Grace v. Lowery

• Decision Date: 18 June 2021
• Docket Number: A21A0422
• Court: Georgia Court of Appeals
• Parties: GRACE et al. v. LOWERY et al.

359 Ga.App. 881

860 S.E.2d 159

GRACE et al.

v.LOWERY et al.

A21A0422

Court of Appeals of Georgia.

June 18, 2021

Morton G. Forbes, Thomas A. Nash Jr., Savannah, Robert Peter Marcovitch, Atlanta, Johnny Andrew Foster, for Appellant.

Robert Bartley Turner, Jeffrey S. Vaughan, for Appellee.

Pipkin, Judge.

A jury returned a general verdict in favor of Appellees James Lowery and Ortiz Custom Guns, LLC., finding Appellants Virgil A. Grace, Patricia A. Grace, and Uniforms by Patrick, Inc., liable for damages arising after Appellees unwittingly purchased stolen guns from Appellants’ employee. On appeal, Appellants assert, among other things, that the evidence was insufficient to sustain the verdict. We agree that at least one of Appellees’ claims – defamation – was improperly submitted to the jury; accordingly, we reverse the judgment of the trial court and remand for a new trial.

Virgil A. Grace and his wife, Patricia Grace, owned and operated "Uniforms by Patrick," a business that, as the name implies, largely sold uniforms; however, the business also sold firearms and had a gun range. In 2013, Virgil hired Christopher Edgecombe. Edgecombe eventually became gun range manager and master at Uniforms by Patrick, which meant that he "oversaw everything on the firearms side" of the business. In June 2013, Edgecombe began selling firearms to James Lowery, a representative of a smaller firearms operations known as Ortiz Custom Guns.¹ In the nearly five months that followed, Edgecombe sold dozens of firearms to Ortiz Custom Guns, either through Lowery or other Ortiz representatives. Unbeknownst to Ortiz Custom Guns, its representatives, or Uniforms by Patrick, Edgecombe was pocketing the proceeds of those firearms sales, and, it turned out, was a convicted felon who was prohibited from dealing in firearms.²

The Graces eventually uncovered Edgecombe's misdeeds and confronted him; Edgecombe was arrested for theft, and all of the guns Edgecombe sold to Ortiz Custom Guns were reported stolen. The Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") became involved in the matter, and the ATF seized firearms from both Ortiz Custom Guns and from Ortiz's customers.³ A local news station picked up the story and published details of the affair, including a statement by local law enforcement suggesting that Ortiz Custom Guns was complicit in Edgecombe's misdeeds. Ortiz Custom Guns also learned that the Graces had been making disparaging comments about Ortiz Custom Guns and its involvement with Edgecombe.

Appellees subsequently brought this action against Appellants alleging, among other things, defamation, negligent hiring and retention of Edgecombe, and false light invasion of privacy. At trial, the jury was charged on numerous claims and returned a general verdict in favor of Appellees. The jury found Appellants liable for almost $3 million in damages and attorney fees.⁴ Appellants now argue on appeal, among other things,⁵ that Appellees’ defamation claim was improperly submitted to the jury because there was no evidence of any specific defamatory statement of fact.⁶ We agree.

In their amended complaint, Appellees alleged that the Graces "made multiple statements in front of customers and employees [of Uniforms by Patrick] that implied that both Ortiz Custom Guns and its manager [Lowery] engaged in ‘illegal activity,’ including but not limited to unlawful firearms trading with [Edgecombe]." To prove their claim of defamation, Appellees were required to show the following: "(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm." Infinite Energy, Inc. v. Pardue , 310 Ga. App. 355, 356 (1), 713 S.E.2d 456 (2011). "[T]he defamatory statement must be published," and "[a] plaintiff cannot prove publication without introducing evidence of the specific statement used in an allegedly defamatory communication." (Citations omitted.) Lewis v. Meredith Corp. , 293 Ga. App. 747, 748-749 (1), 667 S.E.2d 716 (2008). In reviewing this claim, we look only to see whether there is "any evidence" to support it. See Aldworth Co., Inc. v. England , 281 Ga. 197, 201 (2), 637 S.E.2d 198 (2006).

While Appellees claim that Appellants engaged in a "a campaign of defamatory comments and slanderous allegations against Appellees" and were "making allegations that Appellees knew of Edgecombe's devious dealings and were willfully complicit in his criminal enterprise," Appellees have wholly failed to identify any specific statements which would support a claim of defamation, and they have failed to cite any meaningful case law supporting their position that the evidence was sufficient to support a claim of defamation. A review of the transcript reflects that a former employee at Uniforms by Patrick testified that "[c]onversations were had, in the open, about firearms being stolen or Ortiz Customs buying stolen firearms. Exact conversations, I couldn't give you. " (Emphasis supplied.) In fact, this employee repeatedly testified that, although the Graces had allegedly made derogatory comments about Ortiz Custom Guns, he could not recall exact statements. This vague testimony, which fails to identify any particular words or statements made by Appellants, affords no basis for recovery. See ITT Rayonier, Inc. v. McLaney , 204 Ga. App. 762, 765 (2), 420 S.E.2d 610 (1992).

Likewise, while the jury heard that Patricia Grace had been overheard saying, "Once we're done with them, they'll be out of business," this mere statement of opinion or rhetorical hyperbole is not actionable. "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." See Gast v. Brittain , 277 Ga. 340, 341, 589 S.E.2d 63 (2003). At most, Patricia's statement "implies that [Appellants] ha[d] a negative opinion of [Appellees], but it is too far of a stretch to interpret the [statement] as implying ‘defamatory facts’ about [Appellees.]" Chaney v. Harrison & Lynam, LLC , 308 Ga. App. 808, 811-812 (1) (a), 708 S.E.2d 672 (2011) (yard sign stating "Ask our opinion why not to buy a Harrison & Lynam Home" not actionable as defamation). Swanson Towing & Recovery, LLC v....