Empire S. Realty Advisors, LLC v. Younan

• Decision Date: 18 January 2023
• Docket Number: A22A1256
• Parties: EMPIRE SOUTH REALTY ADVISORS, LLC et al. v. YOUNAN.
• Court: Georgia Court of Appeals

EMPIRE SOUTH REALTY ADVISORS, LLC et al. v. YOUNAN.

No. A22A1256

Court of Appeals of Georgia, Second Division

January 18, 2023

RICKMAN, C. J., MILLER, P. J., PIPKIN, J.

Miller, Presiding Judge.

In this defamation case, plaintiffs Empire South Realty Advisors, LLC and Brad Church appeal from the trial court's order dismissing their complaint, contending that the trial court erred in concluding that Abraham Younan's statements about them were non-actionable expressions of opinion. We conclude that the trial court correctly found Younan's online review of the plaintiffs' company to be an expression of opinion, and we therefore affirm the dismissal of the plaintiffs' claim for libel. As to the plaintiffs' other claims, however, we reverse the trial court's decision and remand the case for further proceedings.

A motion to dismiss should only be granted if the allegations of the complaint, construed most favorably to the plaintiff, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. In other words, if, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied.

(Citations and punctuation omitted.) Infinite Energy Inc. v. Pardue, 310 Ga.App. 355, 355-356 (1) (713 S.E.2d 456) (2011).

So viewed, the record shows that Empire South Realty Advisors and Brad Church managed the Homeowners Association for the Black River community in Charlton County. In July 2021 Abraham Younan posted the following Google review of the plaintiffs:

Brad Church has done a terrible job managing our HOA. He has turned our board of directors against the home owners and convinced them to show animosity towards the people paying his salary. In the past year, the board has put up 4 or so signs warning of snakes or gators. That is it. I pay $660 a year for nothing. Brad tries to isolate the board from the homeowners, thereby running the HOA instead of just doing housekeeping and only helping when asked. Our HOA is dysfunctional and can only reach a quorum by lowering in half. Do not believe some of the complimentary post (sic). Buyer beware of you use him or get a New York lawyer, first (sic).

The Empire South and Church filed suit against Younan in the Superior Court of Charlton County, alleging that his Google review constituted libel. They also raised a claim of oral slander, alleging that Younan "has communicated with multiple people on multiple occasions during which he made several false and malicious statements that injured the Plaintiffs' reputation and exposed them to contempt, hatred, and ridicule." Additionally, the plaintiffs raised claims for intentional infliction of emotional distress and defamation per se, alleging that Younan had harmed their reputations with intentional statements and actions and that he had accused them of a crime.

Younan filed a motion to dismiss the complaint, arguing that the Google review did not constitute libel because it represented his opinion about how the plaintiffs were managing the HOA. Younan further argued that even if the review were libelous, it would constitute invited libel because the plaintiffs had made their business subject to Google reviews. The trial court granted Younan's motion to dismiss, reasoning that his statements in the Google review were expressions of opinion and were, therefore, not actionable as defamation. The plaintiffs then filed this appeal.

1. In related claims of error, the plaintiffs argue that the allegations in their complaint, if taken as true, state a claim for libel, and they also argue that most of the statements in Younan's Google review are capable of being proven false. We conclude that the trial court correctly dismissed the libel claim because the Google review consisted of expressions of opinion rather than statements of fact.

"A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." OCGA § 51-5-1 (a). A written defamatory statement is actionable as libel. Smith v. DiFrancesco, 341 Ga.App. 786, 788 (1) (802 S.E.2d 69) (2017). Nevertheless, "[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." (Citation and punctuation omitted.) Swanson Towing & Recovery, LLC v. Wrecker 1, Inc., 342 Ga.App. 6, 10 (2) (a) (802 S.E.2d 300) (2017). "An assertion that cannot be proved false cannot be held libelous . . . however unreasonable the opinion or vituperous the expressing of it may be." (Citation and punctuation omitted.) Gast v. Brittain, 277 Ga. 340, 341 (589 S.E.2d 63) (2003).

Reading Younan's Google review in its entirety, we conclude that the review did not consist of statements of fact and was instead, an expression of Younan's negative opinions of the plaintiffs' management of the HOA. In the review, Younan stated that (1) Plaintiff Church had convinced the HOA's Board of Directors to show animosity towards the homeowners, and was now "running" the HOA; (2) Younan was not getting his money's worth from his HOA dues; and (3) others should not believe the complimentary reviews of the plaintiffs and should "beware" of the plaintiffs and retain a lawyer before engaging with...