Interspousal relationships and the legalities | Paulding county divorce attorney

In order to bring a claim for wrongful death of spouse in a civil action or for statutory benefits provided under Worker’s Compensation Law, the validity of a marriage will directly affect the standing of the party claimant. In general, parents are not liable in damages for the torts of their minor children based on the parent-child relationship; rather, such liability must be based on the doctrine of principal agent or master servant. A loss of parental power forfeits the parent’s right to share in a claim for the wrongful death of his or her child. Under wrongful death action children of the decedent who were born after decedent’s death are considered children in being at the decendent’s death provided 1) were conceived before decedent’s death 2) they were born within 10 months of the decedent’s death 3) they survived 120 hours or more after birth. The doctrine of interspousal immunity exists to preserve the sanctity of marriage and to prevent the possibility of collusive lawsuits. Generally, one spouse cannot maintain an action for tort against the other spouse, even though the tort was committed prior to the marriage, and this is true even after the divorce, separation or pending divorce of the parties. However, this doctrine may be abrogated where there is no marital harmony or unity to preserve and there is no possibility of collusion. This doctrine does not violate the due process or equal protection clauses. Where a married couple appeared pro se in a civil action against a third party, it was proper to forbid the husband who is not an attorney to act as attorney for his wife and this did not violate the sanctity of their marriage. A cause of action for fraud based upon misrepresentations about marital status is recognized in Georgia. Fraud will lie where 1) a person misrepresents his or her marital status 2) such person promises to marry the other party, and 3) the other party reasonably relies to his or her detriment. But where there is no misrepresentation of marital status, an action for fraud would not lie. On a related issue, where a minister is in a confidential relationship with his parishioner, justiciable issues would lie on a civil action for sexual seduction of the parishioner, and a loss of consortium claim of the husband. Brewer v. Paulk, 296 Ga. App. 26 (2009). Breach of promise to marry is a common law contract action. Requirements for  a claim include 1) an actual promise to marry 2) an acceptance of that promise 3) a breach of the accepted promise. A defense to an action for breach of promise to marry is that the parties were in a meretricious relationship i.e., unmarried and living together in a sexual relationship; but this defense is inapplicable where the object of the contract is not illegal nor against public policy, and the illegality or immorality is only collateral to the contract. Accordingly, since marriage is favored by Georgia public policy, the fact that the parties were living together both before and after the marriage proposal was only collateral to the promise to marry, and the meretricious relationship defense is inapplicable and the promise to marry unenforceable.Contact a Paulding County divorce lawyer today.

Legitimation cases | Paulding County family law lawyer

If a purported marriage is invalid and there are no children born or to be born, the general rule is that there can be no action for divorce or alimony by either party. Likewise, where there is a void marriage, Georgia law does not require the payment of alimony unless related to the protection of the children of the marriage. Wright v. Hall 292 Ga. 457 2013. This is true even though the purported marriage is of long duration and is initiated in good faith and even if the parties have no knowledge of the impediment. In fact, if a final decree of divorce has been entered with respect to an invalid marriage, the decree may be set aside as void. Any property settlement contract with consideration founded on the invalid marriage may be set aside by the party not having knowledge of the invalidity. Where a divorce decree provides for periodic alimony until the remarriage of a spouse, that spouses later ceremonial marriage will stop the alimony payments from the first spouse, even though the second marriage is void because the second spouse has a living spouse. The rationale for this result is that the attempted ceremonial marriage could ripen into a valid marriage upon removal of the impediment. A will which is not made in contemplation of marriage or the birth or adoption of a child is automatically revoked upon the happening of such event. However, if the marriage not contemplated is invalid, the will is not automatically revoked. However, the birth of a child as the issue of a purported but invalid marriage could, under the reasoning of the Wallace case, validate the marriage and thereby revoke the will. Obviously, the validity of a marriage will determine the rights of inheritance by a party claiming to be an heir at law as a surviving spouse, the right to year’s support as a surviving spouse, or the right of an alleged spouse to serve as administrator. Here again, the children of an invalid marriage would be legitimate for purposes of inheritance and right to year’s support. A child born out of wedlock may inherit from or through the child’s father, the other children of the father, or any paternal kin by reason of the paternal kinship if 1) by Court order the child is declared legitimate 2) paternity has been established by court order 3) a sworn statement by the father attests to the parent-child relationship 4) the child’s birth certificate has been signed by the father or 5) the presumption of paternity has been established by genetic testing and not rebutted by clear and convincing evidence. Contact a Paulding county family law lawyer to handle your divorce or legitimization case.

Preservation of jury charge errors | Paulding County criminal defense lawyer|

The preservation of jury charge errors in Georgia is dramatically different in criminal cases. First OCGA 5-5-24(a) requirement of exception is expressly inapplicable in the criminal context:

Except as otherwise provided in this code section, and all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returned its verdict, stating distinctly the matter to which he objects and the grounds for his objection. Opportunity shall be given to make the objection out of the hearing of the jury. Objection he not be made with the particularity formally required of assignments of error and need only be as reasonably definite as the circumstances will permit. This subsection shall not apply in criminal cases. In general, "defendants in a criminal case are not required to except to the jury charge to preserve error for appeal." The general rule in the state is that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. The right to raise an erroneous charge on appeal may be lost only in certain well-defined instances, as were defendants tactical trial plan justifies a finding of procedural default, state v stonacher, 236 Georgia 1 (1976). In these situations error in the charge was induced by the actions of defense counsel or defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charges given. Generally speaking, it is reversible error to misstate the law that must be applied by the jury. In the Georgia system, when an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and the court will so hold unless it appears from the entire record that the error is harmless. Of course not all misstatements in the charge warrant reversal. Some mistakes do not alter the fundamental meaning of the charge. Assuming some verbal inaccuracy had existed in a contested charge, a new trial is not required when the inaccuracies in the charge do not mislead or obscure meaning. This is one application of the principle that a charge error is not reversible where it appears from the entire record that the error is harmless. Another example of a harmless charge error might be where the jury's findings on an issue that is not affected by the charge error render the charge error moot. This can occur where the charge error relates to the calculation of damages, but the jury found no liability. Where it is apparent that this charge was not applied any error that may have been committed was harmless. Generally speaking, the omission of the requested and applicable charge is reversible error in the Georgia appellate system. It is the duty of the court to charge the jury on the law as to every controlling, material, substantial and vital issue in the case. When the court fails to give the benefit of a theory of the defense which is sustained by the evidence, a new trial must be granted. What constitutes an omitted charge for the purpose of this rule? In order for a refusal to charge to be error, the request must be entirely correct and accurate, adjusted to the pleadings, law, and evidence and not otherwise covered in the general charge. Generally speaking, the omission of the requested and applicable charge is reversible error in the Georgia appellate system: it is the duty of the court to charge the jury on the law as to every controlling, material, substantial and vital issue in the case. Where the court fails to give the benefit of a theory of the defense which is sustained by the evidence, a new trial must be granted. The charges read as a whole and there is no error so long as all requested and relevant principles of law are communicated to the jury. Thus the appellant must show that the legal principle underlying the requested charge was not sufficiently or substantially covered by another charge. As a related principle, it is not error to refuse to use any particular language in the charge so long as the instructions given are correct and adequate. There is no requirement that a court instructs in the exact language of the request, even though the request may be correct as an abstract principle of law which is directly applicable to a material issue. Contact a Paulding County criminal defense lawyer today to handle your case.

The need to request a curative instruction | Paulding County criminal defense lawyer

When the court, in a colloquy with counsel makes remarks which are prejudicial or indicate an opinion upon the merits of the case, proper objection, or a motion for mistrial should be made at the time of the occurrence court; in the absence of timely objection or motion for mistrial the allegedly offensive matter cannot be urged for the first time as a ground in error proceedings. A party will not be permitted to allow the remarks to pass unchallenged until after the case is been submitted to the jury a verdict adverse to him returned, and then seek to avail himself of them in a reviewing court. It is well settled that statement by the court not made during the charge to the jury must be the subject of a timely exception in order to be reviewable, as the complaining party cannot remain silent and take his chances on a verdict in his favor without waiving his right to complain in the event the verdict is adverse. Where the court in a colloquy with counsel makes remarks which are prejudicial or intimate in opinion upon the merits of the case, proper objection, or motion for mistrial should be made at the time of the occurrence. In the absence of such objection, error cannot be assigned thereon for the first time in a motion for new trial. A motion for new trial cannot be based on judicial comments where no objection or motion for mistrial appears to have been made at the time the remark was allegedly made. A party claiming he has been prejudiced by trial judges expression of opinion during the course of the trial concerning what has been proved or the weight of the evidence, cannot raise this ground for the first time in a motion for new trial, but must make a motion for mistrial and give the trial judge an opportunity to correct any possible prejudicial effect of his remarks by appropriate instructions to the jury or other action. A contemporaneous objection or motion for mistrial is required to preserve error arising out of a judicial comment. One Court of Appeals opinion Speagle V. nationwide mutual fire insurance company 138 Georgia appeals 384 (1976) has held that unlike most other circumstances, error arising out of an improper judicial comment is preserved as the basis for seeking a new trial on appeal even where no mistrial or other curative action was requested. In other words, an objection alone is sufficient. The,court noted that in most other circumstances involving improper and prejudicial comments or arguments, a mere objection was not an objection to the action of the court as required for preservation under OCGA 9-11-46 but rather was an objection to an action of the witness or opposing counsel. It was not until the court declined to take some requested curative action that an action of the court occurred. Until that point there was no error of the trial court to which a mere objection could attach. Conversely, where the objection is to a comment by the court, that comment itself is the action of the court described in OCGA 9-11-46, and an objection alone is sufficient. The problem with the Spiegel court, is that if the error could be remedied by contemporaneous curative instruction, it seems unreasonable and wasteful of both parties and judicial resources to allow a party not to request such instruction, and then to later insist on a new trial because the unrequested curative instruction was not given. Where curative instruction would have sufficed, it is generally disfavored to grant a new trial where the objecting party did not at least request a curative instruction. Contact a Paulding County criminal defense lawyer today for help with your case in Paulding County.

Hire a Paulding County criminal defense lawyer today to help you with your case | Paulding county criminal defense lawyer

Any comment from the judge in the presence of the jury about what the evidence shows, the strength of the parties case or the credibility of a witness) (whether a negative or positive assessment of credibility) should be evaluated quickly for potential violation of the prohibition on judicial comments. This includes comments during the trial or during the charge. See Raol v.Newman 59 Georgia 408(1877) (judicial statement during the charge that certain facts are undisputed was reversible error requiring a new trial). See Alan V State 194 Georgia 178, (1942) stating the judge did not cure his error when he in his charge to the jury, told them that the statements he had made did not indicate that he had any opinion about the facts of the case, that he had no such opinion, and admonished the jury not to be influenced by any of the statements which he had made.) For example in Musket v. Sketchley Cleaners Inc., 297 Ga. App. 561 (2009),the Court of Appeals first found the comments did not violate OCGA 9-10-7, then held that "this is particularly true where, as here, the trial court charge to the jury after the close of evidence that anything the court had said or done during the course of the trial is not intended to imply or suggest which of the parties should prevail in the case." See Cline v. Lee 260 Georgia appeals 164 (2003), although the judge may have told the jury that they had properly listed all the elements of fraud, there is no evidence that the judge expressed an opinion as to whether those elements had been proved. Further, there is no contention that either the charge or the recharge misstated the law, and the trial court made clear that the recharge is not intended to place added emphasis on the fraud claim. Moreover, it is uncontroverted that in the original charge the trial court instructed the jury that nothing he did or said was intended to suggest in any way what the verdict should be. The purpose for this statute is to prevent the jury from being influenced, not to keep the judge for making up his own mind. As a jury was not present in the courtroom at the time of these questions, there was no violation of the above statute. If the judge makes statements as in Griffin V State 142 Georgia appeals 362 (1977), showing his personal doubts about a defense witness's credibility, the appellate courts will have no choice but to reverse the verdict.Contact a Paulding County Criminal defense lawyer with help on your case.

The Georgia prohibition on judicial comments| Paulding County criminal defense lawyer

The Georgia prohibition on judicial comments goes back to at least 1849 and the new statute that was passed by the Gen. assembly was OCGA 9-10-7 which currently provides as to civil cases, it is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved. Should any judge violate this code section, the violation shall be held by the Supreme Court or Court of Appeals to be error, the decision in the case shall be reversed, and the new trial shall be granted in the court below with such directions as the Supreme Court or the Court of Appeals may lawfully give. In 1850 the Gen. assembly also passed the predecessor to OCGA 17-8-57 which currently provides us to criminal cases, it is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. This of course makes a lot of sense as juries give a lot of credibility to what the trial judge believes or has to say. The problem is sometimes the trial judge doesn't say anything but makes facial expressions or movements that show opinion or disbelief. The jury is able to pick up on the subtle hints given by the trial judge and often times are persuaded. Based on the law this should not happen but what should a trial lawyer do when this is happening in a case he or she is trying? The answer that is to object and ask the judge to give a curative instruction to the jury. If the judge refuses it is important  to put everything on the record. This will preserve the issue on appeal. The Georgia judicial comments statute do not apply in federal court, even in diversity actions were Georgia law provides the rule of decision. The stringency of the Georgia prohibition on judicial comment is demonstrated by the mandatory provision in both OCGA 9-10-7 and OCGA 17-8-57 that a new trial shall be granted if the judicial comment occurs. Furthermore, at least in the context of criminal cases, it appears that corrective instructions, whereby the trial judge explains that he did not intend to express an opinion, may not be able to cure the presumptively harmful error. There are a number of civil cases indicating, without directly holding, that a curative instruction may preclude the grant of a new trial. Contact an experienced trial attorney, an attorney in Paulding County to represent you in your legal matters.

Sufficient facts to bring an action and the defense of prematurity | Paulding County lawyer

A cause of action accrues when a legal right which is vested as distinguished from contingent or conditional in the plaintiff is violated by the defendant. However, if the right depends upon some condition or contingency, the cause of action accrues only from the fulfillment of that condition or happening of the contingency, and, if brought before, it is premature, And third parties have nothing to do with the matter. This particular defense is probably one of those which could be raised at the option of the pleader in his answer or by motion in writing based on failure to state a claim upon which relief can be granted. It should be observed, however, that the defense of prematurity should be asserted in some responsive pleading, otherwise it would be waived. No private right of action shall arise from any legislation enacted after July 1, 2010 unless such right is expressly provided therein. Under OCGA 9-11-15, the court may upon proper motion permit a party to set forth in supplemental pleadings facts occurring subsequent to the filing of the original pleading. This will not of course affect the requirement that a complete cause of action exist before the commencement of an action. If insufficient facts exist at the outset, the action will still be subject to dismissal for failure to state a claim. Contact a Paulding County attorney if you have sufficient facts to support a claim and contact a Paulding County lawyer if you have been sued and the other side does not have sufficient facts to bring the matter to court.

What kind of civil action ? | Paulding County lawyer

A civil action is Paulding County one founded on private rights arising either from contract or tort. An action ex contractu is an action based upon contract. The term relates to the nature of the cause of action rather than to the form of remedy for its enforcement. It is immaterial whether the action partakes of the nature of the legal or an equitable cause. It need not necessarily be founded upon an express contract, thus where property is unlawfully converted under such circumstances as to amount to a larceny, an action to recover the value of such property partakes of the nature of an action ex contractu upon an implied promise to pay for it. An action ex delicto on the other hand, is an action arising out of or partaking the nature of a tort. The term defined by the process of exclusion embraces all those actions whose foundation rests upon the failure of a person to perform a duty which is not imposed upon him by contract, but by law, or, although imposed by contract, such imposition is only cumulative to those duties which are already imposed by law. An example of the latter situation would be duties imposed by law upon common carriers a passengers, which are also imposed upon the latter by express contract between the two. In both of these situations the cause of action is ex delicto, unless in the latter situation, the plaintiff disregards the duties imposed by law and chooses as the basis of his right the breach of the duties imposed by the contract, in which case his cause of action is ex contractu. An action in personam, as distinguished from an action against one thing or an action in Rem, is defined as an action against the person, founded on a personal liability.

A statutory action is one based upon a statute which created or authorized it, as distinguished from a common-law action which is allowed by the common-law. Common-law actions are those which were adopted from the English common law in force at the time the state became independent, being such as were suited to our conditions, and which have not since been abolished by statute. In some instances statutory and common law remedies are cumulative. A statute creating a new remedy for an existing right does not take away the pre-existing remedy, without express words are necessary implications. Consequently, either may be pursued, the new remedy being simply cumulative. However, when the statute gives a right or remedy which did not exist at common law, and provides a specific method of enforcing it, the mode of procedure provided by the statute is exclusive and must be pursued strictly.   An action at law is an action asking only legal relief such as damages for breach of contract, as distinguished from a suit in equity asking for equitable relief, such as an injunction, rescission, etc. In Georgia, bills and equity and all distinctions of actions into real, personal, and mixed, are abolished. However, the superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal, equitable, or both, and apply remedies or relief, legal, equitable, or both, in favor of either party as the nature of the case may allow or require. Contact a Paulding County lawyer today for help regarding your civil case.

Marriage between persons of the same sex is not recognized in Georgia. This includes marriages performed pursuant to licenses issued by another state or foreign jurisdiction. OCGA 19-3-30 (B) (1). The statute clearly states that no marriage license shall be issued to persons of the same sex. Marriage licenses shall be issued only by the judge of the probate court or his clerk at the county courthouse between the hours of 8 AM and 6 PM Monday through Saturday.Some might ask what happened in the event that any marriage license is not returned for recording, as provided in subsection C of this code section, either party to a ceremonial marriage may establish a marriage by submitting to the judge of the probate court the affidavits of two witnesses to the marriage ceremony setting forth the date, the place, and the name of the official minister performing the ceremony. The judge shall thereupon reissue the marriage license and enter there on the certificate of marriage and all dates and names in accordance with the evidence submitted and shall record and cross index same in the proper chronological order in the book kept for that purpose. Contact a Paulding county divorce lawyer today.

What happens when you lose your divorce case?
The Georgia Supreme Court this does not include the Georgia Court of Appeals, will automatically grant all nonfrivolous applications in divorce and or alimony cases, i.e., those discretionary applications timely filed from the final judgment and decree of divorce, unless the application is found to be frivolous. The filing attorney must certify

1) the application is not taken for the purpose of delay, harassment, or embarrassment 2) that the attorney is familiar with the trial court record and based on the attorneys understanding of applicable law the attorney has a good faith belief that the appeal has merit 3) the attorney has been authorized by the client applicant to file the application. Opposing counsel has an option to address the frivolity issue within 10 days of docketing. A penalty up to $2500 can be assessed against the applicant attorney for a frivolous appeal.
Accordingly, in determining the proper procedure to follow on appeal, a direct appeal will not lie from a judgment granting divorce but appeal must be brought by application where the underlying  subject matter is divorce,

2) a direct appeal will Iie where the underlying subject matter is a separate child custody order being appealed, and 3) where the underlying subject matter is a divorce case in which child custody is an issue, an application for discretionary appeal is required,
In  an appeal were the order or judgment is not interlocutory and where the underlying subject matter upon which the appellate court's constitutional jurisdiction is based is that of divorce, there must be compliance with OCGA section 5-6-35, or the appeal will be dismissed.
 and a direct appeal will not lie. A determination of the underlying subject matter is required in determining the proper appellate procedure to follow.  Contact a lawyer from Dallas Georgia to help you with your case.

Contact a Paulding County lawyer today

Under section 111 of the FEHA IP legislation any applicable plan is the responsible reporting entity R.R. v. inapplicable planning Kluge liability insurance no-fault insurance and worker's compensation plan. The RRE are responsible for reporting claims. The RRE are responsible for reporting the identity of the Medicare beneficiary whose illness, injury, incident, or accident is in dispute when they become aware of the claim. The RRE must also report payment information to assist CMS regarding coordination of benefits and any claims to recover Medicare overpayments. The information provided will allow Medicare to determine if there are any any NGHP entities that may be available at the primary payer at the time of the  are incident. rre can submit a query to the coordination of benefits contractor regarding potential Medicare beneficiary prior to submitting a claim. The query would include the name of the injured party, date of birth, gender, and either their Social Security number or Medicare health insurance claim number of the injured party. It is determined the party is a Medicare beneficiary, the RRE must submit a claim input file including: identity and injured party including toll security number and tax ID number, representative attorney of the injured party including tax ID number, beneficiary of the injured party, description of the illness or injury, incident information, insurer named an RRE tax ID number, policy information, and payment information. There are additional reporting requirements in product liability claims regarding the name and brand of the product and the alleged harm. If there are multiple R.R. E.S, each one must report. Him and him and he is responsible for complying with section 111 are referred to as responsible reporting entity or RRE. The total payment obligation to the claimant refers to the dollar amount of the settlement, judgment, award, or other payment in addition to or apart from ORM. A generally reflects a one-time or lump-sum settlement judgment award or other payment intended to resolve or partially resolve a claim. It is the dollar amount of the total payment obligation to, or on behalf of the injured party in connection with the settlement, judgment, award, or other payment.

Liability insurance coverage that indemnifies or pays on behalf of the policyholder or self-insured entity against claims for negligence, and inappropriate action, or inaction which results in injury or illness to an individual or damage to property . Include but not limited to the following: homeowner's liability insurance, automobile liability insurance, product liability insurance, malpractice liability insurance, uninsured motorist liability insurance, underinsured motorist liability insurance. Liability insurance means insurance that provides payment based on legal liability for injury or illness or damage to property. It includes but is not limited to automobile liability insurance, uninsured motorist insurance, underinsured motorist insurance, homeowners liability insurance, malpractice insurance, product liability insurance, and Gen. casualty insurance.Ask a paulding county criminal defense lawyer about your case today.

Medicare advantage plan does not have the same super lien | Paulding county attorney

The Medicare advantage organizations are insurance companies that contract with Medicare to provide Medicare benefits pursuant to part C of the medical care law, 42 U.S.C. 130 9W-20 1A1. Although the Medicare secondary payer act law applies to Medicare advantage plans a recent Federal District Court decision in Pennsylvania held, as many have argued, that Medicare advantage plan being purely insurance agreements affording benefits equivalent to Medicare did not fall within the statute and regulations governing the Medicare liens. Humana v. Glaxo SmithKline 2011 US Dist. Lexis 63544 (E.D. Pa. June 13, 2011). Instead the District Court held, any right of recovery by MAO depends on the language in the insurance policy and applicable state law. Under this analysis, under Georgia law a Medicare advantage plan would occupy no greater status than an ordinary group plan i.e. is not permitted to subrogate against primary payer's, and the right of reimbursement from a beneficiary under the plan is subject to the made whole doctrine and the other provisions of OCGA 33-24-56.1. Although the Humana case involved a great deal of money, and it is a very well reasoned opinion, it does not appear to be a reported decision. Thus, under local rules of the Northern District of Georgia, its value as precedent is subject to question. Nevertheless, there is a great deal written about this decision, though the case itself is not appealed. Generally, plaintiff lawyers appeared to be responding to notices for Medicare advantage plan by taking the position that it is not entitled to the traditional Medicare lien, and will be treated like a health insurer seeking reimbursement pursuant to Georgia law. There is no reason to think that claims of lien pursuant to Medicare part D affording prescription benefits should be treated any differently than a Medicare advantage  plan, since Medicare part D similarly underwritten by insurers that contract with the government.Contact a Paulding county lawyer today for help with your case.

If I settle my damage claim for my personal injury case will that affect my right to pursue the Bodily Injury portion of my claim? | Douglasville DUI lawyer

When demand is a condition precedent, it must not be made prematurely, for such cases equivalent to no demand at all. It need not necessarily be made by the party himself, it is sufficient if it is made by an agent. An averment though often requested will not suffice because the time and place of, together with the demand actually made, and by and upon whom made, must be set out so that the court may judge its efficiency. A demand as a statutory prerequisite under certain types of action should not be confused with demand for judgment under the civil practice act. While demand is required under certain statutes as a precondition to an action and a failure to make such a demand may be fatal, the failure to demand appropriate relief in a complaint will not result in dismissal. Sometimes the statute requires notice as a condition precedent to the accrual or bringing of an action, for example, notice is required to be given to the defendant for the payment of attorneys fees for the collection of notes, and notice of an injury as required by the Worker's Compensation act. Ordinarily where a notice is required for the benefit of the defendant he may waive it but where the public has an interest such as in the case of the notice for the collection of attorney fees it may not be waived. For notice as affecting delivery under UCC see OCGA 11-2-616. Under O.C.G.A. 51-1-34 settlement of a cause of action for property damage will not prevent the claimant from bringing an action for personal injury where both claims arose out of the same motor vehicle collision. Unless, of course, the settlement contains general language intended to release both claims. When there is no settlement, the injured party has a separate and distinct cause of action against the person causing the physical injury to his person and a separate distinct cause of action for the injuries to his property. The injured party has a right, in his sole discretion, to prosecute each cause of action separately or combine the two cause of actions in a single action.

A creditor in imminent need of money may not sue for a some admitted to be due and reserve an action for part of his claim which is in dispute. However, it has been held that, when by agreement and account for goods sold is on the same day divided into four parts, each falling on a separate day, the plaintiff might maintain a separate suit on each part, and cannot be forced to unite them so that jurisdiction will be defeated. Closely analyzed, the situation under these circumstances is not really in instances splitting, nor is an exception to the rule against splitting. The code provides that if a contract is entire only one action can be maintained for breach thereof, but, if it is severable, or if the breaches occur at successive periods in entire contract an actual lie for each breach, but all the breaches occurring up to the commencement of action must be included therein. Amendment of pleadings so as to seek recovery of installment payments due between final judgment and filing is permitted but not required. Since action  and seek recovery only for right up until the filing of action, and additional suit occurring after the filing of the first action would not be abated by pendency of the first action. O.C.G.A. 9-2-44 which provides for the defense of former recovery and pendency, serves further to enforce rule against splitting. O.C.G.A. 9-2-5a and 9-2-44a O.C.G.A. 9-to-44. Appellant wife sued appellee husband for divorce, child custody and support. The trial judge granted temporary child custody to wife with visitation rights to husband. Before this order was filed was voluntarily dismissed divorce petition and took children to Florida. The trial court granted husband's motion to set aside a wise dismissal of the petition as to visitation rights. The husband sued for divorce, permanent custody child support and alimony. As parties occupy different states and to suits OCG a A9-2-5 was inapplicable. However trial court erred in denying wife's motion to dismiss husband sued as OCGA9-2-44 applied. Bedingfield v. Bedingfield 248 Ga. 91.  1981.  Of CGA 9-2-44 which provides for the defense and of former recovery and pendency, serves further to enforce rule against splitting. 

Action is not a pending suit until after service of process is perfected until after service of process is perfected, when service is made it relates back to the date of filing, and the date of filing establishes the date the action is commenced.  Thus once the suit is served it is in law or in commencement or filing the complaint that determines which action is the prior action.

OCGA 9-11-18a plaintiff's complaint against defendant was dismissed after defendant as third-party plaintiff impleaded third-party defendant to file against him direst damage claims as well as claims for secondary liability.  In this situation, provisions of civil practice act cannot specify what a trial court loses jurisdiction over third-party direct damage claim.  Thus Court was persuaded to view taken by most federal courts that jurisdiction over third-party direct damage claim is not destroyed if original action is sold or disposed of in some fashion before adjudication of such claim, but trial court, in exercise of its discretion either may proceed with claim or dismiss.  Cohen v. McLaughlin 250 Ga. 661 (1983).  Assuming arguendo that Florida contempt order could be directly enforced in this state pursuant to domestication proceedings instituted in accordance with OCGA 9-12-130 does not follow that appellant was required to undertake such domestication proceedings as condition precedent to bringing conversion action in this state based on his alleged ownership of property.  The court rejected appellants' theory that her petition for equitable partitioning was in rem proceeding which did not subject her to personal jurisdiction of trial court.  OCGA 9-11-8e DHR may in one judicial proceeding seek to establish paternity and obligation of support pursuant Child support recovery Dep't Department of human resources v. Carlton 174 Ga. App. 30 (1985).  OCGA 9-11-18(b) in particular plaintiff may join a claim for money and a claim to set aside a fraudulent conveyance.  The civil practice act provides for the liberal joinder of claims and parties for the benefit purpose of avoiding multiplicity of suits, conflicting decisions and to see that justice and equity obtains in all situations.  Cotton mental Ins. Co. v. Mercer 130 Ga. App. 339 (1973).  In demand for statutory lien or in the alternative equitable lien is permissible.  There is no inhibition to joinder of actions  ex contractu and those ex delicto, insurance carrier, motor carrier in third-party tortfeasor's faith be proceeded against in one action.  A plaintiff may pursue a number consistent or inconsistent remedies against the same person or different person until he obtained the satisfaction from some of them.  The 2 or more claims may be filed at the same time, or by the use of amendments.  A separate trial of issues may be ordered by the court.  Schuck v. Henderson 134 Ga. App. 808 (1975).  It has been held that where complaint seeks both legal and equitable relief and the complaint shows a claim on which relief either legal or equitable, may be granted in it is not subject to dismissal.  In one case, plaintiffs were entitled to remain in court under their pleading whereby one count proceed upon a breach of contract and another count was based upon a tort alleging a conspiracy involving a party other than the contracting parties.  OCGA 9-12-40 is a codification George's basic common law rule of res judicata.  However for one action to act as a bar to a subsequent action, the two actions must share certain characteristics first parties to the two actions must be identical and second, the subject matter of the actions must also be identical.  Here, the parties to the two actions are identical, however, the subject matter of the actions is not.  The first lawsuit dealt with a series of debts owed Watkins by Lawson.  The present lawsuit deals with title to a racetrack.  The racetrack was involved in the first lawsuit only to the extent that Lawson's counterclaim dealt with in reformation of a promissory note for which the racetrack properly serve as collateral.  The racetrack was not the subject matter the complaint in the first action, nor was it the subject matter the counterclaim in that action.  Because the subject matter of the two actions were not identical, the trial court in the present action correctly denied Lawson's motion to dismiss as to the res judicata issue.  Our joinder statute OCGA 9-11-18 provides for permissive joinder of claims for relief.  In the first action, Watkins chose to assert only his claims for relief relating to various loans he had made to Lawson during their business relationship.  When Lawson counterclaimed in the first action seeking relief concerning the promissory note, for the sake of judicial economy perhaps it would've been best to have litigated the issue to title of a the racetrack in that action.  However, the issue had not been joined in the pleadings or in an appropriate pretrial order and, under such circumstances, the trial court in the first action correctly determined, the day of trial, that issue cannot be litigated once all parties agreed, which Lawson refused to do.  That the issue of title to the racetrack could have been put in issue in the previous lawsuit does not require a finding under OCGA 9-12-40 that the issue is now res judicata.  In and thus one must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be rests jury, pursuant to OCGA 9-12-40.  However, in any situation where, as here, a plaintiff has multiple dealings with the defendant, and our law does not require that he assert every separate claim for relief that he may have against the defendant in one single lawsuit or risk losing the claim for relief forever, as would be the case if our joinder statute provided for mandatory rather than permissive joinder.  Instead our law requires that such a plaintiff must bring every claim for relief he has concerning the same subject matter in one lawsuit.   is in the previous action, and Watkins chose to bring suit against Lawson for every claim for relief he had against loss and that arose out of loans he had made a loss.  Watkins chose not to include his claims for relief that arose out of the racetrack which he had given to Lawson in trust.  To construe OCGA 9-12-42 required the inclusion of all claims for relief which could have been raised under OCGA 9-11-18 as the dissent suggests, would require compulsory joinder of unrelated claim.  Such a construction would not only defeat the purpose for which OCGA 9-11-18a was enacted but would render the same meaningless.  The civil practice act does not affect venue and jurisdiction see OCGA 9-11-82.  Therefore, venue and jurisdictional requirements could prevent a joinder of claims or parties in spite of the liberalization intended by the civil practice act.  See also Pemberton v. Purifoy 128 Ga. App. 892 (1973).  Death of party to a pending action automatically suspends action as to that party until someone is substituted for him.  Until substitution occurs further proceedings in case are void as to that party.  Omak Indus. Inc. v. Alwine, 164 Ga. App. 397 (1982).  Claim for equitable division of property pending in divorce proceedings do not survive death of claimant spouse during pendency of proceedings and prior to entry of divorce decree.  However, equitable claim to property filed or maintained on resulting trust theory survived that the spouse.  Cigars v. Brooks 248 Ga Ga. 427 (1981).  When appellant died and his causes of action whether based on a statute contract or tort did not abate but rather survived to his legal representative.  Dudley v. Watt Co. v. a bank NA 290 Ga. App. 220 (2008).  In the event of death of the wrongdoer prior to suit, his personal representative is subject to suit, but punitive damages are not authorized.  Attorney fees and expenses are generally not recoverable as damages.  However a jury may award them or their recovery especially pled and the finding of stubborn litigiousness bad faith or unnecessary trouble and expenses is made.  When an opposing party asserts a claim, defense or other position which is so lacking in the existence of a justiciable issue of law or fact that it is beyond reasonable belief the court would except it, attorney fees and expenses will be awarded against the opposing party and his or her attorney.  The bringing of suit or assertion of the defense which lacks substantial justification which was interposed for delay, or which unnecessarily expansive proceeding by abuse of discovery or other improper conduct can also result in a court awarding attorney's fees and expenses upon its own motion or the motion of any party.  OCGA 9-15-14 ( b.  In trial court retains discretion to decide whether attorney fees should be awarded even when party prevails on abuse of litigation claim.  OCGA 9-15-14 (b).  Contact an attorney from the Howard Law group today for a free consultation.

What's a condition precedent in the law ? | Howard Law Group

Where in the law there remains a condition precedent to the bringing of an action or the parties either expressly or by necessary implication make a condition precedent in a contract that condition must be complied with before an action will lie, unless it is waived or compliance is prevented by some act of the defendant. While general language affirmatively pleading performance of conditions precedent satisfies the civil practice than not all the performances were met of a condition precedent must be stated with specificity and particularity. Procurement of a certificate of authority to transact business is a condition precedent to a foreign corporations capacity to commence or maintain any suit or proceeding in any court of the state. The subsequent procurement of the certificate and later refiling of an action dismissed for failure to procure the certificate will cure the original failure to comply with this condition precedent and defense of res judicata will not lie to bar the second suit. no demand is necessary as a condition precedent to the commencement of an action, except in such cases where the law on the contract requires that such a man shall be made the following citations are instances of this rural abatement of nuisance by evening he posts EGA 41-1-5.

Word demand is a condition precedent, it must not be made prematurely, for such cases equivalent to no demand at all. It need not necessarily be made by the party himself, it is sufficient if it is made by an agent. An averment though often requested will not suffice because the time and place of, together with the demand actually made, and by and upon whom made, must be set out so that the court may judge its efficiency. A demand as a statutory prerequisite under certain types of action should not be confused with demand for judgment under the civil practice act. While demand is required under certain statutes as a precondition to an action and a failure to make such a demand may be fatal, the failure to demand appropriate relief in a complaint will not result in dismissal. Sometimes the statute requires notice as a condition precedent to the accrual or bringing of an action, for example, notice is required to be given to the defendant for the payment of attorneys fees for the collection of notes, and notice of an injury as required by the Worker's Compensation act. Ordinarily where a notice is required for the benefit of the defendant he may waive it but where the public has an interest such as in the case of the notice for the collection of attorney fees it may not be waived. For notice as affecting delivery under UCC see OCGA 11-2-616. Under O.C.G.A. 51-1-34 settlement of a cause of action for property damage will not prevent the claimant from bringing an action for personal injury where both claims arose out of the same motor vehicle collision. Unless, of course, the settlement contains general language intended to release both claims. When there is no settlement, the injured party has a separate and distinct cause of action against the person causing the physical injury to his person and a separate distinct cause of action for the injuries to his property. The injured party has a right, in his sole discretion, to prosecute each cause of action separately or combine the two cause of actions in a single action.

A creditor in imminent need of money may not sue for a some admitted to be due and reserve an action for part of his claim which is in dispute. However, it has been held that, when by agreement and account for goods sold is on the same day divided into four parts, each falling on a separate day, the plaintiff might maintain a separate suit on each part, and cannot be forced to unite them so that jurisdiction will be defeated. Closely analyzed, the situation under these circumstances is not really in instances splitting, nor is an exception to the rule against splitting. The code provides that if a contract is entire only one action can be maintained for breach thereof, but, if it is severable, or if the breaches occur at successive periods in entire contract an actual lie for each breach, but all the breaches occurring up to the commencement of action must be included therein. Amendment of pleadings so as to seek recovery of installment payments due between final judgment and filing is permitted but not required. Since action  and seek recovery only for right up until the filing of action, and additional suit occurring after the filing of the first action would not be abated by pendency of the first action. O.C.G.A. 9-2-44 which provides for the defense of former recovery and pendency, serves further to enforce rule against splitting. O.C.G.A. 9-2-5a and 9-2-44a O.C.G.A. 9-to-44. Appellant wife sued appellee husband for divorce, child custody and support. The trial judge granted temporary child custody to wife with visitation rights to husband. Before this order was filed was voluntarily dismissed divorce petition and took children to Florida. The trial court granted husband's motion to set aside a wise dismissal of the petition as to visitation rights. The husband sued for divorce, permanent custody child support and alimony. As parties occupy different states and to suits OCGA9-2-5 was inapplicable. However trial court erred in denying wife's motion to dismiss husband sued as OCGA 9-2-44 applied. Bedingfield v. Bedingfield 248 Ga. 91.  1981.  Of CGA 9-2-44 which provides for the defense and of former recovery and pendency, serves further to enforce rule against splitting. 

Action is not a pending suit until after service of process is perfected until after service of process is perfected, when service is made it relates back to the date of filing, and the date of filing establishes the date the action is commenced.  Thus once the suit is served it is in law or in commencement or filing the complaint that determines which action is the prior action. Contact Howard Law Group for a free consultation.

My drug dealer ripped me off do I get my money back ? | Douglasville DUI law

A cause of action accrues when a legal right which is vested, as distinguished from contingent or conditional in the plaintiff is violated by the defendant. However, in the right depends upon some condition or contingency, the cause of action accrues only from the fulfillment of that condition or happening of the contingency, and if brought before it is considered premature.

Only the parties to the action can raise the objection that is brought prematurely. No cause of action for damages can arise out of an illegal transaction because to authorize a recovery in such a case would be contrary to public policy. For example, no action can be maintained upon a contract growing out of an immoral or illegal transaction, the transaction was not subsequent or collateral, but directly connected with the unlawful act. The test to determine whether a demand connected with illegal transaction is capable of being enforced at laws whether the plaintiff requires any aid from the illegal transaction to establish his case. Thus an action involving a contract for contingency fee in a criminal prosecution, declared void as against public policy.The law clearly states that you cannot sue your drug dealer if he rips you off.  As you can see, a drug deal is obviously an illegal transaction and the law forbids you from having a remedy when a portion of your remedy is dependent upon an action that is illegal.  Therefore if you are ripped off by a drug dealer you have no remedy under the law.  Do not call the police in this situation.  If you are charged with a drug crime contact the Howard Law Group.

Termination of an insurance policy | Atlanta DUI lawyer

An insurance policy is terminated either by nonrenewal by the insurer or by cancellation, whether effected by the insurer or the insured. Nonrenewal occurs when the insured or the insured does not wish to renew the policy after its stated date of expiration, cancellation occurs while these parties generally the insurer, which is determined at the contract of insurance before it is to expire under its own terms. When the insurer cancels an automobile policy it must tread carefully to avoid the myriad pitfalls created by the statutory scheme of OCGA section 33-24-44. The cancellation notice must be in writing pursuant to OCGA section 33-24-44b, be unequivocal, i.e., the notice of cancellation must only state a desire or intention to cancel, it may not be a demand for payment for that it is deemed equivocal, and thus, not a proper notice of cancellation. Further, the notice must state that it is the intention of the Company that the policy shall cease to be binding from the expiration of the stipulated number of days following the time when its intention is made known to the insured. It is also insufficient to tell the insured that the policy will be canceled unless premiums are paid by a certain date. This is simply a demand for payment.Contact an Atlanta DUI lawyer to help you with your case today.

If a plaintiff fails to file an affidavit and that failure is raised by motion to dismiss filed contemporaneously with the initial responsive pleadings, the complaint is subject to dismissal. If an affidavit is not filed with the complaint, a plaintiff may not dismiss the lawsuit and refile the case after the expiration of the statute of limitations and obtain the benefit of the renewal statute, unless the court makes a determination that the affidavit was available and not filed due to a mistake. The failure to attach the affidavit is generally not an amendable defect. If the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim. A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice. Since the renewal privilege under OCGA 9-2-61 does not apply to cases decided on the merits, once a case is dismissed for the failure to attach an affidavit, it will not be subject to renewal. A mistake of law as to whether the affidavit should be filed may not be a mistake for purposes of this subsection, at least one case has held that an affidavit can be available if it is in existence and acquirable by the plaintiff, as opposed to being in the actual possession of the plaintiff. In 2005, the Gen. Assembly added an additional medical negligence filing requirement. As of February 16, 2005 all medical negligence complaint must include a contemporaneously filed medical authorization. The language of the new statute mirrors the language of OCGA 9-11-9.1 with respect to the types of matters that require authorization and also specifically encompasses actions against entities that base liability on the conduct of a medical professional. OCGA 9-11-9.2 is unenforceable. The Georgia Supreme Court held that the medical authorization provision fails to meet the requirements of the federal HIPPA provision, and hence it is unenforceable. Contact an Atlanta DUI lawyer if you are charged with a statute that is unconstitutional.

patient-Psychiatrist privilege | Atlanta DUI lawyer

Patient psychiatrist privilege

The patient psychiatrist privilege does exist in Georgia. To claim the privilege under OCGA 24-9-21 (5) the patient must voluntarily seek the assistance of the psychiatrist. This creates a confidential relationship. That a patient seeks to recover damages for mental and emotional injuries as a plaintiff in a civil case for personal injuries does not constitute a waiver under OCGA 24-9-40. In very rare cases however, when some fundamental constitutional right is at stake, the privilege may yield to the constitutional right. A party waives the psychiatric privilege when the party calls his or her psychiatrist to testify at trial on the party’s behalf when the mental status of the parties at issue. Moreover, where the psychiatrist or mental health workers consulted for evaluation and testimony rather than treatment or appointed by the court for such purpose, no privileged relationship arises as protected under the act. Defendant may obtain portions of the plaintiff’s records that might contain privileged information, if the privileged information is deleted. For example, a record of comments made to a nurse at a mental health unit would not come under the patient psychiatrist privilege unless the nurse was an agent of the psychiatrist. The discovering party may be able to obtain any records that do not have privileged communications. Any communication not made to a psychiatrist or one of his agents would not be privileged. Obtaining information from medical records however, would still be subject to federal HIPPA  requirements. To determine what is protected and what is not protected at state law, the trial court should you in in camera inspection and only make available for discovery what does not involve communications with the psychiatrist or psychologist or their agents.Contact an Atlanta DUI lawyer today to help you with your case.

Obtaining records from a non-party | Atlanta lawyer

To obtain records from a nonparty who is not a practitioner of the healing arts, hospital, or health care facility, counsel can file for the production of documents under OCGA 9-11-34(c)(1). The nonparty discussing the requested information has 30 days to respond under this procedure. Records that could be obtained under this statute include employment records, school records, Worker’s Compensation reports, or other insurance files. These records do not implicate HIPPA and do not come under the medical authorization form requirement of OCGA 9-11-9.2.

OCGA 9-11-35A authorizes physical or mental examinations for parties to a lawsuit. An examination ordered pursuant to this section is commonly called an independent medical examination. A party can request the court to order a party to submit to the examination. The order may be made only on motion and for good cause shown upon notice to the person to be examined and to all parties and shall specify the time place and manner condition and scope of the examination and the person or persons by whom it is to be made OCGA 9-11-(35)a. The party that is submitted to the examination may request a report about the examiner’s findings from the party who requested the examination. If this request is made the party requesting the examination should provide the party who was examined a detailed report of the examining physician setting out his findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. The court can order this report if the physician fails to make the report his testimony can be excluded OCGA 9-11-35 b3. Contact an atlanta lawyer for help with your case today.

Third party requests | Atlanta lawyer

To obtain records from a nonparty who is not a practitioner of the healing arts, hospital, or health care facility, counsel can file for the production of documents under OCGA 9-11-34(c)(1). The nonparty discussing the requested information has 30 days to respond under this procedure. Records that could be obtained under this statute include employment records, school records, Worker’s Compensation reports, or other insurance files. These records do not implicate HIPPA and do not come under the medical authorization form requirement of OCGA 9-11-9.2.

OCGA 9-11-35A authorizes physical or mental examinations for parties to a lawsuit. An examination ordered pursuant to this section is commonly called an independent medical examination. A party can request the court to order a party to submit to the examination. The order may be made only on motion and for good cause shown upon notice to the person to be examined and to all parties and shall specify the time place and manner condition and scope of the examination and the person or persons by whom it is to be made OCGA 9-11-(35)a. The party that is submitted to the examination may request a report about the examiner’s findings from the party who requested the examination. If this request is made the party requesting the examination should provide the party who was examined a detailed report of the examining physician setting out his findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. The court can order this report if the physician fails to make the report his testimony can be excluded OCGA 9-11-35 b3.Contact an atlanta lawyer today with help on your case.