Sherwood v. Boshears

• Decision Date: 17 February 1981
• Docket Number: No. 60532,60532
• Court: Georgia Court of Appeals
• Parties: SHERWOOD v. BOSHEARS.

Page 124

278 S.E.2d 124

157 Ga.App. 542

SHERWOOD v. BOSHEARS.

No. 60532.

Court of Appeals of Georgia.

Feb. 17, 1981.

Roger B. Lane, Brunswick, for appellant.

Wallace D. Harrell, Columbus, for appellee.

POPE, Judge.

Appellant brought this action for libel against appellee attorney as the result of a letter written by appellee in which appellant was accused of "incompetence and mismanagement" in his management of a mobile home park. Appellee contended that the letter was a privileged communication and moved for summary judgment. Appellant brings this appeal from the trial court's grant of that motion. We affirm.

The record shows that appellee's client, Mrs. Grover, owned a tract of land upon which was located a mobile home park. She entered into a sales contract for sale of the land in October, 1978 with members of a "group" whereby the "group" was to purchase the property and provide a manager to operate and maintain the park. Appellant, a licensed real estate agent, was selected as the manager.

The sale was not completed within the 90-day time period set for closing and problems developed between Mrs. Grover and the "group." Additionally, Mrs. Grover, a resident of the mobile home park, became concerned over what she perceived as appellant's mismanagement of the park. Because of the perceived incompetence and alleged deterioration of the mobile home park under appellant's management, as well as her fear that the sale of the property would not close, Mrs. Grover sought to resume management of the park. In an effort to do so, she instructed her attorney, appellee Boshears, to draft a letter and send it to the attorney for the group of prospective purchasers, one Phillips. Mrs. Grover believed that appellant was a member of the "group" and therefore communicated her intentions to Phillips, its attorney.

The letter, composed by appellee in May, 1979, stated that appellant's "incompetence and mismanagement (had) resulted in substantial damages to the property." Failure to maintain the sewer system and oxidation plant as well as allowing the operation of a junk yard on the property were cited as examples of this incompetence and mismanagement. The letter concluded by stating that Mrs. Grover felt that she had suffered substantial damages by reason of appellant's conduct and that she intended to resume active management of the property herself on June 1, 1979. Appellee contends that the letter was a privileged communication as a statement "made with the bona fide intent, on the part of the speaker, to protect his own interest in a matter where it is concerned." Code § 105-709 P 3.

"A charge made against another in reference to his trade, office or profession, calculated to injure him therein, is actionable per se unless made under circumstances which constitute it a privileged communication, such as (the privilege claimed by appellee). The burden is on the defendant to establish this defense. Van Gundy v. Wilson, 84 Ga.App. 429, 429-430, 66 S.E.2d 93 (1951). The communication in the present case is not an absolute privilege but is conditionally privileged because Georgia law allows recovery if the privilege is used as a cloak for the venting of the private malice. Code § 105-710. " Although the burden is on the plaintiff at trial to prove actual malice, this is on motion for summary judgment and the movant defendant is obligated to 'affirmatively negative the claim of the (plaintiff) and show (he is) not entitled to recover under any theory of the case...' " Morton v. Gardner, 155 Ga.App. 600, 604, 271 S.E.2d 733 (1980).

On a motion for summary judgment in an action for libel, a movant defendant must negate a plaintiff's claim of actual malice by establishing that he lacked " 'knowledge that (the defamatory matter) was false or (did not publish it) with reckless disregard as to whether it was false or not.' New York Times v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964)." Morton v. Gardner, supra 155 Ga.App. at 605, 271 S.E.2d 733. "To make the defense of privilege complete...good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear." Sheftall v. Central of Ga. R. Co., 123 Ga. 589(5), 51 S.E. 646 (1905).

In addition to the pleadings, appellee supported his motion for summary judgment with his affidavit and the deposition of Mrs. Grover. Appellee disclaimed any malice in sending the...