Patricia King now a registered neutral with GAOC and Commission on Dispute Resolution

trish-kingThompson, Meier & King is pleased to announce that the firm has another mediator among the partners.  Patricia “Trish” King is now a registered neutral with the Georgia Administrative Office of the Courts and the Commission on Dispute Resolution, following 90 hours of training through Henning Mediation and Arbitration Services, Inc., with an emphasis on Domestic Mediation.  Trish brings to her skill as a mediator over 25 years of extensive experience in family law, having concentrated her practice throughout her career in child custody and visitation, divorce, property division, separation issues, child support, alimony, modification actions, enforcement of court orders, pre and postnuptial agreements, paternity and legitimation, adoption and child welfare.  Over her career, Trish has represented parties, including as an advocate for children, in numerous mediations and knows from a litigant’s standpoint the benefits of mediating.  She looks forward to utilizing her experience in assisting the parties in their efforts to reach a mutually satisfactory resolution to their dispute.

Law Day brings appreciation for rule of law

Cynthia Propst
This year, the Blue Ridge Bar Association was pleased to participate in the celebration of Law Day on May 1. Every year, Law Day strives to promote the ideals of equality and justice under the rule of law in the United States. This year, throughout the month of April, the Blue Ridge Bar Association celebrated this year’s theme, the Magna Carta and its protection of personal liberties.

In 1215, the Magna Carta was established as a charter of liberties granted by England’s King John to his barons to quell their rebellion and restore their allegiance. The ideas embodied in this historic document have withstood the test of time and have become a symbol of liberty and the rule of law.

In particular, the idea that no person is above the law is embodied by the Magna Carta and is also a cornerstone of America’s judicial system. It is also currently a front-running issue facing America’s judicial system with events such as those in Charleston, South Carolina and Ferguson, Missouri.

To further the ideal that no person is above the law and to celebrate the Magna Carta, the Blue Ridge Bar Association took part in several events. Members of the Bar Association partnered with Goshen Valley Boys Ranch, a home for boys in the state foster care system. On April 11, members of the Bar Association turned out to help with landscaping projects around the campus, including weeding, laying mulch and digging out old shrubbery.

A Law Day social was held April 23 at The Study in downtown Canton. Local lawyers gathered together to celebrate Law Day with light appetizers and discussion on this year’s Law Day theme.

The Bar Association also partnered with the Rotary Club of Canton to hold the annual Law Day luncheon on April 28. The goal of the luncheon was to provide a forum for discussion of the idea that no person is above the law.

Those in attendance had the pleasure of hearing Judge John J. Ellington speak. Judge Ellington is the 66th judge of the Georgia Court of Appeals and has held the position since 1999. Judge Ellington became one of the youngest trial court judges ever appointed to the State Court bench when he was appointed State Court Judge of Treutlen County, Georgia in 1992.

Those in attendance also witnessed the presentation of the prestigious Liberty Bell Award and Robert S. “Bob” Stubbs Distinguished Service Award. The Liberty Bell Award is given each year by lawyers to a non-lawyer and was created to recognize individuals who encourage greater respect for law and the courts by contributing to the effective functioning of our institutions of government.

This year’s recipient, Pam Carnes, is the Cherokee Chamber of Commerce CEO and president. Ms. Carnes first joined the Chamber in 1991 and has held various positions there including interim president and membership director.

Ms. Carnes also served on the Georgia Association of Chamber of Commerce Executives Board of Directors from 1998 to 2010, and has been locally involved with the Service League of Cherokee County as well as an active member of First United Methodist Church of Canton. She is also a member of the Board of Directors for the Cherokee County Sheriff’s Foundation and volunteers as a Reinhardt University Ambassador. By dedicating her time and her work to these multiple agencies, Ms. Carnes clearly contributes to the effective functioning of local government every day.

The recipient of this year’s Robert S. “Bob” Stubbs Distinguished Service Award is Jane Johnson, the Chief Bailiff at the Cherokee County Justice Center, who retired earlier this year after 28 years of service and dedication to the Courts.

The Robert S. “Bob” Stubbs Distinguished Service Award is not given every year and recognizes a non-lawyer for his or her work in the legal community. It is only given when the individual has made significant accomplishments in the legal community.

Ms. Johnson began work in 1987 when the Historic Marble Courthouse was still the main courthouse for the community. She cared for judges and juries, seeing to their needs and calling the court to order. Over the course of her career, she’s worked for multiple judges, and was in charge of hiring numerous bailiffs. Ms. Johnson played a large part in making the Cherokee County Justice Center what it is today. Even in her retirement, Ms. Johnson continues to take care of the legal community by now serving as a part-time bailiff.

This year’s Law Day Celebration of the Magna Carta and the principle that no one person is above the law was embraced by the Blue Ridge Bar Association. Through the numerous events held to celebrate the event, members of the Blue Ridge Bar Association have gained a greater appreciation for the rule of law, the Magna Carta, and the principle that no one person is above the law.

cropped-logo-header.jpgCynthia Propst is an attorney at Thompson, Meier, & King. She focuses on estate planning, probate law, and criminal defense. She is a graduate of the University of Georgia and Penn State University, the Dickson School of Law.

Celebrating equal justice for all

Each year on May 1, the country celebrates the ideals of equality and justice under the rule of law in the United States and works to cultivate a respect for the legal system that contributes to our freedoms. This day is known as Law Day. Law Day was originally the idea of former American Bar Association president, Charles S. Rhyne, as a way to celebrate the legal system.

President Dwight D. Eisenhower went on to declare the first Law Day in 1958 and its formal observance was codified in 1961.

This year’s Law Day honors the 800th anniversary of the Magna Carta. Since its inception on June 15, 1215, the Magna Carta has stood for the protection of personal liberties and has also come to embody the idea that no person is above the law.

In the spirit of Law Day, bar associations and legal education associations throughout the country often participate in philanthropic and educational activities to benefit their respective communities. Locally, the Blue Ridge Bar Association and Rotary Club of Canton will be celebrating Law Day this year through a variety of service activities and events.

On March 27, the Blue Ridge Bar Association hosted an Easter Egg Hunt at Brown Park for the children of the Cherokee Family Violence Center. Thanks to donations from the community, about 40 children and their families were able to come out to gather eggs and toys. The Canton Police Department and Canton Fire Department also assisted in the festivities. Even the Easter Bunny made an appearance.

The Blue Ridge Bar Association will also be sending volunteers to Goshen Valley Boys Ranch to help out with various projects April 11. Located in Waleska, Goshen Valley provides homes for young men and boys who have been abused or neglected. Goshen also provides counseling, education, tutoring and other groups to assist the residents in breaking the cycle of abuse and neglect.

On April 10, the members of the Blue Ridge Bar Association will meet to consider nominations for the Liberty Bell Award and the Robert S. “Bob” Stubbs Distinguished Service Award.

The Liberty Bell Award is the most prestigious award given by lawyers to a non-lawyer. The award recognizes an individual who encourages greater respect for law and the courts, stimulates a deeper sense of individual responsibility so that citizens recognize their duties as well as their rights, contributes to the effective functioning of our institutions of government or fosters a better understanding and appreciation for the rule of law.

Locally, the award is given to a Cherokee County resident to recognize that individual for contributions outside of the person’s regular employment.

The Robert S. “Bob” Stubbs Distinguished Service Award recognizes a non-lawyer for his or her work in the legal community. This award is only given when a member of the community has made significant accomplishments in the legal community and therefore is not awarded every year.

The Blue Ridge Bar Association will also be collecting donations for the Georgia Legal Food Frenzy. This annual competition between Georgia’s law firms, legal organizations and law schools raises food and funds for regional food banks across the state.

The culmination of the local Law Day celebration will be on April 28 at the Law Day luncheon. The luncheon will be hosted by the Blue Ridge Bar Association and Rotary Club of Canton at the Bluffs.

On that day, the Blue Ridge Bar Association will present the Liberty Bell Award and Robert S. “Bob” Stubbs Distinguished Service Award.

Additionally, the Blue Ridge Bar Association is pleased to announce the Law Day Speaker will be the Honorable Judge John J. Ellington of the Georgia Court of Appeals. Judge Ellington became one of the youngest trial court Judges in Georgia when he was first appointed to the bench in 1991.

He has served on the Court of Appeals since 1999. He is a three-time recipient of the prestigious Distinguished Judicial Service Award, which recognizes outstanding service on the Bench and commitment to improving the practice of law. He has also served in several leadership positions in business, professional, civic and religious organizations.

cropped-logo-header.jpgLauren Keller is an attorney at Thompson, Meier & King, which focuses on family law, criminal law and estate planning. She is a graduate of Florida State University and the University of Georgia School of Law.

Child Custody Disputes

A person going through a divorce should always seek that advice of an attorney. The divorce process can be very complicated, especially when dealing with issues of child custody and child support.  As emotions are heightened during the divorce process, it is important to keep in mind how child custody and child support issues are handled in the State of Georgia.

In most cases, the Courts encourage an active and healthy relationship between both parents and the child(ren). In order to accomplish this goal, the Courts look at “best interest” factors when determining where a child should live primarily.  These factors help the Court determine which parent is the most appropriate to be the primary physical custodian of the child(ren).  In accordance with O.C.G.A. § 19-9-3(a)(1), there is no presumption that the child should live with the mother or the father.

In many cases, parents are able to agree to the Parenting Plan that governs the visitation between both parents without the Judge having to make a ruling on the issue. The Parenting Plan also details which parent is the primary physical custodian, sole physical custodian, and whether the parties share joint legal custody or not.  If the parties are unable to reach an agreement about child custody and visitation, the Judge will be the one who will make the final decision.

In some cases, when the parties are unable to reach an agreement about child custody issues, the Court will appoint a Guardian ad Litem (GAL).  A Guardian ad Litem is usually an attorney who practices in the field of family law.  It is the GAL’s duty to conduct an independent evaluation of both the parties as well as the child(ren) involved in the case and make a recommendation to the parties and Court about child custody and visitation or parenting time.

There are many possible outcomes for a child custody disputes.  Please contact our office to make an appointment with one of our seasoned Family Law Attorneys to discuss your rights related to any child custody issues you may be facing.

Foliage and Carnage — When Fallen Seeds Result in Broken Legs

Spring is coming.  While that is hard to imagine given we are in the middle of winter, we’ll soon see plants and trees springing to life and coloring our surroundings with flowers and foliage.  But these welcome sights can become hazards if their accumulation on the ground results in unsafe conditions.

For example, an Augusta woman stepped on a seed pod hidden from her view on a step on a set of stairs leading to a tennis court at a club.  The seed pod rolled from under her foot as she transferred her weight causing her to fall and resulting in a broken leg.  Litigation followed and she was ultimately awarded $78,000 in damages by a jury over the club’s objections.  Both the trial and appeal courts agreed that the club did not maintain its property in a manner that the law required.

Businesses that invite the public to its facilities have a duty to inspect the premises and keep them safe from hidden hazards that a person exercising ordinary care would not detect.  The court found that club knew that the magnolia pods posed a fall hazard and had even made a schedule to clean them off of the walkways every morning before it opened to the public.  That schedule had been put into place before this woman fell and broke her leg.  However, the evidence showed that the club employees did not blow the walkways clear that morning.

That the accumulation of seed pods was a natural event is no defense.  Georgia law does not allow a business to point a finger at Mother Nature.  The business still has the duty to clean up and make the premises safe for the public to enter.

The rules for a personal residence can be different depending on whether the person visiting the home is a licensee (usually a social guest) or an invitee (usually someone who you invite into your house to perform work).  If the person is an invitee, you are obligated to exercise ordinary care in keeping the premises and walkways safe, as discussed above.  If the person is a licensee, then the home owner’s level duty to the person can be much lower.

A recent case in Gwinnett County discussed the liability of a home owner whose tree reached out of his lawn onto the sidewalk.  There, a man was walking on the sideway and noticed the tree’s branches overhanging the sidewalk.  He moved off the sidewalk and toward the road slightly as he approached the tree.  Walking by, he felt a sharp pain in his ear and realized that a small branch had entered his ear and pierced his eardrum.  The injury required surgery to repair.  He brought suit for damages against the owner of the land upon which the tree was located.  The court discussed duty owed to a person walking by the property, who they found was a licensee.

If the person is a licensee, the landowner only owes a duty not to “willfully or wantonly” injure the person.  This low level of duty is often described as requiring of the landowner no other duty than not allowing the property to contain “pitfalls or mantraps.”  So a Dr. Evil style lagoon in the front yard containing sharks with laser beams attached to their heads is a no-go as is a hidden hole in the ground or a dark stairway inexplicably leading to a ten foot drop.  The court found the tree was clearly not a hazard rising the level of a pitfall as its branches were visible to the injured man.

The court went on to discuss another defense of the landowners: equal knowledge.  If an injured licensee had equal knowledge of the hazard as the landowner, there is no liability for the landowner.  So there is no liability for the homeowner where social guest fell of a high deck with no railing as the guest observed there was no railing and acknowledged that she could have watched where she was stepped to avoid falling.  In the tree case, the injured man stated he saw the branches and that they were “easy to go around” and the court found he had equal knowledge to that of the land owner.

While there are particular requirements on Georgia property owners imparted by law, the best practice is just to be a conscientiousness business owner or home owner.  Keep your walkways tidy and think about what you could do to make your property safer.  While there might be legal defenses for injuries on your property, a better way to maintain your property is in a manner to keep that injury from ever occurring.

About the Author

Will_Tate_HeadshotWill Tate is a Jasper native practicing law at Thompson, Meier and King, P.C. in Canton, Georgia.  He focuses on commercial and construction litigation, landlord/tenant issues, estate planning and bankruptcy. 

Cherokee High School Mock Trial

The high school mock trial program at Cherokee High School is where Ashley T. Carlile, decided that she wanted to be an attorney. Ms. Carlile began competing on the high school competition team when she was in the 10th grade, which would have been around the year 2000. She was coached by several young attorneys’ that have gone on to become judges in Cherokee County, Georgia. The prominent list includes Judge James Drane, the Chief Magistrate Judge of Cherokee County; Judge David Cannon, Jr., Superior Court Judge of Cherokee County, and Judge John Cline, Assistant Probate Judge for Cherokee County.

As a result of the excellent training in high school, Ms. Carlile went on to compete on competitive college and law School mock trial teams. Unfortunately, after Ms. Carlile’s tenure at Cherokee High School, the mock trial program began to die down and eventually became non-existent. Fifteen years later, attorneys Ashley T. Carlile, Cynthia Propst, and Rachel Connolly have joined together with the Honorable David Cannon, Jr. to reintroduce the mock trial program to the students of Cherokee High School. The students are working hard to prepare for the regional competition scheduled on February 7, 2015 at the Bartow County Courthouse.

The students have been learning techniques for direct and cross examinations, opening statement, closing arguments, and objections. The students are working hard to prepare for the competition and we wish them the best of luck at Regionals!

Read the contract, read the contract, read the contract!

During a particularly tough case involving a construction dispute, a sage old attorney told me the favorite saying of an even more sage like and older attorney was “read the contract, read the contract, READ THE CONTRACT.”  While this particular phrase could likely be traced down the line of attorneys through rudimentary contracts drawn on a cave wall, it holds no less true today.  The contract forms the basis for how business is done.  While the law can impose certain behavior on people, it can’t and shouldn’t dictate everything that occurs between people or businesses.  Contracts fill that void and lay out the expectations and duties for each party to the agreement.  While usually beneficial to both parties, contracts can sometimes trap the unwary.

In a recent decision (Progressive Electrical Services, Inc. v. Task Force Construction, Inc., 327 Ga. App. 608), a Georgia court found the president of an electrical contracting company personally liable for the money his company owed to a supplier.  The electrical contractor signed a contract containing a “Signature Provision” above where the president was to sign.  This provision included language stating that the signor of the contract would bind himself, individually, as well as his company to the terms of the contract.  The signature line itself simply had his name and his title within the company.  There was no separate area in the contract where he signed indicating that he was accepting personal liability for the provisions of the contract.

Because otherwise there would be no need for this cautionary tale, things went sour on the project.  The electrical contractor was not able to pay its supplier.  The supplier sued to recover money owed to it, which the general contractor eventually paid.  The general contractor then sued the electrical contractor and its president in an individual capacity to recover the money it paid to the supplier.  The president argued that he signed the contract on behalf of the company and did not sign individually.  The court disagreed.  The court found the language in the paragraph above his signature enough to make the president individually liable for the debt if the company could not pay.  By all appearances, the company could not afford to pay the balance owed leaving the president solely responsible.

As with most things, there are two sides to this outcome.  First is that of the president of the electrical contracting company.  Typically when an individual signs a contract as the agent of the company and do not take on personal responsibility.  The reason for the business’s existence is to limit its investors and employees from the risk needed to operate: taking on debt, performing work, hiring employees, and generally interacting with the world.  If a business fails, the investors would only lose their investment and not their home.  With the signature on this contract, however, the president circumvented all of those protections and made himself personally liable.

The other side of this outcome concerns the general contractor and its good planning that the provision was included in this agreement.  The foresight of its management and counsel increased the likelihood that they would recover against the electrical contractor for any breach of its contract.

This case illustrates two practice points.  It re-enforces the need to actually read the contract you are signing.  An educated review would have revealed the troubling language to the electrical contractor and could have likely been a negotiation point.  The flip-side of that point is that a contract can be a great tool to protect your interests.  By including a simple provision in a contract with a contractor who might be on an unsteady financial foundation, the general contractor minimized its liability.

If you have a question regarding any construction contract presented to you, or need one prepared, feel free to contact Will Tate, attorney with Thompson, Meier and King, P.C., at wrt@dmtlawfirm.com or (770) 479-1844.

Bankruptcy and Student Loans

The most common stance on the ability to discharge student loans has been, essentially, you can’t.  However, court decisions and studies across the country, including a recent Alabama bankruptcy case, give pause to that advice.

Bankruptcy courts apply the Brunner Test (so named for the criteria developed in Brunner v. New York State Higher Education Service Corp., 831 F.2d 395 (2nd Cir. 1987)) in order to determine the whether the bankruptcy petitioner is qualified for a discharge of student loan debt.  First, the petitioner must establish that they maintain a minimal living standard.  Second, the petitioner must prove persistent circumstances precluding future repayment of the loan.  Lastly, the petitioner must have established a good faith effort to pay the student loans.

Typically, successful applications of the Brunner Test have been cases where the petitioner develops a physical or mental disability severe enough to prevent them from working again.  However, a recent opinion from an Alabama bankruptcy court extended protection to a single mother of two who, despite genuine effort to find more lucrative work, could not afford to pay any amount towards her $89,000+ in student loans.  The petitioner maintained a very minimal standard of living which was often supplemented by family members.  And although she was not laboring under any physical or mental disability, the court found that her financial situation would not improve as her sociology decree was not marketable enough to allow her to earn much more than her present pay.  The court ruled in favor of the woman and discharged her student loans.

The process to discharge student loans through bankruptcy is time consuming, potentially costly, and only available to a relatively small group that would meet the stringent requirements of the Brunner Test.  Even if a student loan discharge is not available, the process may help.  Typically student loan payments are deferred while a Chapter 13 bankruptcy is pending.  This will give a petitioner room to focus on the payment of other debts, like a car loan or mortgage, while potentially discharge other debts.  The petitioner could then emerge from Chapter 13 protection with little to no debt and in a position to resume student loan payments.

If you have questions about your student loans and bankruptcy, contact Will Tate, attorney with Thompson, Meier and King, P.C., at wrt@dmtlawfirm.com or (770) 479-1844.

A Brief Primer on Georgia Easement Creation and Dissolution

Broadly, easements are right to use another’s land or to an adjoining land owner from full use of their land.  Easements may be for a road to access a neighboring property, the placement of power lines or other utilities, the right to hunt or fish, or the prohibition on building a structure over a certain height.

Types of Easements

Easements may be created by deed, prescription, law, or implication.  An easement is created by deed much in the way the transfer of land takes place.  The deed describes the location, size, and type of easement and, if desired, places limitations on its use.  Examples of limitations include the duration of the easement or frequency or extent of use allowed like volume of traffic.  If left unspecified, the easement will never expire and the person obtaining the easement could use it as much as they desire.

An easement may arise by prescription through continuous use of another person’s property for twenty (20) years or as little as seven (7) years under “color of title” (possession of a document purporting to grant the easement).  For instance, using a path through another person’s land to access your land for twenty years could grant the path-taker an easement for use of that path.

Georgia law provides for the creation of an easement in order to reach landlocked property.  A petition is filed and assessors will determine the value of the easement to be paid to the owner(s) of the land where the road would be located.  The judge will review the petition to determine whether the easement is necessary to access the property.  If the court is satisfied, the easement will be granted and the petitioner ordered to pay the owners.

An easement may also arise by implication.  This could arise where an owner of a larger tract of land sells off a portion.  If the portion sold requires use of a driveway that crosses the larger tract, an easement will be implied to have been created at the time of the transaction.

Alternatives to Easements

If an easement is not required or desired, simply getting permission to access the land is an option.  This is called a license and has the benefit to the owner of the property of being revocable.  If the use exceeds what the owner expected the owner may revoke the license.  Or, if the owner decides to sell his property, the license may be revoked and the property sold clear of any encumbrance.  A license may be oral or written.

Removing an Easement

Besides the owner of the easement voluntarily releasing the easement, the only way to remove it is by establishing that the easement is abandoned.  Lack of use is typically not enough to show the intent to abandon.  This may be evidenced by the removal of installations like bridges or power lines or allowing a roadway to become overgrown with trees.  If the conditions are met for abandonment, an action to quiet title may be filed to have a court invalidate the easement.

If you have any questions about the formation of an easement or need an easement removed from your property, please contact Will Tate, attorney with Thompson, Meier and King, P.C., at wrt@dmtlawfirm.com or (770) 479-1844.