Archive for November, 2007

Court of Appeals Affirms Entry of Judgment Upon Arbitration Award

The Georgia Court of Appeals in Harrison v. Eberhardt (A07A0894; Sept. 14, 2007), affirmed the arbitration award entered after the Wilkes County Superior Court granted a motion to compel arbitration related to a home purchase. The arbitrator found the seller responsible for certain repairs to defects in the home. The trial court, presented with the award for enforcement, rejected the buyer’s argument that certain additional claims related to the seller’s failure to provide potable water, etc., were not subject to the arbitration clause. The court of appeals agreed with the trial court and specifically found that the sale agreement’s reference to and adoption of the Federal Arbitration Act preempted the requirement under Georgia law that the parties to a contract separately initial an arbitration clause for it to be enforceable. Businesses and individuals should proceed with caution when using/signing contracts or other agreements which contain arbitration clauses. While arbitration is often thought of as a cost-effective, fast and more predictable alternative to trial by jury, the appropriateness of an arbitration clause and the advisability of employing such clauses should be evaluated before injecting them into form contract documents or signing agreements which contain them. You may want to consider consulting with an attorney with the business and litigation experience needed to evaluate these clauses, before they are signed.

Denny Brown heads Buckley Brown’s commercial practice and can assist you or your company in assessing the advisability of using arbitration clauses.

For more information, please contact Denny Brown at (404) 974-4571.

Don’t Sit on Your Copyright Infringement Claim

When someone infringes your copyright, you have a limited time to make your claim. This is based on a legal principle called “statute of limitations.” Statutes of limitation, in general, are laws that prescribe the time limit to file lawsuits. The deadlines vary by the type of claim and maybe by the state where you live. The purpose of them is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain time.

Because copyrights are governed by federal law, there is only one statute of limitations for claims related to them. Copyright infringement claims have a three-year statute of limitations from the “last act” of the infringement. What constitutes the last act can vary. For example, if your image is published in a newspaper without your permission, you have three years from the date that the newspaper was distributed to file your claim in court. But if the infringement is continuing, such as when someone is using your image on the web without your consent, then the time to calculate the statute can get a bit tricky. It sometimes starts when you have “constructive” notice of the infringement, even if you don’t have actual knowledge of it.

If someone uses your photo without your permission, you may wish to seek legal remedy from that person within three years of the last act of infringement. So don’t sit on your claim once you have it. Note, however, to pursue any copyright infringment claims in court, you must first register your copyright with the U.S. Copyright Office.

For more information, please contact Carolyn E. Wright at (678) 592-8025.

Ruling Determines Speculative Expert Testimony Considered for MSJ

Georgia Courts may consider an expert opinion, even where arguments that some or part of the testimony it is purely speculative or conjectural exist. In a 4 to 3 decision, the Georgia Supreme Court in Layfield v. Department of Transportation, 280 Ga. 848, 632 S.E.2d 135 (2006) held that the crucial factor is whether the expert opinion is wholly speculative. The dissenting justices worried that this creates an opportunity to deny summary judgment when the expert testimony is conclusory and, therefore, inadmissible. The majority opined, instead, that where there exists objective evidence underlying the expert’s opinions, it is up to the jury to determine the weight to be given to such an opinion. Of note, this decision addressed facts pre-dating Georgia’s statutory adoption of the Daubert standards for admissibility and consideration of so called expert testimony.

For more information, please contact Tim Buckley at (404) 974-4570.

The Workers’ Comp Board Decides Weight of Testimony

The State Board of Workers’ Compensation (Board) has authority to determine the weight and balance conflicting expert opinions, as stated by the Georgia Court of Appeals this past July. See Bibb County Board of Education v. Bembry, 2007 WL 2164643 (Ga.App., July 30, 2007). The court reiterated it is “within the province of the Board to determine the credit to be given to the conflicting opinions of experts.” The Court also stated that a medical opinion does not need to be based on medical certainty, instead applying a standard of medical probability. This opinion reaffirms previous case law, holding that the Board has the right to resolve conflicts of evidence and witness credibility.

For more information, please contact Catherine Dellinger Buckley at (404) 974 – 4588.

No First Amendment Retaliation Protection for Speech Made as Employee

In a First Amendment Retaliation Case, an employee argues retaliation by an employer based on an employer’s action that is likely to harm the employee’s use of constitutionally protected speech. To prevail, the plaintiff must prove: (1) his speech was on a matter of public concern; (2) his First Amendment interest in engaging in the speech outweighs his employer’s interest in prohibiting the speech; and (3) his speech played a “substantial part” in the adverse employment decision. Speech is a matter of public concern when the employee speaks as a citizen, not an employee fulfilling official duties. If a person speaks as an employee, then there is no claim for First Amendment Retaliation. Garcetti v. Ceballos, __ U.S. ___, 126 S.Ct. 1951 (2006). Speech is made in fulfillment of official duties when it is made as part of the plaintiff’s role as an employee. Unprotected speech includes a district attorney’s memo criticizing the use of an affidavit to secure evidence, and a financial aid counselor’s reporting on fraudulent management and use of federal financial aid funds. It appears that a First Amendment Retaliation Claim will be successful only when the speech is outside the areas of the employee’s job responsibilities completely or when the statements are made in a public forum. Battle v. Board of Regents for the State of Ga., 468 F.3d 755 (11th Cir. 2006); Springer v. City of Atlanta, WL 2246188 (N.D.Ga., 2006).

For more information, please contact Denny Brown at (404) 974 – 4571.

New Trademark Law Affects How Others May Use Them

The Trademark Dilution Revision Act (“TDRA”) became effective October 6, 2006. The Act establishes a “likelihood of dilution” standard rather than “actual dilution” when a challenged and allegedly diluting mark has already been put into use. The new law also provides for relief from both dilution by blurring and dilution by tarnishment. Dilution by blurring occurs when “an association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.” A famous mark now means it is nationally famous and is “widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.”

Of specific concern were suggested revisions to the “fair use exceptions” for trademarks. The proposal eliminated “noncommercial use of a mark” and changed the fair use definition. Fortunately, the final TRDA maintained the “noncommercial use” exception. The fair use exception has been revised to include “any fair use, including a nominative or descriptive fair use, or facilitation of such fair use.” This language appears to be more inclusive than that originally proposed. But the final affect of the TDRA won’t be known until the courts interpret it.

For more information, please contact Carolyn E. Wright at (678) 592 – 8025.

Making A Causal Connection Between Heart Attack and Employment

Recently, it has become more difficult for a workers’ compensation claimant to recover for a heart attack. To prove that the heart attack arose out of the individual’s employment, the claimant must demonstrate a causal connection between the heart attack and his/her work conditions. AFLAC Inc. v. Hardy, 250 Ga.App. 570, 552 S.E.2d 505 (2001). In sum, a successful workers’ compensation claimant must show three things: (1) an actual injury exists, (2) the individual was injured in the course of employment, and (3) the injury arose out of the individual’s employment. Even if work related stress exists, non-job related factors may be significant enough for a court to find that the work environment caused the heart attack. Pitts v. City of Rome, 256 Ga.App. 278, 568 S.E.2d 167 (2002).

For more information, please contact Tim Buckley at (404) 974- 4570.

No Police Immunity When Act Is Malicious or Intentional

Although police officers are granted immunity from personal liability for discretionary acts within the scope of their authority, a police officer may be personally liable for even discretionary acts when done with actual malice or with the intent to injure. An act is done with actual malice when the police officer has a deliberate intention of wrongdoing. In contrast, a police offices performing a ministerial duty does not need specific intent of wrongdoing and may be found personally liable based on negligence. Phillips v. Hanse, 281 Ga. 133, 637 S.E.2d 11 (2006).

For more information, please contact Tim Buckley at (404) 974-4570.

Public Duty Doctrine Applies to Police Protection, Not Police Powers

Under the public duty doctrine, a governmental unit cannot be held liable for its duty owed to the general public. In Georgia, the public duty doctrine applies only to cases involving police protection. The Court of Appeals of Georgia rejected the argument that building inspection services were covered by the doctrine because they were government services under police powers for the protection of the public welfare. The court explained the doctrine did not apply to such services because it concerns police protection, not police powers. Clive v. Gregory, 280 Ga.App. 836 (2006).

For more information, please contact Tim Buckley at (404) 974- 4570.

Speculative Expert Testimony Can Be Considered for MSJ

Georgia Courts may consider an expert opinion, even if it is speculative or conjectural, when ruling on a motion for summary judgment. The Georgia Supreme Court in Layfield v. Department of Transportation, 280 Ga. 848, 632 S.E.2d 135 (2006) held that the crucial factor is whether the expert opinion is wholly speculative. The dissenting judges worry that this creates an opportunity to deny summary judgment when the expert testimony is conclusory. The majority believes, instead, that it is up to the jury to determine the weight to be given to such an opinion.

For more information, please contact Tim Buckley at (404) 974-4570.


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