Gettner v. Fitzgerald

• Decision Date: 01 April 2009
• Docket Number: No. A09A0155.,A09A0155.
• Parties: GETTNER v. FITZGERALD et al.
• Court: Georgia Court of Appeals

677 S.E.2d 149

297 Ga. App. 258

GETTNER v. FITZGERALD et al.

No. A09A0155.

Court of Appeals of Georgia.

April 1, 2009.

Barrett & Farahany, Amanda Amy Farahany, Atlanta, for Appellant.

Alston & Bird, Paul James Kaplan, Epstein, Becker & Green, Kenneth Gary Menendez,

Jeffery Randolph Saxby, Atlanta, for Appellees.

ELLINGTON, Judge.

Mark Gettner brought this defamation action in the Superior Court of Fulton County against VNU Business Media, Inc. in connection with a report in a VNU publication that Gettner had been demoted after poor performance. After a hearing, the trial court granted VNU's motion for summary judgment, and Gettner appeals. Because there is evidence sufficient to create a jury issue on each essential element of Gettner's defamation claim against VNU, as we have explained below in Division 1, we reverse the trial court's order to the extent it granted summary judgment in favor of VNU.

In the same action, Gettner also sued his former employer, the advertising agency Fitzgerald & Company ("F & C"), and its chief executive officer, David Fitzgerald, for invasion of privacy, based on Fitzgerald's conversation with a VNU reporter about Gettner's demotion and based on F & C's alleged appropriation of Gettner's name and likeness. As we have explained below in Divisions 2 and 3, we agree with the trial court's determination that F & C and Fitzgerald are entitled to summary judgment and, therefore, affirm the trial court's ruling in that respect.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations, footnote and emphasis omitted.) Schofield Interior Contractors v. Standard Bldg. Co., 293 Ga.App. 812, 813, 668 S.E.2d 316 (2008).

Viewed in the light most favorable to Gettner, the record shows the following. In 1999, Gettner went to work for F & C as a Group Creative Director to lead one of three creative teams. After Jim Paddock, F & C's Executive Creative Director, retired, Fitzgerald promoted Gettner to fill that vacancy, which ranked at the senior vice president level, effective April 2001. According to Gettner, by July 2002, he decided he did not want to continue acting as the Executive Creative Director because he did not "want to deal with all the nuances that were not part of the creative process," such as hiring and managing subordinates. Gettner discussed his decision with Fitzgerald, and Fitzgerald agreed to allow him to return to his former position of Group Creative Director.

Fitzgerald disputes this. According to Fitzgerald, he initiated a meeting with Gettner and told him that he was being demoted because the creative teams' work under Gettner's leadership was not of high enough quality. Fitzgerald deposed that, to allow Gettner to "save face," he suggested that they jointly present the decision as having been Gettner's choice. A personnel form that was submitted to the human resources department to reduce Gettner's salary indicated that the reason for the salary change was that Gettner had "stepped down" to the position of Group Creative Director.

On July 31, 2002, Fitzgerald sent an e-mail to all F & C employees announcing that, because Gettner wanted "to be closer to the [creative] work," he was returning to his previous position as a Group Creative Director. In August 2002, Fitzgerald e-mailed Alicia Griswold, a reporter for AdWeek, VNU's advertising trade publication, and asked if she knew of any good executive creative directors because Gettner had "stepped down." Griswold, however, did not believe that Gettner's demotion could have been his own choice. She telephoned Fitzgerald and pressed him for the real story behind the announcement that Gettner had stepped down. Fitzgerald indicated that Gettner lacked the qualities an executive creative director needed and had been demoted for poor performance. Fitzgerald told Griswold not to publish that information.

In March 2003, F & C reduced its workforce and terminated Gettner. On April 28, 2003, AdWeek released its annual "Agency Report Cards" for 2002, in which it scored the ten biggest advertising agencies in the southeast region for "Numbers," "Creative," and "Management." F & C received an overall grade of "C." Under "Management," the report card states, "CEO Dave Fitzgerald demoted [Executive Creative Director] Mark Gettner [in 2002] after poor performance; retired [Executive Creative Director] Jim Paddock started weekly visits `to help' creative." Griswold did not contact Gettner for verification before including this information in F & C's report card. Griswold deposed that she did not need to call Gettner to verify Fitzgerald's statement that Gettner had been demoted for poor performance because she "had a fact" from the head of the agency. She also testified that an advertising consultant told her that he had seen a pitch for an account that Gettner made on behalf of F & C that was "weak," which confirmed for her that Gettner's performance was substandard.

After the report card was published, Fitzgerald asked Griswold why she printed information that was not for publication. She responded "don't ever tell a reporter anything you don't want to see in print." According to Gettner, he confronted Griswold about the report card and she admitted that she knew he had actually stepped down voluntarily. This lawsuit followed.

1. Gettner contends that a jury issue exists as to each essential element of his cause of action for defamation against VNU and, therefore, that the trial court erred in granting VNU's motion for summary judgment as to Count 1 of his amended complaint. Under OCGA § 51-5-2(a), "[a]ny false and malicious defamation of another in any newspaper, magazine, or periodical, tending to injure the reputation of the person and expose him to public hatred, contempt, or ridicule, shall constitute a newspaper libel." There are four elements of a cause of action for defamation under this statute: the defendant's publication of a defamatory statement about the plaintiff, the falsity of the defamatory statement, the defendant's fault in publishing it, and the plaintiff's actual injury from the statement. Mathis v. Cannon, 276 Ga. 16, 20-21, 573 S.E.2d 376 (2002).¹ Because VNU's burden on summary judgment was to show that the evidence was not sufficient to create a jury issue on at least one essential element of Gettner's case, we consider these elements seriatim.

(a) The defendant's publication of a defamatory statement about the plaintiff. It is undisputed that VNU published the report about Gettner and that such a report would tend to injure Gettner's reputation and expose him to public contempt or ridicule.² VNU contends, however, that whether Gettner's performance was poor is a matter of opinion and, therefore, that its report about Gettner was not an actionable statement of fact. We disagree. It is true that 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.³ Still, as the Supreme Court of Georgia explained [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). Thus, VNU's argument fails if the allegedly defamatory statement is capable of being proved false.

Gettner's defamation claim is based on the statement in VNU's report that Fitzgerald demoted Gettner because of unsatisfactory job performance. If, as Gettner contends, he can prove that Fitzgerald demoted him for reasons other than unsatisfactory performance, then the defamatory statement is capable of being proved false. VNU cannot avoid liability solely by labeling the report an "opinion."⁴ Indeed, VNU concedes that the issue of whether Fitzgerald demoted Gettner because of unsatisfactory performance, or for other entirely different reasons, is a matter of fact. For the foregoing reasons, a jury issue exists regarding whether VNU published a defamatory statement about Gettner.

(b) The falsity of the defamatory statement. VNU contends that Fitzgerald was dissatisfied with Gettner's work and, therefore, the allegedly defamatory statement was true. VNU reported, however, not only that Fitzgerald was dissatisfied with Gettner's work but also that Gettner's demotion was involuntary and resulted from Fitzgerald's assessment. To show the falsity of the statement, Gettner identified evidence in the record that he requested a voluntary demotion to increase his own job satisfaction and that Fitzgerald allowed the voluntary demotion. Even if Fitzgerald believed that acquiescing in Gettner's voluntary demotion would allow Gettner to save face or would be good for the company, VNU's report was false if Gettner's demotion did not result from Fitzgerald's dissatisfaction. Because the evidence is conflicting on this point, a jury must...