Chaney v. Harrison & Lynam Llc.Chaney v. Harrison & Lynam

• Decision Date: 25 March 2011
• Docket Number: A11A0195.,Nos. A10A2190,s. A10A2190
• Citation: 308 Ga.App. 808,708 S.E.2d 672
• Court: Georgia Court of Appeals
• Parties: CHANEYv.HARRISON & LYNAM, LLC.Chaneyv.Harrison & Lynam, LLC et al.

308 Ga.App. 808

708 S.E.2d 672

11 FCDR 1175

CHANEY

v.HARRISON & LYNAM, LLC.Chaney

v.Harrison & Lynam, LLC et al.

Nos. A10A2190

A11A0195.

Court of Appeals of Georgia.

March 25, 2011.

James C. Gaulden Jr., for appellant.Lamar, Archer & Cofrin, Robert C. Lamar, Keith Allen Pittman, Atlanta, for appellee.ADAMS, Judge.

In Case No. A10A2190, Justin Chaney asserts that the trial court erred in denying, on reconsideration, his motion for summary judgment on claims of defamation, tortious interference with business relations, conspiracy and punitive damages, filed against him by Harrison & Lynam, LLC (“H & L”). In Case No. A11A0195, Vanessa Chaney asserts that the trial court erred in denying, on reconsideration, her motion for summary judgment on similar counterclaims asserted by H & L in response to a suit she filed against Michael T. Lynam, Charles C. Harrison and H & L for breach of contract, breach of warranty, nuisance, negligent construction, negligence per se, and fraud in connection with the construction of the Chaneys' home. For the reasons set forth below, we reverse the denial of the Chaneys' motions for summary judgment and affirm the denial of Justin Chaney's motion to join Harrison and Lynam as defendants in counterclaim.

On or about April 29, 2003, the Chaneys contracted to buy a house built by H & L in the City of Atlanta. In October 2003, prior to the closing on the house, H & L sent the Chaneys a property disclosure statement acknowledging that the property had “present drainage or flooding problems.” H & L asserts that it took some steps prior to the closing to direct rainwater away from the Chaneys' property, and the Chaneys contend that they relied upon the company's assurances that the problems had been fixed in deciding to close the transaction. At or around the time of the closing in January 2004, H & L personnel noticed that stormwater from an adjacent road was collecting on the Chaneys' property. H & L undertook to correct the problem by building a catch basin at the company's expense, although the company asserts that it was not contractually obligated to make the repairs.

These measures apparently did not solve the drainage problems, and later in 2004, H & L gave the Chaneys and their neighbors a written proposal to address the problem. H & L subsequently replaced a grating at the Chaneys' catch basin and made adjustments to the basin. But the Chaneys remained dissatisfied with the company's efforts. And at some point, they began to question whether the City of Atlanta also bore some responsibility for their drainage problems.

In September 2005, when the drainage issue remained unresolved, the Chaneys posted a sign in their yard reading, “ASK OUR OPINION WHY NOT TO BUY A HARRISON & LYNAM HOME.” A number of the Chaneys' neighbors erected similar signs. Keith Sharp, a real estate agent who had sold a number of H & L homes in the neighborhood, assisted H & L in trying to resolve the situation. He scheduled a meeting attended by the Chaneys, their neighbors, Harrison, Lynam and an assistant to the City council. A short time later, the Chaneys and their neighbors removed their signs in exchange for what they considered to be a commitment from H & L to address the items remaining on their punch list and to take additional steps to address the drainage issues. Although H & L asserts that it took further action to remedy the drainage problems, the Chaneys and their neighbors remained dissatisfied.

Accordingly, on July 23, 2006, a day on which H & L had scheduled an open house in the neighborhood, the Chaneys and their neighbors re-erected their signs. Two days later, on July 25, Justin Chaney sent an e-mail to six City officials suggesting that the City had responsibility for the drainage problems and stating that he was preparing for litigation against H & L for “the obvious negligent construction concerning drainage on my property” and did not want to have to sue the City as well (the “July 25 E–Mail”). This e-mail also noted that “H & L ha[s] apparently damaged a preexisting storm drain that lies under the road,” an allegation H & L denies. On July 28, 2006, the Chaneys were cited for violating a City sign ordinance, and the next day, Justin Chaney sent an e-mail to his neighbors, stating “my first inclination is not to take your sign down until the work was complete and—but I am open to any ideas. I think [H & L is] feeling the pain with the two houses they've been sitting on across from us” (the “July 29 E–Mail”).

Then, on July 31, 2006, Justin Chaney sent a letter to the City of Atlanta to the attention of a City zoning inspector, with copies to four City officials, including the mayor and a councilwoman, in response to the sign ordinance citation. The letter stated that his neighbors and he had formed a political action committee (“PAC”) with the stated intention to “educate prospective home buyers of alleged negligent construction and breach of contract issues” involving H & L (the “July 31 Letter”). The letter argued that as a result, their signs should be considered more in the nature of campaign signs and thus subject to less stringent requirements. And on August 10, 2006, Justin Chaney sent a letter to real estate agent Sharp's broker, seeking to ensure that Sharp disclose their claims of “negligent construction” and “pervasive shoddy workmanship” by H & L to prospective buyers (the “August 10 Letter”).

H & L filed suit against Justin Chaney ¹ that same day. Chaney counterclaimed asserting claims arising out of the construction of the house. Justin Chaney subsequently moved to add Harrison and Lynam, individually, as defendants to his counterclaim and also moved for summary judgment on H & L's claims. Vanessa Chaney filed her complaint against H & L, Lynam and Harrison on January 3, 2008, and the defendants filed their counterclaim in response. Vanessa Chaney subsequently moved for summary judgment on the counterclaim.

The trial court initially granted both of the Chaneys' motions for summary judgment, and denied Justin Chaney's motion for joinder of parties. But in granting summary judgment to the Chaneys, the trial court limited its analysis to the Chaneys' yard sign. H & L moved for reconsideration, noting that their claims also addressed allegedly defamatory e-mails and correspondence, in addition to the sign. The motion additionally asked for reconsideration of the finding that the sign was not defamatory. Justin Chaney also moved for reconsideration of the denial of his motion to add parties.

On reconsideration, the trial court again denied Justin Chaney's motion for joinder but reversed its earlier position and denied both Chaneys' motions for summary judgment without explanation. The trial court certified these orders for immediate review, and this Court granted the Chaneys' applications for interlocutory appeal. The cases were later consolidated for appeal.

1. Defamation—The Chaneys assert that the trial court erred in denying their motions for summary judgment on H & L's defamation claim. H & L asserts claims based upon the Chaneys' yard sign and by extension their communications with prospective buyers in connection with the sign. H & L also asserts a claim for defamation based upon letters and e-mails sent by Justin Chaney.

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.” [Cit.]

Lewis v. Meredith Corp., 293 Ga.App. 747, 748(1), 667 S.E.2d 716 (2008).

(a) Yard Sign—The Chaneys' yard sign invited the public at large to ask the Chaneys' “opinion why not to buy a Harrison & Lynam home.” The Chaneys contend the sign is not defamatory because it is simply a statement of their opinion. H & L counters that the sign is actionable because it implies “defamatory facts.” See Bellemead, LLC v. Stoker, 280 Ga. 635, 638, 631 S.E.2d 693 (2006), citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18–21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990).

As a general rule, a mere statement of opinion is not considered defamatory, and

a defamation action will lie only for a statement of fact. This is because a statement that reflects an opinion or subjective assessment, as to which reasonable minds could differ, cannot be proved false. As a result, a plaintiff who claims that a published opinion defamed him will generally be unable to carry his burden of proving the essential element of falsity.

(Footnote omitted.) Gettner v. Fitzgerald, 297 Ga.App. 258, 261(1)(a), 677 S.E.2d 149 (2009). See also Kendrick v. Jaeger, 210 Ga.App. 376, 377, 436 S.E.2d 92 (1993) (“[T]he expression of opinion on matters with respect to which reasonable men might entertain differing opinions is not libelous. An assertion that cannot be proved false cannot be held libelous.”) (citation and punctuation omitted); Bergen v. Martindale–Hubbell, 176 Ga.App. 745, 747(3), 337 S.E.2d 770 (1985) (“wholly subjective” statement “not capable of proof or disproof” does not constitute defamation). Nevertheless,

[t]here is ... no wholesale defamation exception for anything that might be labeled “opinion.” An opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or imply defamatory facts about the plaintiff that are capable of being proved false.

(Punctuation and footnotes omitted.) Gast v. Brittain, 277 Ga. 340, 341, 589 S.E.2d 63 (2003).

Applying these principles, we conclude that the Chaneys' sign does not constitute defamation. The sign itself does not even express an opinion; rather, it is an invitation to ask the Chaneys for their opinion. At most, the sign implies that the Chaneys have a negative opinion of H & L homes, but it...