Eurostyle, Inc

v. Jones, 197 Ga. App. 188, 397 S.E.2d 620 (1990). While liens were improperly filed by a supplier, the property owner failed to show that the statements in the lien notices were false; further, the trial court could also have found that the liens were privileged under O.C.G.A. § 51-5-8 and, thus, dismissal of the owner’s slander of title action was proper. Roofing Supply of Atlanta, Inc. v. Forrest Homes, Inc., 279 Ga. App. 504, 632 S.E.2d 161 (2006). 602 Summary judgment was properly granted to real property buyers in an action by the sellers, alleging slander of title under O.C.G.A. § 51-9-11, as the sellers failed to assert actionable claims when lis pendens filed against the property were proper and privileged under O.C.G.A. § 51-5-8; further, any failure to remove or properly mark the lis pendens pursuant to O.C.G.A. § 44-14-612 after the sellers voluntarily dismissed the claim did not form the basis of a slander of title claim against the buyers. Exec. Excellence, LLC v. Martin Bros. Invs., LLC, 309 Ga. App. 279, 710 S.E.2d 169 (2011). The libel of a suit being filed is no libel at all. HFC v. Gilley, 167 Ga. App. 195, 306 S.E.2d 85 (1983). All allegations made in pleadings are absolutely privileged, provided the allegations are material and relevant to relief sought, and the court has jurisdiction to grant that relief. ‘‘Absolute’’ means at all times and without any exceptions. It means that the law has decreed that there can be no damages ever for such allegations. Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734 (1952), later appeal, 88 Ga. App. 131, 76 S.E.2d 229 (1953). While this section does not use the term ‘‘absolute privilege,’’ Georgia courts have said that it is recognized as a part of law of state. Fedderwitz v. Lamb, 195 Ga. 691, 25 S.E.2d 414 (1943). Characteristic feature of absolute privilege is that question of malice is not open; all inquiry into good faith is closed. Fedderwitz v. Lamb, 195 Ga. 691, 25 S.E.2d 414 (1943). Former Code 1933, §§ 105-710 and 105-711 (see now O.C.G.A. §§ 51-5-8 and 51-5-9) must be construed together. Finish Allatoona’s Interstate Right, Inc. v. Burruss, 131 Ga. App. 572, 206 S.E.2d 679 (1974). Underlying principle upon which the doctrine of privileged communications rests is public policy. — This is especially the case with absolute privilege, when the interest and the necessities of society require that the time and occasion of the publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability 51-5-8 to prosecution, for the sake of the public good. It rests upon the same necessity that requires the individual to surrender the individual’s personal rights, and to suffer loss for the benefit of the common welfare. Happily for the citizen, this class of privilege is restricted to narrow and well-defined limits. Fedderwitz v. Lamb, 195 Ga. 691, 25 S.E.2d 414 (1943). Action for libel founded on allegations in pleading fails to state claim upon which relief can be granted. Garrett v. DeWorken, 148 Ga. App. 656, 252 S.E.2d 81 (1979). In testing pleadings, marks of absolute privilege are relevancy and materiality. When these are wanting, there is no privilege, or only conditional privilege at most. Finish Allatoona’s Interstate Right, Inc. v. Burruss, 131 Ga. App. 572, 206 S.E.2d 679 (1974). Existence of malice in making false allegations is immaterial. The code declares such allegations privileged. Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734 (1952), later appeal, 88 Ga. App. 131, 76 S.E.2d 229 (1953). Section does not bar abusive litigation claim. — The privilege established under O.C.G.A. § 51-5-8 does not bar a claim for abusive litigation pursuant to O.C.G.A. § 51-7-80 et seq. Kluge v. Renn, 226 Ga. App. 898, 487 S.E.2d 391 (1997). Section not applicable to liens. — Although under this section, allegations in pleadings are privileged even if false and malicious, this rule would not apply to a lien as it is strictly construed and is not a pleading. Carl E. Jones Dev., Inc. v. Wilson, 149 Ga. App. 679, 255 S.E.2d 135 (1979). A lien is not a pleading for purposes of O.C.G.A. § 51-5-8 and statements made within a surveyor’s lien are not afforded absolute privilege until the lien becomes attached to a lawsuit and verified notice of the suit is filed under O.C.G.A. § 44-14-361.1, at which point, the lien becomes an act of legal, or judicial process, and achieves the formality, solemnity, and status of a sworn statement. Simmons v. Futral, 262 Ga. App. 838, 586 S.E.2d 732 (2003). Libel claim by debtor untimely. — Trial court did not err in entering judg- 603 ment in favor of a company on a debtor’s libel claim because the debtor’s claim was untimely under O.C.G.A. § 9-3-33; the debtor’s libel claim was based upon the company’s allegations in a deficiency claim against the debtor, which was filed in January 2007, and the company’s subsequent failure to dismiss the claim after the debt was discharged in bankruptcy in March 2008, and the debtor first asserted the claim in September 2009. Furthermore, the trial court did not err because the debtor’s allegations were privileged under O.C.G.A. § 51-1-8 and, as such, were not libelous as a matter of law. Sevostiyanova v. Tempest Recovery Servs., 307 Ga. App. 868, 705 S.E.2d 878 (2011). Privilege applicable to EEOC proceedings. — Equal Employment Opportunity Commission (EEOC) proceedings were quasi-judicial in nature, thus, the former employers’ statements to the EEOC in response to the former employee’s EEOC charge were absolutely privileged under O.C.G.A. § 51-5-8 and the employee’s defamation claim failed on the employers’ motion for summary judgment. Collins v. Onyx Waste Servs. of N. Am., LLC, No. 7:04-cv-70 (HL), 2005 U.S. Dist. LEXIS 38258 (M.D. Ga. Dec. 20, 2005). This section protects statements in affidavit impeaching the credit of a person seeking an attachment. Conley v. Key, 98 Ga. 115, 25 S.E. 914 (1896). Quotations from pleadings conditionally privileged. — A letter sent by the defendant bank to its shareholders, which letter quoted from the bank’s verified answer to the plaintiff ’s original complaint, was not absolutely privileged since the letter itself was not a pleading; the publishing of quotations from pleadings in such a letter is protected only by a conditional privilege. O’Neal v. Home Town Bank, 237 Ga. App. 325, 514 S.E.2d 669 (1999). Disclosure of promissory note with borrower’s social security number attached to complaint was privileged. — A borrower could not recover against a lender for invasion of privacy or violation of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., based on the lender’s attaching the note on which it sought to 51-5-8 recover, which contained the borrower’s Social Security number, to its complaint. The pleading was privileged under O.C.G.A. § 51-5-8. Finnerty v. State Bank & Trust Co., 301 Ga. App. 569, 687 S.E.2d 842 (2009). There is no privilege as to judicial proceedings when newspaper report of such proceedings is not accurate and correct, or when the report is not done in good faith but with an express desire to vent ‘‘private malice’’ on another, even though, on its face, the article shows that the reporter was either merely quoting from the court petition verbatim or was repeating the substance of the allegations thereof. Shiver v. Valdosta Press, 82 Ga. App. 406, 61 S.E.2d 221 (1950). To qualify for the privilege as to judicial proceedings, a newspaper report of such proceedings must present fully, fairly and accurately an impartial account of the proceedings. Although it must be accurate, at least with regard to all material matters, a substantially accurate report may be privileged as mere inaccuracies not affecting materially the purport of the article are immaterial. It is not necessary that the report be verbatim, and it may consist of an abridged or condensed statement, provided such statement is a fair one. Shiver v. Valdosta Press, 82 Ga. App. 406, 61 S.E.2d 221 (1950). In camera summarization of evidence. — Allegedly slanderous statement made in an attorney’s in camera summarization of relevant evidence during the course of a federal court trial, while not a pleading within the meaning of O.C.G.A. § 51-5-8, was nonetheless absolutely privileged. Bell v. Anderson, 194 Ga. App. 27, 389 S.E.2d 762 (1989). Allegations made in recall petitions are not absolutely privileged, but are only conditionally privileged as ‘‘comments upon the acts of public men in their public capacity and with reference thereto.’’ Davis v. Shavers, 225 Ga. App. 497, 484 S.E.2d 243 (1997), aff ’d, 269 Ga. 75, 495 S.E.2d 23 (1998). Petition for appointment of guardian. — Statements contained in a petition for appointment of a guardian were privileged. Cleveland v. Williamson, 194 Ga. App. 476, 391 S.E.2d 22 (1990). 604 Privilege applied in tortious interference with contract action. — Any statements attributed to the defendant by the press, which were taken from court documents, could not provide a basis for a claim of tortious interference with contract. Phillips v. MacDougald, 219 Ga. App. 152, 464 S.E.2d 390 (1995). Attorney’s letter not privileged. — Alleged libelous statements contained in a letter from the defendant’s attorney to appraisers who were valuing the shareholder’s stock upon resignation were not protected under O.C.G.A. § 51-5-8. Sparks v. Ellis, 205 Ga. App. 263, 421 S.E.2d 758, cert. denied, 205 Ga. App. 901, 421 S.E.2d 758 (1992). Letter from accounting firm to controller’s employer not privileged. — With regard to a controller’s claims for defamation and tortious interference against an accounting/auditing firm that wrote a letter to the controller’s employer that resulted in the controller’s termination from employment, the trial court erred by dismissing the complaint after concluding that the alleged defamatory statements were inactionable privileged communications that had not been published since the controller sufficiently alleged malice, the communications between the accounting/auditing firm and the employer were conditionally privileged under O.C.G.A. § 51-5-7, and the controller sufficiently alleged publication of the statements. Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 670 S.E.2d 818 (2008). In an action for nonpayment of a bill, a copy of the bill which the plaintiff doctor attached to the complaint was clearly both relevant and material to the plaintiff doctor’s suit. Garner v. Roberts, 238 Ga. App. 738, 520 S.E.2d 255 (1999). Slander of title claim involving corporation. — Trial court erred in granting partial summary judgment to a limited liability company (LLC) and the company’s member on a creditor’s slander of title claim on the ground that the filing and publication of the notice of lis pendens were privileged under O.C.G.A. § 51-5-7(3) because the LLC and member did not show that they had an interest to uphold in a commission such that they 51-5-8 were entitled as a matter of law to the privilege set forth in O.C.G.A. § 51-5-7(3); a letter accompanying the transmission of the complaint and notice of lis pendens to a bank did not refer to a commission owed to either the LLC or the member but rather to one owed to another entity. McChesney v. IH Riverdale, LLC, 307 Ga. App. 77, 704 S.E.2d 244 (2010). Application in criminal case. — The defendant’s malice murder and aggravated battery convictions were upheld on appeal, as the trial court did not err in introducing into evidence the pleadings filed in a civil lawsuit brought by the defendant against the victim and others, as the pleadings, albeit privileged, were introduced to show the defendant’s motive or state of mind. Taylor v. State, 282 Ga. 44, 644 S.E.2d 850 (2007), cert. denied, 552 U.S. 950, 128 S. Ct. 384, 169 L. Ed. 2d 263 (2007). Arrest warrants. — Trial court committed no error in dismissing the defamation claim predicated on the allegedly false statements by the defendant made in the arrest warrant application and the warrant application hearing, but erred in dismissing the claim to the extent that the claim could be construed as alleging that the defendant communicated unprivileged, defamatory statements to third parties outside the context of the warrant application proceedings. Renton v. Watson, 319 Ga. App. 896, 739 S.E.2d 19 (2013). Section not applicable to fraud claim. — Trial court erred by granting summary judgment to an estate executor in a suit asserting fraud and other claims brought by two siblings as the trial court incorrectly determined that the privileges set forth in O.C.G.A. §§ 51-5-7(2) and 51-5-8 applied to the fraud claims and neither collateral estoppel nor res judicata barred the action since a prior probate court proceeding did not involve the same issues. Further, the probate court would have had no jurisdiction over the fraud and intentional interference with a gift claims. Morrison v. Morrison, 284 Ga. 112, 663 S.E.2d 714 (2008). Cited in Gibbs v. Bank of Tifton, 21 Ga. App. 653, 94 S.E. 827 (1918); Bennett v. Bellinger, 40 Ga. App. 557, 150 S.E. 566 605 (1929); White v. Holderby, 192 F.2d 722 (5th Cir. 1951); Jordan v. Burger King Corp., 124 Ga. App. 652, 185 S.E.2d 577 (1971); Berger v. Shea, 150 Ga. App. 812, 258 S.E.2d 621 (1979); Fiske v. Stockton, 171 Ga. App. 601, 320 S.E.2d 590 (1984); Henson v. American Family Corp., 171 Ga. App. 724, 321 S.E.2d 205 (1984); Stewart v. Walton, 254 Ga. 81, 326 S.E.2d 738 (1985); Rothstein v. L.F. Still & Co., 181 Ga. App. 113, 351 S.E.2d 513 (1986); 51-5-9 Watkins v. Laser/Print-Atlanta, Inc., 183 Ga. App. 172, 358 S.E.2d 477 (1987); Diamond v. American Family Corp., 186 Ga. App. 681, 368 S.E.2d 350 (1988); South River Farms v. Bearden, 210 Ga. App. 156, 435 S.E.2d 516 (1993); Hightower v. Kendall Co., 225 Ga. App. 71, 483 S.E.2d 294 (1997); Clark v. Clark, 969 F. Supp. 1319 (S.D. Ga. 1997); Sanders v. Brown, 257 Ga. App. 566, 571 S.E.2d 532 (2002).