Sires v. Luke, Civ. A. No. CV180-214.
| Decision Date | 06 August 1982 |
| Docket Number | Civ. A. No. CV180-214. |
| Citation | 544 F. Supp. 1155 |
| Parties | Frank B. SIRES, Plaintiff, v. Douglas M. LUKE, Defendant. |
| Court | U.S. District Court — Southern District of Georgia |
COPYRIGHT MATERIAL OMITTED
Blount & Curry, Augusta, Ga., Dowling, Sanders, Dukes, Novit & Svalina, P. A., Beaufort, S. C., for plaintiff.
A. Montague Miller and Thomas W. Tucker, Augusta, Ga., for defendant.
This matter is before the Court upon motions of the plaintiff and defendant, pursuant to Rule 56 of the Fed.R.Civ.P., for summary judgment. On September 2, 1980, the plaintiff purchased from the defendant a garbage collection and disposal business known as Luke's Container & Residential Garbage Disposal Service. The purchase included trucks, customer lists, accounts receivable and payable; telephone number, post office box, business records, goodwill, a covenant on the part of the defendant not to compete, and a consultant contract whereby defendant would assist the plaintiff in assuming operation of the business. After the purchase, the plaintiff experienced difficulties in the operation of the business. The trucks purchased required a great deal of maintenance work to keep them operational, and some of the trucks were removed from service. There developed difficulty in servicing customer accounts because of the equipment failures, a lack of customer route information, and disputes as to which accounts receivable had been paid.
On December 17, 1980, the plaintiff filed this suit against the defendant for fraud and deceit, suppression of the truth, tortious interference with business, conversion, breach of contract and breaches of express and implied warranties. The plaintiff also requested injunctive relief against the defendant. Plaintiff alleges that the defendant made false representations during the negotiation of the contract about the condition of the equipment and the accounts receivable, the location of customers, and defendant's availability and willingness to assist the plaintiff in assuming operation of the business. Plaintiff also asserts that defendant has collected debts owed to plaintiff and kept the money for his own use. Plaintiff contends that defendant breached the purchase contract in that (1) the equipment was not in "operating condition," as stated in the contract, when sold; (2) the defendant has not made timely delivery of copies of the business records and accounts, accurate customer lists and customer route sheets, documentation and certificates on the equipment, and (3) defendant has not turned over the accounts receivable due the plaintiff. Sires further contends that the equipment was not in operating condition, a breach of express and implied warranties made him by the defendant. The plaintiff also requests injunctive relief against the defendant.
Defendant Luke denies all of the plaintiff's allegations. Defendant asserts as a counterclaim that plaintiff entered into the purchase agreement with the intention of breaching it and of depriving the defendant of the garbage business without paying for it. The defendant contends that plaintiff has destroyed the goodwill of the business and the value of the collateral. Defendant further alleges that plaintiff has breached the consultant contract and has slandered defendant. The defendant seeks appointment of a receiver in the business and an acceleration of the promissory note he holds, plus damages for fraud and slander. The defendant also requests that the restrictive covenant be declared null and void.
The process of determining a summary judgment motion, under Fed.R.Civ.P. 56, incorporates the observance of several cardinal principles. The burden is on the movant to establish that no genuine issue of fact exists, Lovable Company v. Honeywell, Inc., 431 F.2d 668, 670 (5th Cir. 1970). All reasonable doubts must be resolved in favor of the party opposing the motion. Casey Enterprises v. American Hardware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981). If the movant's supported motion pierces the pleadings of the opposing party, the burden shifts to the opposing party to show that a genuine issue of fact exists. This burden cannot be carried by reliance on the pleadings. Instead, the opposing party must set forth by affidavit, deposition, or otherwise, specific facts and details which demonstrate the existence of a genuine issue as to a material fact. Garcia v. American Marine Corporation, 432 F.2d 6, 7-8 (5th Cir. 1970); Lovable Company v. Honeywell, Inc., supra. Supporting affidavits or depositions that state mere conclusions or recite the allegations contained in the pleadings are not of any probative value in determining a summary judgment motion. Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135, 139 (5th Cir. 1973). Finally, summary judgment is used only when nothing is to be gained by going to trial. Lovable Company v. Honeywell, Inc., supra.
The plaintiff seeks partial summary judgment against defendant Luke on the portions of the counterclaim pertaining to (a) slander per se, (b) appointment of a receiver, (c) voiding of the restrictive covenant, (d) acceleration of the promissory note, and (e) damages for fraud.
Based upon a review of the motion, the defendant's reply thereto, the pleadings, affidavit, and depositions in this case, I conclude that the plaintiff's motion should be GRANTED in part and DENIED in part.
The defendant alleges in his counterclaim that "plaintiff herein has made charges against the defendant in reference to defendant's trade and profession; said charges were made in the presence of third persons; constitute slander per se." In the defendant's deposition, he was asked to state upon what facts he based that claim:
(Deposition, Douglas M. Luke, p. 163, ln. 6-25, p. 164, ln. 10-11).
The defendant testified that both the plaintiff and Mr. Haynie, plaintiff's employee, slandered defendant's name. Haynie is not a party to this suit. There are no allegations that the plaintiff directed Haynie to slander defendant. The deposition of defendant Luke is devoid of any assertions that Haynie's remarks were authorized or even known by the plaintiff Sires (Deposition, Douglas M. Luke, p. 160, ln. 24-25, p. 161, ln. 1-13).
In considering a motion for summary judgment, the Court must resolve all doubt as to the existence of a genuine issue of material fact against the moving party. All inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1964). In this case there are no facts from which an inference could be drawn that the plaintiff authorized Haynie to make any statements about the defendant. Without examining the substance of the alleged slanderous words uttered by Haynie, it is clear that the defendant cannot maintain an action for slander against the plaintiff based upon any remarks made by Haynie. The doctrine of respondeat superior is not applicable to an action for slander. White v. Cudahy Co., Inc., 130 Ga.App. 64, 202 S.E.2d 233 (1973); Ozborn v. Woolworth, 106 Ga. 459, 32 S.E. 581 (1899). Even if the words were spoken by plaintiff's agent within the scope of that agency and in behalf of or for the interest of Sires, the plaintiff would not be liable for slander. It must be alleged and shown that the plaintiff expressly ordered or directed Haynie to speak the words in question. Behre v. National Cash Register Co., 100 Ga. 213, 214, 27 S.E. 986 (1896). Absent any evidence that the plaintiff directed or ordered Haynie to speak slanderous words about the defendant, the Court must grant summary judgment as to that count unless Sires himself made defamatory statements about the defendant.
The defendant asserts that plaintiff uttered slanderous statements about him. The basis for his claim is what was told him by Ricky Johnson. Defendant's only knowledge of the alleged slander is his conversation with Johnson. (Deposition, Douglas M. Luke, p. 110, ln. 9-19, p. 164, ln. 10-11). Mr. Johnson's testimony at deposition does not support the contentions of defendant Luke. Johnson testified that the plaintiff had never said anything derogatory about defendant's operation of his business or about defendant's financial affairs. He further testified that anything he might have said to defendant about the plaintiff's making defamatory remarks to customers was a lie.
To continue reading
Request your trial
-
White v. Wells Fargo Guard Services
...would be admissible at trial.5Soles v. Board of Comm'rs of Johnson County, 746 F.Supp. 106, 110 (S.D.Ga. 1990) (citing Sires v. Luke, 544 F.Supp. 1155 (S.D.Ga.1982); Samuels v. Doctors Hosp., Inc., 588 F.2d 485, 486 n. 2 (5th Cir.1979)). In determining admissibility under Rule 56, the same ......
-
Givhan v. Electronic Engineers, Inc.
...would be admissible at trial.2 Soles v. Board of Comm'rs of Johnson County, 746 F.Supp. 106, 110 (S.D.Ga. 1990) (citing Sires v. Luke, 544 F.Supp. 1155 (S.D.Ga.1982); Samuels v. Doctors Hosp., Inc., 588 F.2d 485, 486 n. 2 (5th Cir.1979)). In determining admissibility under Rule 56, the same......
-
US v. Conservation Chemical Co.
...to support a motion for summary judgment. Nadler v. Baybank Merrimack Valley, 733 F.2d 182, 184 (1st Cir.1984); Sires v. Luke, 544 F.Supp. 1155, 1160 (S.D.Ga.1982); Liberty Leasing Co., Inc. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967); Standard Rolling Mills, Inc. v. National......
-
Deen v. Egleston, Civil Action No. CV208-037.
...Corp. v. Carletta, 46 F.Supp.2d 1297, 1299 (M.D.Fla.1999). The Southern District of Georgia case relied on by Defendant, Sires v. Luke, 544 F.Supp. 1155 (1982), is not to the contrary. In Sires, Judge Dudley H. Bowen, Jr., recognized that affidavits were admissible on summary judgment, and ......