Shotgun Pleadings - Frivolous Litigation. The Eleventh Circuit strongly encouraged district courts to require those who file "shotgun" pleadings, containing multiple counts making vague allegations, to order sua sponte a repleader (like a motion for a more definite statement) of the offending pleading. Byrne v. Nezhat, Case No. 99-12623, decided August 14, 2001.
Discovery - Sanctions. A court may impose the ultimate sanctions of dismissal or default when a party fails to produce requested documents on which its position is based, even though the party has complied in other respects with discovery. Deep South Constr., Inc. v. Slack, 248 Ga. App. 183 (2001). Where a party elects to produce documents in lieu of answering an interrogatory, the opposing party must be able to ascertain an answer from them; producing voluminous records from which the answer cannot reasonbly be derived justifies sanctions. Riches to Rags, Inc. v. McAlexander & Assoc., Inc., 249 Ga. App. 649 (2001).
Summary Judgment - Appeals. On appeal from the grant of summary judgment, the non-moving party may raise all arguments without regard to whether they were raised below. American Central Insurance Co. v. Lee, 273 Ga. 880 (2001).
Voir Dire - Juror Rehabilitation. Trial judges are no longer to use the "rehabilitation questions" to qualify a juror who has already expressed a sympathy for one party and a desire that such party prevail. A court should err on the side of removing jurors. Walls v. Kim, 250 Ga. App. 259 (2001). Parties may not rely on the truthfulness of information on the Clerk's juror data sheets; false answers there do not justify relief. Hardwick v. State, 250 Ga. App. 390 (2001).
Jury Instructions - Objections. A trial judge's use of voice tone, inflection, and pauses in jury instructions may be reviewed for error by including in the record on appeal a tape of the jury instruction. Hines v. State, 248 Ga. App. 752 (2001). To preserve an error in the trial court's refusal to give a requested charge, is it sufficient to object and refer to the charge number? Six judges said so in Golden Peanut Co. v. Bass, 249 Ga. App. 224 (2) (2001). Five other judges would require that grounds for giving the charge be stated at some point, preferably after the charge is given to the jury.
Evidence. An anonymous threat made to deter a witness from testifying is admissible against an incarcerated defendant who had previously threatened the witness. McCoy v. State, 273 Ga. 568 (2001).
Evidence - Prior Inconsistent Statements. Can a witness, who claims not to remember certain facts, be impeached by a prior "inconsistent" statement on the subject? See Spann v. State, 248 Ga. App. 419 (2001) (In the opinion of the editor, the case simply notes two opposing lines of cases without satisfactorily distinguishing them).
Evidence - Hearsay. An officer's testimony that a witness made an identification (verbal or by conduct) in a lineup is hearsay and may not be admitted absent a valid hearsay exception, unless the person who made the identification is subject to cross-examination at trial. White v. State, 273 Ga. 787 (2001) (overruling earlier cases).
Demonstrative Evidence. An officer's drawing showing one party's contested explanation of the accident is admissible, against hearsay and opinion objections, even though it contains the officer's name and position. Beckett v. Monroe, 249 Ga. App. 615 (2001).
Eyewitness Identification Expert. It is an abuse of discretion to refuse to admit expert testimony that cross-racial identifications are empirically less reliable than intra-racial identifications. Brodes v. State, 250 Ga. App. 323 (2001).
Circumstantial Evidence. Direct evidence that an event did not occur is not contradicted, for purposes of summary judgment, by evidence that it was standard procedure for the event to occur. Cannon v. Jeffries, 250 Ga. App. 375 (2001).
Dram Shop. A substantially contemporaneous blood sample showing 18% blood alcohol content is sufficient circumstantial evidence to support a finding that the person would have such manifestations of drunkenness that the alcohol provider could be liable under O.C.G.A. § 51-1-40. Hulsey v. Northside Equities, Inc., 249 Ga. App. 474 (2001).
Professional Negligence Affidavit - Federal Court. O.C.G.A. § 9-11-9.1 is a procedural rule that conflicts with Fed.R.Civ.P. 8(a) and is not binding in federal court. Bell v. Wal-Mart Stores, Inc., 1:98-CV-185-2(WLS), decided August 21, 2001.
Collateral Sources. A write-off of medical bills is a collateral source benefit and is not admissible to reduce a tort verdict. A discharge of the bills in bankruptcy, however, will reduce a tort verdict, but the discharge is not admissible in the tort case. Olariu v. Marrero, 248 Ga. App. 824 (2001).
RICO - Merger Clause. Overruling a case reported earlier, the Supreme Court held that a merger clause in a contract precludes a civil RICO claim based on theft by taking involving the defendant's pre-contractual assertions. First Data Pos, Inc. v. Willis, 273 Ga. 792 (2001).
Federal Tort Claims Act - Renewal. Georgia's renewal statute does not extend the statute of limitation in 28 U.S.C. § 2401(b) for Federal Tort Claims Act cases. Phillips v. United States, 11th Cir., Case No. 01-10730, decided August 10, 2001.
Conversion - Auctions. Auctioneers must search the records for security interests on the personalty they sell; otherwise they may be liable for conversion. Deere & Co. v. Miller-Godley Auction Co., 249 Ga. App. 797 (2001).
Sales - Tax. Absent agreement to the contrary, an offer to sell an item at a certain price implicitly includes all applicable taxes in the price. Ready Trucking, Inc. v. BP Exploration & Oil Co., 248 Ga. App. 701 (2001).
Contracts - Parol Evidence. Statements on a fax cover sheet are to be considered in determining whether a party's signature on a faxed contract was unconditional, even though the contract itself is unambiguous. Harris v. Distinctive Builders, Inc., 249 Ga. App. 686 (2001).
Restrictive Covenants. Overruling cases, the Court of Appeals reaffirmed that one overbroad noncompete or nonsolicit covenant in a strictly scrutinized contract invalidates all such covenants. Advance Technology Consultants, Inc. v. Roadtrac, LLC, 250 Ga. App. 317 (2001).
Child Custody - Non-Parents. Custody may be awarded to a non-parent only upon a showing that parental custody would harm the child and that awarding custody to the non-parent would best promote the child's health, welfare, and happiness. Clark v. Wade, 273 Ga. 587 (2001).
Divorce. A clause providing for payment of tuition at a "state-supported university" is not limited to universities in Georgia. Hall v. Day, 273 Ga. 838 (2001).
Criminal - Traffic Stops. During a stop for a traffic violation, an officer may not continue questioning the driver on matters unrelated to the stop without reasonable suspicion of other criminal activity. Bell v. State, 248 Ga. App. 254 (2001); State v. Sims, 248 Ga. App. 277 (2001); State v. Gibbons, 248 Ga. App. 859 (2001). Contrast Henderson v. State, 250 Ga. App. 278 (2001) (unrelated questioning not prolonged).
Obstruction of Officer. Informing third parties of the presence of undercover police in a house constitutes obstruction of officers. Evans v. State, 250 Ga. App. 70 (2001).
Criminal - Instructions. A court may not instruct that a chemical analysis is considered valid if conducted according to official methods, but may charge that analysis equipment approved by the state is considered accurate if properly operated. Muir v. State, 248 Ga. App. 49 (2001). It is error to charge that the use of a deadly weapon authorizes an inference of intent to kill. Harris v. State, 273 Ga. 608 (2001).