Cox Enterprises, Inc. v. Nix

• Decision Date: 25 February 2002
• Docket Number: No. S01G0743.,S01G0743.
• Parties: COX ENTERPRISES, INC. et al. v. NIX.
• Court: Georgia Supreme Court

560 S.E.2d 650

274 Ga. 801

COX ENTERPRISES, INC. et al. v. NIX.

No. S01G0743.

Supreme Court of Georgia.

February 25, 2002.

Dow, Lohnes & Albertson, Peter C. Canfield, Thomas M. Clyde, Atlanta, for appellant.

Garland, Samuel & Loeb, Edward T.M. Garland, Nelson O. Tyrone III, Atlanta, for appellee.

BENHAM, Justice.

This appeal arises from a suit for defamation, invasion of privacy, and intentional infliction of emotional distress filed by attorney Franklin R. Nix against Cox Enterprises, doing business as the Atlanta Journal-Constitution; an editor; and a number of unnamed individuals (hereinafter, collectively, "Cox"). The suit was based on two related articles published in the Journal-Constitution on March 9, 1997, in one of which Nix was mentioned.¹ The Court of Appeals affirmed the grant of summary judgment to Cox with regard to the claims for invasion of privacy and intentional infliction of emotional distress, but reversed with regard to the defamation claim. Nix v. Cox Enterprises, 247 Ga.App. 689, 545 S.E.2d 319 (2001). This Court granted Cox's petition for certiorari to consider whether Cox also was entitled to summary judgment on the defamation count also.

1. The essential holding of the Court of Appeals' opinion is that although the portion of the article which mentioned Nix was a substantially accurate report of a judicial proceeding involving Nix, there was material in the articles which did not come from the judicial proceedings and which "invidiously compared Nix's conduct to lawyers who had committed criminal conduct against their clients; this led the reader to reasonably infer that Nix's conduct had been criminal from the context of the entire article." Id. at 690, 545 S.E.2d 319. We conclude from a review of the record that the description of the article on which the Court of Appeals based its holding is not accurate and that its judgment based on that holding is error.

The description of the articles in the Court of Appeals' opinion begins with the statement that Nix sued Cox for libel per se for "listing him in two published articles ... as one of seven examples of criminal rogue lawyers, accusing him of attempting to solicit clients from another lawyer." Id. at 689, 545 S.E.2d 319. In fact, Nix was mentioned in only one of the two articles; the articles mentioned nine lawyers, not all of whom were accused of criminal conduct; and nowhere in either article were any attorneys specifically described as "criminal rogue lawyers." Neither did either article accuse Nix of soliciting clients, although one did report on a judicial proceeding (accurately, as the Court of Appeals notes) in which Nix was admonished for that behavior. The Court of Appeals' opinion states that Cox placed Nix's "name immediately after the account of six lawyers charged with stealing their clients' money or convicted of felonies as examples of criminal rogue lawyers requiring State Bar discipline." Id. at 690, 545 S.E.2d 319. However, in the single article in which Nix was mentioned, only two lawyers were mentioned before him, only one of whom was accused of a crime, giving a bad check. The Court of Appeals' opinion states that the mention of Nix was inserted "without disassociating language from the lawyers charged with criminal conduct." Id. However, after the discussion of the lawyer who gave a bad check, the article contained the following language which effectively disassociated that discussion from the paragraphs which followed, turning from criminal behavior to civil suits involving lawyers: "Harwell [the person given a bad check by a lawyer] isn't the only person these days who questions the system that is supposed to monitor lawyers. From high crimes of murder to minor infractions such as not returning calls, public confidence in lawyers has been eroded by bitter disputes between attorneys and their clients." Following that transition from criminal to civil matters, the article mentioned a lawsuit brought against an attorney by his clients and then discussed a lawsuit brought against Nix by another attorney, concluding with the observation that both lawsuits were still pending. While the articles mentioned several more attorneys involved in or accused of misconduct, the overwhelming bulk of the articles was a discussion of the process of lawyer discipline, the report of a commission created to study that subject, and expressions of concern that the process was, as presently conducted, inadequate.

"`As a general rule, the question whether a particular publication is libelous, that is, whether the published statement was defamatory, is a question for the jury. However, if the statement is not ambiguous and can reasonably have but one interpretation, the question is one of law....' [Cit.] `In considering whether a writing is defamatory as a

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