Rco Legal, P.S., Inc. v. Johnson

• Decision Date: 18 October 2018
• Docket Number: A18A1388
• Citation: 347 Ga.App. 661,820 S.E.2d 491
• Parties: RCO LEGAL, P.S., INC. et al. v. JOHNSON.
• Court: Georgia Court of Appeals

347 Ga.App. 661

820 S.E.2d 491

RCO LEGAL, P.S., INC. et al.

v.JOHNSON.

A18A1388

Court of Appeals of Georgia.

October 18, 2018

Matthew Trainor Gomes, Stephen William Mooney, Atlanta, for Appellant.

Larry Wayne Johnson, Atlanta, for Appellee.

Miller, Presiding Judge.

Larry W. Johnson sued his former employer, RCO Legal, P.S., Inc. ("RCO"), as well as various persons associated with the firm, alleging that they defamed him. RCO filed a motion to dismiss or strike Johnson’s complaint pursuant to OCGA § 9-11-11.1, which is Georgia’s anti-SLAPP statute.¹ Johnson also filed a motion to strike portions of an affidavit made by RCO’s general counsel, James Galbraith, as well as exhibits attached to that affidavit. The trial court denied RCO’s motion to dismiss Johnson’s complaint, and also granted Johnson’s motion to strike. RCO, James Galbraith, Stephen Routh, Janaya Carter, and Lori McGowan now appeal.

After a thorough review of the record, we determine that the trial court erred in granting Johnson’s motion to strike the Galbraith affidavit without considering circumstantial evidence of authenticity of the attached exhibits. We also conclude that, although the trial court properly denied the appellants’ motion to dismiss Johnson’s complaint, Johnson’s allegation of defamation stemming from RCO’s summary judgment motion during arbitration proceedings, as well as communications to RCO’s human resources director, should have both been struck from the complaint because neither would have supported a claim for defamation. Thus, we affirm in part, vacate in part, and remand this case with direction.

"We review de novo the trial court’s denial of [a]ppellants’ motion to dismiss. In reviewing the trial court’s order, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff’s favor." (Citations omitted.) Jubilee Dev. Partners v. Strategic Jubilee Holdings , 344 Ga. App. 204, 809 S.E.2d 542 (2018).

RCO is a Washington-based law firm that provides mortgage default services. In June 2013, RCO hired Johnson as the vice president for the southeast region, and he was to co-manage RCO’s southeast region client files with his then-law partner, Joel Freedman. Johnson and Freedman maintained a separate law firm ("J&F"), with its own escrow accounts, assets and obligations. According to Johnson’s employment agreement with RCO, Johnson was due to receive a severance payment of 36 months’ salary, provided that he was terminated without cause. James Galbraith is RCO’s general counsel; Stephen Routh is an RCO shareholder and founding partner; Janaya Carter is RCO’s managing shareholder; and Lori McGowan is senior counsel with the firm.

Underlying Johnson’s complaint is a foreclosure sale on property which belonged to Luther Carl Murray. J&F conducted that sale in April 2013, and the sale yielded $76,602.89 in excess funds, payable to Mr. Murray. J&F mailed a letter to Mr. Murray notifying him of the excess funds, but he did not respond. J&F then mailed another letter to Mr. Murray, along with a check for the excess funds, to a different address which a private investigator had found. Once again, Mr. Murray did not respond.

J&F then had a private investigator visit Mr. Murray, who lived with his mother. The investigator brought a check for the excess funds, as well as a "Release and Hold Harmless Agreement" so that Mr. Murray could receive the funds. After the investigator explained the purpose of his visit, Mr. Murray stated that he did not want the check, and that the investigator’s client should keep it. Mr. Murray’s mother testified, "[h]e didn’t mean that." Although the investigator left his contact information, neither Mr. Murray nor his mother contacted him. Johnson also averred that he had a conversation with Mr. Murray, during which Mr. Murray stated that he did not want the excess funds, and that Johnson should keep them. When Mr. Murray’s mother was deposed in 2017, she testified that an envelope with a check came to the home in 2014, and that Mr. Murray had received it but never opened it.

In April 2015, Johnson had the check reissued, and the named payees were "Luther Carl Murray and Johnson & Freedman, LLC." As Johnson had initially instructed that the payees be named in the alternative, he changed the "and" to "or," initialed this change, and then deposited the check into his personal bank account. Johnson later paid that money to J&F, and Freedman put the money into J&F’s escrow account. In July 2015, J&F sought the counsel of another firm regarding where to direct the funds. That firm sent Mr. Murray a letter informing him that J&F was holding the excess funds, which they intended to turn over to the State, and advising him that he had 60 days to claim the funds from J&F. With no response from Mr. Murray, J&F filed an unclaimed property report with the Georgia Department of Revenue, and issued a check to the Department in the amount of the excess funds.

In September 2015, RCO terminated Johnson’s employment "for cause," based partly on alleged mismanagement of the southeast region, and misuse and misappropriation of company resources. The letter informed Johnson that because he was being terminated for cause, i.e., "theft, dishonesty, fraud, gross negligence or willful misconduct in the performance of [his] assigned duties," he was not eligible for any severance payment. Johnson filed an arbitration claim against RCO in Washington State, and RCO filed Bar complaints against Johnson in Georgia, North Carolina, and Tennessee.²

Johnson ultimately requested the Department of Revenue to reimburse him the excess funds, and the Department issued a check in the amount of the excess funds, to "Johnson & Freedman LLC[,] Attn Larry W Johnson." After Johnson filed a complaint for declaratory judgment in the Columbia County Superior Court, that court determined that Mr. Murray had surrendered his claim to the excess funds, and that JF Legal (formerly J&F) was entitled to the funds.

In 2017, Johnson filed a complaint against the appellants in DeKalb County, alleging that the defendants committed slander and libel³ under OCGA § 51-5-1 et seq. Specifically, he complained of the following alleged acts and statements pertaining to his handling of the excess funds: (1) RCO’s summary judgment motion in the arbitration proceeding, in which RCO claimed that Johnson committed theft when he deposited the excess funds into his personal bank account; (2) theft accusations that Galbraith and Routh made by telephone to in-house counsel for the Federal National Mortgage Association ("Fannie Mae"), as well as in other similar calls; (3) verbal and written theft accusations by RCO (and Galbraith and/or Carter) to McGowan and RCO’s director of human resources; and (4) theft accusations by McGowan to an RCO associate attorney and Johnson’s former administrative assistant.⁴

RCO filed a motion to dismiss or strike, arguing that Johnson’s claim arose out of communications that are protected by the anti-SLAPP statute.⁵ Johnson then filed a motion to strike portions of Galbraith’s affidavit, and all the exhibits attached to that exhibit. After a hearing, the trial court ruled that RCO had not met its burden of authenticating the exhibits attached to Galbraith’s affidavit, and the trial court therefore granted Johnson’s motion. As to the appellants’ motion to dismiss, the trial court found that although the alleged communications fell within the scope of the anti-SLAPP statute, Johnson had demonstrated a probability of prevailing on his defamation claim. The trial court therefore denied the appellants’ motion, and this appeal followed.

1. First, the appellants contend that the trial court erred in granting Johnson’s motion to strike portions of the Galbraith affidavit because it ignored circumstantial evidence of authenticity for the attached exhibits.⁶ We agree.

"We review a trial court’s decision on a motion to strike only for an abuse of discretion." (Citation omitted.) Hayward v. The Kroger Co. , 317 Ga. App. 795, 797 (1), 733 S.E.2d 7 (2012). Nevertheless, "while the abuse-of-discretion standard presupposes a range of possible conclusions that can be reached by a trial court with regard to a particular evidentiary issue, it does not permit a clear error of judgment or the application of the wrong legal standard." (Citation omitted.) Koules v. SP5 Atlantic Retail Ventures , 330 Ga. App. 282, 285-286 (2), 767 S.E.2d 40 (2014).

Under Georgia’s Evidence Code, "authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." OCGA § 24-9-901 (a). Thus, " ‘[a]uthentic’ does not mean that the document is a legally valid or enforceable instrument; authenticity is merely a matter of identification, or showing that this writing is the one in question." (Citation and punctuation omitted.) Koules , supra, 330 Ga. App. at 286 (2), 767 S.E.2d 40. "Once that prima facie case is established, the evidence is admitted and the ultimate question of authenticity is decided by the factfinder." (Citation and punctuation omitted.) Fed. Nat. Mtg. Assn. BR-027 v. Harris , 343 Ga. App. 295, 299 (1), 807 S.E.2d 75 (2017). A proffering party may authenticate documents through "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." OCGA § 24-9-901 (b) (4).

Here, Galbraith filed an affidavit, attaching 12 exhibits, comprised of copies of e-mails, checks, bank receipts, ledgers, and letters.⁷ Many of the documents bear company logos, letterheads, telephone and facsimile numbers, e-mail addresses and legal disclaimers. The trial court’s order does not reflect that it considered the contents, subject or appearance of any of the exhibits. Rather, the trial court ruled that "pre-discovery evidence" did not provide "the necessary circumstantial...