RCO LEGAL, P.S., INC. Et Al. v. JOHNSON.
347 Ga. App. 661
Ga. Ct. App.2018Background
- RCO Legal hired Larry Johnson as a regional VP; he and his partner J&F handled a foreclosure that generated $76,602.89 in excess funds purportedly payable to borrower Luther Murray.
- J&F attempted to notify Murray; an investigator delivered a check and a release; Murray apparently declined the funds and later the funds were turned over to the State as unclaimed property; Johnson later secured a court declaration entitling J&F to the funds.
- RCO terminated Johnson for cause in Sept. 2015 (alleging theft/misconduct); Johnson filed arbitration against RCO and RCO filed Bar complaints and allegedly communicated theft allegations to third parties in the mortgage industry and internally.
- In 2017 Johnson sued RCO and certain employees for libel/slander based on: (1) theft allegations in RCO’s summary judgment filing in arbitration; (2) telephone statements to Fannie Mae’s counsel and others; (3) communications to RCO’s HR director and other firm employees.
- RCO moved to dismiss/strike under Georgia’s anti‑SLAPP statute (OCGA § 9‑11‑11.1); the trial court denied the anti‑SLAPP motion (finding Johnson showed a probability of prevailing) but struck large portions of RCO general counsel Galbraith’s affidavit and its exhibits as unauthenticated.
- On appeal the Court of Appeals: vacated the order striking Galbraith’s exhibits (trial court should have considered circumstantial authentication evidence); affirmed denial of the anti‑SLAPP motion generally; but directed that defamation claims based on the arbitration summary‑judgment filing and on communications to RCO’s HR director be struck (privileged/ intracorporate exception).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authentication of Galbraith exhibits | Exhibits show sender/letterhead and are consistent with other evidence; admissible circumstantially | Exhibits not properly authenticated; should be struck | Court: trial court erred in striking without assessing circumstantial indicators; vacate and remand for authentication analysis |
| Applicability of anti‑SLAPP to alleged statements | Statements fall within protected petition/speech but Johnson showed probability of prevailing | RCO argued statements were protected and should be struck | Court: allegations reasonably related to official proceedings so anti‑SLAPP applies, but Johnson met probability standard for many claims |
| Privilege for arbitration summary‑judgment allegations | Statements were false and actionable; harmed Johnson | Statements in arbitration pleadings are absolutely privileged | Court: summary‑judgment allegations in arbitration are absolutely privileged; those claims must be struck |
| Statements to Fannie Mae counsel / mortgage industry | Calls repeated theft accusation to industry; not privileged; actionable | Communications were connected to litigation/clients and privileged | Court: conditional privilege issue remains factual; Johnson showed prima facie probability of prevailing on these industry communications |
| Intracorporate communications (HR director; other firm personnel) | Internal statements were publication to third parties and actionable | Intracorporate exception or privilege precludes publication | Court: statements to HR fall within intracorporate exception and must be struck; statements to senior counsel, associate, and admin assistant survive because not clearly within exception or privileged |
Key Cases Cited
- Jubilee Dev. Partners v. Strategic Jubilee Holdings, 344 Ga. App. 204 (Ga. Ct. App.) (anti‑SLAPP purpose and standards)
- Koules v. SP5 Atlantic Retail Ventures, 330 Ga. App. 282 (Ga. Ct. App.) (circumstantial authentication of documents)
- Neff v. McGee, 346 Ga. App. 522 (Ga. Ct. App.) (2018) (probability‑of‑prevailing standard under amended anti‑SLAPP statute)
- Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808 (Ga. Ct. App.) (elements of defamation and defamation per se)
- Saye v. Deloitte & Touche, 295 Ga. App. 128 (Ga. Ct. App.) (absolute vs. conditional privilege; privilege policy rationale)
- Green v. Flanagan, 317 Ga. App. 152 (Ga. Ct. App.) (arbitration as quasi‑judicial/official proceeding for privilege/anti‑SLAPP analysis)