for that purpose.  This letter is being sent by Certified Mail, Return Receipt Requested, and begins a formal collections process against you.

As you are aware, the Attorney-Client Agreement executed between us and dated ____________________, states at Paragraph 6 that you have agreed to be responsible for the costs of collection if you should refuse or impede submission of any dispute concerning the fees owed to the State Bar of Georgia.  You have yet to submit this dispute to the State Bar of Georgia, even though my active representation of you ended with the complete dismissal of all charges against you on _________________.

Section 13-1-11 of the Official Code of Georgia provides at subsection (2) that the note executed between us, which does not specify a specific interest rate for unpaid costs and fees, “shall be construed to mean 15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00”.  The statement in #6 requiring that you pay the costs associated with my collection efforts should I hire a collection agency or pursue the unpaid debt myself are now being enforced, and you will be responsible for the fees and costs, such as interest and reasonable attorney’s fees as specified in the statute, detailed and quoted above.  As you are aware, this will add $_________ to your bill.  Because you have stopped paying, I have suspended all fees in lieu of filing suit against you, except for post-judgment interest fees that will begin accruing after judgment is entered against you, and which will be rigorously documented as required by applicable garnishment and collection laws, as well as any other fees to which I may be hereafter entitled by post-judgment collection mechanisms.

You have ten (10) days from the receipt of this notice to pay the principle and interest owing, in full, without the imposition of said attorney’s fees and any other costs to which I may be legally-entitled.  If you pay the principal and interest in full before the expiration of such time, then the obligation to pay the attorney’s fees shall be void and no court shall enforce the agreement.

I have enclosed both a copy of your payment history and a copy of your initial signed contact.  If you have any questions for me, or I may be of service, please do not hesitate to contact me via e-mail, telephone, or otherwise at the contact information at the top of this letter.  Thank-you for your prompt and dispassionate attention to this matter.

                                                                        Sincerely,

 

                                                                     Merlinus Monroe

Cc:     File                                                  Attorney At-Law

Enclosures (Payment History; initial Attorney-Client Agreement;                              payment-term modification letter; non-certified                                        request for payment arrangement)