Wood v. Wade

• Decision Date: 04 February 2022
• Docket Number: A21A0558
• Citation: 363 Ga.App. 139,869 S.E.2d 111
• Parties: WOOD et al. v. WADE et al.
• Court: Georgia Court of Appeals

363 Ga.App. 139

869 S.E.2d 111

WOOD et al.

v.WADE et al.

A21A0558

Court of Appeals of Georgia.

February 4, 2022

Reconsideration Denied March 10, 2022

L. Lin Wood Jr., Ibrahim Reyes, for Appellant.

Buckley Beal, Andrew M. Beal, Atlanta, Milinda Lynn Brown, for Appellee.

Phipps, Senior Appellate Judge.

This appeal arises from a breach of contract and fraud action brought by Nicole Wade, Jonathan Grunberg, Taylor Wilson, and Wade, Grunberg & Wilson, LLC ("Appellees"), against L. Lin Wood and L. Lin Wood P.C. ("Appellants"). The trial court granted the Appellees’ request for an interlocutory injunction to enjoin the Appellants from violating a non-disparagement clause in a settlement agreement between the parties. On appeal, the Appellants contend that the trial court erred by entering the interlocutory injunction, which they argue amounts to an impermissible prior restraint against their constitutional right of free speech. The Appellants also contend that the trial court erred by basing the interlocutory injunction on a misinterpretation of the plain language of the non-disparagement clause. For the following reasons, we affirm.

The parties are lawyers, who formerly worked together, and their firms. In the context of ending their professional relationship, the parties entered into a settlement agreement which contains the following non-disparagement clause:

3. Non-Disparagement. LLW PC and L. Lin Wood, individually, agree not to disparage WGW.^{[1 ]} This agreement is not to be construed to imply or suggest that LLW PC and/or L. Lin Wood has disparaged WGW or its members prior to the date of this Agreement. Nothing in this provision prevents the Parties from providing truthful information about each other and its members in response to a court order or subpoena, or during any federal, state, or local governmental body investigation or proceeding. LLW PC and L. Lin Wood, individually, do not seek in this Agreement any legal protection regarding any future disparagement of LLW PC and L. Lin Wood, individually, but shall address any future false and defamatory statements by WGW and its members about LLW PC and L. Lin Wood, individually, on a case-by-case basis as provided by law.

The Appellees filed this lawsuit seeking to enforce the payment of certain fees under the terms of the settlement agreement. Prior to filing their complaint, the Appellees provided a copy of the draft complaint to the Appellants. According to Wilson, clients and co-counsel of the Appellees told him that Wood had called them and referred to the Appellees as "extortionists" in at least one phone call. Wood also e-mailed what he contends is a shared client and stated, "Nicole Wade and her law partners are preparing to sue me tomorrow for fraud in a frivolous lawsuit intended to extort money ... that they did not earn," "are putting their greed and personal interests ahead of the interests of their clients," are "crooks," and are guilty of other "wrongdoing." (Punctuation omitted.) After the lawsuit was filed, Wood issued a statement that he submitted to the press and posted on social media. In the statement, Wood accused the Appellees of, among other things, engaging "in a disgraceful and unprofessional effort to publicly attack [him]," of participating in a "shakedown effort" "with an intent to damage [his] professional reputation under the guise of the litigation privilege" and "to extort money from [him]."

The Appellees filed a motion seeking a preliminary injunction to enjoin the Appellants from violating the non-disparagement clause. At the hearing on the motion, Wood indicated (through counsel) to the trial court that he wanted to be able to continue to make communications and comments about the Appellees in social media while this litigation is pending. The trial court granted the Appellees’ motion, finding that the Appellants’ statements that the Appellees had filed a frivolous lawsuit for the purpose of extorting the Appellants, were seeking to be paid money that they did not earn, and were participating in a shakedown effort were disparaging on their face. In the order at issue here, the trial court preliminarily enjoined the Appellants from "[i]ssuing, publishing or making disparaging statements or disparaging comments about [the Appellees] whether orally, in writing, digitally or through social media." The order stated:

Nothing in this order shall prevent [the Appellants] from providing truthful information about [the Appellees] during this lawsuit, which shall include hearings, pleadings, trials, depositions, or discovery proceedings. Similarly, this [o]rder shall not prevent [the Appellants] from providing truthful information about [the Appellees] in response to a court order or subpoena, or during any federal, state, or local government body investigation or proceeding.

The Appellants appeal from the order granting the interlocutory injunction.

Whether to grant a request for interlocutory injunctive relief is within the trial court's discretion, and we will not reverse its decision "unless the trial court made an error of law that contributed to the decision, there was no evidence on an element essential to relief, or the court manifestly abused its discretion." SRB Investment Svcs., LLLP v. Branch Banking and Trust Co. , 289 Ga. 1, 5 (3), 709 S.E.2d 267 (2011) (citation and punctuation omitted). See OCGA § 9-5-8 ("The granting and continuing of injunctions shall always rest in the sound discretion of the judge, according to the circumstances of each case."). "The purpose for granting interlocutory injunctions is to preserve the status quo, as well as balance the conveniences of the parties, pending a final adjudication of the case." Kinard v. Ryman Farm Homeowners' Assn. , 278 Ga. 149, 149, 598 S.E.2d 479 (2004) (citation and punctuation omitted).

When deciding whether to issue an interlocutory injunction, a trial court should consider whether:

(1) there is a substantial threat that the moving party will suffer irreparable injury if the injunction is not granted; (2) the threatened injury to the moving party outweighs the threatened harm that the injunction may do to the party being enjoined; (3) there is a substantial likelihood that the moving party will prevail on the merits of [its] claims at trial; and (4) granting the interlocutory injunction will not disserve the public interest. The first factor — substantial threat of irreparable injury if an interlocutory injunction is not entered — is the most important one, given that the main purpose of an interlocutory injunction is to preserve the status quo temporarily to allow the parties and the court time to try the case in an orderly manner.

City of Waycross v. Pierce County Bd. of Commrs. , 300 Ga. 109, 111 (1), 793 S.E.2d 389 (2016) (citation and punctuation omitted). "Because the test for the issuance of an interlocutory injunction is a balancing test, it [is] not incumbent upon the [movant] to prove all four factors to obtain the interlocutory injunction." Id.

1. The Appellants’ primary argument for reversal is that the trial court erred as a matter of law by entering an injunction that amounts to an impermissible prior restraint against their constitutional right of free speech. We disagree.

"[T]he term ‘prior restraint’ is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur[.]" WXIA-TV v. State of Ga. , 303 Ga. 428, 434 (3), n. 7, 811 S.E.2d 378 (2018) (citation and punctuation omitted). It is well established that "prior restraints on speech and publication are the most serious and the least tolerable infringement[s] on First Amendment² rights." Id. at 434 (3), 811 S.E.2d 378 (citation and punctuation omitted). As our Supreme Court has recognized, the gravamen of an unlawful prior restraint is that the parties are prohibited, on pain of contempt, "from making statements that they would otherwise be free to make[.]" Id. at 434 (3), n. 7, 811 S.E.2d 378 (citation and punctuation omitted).

In the order granting the interlocutory injunction, the trial court addressed the Appellants’ argument that injunctive relief would constitute an unlawful prior restraint on free speech in this case. The trial court acknowledged that "the Georgia Supreme Court has consistently exhibited its firm policy to protect the right of free speech," see, e.g., High Country Fashions v. Marlenna Fashions , 257 Ga. 267, 268, 357 S.E.2d 576 (1987), but noted that "[t]he line of Georgia cases rejecting injunctive relief did not ... arise in the context of a breach of contract claim." As the trial court explained, "[t]he issue presented here is whether [the Appellants], having entered into a binding settlement agreement, are free to make the statements [the Appellees] seek to enjoin." The trial court considered some of the "limited number of cases nationally which address the interplay between contract rights and the First Amendment." For example, in Cohen v. Cowles Media Co. , 501 U. S. 663, 665, 672, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991), the United States Supreme Court considered "whether the First Amendment prohibits a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper's breach of a promise of confidentiality given to the plaintiff in exchange for information" and concluded that "the First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law[.]" Similarly, citing the analysis in Cohen , the Colorado Supreme Court later concluded that a breach of contract action for a violation of a non-disparagement clause was not barred by the First Amendment. Pierce v. St. Vrain Valley School Dist. RE-1J , 981 P.2d 600, 602-603 (II) (A), 604 (II) (B) (Colo. 1999). Further, in Aultcare Corp. v. Roach , No. 2007CA0009, 2007 WL 3088036, *2-3 (II, III) (Ohio Ct. App. 5th Dist., Oct. 22, 2007), an Ohio...