Type rules from memory, see what you know
Georgia business entities are governed by the Georgia Business Corporation Code, the Georgia Limited Liability Company Act, and the Georgia partnership statutes. These statutes supply Georgia's rules on matters such as director duties, derivative-suit demand requirements, and LLC fiduciary defaults.
Under Georgia law, a director must discharge his duties in a manner he believes in good faith to be in the best interests of the corporation and with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and may rely on information and reports from officers, experts, and committees he reasonably believes reliable. Following FDIC v. Loudermilk and the 2017 amendments, the decision-making process is presumed to have been done in good faith and with due care, rebuttable only by showing the process was grossly negligent.
In Georgia, the conflicting-interest-transaction scheme is intended to be exclusive. Under Georgia law, a director's conflicting interest transaction may not be enjoined, set aside, or give rise to damages on conflict grounds if it was approved by qualified directors, ratified by shareholders, or is established to have been fair to the corporation when committed.
Georgia adopted universal demand and eliminated the demand-futility exception. Under Georgia law, a shareholder may not commence a derivative proceeding until a written demand has been made on the corporation to take suitable action and 90 days have expired, unless the demand is earlier rejected or unless irreparable injury to the corporation would result from waiting the 90 days. Demand is required in every case; there is no excuse-for-futility shortcut.
In Georgia, shareholders have a two-tier inspection right. A shareholder may inspect certain basic records on five business days' written notice, but inspection of the more sensitive second-tier records (such as accounting records and shareholder lists) requires that the demand be made in good faith and for a proper purpose reasonably relevant to the shareholder's legitimate interest as a shareholder, described with reasonable particularity. The basic inspection right may not be eliminated by the articles or bylaws.
Under Georgia law, a record shareholder may dissent from certain corporate actions (such as a merger, share exchange, or sale of substantially all assets) and obtain payment of the fair value of his shares. A dissenting shareholder generally may not otherwise challenge the corporate action unless it failed to comply with procedural requirements or the vote was obtained by fraudulent and deceptive means; the appraisal remedy is the exclusive remedy, and Georgia courts do not apply minority or marketability discounts in fixing fair value.
Georgia disregards the corporate entity under the alter ego or instrumentality doctrine only on a showing that the shareholders disregarded the corporate entity and made it a mere instrumentality for the transaction of their own affairs, that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist, and that adhering to the corporate entity would promote injustice or protect fraud. Commingling of funds and intentional undercapitalization are common proof of abuse of the corporate form.
Under Georgia law, an LLC member or manager managing the business must act in a manner he or she believes in good faith to be in the best interests of the LLC and with the care an ordinarily prudent person in a like position would exercise. A nonmanaging member of a manager-managed LLC owes no duties solely by reason of being a member. Critically, these duties (including fiduciary duties) may be expanded, restricted, or eliminated by the articles of organization or a written operating agreement, except a provision may not eliminate liability for a knowing violation of law or for an improper personal benefit.
Created by principal's manifestations TO THE AGENT. Express (stated directly) or implied (reasonably necessary to carry out express authority, or customary in the role).
Created by principal's manifestations TO THE THIRD PARTY. Third party reasonably believes agent is authorized. Principal bound even if no actual authority exists.
Each partner is an agent of the partnership, and an act in the ordinary course of partnership business binds the partnership, unless the partner had no authority and the third party knew or had notice.
All partners are jointly and severally liable for partnership obligations, so a creditor may sue any one partner for the entire partnership debt.
A director owes the corporation a duty of loyalty, requiring good-faith action in the corporation's best interests, which is implicated whenever the director has a conflicting personal interest in a transaction.
A conflicting interest transaction is not voidable if the director fully discloses the material facts and interest, and a majority of disinterested directors approves the transaction.
In a member-managed LLC, each member owes the LLC a duty of loyalty, including refraining from self-dealing, competing with the LLC, and usurping LLC opportunities.
A member may not take a business opportunity that is (1) in the LLC's line of business, (2) of interest/advantage to the LLC, (3) the LLC could pursue. Must first offer to the LLC.
Courts disregard the entity when member (1) used it as alter ego (commingling, undercapitalization, ignoring formalities), AND (2) maintaining the fiction would sanction fraud or injustice.
(1) Commingling personal and entity funds, (2) undercapitalization, (3) failure to observe formalities (meetings, records), (4) using entity as personal piggy bank.
Member/shareholder sues on behalf of the entity to redress harm to the entity itself. Recovery goes to the entity, not the suing member personally.
A direct claim is brought by a member in their own name to redress harm suffered individually, with recovery going to the member.
Derivative suit: must first demand the board/members bring suit. Demand excused (futility) if the wrongdoer controls the entity or the board is interested in the transaction.
Association of 2+ persons carrying on as co-owners of a business for profit. No formalities required. Sharing profits creates a presumption of partnership.
Profit sharing = prima facie evidence of partnership. Not partnership evidence if profits received as: (1) wages, (2) debt repayment, (3) rent, (4) annuity, (5) sale of goodwill.
A partnership may form without a written agreement or state filing; only co-ownership of a business for profit is required.
Default rule: each partner gets an equal share of profits regardless of capital contributed. A different split requires agreement.
Unequal capital contributions do not change the default: profits and losses are split equally among partners unless they agree otherwise.
Partnership at will dissolves upon any partner giving express notice of withdrawal. No breach - just notice. The partnership must then wind up affairs.
After dissolution, partner authority is limited to winding up: (1) completing existing obligations, (2) liquidating assets. Cannot enter new business or bind the partnership to new deals.
A dissolved partnership may be bound by a partner's post-dissolution act if the third party had no notice of the dissolution and the act would have bound the partnership before dissolution.
Under respondeat superior, an employer is vicariously liable for an employee's torts committed within the scope of employment.
Detour (minor deviation) = still within scope, employer liable. Frolic (major departure for personal purposes) = outside scope, employer NOT liable.
An employer is generally not liable for an employee's intentional torts unless the use of force is authorized or inherent friction in the job makes the tort foreseeable.
An undisclosed principal is bound by contracts its agent enters with actual authority, even though the third party was unaware of the principal's existence.
An agent who contracts on behalf of an undisclosed principal is personally liable on the contract as if the agent were a party.
Undisclosed principal: upon discovery, third party may elect to hold EITHER the principal or the agent liable, but not both (must choose one).
An agent owes the principal a fiduciary duty of loyalty, requiring the agent to act solely for the principal's benefit in all matters connected to the agency.
An agent may not acquire a material benefit or secret profit from a third party in connection with an agency transaction without the principal's knowledge and consent.
If an agent obtains a secret profit, the principal may recover it through disgorgement, requiring the agent to turn over all benefits received in breach of the duty of loyalty.
Under the MBCA, persons who act on behalf of a corporation knowing there was no valid incorporation are jointly and severally liable for all resulting obligations.
A de facto corporation exists when there was a good-faith, colorable attempt to comply with the incorporation statute and the business exercised corporate privileges, potentially shielding founders from personal liability.
A party who deals with a business as though it were a corporation may be estopped from later denying its corporate status to hold the principals personally liable.
Cumulative voting allows a shareholder to multiply their votes by the number of directors being elected and concentrate all votes on one candidate, enabling minority shareholders to elect at least one director.
Cumulative voting protection: under MBCA, a director elected through cumulative voting may not be removed if the votes cast against removal would be sufficient to elect that director.
Directors must act in good faith, with the care an ordinarily prudent person in a like position would exercise, and in a manner reasonably believed to be in the corporation's best interests.
The business judgment rule is a rebuttable presumption that directors acted on an informed basis, in good faith, and in the honest belief their decision was in the corporation's best interests.
The BJR is rebutted by showing directors were grossly negligent in informing themselves before acting, or that they failed to exercise honest judgment.
Personally liable (jointly and severally) for ALL obligations incurred before incorporation. Released only by novation after corp is formed.
A corporation becomes liable on a pre-incorporation contract through express board resolution or implied adoption by knowingly accepting the contract's benefits.
A promoter is personally liable on pre-incorporation contracts. Released only by novation (requires agreement of promoter, corporation, AND the third party).
Shareholders who dissent from a merger or other fundamental corporate change are entitled to demand the corporation pay them the fair value of their shares.
(1) give written notice before shareholder vote, (2) do not vote in favor, (3) timely demand payment after approval.
Under the MBCA, appraisal is the dissenting shareholder's exclusive remedy unless the merger is unlawful or fraudulent.
Cannot distribute if (1) corporation cannot pay debts as they come due (equity insolvency test), OR (2) total liabilities exceed total assets (balance sheet test).
Distribution limits: surplus = net assets minus stated capital. Directors must ensure distribution violates neither (1) balance sheet test (assets > liabilities), nor (2) equity insolvency test.
Directors who vote for or assent to an unlawful distribution are jointly and severally liable to the corporation for the excess amount distributed beyond what was lawful.
Restrictions on share transfers are permissible and enforceable if they are reasonable and do not constitute an absolute prohibition on alienation.
Board-consent restriction on share transfers is generally valid and enforceable against shareholders who have notice (in the articles, bylaws, or a shareholders' agreement).
A transfer restriction is enforceable against a transferee only if it is conspicuously noted on the share certificate or the holder has actual knowledge of it.
Conduct that defeats the reasonable expectations of a minority shareholder, typically: (1) employment, (2) role in management, (3) return on investment.
Director deadlock exists when a divided board cannot take action, and shareholder deadlock exists when shareholders cannot elect directors, threatening the corporation's operation.
(1) director deadlock causing irreparable injury, (2) illegal acts by those in control, (3) oppression of minority, (4) fraudulent conduct.
As an alternative to dissolution, a court may order the corporation or majority shareholders to purchase the aggrieved shareholder's shares at fair value.
Created by principal's manifestations TO THE AGENT. Express (stated directly) or implied (reasonably necessary to carry out express authority, or customary in the role).
Created by principal's manifestations TO THE THIRD PARTY. Third party reasonably believes agent is authorized. Principal bound even if no actual authority exists.
A corporation becomes bound by an unauthorized agent act if the board, with knowledge of material facts, subsequently approves the act or accepts its benefits.
A member has actual authority to bind the LLC only to the extent provided in the operating agreement or authorized by member consent.
In a member-managed LLC, each member is an agent for ordinary course business, binding the LLC unless the member lacked authority and the third party knew or had notice of that limitation.
A member owes the LLC a duty of care to refrain from grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law.
An operating agreement may not eliminate the duty of care but may specify standards measuring performance, provided the modification is not manifestly unreasonable.
A member owes the LLC a duty of loyalty, including accounting for benefits received, refraining from adverse dealings, and refraining from competing with the LLC.
(1) event specified in operating agreement, (2) consent of all members, (3) 90 days with no remaining members, (4) judicial decree.
A member has the power to dissociate at any time, rightfully or wrongfully, by giving express notice of withdrawal to the LLC.
Does NOT dissolve the entity. Instead, LLC must buy out the dissociated member's distributional interest at fair value as of the dissociation date.
A limited partner is generally not personally liable for the obligations of the limited partnership solely by virtue of their status as a limited partner.
A limited partner who participates in control of the business may be personally liable to third parties who reasonably believed, based on that conduct, the limited partner was a general partner.
Consulting with or advising the GP does not constitute "participation in control." LP retains limited liability despite advisory role.
Piercing the corporate veil: shareholder personally liable if (1) abused the corporate privilege (alter ego/commingling), AND (2) maintaining the fiction would be inequitable or sanction fraud.
(1) commingling personal and corporate assets, (2) failure to observe corporate formalities (meetings, records), (3) undercapitalization.
In a derivative suit, a shareholder must first make a written demand on the board of directors to take the desired action before filing suit.
Court defers to dismissal recommendation if (1) committee was independent, (2) acted in good faith, (3) conducted reasonable investigation.
Georgia's Constitutional Law essay questions are tested primarily on federal constitutional doctrine (the same body tested on the MBE). The Georgia Constitution can grant broader individual rights than the federal floor, but federal analysis governs unless the facts squarely raise a Georgia constitutional provision.
Constitutional rights restrict only government actors, not private parties. A state-funded public university qualifies as a state actor.
A content-based speech restriction is presumptively unconstitutional and must survive strict scrutiny: the government must prove the law serves a compelling interest and is narrowly tailored to achieve that end.
A law is unconstitutionally overbroad when it prohibits a substantial amount of protected speech, not just unprotected speech, thereby chilling constitutionally protected expression.
A law is void for vagueness if it fails to provide a person of ordinary intelligence fair notice of prohibited conduct and grants officials unbridled discretion to enforce it arbitrarily.
Procedural due process trigger: government deprives someone of a protected (1) liberty interest (freedom from restraint, fundamental rights), or (2) property interest (entitlement, not mere expectation).
The amount of process due is determined by balancing three factors: (1) the private interest at stake, (2) the risk of erroneous deprivation and the value of additional safeguards, and (3) the government's interest.
Bars arbitrary government action regardless of procedure. Fundamental rights = strict scrutiny. Non-fundamental = rational basis. "Shocks the conscience" for executive action.
The Equal Protection Clause applies three tiers of scrutiny: strict scrutiny for suspect classes such as race, intermediate scrutiny for quasi-suspect classes such as gender, and rational basis review for all other classifications.
Equal Protection and facially neutral laws: heightened scrutiny only if P proves discriminatory PURPOSE or intent behind the law. Disparate impact alone is not enough.
Law must be (1) rationally related to (2) a legitimate government interest. Very deferential. Burden on challenger. Conceivable basis is enough.
A state law that facially discriminates against out-of-state commerce, or is discriminatory in purpose or effect, is virtually per se invalid; the state must show a legitimate local purpose that cannot be served by any reasonable nondiscriminatory alternative.
A non-discriminatory state law that only incidentally burdens interstate commerce is upheld unless the burden on interstate commerce is clearly excessive in relation to the putative local benefits.
The Dormant Commerce Clause does not restrict state action when the state itself participates in the market as a buyer or seller, rather than acting as a regulator of private transactions.
The Fifth Amendment, incorporated against the states through the Fourteenth Amendment, prohibits the taking of private property for public use without just compensation.
Any permanent physical occupation of private property authorized by the government is a per se taking requiring just compensation, regardless of the size of the intrusion or the public interest served.
A regulation may constitute a taking even without physical occupation; courts apply the Penn Central balancing test, weighing (1) the economic impact on the owner, (2) interference with investment-backed expectations, and (3) the character of the government action.
Under the Commerce Clause, Congress may regulate (1) the channels of interstate commerce, (2) the instrumentalities of and persons and things in interstate commerce, and (3) activities that have a substantial effect on interstate commerce.
Congress may regulate a purely local activity under the substantial-effects prong if that activity, viewed in the aggregate across the nation, substantially affects interstate commerce.
Commerce Clause limit (Lopez): substantial-effects prong limited to economic/commercial activity. Congress cannot regulate non-economic conduct (guns near schools, violence against women) under Commerce power alone.
Spending power conditions: (1) general welfare, (2) unambiguous conditions, (3) related to federal interest, (4) not independently unconstitutional, (5) not coercive.
A federal spending condition is unconstitutionally coercive when it crosses the line from pressure into compulsion, leaving states no real choice but to comply, effectively commandeering the state legislature.
Supremacy Clause: federal law is the supreme law of the land. Any state law that conflicts with valid federal law is preempted and void.
Express preemption occurs when Congress explicitly states in a federal statute that it supersedes state or local law in a defined area.
Conflict preemption applies when it is physically impossible to comply with both federal and state law, or when state law stands as an obstacle to the full accomplishment of federal objectives.
A speech regulation is content-based if it applies because of the topic discussed or the viewpoint or message expressed, and such regulations are presumptively unconstitutional subject to strict scrutiny.
Law must be (1) necessary to achieve (2) a compelling government interest, (3) narrowly tailored (least restrictive means). Burden on government. Applies: race, national origin, fundamental rights.
Government prevents speech before it occurs (permits, injunctions, licensing). Bears a HEAVY presumption against constitutionality. Rarely upheld.
Must have (1) narrow, objective, definite standards, (2) no unbridled discretion in the decision-maker, (3) prompt judicial review if denied.
A law is void for vagueness if a person of ordinary intelligence must guess at its meaning, it fails to provide fair notice of what conduct is prohibited, or it permits arbitrary and discriminatory enforcement.
A law is unconstitutionally overbroad if it regulates substantially more protected speech than necessary to serve a legitimate government purpose, thereby chilling constitutionally protected expression.
Free Exercise Clause: a neutral, generally applicable law that incidentally burdens religion needs only rational basis review. Not strict scrutiny.
A law that is not neutral or not generally applicable because it targets or singles out religious practice for disfavored treatment must survive strict scrutiny.
The Establishment Clause is not violated when a government benefit program provides funding to a broad class of recipients on a neutral, secular basis, even if some beneficiaries are religious organizations.
The modern Establishment Clause test asks whether the government action aligns with historical practices and understandings of the Clause and is not coercive toward religion.
Establishment Clause: the old three-part test (secular purpose, primary secular effect, no excessive entanglement) is ABANDONED. Current test: historical practice and tradition + coercion analysis.
Right to associate for political, social, economic, religious, and cultural purposes. Government infringement requires compelling interest + narrow tailoring.
Forced inclusion of an unwanted member or leader violates expressive association rights if that person's presence would significantly impair the group's ability to advocate its viewpoints.
Government cannot condition a public benefit (university admission, tax exemption) on the waiver of a constitutional right.
President must faithfully execute federal laws. Cannot suspend or rewrite statutes. Limits executive power to act without congressional authorization.
(1) Maximum power = Congress authorized it. (2) Twilight zone = Congress silent. (3) Lowest ebb = Congress prohibited it (must show exclusive presidential power).
Legislation requires: (1) bicameralism (pass both House and Senate), (2) presentment (President signs or Congress overrides veto). No legislative vetoes or one-house actions.
Under INS v. Chadha, any congressional action with the purpose and effect of altering legal rights outside the legislature must satisfy both bicameralism and presentment. A legislative veto that bypasses presentment is unconstitutional.
Congress has broad inherent power to investigate any matter on which it may legislate, including the power to issue compulsory subpoenas for documents and testimony.
The President enjoys absolute immunity from civil damages liability for official acts, but does not have absolute immunity from compulsory legal process such as a subpoena for documents.
Executive privilege is a qualified, not absolute, privilege protecting confidential presidential communications. It must be balanced against competing needs and yields when it would obstruct a legitimate government function such as criminal prosecution or congressional oversight.
As a general rule, a taxpayer's interest in how the government spends tax revenue is too generalized and diffuse to constitute an injury in fact, and thus does not confer Article III standing.
A taxpayer has standing to challenge a federal spending measure on Establishment Clause grounds by showing (1) a logical link between taxpayer status and the legislative enactment, and (2) a nexus between that status and the constitutional infringement alleged.
Case becomes moot when events after filing eliminate P's injury. No live controversy = no jurisdiction. Exceptions: (1) capable of repetition yet evading review, (2) voluntary cessation by D.
A case is not moot under the capable-of-repetition exception if (1) the challenged conduct is too short in duration to be fully litigated before it ceases, and (2) there is a reasonable expectation the same complaining party will face the same action again.
The political question doctrine bars federal courts from adjudicating constitutional issues textually committed to the unreviewable discretion of the political branches or for which judicially manageable standards are lacking.
A political question is identified primarily by (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department, or (2) a lack of judicially discoverable and manageable standards for resolving it.
Privileges & Immunities (Art. IV): States cannot discriminate against out-of-state citizens regarding fundamental rights (especially earning a livelihood). Does not protect corporations or aliens.
State discrimination survives only if (1) substantial reason for different treatment, AND (2) discrimination closely related to achieving that reason.
The Contracts Clause prohibits states from enacting laws that retroactively and substantially impair existing contractual obligations. The threshold inquiry is whether the law substantially impairs a contractual relationship.
When a state substantially impairs a public contract to which the state itself is a party, the impairment receives heightened scrutiny and is upheld only if it is reasonable and necessary to serve a significant and legitimate public purpose.
The Eleventh Amendment bars suits by private parties against a state in federal court for monetary damages or equitable relief unless the state has consented to suit.
Eleventh Amendment immunity has three exceptions: state waiver, valid congressional abrogation under Fourteenth Amendment Section 5, and the Ex parte Young doctrine permitting suits against state officials for prospective injunctive relief to end ongoing federal law violations.
Section 2 of the Thirteenth Amendment gives Congress broad power to enforce the abolition of slavery and involuntary servitude through appropriate legislation targeting their badges and incidents.
Thirteenth Amendment: unlike the 14th Amendment, has NO state-action requirement. Congress can use it to prohibit purely private racial discrimination.
Congress has broad power to determine rationally what constitutes a badge or incident of slavery and to enact legislation eliminating such conditions, even if they involve only private conduct.
14th Amendment reaches ONLY state action - not private conduct. Congress's §5 enforcement power cannot remedy purely private discrimination without a nexus to government conduct.
Section 5 legislation is valid only if there is congruence and proportionality between the identified pattern of unconstitutional state conduct and the remedial means Congress adopts.
The Tenth Amendment's anti-commandeering principle prohibits Congress from compelling states to enact, administer, or enforce a federal regulatory program using state resources.
Anti-commandeering: Congress cannot compel state or local officials to administer or enforce federal law. States may volunteer (cooperative federalism), but cannot be conscripted.
Under Georgia's Restrictive Covenants Act (for agreements after May 11, 2011), courts may modify ('blue-pencil') overbroad non-compete and non-solicit provisions to make them enforceable rather than voiding them.
In Georgia, the statute of frauds requires a signed writing for, among others, a promise to answer for the debt of another, an agreement made in consideration of marriage, a contract for the sale of land or any interest in land, any agreement not to be performed within one year, and any commitment to lend money. Under Georgia law, part performance that would render nonperformance a fraud on the performing party removes the agreement from the statute.
Under Georgia law, an attorney-fee provision in a promissory note or other evidence of indebtedness is enforceable only if, after maturity, the holder gives the debtor written notice that the fee provision will be enforced and that the debtor has 10 days from receipt to pay principal and interest without the fees. A specified-percentage fee is capped at 15 percent of principal and interest, and proof of this notice is an element of the fee claim.
Under Georgia's voluntary payment doctrine, money paid voluntarily with full knowledge of the facts - absent fraud, misplaced confidence, deception, or duress - cannot be recovered, even if paid in ignorance of the law and even if paid under protest. Recovery is allowed only where the payment was made under urgent and immediate necessity or to release person or property from detention or seizure.
Under Georgia law, a stipulated-damages clause is enforceable as liquidated damages only if a three-part test is met: (1) the injury from breach is difficult or impossible to estimate accurately at contracting; (2) the parties intended to set damages, not a penalty; and (3) the sum is a reasonable pre-estimate of the probable loss. A clause that operates as a deterrent or has no reasonable relation to probable damages is an unenforceable penalty, and the challenger bears the burden.
Under Georgia law, a creditor's agreement to accept less than the full debt cannot be pleaded as an accord and satisfaction unless it is actually executed by payment, additional security, substitution of a debtor, or other new consideration. Acceptance of a check marked 'payment in full' for less than the total does NOT create an accord and satisfaction unless a bona fide dispute exists as to the amount due or an independent agreement provides that the payment satisfies the debt.
Under Georgia law, when performance of a contract becomes impossible as the result of an act of God, that impossibility excuses nonperformance - except where, by proper prudence, the promisor could have avoided the impossibility. The statutory defense requires true impossibility (not mere difficulty) and operates only as a defense, not as the equivalent of performance for which a party may sue.
Outside the Georgia Restrictive Covenants Act (for agreements after May 11, 2011), a contract in general restraint of trade is void, and Georgia courts will NOT judicially modify an overbroad restraint; under the older common-law rule a partially overbroad non-compete was void in its entirety rather than blue-penciled. Blue-pencil reformation is available only for covenants governed by the Act.
(1) present intent to contract, (2) communication to an identified offeree, (3) terms definite enough to allow a remedy.
(1) assent to the offer's terms, (2) in a manner the offer invites or requires, (3) before the offer lapses or is revoked.
Each party must suffer a legal detriment or confer a legal benefit on the other.
UCC Statute of Frauds (2-201): A contract for goods at $500+ is unenforceable unless there is (1) a writing indicating a contract, (2) signed by the party to be charged.
The writing must be signed by the party against whom enforcement is sought, and must indicate a contract for sale and specify the quantity of goods.
Anticipatory repudiation occurs when a party makes an unequivocal statement, before performance is due, that it will not perform its contractual obligations.
Upon anticipatory repudiation, the aggrieved party may: (1) treat the contract as totally breached and sue immediately, (2) suspend own performance and await retraction, (3) resort to any remedy for breach.
Buyer may purchase substitute goods in good faith and recover: cover price minus contract price, plus incidental/consequential damages.
Incidental damages include commercially reasonable charges, expenses, or commissions incurred in effecting cover or otherwise resulting from the breach.
Recoverable only if (1) foreseeable at the time of contracting, and (2) not preventable by reasonable mitigation.
Upon a seller's breach, the buyer is entitled to recover any deposit or down payment already paid, to avoid unjust enrichment of the breaching seller.
An event that must occur before a duty to perform arises. Must be strictly satisfied (not substantial performance). Language: "if," "on condition that," "provided that."
When an express condition fails: the duty it triggered never arises. The non-occurrence excuses the conditional party from performing. Contrast: breach creates a cause of action.
A party may waive a condition to its own duty by express words or by conduct that is inconsistent with requiring the condition's occurrence, such as continuing to perform despite the condition's failure.
UCC Article 2 governs contracts for the sale of goods, including manufactured goods like widgets, and provides the applicable impracticability doctrine at UCC 2-615.
Under UCC 2-615, a seller's performance is excused if it has been made impracticable by the occurrence of a contingency whose non-occurrence was a basic assumption on which the contract was made.
Impracticability is unavailable if the supervening event was foreseeable, because a foreseeable risk is one the promisor implicitly assumed when entering the fixed-price contract.
Even a dramatic price increase is usually insufficient. Must be so extreme it alters the essential nature of performance (e.g., 10x cost might qualify, 2x won't).
Promissory estoppel requires: (1) a clear promise, (2) which the promisor should reasonably expect to induce reliance, (3) which does induce actual reliance, and (4) injustice can only be avoided by enforcement.
Common law = new consideration required. UCC = no consideration needed, just good faith. Both: if within the SOF, the modification itself must satisfy the SOF.
The remedy for promissory estoppel may be limited as justice requires, often to reliance damages rather than full expectation damages.
No consideration needed (just good faith). Contrast common law: consideration required. Both: if within SOF, modification itself must satisfy SOF.
A modification under the UCC must meet the test of good faith, meaning it cannot be extorted by a party who threatens breach to coerce a higher price from a dependent buyer.
At common law, a promise to perform a pre-existing legal duty is not valid consideration for a modification, though this rule does not apply to sales of goods under the UCC.
Under UCC 2-209(2), a signed agreement requiring written modification cannot be modified or rescinded orally, giving NOM clauses legal effect.
Under UCC 2-209(4), an attempted oral modification that fails to satisfy a NOM clause may nonetheless operate as a waiver of the clause for the conduct already undertaken.
Under UCC 2-209(5), a waiver affecting future executory performance may be retracted by reasonable notice, unless retraction would be unjust given material reliance on the waiver.
Under UCC 2-204, a contract for sale of goods does not fail for indefiniteness if the parties intended to contract and there is a reasonably certain basis for giving an appropriate remedy.
UCC: quantity is the ONE essential term courts cannot supply. Missing quantity = no contract. Exception: output contracts and requirements contracts (good faith + not unreasonably disproportionate).
An agreement to agree on a material term in the future is generally unenforceable for indefiniteness, because no court can determine what the parties would have agreed upon.
A contract made by a minor is voidable at the minor's election, and may be disaffirmed before reaching the age of majority or within a reasonable time thereafter.
Upon reaching the age of majority, a person may ratify a minor's contract by express affirmance, by conduct inconsistent with avoidance, or by failing to disaffirm within a reasonable time.
A minor who disaffirms a contract for necessaries remains liable in quasi-contract for the reasonable value of goods or services actually received and used.
A contract is voidable for duress if a party's assent was induced by an improper threat that left the victim no reasonable alternative but to agree.
Involves (1) a crime, (2) a tort, (3) bad-faith breach of good faith and fair dealing, or (4) threats to expose embarrassing information for unfair advantage.
Mutual mistake allows avoidance when: (1) both parties share a mistaken belief about a basic assumption at contract formation, (2) the mistake has a material effect on the agreed exchange, and (3) the adversely affected party did not bear the risk of the mistake.
A party bears the risk of a mistake if the risk is allocated by agreement, or the party knew it had limited knowledge but treated that limited knowledge as sufficient at the time of contracting.
A fraudulent misrepresentation is a false assertion of fact made knowingly or without belief in its truth, intended to induce the other party's assent, upon which that party justifiably relies.
A contract is voidable by the recipient if assent was induced by a fraudulent or material misrepresentation on which the recipient justifiably relied, allowing the victim to rescind and recover restitution.
A covenant that limits competition is a restraint of trade, unenforceable on public policy grounds if it imposes a restraint greater than necessary to protect a legitimate interest.
Courts evaluate the reasonableness of a restraint by weighing its duration, geographic scope, and activity restricted against the legitimate protectable interest it purports to serve.
A court may sever an unenforceable clause from an otherwise valid contract if the unenforceable portion is not an essential part of the agreed exchange and enforcing the rest serves justice.
Absence of meaningful choice. Shown by: (1) unequal bargaining power, (2) oppressive fine print, (3) high-pressure tactics, (4) no opportunity to understand terms.
The terms themselves are so unreasonably one-sided that they shock the conscience. Must combine with procedural unconscionability.
(1) refuse to enforce the entire contract, (2) enforce without the unconscionable clause, (3) limit the clause to avoid unconscionable result.
Under UCC 2-202, a final written agreement may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement, though it may be explained or supplemented by consistent additional terms.
A completely integrated writing bars both contradiction and supplementation by extrinsic evidence, while a partially integrated writing bars contradiction but permits consistent additional terms.
Merger/integration clause ("this is the full and final agreement"): strong evidence of complete integration, barring all extrinsic terms - contradictory and consistent.
Extrinsic evidence is always admissible to explain or resolve an ambiguous term in the contract, even in a fully integrated agreement, because interpretation is not contradiction.
A contract term is ambiguous if it is reasonably susceptible to more than one meaning, creating a need for extrinsic evidence to determine the parties' intent.
(1) express terms (control), (2) course of performance, (3) course of dealing, (4) trade usage.
An implied warranty of fitness for a particular purpose arises when: (1) the seller has reason to know the buyer's particular purpose, (2) the seller knows the buyer is relying on the seller's skill or judgment, and (3) the buyer does in fact rely on that judgment.
Disclaiming fitness warranty: must be (1) in writing AND (2) conspicuous. Disclaiming merchantability alone does NOT automatically disclaim fitness for particular purpose.
If goods or delivery fail to conform in any respect, buyer may (1) reject the whole, (2) accept the whole, (3) accept any commercial unit(s) and reject the rest.
Under UCC 2-508, when a buyer rejects a nonconforming tender and the contract time for performance has not expired, the seller may seasonably notify the buyer and make a conforming delivery within the contract time.
Risk of loss passes when seller delivers goods to carrier. Buyer bears transit risk.
Risk of loss passes only when goods are tendered at the named destination. Seller bears transit risk.
(1) make a reasonable carrier contract, (2) deliver goods to the carrier, (3) promptly notify the buyer.
Created by (1) affirmation of fact or promise, (2) description of goods, or (3) sample/model - that becomes part of the basis of the bargain. No magic words needed.
Merchant seller warrants goods are fit for ordinary purposes. Arises automatically - no need to ask for it.
Under UCC 2-315, an implied warranty of fitness arises when the seller has reason to know the buyer's particular purpose and that the buyer relies on the seller's skill or judgment to select suitable goods.
A liquidated damages clause is enforceable if: (1) the amount is a reasonable forecast of actual harm at the time of contracting, and (2) the harm from breach would be difficult to estimate.
Consequential damages are recoverable only if they were a foreseeable result of breach at the time of contracting, meaning the breaching party had reason to know of the special circumstances that would cause the loss.
Damages must be proven with reasonable certainty. Speculative or uncertain lost profits are not recoverable. New businesses face a higher burden (new business rule).
Specific performance is an equitable remedy granted only when the legal remedy of money damages is inadequate to fully compensate the non-breaching party.
Specific performance: money damages inadequate when subject matter is unique (land, rare goods, heirlooms). No adequate substitute available on the market.
While courts refuse specific performance of personal services contracts, they may grant a negative injunction preventing a party from performing for a competitor when the services are unique or extraordinary.
A party seeking equitable relief must come to court with clean hands, meaning it must not have engaged in inequitable conduct relating to the same transaction.
(1) contracting parties intended to benefit the third party (not incidental), AND (2) rights have vested (by reliance, assent, or lawsuit).
An intended beneficiary's rights vest when the beneficiary materially changes position in justifiable reliance on the promise, manifests assent to it, or brings suit to enforce it.
Once a third-party beneficiary's rights vest, the original contracting parties cannot modify or discharge the duty to the beneficiary without the beneficiary's consent.
Contractual rights are generally freely assignable unless (1) the contract prohibits it, (2) assignment would materially change the obligor's duty or risk, or (3) the right is personal in nature.
Duties are generally delegable unless (1) the contract prohibits it, (2) the obligee has a substantial interest in personal performance, or (3) the duty requires special skill/judgment. Delegator remains liable.
Delegation does not release the delegator. If the delegate fails to perform, the original obligor remains liable to the obligee for breach.
Under the pre-existing duty rule, a promise to perform an obligation already owed under a contract is not valid consideration, so a promise to pay a bonus for resuming that very same duty lacks consideration.
A modification to a common-law contract requires fresh consideration from both sides. If the party seeking more compensation undertakes a genuinely new or different obligation, that new obligation may supply consideration.
In Georgia, crimes are defined by the state's own criminal code. Malice murder and felony murder are separate theories, and Georgia recognizes its own formulations of justification, parties to a crime, and the merger of lesser offenses, all defined by Georgia's statutory elements.
Under Georgia law, malice murder (express or implied malice aforethought) and felony murder are separate ways to prove murder. Felony murder requires that the killing occur in the commission of a felony, and Georgia limits the doctrine to felonies that are inherently dangerous to human life. The underlying felony merges into the homicide, so a defendant cannot be separately convicted of both felony murder and the predicate felony for the same death.
In Georgia, voluntary manslaughter is a killing that would otherwise be murder but is committed solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; if a cooling-off interval sufficient for the voice of reason and humanity to be heard passed, the killing is treated as murder. Involuntary manslaughter is an unintentional killing either in the commission of an unlawful act other than a felony, or in the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.
Georgia permits the use of force in defense of self or others, with deadly force allowed only to prevent death, great bodily injury, or a forcible felony. Under Georgia law, a person who uses force in accordance with the defense rules has no duty to retreat and has the right to stand his or her ground and use force, including deadly force. Justification is an affirmative defense.
Georgia recognizes a separate defense of habitation. Deadly force to prevent or terminate an unlawful entry into a habitation is justified where the entry is made or attempted in a violent and tumultuous manner and the person reasonably believes the entry is attempted for the purpose of assaulting or offering personal violence to an occupant, or where the person reasonably believes the entry is made to commit a felony therein and that force is necessary to prevent that felony.
Under Georgia law, the common-law distinction between principals and accessories is abolished. Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned only if he directly commits the crime; intentionally causes an innocent or legally incapable person to commit it; intentionally aids or abets its commission; or intentionally advises, encourages, hires, counsels, or procures another to commit it.
In Georgia, conspiracy requires an agreement to commit a crime plus an overt act by one or more conspirators to effect its object. A person may be convicted of conspiracy even if the target crime was actually completed; conspiracy does not merge into the completed crime.
In Georgia, burglary is far broader than common-law burglary but is graded by degree. First-degree burglary requires entering or remaining, without authority and with intent to commit a felony or theft therein, in a dwelling house or any building, vehicle, railroad car, watercraft, aircraft, or other structure designed for use as a dwelling. Second-degree burglary covers the same conduct as to a non-dwelling building, structure, railroad car, watercraft, or aircraft. In either degree there is no requirement of a breaking, no nighttime requirement, and entering or remaining suffices.
Beyond the right-and-wrong insanity test, Georgia recognizes the distinct defense of delusional compulsion: a person is not guilty if, because of mental disease, injury, or congenital deficiency, he acted because of a delusional compulsion as to the act which overmastered his will to resist committing the crime. Georgia case law requires that the delusion be as to a fact which, if true, would have justified the act.
Under Georgia law, although the testimony of a single witness is generally sufficient to establish a fact, in felony cases where the only witness to the defendant's participation is an accomplice, the accomplice's testimony alone is not sufficient and must be corroborated. The corroborating evidence may be slight and circumstantial, but it must be independent of the accomplice's testimony and either directly connect the defendant to the crime or lead to an inference of guilt.
Under Georgia law, when the same conduct establishes more than one crime, the accused may be prosecuted for each but may not be convicted of more than one if one crime is included in the other, or if the crimes differ only in that one prohibits conduct generally and the other a specific instance of that conduct. Crimes arising from the same conduct and known to the prosecutor must generally be prosecuted in a single prosecution.
Automobile exception: Police may search a vehicle without a warrant if they have probable cause to believe it contains contraband or evidence. No warrant needed because vehicles are mobile and have reduced privacy expectation.
Probable cause: A fair probability (under totality of circumstances) that contraband or evidence will be found in a particular place (search) or that a person committed a crime (arrest).
Vehicle search scope (Ross): Extends to any area of the vehicle, including closed containers, where the object sought could reasonably be found.
Miranda: Fifth Amendment requires warnings before custodial interrogation. Custody = reasonable person would not feel free to leave. Interrogation = words/actions reasonably likely to elicit incriminating response.
Invoking right to counsel: request must be unambiguous and unequivocal ("I want a lawyer"). Ambiguous references ("maybe I should get a lawyer") do NOT trigger Edwards protection.
Exclusionary rule: evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment is inadmissible at trial. Primary remedy for unconstitutional searches and seizures. Extends to derivative evidence under the fruit of the poisonous tree doctrine.
Fruit of the poisonous tree: evidence derived from an illegal search/seizure is also inadmissible. Exceptions: (1) independent source, (2) inevitable discovery, (3) attenuation of taint.
First-degree murder: willful, deliberate, and premeditated killing. Premeditation = defendant reflected on the decision to kill, even if only briefly (no minimum time).
Voluntary manslaughter requires: (1) an intentional killing, (2) committed in the heat of passion, (3) upon adequate provocation that would cause a reasonable person to lose self-control, (4) without a cooling-off period.
Provocation is negated if a reasonable person would have had sufficient time to cool between the provocative act and the killing. Provocation is also weakened where the defendant was the initial aggressor committing a violent felony.
The felony murder rule imposes murder liability on all participants in an inherently dangerous felony (BARRK: Burglary, Arson, Rape, Robbery, Kidnapping) when a killing occurs during its commission, regardless of intent to kill.
Killing must occur during the commission of AND in furtherance of the felony. Applies from start of felony through escape to a place of temporary safety.
Conspiracy requires: (1) an agreement between two or more persons, (2) intent to enter the agreement, (3) intent to achieve the unlawful objective, and (4) in most jurisdictions, an overt act in furtherance of the conspiracy.
Under the Pinkerton doctrine, a co-conspirator is vicariously liable for all crimes committed by fellow conspirators if those crimes were committed in furtherance of the conspiracy and were a natural and probable (foreseeable) consequence of the conspiratorial agreement.
The Fourth Amendment requires that a warrant particularly describe the place to be searched and the persons or things to be seized. A warrant with a wrong address fails the particularity requirement as to the actual place searched.
Evidence is admissible when officers act in objectively reasonable reliance on a facially valid warrant later found defective. Does NOT apply if: (1) warrant was bare-bones, (2) obtained by fraud, or (3) facially deficient.
Plain view doctrine: police may seize contraband without a warrant if: (1) officers are lawfully present at the location, (2) they have lawful right of access to the item, and (3) its incriminating character is immediately apparent.
Sixth Amendment right to counsel attaches at initiation of formal adversarial proceedings: (1) indictment, (2) arraignment, (3) preliminary hearing, (4) formal charge. Offense-specific.
Attaches only to the charged offense. Does NOT extend to uncharged crimes, even if factually related.
Once the Sixth Amendment right to counsel has attached, the government may not deliberately elicit incriminating statements from a represented defendant without counsel present or a valid waiver of that right.
Inciting, counseling, or commanding another to commit a crime, with specific intent they complete it. Merges into conspiracy if the person agrees. Merges into the target crime if completed.
Conspiracy requires: (1) an agreement between two or more persons, (2) intent to enter the agreement, (3) intent to achieve the unlawful objective, and (4) in most jurisdictions, an overt act in furtherance of the conspiracy.
Solicitation merges into conspiracy once the solicited party agrees. Cannot be convicted of both solicitation AND the resulting conspiracy (same transaction).
Criminal attempt requires: (1) specific intent to commit the target crime, and (2) a substantial step that is strongly corroborative of criminal purpose; mere preparation is insufficient, but acts like providing tools or transportation qualify.
Abandonment is a complete defense to attempt only if: (1) the defendant voluntarily and completely renounces the criminal purpose, and (2) that renunciation is not motivated by fear of apprehension, increasing difficulty, or other external factors.
One who aids, counsels, or encourages before or during the crime, with intent to assist. Liable for (1) target offense, (2) foreseeable crimes in furtherance.
Under the natural and probable consequences doctrine, an accomplice is liable not only for the intended crime but also for any additional crimes committed by the principal that were a foreseeable consequence of the criminal enterprise.
Under Pinkerton, a conspirator is vicariously liable for all reasonably foreseeable crimes committed by co-conspirators in furtherance of the conspiracy.
An accomplice may withdraw by: (1) repudiating prior encouragement, (2) doing all that is possible to neutralize prior assistance, and (3) acting before the chain of events becomes unstoppable; mere change of heart is insufficient.
Larceny requires: (1) trespassory taking, (2) and carrying away, (3) of personal property of another, (4) with intent to permanently deprive; an employee who takes merchandise exceeds mere custody and commits larceny, not embezzlement.
Embezzlement: fraudulent conversion of property by someone already in LAWFUL possession (trustee, employee, agent). Key distinction from larceny: lawful initial possession, then conversion.
Larceny vs. embezzlement distinction: Employee with mere custody (low-level, temporary access) = larceny. Person with lawful possession (entrusted, authorized) = embezzlement.
Receiving stolen property requires: (1) receiving possession and control of stolen personal property, (2) with knowledge that it was stolen, (3) with intent to permanently deprive the true owner.
False pretenses requires: (1) a false representation of past or existing fact, (2) knowingly made, (3) with intent to defraud, (4) causing the victim to pass title to property; distinguished from larceny by trick, where only possession passes.
Modern burglary: breaking and entering any structure (not just dwelling) with intent to commit a felony inside. Nighttime requirement eliminated in most jurisdictions.
Battery: unlawful application of force to another, causing bodily injury or offensive touching. Aggravated battery: (1) serious bodily injury, OR (2) use of a dangerous weapon.
Self-defense: non-aggressor may use force reasonably necessary to prevent imminent unlawful force. Deadly force: only against deadly threat. Retreat: majority = no duty; minority = retreat if safe (castle exception).
Attempted murder: specific intent crime. Prosecution must prove D had the actual, subjective intent to bring about death. Recklessness or extreme indifference is NOT enough for attempt.
Involuntary intoxication is a complete defense to any crime if it negates the required mens rea. It arises when intoxication occurs without the defendant's knowledge or consent, such as through prescribed medication with undisclosed psychotic side effects.
ANY mistake - reasonable or unreasonable - is a defense if it negates the required specific intent.
Requires only intent to perform the act (not intent to cause a specific result). Voluntary intoxication NOT a defense to general intent (only insanity-level intoxication).
Complete defense if it produces a mental state satisfying the insanity test. Applies to ALL crimes (general and specific intent). Voluntary intoxication: only negates specific intent.
The MPC insanity test (substantial capacity test) excuses criminal liability if, due to mental disease or defect, the defendant lacked substantial capacity to appreciate the criminality of their conduct or to conform conduct to the requirements of law.
Only a REASONABLE mistake is a defense. Unreasonable mistake does not negate general intent. Compare: any mistake (even unreasonable) negates specific intent.
Involuntary intoxication is a complete defense to both specific and general intent crimes when it produces a mental state satisfying the insanity standard, making it stronger than mistake of fact for general intent charges.
6th Amendment right to counsel at lineups (Wade): applies to post-indictment, in-person (corporeal) ID procedures. Does NOT apply to photo arrays or pre-indictment lineups.
The Sixth Amendment right to counsel does not extend to photographic identification procedures, whether pre- or post-indictment, because a photo array is not a critical stage of criminal proceedings.
Under the Fourteenth Amendment Due Process Clause, an identification procedure is inadmissible if it is so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification.
Suggestive ID reliability factors: (1) witness's opportunity to view, (2) degree of attention, (3) accuracy of prior description, (4) witness's certainty, (5) time between event and ID.
The Fifth Amendment Double Jeopardy Clause bars: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense in a single proceeding.
Jeopardy attaches: Jury trial = when jury is empaneled and sworn. Bench trial = when first witness is sworn. Before attachment, case can be dismissed without double jeopardy.
Double jeopardy and appeals: retrial allowed when D wins appeal for trial error. Retrial BARRED when reversal was for insufficient evidence (= acquittal equivalent).
Confrontation (Crawford): Testimonial hearsay inadmissible unless (1) declarant unavailable AND (2) defendant had prior opportunity to cross-examine. Non-testimonial = evidence rules only.
Testimonial statement (Crawford): made with primary purpose of creating evidence for prosecution. Testimonial = confrontation required. Non-testimonial = hearsay rules only.
Testimonial vs. non-testimonial: a statement is non-testimonial if the primary purpose is enabling police to meet an ongoing emergency. Testimonial if the primary purpose is to establish past facts for prosecution.
Terry stop: Officer may briefly detain a person based on reasonable articulable suspicion of criminal activity. Less than probable cause but more than a hunch.
Anonymous tip alone is insufficient for reasonable suspicion. Must be corroborated by police observation or include accurate predictive details.
Terry frisk: During a lawful stop, officer may pat down outer clothing if reasonable belief person is armed and dangerous. Limited to weapons, not evidence.
Plain feel doctrine: if during a lawful pat-down an officer feels an object whose identity as contraband is immediately apparent without manipulation, the officer may seize it.
5th Amendment privilege: protects only against compelled TESTIMONIAL (communicative) evidence. Does NOT protect physical evidence: blood draws, fingerprints, handwriting samples, lineups.
Post-arrest silence: prosecution cannot use defendant's silence after receiving Miranda warnings to impeach or as evidence of guilt.
The Eighth Amendment prohibits mandatory life-without-parole sentences for juvenile homicide offenders; the sentencer must have discretion to consider the offender's youth and its attendant circumstances.
The Eighth Amendment categorically prohibits life without parole for juvenile offenders convicted of non-homicide offenses.
"but for" D's conduct, the harm would not have occurred. Must be satisfied before proximate cause. Alternative: substantial factor test (multiple sufficient causes).
Proximate cause (legal cause) requires that the result be a natural and probable consequence of the defendant's conduct, with no superseding intervening cause that breaks the causal chain.
Foreseeable intervening cause (e.g., medical negligence) does NOT break the chain. Only a SUPERSEDING cause (unforeseeable, extraordinary) breaks proximate causation.
Satisfied by (1) intent to burn a structure, OR (2) reckless disregard of an obvious risk that the structure would burn. No specific victim required.
Extends beyond common law to include (1) burning any structure (not just dwellings), (2) burning one's own property to defraud an insurer (insurance fraud).
Malicious burning of the dwelling of another. Modern statutes expand to: (1) any structure (not just dwelling), (2) one's own property (for insurance fraud).
Battery is the unlawful application of force to the person of another, resulting in bodily injury or an offensive touching; it is a general intent crime requiring only intent to perform the act.
Battery intent may be satisfied by: (1) general intent to commit the act, (2) transferred intent, or (3) constructive intent, where malice from an underlying felony such as arson supplies the required mens rea for the resulting battery.
A battery is elevated to aggravated battery when it results in serious bodily injury, is committed with a deadly weapon, or is perpetrated against a protected person such as a police officer or firefighter.
Effective January 1, 2013, Georgia replaced its prior evidence code with a code modeled closely on the Federal Rules of Evidence. Federal interpretations are persuasive, but Georgia retained several pre-2013 provisions where the General Assembly chose to keep Georgia policy.
In Georgia, the residual hearsay exception is patterned on the federal residual exception, and it replaced the former common-law 'necessity' exception. A trustworthy statement not covered by another exception is admissible only if it is offered as evidence of a material fact, is more probative on the point than other evidence the proponent can reasonably obtain, serves the interests of justice, and the proponent gives the adverse party advance notice.
Under Georgia law, a witness's prior inconsistent statement is admissible as substantive evidence, not merely for impeachment, even if it was not made under oath.
Under Georgia law, admissions by a party-opponent are not excluded by the hearsay rule. An admission is a statement offered against a party that is the party's own statement, one the party adopted or believed true, one by a person authorized to speak, one by the party's agent or employee within the scope and during the existence of the relationship, or one by a coconspirator during and in furtherance of the conspiracy; an agent of the state in a criminal proceeding is excluded.
Under Georgia law, evidence of other crimes, wrongs, or acts is not admissible to prove character to show conduct in conformity, but may be admitted for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal proceeding the prosecution must provide the defense reasonable notice in advance of trial of the general nature of such evidence, unless excused for good cause.
In Georgia, when the accused is charged with an offense of sexual assault or child molestation, evidence of the accused's commission of another such offense is admissible and may be considered for its bearing on any matter to which it is relevant, including the accused's propensity. The prosecution must disclose such evidence, including witness statements or a summary, at least ten days before trial unless modified by the court for good cause.
Under Georgia law, a witness may be impeached with a prior conviction. For a crime punishable by death or imprisonment in excess of one year, a non-accused witness's conviction comes in subject to the general balancing of probative value against unfair prejudice, while an accused's such conviction comes in only if its probative value outweighs its prejudicial effect to the accused. Any witness's conviction is admissible regardless of punishment if establishing its elements required proof or admission of an act of dishonesty or false statement, and convictions more than ten years old are generally inadmissible.
Georgia retains several privileges by statute, including husband-wife, attorney-client, psychiatrist-patient, and licensed-psychologist-patient communications, and a spouse is competent but not compellable to testify for or against the other in a criminal proceeding. Georgia recognizes no general physician-patient privilege, though it protects medical privacy by other means.
Georgia's continuing-witness rule bars certain written testimonial documents from going into the jury room during deliberations, because allowing the jury to re-read a writing places undue emphasis on it compared to oral testimony heard only once. The rule applies to documents that substitute for a witness's testimony, such as affidavits, depositions, written confessions, written statements, and dying declarations, but not to original documentary evidence or non-testimonial demonstrative exhibits.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, made by a declarant who is a person.
Records of a public office are admissible if they set out factual findings from a legally authorized investigation, unless the opponent shows a lack of trustworthiness.
A hearsay exception may apply regardless of whether the declarant is identified, but authentication and foundation requirements may still bar the statement.
Present sense impression (803(1)): Statement describing an event made while or immediately after perceiving it. No excitement needed (contrast with excited utterance).
Propensity ban: cannot use character evidence to show "they did it before, so they did it again." Exception: MIMIC purposes, and criminal D opening the door.
Other acts evidence exceptions - prior acts admissible for MIMIC purposes: (1) Motive, (2) Intent, (3) absence of Mistake, (4) Identity, (5) Common plan/scheme. Must give notice.
A statement offered against an opposing party, made by that party in an individual capacity, is not hearsay (opposing party statement exclusion).
Authentication: proponent must show evidence sufficient to support a finding the item is what they claim. Methods: witness with knowledge, distinctive characteristics, voice ID.
Attorney-client privilege: Protects (1) confidential communications, (2) between attorney and client, (3) for purpose of seeking/providing legal advice. Client holds the privilege.
In federal court, the privilege extends to communications between corporate employees and counsel made to enable the attorney to provide legal advice to the corporation, regardless of the employee's position.
Crime-fraud exception: Privilege does not protect communications made to further a current or future crime or fraud, even if the attorney didn't know.
Conviction for a crime of dishonesty (fraud, perjury, false statement) is automatically admissible for impeachment regardless of the punishment level.
Evidence of a conviction is generally inadmissible if more than 10 years have passed since the conviction or release from confinement, whichever is later.
Expert testimony is admissible if (1) specialized knowledge helps trier of fact, (2) based on sufficient facts/data, (3) reliable principles and methods, (4) reliably applied to the case.
Daubert reliability factors: (1) theory is testable, (2) peer review/publication, (3) known error rate, (4) standards/controls, (5) general acceptance in the field.
Character evidence ban: evidence of a person's character is NOT admissible to prove they acted in conformity with that character on a particular occasion.
In a criminal case, the prosecution cannot introduce evidence of a defendant's bad character unless the defendant first opens the door by offering evidence of a pertinent good character trait.
Reputation or opinion testimony about a witness's character for untruthfulness is admissible to impeach. Cannot use specific instances on direct (only on cross).
Other acts evidence rule: prior crimes/bad acts are NOT admissible to show propensity (person acted in conformity). Inadmissible to prove "once a thief, always a thief."
Prior acts admissible for non-propensity purposes: MIMIC - (1) Motive, (2) Intent, (3) absence of Mistake/accident, (4) Identity (modus operandi), (5) Common plan or scheme.
Even if admissible under the other acts evidence rule, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
Relevance: evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Very low threshold - does not require proof.
Relevance balancing: relevant evidence may be excluded if probative value is SUBSTANTIALLY outweighed by: unfair prejudice, confusion, misleading jury, undue delay, waste of time, or cumulative evidence.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement.
A prior statement is not hearsay and is admissible as substantive evidence if: the declarant testifies and is subject to cross-examination, the statement is inconsistent with the declarant's testimony, and the statement was given under oath at a prior trial, hearing, or deposition.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
Business records exception: admissible if (1) made at/near the time, (2) by person with knowledge, (3) regular business activity, (4) regular practice to make it, (5) trustworthy source/method.
Business record containing an embedded out-of-court statement: each hearsay layer needs its own exception. The business record exception covers only the record itself.
The statement against interest exception requires the declarant to be unavailable; a deceased declarant satisfies this requirement.
A statement is admissible if the declarant is unavailable and the statement was so contrary to the declarant's pecuniary or proprietary interest, or exposed the declarant to civil or criminal liability, that a reasonable person would not have made it unless believing it true.
The Confrontation Clause bars admission of testimonial statements by a non-testifying declarant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.
Statements made during police interrogation are non-testimonial when the primary purpose is to enable police assistance to meet an ongoing emergency, and testimonial when the primary purpose is to establish past events for later prosecution.
A 911 call that is non-testimonial still requires a hearsay exception; the excited utterance exception admits statements relating to a startling event made while under the stress of that event.
Spousal testimonial privilege (criminal): Witness-spouse may refuse to testify against defendant-spouse. Covers all testimony (not just communications). Privilege belongs to witness-spouse.
Marital communications privilege: Covers confidential communications made during marriage. Survives divorce. Either spouse may invoke. Does NOT cover observations or acts.
Subsequent remedial measures are inadmissible to prove negligence or product defect. Admissible for: (1) ownership/control, (2) feasibility (if disputed), (3) impeachment.
Evidence of compromise offers, and conduct or statements made during compromise negotiations, is inadmissible to prove or disprove the validity or amount of a disputed claim.
Evidence of an offer or promise to pay medical expenses is inadmissible to prove liability for the injury.
Authentication: the proponent must produce evidence sufficient to support a finding that the item is what they claim it is. Low bar - just enough for the jury.
Authentication methods: (1) witness with knowledge, (2) distinctive characteristics (appearance, contents, patterns), (3) voice identification, (4) comparison by expert or jury.
A writing may be authenticated by evidence that it was written in reply to a communication, with contents making it unlikely to have been written by anyone other than the purported author.
An original writing, recording, or photograph is required in order to prove its content.
Summary evidence exception: a party may use a summary/chart to prove voluminous writings, provided (1) originals are available for examination, (2) summary is accurate and fair.
Prior inconsistent statement: may impeach any witness. Extrinsic evidence allowed if witness gets chance to explain. If under oath at proceeding = also substantive.
Impeachment by bias: always admissible to show a witness has a motive to testify favorably (financial interest, relationship, plea deal). No FRE rule - case law.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
Records of a public office are admissible in a civil case if they set out factual findings from a legally authorized investigation, unless the opponent shows a lack of trustworthiness.
The public records exception is inapplicable if the opponent shows that the source of information or other circumstances indicate a lack of trustworthiness.
A statement in a learned treatise is admissible if called to the attention of an expert on cross-examination and the publication is established as a reliable authority by the expert or judicial notice.
If admitted under the learned treatise exception, the statement may be read into evidence but may not be received as a physical exhibit.
Forfeiture by wrongdoing: hearsay admitted against a party who intentionally caused the declarant's unavailability. Waives both hearsay objection and Confrontation Clause rights.
Declarant is unavailable if: (1) privilege claimed, (2) refuses to testify, (3) lacks memory, (4) dead or too ill, (5) absent and cannot be procured by process.
The forfeiture exception requires that the wrongdoing was specifically intended to prevent the declarant from testifying.
Hearsay within hearsay: each layer must independently qualify under an exception or exclusion. If any layer fails, the entire statement is inadmissible.
Under federal common law, confidential communications between a patient and a licensed psychotherapist for the purpose of diagnosis or treatment are privileged from disclosure.
The psychotherapist-patient privilege is waived when the patient voluntarily places their own mental or emotional condition at issue in the litigation.
The rape shield rule generally prohibits evidence of an alleged victim's other sexual behavior or sexual predisposition in a criminal proceeding involving sexual assault.
The rape shield rule provides an exception allowing specific instances of an alleged victim's sexual behavior with the accused to be admitted to prove consent.
Evidence of a victim's sexual behavior with persons other than the accused is generally inadmissible to prove consent under the rape shield rule.
The work product doctrine protects documents and tangible things prepared by a party or its representative in anticipation of litigation or for trial.
Attorney's mental impressions, conclusions, opinions, and legal theories receive near-absolute protection. Discoverable only in extraordinary circumstances.
Ordinary work product is discoverable only upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship.
Lay opinion is admissible if: (1) rationally based on the witness's perception, (2) helpful to the trier of fact, and (3) not based on scientific or other specialized knowledge.
Common lay opinions: (1) vehicle speed, (2) intoxication, (3) emotional state, (4) handwriting identification, (5) value of one's own property.
A court may judicially notice a fact not subject to reasonable dispute because it is generally known within the court's territorial jurisdiction, or can be accurately determined from sources whose accuracy cannot reasonably be questioned.
In a civil case, a court that takes judicial notice of a fact must instruct the jury to accept that fact as conclusive.
In a civil diversity case, state law governs the competency of a witness regarding a claim or defense for which state law supplies the rule of decision.
A Dead Man's Statute renders an interested party incompetent to testify about a transaction or communication with a deceased person when offered against the representative of the deceased's estate.
Under Georgia law, a valid marriage requires (1) parties able to contract, (2) an actual contract, and (3) consummation according to law. To be able to contract, a person must be of sound mind, at least 18 years of age, have no living spouse of a prior undissolved marriage, and not be related within the prohibited degrees.
In Georgia, no common-law marriage may be entered into on or after January 1, 1997. Common-law marriages entered into before January 1, 1997 remain valid and continue to be recognized.
Georgia recognizes 13 statutory grounds for total divorce, including fault grounds such as adultery, willful and continued desertion for one year, and cruel treatment, plus the no-fault ground that the marriage is irretrievably broken. On the irretrievably broken ground, no divorce may be granted until at least 30 days from the date of service on the respondent.
Georgia is an equitable division state, not a community property state, so marital property is divided fairly but not necessarily equally (50/50 is not required). Only marital property acquired during the marriage is divided; each spouse keeps separate property owned before the marriage or received by gift or inheritance.
Under the source-of-funds rule adopted in Thomas v. Thomas, a spouse who contributes separate property toward an asset retains a separate interest in proportion to the separate contribution, while the portion attributable to marital contributions is marital property subject to division. Appreciation of separate property is marital only to the extent it results from the spouses' efforts rather than passive market forces.
In Georgia, a party is not entitled to alimony if it is established by a preponderance of the evidence that the separation was caused by that party's adultery or desertion. The misconduct bars alimony only when it was the cause of the separation.
Where alimony is not barred, it is authorized but not required, based on the needs of one party and the other party's ability to pay. In Georgia, the factfinder considers factors including the standard of living during the marriage, the duration of the marriage, the age and condition of the parties, each party's financial resources and earning capacity, and each party's contribution to the marriage.
In Georgia, child custody is decided according to the best interests of the child, and there is no presumption in favor of either parent. The judge may consider any relevant factor, including the emotional ties between each parent and the child, each parent's capacity to provide for the child, and each parent's willingness to facilitate a close relationship with the other parent.
In Georgia, a permanent parenting plan is required in all permanent custody and modification actions and must be incorporated into the final order. If the parties cannot agree, each parent must submit a proposed parenting plan, and the court adopts the plan that serves the best interests of the child.
In Georgia, child support is calculated using the income shares model: the court combines both parents' adjusted gross incomes, locates the basic child support obligation on the statutory table, and prorates that obligation between the parents according to each parent's share of the combined income.
In Georgia, the biological father of a child born out of wedlock may legitimate the child by petitioning the superior court, and the court grants the petition if legitimation is in the best interests of the child. Until legitimation, only the mother is entitled to custody; a legitimation order gives the father parental rights and allows father and child to inherit from each other.
In Georgia, a permanent alimony judgment may be modified upon a petition showing a substantial change in the income and financial status of either former spouse, and no such petition may be filed within two years of a prior petition by the same spouse. Modification adjusts a prior support obligation prospectively, whereas contempt enforces an existing order against a party who willfully fails to comply.
Unlike an initial custody award (decided purely on best interests), modification of an existing custody order requires the petitioner to first prove a material change in circumstances affecting the welfare of the child that occurred since the last order; only after that threshold is met does the court reach the best interests of the child. The change may be positive or negative, but it must focus on the child rather than merely that the noncustodial parent is now doing well.
In Georgia, a child who has reached age 14 has the right to select the parent with whom he or she wishes to live, and that selection is presumptive unless the court finds the selected parent is not in the best interests of the child. The election may itself constitute a material change of circumstances supporting a modification, but may only be made once within a two-year period.
In Georgia, for a child who has reached 11 but not 14 years of age, the judge shall consider the child's desires and educational needs, but the child's wishes are not controlling and the best interests of the child standard governs. The selection of a child age 11 to 13 does not, by itself, constitute a material change of circumstances for a modification action.
Georgia distinguishes legal custody (the right to make major decisions about the child's education, health, religion, and welfare) from physical custody (where the child primarily resides). Either form may be awarded as sole or joint custody, and there is no presumption in favor of any particular form of custody or in favor of either parent.
Under Bodne v. Bodne, a custodial parent's relocation is not governed by any bright-line rule; the court must decide based on the best interests of the child on a case-by-case basis. There is neither a presumption that a relocating parent will lose custody nor a presumption in favor of allowing the relocation; the move may, but need not, constitute a material change in circumstances.
In Georgia, a court may grant a grandparent or other family member visitation only on a showing by clear and convincing evidence that the child's health or welfare would be harmed unless visitation is granted and that visitation is in the best interests of the child. A fit parent's decision is given deference, and the court must make specific written findings of fact to support any grant.
Temporary alimony (alimony pendente lite) may be awarded while the divorce is pending to maintain the dependent spouse and may include funds for attorney's fees and living expenses until final judgment. Permanent alimony is awarded in the final decree and, when periodic, continues over time but is modifiable upon a change in circumstances and terminates on the recipient's remarriage or either party's death.
Periodic alimony is paid in installments, is modifiable on a substantial change in circumstances, and ends on the recipient's remarriage or death. Lump-sum alimony is a fixed total obligation (whether paid at once or in installments of a sum certain); it is not modifiable and does not terminate on remarriage or death because it vests as a debt when awarded.
Under Scherer v. Scherer, a Georgia court deciding whether to enforce an antenuptial agreement applies three criteria: (1) whether the agreement was obtained through fraud, duress, mistake, misrepresentation, or nondisclosure of material facts; (2) whether the agreement is unconscionable; and (3) whether the facts and circumstances have changed since execution so as to make enforcement unfair or unreasonable. The party seeking enforcement bears the burden, which includes showing full and fair disclosure of assets.
In Georgia, a court may award attorney's fees in an action for alimony, divorce and alimony, or contempt arising from such a case, within its sound discretion, and it must consider the financial circumstances of both parties. Fees awarded in such an action are considered part of alimony, so a valid agreement barring alimony also bars an attorney's fee award.
In dividing marital property equitably, the factfinder may consider factors such as each spouse's contribution to acquiring the property (including homemaking), the duration of the marriage, the parties' separate estates and future needs, and the conduct of the parties, including the cause of the divorce. Marital debt incurred during the marriage is likewise apportioned equitably between the spouses rather than automatically split equally.
In Georgia, after computing the presumptive amount under the income shares model the court may deviate when supported by required findings of fact and the best interests of the child, including a low-income deviation for a parent facing extreme economic hardship, an upward high-income deviation where combined adjusted gross income exceeds $40,000 per month, and deviations for extraordinary educational, medical, or special child-rearing expenses.
In Georgia, paternity merely establishes who the biological father is and obligates him to pay child support, but it does not confer parental rights. Legitimation is a separate step that establishes the legal parent-child relationship, giving the father standing to seek custody or visitation and allowing father and child to inherit from each other; signing a birth certificate or paying support does not legitimate a child without a court order.
A custody modification generally requires a material change in circumstances, but a parent may seek a modification of visitation rights (as opposed to custody) once during each two-year period without showing a change in circumstances. This two-year, no-change-required route applies only to revising visitation, not to changing primary custody.
Federal Practice and Procedure questions test the Federal Rules of Civil Procedure and federal jurisdiction (subject-matter jurisdiction, diversity, removal, Erie) as applied in the federal district courts sitting in Georgia, not the Georgia Civil Practice Act.
D can be sued for anything. Only where D is "at home." Individuals: domicile. Corporations: (1) state of incorporation + (2) principal place of business.
Defendant must have purposefully availed themselves of forum state benefits such that being sued there is reasonably foreseeable. Unilateral acts of plaintiff don't count.
The defendant must have purposefully availed itself of the privilege of conducting activities in the forum state, invoking the benefits and protections of its laws.
The plaintiff's claim must arise out of or relate to the defendant's contacts with the forum state.
(1) complete diversity (no P and D share citizenship), (2) amount in controversy exceeds $75,000. Individuals: domicile. Corps: incorporation + principal place of business.
A defendant may remove a civil action from state court to federal district court if the federal court would have had original jurisdiction over the action.
In diversity cases, removal is barred if any properly joined and served defendant is a citizen of the state where the action was brought.
A federal court must give a prior state-court judgment the same preclusive effect it would receive under the law of the state that rendered it.
The preclusive effect of a prior judgment is governed by the substantive law of the rendering court's jurisdiction, not the forum where the second suit is filed.
Claim preclusion (res judicata) bars a second suit when: (1) there was a valid, final judgment on the merits, (2) between the same parties or their privies, and (3) involving the same claim or cause of action.
Under the transactional test, 'same claim' encompasses all claims arising from a common nucleus of facts, including all theories of recovery the plaintiff could have raised in the first action.
Issue preclusion (collateral estoppel) bars relitigation when: (1) the issue is identical to one in the prior action, (2) the issue was actually litigated and decided, (3) there was a valid final judgment, and (4) the determination was essential to that judgment.
The court could not have reached its decision without resolving that issue. Alternative or gratuitous findings do NOT preclude.
Federal question jurisdiction (28 USC §1331): federal courts hear civil actions arising under the Constitution, federal laws, or treaties. Must appear on the face of the complaint.
Federal question jurisdiction exists only when the federal issue appears on the face of the plaintiff's well-pleaded complaint, not in an anticipated defense.
Complete diversity: No plaintiff may share state citizenship with any defendant. Even one overlap destroys diversity jurisdiction. Citizenship: individuals = domicile; corps = incorporation + PPB.
Corporate citizenship (diversity): citizen of (1) every state of incorporation, AND (2) the state of its principal place of business (nerve center = where high-level officers direct activities).
An individual's citizenship is their domicile, requiring physical presence in a state plus the intent to remain there indefinitely.
The amount in controversy must exceed $75,000, exclusive of interest and costs.
A federal court may exercise supplemental jurisdiction over state-law claims that share a common nucleus of operative fact with an anchor claim over which the court has original jurisdiction.
§1367(b) restriction: limits supplemental jurisdiction ONLY in diversity-only cases. Does not apply when there is an independent federal question basis for jurisdiction.
Court may decline supplemental jurisdiction (§1367(c)) if: (1) novel/complex state-law issue, (2) state claim substantially predominates, (3) all federal claims dismissed, (4) other compelling reasons.
Venue is proper in any district where any defendant resides, if all defendants reside in the same state.
Venue is proper in a district where a substantial part of the events or omissions giving rise to the claim occurred.
An entity defendant resides for venue purposes in any district where it is subject to personal jurisdiction with respect to the action.
Transfer of venue for convenience: court may transfer to any district where case might have been brought. Factors: convenience of parties and witnesses, access to evidence, interest of justice.
Forum non conveniens: dismiss if (1) adequate alternative forum exists (abroad), AND (2) public + private interest factors strongly favor litigation there.
Forum non conveniens factors: Private = (1) access to evidence, (2) witness availability, (3) practical problems. Public = (1) court congestion, (2) local interest, (3) familiarity with applicable law.
To obtain a preliminary injunction, the movant must establish: (1) likelihood of success on the merits, (2) likelihood of irreparable harm absent relief, (3) that the balance of equities favors the movant, and (4) that an injunction serves the public interest.
Irreparable harm means injury that cannot be adequately compensated by money damages after trial, requiring a showing that harm is likely and cannot be remedied at law.
FRCP 65(c) requires the movant to give security in an amount the court deems proper to pay any costs or damages if a party is wrongfully enjoined.
FRCP 8(a)(2) requires a complaint to contain a short and plain statement of the claim showing that the pleader is entitled to relief.
To survive a 12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as true, to state a claim plausible on its face. Legal conclusions and threadbare recitals of elements are not presumed true.
Under FRCP 15(c)(1)(B), an amendment relates back when the claim asserted arose out of the same conduct, transaction, or occurrence set forth in the original pleading.
An amendment adding a party relates back only if: (1) it arises from the same transaction, (2) the new party received notice within the Rule 4(m) period, and (3) the new party knew or should have known the action would have been brought against it but for a mistake concerning the proper party's identity.
FRCP 9(b) requires that in alleging fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake.
Fraud particularity requires pleading the who, what, when, where, and how of the alleged fraudulent conduct.
Under FRCP 9(b), malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
Under FRCP 19(a), a party must be joined if feasible if: (1) complete relief cannot be accorded without them, (2) their absence may impair their ability to protect their own interest, or (3) their absence would expose an existing party to a substantial risk of inconsistent obligations.
(1) prejudice to parties/absentee, (2) can relief be shaped to lessen prejudice, (3) adequacy of judgment without them, (4) P has alternative forum.
(1) timely motion, (2) interest in the transaction, (3) disposition may impair that interest, (4) existing parties do not adequately represent it.
Under FRCP 24(b), a court may permit intervention when the movant's claim or defense shares a common question of law or fact with the main action, provided intervention will not unduly delay or prejudice the adjudication.
FRCP 23(a) requires all four prerequisites for class certification: numerosity (joinder impracticable), commonality (common questions of law or fact), typicality (representative claims typical of the class), and adequacy (representative will fairly protect class interests).
A FRCP 23(b)(3) damages class requires that common questions of law or fact predominate over individual questions, and that a class action is superior to other available methods for fair and efficient adjudication.
Under FRCP 26(b)(3), work product protection covers documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative.
Ordinary (fact) work product is discoverable only upon a showing of substantial need for the materials and inability to obtain their substantial equivalent without undue hardship.
Attorney's mental impressions, conclusions, opinions, and legal theories receive near-absolute protection. Discoverable only in extraordinary circumstances.
Under FRCP 26(b)(1), parties may obtain discovery of any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case.
Weigh (1) importance of issues, (2) amount in controversy, (3) parties' resources, (4) importance of discovery to resolve case, (5) burden vs. likely benefit.
When electronically stored information is not reasonably accessible (undue burden/cost), court may order production with costs shifted to requesting party.
Litigation hold: duty to preserve relevant ESI/documents arises when litigation is reasonably anticipated. Failure to implement after notice of suit = spoliation sanctions.
FRCP 37(e) sanctions require: (1) ESI that should have been preserved was lost, (2) the party failed to take reasonable steps to preserve it, and (3) the lost ESI cannot be restored or replaced through additional discovery.
Under FRCP 37(e)(1), if the loss of ESI prejudices another party, the court may order measures no greater than necessary to cure the prejudice.
Under FRCP 37(e)(2), if the party acted with intent to deprive another of the ESI, the court may presume the information was unfavorable, give an adverse inference instruction, or impose dismissal or default judgment.
Under FRCP 56, summary judgment is proper when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
The movant bears the initial burden of production, which may be met by pointing out the absence of evidence to support an essential element of the nonmovant's case.
Once the movant meets its burden, the nonmovant must go beyond pleadings and produce admissible evidence showing a genuine dispute of material fact exists.
The Seventh Amendment preserves the right to a jury trial in suits at common law where the value in controversy exceeds twenty dollars, as that right existed at common law in 1791.
Seventh Amendment jury right: attaches to legal claims (money damages) but NOT equitable claims (injunctions, specific performance, accounting).
When legal and equitable claims share common issues, the jury must first decide the factual issues underlying the legal claims, and the judge is bound by those findings on the equitable claims.
Under FRCP 50, judgment as a matter of law is appropriate when a reasonable jury would not have a legally sufficient evidentiary basis to find for the nonmoving party on a claim.
A renewed JMOL motion under FRCP 50(b) is available only if the party made a JMOL motion under FRCP 50(a) at the close of evidence before submission to the jury.
Granted for (1) verdict against the great weight of evidence, (2) prejudicial legal error, (3) any other reason recognized at common law.
FRCP 11(b): by presenting a pleading, attorney certifies (1) it is not for an improper purpose, (2) legal contentions are warranted, (3) factual contentions have evidentiary support after reasonable inquiry.
Under FRCP 11(c)(2), a sanctions motion must first be served on the opposing party, who then has 21 days to withdraw or correct the challenged paper before the motion may be filed with the court.
Rule 11 sanctions are limited to what is sufficient to deter repetition of the conduct and may be nonmonetary or monetary, including attorney's fees.
Motion for new trial (FRCP 59): must be filed within 28 days of judgment. This deadline is mandatory and cannot be extended.
For newly discovered evidence motions under Rules 59 and 60(b)(2), the movant must show: (1) the evidence was discovered after trial, (2) the movant exercised due diligence before trial, and (3) the evidence is material and would likely produce a different outcome.
Under FRCP 60(b)(2), a motion for relief from judgment based on newly discovered evidence must be made within one year of the entry of the judgment or order.
Courts of appeals have jurisdiction only over final decisions of district courts that end litigation on the merits, leaving nothing for the court to do but execute the judgment.
Interlocutory appeal exception for injunctions: courts of appeals have jurisdiction over interlocutory orders granting, refusing, continuing, modifying, or dissolving injunctions.
Interlocutory orders merge into the final judgment. A party need not appeal interlocutory orders separately - they are reviewable on appeal from final judgment.
Georgia is a notice-pleading jurisdiction: a complaint need only contain a short and plain statement of the claims showing the pleader is entitled to relief, plus the facts on which venue depends. No technical forms of pleading are required.
In Georgia, a defendant must serve an answer within 30 days after service of the summons and complaint, unless otherwise provided by statute.
In Georgia, enumerated defenses (including failure to state a claim) may be raised by motion; a motion making such defenses must be made before or at the time of pleading. If matters outside the pleading are presented on a motion to dismiss for failure to state a claim, the motion is treated as one for summary judgment.
Under Georgia law, the clerk issues a summons upon filing of the complaint, and the summons and complaint must be served together. Personal service is made by delivering a copy of the summons attached to a copy of the complaint to the defendant.
In Georgia, if no answer is filed within the required time the case automatically becomes in default. The default may be opened as a matter of right by filing defenses within 15 days of the day of default upon payment of costs; after that 15-day window the plaintiff is entitled to a default judgment.
In Georgia, after the 15-day window but before final judgment, the court may in its discretion open default on three grounds: providential cause, excusable neglect, or a proper case. The defendant must pay costs, act under oath, set up a meritorious defense, offer to plead instanter, and announce ready to proceed with trial.
Under Georgia law, summary judgment is granted when the pleadings, discovery, and affidavits show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The motion must be served at least 30 days before the hearing.
In Georgia, a plaintiff may voluntarily dismiss without court order by written notice at any time before the first witness is sworn. The first dismissal is without prejudice, but the filing of a second notice of dismissal operates as an adjudication upon the merits.
Under Georgia's renewal statute, if a case timely commenced is voluntarily dismissed or discontinued (a non-merits dismissal), the plaintiff may recommence it within six months after the dismissal even if the statute of limitations has run, upon payment of costs in the original action. If the dismissal occurs after the limitation period has expired, this renewal privilege may be exercised only once.
Georgia limitation periods are subject specific: personal-injury actions must be brought within two years, while actions on a simple written contract must be brought within six years.
In Georgia, a party may amend a pleading as a matter of course without leave of court at any time before entry of a pretrial order; thereafter only by leave of court or written consent, which leave shall be freely given. An amendment relates back to the date of the original pleading when it arises out of the same conduct, transaction, or occurrence.
Under the Georgia Constitution, civil cases are generally tried in the county where the defendant resides; venue as to corporations is as provided by law. A complaint must allege the facts on which venue depends.
In Georgia, before suing a municipal corporation for injury to person or property, a claimant must present a written ante litem notice to the city's governing authority within six months of the event, stating the time, place, extent of injury, the negligence, and the specific amount of monetary damages sought. No suit may be entertained until the claim is presented.
Under the Georgia Tort Claims Act, a person with a tort claim against the State must give written notice within 12 months of the date the loss was discovered or should have been discovered. No action may be commenced, and courts lack jurisdiction, unless this written notice of claim has been timely presented.
Under the Georgia Long-Arm Statute, a Georgia court may exercise specific personal jurisdiction over a nonresident as to a cause of action arising from enumerated acts, including transacting any business within this state, committing a tortious act or omission within this state, or committing a tortious injury in this state caused by an act outside the state if the tortfeasor regularly does business or derives substantial revenue here. Unlike the federal approach, the Georgia statute is independently limiting: the defendant must actually do one of the enumerated acts, so the statute can be narrower than the full reach of federal due process. Georgia courts have held that the transacting-business prong reaches to the maximum permitted by due process, but the literal statutory language still controls.
Under the Georgia Constitution, superior courts have general jurisdiction over all civil cases and EXCLUSIVE jurisdiction over divorce cases, cases respecting title to land, and equity cases. State courts have concurrent jurisdiction over civil actions without regard to the amount in controversy but cannot hear matters in which exclusive jurisdiction is vested in the superior courts (no equity, divorce, or land title). Magistrate courts hear civil claims only where the amount demanded or value claimed does not exceed $15,000.00.
In Georgia, a domestic or foreign corporation authorized to transact business in Georgia is served by delivering a copy of the summons and complaint to the president or other officer of the corporation, a managing agent, or a registered agent. If for any reason service cannot be had in that manner, the Secretary of State becomes the agent of the corporation upon whom process may be served as a method of substituted service.
In Georgia, a pleading SHALL state as a compulsory counterclaim any claim the pleader has against an opposing party that arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require third parties over whom the court cannot acquire jurisdiction; a compulsory counterclaim not asserted is barred. A permissive counterclaim is any claim against an opposing party not arising out of that same transaction or occurrence, and need not be raised.
In Georgia, no party may serve more than 50 interrogatories, including subparts, upon any other party without leave of court, which may be granted on a showing of complex litigation or undue hardship. The responding party generally must serve answers within 30 days after service of the interrogatories, except a defendant may serve answers within 45 days after service of the summons and complaint.
In Georgia, a party may move for a directed verdict at the close of the opponent's evidence or at the close of all the evidence; it is granted only where there is no conflict in the evidence as to any material issue and the evidence demands a particular verdict. A party who moved for a directed verdict may, not later than 30 days after entry of judgment, move for judgment notwithstanding the verdict (j.n.o.v.) to have the verdict set aside; a motion for new trial may be joined with this motion in the alternative.
In Georgia, all motions for new trial, except in extraordinary cases, must be made within 30 days of the entry of the judgment on the verdict, or entry of the judgment where the case was tried without a jury. A pending motion for new trial extends the time for filing a notice of appeal until the order disposing of the motion.
In Georgia, in a tort action either party may serve (but not file) a written offer of settlement more than 30 days after service of the complaint and not less than 30 days before trial; an offer not accepted within 30 days is deemed rejected. If a DEFENDANT's rejected offer is more than the eventual judgment, the defendant recovers attorney's fees and expenses where the final judgment is one of no liability or is less than 75 percent of the offer. If a PLAINTIFF's rejected offer is exceeded, the plaintiff recovers fees where the final judgment is greater than 125 percent of the offer. Fees run from the date of rejection through entry of judgment.
Under Georgia law, a judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause, until the judgment is reversed or set aside. This codifies res judicata: a party must assert all claims concerning the same subject matter in one action, and unraised claims are barred. Collateral estoppel (estoppel by judgment) applies between the same parties on any cause of action as to matters that were actually litigated and decided. Both require a prior judgment on the merits.
Under Georgia law, any action in which no written order is taken for a period of five years automatically stands dismissed, with costs taxed against the plaintiff. The dismissal occurs by operation of law without any order, and the order must be written, signed by the judge, and entered in the record to restart the period. A plaintiff who recommences the action within six months following the dismissal stands on the same footing as to limitation as the original action.
In Georgia, a notice of appeal from a final judgment must be filed within 30 days after entry of the appealable decision or judgment; when a motion for new trial, motion in arrest of judgment, or motion for j.n.o.v. has been filed, the 30 days run from the order disposing of that motion. To appeal a non-final (interlocutory) order, the trial court must certify within 10 days of the order that it is of such importance that immediate review should be had, and the party must apply to the appellate court within 10 days after the certificate of immediate review is granted.
Equity acts only where there is no adequate and complete remedy at law; if damages would fully compensate the plaintiff, equitable relief is unavailable. In Georgia, the mere existence of a less complete or less effectual legal remedy does not deprive equity of jurisdiction.
In Georgia, all equity jurisdiction is vested in the superior courts (and the State-wide Business Court). Equity is invoked where peculiar circumstances make the general rules of law deficient to protect against anticipated wrong or relieve injuries done.
By writ of injunction, equity may restrain a threatened or existing tort or any act that is illegal or contrary to equity and good conscience and for which no adequate remedy is provided at law. An injunction is an extraordinary remedy and will not lie where the plaintiff has a plain and adequate remedy at law.
To obtain an interlocutory injunction (which preserves the status quo pending trial), a court weighs four factors: (1) a substantial threat of irreparable injury if relief is denied, (2) that the threatened injury to the movant outweighs the harm the injunction would cause the enjoined party (balance of equities), (3) a substantial likelihood the movant will prevail on the merits, and (4) that the injunction will not disserve the public interest. Georgia weighs these factors flexibly, and the movant need not establish all four.
In Georgia, no interlocutory injunction may issue without notice to the adverse party; a TRO may be granted without notice only if specific facts shown by affidavit or verified complaint clearly show immediate and irreparable injury before the adverse party can be heard, and counsel certifies the efforts made to give notice.
In Georgia, specific performance of a contract, if within the party's power, will be decreed whenever the damages recoverable at law would not be adequate compensation for nonperformance. The contract must be definite, certain, fair, and supported by adequate consideration; specific performance will not be decreed of a merely voluntary or gratuitous promise.
Because each parcel of land is unique, damages are presumed inadequate for breach of a land-sale contract, and specific performance is the favored remedy. The contract must identify the land with reasonable definiteness (describing the tract or furnishing a key to locate it), since a decree of specific performance operates as a deed.
A contract may be rescinded at the instance of the party defrauded; in Georgia, equity has concurrent jurisdiction in all cases of fraud except fraud in the execution of a will. To rescind, the defrauded party must, promptly upon discovering the fraud, restore or offer to restore whatever of value he received under the contract.
Equity will reform a writing so it expresses the true agreement of the parties, but only where the mistake is mutual, or where there is a mistake on one side and fraud or inequitable conduct on the other. Reformation corrects the instrument (including a scrivener's error); it cannot be used to make a new and different contract.
In Georgia, a constructive trust is implied whenever the person holding legal title to property, whether from fraud or otherwise, cannot enjoy the beneficial interest without violating some established principle of equity. It is a remedy imposed by a court to prevent unjust enrichment, compelling the wrongful titleholder to convey the property to the rightful party.
An equitable lien is a charge imposed on specific property to secure a debt or obligation where equity and good conscience require it, typically to prevent unjust enrichment when the claimant's money or labor improved or preserved that property. Unlike a constructive trust, it gives the claimant a security interest in the property rather than full title.
In Georgia, in cases of actual controversy, a superior court may declare the rights and legal relations of an interested party, whether or not further relief could be prayed. The controversy must be justiciable, with adverse parties asserting claims on an accrued state of facts, and relief is available even though another adequate legal or equitable remedy exists.
A quia timet proceeding lies in equity to cancel a forged or otherwise iniquitous instrument that casts a cloud over the complainant's title to real estate or subjects him to future liability or present annoyance. In Georgia, relief is granted whether the instrument's invalidity appears on its face or arises from facts outside it.
He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter, which is the basis for the clean hands doctrine. A party guilty of inequitable, illegal, or immoral conduct connected to the transaction will be denied equitable relief.
Equity gives no relief to one whose long delay renders ascertainment of the truth difficult, even when no legal limitation bars the right. Laches requires unreasonable delay in asserting a claim that prejudices the opposing party, and it applies only to equitable claims, not to actions at law.
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person, and which does induce such action or forbearance, is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires, and the statute of frauds is no bar to a promissory estoppel claim.
For an equitable estoppel to arise, there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud, by which another has been misled to his or her injury. The party claiming the estoppel must show lack of knowledge of the true facts, reliance on the other's conduct, and a prejudicial change of position.
When any fund or property is in litigation and the rights of either or both parties cannot otherwise be fully protected, or when there is a fund or property having no one to manage it, a receiver of the same may be appointed by the judge of the superior court having jurisdiction. Appointment of a receiver is an extraordinary equitable remedy to be exercised with caution where there is manifest danger of loss, destruction, or material injury to those interested.
When two or more persons are common owners of land and no provision is made as to how it shall be divided, any common owner may petition the superior court of the county where the land lies for a writ of statutory partition. In Georgia, equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just, as where a sale rather than a division in kind is needed.
Whenever a person is possessed of property or funds, or owes a debt or duty, to which more than one person lays claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead. The stakeholder must be disinterested, claiming no right in opposition to the claimants, and may have his expenses, including attorney's fees, taxed in the bill of costs.
Equity will take no part in the administration of the criminal law and will neither aid criminal courts in exercising their jurisdiction nor restrain or obstruct them, so an injunction will not issue merely to restrain the commission of a crime. An injunction is also never a proper remedy against an act already completed or fully consummated, because equity cannot restrain that which has already been done.
Mere inadequacy of price, though not sufficient to rescind a contract, may justify a court in refusing to decree specific performance, as may any other fact showing the contract to be unfair, unjust, or against good conscience. Specific performance is not a remedy that either party can demand as a matter of absolute right; it rests in the sound discretion of the court and will be denied where enforcement would work unreasonable hardship.
The expenses of litigation generally are not allowed as part of the damages, but where the plaintiff has specially pleaded and prayed for them and the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them. Such litigation expenses are recoverable only by a plaintiff and only on a claim at law; equity itself awards equitable relief rather than money damages, except as incidental to the equitable relief granted.
Under the Georgia Rules of Professional Conduct, a lawyer shall provide competent representation, requiring the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation; the maximum penalty for a violation is disbarment.
Under the Georgia Rules of Professional Conduct, a lawyer must act with reasonable diligence and promptness; in Georgia this means the lawyer shall not without just cause to the detriment of the client willfully abandon or willfully disregard a legal matter entrusted to the lawyer, and the maximum penalty is disbarment.
Under the Georgia Rules of Professional Conduct, a lawyer shall keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, and explain matters to the extent reasonably necessary for the client to make informed decisions; the maximum penalty for a violation is a public reprimand.
Under the Georgia Rules of Professional Conduct, a lawyer is forbidden from charging an unreasonable fee and must put a contingent fee agreement in a writing stating the method by which the fee is determined, including percentages and how expenses are deducted; contingent fees are prohibited in domestic relations matters tied to securing a divorce or alimony/support amount, and in criminal cases.
Under the Georgia Rules of Professional Conduct, a lawyer must maintain in confidence all information gained in the professional relationship with a client unless the client gives informed consent or disclosure is impliedly authorized or required by law or court order; this duty continues after the client-lawyer relationship has terminated, and the maximum penalty is disbarment.
Under the Georgia Rules of Professional Conduct, a lawyer may reveal confidential information reasonably believed necessary to avoid or prevent harm or substantial financial loss to another from client or third-party criminal conduct, or to prevent serious injury or death; before disclosing, if feasible the lawyer must make a good faith effort to persuade the client not to act or to warn the victim.
Under the Georgia Rules of Professional Conduct, a lawyer shall not knowingly make a false statement of material fact or law to a tribunal, offer evidence the lawyer knows to be false, or fail to disclose directly adverse controlling authority not disclosed by opposing counsel; these duties continue to the conclusion of the proceeding and apply even if compliance requires disclosing information otherwise protected by the duty of confidentiality.
Under the Georgia Rules of Professional Conduct, a lawyer shall not represent a client if there is a significant risk that the lawyer's own interests or duties to another client, former client, or third person will materially and adversely affect the representation, unless each affected client consents, preferably in writing, after consultation and adequate information about the material risks.
Under the Georgia Rules of Professional Conduct, a lawyer who formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client consents after consultation.
Under the Georgia Rules of Professional Conduct, while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by the concurrent-conflict or former-client rules, so one lawyer's conflict is generally imputed to the entire firm.
Under the Georgia Rules of Professional Conduct, a lawyer must hold client and third-party funds separate from the lawyer's own funds and may never commingle them; nominal or short-term funds must be held in an interest-bearing IOLTA account with interest paid to the Georgia Bar Foundation, and records must reflect the exact balance held for each client or third person.
Under the Georgia Rules of Professional Conduct, a lawyer must withdraw when the representation would violate the rules or law, the lawyer's condition materially impairs the representation, or the lawyer is discharged; a lawyer may withdraw where it can be done without material adverse effect or for good cause, and upon termination the lawyer must take reasonable steps to protect the client's interests, including refunding unearned fees.
Under the Georgia Rules of Professional Conduct, a lawyer shall not solicit professional employment as a private practitioner through direct personal contact or live telephone contact with a non-lawyer who has not sought legal advice, and shall not send targeted written solicitations regarding a personal-injury or wrongful-death accident within 30 days of the event; the maximum penalty is disbarment.
Unlike the mandatory ABA Model Rule, the Georgia Rules of Professional Conduct provide that a lawyer who knows another lawyer has committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness should inform the appropriate professional authority, and Georgia expressly states there is no disciplinary penalty for a violation of this rule.
Under Georgia's disciplinary rules, each Georgia Rule of Professional Conduct states its own maximum penalty, and the levels of discipline range from disbarment and suspension down through public reprimand, State Disciplinary Review Board reprimand, confidential reprimand, and a formal letter of admonition.
Under the Georgia Rules of Professional Conduct, a lawyer shall abide by a client's decisions concerning the scope and objectives of representation and whether to settle a matter; in a criminal case the lawyer shall abide by the client's decision, after consultation, as to the plea to be entered, whether to waive jury trial and whether the client will testify. A lawyer shall not counsel or assist a client to engage in conduct the lawyer knows is criminal or fraudulent, but may discuss the legal consequences of any proposed course of conduct. The maximum penalty for a violation of this rule is disbarment.
Under the Georgia Rules of Professional Conduct, a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents, not its individual officers or employees. If the lawyer knows a constituent is engaged in conduct that is a violation of law likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization, which may include referring the matter to higher authority in the organization, up to the highest authority that can act on its behalf. The maximum penalty for a violation of this rule is a public reprimand.
Under the Georgia Rules of Professional Conduct, a lawyer shall not enter into a business transaction with a client where the client expects the lawyer's professional judgment to protect the client unless the terms are fair and reasonable, fully disclosed in writing, the client is given a reasonable opportunity to seek independent counsel, and the client consents in writing. A lawyer shall not prepare an instrument giving the lawyer or a close relative a substantial gift, including a testamentary gift, except where the client is related to the donee; the lawyer shall not, prior to the conclusion of representation, negotiate literary or media rights based on the representation; and the lawyer shall not acquire a proprietary interest in the cause of action except for a lien to secure fees or a reasonable contingent fee. The maximum penalty for an improper business transaction with a client, preparing an instrument giving the lawyer a substantial gift, negotiating literary or media rights, or acquiring a proprietary interest adverse to the client is a public reprimand.
Under the Georgia Rules of Professional Conduct, a lawyer shall not use information gained in the professional relationship to the disadvantage of the client unless the client consents after consultation, except as allowed by the duty of confidentiality; the maximum penalty for using a client's information to the client's disadvantage is disbarment. A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that the lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome, and may pay those costs for a client unable to pay. Georgia's rules do not include the ABA Model Rule flat ban on sexual relations with a client; instead such conduct is addressed through the lawyer's conflict-of-interest and competence duties.
Under the Georgia Rules of Professional Conduct, a lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal material having evidentiary value; falsify evidence or counsel or assist a witness to testify falsely; or use methods of obtaining evidence that violate the legal rights of the opposing party. Georgia adds that a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter. The maximum penalty for a violation of this rule is disbarment.
Under the Georgia Rules of Professional Conduct, a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless the testimony relates to an uncontested issue, relates to the nature and value of legal services rendered in the case, or disqualification would work substantial hardship on the client. A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be a witness unless precluded by the conflict rules. The maximum penalty for a violation of this rule is a public reprimand.
Under the Georgia Rules of Professional Conduct, a lawyer representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order; Georgia expressly applies this anti-contact rule to attorneys for the State and Federal Government in the same manner as other attorneys. The maximum penalty for a violation of this rule is disbarment.
Under the Georgia Rules of Professional Conduct, in dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested, must make reasonable efforts to correct any misunderstanding the unrepresented person has about the lawyer's role, and shall give no advice other than the advice to secure counsel if the lawyer knows or reasonably should know that the unrepresented person's interests are or may be in conflict with the client's. The maximum penalty for a violation of this rule is disbarment.
Under the Georgia Rules of Professional Conduct, an applicant for admission to the bar, or a lawyer in connection with a bar admission application or a disciplinary matter, shall not knowingly make a false statement of material fact, or fail to disclose a fact necessary to correct a misapprehension known to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by the duty of confidentiality. The maximum penalty for a violation of this rule is disbarment.
Georgia is a title-theory state that secures real-estate debt with a 'deed to secure debt' (security deed) that conveys legal title to the lender until the debt is paid. Lenders typically use non-judicial foreclosure by exercising a power of sale with statutory advertisement.
Georgia's recording act is a pure NOTICE statute. In Georgia, a prior unrecorded deed loses priority to a subsequent bona fide purchaser for value who takes without notice of the prior conveyance; the subsequent purchaser need NOT record first to prevail, so this is a notice statute, not a race-notice statute.
In Georgia, after a non-judicial foreclosure sale under power of sale, a creditor may NOT pursue a deficiency judgment unless, within 30 days after the sale, it reports the sale to the superior court for confirmation and the court confirms that the property brought its true market value. This confirmation is a condition precedent to any deficiency action.
Georgia recognizes NO equitable right of redemption after a power-of-sale foreclosure of a security deed; the debtor's right to redeem is cut off by the foreclosure sale. A statutory right of redemption exists only for TAX sales: the owner or any interest holder may redeem within 12 months of the tax sale (or until the right is foreclosed by notice) by paying the price plus a 20 percent premium for the first year.
In Georgia, adverse possession ripens into title by prescription after 20 years of possession without color of title, but only 7 years when the possession is under written evidence of title, i.e., color of title. A prescriptive easement likewise requires 20 years of adverse use, reduced to 7 years where based on a written instrument.
Georgia distinguishes a usufruct from an estate for years. Any lease of real estate for less than five years is presumed to convey only a usufruct - a mere right to possess and use that passes no estate out of the landlord and is not subject to levy and sale - unless the contract states otherwise. A lease for five years or more, or one expressly so providing, conveys an estate for years.
In Georgia, terminating a tenancy at will requires 60 days' notice from the landlord but only 30 days' notice from the tenant. The notice periods are asymmetric, and a periodic tenancy continued by acceptance of rent after a lease ends becomes a tenancy at will subject to these notice rules.
In Georgia, a landlord who has fully parted with possession and the right of possession is not liable to third persons for the tenant's negligent or illegal use of the premises; however, the landlord remains liable for damages arising from defective construction or from failure to keep the premises in repair (the latter requiring actual or constructive notice of the defect).
An easement by implication requires prior common ownership of the dominant and servient parcels, and subsequent severance of that common ownership.
Before severance, there must have been an apparent and continuous use of one part of the tract that benefited another part.
The easement by implication requires that continued use be reasonably necessary for the enjoyment of the dominant estate at the time of severance.
A subsequent BFP prevails over a prior unrecorded interest only if the BFP (1) paid value, (2) took without notice, AND (3) recorded first.
Takes (1) for valuable consideration, (2) in good faith, (3) without notice (actual, constructive from records, or inquiry from possession) of prior claims.
Inquiry notice arises from visible facts that would prompt a reasonable person to investigate, such as another's open possession or an obvious path across the land.
(1) actual possession, (2) exclusive, (3) open and notorious, (4) hostile/adverse (without permission), (5) continuous for the statutory period.
Adverse possession: possession must be continuous and uninterrupted for the full statutory period. Tacking allowed if privity exists between successive possessors.
Automatically ends when stated event occurs. Durational language: "so long as," "while," "during," "until." Grantor retains possibility of reverter.
"so long as," "while," "during," "until." These words create automatic termination. Future interest: possibility of reverter (automatic).
After a fee simple determinable, the grantor retains a possibility of reverter, which becomes possessory automatically when the stated condition occurs.
Binds successors if (1) writing (SOF), (2) intent to bind successors, (3) touch and concern the land, (4) notice (actual, constructive, or inquiry). No privity required.
The primary remedy for breach of an equitable servitude is an injunction, not money damages.
In a planned subdivision, covenants from a common scheme are mutually enforceable among all lot owners who purchased with notice of the restrictions.
Landlord has a non-waivable duty to maintain residential premises in a habitable condition meeting housing code standards.
A breach occurs when a substantial defect renders the premises unsafe or unhealthy, and the landlord fails to remedy it after receiving written notice from the tenant.
IWH breach remedies (after notice + reasonable cure time): (1) terminate and vacate, (2) repair and deduct from rent, (3) withhold rent until repairs made.
A contract for the sale of an interest in land must be in a signed writing to be enforceable, under the Statute of Frauds.
Part performance (takes oral land contract out of SOF): buyer must show at least 2 of 3: (1) paid part of purchase price, (2) took possession, (3) made improvements.
Every land sale contract contains an implied covenant that the seller will deliver marketable title at closing, meaning title reasonably free from doubt and encumbrances.
At closing, the contract merges into the deed. Buyer's rights governed by the deed covenants, not the prior contract. Exception: fraud or express survival clause.
Transfers whatever interest the grantor has, if any. No warranties. Buyer bears all risk of title defects.
First in time, first in right (default). Exceptions: (1) purchase money mortgage has super-priority, (2) recording acts may elevate a later-recorded BFP.
A senior lienholder's foreclosure extinguishes all junior liens and interests, and the purchaser at the sale takes title free of those junior claims.
(1) sale costs, (2) senior foreclosing mortgagee, (3) junior lienholders in priority order, (4) any surplus to the debtor/owner.
A joint tenancy requires four unities: time, title, interest, and possession, plus an express right of survivorship.
A joint tenant's inter vivos conveyance of their interest severs the joint tenancy as to that share, converting it to a tenancy in common.
Lien theory (majority) = mortgage is just a lien, does NOT sever. Title theory = mortgage transfers title, DOES sever.
(1) open and notorious use, (2) adverse/hostile (without permission), (3) continuous, (4) for the statutory period. Like adverse possession but for USE, not ownership.
The scope of a prescriptive easement is limited to the nature and extent of the use that occurred during the prescriptive period.
(1) unnecessary hardship (property cannot earn reasonable return under current zoning), (2) unique hardship to this property (not the whole neighborhood), (3) no alteration of essential character of the area.
Singling out a small parcel for treatment inconsistent with the surrounding area's comprehensive plan. Invalid because it lacks a rational basis in the overall zoning scheme.
Rule Against Perpetuities: No interest is valid unless it must vest, if at all, within 21 years after a life in being at creation. If ANY scenario could violate = void.
Under RAP, a class gift is entirely void if the interest of any possible class member might vest outside the perpetuities period.
Instead of voiding at creation, courts wait to see if the interest actually vests within the perpetuities period. Saves otherwise void interests.
(1) degree of annexation (how attached), (2) adaptation to the realty's use, (3) objective intent of the annexor (permanent or temporary?).
A commercial tenant may remove trade fixtures installed for business purposes before lease expiration, provided removal does not cause substantial damage to the premises.
Protects against losses from title defects, liens, and encumbrances existing at policy date. Does NOT cover defects arising after the policy.
Title policies typically exclude coverage for encumbrances not in the public records but discoverable by physical inspection of the property or by inquiry of persons in possession.
(1) vacates without justification, (2) shows no intent to return, (3) defaults on rent.
Under the majority rule, a landlord whose tenant abandons must make reasonable efforts to re-let the premises, and can recover only the difference between the promised rent and any rent obtained or obtainable.
The scope of an express easement is determined by the grant's language and, if ambiguous, by the intent of the original parties and the purpose of the easement at creation.
Holder's use exceeds what original parties contemplated and unreasonably interferes with servient estate. Remedy: injunction limiting use to original scope.
A forged deed is void ab initio, conveying no interest in land and incapable of being validated by recording.
A bona fide purchaser takes for valuable consideration and without actual, constructive, or inquiry notice of any prior interest.
Recording acts do NOT validate void deeds. A forged deed is void regardless of BFP status. Recording acts only protect BFPs against prior UNRECORDED interests.
Allows the lender to declare the entire loan balance immediately due upon borrower's default (missed payment, breach of condition).
A due-on-sale clause is generally enforceable and allows the lender to accelerate the loan when the mortgaged property is transferred without the lender's consent.
On a mortgagor's default, a court may appoint a receiver to collect rents and preserve the property, particularly when the mortgage agreement expressly provides for such appointment.
A grantee who takes property subject to an existing mortgage assumes no personal liability for the debt, though the property remains security and may be lost in foreclosure.
A grantee who assumes a mortgage becomes personally and primarily liable for the debt, while the original mortgagor becomes a surety secondarily liable.
Once a specifically enforceable land sale contract is signed, buyer holds equitable title and bears risk of loss. Seller holds bare legal title in trust for buyer.
The Uniform Vendor and Purchaser Risk Act keeps risk of loss with the seller until the buyer takes possession or legal title, reversing the equitable conversion common law rule.
When the buyer bears the risk of loss and the seller holds insurance, the majority rule places the proceeds in a constructive trust for the buyer, credited against the purchase price.
A fee simple subject to an executory limitation automatically terminates upon a stated event, and the property then shifts to a third person rather than reverting to the grantor.
A shifting executory interest is a future interest in a third party that cuts short a prior transferee's estate upon occurrence of a specified condition.
A remainder is contingent if it is in an unascertained person or is subject to a condition precedent beyond the natural termination of the preceding estate.
A gift to beneficiaries who must survive the life tenant creates contingent remainders, and any beneficiary who predeceases the life tenant takes nothing.
Donee may appoint to (1) herself, (2) her estate, or (3) her creditors, without restriction. Contrast: special power excludes these.
In most states, creditors of a donee who holds a general power of appointment may reach the appointive assets to satisfy their claims, particularly when the power has been exercised.
A residuary clause that expressly refers to property subject to a power of appointment is sufficient to constitute an exercise of that general power.
Implied warranty of habitability (residential): Landlord warrants premises are fit for human habitation. Non-waivable. Tenant must notify landlord and allow reasonable time to repair.
IWH breach remedies (after notice + reasonable cure time): (1) terminate and vacate, (2) repair and deduct from rent, (3) withhold rent until repairs made.
Fair Housing Act protected classes: (1) race, (2) color, (3) religion, (4) sex, (5) national origin, (6) disability, (7) familial status.
The FHA exempts owner-occupied buildings with four or fewer units from most prohibitions, provided the owner does not use discriminatory advertising or statements.
A right of first refusal is a preemptive right entitling the holder to purchase property on the same terms as any bona fide third-party offer, before the owner may accept it.
When an owner sells without honoring a right of first refusal, the holder may seek specific performance to compel a sale on the same terms, especially if the third-party buyer had notice of the right.
Georgia follows modified comparative negligence. A plaintiff recovers reduced damages only if they are LESS than 50% at fault; a plaintiff who is 50% or more at fault is barred entirely.
In Georgia, the trier of fact apportions damages among all persons who contributed to the injury, including nonparties, and Georgia has largely abolished joint and several liability, so each defendant pays only its assessed percentage.
Georgia follows the impact rule for negligent infliction of emotional distress: a plaintiff may recover for emotional distress only where there was an actual physical impact on the plaintiff, that impact caused physical injury to the plaintiff, and the emotional distress arises from that physical injury. In Lee v. State Farm Mut. Ins. Co., the Georgia Supreme Court recognized a narrow exception allowing a parent who sustains a direct physical impact and injury in the same incident to recover for emotional distress from witnessing the suffering and death of his or her child.
In Georgia, an owner or occupier of land who by express or implied invitation induces others to come onto the premises for a lawful purpose is liable for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. To a licensee, by contrast, the owner or occupier is liable only for willful or wanton injury.
Under Georgia law, consumption of alcohol, not its furnishing, is generally the proximate cause of injury, so a provider is not liable for serving a person of lawful drinking age. A provider may be liable, however, where it willfully, knowingly, and unlawfully serves a person not of lawful drinking age, or knowingly serves a person in a state of noticeable intoxication, knowing in either case that the person will soon be driving, and the serving is the proximate cause of the injury.
In Georgia, wrongful death is measured by the full value of the life of the decedent as shown by the evidence, without deducting for any of the decedent's necessary or personal living expenses. The action is brought by the surviving spouse, or if none, by the child or children, and a surviving spouse's share may not be less than one-third.
Under Georgia law, punitive damages in most tort actions are capped at $250,000.00. The cap does not apply where the defendant acted with the specific intent to cause harm, in product liability cases, or in certain DUI cases. In product liability cases there is no cap, but 75 percent of any punitive award (less a proportionate share of litigation costs) is paid into the state treasury.
In Georgia, the manufacturer of personal property sold as new is liable in tort, irrespective of privity, to any natural person injured because the property was not merchantable and reasonably suited to its intended use and its condition when sold was the proximate cause of the injury. No such action may be commenced more than ten years from the date of the first sale for use or consumption, a statute of repose that also applies to negligence claims against the manufacturer.
Under Georgia law, the state rejects industry-wide liability: irrespective of privity, a manufacturer cannot be held liable for an allegedly defective product based on theories of market share, enterprise, or other industry-wide liability.
A defendant owes a duty of reasonable care to all foreseeable plaintiffs who may be harmed by the defendant's conduct.
A defendant breaches the duty of care by failing to act as a reasonably prudent person would under the same or similar circumstances.
A product has a design defect when foreseeable risks could have been reduced by a reasonable alternative design (RAD) whose omission makes the product unreasonably unsafe.
Every commercial seller or distributor in the chain of distribution is subject to strict liability for physical harm caused by a defective product.
A defendant's conduct is the proximate cause of harm if the harm was a foreseeable result of the defendant's negligence, with no unforeseeable superseding cause breaking the chain.
A bystander is a foreseeable plaintiff when product failure could foreseeably cause harm beyond the immediate user, especially in an environment where bystanders are present.
P's damages reduced by their % of fault but recovery is NEVER completely barred. Even a 99%-at-fault P recovers 1%.
P voluntarily encountered a known risk. In comparative fault jurisdictions, treated as a percentage-reducing factor (not a complete bar). Express assumption (waiver) = complete bar.
Defamation requires (1) a false defamatory statement of fact, (2) of or concerning the plaintiff, (3) published to a third party, and (4) fault causing damages.
Public figure = actual malice (knowledge of falsity or reckless disregard for truth). Private figure = negligence (for matters of public concern).
Written statement imputing (1) criminal conduct, (2) loathsome disease, (3) unfitness for business/profession, (4) serious sexual misconduct.
False light invasion of privacy requires (1) the defendant gave publicity (2) placing the plaintiff in a false light (3) highly offensive to a reasonable person.
For false light claims involving matters of public concern, the plaintiff must prove actual malice -- knowledge of falsity or reckless disregard for the truth.
False light: protects against dignitary harm from false implication or misleading portrayal. Unlike defamation, does not require proving reputational damage.
IIED requires (1) extreme and outrageous conduct, (2) done intentionally or recklessly, (3) causing (4) severe emotional distress to the plaintiff.
Transcends all bounds of decency in civilized society. Elevated by: (1) pattern of harassment, (2) abuse of authority/power, (3) targeting vulnerable person.
No reasonable person could be expected to endure it. Evidence: (1) medical treatment, (2) physical manifestations, (3) inability to function normally.
Defendant acts with intent to cause harmful or offensive contact (or imminent apprehension), and harmful or offensive contact directly or indirectly results.
Defendant acts with intent to cause imminent apprehension of harmful or offensive contact, and apprehension directly or indirectly results. Words alone are insufficient without an overt act.
A person is privileged to use reasonable force to defend against an imminent harmful or offensive contact that they reasonably believe is about to be inflicted.
Self-defense force must be proportional to the threat. Deadly force is justified only to repel deadly force (threat of death or serious bodily harm).
False imprisonment is an intentional act confining or restraining another to a bounded area, where the victim is conscious of the confinement or suffers harm from it.
A shopkeeper may detain a suspect if (1) there is a reasonable belief of theft, (2) the manner of detention is reasonable, and (3) the duration is limited to a reasonable investigation.
A child is held to the standard of a reasonably prudent child of the same age, intelligence, and experience, not an adult standard.
An exception applies when a child engages in an inherently dangerous adult activity, such as operating a motor vehicle, subjecting the child to an adult reasonable person standard.
Violation of a statute establishes negligence per se when the plaintiff belongs to the class the statute protects and the harm is the type the statute was designed to prevent.
Res ipsa loquitur requires that the accident be of a kind that ordinarily does not occur absent negligence.
Res ipsa loquitur requires that the harm-causing instrumentality was within the exclusive control of the defendant at the relevant time.
Res ipsa loquitur creates a permissible inference of negligence, allowing plaintiff to survive a directed verdict without direct proof of breach.
Res ipsa loquitur requires that the accident be of a type that ordinarily does not occur absent someone's negligence.
Modern courts relax the exclusive control requirement, requiring only that the defendant had a right or power of control and that the negligence was probably theirs -- sufficient for landlords with retained inspection rights.
None to undiscovered trespassers. Known/anticipated trespassers: must warn of artificial, highly dangerous conditions that landowner knows about.
Attractive nuisance: landowner liable to trespassing children when (1) dangerous artificial condition known, (2) children likely to trespass, (3) child lacks appreciation of risk, and (4) utility is slight versus risk.
Under the zone of danger rule, a plaintiff may recover for NIED only if they were within the zone of physical risk and suffered physical manifestation of distress.
A bystander outside the zone of danger may recover for NIED if (1) closely related to the victim, (2) present at the scene, and (3) personally and contemporaneously observed the injury-producing event.
Key factor is control. Employer controls employee's manner/method of work. IC controls their own. Only employees trigger respondeat superior.
An employer is liable for torts during a minor deviation from employment (detour), but not during a major deviation for personal reasons (frolic) that abandons the employer's business.
Strict liability (no fault needed) attaches when an activity creates a foreseeable, highly significant risk that cannot be eliminated by reasonable care and is uncommon in the community.
Section 520 factors: (a) high degree of risk. (b) likelihood of great harm. (c) inability to eliminate risk by reasonable care. (d) not a matter of common usage. (e) inappropriate to the location. (f) value outweighed by dangerous attributes.
A commercial seller who sells a product in a defective condition unreasonably dangerous to the user is strictly liable for physical harm caused by that defect, regardless of fault.
The product departs from its intended design. Strict liability applies even if the manufacturer used all possible care in production.
Must be sufficient in (1) content, (2) prominence, and (3) clarity. A buried or illegible warning is itself a defect (failure to warn).
P's own negligence reduces but does not bar recovery. P's fault is weighed against the product defect in most jurisdictions.
A plaintiff's conduct is only a legally relevant defense if that conduct is an actual and proximate cause of the specific harm suffered.
Private nuisance is a substantial and unreasonable interference with another person's use and enjoyment of their land.
Interference is unreasonable when gravity of harm outweighs utility of D's conduct. Factors: (1) severity/duration of harm, (2) economic value, (3) public benefit, (4) practicality of avoiding.
Coming to the nuisance is a relevant factor in the balancing test but is not an absolute defense and does not bar recovery outright.
(1) false information, (2) supplied in a business/professional capacity, (3) failure to exercise reasonable care, (4) justifiable reliance, (5) pecuniary loss.
(1) false statement of material fact, (2) scienter (knowledge of falsity or reckless disregard), (3) intent to induce reliance, (4) justifiable reliance, (5) damages.
Tortious interference with contract requires (1) valid contract, (2) defendant's knowledge, (3) intentional inducement of breach, (4) actual breach, and (5) resulting damages.
Interference with prospective economic advantage requires (1) a business expectancy, (2) defendant's knowledge, (3) intentional interference by improper means or motive, (4) disruption of the relationship, and (5) damages.
Independently tortious or wrongful conduct (defamation, fraud, threats, criminal acts). Legitimate competition is not improper.
When multiple tortfeasors cause one indivisible injury, each is liable for the full amount. Plaintiff may collect from any one defendant.
A tortfeasor who pays more than their share may recover the excess from co-defendants for their respective shares.
Each tortfeasor liable only for their proportionate share of fault. Plaintiff bears the uncollectable share (can't get 100% from one D).
Express assumption of risk occurs when a plaintiff explicitly releases a defendant from liability through a written waiver or exculpatory clause, barring recovery for covered risks.
Exculpatory clauses are unenforceable when: (1) gross negligence or recklessness, (2) significant bargaining-power disparity, or (3) the defendant provides an essential public service.
Product is defective when foreseeable risks of harm could have been reduced by a reasonable alternative design (RAD), and omitting the RAD renders the product not reasonably safe.
Manufacturer liable for enhanced injuries caused by a design defect that worsens harm in a foreseeable collision, even if the defect did not cause the initial accident.
Meeting safety regulations is relevant evidence but NOT conclusive. Does not bar a strict liability or negligence claim.
Generally, an actor who did not create a risk has no duty to assist another in peril; there is no affirmative duty to rescue a stranger.
Special relationship creates a duty to act. Recognized relationships: common carrier-passenger, innkeeper-guest, employer-employee, school-student, business-invitee.
Someone who begins to render aid owes a duty of reasonable care. Liability arises if stopping makes the person worse off than if no help had been offered.
Liability when someone provides a dangerous instrumentality to a person they know (or should know) is likely to use it unsafely.
Employer is directly liable when it negligently hired, trained, supervised, or retained an employee it knew (or should have known) was unfit or dangerous.
Beneficiaries recover for their own losses from the death: (1) loss of financial support, (2) loss of companionship/services, (3) funeral expenses.
The decedent's own claim survives death. Estate recovers pre-death damages: (1) medical expenses, (2) pain and suffering, (3) lost earnings before death.
Under Georgia law, a valid will must be in writing, signed by the testator (or by another in the testator's presence and at the testator's express direction), and attested and subscribed in the testator's presence by two or more competent witnesses.
In Georgia, any individual 14 years of age or older may make a will, provided the testator has testamentary capacity and is not laboring under a legal disability from a want of capacity or want of perfect liberty of action.
Georgia does not recognize holographic (unwitnessed handwritten) wills or nuncupative (oral) wills; a handwritten will is valid only if executed with the full statutory formalities, including two competent witnesses.
A Georgia will may be revoked by a subsequent will or written instrument or by an act of destruction or obliteration done by the testator with intent to revoke; under Georgia law, intent to revoke is presumed from the obliteration or cancellation of a material portion of the will, rebuttable by a preponderance of the evidence.
Under Georgia law, the surviving spouse and minor children are entitled to year's support: property set apart for their support and maintenance for 12 months, preferred before all other debts and demands; this award can consume the entire estate. A petition must be filed within 24 months of the date of death.
Georgia has NO elective (forced) share for a surviving spouse; a testator may disinherit a spouse and leave property even to strangers. The spouse's primary protection against disinheritance is year's support, not an elective share.
In Georgia, if a decedent dies intestate survived by a spouse but no descendants, the spouse takes the entire estate; if survived by both a spouse and descendants, the spouse shares equally with the children but the spouse's share shall never be less than a one-third share.
Georgia distributes an intestate share per stirpes: the descendants of a deceased child take, by representation, the share that child would have taken if living.
A Georgia will may be probated in common form or solemn form. Common form requires no notice to heirs and is not immediately conclusive, becoming conclusive on interested parties four years after the order; solemn form requires notice to heirs and is conclusive on those served.
An interested party may file a caveat contesting a will on grounds such as lack of testamentary capacity, undue influence, fraud, duress, mistake, or improper execution; undue influence requires influence that destroys the testator's free agency and substitutes the will of another for the testator's own.
Under Georgia law, an express trust must be in writing signed by the settlor and have, ascertainable with reasonable certainty: (1) the settlor's intention to create the trust, (2) trust property, (3) a reasonably ascertainable beneficiary (except charitable or animal-care trusts), (4) a trustee, and (5) trustee duties.
In Georgia, a trustee shall administer the trust solely in the interests of the beneficiaries, avoiding conflicts of interest and self-dealing; the duty of loyalty is breached by placing oneself in a position of conflict regardless of good faith.
In Georgia, a trustee must exercise the judgment and care of a prudent person acting in a like capacity and familiar with such matters, and must comply with the prudent investor rule when investing and managing trust assets.
In Georgia, a settlor has no power to modify or revoke a trust absent an express reservation of that power; any permitted revocation or modification must be in writing and signed by the settlor.
Under Georgia law, if a beneficiary is dead when the will is executed or otherwise dies before the testator but has descendants living at the testator's death, an absolute testamentary gift (without remainder or limitation) shall not lapse but shall vest in the descendants of the beneficiary, in the same proportions as if inherited directly from the deceased beneficiary under Georgia intestacy law; this also applies to a class gift absent a clear contrary intent.
In Georgia, when a gift lapses or is void and the anti-lapse rule does not save it, a lapsed or void testamentary gift of realty or personalty becomes part of the residuum; a lapsed or void gift of the residuum itself passes to the other residuary beneficiaries in proportion to their original shares, and if there are no other residuary beneficiaries it passes by intestacy.
In Georgia, a specific testamentary gift is adeemed or destroyed, wholly or in part, when the testator for any reason does not own the subject of the gift at death; the beneficiary takes nothing in its place unless an exception (such as a gift that includes the proceeds of sale) applies.
In Georgia, debts and expenses are paid first from the residuum; if the residuum is insufficient, general testamentary gifts abate pro rata, then demonstrative gifts, and specific gifts abate last, so the order of abatement is residuary, then general, then demonstrative, then specific (the will may direct otherwise).
In Georgia, the testator's marriage, or the birth or adoption of a child (including a posthumous child born within ten months of death), after a will that makes no provision in contemplation of that event revokes the will only to the extent that the new spouse or child receives the intestate share he or she would have taken, paid from the net residuum; a provision for a class of the testator's children is presumed to contemplate afterborn or after-adopted members of that class.
In Georgia, an individual who feloniously and intentionally kills, conspires to kill, or procures the killing of the decedent forfeits any interest from the decedent's estate by intestacy, year's support, will, deed, or power of appointment and is treated as having predeceased the decedent; the killing is felonious and intentional if it would constitute murder, felony murder, or voluntary manslaughter.
In Georgia, when title to or devolution of property depends on priority of death and there is no sufficient evidence that the individuals died other than simultaneously, the property of each is disposed of as if that individual had survived; Georgia uses this 'no sufficient evidence' standard and has no fixed 120-hour survivorship requirement.
In Georgia, if an intestate decedent leaves no spouse and no descendants, the estate passes to relatives in the nearest degree in which there is a survivor: parents share equally in the second degree; if no parent survives, siblings share equally in the third degree, with descendants of a deceased sibling taking per stirpes; then grandparents, then aunts and uncles.
In Georgia, the heirs of an intestate may unanimously select an administrator; absent unanimous selection, the probate court appoints in the order that best serves the estate, with the order of preference being (1) the surviving spouse, (2) other heirs or the person selected by a majority in interest of them, (3) any other eligible person, (4) any creditor, and (5) the county administrator.
In Georgia, an in terrorem (no-contest) clause is void unless the will directs the disposition of the property if the condition is violated; if it does, the direction is enforced. Georgia has NO judicial good-faith or probable-cause exception, so a beneficiary who unsuccessfully contests forfeits; the only statutory carve-outs are actions to interpret or enforce the will, actions for an accounting or removal of a personal representative, and entering a settlement agreement.
In Georgia, a spendthrift provision is valid only if it prohibits both voluntary and involuntary transfers; while valid, a creditor or assignee of the beneficiary cannot reach the interest or a distribution before the beneficiary receives it. A spendthrift restraint is invalid as to the beneficiary's own contributions (a self-settled trust), and certain claims such as alimony, child support, and taxes may still reach distributions.
In Georgia, during the settlor's lifetime a court shall approve modification or termination of an irrevocable trust, even if inconsistent with a material purpose, if the settlor and all the beneficiaries consent and the trustee has notice; after the settlor's death, the court may modify or terminate only if all the beneficiaries consent and the change is not inconsistent with (or continuance is not necessary to achieve) a material purpose of the trust.
In Georgia, a charitable trust is one in which the settlor provides that the trust property be used exclusively for charitable purposes, which include the relief of poverty, the advancement of education, religion, health, science, the arts, and the environment, and other purposes for the relief of human suffering; a charitable trust may have indefinite beneficiaries and is not subject to the rule against perpetuities.
In Georgia, when a particular charitable purpose becomes unlawful, impossible, or impracticable to carry out, the court may apply cy pres to modify or direct the trust property to a purpose as near as possible to the settlor's intent, provided the settlor had a general charitable intent; if instead the settlor showed a specific intent limited to the failed purpose, cy pres does not apply and the property passes by resulting trust to the settlor or the settlor's heirs.
Under the UCC, Article 2 applies to transactions in goods; goods are movable things. For a hybrid contract mixing goods and services, Georgia applies the predominant purpose test: Article 2 governs the whole transaction only if the sale-of-goods aspect predominates, otherwise common law governs.
Under the UCC, a merchant's signed written offer to buy or sell goods that gives assurance it will be held open is irrevocable for lack of consideration during the time stated, or a reasonable time if none is stated, but in no event longer than three months.
Under the UCC, a definite expression of acceptance forms a contract even if it states additional or different terms, unless acceptance is expressly made conditional on assent to those terms. Between merchants, additional terms become part of the contract unless they materially alter it, the offer limits acceptance to its terms, or the offeror objects within a reasonable time.
Under the UCC, a contract for the sale of goods for $500 or more is unenforceable unless there is a writing signed by the party to be charged, enforceable only up to the quantity stated. Between merchants, a written confirmation sufficient against the sender satisfies the writing requirement against the recipient unless the recipient objects in writing within ten days of receipt.
Under the UCC, a merchant who deals in goods of that kind impliedly warrants that the goods are merchantable, i.e., fit for their ordinary purpose. Any seller who has reason to know the buyer's particular purpose and reliance on the seller's skill impliedly warrants the goods are fit for that particular purpose.
Under the UCC, to disclaim the implied warranty of merchantability the language must mention 'merchantability' and, if written, be conspicuous; a fitness disclaimer must be in writing and conspicuous. All implied warranties are also disclaimed by expressions like 'as is' or 'with all faults.'
Under the UCC perfect tender rule, if the goods or tender fail in any respect to conform to the contract, the buyer may reject the whole, accept the whole, or accept any units and reject the rest. The seller may cure if the time for performance has not expired, or have a further reasonable time to cure if the seller had reasonable grounds to believe the nonconforming tender would be acceptable.
Under the UCC, in a shipment contract (e.g., FOB seller's city) risk of loss passes to the buyer when the goods are duly delivered to the carrier; in a destination contract (e.g., FOB buyer's city) risk passes only when the goods are tendered to the buyer at the destination. Absent a carrier, risk passes on the buyer's receipt of the goods if the seller is a merchant, otherwise on tender of delivery.
Under the UCC, on the seller's breach or nondelivery, the buyer may 'cover' by buying substitute goods in good faith and recover the difference between the cover price and the contract price. Alternatively, the buyer may recover the difference between the market price when the buyer learned of the breach and the contract price, plus incidental and consequential damages in either case.
Under the UCC, a negotiable instrument is a writing signed by the maker or drawer containing an unconditional promise or order to pay a fixed amount of money, payable to order or to bearer, payable on demand or at a definite time, and stating no other undertaking beyond the payment of money.
Under the UCC, a holder in due course is a holder who takes the instrument for value, in good faith, and without notice that it is overdue, dishonored, altered, bears an unauthorized signature, or is subject to any claim or defense, and who takes it without apparent evidence of forgery or alteration. An HDC takes free of all personal defenses and mere claims.
Under the UCC, a holder in due course takes subject only to real (universal) defenses: infancy, duress, lack of legal capacity, illegality nullifying the obligation, fraud in the factum (signing without knowledge or reasonable opportunity to learn the instrument's character or essential terms), discharge in insolvency, forgery, and material alteration. Personal defenses such as fraud in the inducement, breach of contract, or failure of consideration are cut off against an HDC.
Under the UCC, the maker of a note is primarily liable and must pay it according to its terms. A drawer of a draft is liable to pay if it is dishonored. An indorser is secondarily liable to pay a dishonored instrument, but is discharged if required notice of dishonor is not given, and a 'without recourse' indorsement disclaims this liability.
Under the UCC, a buyer accepts goods by signifying they conform or will be taken despite nonconformity after a reasonable opportunity to inspect, by failing to make an effective rejection, or by any act inconsistent with the seller's ownership; once accepted, the buyer must pay at the contract rate. An order to buy goods for prompt shipment is accepted either by a prompt promise to ship or by prompt shipment; shipping nonconforming goods is both an acceptance and a breach, unless the seller seasonably notifies the buyer that the shipment is offered only as an accommodation, in which case the shipment is a counteroffer the buyer may accept or reject.
Under the UCC, an agreement modifying a contract for the sale of goods needs no consideration to be binding, but the modification must be sought and made in good faith. If the contract as modified is within the statute of frauds, the modification must satisfy it, and a signed no-oral-modification clause is enforceable, though an attempted modification that fails those requirements can still operate as a waiver.
Under the UCC, a term measuring quantity by the seller's output or the buyer's requirements means the actual output or requirements occurring in good faith, and no quantity unreasonably disproportionate to a stated estimate or prior comparable output may be tendered or demanded. Where the parties leave terms open, the UCC supplies gap fillers: if the price is left open, the price is a reasonable price at the time of delivery.
Under the UCC, an express warranty is created by any affirmation of fact or promise, description of the goods, or sample or model made part of the basis of the bargain; mere opinion or puffing does not create one. Every seller warrants good title and that the goods are delivered free of any security interest or encumbrance of which the buyer has no knowledge; this warranty of title is disclaimed only by specific language or circumstances.
Under the UCC, parties may limit or alter remedies, including limiting the buyer to repair, replacement, or return of the price, and an agreed exclusive remedy is the sole remedy. But where an exclusive or limited remedy fails of its essential purpose, the buyer may pursue any UCC remedy. Consequential damages may be limited or excluded unless unconscionable; limiting consequential damages for personal injury from consumer goods is prima facie unconscionable, while a commercial loss limitation is not.
Under the UCC, a buyer may revoke acceptance of goods whose nonconformity substantially impairs their value to him if he accepted on the reasonable assumption the nonconformity would be cured and it was not seasonably cured, or accepted without discovery of the nonconformity because discovery was difficult or because of the seller's assurances. Revocation must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in the goods not caused by their own defects.
Under the UCC, on the buyer's breach, the seller may resell the goods in good faith and in a commercially reasonable manner and recover the difference between the resale price and the contract price plus incidental damages, less expenses saved. Alternatively, the seller may recover the difference between the market price and the contract price, and a lost-volume seller may instead recover lost profit. The seller may sue for the full price only for goods accepted, lost or damaged after risk passed, or goods the seller cannot reasonably resell.
Under the UCC, an action for breach of a sales contract must be commenced within four years after the cause of action accrues; a breach of warranty accrues on tender of delivery regardless of the buyer's knowledge, and parties may shorten the period to not less than one year but may not extend it. Separately, entrusting goods to a merchant who deals in goods of that kind gives the merchant power to transfer all the entruster's rights to a buyer in the ordinary course of business.
Under the UCC, transfer of an instrument vests in the transferee whatever rights the transferor had, including the rights of a holder in due course (the shelter rule), so a transferee can acquire HDC rights even without itself qualifying, unless the transferee engaged in fraud or illegality affecting the instrument. A special indorsement names the person to whom it is payable and requires that person's indorsement to negotiate further, while a blank indorsement makes the instrument bearer paper negotiable by transfer of possession alone.
Under the UCC, if an imposter induces the issuer to issue an instrument by impersonating the payee, or if the person whose intent determines the payee does not intend the named payee to have any interest (the fictitious payee rule), an indorsement in the payee's name is effective in favor of a person who in good faith pays or takes the instrument. An employer who entrusts an employee with responsibility over instruments bears the loss from the employee's fraudulent indorsement. The loss may be shifted to the extent a payor's failure to exercise ordinary care contributed to it.
Under the UCC, a person whose failure to exercise ordinary care substantially contributes to a forged signature or alteration is precluded from asserting the forgery or alteration against a person who in good faith pays or takes the instrument for value, though comparative fault applies if that person also failed to exercise ordinary care. An instrument is converted when a bank or other party pays or takes it on a forged indorsement, because a forged indorsement is wholly inoperative and the payee remains the person entitled to enforce it.
Under the UCC, an item is properly payable from a customer's account only if it is authorized by the customer and in accordance with the bank-customer agreement, so a check bearing a forged indorsement is not properly payable. In Georgia, a bank that in good faith pays an altered or completed item may charge the account according to the original or completed terms unless it had notice the completion was improper. A payor bank wrongfully dishonors an item that is properly payable and is liable to its customer for actual damages proximately caused, which may include consequential damages such as arrest or prosecution.
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