Matthews v. Mills

357 Ga.App. 214

850 S.E.2d 424

MATTHEWS

v.MILLS.

A20A1055

Court of Appeals of Georgia.

October 20, 2020

Pfahl Law, Scott Bolman Pfahl, Tyrone, for Appellant.

Gary Paul Bunch, for Appellee.

Hodges, Judge.

Nilma S. Matthews and Olivia A. Mills are both ex-wives of the same man and have had a contentious relationship for years. Their current dispute arose when Mills reported to a sheriff's deputy that she witnessed Matthews at her child's school photographing her child. Matthews denied ever going to the child's school and sued Mills for libel and slander as a result of Mills’ report. The trial court granted summary judgment to Mills on Matthews’ claims and awarded Mills $33,000 in attorney fees pursuant to OCGA § 9-15-14 (a) and (b). Matthews now appeals, contending that both the grant of summary judgment and the award of sanctions was in error. For the reasons below, we affirm the grant of summary judgment, but vacate the award of attorney fees and remand the case with direction.

To obtain summary judgment,

the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citation and punctuation omitted.) Gettner v. Fitzgerald , 297 Ga. App. 258, 258-259, 677 S.E.2d 149 (2009).

So viewed, the evidence shows that, on February 8, 2018, Mills reported to a Carroll County Sheriff's Deputy that she saw Matthews at her child's school that morning photographing her child. She further told him that she thought she also saw Matthews at the child's school a week prior. As a result, the deputy issued a report which said the following:

Mills reported that Nilma Matthews was also married to her ex-husband, Thomas Andrew Mills. She advised that Thomas and Nilma are going through court proceedings and that Nilma is harassing her. She reported that Nilma's attorney has sent her letters requesting her financial information and that Nilma was at her child's school ... taking photographs of her and her children. I advised Mills I would file this report and contact Matthews on her behalf and let Matthews know that she did not want her to contact her anymore. On 2/8/18 I spoke with Matthews on the phone and advised her of this report and that Mills did not want her to contact her anymore. Matthews denied being at the school and said she was not following Mills. I filed this report and advised Mills if she had any further issues, she could follow up in Magistrate Court for a good behavior bond or warrant hearing.

Following this contact by the sheriff's deputy, Matthews sought a warrant against Mills for reporting a false crime and sued Mills for libel and slander. Matthews filed her lawsuit in an attempt to establish that she had not done what Mills accused her of, and because she wanted Mills to leave her alone and was afraid Mills would take further actions against her.

Mills moved for summary judgment as well as for sanctions pursuant to OCGA § 9-15-14 (a) and (b). Following a hearing at which Mills’ counsel testified as to his fees, including the reasonableness of his rate and the necessity of the work performed, the trial court granted both motions and awarded Mills the full amount of fees she requested – $33,000 – pursuant to both subsections of OCGA § 9-15-14. Matthews now appeals.

1. Matthews contends that the trial court erred in granting summary judgment to Mills because it failed to review the facts in the light most favorable to Matthews and it ignored factual disputes. We disagree.

Matthews is correct about the standard the trial court and this Court must apply in reviewing a motion for summary judgment. See Gettner , 297 Ga. App. at 258-259, 677 S.E.2d 149. Matthews brought two defamation claims – libel and slander – so we will analyze those separately. See Swanson Towing & Recovery v. Wrecker 1, Inc. , 342 Ga. App. 6, 10 (2), 802 S.E.2d 300 (2017) ("Both libel and slander constitute defamation."); Aiken v. May , 73 Ga. App. 502, 503, 37 S.E.2d 225 (1946) (defining slander "as an oral defamation").

(a) Libel.

"A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs , tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule ... [and] [t]he publication of the libelous matter is essential to recovery." (Emphasis supplied.) OCGA § 51-5-1 (a), (b). Moreover, to recover, a plaintiff must prove that the defendant had control over the content of the offending writing. See Mullinax v. Miller , 242 Ga. App. 811, 814 (2), 531 S.E.2d 390 (2000) (finding no liability for campaign manager who provided information to a candidate which she used in a flyer because he did not control the offending verbiage of the writing which was the basis of plaintiff's lawsuit).

Here, Matthews does not even attempt to argue in her brief how her libel claim satisfies the element of requiring a writing of some kind. Indeed, she admitted in her deposition that she had never seen a written statement by Mills with this accusation. The only relevant writing is the police report drafted by the sheriff's deputy. There is no evidence in the record that Mills played any role in, or had any control over, the drafting or content of the report. Accordingly, the trial court did not err in granting Mills summary judgment on Matthews’ libel claim.

(b) Slander.

Georgia law provides:

Slander or oral defamation consists in: (1) [i]mputing to another a crime punishable by law; (2) [c]harging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; (3) [m]aking charges against another in reference to his trade, office, or profession, calculated to injure him therein; or (4) [u]ttering any disparaging words productive of special damage which flows naturally therefrom.

OCGA § 51-5-4 (a).

Matthews does not argue that she suffered any special damages, so what is at issue here is whether the report made by Mills to the sheriff's deputy consisted of imputing a crime to Matthews. To rise to the level of slander per se,

the words at issue must charge the commission of a specific crime punishable by law. Where the plain import of the words spoken impute no criminal offense, they cannot have their meaning enlarged by innuendo. Indeed, the statement must give the impression that the crime is actually being charged against the individual and couched in language as might reasonably be expected to convey such meaning to a hearer of the statement; a vague statement or even a derogatory one does not amount to slander per se when a person cannot reasonably conclude from what is said that the comments are imputing a crime to the plaintiff.

(Citation and punctuation omitted.) Swanson Towing & Recovery , 342 Ga. App. at 11 (2) (a), 802 S.E.2d 300. The words must be

recognized as injurious on their face—without the aid of extrinsic proof. Should extrinsic facts be necessary to establish the defamatory character of the words, the words may constitute slander, but they do not constitute slander per se. Thus, the court may not hunt for a strained construction in order to hold the words used as being defamatory as a matter of law, and the negative inference a hearer might take from the words does not subject the speaker to liability for slander per se.

(Citation and punctuation omitted.) Cottrell v. Smith , 299 Ga. 517, 523 (II) (A), 788 S.E.2d 772 (2016).

Matthews contends that Mills’ statement to the deputy imputed to her the crimes of stalking and harassment. Georgia law defines the crime of stalking as follows:

A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.... [T]he term "contact" shall mean any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device; and the place or places that contact by telephone, mail, broadcast, computer, computer network, or any other electronic device is deemed to occur shall be the place or places where such communication is received. For the purpose of this article, the term "place or places" shall include any public or private property occupied by the victim other than the residence of the defendant. For the purposes of this article, the term "harassing and intimidating" means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. This Code section shall not be construed to require that an overt threat of death or bodily injury has been made.

OCGA § 16-5-90 (a) (1). As for harassment, Georgia law defines the crime of harassing communications as follows:

(a) A person commits the offense of harassing communications if such person:

(1) Contacts another person repeatedly via telecommunication, e-mail, text messaging, or any other form of electronic communication for the purpose of harassing, molesting, threatening, or intimidating such person or the family of such person;

(2) Threatens bodily harm via telecommunication, e-mail, text messaging, or any other form of electronic

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