RCO LEGAL, P.S., INC. Et Al. v. JOHNSON. , 347 Ga. App. 661 ( 2018 )

SECOND DIVISION
MILLER, P. J.,
BROWN and GOSS, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 18, 2018
In the Court of Appeals of Georgia
A18A1388. RCO LEGAL, P.S., INC. et al. v. JOHNSON.
MILLER, Presiding Judge.
Larry W. Johnson sued his former employer, RCO Legal, P.S., Inc. (“RCO”),
as well as various persons associated with the firm, alleging that they defamed him.
RCO filed a motion to dismiss or strike Johnson’s complaint pursuant to OCGA § 9-
11-11.1, which is Georgia’s anti-SLAPP statute.1 Johnson also filed a motion to strike
portions of an affidavit made by RCO’s general counsel, James Galbraith, as well as
exhibits attached to that affidavit. The trial court denied RCO’s motion to dismiss
1
“Georgia’s anti-SLAPP [strategic lawsuits against public participation] statute
is intended to protect persons exercising their rights to free speech and to petition.”
Jubilee Dev. Partners v. Strategic Jubilee Holdings, 344 Ga. App. 204, 206 (809
SE2d 542) (2018).
Johnson’s complaint, and also granted Johnson’s motion to strike. RCO, James
Galbraith, Stephen Routh, Janaya Carter, and Lori McGowan now appeal.
After a thorough review of the record, we determine that the trial court erred
in granting Johnson’s motion to strike the Galbraith affidavit without considering
circumstantial evidence of authenticity of the attached exhibits. We also conclude
that, although the trial court properly denied the appellants’ motion to dismiss
Johnson’s complaint, Johnson’s allegation of defamation stemming from RCO’s
summary judgment motion during arbitration proceedings, as well as communications
to RCO’s human resources director, should have both been struck from the complaint
because neither would have supported a claim for defamation. Thus, we affirm in
part, vacate in part, and remand this case with direction.
“We review de novo the trial court’s denial of [a]ppellants’ motion to dismiss.
In reviewing the trial court’s order, we construe the pleadings in the light most
favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.” (Citations
omitted.) Jubilee Dev. Partners v. Strategic Jubilee Holdings, 344 Ga. App. 204 (809
SE2d 542) (2018).
RCO is a Washington-based law firm that provides mortgage default services.
In June 2013, RCO hired Johnson as the vice president for the southeast region, and
2
he was to co-manage RCO’s southeast region client files with his then-law partner,
Joel Freedman. Johnson and Freedman maintained a separate law firm (“J&F”), with
its own escrow accounts, assets and obligations. According to Johnson’s employment
agreement with RCO, Johnson was due to receive a severance payment of 36 months’
salary, provided that he was terminated without cause. James Galbraith is RCO’s
general counsel; Stephen Routh is an RCO shareholder and founding partner; Janaya
Carter is RCO’s managing shareholder; and Lori McGowan is senior counsel with the
firm.
Underlying Johnson’s complaint is a foreclosure sale on property which
belonged to Luther Carl Murray. J&F conducted that sale in April 2013, and the sale
yielded $76,602.89 in excess funds, payable to Mr. Murray. J&F mailed a letter to
Mr. Murray notifying him of the excess funds, but he did not respond. J&F then
mailed another letter to Mr. Murray, along with a check for the excess funds, to a
different address which a private investigator had found. Once again, Mr. Murray did
not respond.
J&F then had a private investigator visit Mr. Murray, who lived with his
mother. The investigator brought a check for the excess funds, as well as a “Release
and Hold Harmless Agreement” so that Mr. Murray could receive the funds. After the
3
investigator explained the purpose of his visit, Mr. Murray stated that he did not want
the check, and that the investigator’s client should keep it. Mr. Murray’s mother
testified, “[h]e didn’t mean that.” Although the investigator left his contact
information, neither Mr. Murray nor his mother contacted him. Johnson also averred
that he had a conversation with Mr. Murray, during which Mr. Murray stated that he
did not want the excess funds, and that Johnson should keep them. When Mr.
Murray’s mother was deposed in 2017, she testified that an envelope with a check
came to the home in 2014, and that Mr. Murray had received it but never opened it.
In April 2015, Johnson had the check reissued, and the named payees were
“Luther Carl Murray and Johnson & Freedman, LLC.” As Johnson had initially
instructed that the payees be named in the alternative, he changed the “and” to “or,”
initialed this change, and then deposited the check into his personal bank account.
Johnson later paid that money to J&F, and Freedman put the money into J&F’s
escrow account. In July 2015, J&F sought the counsel of another firm regarding
where to direct the funds. That firm sent Mr. Murray a letter informing him that J&F
was holding the excess funds, which they intended to turn over to the State, and
advising him that he had 60 days to claim the funds from J&F. With no response from
4
Mr. Murray, J&F filed an unclaimed property report with the Georgia Department of
Revenue, and issued a check to the Department in the amount of the excess funds.
In September 2015, RCO terminated Johnson’s employment “for cause,” based
partly on alleged mismanagement of the southeast region, and misuse and
misappropriation of company resources. The letter informed Johnson that because he
was being terminated for cause, i.e., “theft, dishonesty, fraud, gross negligence or
willful misconduct in the performance of [his] assigned duties,” he was not eligible
for any severance payment. Johnson filed an arbitration claim against RCO in
Washington State, and RCO filed Bar complaints against Johnson in Georgia, North
Carolina, and Tennessee.2
Johnson ultimately requested the Department of Revenue to reimburse him the
excess funds, and the Department issued a check in the amount of the excess funds,
to “Johnson & Freedman LLC[,] Attn Larry W Johnson.” After Johnson filed a
complaint for declaratory judgment in the Columbia County Superior Court, that
court determined that Mr. Murray had surrendered his claim to the excess funds, and
that JF Legal (formerly J&F) was entitled to the funds.
2
RCO claims that Johnson also misappropriated and converted other funds.
5
In 2017, Johnson filed a complaint against the appellants in DeKalb County,
alleging that the defendants committed slander and libel3 under OCGA § 51-5-1 et
seq. Specifically, he complained of the following alleged acts and statements
pertaining to his handling of the excess funds: (1) RCO’s summary judgment motion
in the arbitration proceeding, in which RCO claimed that Johnson committed theft
when he deposited the excess funds into his personal bank account; (2) theft
accusations that Galbraith and Routh made by telephone to in-house counsel for the
Federal National Mortgage Association (“Fannie Mae”), as well as in other similar
calls; (3) verbal and written theft accusations by RCO (and Galbraith and/or Carter)
to McGowan and RCO’s director of human resources; and (4) theft accusations by
McGowan to an RCO associate attorney and Johnson’s former administrative
assistant.4
3
We note that “the requirements for slander per se apply to libel per se because
. . . the definition of slander in Georgia has been incorporated into the definition of
libel.” Cottrell v. Smith, 299 Ga. 517, 524 (II) (A) (788 SE2d 772) (2016).
4
In his amended complaint, Johnson indicates that he is not basing his
defamation claims on the filing of the Bar grievance documents. We also note that the
State Bar of Georgia dismissed the grievance filed against Johnson.
6
RCO filed a motion to dismiss or strike, arguing that Johnson’s claim arose out
of communications that are protected by the anti-SLAPP statute.5 Johnson then filed
a motion to strike portions of Galbraith’s affidavit, and all the exhibits attached to that
exhibit. After a hearing, the trial court ruled that RCO had not met its burden of
authenticating the exhibits attached to Galbraith’s affidavit, and the trial court
therefore granted Johnson’s motion. As to the appellants’ motion to dismiss, the trial
court found that although the alleged communications fell within the scope of the
anti-SLAPP statute, Johnson had demonstrated a probability of prevailing on his
defamation claim. The trial court therefore denied the appellants’ motion, and this
appeal followed.
1. First, the appellants contend that the trial court erred in granting Johnson’s
motion to strike portions of the Galbraith affidavit because it ignored circumstantial
evidence of authenticity for the attached exhibits.6 We agree.
5
The appellees also moved to strike the affidavit of Thomas Fruit, an
investigator whose services Johnson had used. The trial court denied that motion, but
we do not address that decision because RCO does not enumerate it as error.
Although the appellants challenge the affidavit in their reply brief, “this Court will
not consider arguments raised for the first time in a reply brief.” (Citation omitted.)
Barron v. Wells Fargo Bank, 332 Ga. App. 180, 187 (4) (769 SE2d 830) (2015).
6
In their appellate brief, the appellants allege that Johnson also
misappropriated client funds and funds belonging to third parties. The appellants
7
“We review a trial court’s decision on a motion to strike only for an abuse of
discretion.” (Citation omitted.) Hayward v. The Kroger Co., 317 Ga. App. 795, 797
(1) (733 SE2d 7) (2012). Nevertheless, “while the abuse-of-discretion standard
presupposes a range of possible conclusions that can be reached by a trial court with
regard to a particular evidentiary issue, it does not permit a clear error of judgment
or the application of the wrong legal standard.” (Citation omitted.) Koules v. SP5
Atlantic Retail Ventures, 330 Ga. App. 282, 285-286 (2) (767 SE2d 40) (2014).
Under Georgia’s Evidence Code, “authentication or identification as a
condition precedent to admissibility shall be satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” OCGA §
24-9-901 (a). Thus, “‘[a]uthentic’ does not mean that the document is a legally valid
or enforceable instrument; authenticity is merely a matter of identification, or
showing that this writing is the one in question.” (Citation and punctuation omitted.)
Koules, supra, 330 Ga. App. at 286 (2). “Once that prima facie case is established, the
evidence is admitted and the ultimate question of authenticity is decided by the
describe these allegations at length, and claim that the trial court “erred by
considering only the Luther Murray situation.” The trial court did not err in this
regard because Johnson’s defamation claims were specifically based on the theft
allegations as they concerned the excess funds that had been due to Mr. Murray.
8
factfinder.” (Citation and punctuation omitted.) Fed. Nat. Mtg. Assn. BR-027 v.
Harris, 343 Ga. App. 295, 299 (1) (807 SE2d 75) (2017). A proffering party may
authenticate documents through “[a]ppearance, contents, substance, internal patterns,
or other distinctive characteristics, taken in conjunction with circumstances.” OCGA
§ 24-9-901 (b) (4).
Here, Galbraith filed an affidavit, attaching 12 exhibits, comprised of copies
of e-mails, checks, bank receipts, ledgers, and letters.7 Many of the documents bear
company logos, letterheads, telephone and facsimile numbers, e-mail addresses and
legal disclaimers. The trial court’s order does not reflect that it considered the
contents, subject or appearance of any of the exhibits. Rather, the trial court ruled that
“pre-discovery evidence” did not provide “the necessary circumstantial context to
determine authenticity,” and it then struck paragraphs of Galbraith’s affidavit on the
basis that he had not laid a foundation for the admission of the exhibits.
At the hearing, however, the appellants argued that many of the e-mails were
retrieved from RCO’s server, because they had been stored there while Johnson
worked for RCO. Also, some of the exhibits attached to the Galbraith affidavit appear
7
In the trial court, Johnson conceded that paragraphs 1-8, as well as paragraph
36 and 38 of the affidavit were admissible or potentially admissible, but he objected
to the admissibility of the remaining paragraphs of the affidavit.
9
consistent with other evidence that was submitted to the trial court. For instance,
J&F’s attorney, Charles Pollack, averred that J&F engaged his firm’s services in July
2015, regarding the excess funds. The exhibits include e-mails with dates in July
2015, sent to and from law firm addresses, containing exchanges among “Charles I.
Pollack,” “Larry W. Johnson,” and “Joel A. Freedman,” apparently concerning the
excess funds. Another exhibit features a copy of a check which is substantially the
same as one that Johnson also submitted to the trial court.
Thus, there were indeed circumstances that the trial court should have
considered, along with the documents’ distinctive characteristics, to determine
authenticity.8 Koules, supra, 330 Ga. App. at 287-288 (2) (where counsel argued that
documents were produced by the opposing party in discovery, “the trial court should
have considered the contents, appearance, and substance of each document to
determine whether a reasonable juror could find the document was authentic under
the applicable standard.”); Nyankojo v. North Star Capital Acquisition, 298 Ga. App.
8We note that a print-out of an e-mail is not self-authenticating under Georgia
law. Koules, supra, 330 Ga. App. at 287 (2). Compare OCGA § 24-9-902 (list of self-
authenticating evidence).
10
6, 8 (679 SE2d 57) (2009).9 Thus, we vacate the trial court’s order granting Johnson’s
motion to strike. See Koules, supra, 330 Ga. App. at 288 (2). On remand, the trial
court should first determine the admissibility of the documents attached to the
Galbraith affidavit, before deciding whether any portions of the affidavit and exhibits
should be struck.
2. Next, the appellants argue that the trial court erred in denying their motion
to dismiss or strike Johnson’s complaint because accusations that Johnson committed
a theft of Mr. Murray’s funds were both true and privileged. We conclude that the
trial court did not err in denying the motion, but we further hold that the allegations
of defamation based on RCO’s summary judgment motion, as well as
communications to RCO’s human resources director, should have been struck from
the complaint.
(a) Georgia’s anti-SLAPP statute
9
Johnson argues that we should affirm the trial court’s order because all the
exhibits violate the best evidence rule and contain hearsay. The trial court did not rule
on these issues, and we cannot address them in the first instance.
State v. Wood, 338 Ga. App. 181, 188 (4), n.4 (790 SE2d 84) (2016) (given that
admission of evidence is within the discretion of the trial court, appellate court could
not determine evidentiary issue in the first instance).
11
The General Assembly enacted the anti-SLAPP statute to encourage Georgians
to participate “in matters of public significance and public interest through the
exercise of their constitutional rights of petition and freedom of speech.” OCGA § 9-
11.11.1 (a). Thus, the anti-SLAPP statute provides protection for claims
against a person or entity arising from any act of such person or entity
which could reasonably be construed as an act in furtherance of the
person’s or entity’s right of petition or free speech under the
Constitution of the United States or the Constitution of the State of
Georgia in connection with an issue of public interest or concern.
OCGA § 9-11-11.1 (b) (1). As is pertinent to this case, these acts include:
(1) Any written or oral statement or writing or petition made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law; [or]
(2) Any written or oral statement or writing or petition made in
connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized
by law.
OCGA § 9-11-11.1 (c) (1) - (2). A claim arising from such an act is subject to a
motion to strike, “unless the court determines that the nonmoving party has
12
established that there is a probability that the nonmoving party will prevail on the
claim.” (Emphasis supplied.) OCGA § 9-11-11.1 (b) (1).
Thus, in analyzing whether a complaint is subject to being struck under the
anti-SLAPP statute, we employ a two-step process. We must first determine whether
Johnson’s defamation claim arose from acts which “could reasonably be construed”
as either of the two types of conduct enumerated above. If so, “[t]he burden then
shifts to [Johnson] to demonstrate that there is a probability that []he will prevail on
h[is] claims at trial.” Neff v. McGee, 346 Ga. App. 522, 525 (816 SE2d 486) (2018).10
10
This “probability-of-prevailing” standard became a part of Georgia’s anti-
SLAPP statute when it was amended in 2016, Neff, supra, 346 Ga. App. at 524, n.2,
mirroring the standard in California’s anti-SLAPP statute. Compare Cal. Code Civ.
Proc. § 425.16 (b) (1). California’s interpretation and application of this “probability-
of-prevailing” standard, which we find persuasive, are as follows:
To satisfy the second prong, a plaintiff responding to an anti-SLAPP
motion must state and substantiate a legally sufficient claim. Put another
way, the plaintiff must demonstrate that the complaint is both legally
sufficient and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the plaintiff
is credited. . . . [W]e neither weigh credibility, nor compare the weight
of the evidence. Rather, we accept as true the evidence favorable to the
plaintiff . . . and evaluate the defendant’s evidence only to determine if
it has defeated that submitted by the plaintiff as a matter of law.
13
In determining whether Johnson’s claim was subject to a motion to dismiss or strike,
we consider “the pleadings and supporting and opposing affidavits stating the facts
upon which the liability or defense is based.” OCGA § 9-11-11.1 (b) (2). We also
remain mindful of the General Assembly’s directive to construe the statute “broadly”
to accomplish its declarations. OCGA § 9-11-11.1 (a).
(b) Whether appellants’ conduct was in furtherance of the covered right
Here, the trial court found that, when construing the statute broadly, all the
allegations of theft against Johnson could reasonably be construed as statements made
in connection with official proceedings, specifically, the State Bar’s review of the Bar
grievance, the ongoing arbitration between RCO and Johnson, or an apparent
Department of Justice investigation of J&F. The trial court’s ruling in this regard was
correct.
First, “issues before the State Bar involving conduct of attorneys are official
proceedings authorized by law.” (Punctuation omitted.) Jefferson v. Stripling, 316 Ga.
App. 197, 200 (1) (728 SE2d 826) (2012). We determine that the arbitration was also
an official proceeding for purposes of the statute. See, e.g., Green v. Flanagan, 317
(Citations and punctuation omitted.) Oasis West Realty, LLC v. Goldman, 250 P3d
1115, 1120 (Cal. 2011).
14
Ga. App. 152, 155 (1) (730 SE2d 161) (2012) (characterizing arbitration as an
alternative to a judicial proceeding); Lovett v. Capital Principles, 300 Ga. App. 799,
801 (686 SE2d 411) (2009) (Fulton County School Board’s review of issue was an
official proceeding authorized by law under the anti-SLAPP statute) (physical
precedent only). Having reviewed the record, we determine that the theft allegations
made in RCO’s summary judgment motion in the arbitration proceeding, the
supposed theft allegations made to Fannie Mae’s counsel, and those made among
RCO’s staff, all fell within the ambit of the statute as acts which could reasonably be
construed as statements, writings, or petitions made before or in connection with an
issue under consideration or review by an executive body, or an official proceeding
authorized by law.11
11
The record shows as follows: RCO’s director of human resources testified
that Galbraith told her about a Bar complaint. McGowan testified, “I think it’s pretty
fairly well known amongst the attorneys who worked together for a long time that
there was litigation between Mr. Johnson and RCO with regard to his termination”
and “that’s the context in which it’s been discussed.” When Johnson e-mailed Susan
Shaw, an associate attorney at RCO, requesting an affidavit pertaining to the
arbitration, Shaw responded that she had “bec[o]me aware of some of the
information/background.” In an e-mail, Fannie Mae’s counsel told Johnson that they
were “made aware of the pending arbitration between the parties.” Although
Johnson’s former administrative assistant testified that McGowan had told her that
Johnson had deposited Mr. Murray’s funds without his permission, this administrative
assistant also handled Department of Justice subpoenas directed to J&F, and there
was discussion among the staff about “what to do” with them.
15
(c) Whether Johnson demonstrated a probability of prevailing on his
claims.
We now examine whether Johnson demonstrated a “probability” of prevailing
on his various defamation claims. “To establish a cause of action for defamation, a
plaintiff must submit evidence of (1) a false and defamatory statement about himself;
(2) an unprivileged communication to a third party; (3) fault by the defendant
amounting at least to negligence; and (4) special damages or defamatory words
‘injurious on their face.’” (Citation omitted). Chaney v. Harrison & Lynam, LLC, 308
Ga. App. 808, 811 (1) (708 SE2d 672) (2011).
Construing the pleadings in the light most favorable to Johnson, and accepting
as true the evidence favorable to him, we first find that Johnson has made a prima
facie showing of the first element of defamation — that the allegations that he
committed theft with regards to the excess funds were false and defamatory.
Johnson’s pleadings and affidavits show that despite repeated attempts by J&F and
Johnson, Mr. Murray never attempted to cash the check for the excess funds,
explained that he did not want the money, and also stated that Johnson could keep the
funds. See OCGA § 16-8-10 (2) - (3) (a person who acts “under an honest claim of
right to the property or service involved,” or “under a right to acquire or dispose of
16
the property as he or she did” does not commit theft); Cincinnati Ins. Co. v. Tire
Master of Thomaston, 183 Ga. App. 64, 65 (357 SE2d 812) (1987); Cottrell v. Smith,
299 Ga. 517, 524 (II) (A) (788 SE2d 772) (2016) (“imputing to another a crime
punishable by law,” constitutes defamation per se) (punctuation omitted). Johnson has
also made a prima facie showing of damages. See OCGA § 51-5-4 (a) (1), (b) (when
one commits slander by imputing to another a crime punishable by law, “damage is
inferred”).
Thus, we turn to whether Johnson has made a prima facie showing on the
remaining two elements of his defamation claim — an unprivileged communication
to a third party, and fault by the appellants amounting at least to negligence. In doing
so, we highlight that “[c]ommunications which are afforded an absolute privilege
cannot form the basis of a defamation action, regardless of the falsity of the
statements or the speaker’s malicious intent; conditionally privileged statements, on
the other hand, are actionable upon a showing of malice.” (Citation omitted.) Renton
v. Watson, 319 Ga. App. 896, 900 (2) (739 SE2d 19) (2013).
(i) Theft allegations in RCO’s summary judgment motion in the
arbitration proceeding were subject to absolute privilege.
17
OCGA § 51-5-8 extends absolute privilege to “[a]ll charges, allegations, and
averments contained in regular pleadings filed in a court of competent jurisdiction,
which are pertinent and material to the relief sought, whether legally sufficient to
obtain it or not . . . . However false and malicious such charges, allegations, and
averments may be, they shall not be deemed libelous.” See also Simmons v. Futral,
262 Ga. App. 838, 839 (586 SE2d 732) (2003). “Absolute privilege is based upon a
public policy determination that the importance of one’s ability to be free from
restraint when engaged in legal processes outweighs a defamed party’s right to seek
legal redress.” Saye v. Deloitte & Touche, 295 Ga. App. 128, 131 (1) (a) (670 SE2d
818) (2008). Thus, “we have generally described the coverage of the privilege to
include . . . acts of legal process.” (Citations and punctuation omitted.) Williams v.
Stepler, 227 Ga. App. 591, 595 (3) (490 SE2d 167) (1997).
We find that RCO’s allegations in its summary judgment motion were
absolutely privileged and could not form the basis of a defamation claim. Here, RCO
filed this pleading in an ongoing arbitration before the American Arbitration
Association, following Johnson’s claim for money damages from RCO. For purposes
of the arbitration, the parties were deposed, conducted discovery, and submitted
various exhibits to the arbitrator for his consideration, and the arbitrator was tasked
18
with ruling on whether RCO was entitled to terminate Johnson with cause. See Green,
supra, 317 Ga. App. at 155 (1) (analogizing an arbitration to a quasi-judicial
proceeding).12 Compare Davis v. Shavers, 269 Ga. 75, 76 (495 SE2d 23) (1998)
(absolute privilege did not apply to recall application against elected official because
procedure prohibited discovery and evidentiary hearings, and it did not involve
determining the truth of the defamatory statements in the application). Because the
allegations in RCO’s summary judgment motion were absolutely privileged, Johnson
did not demonstrate a probability of succeeding on a defamation claim based on
RCO’s summary judgment motion. Skoglund v. Durham, 233 Ga. App. 158, 161 (b)
(502 SE2d 814) (1998) (absolute privilege extended to statement contained in a
“Request to Investigate” filed with the Georgia Real Estate Commission) (physical
precedent only); Cox v. Brazo, 165 Ga. App. 888, 889 (4) (303 SE2d 471) (1983)
(extending absolute privilege to statements made to the Employment Security
Agency), aff’d, 251 Ga. 491 (1983); Watkins v. Laser/Print-Atlanta, Inc., 183 Ga.
12See also W. Mass. Blasting Corp. v. Metro. & Cas. Ins. Co., 783 A2d 398,
403, n.3 (R.I. 2001) (“statements made in quasi-judicial proceedings such as
arbitrations shall be privileged against suits for defamation.”); Bushell v. Caterpillar,
Inc., 683 NE2d 1286, 1289 (Ill. App. Ct. 1997) (“arbitration proceedings constituted
quasi-judicial proceedings, and therefore defendants [were] absolutely immune from
suit for communications made in plaintiff’s arbitration hearing.”).
19
App. 172, 173 (2) (358 SE2d 477) (1987) (extending the privilege to affidavit for
arrest warrant and separation notice submitted to the Department of Labor). Thus,
insofar as Johnson relied on RCO’s summary judgment motion as a basis for his
defamation claim, this allegation should have been struck from the complaint.13
(ii) Statements made to Fannie Mae’s counsel and the
Wider Mortgage Industry
The appellants argue that the trial court erred in ruling that Johnson
demonstrated a probability of succeeding on a defamation claim based on theft
accusations allegedly made to Fannie Mae’s counsel. We discern no error.
In his complaint, Johnson claimed that Galbraith made the same theft
accusations from the summary judgment motion to counsel at Fannie Mae, as well as
others in the mortgage industry. First, Johnson has made a prima facie showing that
13
Emory Univ. v. Metro Atlanta Task Force for the Homeless, 320 Ga. App.
442, 444 (1) (740 SE2d 219) (2013) (“where a complaint asserts multiple claims and
allegations, only those claims that are based on an act that falls under the scope of the
anti-SLAPP statute are afforded the procedural protections of the statute . . . .”); Baral
v. Schnitt, 376 P3d 604, 615-616 (II) (C) (Cal. 2016) (“an anti-SLAPP motion, like
a conventional motion to strike, may be used to attack parts of a count as pleaded.”
. . . “Thus, in cases involving allegations of both protected and unprotected activity,
the plaintiff is required to establish a probability of prevailing on any claim for relief
based on allegations of protected activity. Unless the plaintiff can do so, the claim and
its corresponding allegations must be stricken.”).
20
the theft allegations were communicated to Fannie Mae’s counsel via a telephone
call.14 Saye, supra, 295 Ga. App. at 133 (1) (b) (publication is generally achieved by
“communicating a defamatory statement to anyone other than the person being
defamed.”). With regards to privilege, we reject the appellants’ contention that these
communications were subject to absolute privilege as “[c]ommunications related to,
preparatory to, or in anticipation of litigation.” The appellants advance this argument
on the basis that California law recognizes such a privilege. But California has a
specific statute that embodies a “litigation privilege,” Neville v. Chudacoff, 160 Cal.
App. 4th 1255, 1262 (Cal. Ct. App. 2008), and Georgia does not.
14
There is ambiguity as to precisely what Routh (RCO’s founding partner) and
Galbraith said to Fannie Mae’s counsel. While being deposed, Routh was asked about
a call concerning “misconduct on Mr. Johnson’s part,” and Routh confirmed that such
a conversation occurred with him, Galbraith, and Fannie Mae’s counsel. However,
when Routh was asked about what was said in the call, counsel did not allow him to
answer. Although Johnson has not presented evidence of the statement(s)
communicated to Fannie Mae’s counsel, this is not fatal to his claim at this juncture.
The filing of a motion to dismiss under the anti-SLAPP statute stays all discovery.
OCGA § 9-11-11.1 (1) (d). Again, Johnson need only state and substantiate a legally
sufficient claim, and we construe the pleadings in the light most favorable to Johnson
as the nonmovant, with any doubts resolved in his favor. It is possible that, with
additional discovery, Johnson can produce evidence of the statement(s). See Renton,
supra, 319 Ga. App. at 902 (2) (plaintiff’s broad and conclusory allegation that
defendant made “false” statements “to third parties without privilege” was not fatal
to defamation claim at the motion-to-dismiss stage). For this reason, we also reject
the appellants’ suggestion that their statements were conditionally privileged as “fair
and honest reports of court proceedings.”
21
The question, therefore, is whether the statements were conditionally privileged
under OCGA § 51-5-7. In an action for slander or libel, a defense of conditional
privilege requires (1) good faith; (2) an interest to be upheld; (3) a statement properly
limited in its scope and occasion; and (4) publication to proper persons. Smith v.
DiFrancesco, 341 Ga. App. 786, 790 (2) (802 SE2d 69) (2017). “The absence of any
one or more of these constituent elements will, as a general rule, prevent the party
from relying on the privilege.” (Citation omitted.) Dominy v. Shumpert, 235 Ga. App.
500, 504-505 (2) (510 SE2d 81) (1998). “The question of conditional privilege is
typically for the jury.” (Citation omitted.) Smith, supra, 341 Ga. App. at 790 (2).
Here, Johnson pleaded and averred that Routh and Galbraith did not relay theft
allegations to Fannie Mae’s counsel in good faith, but rather, in an attempt to
assassinate his character, given that the statements were not made in connection with
any Bar grievance or investigation, and because Routh and Galbraith were not
offering Fannie Mae any legal advice. The appellants’ evidence does not defeat
Johnson’s claim as a matter of law. Indeed, RCO’s pleadings and affidavits do not
evince any explanation of why Fannie Mae’s attorneys were “proper persons” to
whom they needed to relay any theft allegations against Johnson. Although RCO
argued that it was advised to “disclose or report [Johnson’s] misconduct to affected
22
clients,” the appellants have never claimed that Routh and Galbraith communicated
the allegations to Fannie Mae’s counsel in an attorney-client context. Compare Saye,
295 Ga. App. at 132 (1) (a) (extending conditional privilege to communications
between an accountant and its audit client). See also OCGA § 51-5-7 (extending
conditional privilege to “[s]tatements made in good faith in the performance of a legal
or moral private duty.”). Accordingly, the trial court correctly found that Johnson
made a prima facie showing that the communications to Fannie Mae’s counsel and
others in the mortgage industry were not properly limited so as to be conditionally
privileged.15 Johnson also made a prima facie showing of fault, amounting to at least
negligence, because malice is inferred where the slander per se is actionable and the
utterance is not privileged. Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822, 829
(4) (67 SE2d 600) (1951); OCGA § 51-5-5.16 Thus, when we construe the pleadings
15
The trial court noted that there was no evidence that Fannie Mae was RCO’s
client.
16
The appellants argue that this case must be remanded because the trial court
did not assess the element of fault. The trial court did, however, address inferred
malice. There was no dispute in this case that Johnson is a private figure, and thus,
Johnson would have only been required to make a showing that the appellants acted
with ordinary negligence. Riddle v. Golden Isle Broadcasting, 275 Ga. App. 701, 703
(1) (621 SE2d 822) (2005). Given the trial court’s implicit finding of inferred malice,
we are not persuaded by the appellants’ argument that Johnson adduced no evidence
of fault.
23
in the light most favorable to Johnson, we conclude that he demonstrated a
probability of prevailing on his defamation claim as it pertained to the allegations
regarding defamatory communications to Fannie Mae’s counsel.
(iii) Law firm communications.
We now examine the defamation claim insofar as it stems from the appellants’
communication of theft accusations to RCO’s director of human resources, senior
counsel, a former RCO associate attorney, and Johnson’s former administrative
assistant. The appellants contend that Johnson’s claim must fail in this regard because
these communications were all intracorporate and therefore were not published. We
find that this exception applies only to the statements made to RCO’s human
resources director, and that Johnson otherwise demonstrated a probability of
prevailing on his defamation claim based on these law firm communications.
As discussed above, publication of defamatory information generally occurs
when it is communicated to anyone other than the person being defamed. Saye, supra,
295 Ga. App. at 133. However,
Georgia courts have further refined the broad definition of publication
so that, when the communication is intracorporate, or between members
24
of unincorporated groups or associations, and is heard by one who,
because of his/her duty or authority has reason to receive information,
there is no publication of the allegedly slanderous material, and without
publication, there is no cause of action for slander.
(Citation omitted.) Fink v. Dodd, 286 Ga. App. 363, 367 (1) (b) (649 SE2d 359)
(2007). Importantly, though, “not all intracorporate statements come within the
exception, only those statements received by one who because of his duty or authority
has reason to receive the information.” Scouten v. Amerisave Mtg. Corp., 283 Ga. 72,
73 (1) (656 SE2d 820) (2008).
The appellants argue that Galbraith (RCO’s general counsel) shared evidence
from the arbitration with the director of human resources because she was responsible
for managing human relations for the firm. To the extent that theft allegations were
relayed to the director of human resources, we agree that her position would have
given her reason to receive that information. This is particularly so because Johnson
was terminated for cause, i.e., “theft, dishonesty, fraud, gross negligence or willful
misconduct,” and he then filed an arbitration claim against RCO based on this
termination. See Kurtz v. Williams, 188 Ga. App. 14, 15 (3) (371 SE2d 878) (1988)
(“If a personnel report is written by a supervisor who has the duty to write the report
and it is sent to the keeper of personnel records, there is no publication of that
25
report.”). Thus, these statements were not published and would not have formed the
basis for Johnson’s defamation claim.
As it pertains to McGowan (senior counsel), a former associate attorney at
RCO, and Johnson’s former administrative assistant, we cannot say, as a matter of
law, that any of these persons were subject to the intracorporate exception. There is
no evidence that McGowan supervised or managed Johnson, or that she was involved
in his termination, any investigation of Johnson, or the filing of any Bar grievance
against him. Indeed, McGowan testified that she asked for a copy of the Bar
complaint because she was “curious about the ongoing litigation” from a “litigator’s
perspective.” Although McGowan knew that subpoenas were coming from the
Department of Justice to J&F, this does not establish that she had reason to be
advised of theft allegations against Johnson. McGowan’s own testimony shows that
when the administrative assistant informed her of the subpoenas, she directed her to
speak with the managing shareholder about where to direct them, and she was “out
of it at that point.” Compare Terrell v. Holmes, 226 Ga. App. 341, 343 (1) (487 SE2d
6) (1997) (vice president of academic affairs had reason to be advised of plaintiff’s
alleged acts of sexual harassment in order to provide input regarding the appropriate
26
action to be taken against plaintiff, and because he was responsible for school’s
sexual harassment policy).
Similarly, we do not find that either Johnson’s former administrative assistant
or the associate attorney had any reason to be informed of theft accusations. Insofar
as the administrative assistant was in possession of the subpoenas, the evidence
shows that she merely needed to know where to direct them.17 And as with the
communications to Fannie Mae’s counsel, the trial court correctly found that Johnson
made a prima facie showing that these communications were not limited so as to be
conditionally privileged.18 Thus, Johnson demonstrated a probability that he would
prevail on his defamation claim based on these law firm communications.
In sum, the trial court erred in striking portions of the Galbraith affidavit and
the attached exhibits without considering circumstantial evidence of the exhibits’
authenticity, and the trial court should do so on remand. The trial court correctly
denied the appellants’ motion to dismiss Johnson’s complaint, but Johnson could not
17
The appellants argue that even if the intracorporate exception did not apply
to these communications, they were subject to an attorney-client privilege. This
argument is not meritorious because there is no evidence of any such relationship.
18
As previously discussed, malice is inferred where the slander per se is
actionable and the utterance is not privileged.
27
maintain any defamation action based on his allegations of slanderous statements in
RCO’s summary judgment motion or those made to RCO’s director of human
resources. Thus, these allegations should have been struck from the complaint.
Judgment affirmed in part, vacated in part, and case remanded with direction.
Brown and Goss, JJ., concur.
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