Georgia Law does not allow arbitration “relating to terms and conditions of employment unless the clause agreeing to arbitrate is initialed by all signatories at the time of the execution of the agreement.”  Today, in Vasuveda v. Dagnew, the Georgia Court of Appeals held that even if the arbitration clause is right above the party’s initials, or even the only clause on an initialed page, this requirement is not met. When a court chooses not to send a case to arbitration in the presence of an arbitration clause, it is a good time to pay attention. 

The underlying facts of the case are not really important.  What is important is that there was a very detailed arbitration clause.  When Plaintiff sued, Defendant sought to enforce the clause.  The clause itself was not in dispute.  Indeed, the opinion sets it out – it’s 33 lines long (which turns out to be important).  The clause started on page 21 of the agreement, and rolled over on to page 22. The parties not only signed every page, but they initialed at the bottom of every page.  Because the clause continued from page 21 to page 22, the bottom of page 21 looked something like this:

(I say “something like” because that’s my own reconstruction.)  On page 22, the only words were the remaining words of the provision, and “signatures on following page.”

Plaintiff advanced the argument that because the provision itself was not initialed, it was unenforceable under the initialing requirement of O.C.G.A.  § 9-9-2 (c)(9).  Defendant countered that because the initials were right under the language in one instance, and on a page where only the language appeared in another, the requirement had been met.  The trial court agreed and this appeal followed. The trial court was reversed.   

The court laid the groundwork by going over the basics – the Georgia Arbitration Act applied, O.C.G.A.  § 9-9-2 (c)(9) in particular; the issue was a matter of law and was therefore de novo reviewable; and that statutes in derogation of the common law – like this one – must be strictly construed.  The particular language to be construed was “the clause is initialed.” The court quoted related caselaw explaining that “the purpose of the requirement is to ensure that [signatories] are not compelled to give up their common law right of access to the courts unless they specifically acknowledge the intent to do so by initialing the arbitration clause.”

From there, they framed the inquiry as one of the parties’ intent.  Specifically, the court looked to what the parties intended by the initials on each page.  The court then reasoned that because the initials appeared on every page, the initials on every page had to have had the same intent and meaning.  Thus, the initials on page 21 were no different than the initials on, say, page 9, which had  nothing to do with arbitration.  The case shall continue in court, and not in front of an arbitrator.

This is a classic lesson in malpractice avoidance.  If lawyers drafted this contract, there are basically two possibilities:  (a) the lawyers drafting the contract were unaware of the law, which I suspect could get them sued; or (b) the drafting lawyer was asked by a supervising lawyer “hey, you don’t have an initials blank next to the arbitration clause,” but concluded that the way it was done was “probably good enough.”  I almost think (b) is worse than (a).  What reason could there be to not spend the time to insert one additional initials block?  Laziness?  Arrogance?  I’ve said this before – if someone involved in a case tells you something, there’s almost always a reason for it.  Listen – don’t decide that something is probably good enough. Because if it’s not, you won’t like what happens next.



We’re familiar with the judicial blessing of the Colorado bakery that had the right to sell a cake for an LGBTQ wedding not because of hate or discrimination but because of religion (cough).  A ministry whose current website proclaims “Gender confusion endangers freedom and destroys lives” was quite shocked to learn that Amazon’s designate a portion of your purchase price to go to charity did not include them because apparently discriminating against others who also were made in the divine’s own image is viewed as hate.  When the district court explained that businesses could make their own decisions about who to support, the ministry petitioned a higher authority, who ruled quite tersely that the district court was right. 

Coral Ridge Ministries v. Amazon is a case concerning what is now known as the D. James Kennedy Ministries.  By way of context, but not mentioned in the decision, the current website (which you can find, I am not risking what algorithms might do if I link it here) makes a number of statements about the LGBTQ community.  The home page alone contains such gems as

  • Gender Confusion Culture.  A radical assault is taking place in our nation and schools. It’s transgenderism, the notion that we can decide our sex—whether male, female, or any of a mushrooming list of gender options.
  • We are witnesses today to an emerging cultural tragedy. Gender confusion endangers freedom and destroys lives. Find out how—and what you can do to protect your children, on this week’s Truths That Transform.
  • Help your child or grandchild navigate a gender-confused culture! (Emphasis supplied.)

If you followed a link titled “Request Your Resources Today,” you’d learn more, such as:

  • So how do we respond to all this, especially when the public school classroom sends our children unbiblical messages about gender identity, gender roles, same-sex attraction, and sexual fulfillment?
  • To help you to steer the young people in your life to embrace their proper calling to godly womanhood or manhood, we have a highly readable, Biblically-based book we will gladly send you.
  • [The book is] an essential tool that will . . . [s]how you how to empower children to respond to the gender fluidity confronting them; [e]nable children to respond to the gender-confused with Gospel grace and compassion; [and] [h]elp children to celebrate their God-given gender.

I did not read the rest of the website.

Amazon operates the “Amazon Smile” program, under which a customer can designate a charity for Amazon to donate 0.5% of any purchase price. (If you buy $100 from Amazon, $0.50 of that is donated by Amazon to the charity.)  The charity has to register with Amazon to be part of the program. To register, a charity must not “engage in, support, encourage, or promote intolerance, hate, terrorism, violence, money laundering, or other illegal activities.” (Currently, the language is a little different.)  The website stated that “hate” would be judged on the basis of the SCLC’s list of hate groups.  Turns out that the folks running the website quoted above, they’ve been designated as haters for some reason.

No one likes being called a hater. The ministry sued because Amazon was discriminating against the ministry “because of its religious beliefs about LGBTQ conduct.”  The ministry also explained that it “has never attacked or maligned anyone on the basis of engaging in homosexual conduct.”  (I read it a couple of extra times but, no, the words “some of our best friends are gay” are not there.)

I’m focusing here on the portion of the opinion affirming the district court’s ruling that Amazon did not engage in religious discrimination against the ministry.  The court first accepted that websites such as these are places of public accommodation, and moved immediately on to whether the giving program was a service/privilege/advantage. After quickly establishing that the program was Amazon donating money, and not the customer, the court emphasized that donation of money is expressive, and Amazon could not be forced to express itself by including all possible entities on its charities list.

My favorite part of this opinion is footnote 11, referencing the district court’s analogy to a “a closely held fast-food restaurant chain, whose owners are Christian and object to homosexuality based on their religious beliefs, initiates a “charity match” program.”  (I guess they were too chicken to use a particular entity to fill a blank in the story.)  The footnote explained that under the ministry’s interpretation of the law “the fast-food chain could be compelled—over their objection—to match donations to, for example, a church whose central mission is promoting the Christian acceptance of homosexuality; the Church of Satan . . ..”  What’s good for the goose is good for the fried chicken sandwich, I guess.

What I find interesting about this case is that it manifests so much of what we are seeing in the political arena today.  Positions are taken (by one side or the other) only on the basis of that particular battle, and not with respect to other positions taken by that side. Not going to get partisan about it, but I am sure you know what I mean.


It was and is all the rage in these parts to consign statues of traitorous Confederate soldiers who fought for slavery to the dustbin of history. Two such monuments were justly taken from public view in Henry and Newton Counties last year. The Sons of Confederate Veterans, already named for the losers, pitched yet another battle, and sued the counties to put the monuments to hate back up. They lost on a few grounds, the lead one being that they lacked standing because rather than suffering concrete or particularized injury, their alleged harm was “purely psychic.” The Court of Appeals affirmed, probably not at all influenced by the fact that the Sons used the phrase “War Between the States” to support their argument. Characterizations of historical figures here are statements of my opinions. There are some more opinions on the blog.

This case, Sons of Confederate Veterans v. Newton County, is actually three cases involving relatively identical facts in two Georgia counties, Henry and Newton. Each county decided that monuments honoring pro-slavery traitors were best displayed inside storage facilities. The plaintiffs did not like this and filed a variety of claims. Ultimately their claims were dismissed on a few grounds, with the one most relevant here being standing.

OCGA § 50-3-1 (b) (3) states that public monuments cannot “be relocated, removed, concealed, obscured, or altered in any fashion by any officer or agency.” OCGA § 50-3-1 (b) (4), as explained by the Court, “subjects the responsible party to treble damages, potential exemplary  damages, as well as attorneys fees and court costs.”  Plaintiffs proceeded under OCGA § 50-3-1 (b) (5), which states “any person, group, or legal entity shall have a right to bring a cause of action for any conduct prohibited by this Code section for damages as permitted by this Code section.” Plaintiffs contended they had standing under that section.  Neither the trial courts nor the Court of Appeals agreed.

The opinion focused on the “injury in fact” element of standing.  Citing numerous authorities, the Court stated “An ‘injury in fact’ is one that is both ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Continuing along these lines, “The injury must also be ‘concrete,’ or put another way, it must ‘actually exist’ and be ‘real,’ not ‘abstract.”

What did the descendants of pro-slavery soldiers who fought against our country offer up?  “their dedication to ‘honor[ing] the memories and legacies of their forefathers who fought for freedom during the War Between the States’ or assert that they ‘will suffer injury to [their]rights and dignity.”  The Court agreed with Newton and Henry Counties that “their injuries are ‘purely psychic’ and neither concrete nor particularized.”

Sometimes its just fun when the good guys win.


The Georgia Courts have been both boring and non-prolific, so I am having fun with the Eleventh Circuit.  Why maritime law (about which I know nothing)?  “After falling during a dance competition on a cruise ship, [64 year old] passenger Joann Yusko sued the ship’s owner NCL (Bahamas), Ltd., for negligence. She alleged that her partner in the competition—a professional dancer and cruise ship employee—released her hands as she leaned away from him during a dance move, causing her to fall backward and hit her head on the deck.”  Yusko v. NCL.

The facts are exactly how the Court put them.  There is an existing principal of maritime law that a “shipowner is not liable to a passenger under maritime negligence law unless it has actual or constructive notice of the risk-creating condition that caused the passenger’s injury.”  There was no dispute that plaintiff did not provide evidence of such notice, so applying that principle, the District Court granted summary judgment.

Plaintiff appealed, arguing that she was not trying to establish direct liability, but rather vicarious liability under respondeat superior.  The court began by explaining how the notice standard evolved, and confirmed that the notice standard was still good law (“Over the intervening decades, we have continued to require plaintiffs in maritime negligence cases to establish notice on the part of a shipowner”).

However, the Court made a distinction:  “But the scope of a shipowner’s duty has nothing to do with vicarious liability, which is not based on the shipowner’s conduct . . . it makes very little sense to rely on caselaw about the scope of a shipowner’s duty where, as here, the shipowner’s duty is irrelevant.”

NCL argued that, in essence, if vicarious liability is permitted, the notice rule would become meaningless. The court reject that view, stating “common sense suggests that there will be just as many occasions where passengers are limited to a theory of direct liability.”  This would be especially true in premises liability cases, dangerous conditions claims, and complaints based on actions of other passengers.

All kidding aside, it’s nice to see simple and discrete pronouncements of law, even if they don’t impact your practice in the least.

How to Operate a Private Club in the Eleventh Circuit

Today brings us Ring v. Boca Ciega Yacht Club, a case rife with opportunities for snark, in that it features an adopted shelter dog (“Piper”) whose skill for chasing bees resulted in his taking up service dog training.  The main, but not sole, issue is whether Yacht Club could keep Piper away under the ADA’s exemption for private clubs.  The case was before the 11th Circuit on Ring’s appeal of the grant of summary judgment to Boca Ciega finding Boca Ciega to be a private club as a matter of law.  The Eleventh Circuit, probably unintentionally, provided a pretty detailed guide on how to operate a private club for exemption purposes under various civil rights statutes.

The district court relied on various circuit and district courts who fashioned multi-factor lists to determine whether a club was public or private.  (Here’s one from a district court in Pennsylvania:  “(1) the genuine selectivity of the group in the admission of members; (2) the membership’s control over the operations of the establishment; (3) the history of the organization; (4) the use of the facilities by nonmembers; (5) the purpose of the club’s existence; (6) whether the club advertises for members; (7) whether the club is for profit or not for profit; and (8) the formalities observed by the club, e.g., bylaws, meetings, and membership cards.”

The Eleventh Circuit observed, however, that examining and weighing facts is precisely not what happens at the summary judgment stage:  when ”an appellate judge says that the remaining issue must be decided on the basis of the totality of the circumstances, or by a balancing of all the factors involved, he begins to resemble a finder of fact more than a determiner of law.” 

What the court concluded what that there was a general rule that could be applied, patching together various precdents:  “A “private club” is an organization that uses “self-government and member-ownership,” ….  and pursues a “plan or purpose of exclusiveness,”  …  by acting to ensure “seclusion from others in critical aspects of the relationship[s]” between members at its facilities. 

At this point, if anyone can discern the operative distinction between the multifactor test and the general rule, please make use of the comments feature.

Here’s how the Eleventh Circuit scored the issue:

Creating an issue of fact with respect to “private club”

  • Club goals of safety, education, and community being public, not private, goals.
  • Not all of its real property was for exclusive use of club members.
  • Club “slips” could be leased to non-members.
  • Frequent non-member attendance at events.
  • Membership lists posted on website (names and addresses) publicly
  • Official meetings in the presence of non-members
  • Loose application policy – no sponsorship; no need to own a boat; no cap – 94.6% acceptance rate.

In favor of “private”

  • Goal of promoting camaraderie
  • Some exclusive events.

So, if you want private status:  leave the self-serving promotional stuff out of the documents; keep people off the property; be a jerk to guests; and make it hard to join. 

Your Boss Was Right — There IS a Case That Says [Fill-in-the-Blank]! Also Added Fun for Parks and Rec Fans.

You’ve been there. You think you’re done with the brief. It’s a really good brief, you think. Perhaps even the best brief you’ve written in your eight and a half months as a lawyer. Your boss says, “hey come down to my office” and starts talking about the brief in less than worshipful terms and eventually the soliloquy reaches that fateful point, to be repeated over and over in your early career of “I know there are cases out there that say X, I don’t remember them but I know I’ve seen them, and you have to deal with them, and you haven’t.” You think to yourself, “the boss is old, the boss is losing it, the boss doesn’t know.”

Cases like Cross v. Wilmington Trust, which came down this morning from the Georgia Court of Appeals, demonstrate that your boss is your boss for a reason. Cross shows just how deep a court is supposed to go in determining whether an affidavit is made on personal knowledge. If you weren’t aware of Cross and the cases it relied upon, you’d lose your motion for summary judgment, just like your boss told you. And soon, you’d be looking for a new boss.

Cross, at least the part discussed here, concerns that pesky little “personal knowledge” requirement for summary judgment affidavits. And one of the key affidavits in Cross did not contain the magic words “personal knowledge” but also did not contain the bad words “on information and belief.” In delving into the analysis, the Court used the words your boss told you were out there someplace: “Although an affidavit need not expressly state that it is based on personal knowledge, it must at least reflect that its contents are rooted in the affiant’s personal knowledge and observation.” Depending on when you had the conversation with your boss, your boss was referring to Shepard v. Winn-Dixie (1999), Logan v. American Bankers Life (1983) or even Holland v. Sanfax (1962). You’ll be referring to this case.

The trial court granted summary judgment based in part on the affidavit of Booker. The appeal contended the affidavit did not meet the relevant standard of personal knowledge. The appellate court affirmed. In examining the actual bases of the Booker affidavit, the court noted that the following items showed it was not based on personal knowledge:

  • The knowledge was gained from a review of pleadings and other documents.
  • The affidavit did not provide any link between Booker’s job responsibilities and the facts/events of the case.
  • The affidavit did not explain how Booker formed the basis of factual statements about the case.
  • The records in the affidavit were not identified as business records, to take their contents out of the hearsay rule.

It’s easy to miss the small technical stuff when you’re new at this job. Litigating is a complicated thing, and even the experienced folks miss technicalities. This is especially so in a national practice, where there are non-identical state rules, conflicting federal local rules, and don’t even get yourself started on the mass of guaranteed non compliance that are the various federal appellate court rules. But the people who climb the ladder tend to do so for a reason, and you may want to listen to them.

And now your Parks and Rec bonus. On a different point, the Court writes “Relying on a bankruptcy decision, In Re Rent A Tent, 468 BR 442, 452 (2012).” Without further ado …


Defendants owned a store called “Uniforms by Patrick,” where they sold – you guessed it – uniforms.  But, because this is Georgia, it also sold firearms and had a gun range. Defendants hired a guy to run the gun stuff, who in turn sold guns to the Plaintiff. As so often happens in the uniform/firearms word, the guy was pocketing the proceeds of those firearms sales, and, it turned out, was a convicted felon who was prohibited from dealing in firearms. Defendants found this out, reported the issues, and all of the guns sold to the Plaintiff were reported as stolen, and seized by the ATF.  Much of this made the Plaintiff look bad, so the Plaintiff did the only thing possible when you get caught buying guns from a felon at the uniform store:  sue the uniform store for defamation.  Do yourself a favor, head on over to and see how this ends.

(Case cite:  Grace v. Lowery, A21A0422)

The case sets up procedurally as a defamation case.  Plaintiffs sued on many counts (negligent hiring, false light invasion of privacy, defamation, etc.) but sought and received a general verdict.  In those circumstances:  “Where, as here, a case is submitted to the jury on various claims, and the jury returns a general verdict such that we cannot determine on which basis the verdict was entered, the verdict cannot stand.”  (Tip: try to avoid general verdicts if you can, no?).  That being said, it was a heck of a general verdict:  $3 million in damages, punitive damages, and fees.  (You seriously have to wonder what happened at trial – this is for damage to reputation of someone who buys guns from the guy at the uniform store. Oh well, lucky my opinion wasn’t shared by the jury.)

The defamation case was pled grandiosely:  “a campaign of defamatory comments and slanderous allegations.”  But, sweeping generalizations aside, the Court of Appeals found no evidence in the record of actual defamatory statements. One witness said “[c]onversations were had, in the open, about firearms being stolen or Ortiz Customs buying stolen firearms. Exact conversations, I couldn’t give you.” That last part, the part about exact conversations, is, as it turns out, important. The one exact statement that was heard — “Once we’re done with them, they’ll be out of business” was cast as “mere statement of opinion or rhetorical hyperbole.”  

The only remaining question, I guess, is whether there’s also laundering going on at the uniform and gun store.


Today brings us Evans v. Medical Center, arising out of the death of a man who went to the hospital with chest pains, was discharged after being informed that his “condition did not appear serious,” and died the next day of a heart attack. The appeal concerned the grant of summary judgment to the triage nurse (and her hospital employer) on proximate cause grounds, noting, among other things, that “question of proximate cause is for the jury except in ‘clear, plain, palpable and undisputed cases,’ thus taking this outside of Cardozo’s class of cases where “Negligence in the abstract, apart from things related, is surely not a tort.” For the rest, you have to read the whole article. The clicks there are good for my ego.

Let’s start with Palsgraf. If you haven’t looked at it since first-year torts, give yourself the treat of a read now. Cardozo’s writing is just so crisp. Not a single wasted word. But, to summarize: two men running to catch a train, first one gets on, second one gets bumped and drops his package, which happened to be filled with fireworks, which of course went off.  The explosion caused some scales to fall on Mrs. Palsgraf, who sued the railroad. Without weighing this down too much, there are two takeaways from Palsgraf. First, “One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person.” A negligent act must cause the damage. Second, “The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort.” Cardozo concluded that it did not matter whether the actions leading to the fireworks cause injury, because those involved in those actions had no reason to foresee that such an injury was likely. Without a duty, causation did not matter.

If you’re still reading, don’t worry, law school is now over for the day.

The events in Evans could not lead to the same conclusion. Moss (for whom Evans sued) was taken by ambulance to the ER, complaining of vomiting and radiating chest pain. The nurse assessed him , followed standing orders to give him an ECG and perform other tests. Though hospital process required Moss to be placed on one of four treatment tracks, that never happened. The Doctor met with Moss, looked at the available reports, and discharged Moss, two hours after he arrived. (As an aside, I am not sure I have been in and out of an ER in two hours.) He had a fatal heart attack the next day.

His widow sued the doctors, the nurse and the hospital. The doctors are not relevant to this appeal. The claim was that the nurse failed to follow protocols (such as the track assignment) and her failure set in motion the chain of events that caused Moss’s death. The nurse contended, in essence, that all the decisions were the doctors’ and nothing she did or didn’t do could have changed the outcome. In response, the Plaintiff offered expert testimony identifying several things the nurse did not do: following the track protocol; not completing the required triage form; not advocating for her patient to the doctor, etc. There was also testimony that the premature discharge was responsible for the death.

This is where the nurse runs into a Palsgraf problem. The nurse’s argument, at its heart, is that she is too far away from the causative event (the discharge) to matter. But that is not so. The nurse saw the patient – she was not down on the other end of the train platform. The facts of themselves do not take the nurse out of the equation.

From there, it becomes a simple case – there was record evidence of causation, and that record evidence stood in the way of summary judgment.

Go read Palsgraf. You can thank me later.


Today in McBrayer v. Governors Ridge, A21A0262, the Court of Appeals dealt with the interaction of nuisance and abortion law. Dr. McBrayer legally performed abortions in an office condo that his practice owned. Some of his neighbors did not like this. Others, whether they liked it or not, did not like the constant protests. Still others did not like the fire of unknown origin at his building. The association demanded that he stop, which he did not. The association levied daily fines, which McBrayer did not pay. The jury awarded the association $1.4MM in damages in fees. McBrayer appealed the denial of his motion for new trial, and the Court of Appeals reversed. Pull quote: “Property ownership in Georgia does not guarantee only ideologically-aligned neighbors whose business practices will cause no upset or attract no controversy, and we will not hold otherwise.” Want the whole scoop? Read the article. 

The facts are as straightforward as they seem. Governor’s Ridge is an office park which allowed its property owners to, among other things, practice medicine. It is also zoned for such activity. Dr. McBrayer moved in during the 1990s, and the protestors quickly followed, “some of whom harassed employees or invitees of the businesses in the office park.” Further, “Building owners testified that the presence of the protestors disrupted their businesses and made it difficult to sell or rent space in their building.”

In the late 1990s, the association began expressing concern to McBrayer about these things. By 2010, the association starting levying fines which McBrayer did not pay. By the time the association sued in 2013, the fines had reached $1.17 million. When the Cobb County jury found for the association, they also awarded $311,000 in fees. McBrayer asked for a new trial, and was refused. He successfully appealed.

The association urged affirmance because the evidence supported multiple grounds of nuisance, each of which arose, directly or indirectly, from the conduct of performing legal abortions. The Court did so without getting caught up in the abortion rights maelstrom. 

The court began by explaining that so long as McBrayer was not breaking the law – either by activities or by zoning – he could not be said to be creating a nuisance. As explained: “McBrayer’s practice is likely to displease some in the community and attract protestors wherever it is located. If we were to hold that a legally-operated abortion clinic cannot even operate in a commercial office park zoned for medical practices without constituting a nuisance we would be, in effect, holding that such clinics cannot properly operate anywhere.” 

The court noted that businesses and organizations of every stripe and belief are subject to protest and violence. “Both legal protestors and criminals have caused disruption around a multitude of business and institutions, such as gun shops, fur retailers, Chick-Fil-A restaurants, police departments, synagogues, statehouses, Black churches, adult entertainment establishments, and mosques, to name a few.”

Regarding the contention that this clinic once had a fire, and that other clinics also suffered similar acts, “the fact that one synagogue has been a victim of anti-Semitic violence does not result in other synagogues in other locations having nuisance liability to their neighbors due to a generalized fear of anti-Semitic violence in the neighborhood.”


11th Circuit just decided Burns v. Palm Beach ( Burns wanted to tear down his 10,000 sq. ft. beachfront mansion and replace it with a 25,000 sq. ft. one which was to be “a reflection of his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions.” You read that right. Palm Beach said no. Burns made a federal case out of it, alleging constitutional violations. He lost, then lost the appeal. The majority opinion is 70 pages long; the dissent another 66 pages. The dissent could well be described as a well-researched thesis on the value of free expression in the form of art. The majority makes 93 references to the dissent. So here’s my thing – one rich guy and one rich city received this much judicial attention. Couldn’t the court – on both sides – have made something(s) else a higher priority?