N. Atlanta Golf Operations, LLC v. Ward

• Decision Date: 11 March 2022
• Docket Number: A21A1525
• Citation: 363 Ga.App. 259,870 S.E.2d 814
• Parties: NORTH ATLANTA GOLF OPERATIONS, LLC et al. v. WARD.
• Court: Georgia Court of Appeals

363 Ga.App. 259

870 S.E.2d 814

NORTH ATLANTA GOLF OPERATIONS, LLC et al.

v.WARD.

A21A1525

Court of Appeals of Georgia.

March 11, 2022

F. Edwin Hallman Jr., Richard Anthony Wingate, Marietta, for Appellant.

W. Phillip McCurdy, Norcross, for Appellee.

McFadden, Presiding Judge.

Over the course of several years, Peter J. Ward made numerous comments on the social networking service, Twitter, that disparaged the Golf Club of Georgia (hereinafter "the Club"); Eugene B. "Ben" Kenny (the sole member of North Atlanta Golf Operations, LLC, which does business as the Club); Kenny's stepdaughter, Jacqueline A. Welch (the Club's former general manager); and Jacqueline Welch's husband, Samuel A. Welch (the Club's former greenskeeper). This appeal concerns a lawsuit that North Atlanta Golf Operations, Kenny, and the Welches (collectively "the plaintiffs") brought against Ward for those Twitter posts. In the suit, the plaintiffs asserted claims for libel, tortious interference with business relations, injunctive relief, punitive damages, and attorney fees and costs of litigation. The trial court granted summary judgment to Ward on all of those claims, and the plaintiffs appeal.

As detailed below, Ward is not entitled to summary judgment on the libel claim. Many of the Twitter posts are not actionable, either because of the running of the applicable one-year statute of limitation or because they do not assert facts capable of being proved false. But some of the posts do assert facts capable of being proved false, and the evidence regarding the falsity of those facts is in dispute. Because those posts pertain to the plaintiffs’ performance in their trade, business, or profession, "damage is inferred." OCGA § 51-5-4 (b). And genuine issues of material fact exist as to the remaining elements of the libel claim. So we reverse the grant of summary judgment on the libel claim.

However, Ward is entitled to summary judgment on the claim for tortious interference with business relations because the plaintiffs have failed to point to evidence of special damages, as required for that cause of action. So we affirm the grant of summary judgment on that claim.

Finally, we reverse the grant of summary judgment as to the remaining claims: punitive damages, attorney fees, and injunctive relief. The trial court granted summary judgment on these claims on the ground that the underlying claims of libel and tortious interference failed as a matter of law. But the libel claim does not fail as a matter of law, and we decline to affirm under the right-for-any-reason rule.

1. Facts and procedural history.

"[V]iew[ing] the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the [plaintiffs, as] nonmovant[s,]" Murray v. Community Health Systems Professional Corp. , 345 Ga. App. 279, 280, 811 S.E.2d 531 (2018) (citation omitted), the evidence shows that North Atlanta Golf Operations acquired the Club in 2014. At that time, Ward was a member of the Club. Unhappy with the management of the Club after North Atlanta Golf Operations's acquisition, in 2016 Ward established a Twitter account under the name "Secret GCOG Member" and began making Twitter posts disparaging the Club, its owner, and its management, specifically Kenny and the Welches. Some of the posts asserted that the plaintiffs were not managing or maintaining the Club properly, that they were responsible for a decline in the Club, and, as to the Welches, that they should be fired.

In 2017, Kenny terminated Ward's Club membership in connection with a dispute over his residency and his eligibility for a particular membership status. Ward subsequently changed the name on his Twitter account to "Former CGOG Member" and continued making posts about the Club and the plaintiffs. In 2020, he testified that he had stopped posting to the account.

On December 19, 2018, the plaintiffs filed this action against Ward, in which they asserted claims for libel, tortious interference with business relations, injunctive relief, punitive damages, and attorney fees and expenses of litigation. Ward moved for summary judgment, and, after a hearing, the trial court granted Ward's motion on all claims.

2. Claim for libel.

The plaintiffs argue that the trial court erred in granting Ward summary judgment on their claim for libel. As detailed below, we agree with the plaintiffs that Ward is not entitled to summary judgment on this claim, although we find that not all of Ward's posts constitute actionable libel.

Libel is a form of defamation. It is the "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). Our Supreme Court has held that, "[u]nder Georgia law, a claim for defamation has four elements: (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting to at least negligence; and (4) special harm or the actionability of the statement irrespective of special harm." American Civil Liberties Union v. Zeh , 312 Ga. 647, 650 (1) (b), 864 S.E.2d 422 (2021) (citation omitted).

The plaintiffs argue that their claim for libel is supported by the entire body of Twitter posts published by Ward between 2016 and 2019. The record reflects that Ward produced those posts to the plaintiffs in response to a document request and that the plaintiffs put them into evidence as an exhibit to Ward's deposition. So, contrary to Ward's argument on appeal, the posts are part of the record and may be considered in determining whether Ward is entitled to summary judgment. But in their appellate brief, the plaintiffs specifically point to only a handful of the hundreds of Twitter posts contained in that exhibit, and we have limited our analysis to those posts. See generally Grace v. Lowery , 359 Ga. App. 881, 883, 860 S.E.2d 159 (2021) (plaintiff asserting defamation must identify specific statements supporting that claim); City of Albany v. Pait , 335 Ga. App. 215, 221 (5), 780 S.E.2d 103 (2015) (noting that plaintiff in defamation case failed to specify which statements were supposedly defamatory and that "it is not the function of this court to cull the record on behalf of a party in search of instances of error") (citation omitted). As detailed below, genuine issues of material fact exist as to whether the plaintiffs can make this showing as to some, but not all, of the identified Twitter posts. So Ward is not entitled to summary judgment on the libel claim.

(a) A jury question exists as to whether some of the Twitter posts contain actionable libel.

(i) False and defamatory statements.

A statement that "[m]ak[es] charges against another in reference to his trade, office, or profession, calculated to injure him therein[,]" is defamation per se under OCGA § 51-5-4 (a) (3), which by its terms applies to slander (oral defamation) but which has "been engrafted into the libel statute[.]" Cottrell v. Smith , 299 Ga. 517, 522, 524 (II) (A), 788 S.E.2d 772 (2016). See also Smith v. DiFrancesco , 341 Ga. App. 786, 788-789 (1), 802 S.E.2d 69 (2017). "The kind of aspersion [that constitutes defamation per se under OCGA § 51-5-4 (a) (3) ] must be one that is especially injurious to the plaintiff's reputation because of the particular demands or qualifications of plaintiff's vocation." Bellemeade, LLC v. Stoker , 280 Ga. 635, 637, 631 S.E.2d 693 (2006) (citation omitted).

Nevertheless, "[t]he truth of the charge made may always be proved in justification of an alleged libel or slander." OCGA § 51-5-6. This means that "[t]ruth is a complete defense to alleged libel or slander. And, 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." Cottrell , 299 Ga. at 523 (II) (A), 788 S.E.2d 772 (citations and footnote omitted). "An assertion that cannot be proved false cannot be held libelous ... however unreasonable the opinion or vituperous the expressing of it may be."

Gast v. Brittain , 277 Ga. 340, 341, 589 S.E.2d 63 (2003) (citation and punctuation omitted). Consequently,

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. Still, there 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.

Cottrell , 299 Ga. at 523 (II) (A), 788 S.E.2d 772 (citations and punctuation omitted).

A common theme of the Twitter posts is Ward's opinion that the plaintiffs were mismanaging the Club and poorly performing their duties. In some of those posts, Ward asserted specific facts as the basis for that opinion. For example, in an April 22, 2018 post, Ward blamed greenskeeper Samuel Welch for what Ward asserted was the poor physical condition of the greens, stating: "Have you noticed all the dead grass collars around the greens? @MEvansGolfPro @samuelawelch needs to be fired!!! Nepotism is alive and strong at The Golf Club of Georgia!!" And in an April 10, 2018 post, Ward blamed owner Kenny and general manager Jacqueline Welch for 50 percent decreases in both the Club's membership and its revenue, stating: "Pretty sad that members pay $750 a month but dislike atmosphere Ben and Jacqueline created that they drive down the street to local tavern to drink and eat! Ownership and management still clueless and that's why revenue and membership down 50%. #dobetter." Similarly, in an April 5, 2018 post, Ward stated: "Jaquline [sic] and Ben sitting around Golf Club of...