Conley v. Southern Import Sales, Inc.

• Decision Date: 19 September 1974
• Docket Number: Civ. A. No. 74-148-N.
• Citation: 382 F. Supp. 121
• Parties: Charles S. CONLEY, Plaintiff, v. SOUTHERN IMPORT SALES, INC., a corporation, d/b/a Atlanta Wig Boutique, Defendant.
• Court: U.S. District Court — Middle District of Alabama

382 F. Supp. 121

Charles S. CONLEY, Plaintiff, v. SOUTHERN IMPORT SALES, INC., a corporation, d/b/a Atlanta Wig Boutique, Defendant.

Civ. A. No. 74-148-N.

United States District Court, M. D. Alabama, N. D.

September 19, 1974.

Robert L. Cheek, and Charles S. Conley, Montgomery, Ala., for plaintiff.

N. T. Braswell, III, Rushton, Stakely, Johnston & Garrett, Montgomery, Ala., for defendant.

FINDINGS OF FACT

VARNER, District Judge.

This cause is submitted for final judgment on the pleadings, pretrial order, and evidence taken in open Court wherein both parties appeared by counsel.

Plaintiff, a practicing attorney, claimed damages suffered as a result of the publication by Defendant, Southern Import Sales, a/k/a Atlanta Wig Boutique, of an allegedly libelous letter. At the trial of this case on September 16, 1974, the evidence established, and this Court finds, the following facts. Plaintiff was retained as legal counsel by the Defendant in 1972. On October 19, 1972, there was a trial in the Montgomery County Court of a case styled R. W. Brooks, d/b/a Brooks Heating and Ventilating Service v. Atlanta Wig Company (hereinafter referred to as the Brooks case). Plaintiff, along with a representative of Southern Import Sales, appeared at this trial, although it is not clear what, if any, action was then taken. A judgment for $250.00, the amount claimed, was duly entered against Atlanta Wig Company. On November 6, 1972, Plaintiff wrote to Defendant that the Brooks case could be settled for $150.00, and he requested Defendant to forward a check in that amount if it wished him to settle the case. The check requested was sent to Plaintiff, who tendered it to Hon. Elno Smith, attorney for Brooks Heating and Ventilating. Mr. Smith returned the check and rejected the settlement. On February 1, 1973, Plaintiff returned the check to Defendant with a letter stating that the settlement had not been accomplished. Plaintiff's fee for the above case was $75.00, paid in advance.

On February 1, 1974, Defendant, through its agent, wrote the allegedly libelous letter to Plaintiff as follows:

"Charles S. Conley 315 South Bainbridge Street P.O. Drawer 4038 Montgomery, Alabama 36104 Re: Brooks Heating & Air Cond Service vs: Atlanta Wig Co Case No. 5684

"Dear Sir,

"On November 16th, 1972, you were sent a payment of $150.00 that you requested to close this case, and a copy of your letter is enclosed for you to review.

"We have since been required to pay this bill, being as judgment was awarded, as we failed to show up for court, and were required to pay the full bill. Based on your letter (copy enclosed), we understood this case was setteled (sic). As it turns out, your letter was mis-leading (sic) and for all practical matters just plain un-true (sic).

"We hereby demand that you return the $150.00 we paid to you, plus $6.60 `court cost', plus the $150.00 we paid to you as a retainer for your services that were not received.

"Payment is expected within five days after receipt of this letter, or we will be forced to contact the Alabama State Bar Assc. for their advice.

"Thank you,

/s/ James M. Crow James M. Crow Vice President JMC/ac encl cc; Alabama Bar Assc cc; Montgomery Chamber of Commerce cc; State of Alabama Att. General"

Undenied direct evidence shows that the Alabama State Bar and the Alabama Attorney General received copies of the letter. Mr. William H. Morrow, general counsel for the Alabama State Bar, wrote to Plaintiff on March 13, 1974, on behalf of the Grievance Committee, and requested a written explanation of the complaint contained in the allegedly libelous letter. Plaintiff has not been informed of final disposition of the matter. The Plaintiff has received no direct communication from the Alabama Attorney General or from the Montgomery Chamber of Commerce regarding this matter. The only evidence of publication of the letter to the Chamber of Commerce is the notation on the bottom of the letter which this Court construes as an admission of the Defendant's agent who wrote the letter that he mailed a copy thereof properly addressed with sufficient postage.

CONCLUSIONS OF LAW

The letter in question contains statements that the Plaintiff, a practicing attorney representing the Defendant in the Brooks case, was paid $150.00 and $6.60 court costs for settlement of the Brooks case, and $150.00 as a fee for Plaintiff's services. The letter points out that the Defendant, after having paid the settlement, understood that the case had been settled, that because of that belief it "failed to show up for court and were (sic) required to pay the full bill". Independent evidence showed the full bill to be $250.00. The letter then contained a demand that the Plaintiff return the $150.00 payment for settlement, the $6.60 payment for court costs, and the $150.00 fee "for your services that were not received". In short, the letter charges that the Plaintiff-Attorney received a fee of $150.00 for representing the Defendant in the Brooks case when he did nothing in order to earn the fee and that he kept the unearned fee, the court costs and the sum advanced for settlement for his own purposes. This letter was calculated to injure an attorney in his profession. Its natural and fair meaning would tend to bring the Plaintiff into public hatred, contempt or ridicule and injure him in his profession. It is difficult to conceive how an attorney could be more completely injured in his reputation than by reports that he had received fees and failed to give any services therefor, that he had allowed a default judgment to be taken against his client after having been paid to represent them, and that he had converted funds paid by his client for settlement to his own use to the detriment of both his client and the party on the other side of the litigation. It is, therefore, the opinion of this Court that the letter contained libelous statements regarding the Plaintiff, it having been shown that the amount of the fee was only $75.00, that the Plaintiff did appear in Court with a representative of the Defendant at the time evidence was taken on which the judgment was entered, and that the proposed $150.00 settlement of the case was declined by the plaintiff in the Brooks case, and the check for the proposed payment and the costs thereunto pertaining were returned to the Defendant by the Plaintiff within a reasonable period of time.

A statement imputing a want of integrity or capacity in an attorney is actionable per se. Bleecker v. Drury, 149 F.2d 770 (2 Cir.); Kihneman v. Humble Oil & Refining Co., 312 F.Supp. 34 (D.C.La., 1970). It, therefore, clearly appears that the statements were false when made and that the Defendant's agent who made the statements had reason to know that they were false or might have ascertained the truth thereof upon reasonable inquiry and recklessly neglected to do so.

The Defendant then insists that the libel was not published. Obviously, the notation at the foot of the letter was the statement of the Defendant that copies were sent to the Alabama Bar Association, the Attorney General of the State of Alabama...