Hartman v. Pip-Group, LLC.

349 Ga.App. 233

825 S.E.2d 601

HARTMAN

v.The PIP-GROUP, LLC.

A18A1529

Court of Appeals of Georgia.

March 7, 2019

Certoriari Denied November 4, 2019

Kilpatrick Townsend & Stockton, Thomas M. Clyde, for appellant.

Rountree & Leitman, David S. Klein, for appellee.

McFadden, Presiding Judge.

The two orders on appeal are from a second round of litigation arising out of the breakdown in the commercial relationship between Jason Hartman and The PIP-Group, LLC ("PIP"). They had entered a contract for PIP to provide services to help Hartman purchase tax liens. After the relationship soured, Hartman sued PIP for, among other things, breach of the contract. PIP counterclaimed for, among other things, defamation.

One order granted PIP's motion to dismiss or for judgment on the pleadings. We affirm that order because an exculpatory clause in the parties' contract relieves PIP from liability for claims related to the contract and because Hartman's other claims are untimely.

The other order granted PIP's motion for injunctive relief, directing Hartman to remove podcasts and posts from certain websites and prohibiting Hartman from making oral or written statements about PIP that could be interpreted as defamatory or irreparably harmful. We reverse that order because PIP has not met the heavy burden of showing that this case should be excepted from the general rule that equity will not enjoin libel and slander.

1. Standard of review, facts, and procedural posture .

As an initial matter, we agree with Hartman that, by considering a document outside the pleadings — the parties' agreement settling prior litigation — the trial court converted PIP's motion to dismiss or for judgment on the pleadings into a motion for summary judgment. See OCGA § 9-11-12 (c) ; Cox v. Athens Regional Med. Ctr., 279 Ga. App. 586, 587, 631 S.E.2d 792 (2006) (motion to dismiss was converted to motion for summary judgment because court considered a contract between the parties). So we review the trial court's order "under the de novo standard of review applicable to orders on summary judgment, construing the evidence in a light most favorable to [Hartman], as the nonmovant." Carter v. VistaCare, LLC , 335 Ga. App. 616, 617 (1) n.4, 782 S.E.2d 678 (2016).

So viewed, the record shows that PIP is a business that provides services to investors in tax liens, tax deeds, and foreclosures, among other things. On September 5, 2006, Hartman and PIP entered an agreement under which PIP agreed to serve as Hartman's agent for purposes of making tax lien investments. The parties refer to this as an agency agreement. The agreement contains a Limitation of Liability and Indemnity clause for PIP's benefit.

Hartman paid PIP to foreclose on certain unredeemed tax liens. Some time later, PIP informed Hartman that it had never received the authorization form required to move forward with the foreclosures and that his right to foreclose had expired. PIP foreclosed on one of the unredeemed tax liens in its own name.

Hartman recorded a podcast about his experience with PIP and posted the podcast on his website.

On December 31, 2014, PIP sued Hartman and his company in Fulton Superior Court for defamation and breach of contract. Hartman and his company answered the complaint and asserted a breach-of-contract counterclaim. On March 2, 2017, PIP and Hartman entered a settlement agreement under which PIP dismissed its claims with prejudice and Hartman dismissed his counterclaim without prejudice. Some time after that, Hartman reposted the original podcast and posted another podcast about PIP.

Within six months of the dismissal of the prior lawsuit, Hartman filed this action, alleging that PIP unlawfully converted the unredeemed tax lien and breached the agency agreement. He also alleged that PIP breached its fiduciary duties, that PIP breached the covenant of good faith and fair dealing, and that PIP was unjustly enriched by putting one property in its name. PIP answered the complaint and asserted counterclaims for defamation, defamation per se, and tortious interference with business relations.

The trial court granted PIP's motion to dismiss or for judgment on the pleadings as to Hartman's complaint, converting it, as noted above, to a motion for summary judgment. A week later, the court granted PIP's motion for temporary and interlocutory injunctive relief, ordering Hartman to remove his communications about PIP from certain websites and prohibiting him from making certain oral and written statements about PIP in the future. Hartman filed this appeal.

2. Failure to give notice of conversion of PIP's motion to a motion for summary judgment .

Hartman argues that the trial court erred in converting PIP's motion to dismiss or for judgment on the pleadings to a motion for summary judgment without giving him notice and an opportunity to present any materials in opposition. But it was Hartman who presented the settlement agreement to the trial court at the hearing on PIP's motions. So any error in this regard was induced by Hartman. "It is well settled that when a party has himself induced what he subsequently assigns as error, he will not be heard to complain of it on appeal." Price v. Hitchcock, 174 Ga. App. 606, 607 (2), 330 S.E.2d 807 (1985). See also RTS Landfill v. Appalachian Waste Systems, LLC, 267 Ga. App. 56, 62 (2), 598 S.E.2d 798 (2004) (party can waive procedural requirements when a motion for judgment on the pleadings is converted to a motion for summary judgment by introducing evidence). And as Hartman has not included a transcript of that hearing in the appellate record, we do not know whether he objected to the trial court's procedure. Hartman has not demonstrated reversible error in this regard.

3. Breach of contract .

Hartman argues that the trial court erred by holding that the exculpatory clause in the agency agreement bars his claim for breach of contract and breach of the implied covenant of good faith and fair dealing, because the clause is ambiguous. We disagree.

To be enforceable, an exculpatory clause "must be explicit, prominent, clear and unambiguous." 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894, 898 (1) (a), 775 S.E.2d 243 (2015) (citation and punctuation omitted). The clause at issue provides:

5. Limitation of Liability and Indemnity . PIP is acting solely as agent to Principal and, as such, PIP shall not be liable for any acts taken or omitted to be taken in connection with this agreement, whether such acts constitute negligence, gross negligence or otherwise. Principal shall indemnify, hold harmless and defend PIP from all liability for loss, damage or injury to person or property in any manner arising out of or incident to the performance by PIP of this agreement.

That language is clear: PIP is not liable for any acts taken or not taken in connection with the agreement.¹ Herren v. Sucher, 325 Ga. App. 219, 222 (1) (a), 750 S.E.2d 430 (2013). Consequently, the trial court did not err in granting summary judgment to PIP on Hartman's breach-of-contract claim and the related claim of breach of the implied duty of good faith and fair dealing. Ceasar v. Wells Fargo Bank, NA., 322 Ga. App. 529, 533 (2), 744 S.E.2d 369 (2013) (implied covenant of good faith and fair dealing in a contract's performance "cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability") (citation and punctuation omitted).

4. Statute of limitation bar to claims for breach of fiduciary duty, unjust enrichment, and conversion .

The trial court ruled that Hartman's remaining claims — breach of fiduciary duty, unjust enrichment, and conversion — were barred by the statute of limitation. To the extent Hartman enumerated this ruling as error, he has abandoned it by failing to support it with argument and citation of authority. "Any enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned." Court of Appeals Rule 25 (c) (2). Accordingly, we do "not address the propriety of the trial court's ruling in this regard." Rollins v. LOR, Inc. , 345 Ga. App. 832, 841 (1), 815 S.E.2d 169 (2018).

Hartman has sufficiently set out one argument that implicates the trial court's statute-of-limitation ruling. He argues that those remaining claims were saved from the statute-of-limitation bar by a subsection of the renewal statute, OCGA § 9-2-61 (a). So we address that argument to the extent it affects the claims for breach of fiduciary duty, unjust enrichment, and conversion. We do not address that argument in relation to the breach-of-contract and breach-of-implied-duty-of-good-faith claims because, as discussed in Division 3, the exculpatory clause bars those claims, and we will affirm a trial court's decision if it is right for any reason. Strickland v. Auto-Owners Ins. Co., 273 Ga. App. 662, 666 (2), 615 S.E.2d 808 (2005).

Hartman argues here that the trial court erred by ruling that he could not file the instant action as a renewal of the breach-of-contract counterclaim that he asserted in the prior litigation. See OCGA § 9-2-61. And in the court below, Hartman argued that those remaining claims were saved from the statute-of-limitation bar by a subsection of the renewal statute, OCGA § 9-2-61 (a) ("When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later....").

But assuming that Hartman could file this action as a renewal action, he could not add those remaining claims because those claims were not substantially the same as his counterclaim in the original action. The original action asserted only a claim for breach of contract. Blier v. Greene, 263 Ga. App....