Aрpellant brought this action for libel against appellee attorney as the result of a letter written by appellee in which aрpellant was accused of “incompetence and mismanagement” in his management of a mobile home park. Appellee contended that the letter was a privileged communication and moved for summary judgment. Appellant brings this appeal from the trial court’s grant of that motion. We affirm.
The record shows that appellee’s client, Mrs. Grover, owned a tract of land upon which was lоcated a mobile home park. She entered into a sales contract for sale of the land in October, 1978 with members of a “group” whereby the “group” was to purchase the property and provide a manager to operate and maintain the park. Aрpellant, a licensed real estate agent, was selected as the manager.
The sale was not completed within the 90-day time period set for closing and problems developed between Mrs. Grover and the “group.” Additionally, Mrs. Grover, a resident of the mobile hоme park, became concerned over what she perceived as appellant’s mismanagement of the park. Because of the perceived incompetence and alleged deterioration of the mobile home park under apрellant’s management, as well as her fear that the sale of the property would not close, Mrs. Grover sought to resume managemеnt of the park. In an effort to do so, she instructed her attorney, appellee Boshéars, to draft a letter and send it to the attornеy for the group of prospective purchasers, one Phillips. Mrs. Grover believed that appellant was a *543 member of the “grouр” and therefore communicated her intentions to Phillips, its attorney.
The letter, composed by appellee in May, 1979, stated that appellant’s “incompetence and mismanagement [had] resulted in substantial damages to the property.” Failure to maintain the sewer system and oxidation plant as well as allowing the operation of a junk yard on the property were cited as examplеs of this incompetence and mismanagement. The letter concluded by stating that Mrs. Grover felt that she had suffered substantial damages by reason of appellant’s conduct and that she intended to resume active management of the property herself on June 1, 1979. Appellee contends that the letter was a privileged communication as a statement “made with the bona fide intent, on the part of the speaker, to protect his own interest in a matter where it is concerned.” Code § 105-709 ¶ 3.
“A charge made against another in refеrence to his trade, office or profession, calculated to injure him therein, is actionable per se unless made under cirсumstances which constitute it a privileged communication, such as [the privilege claimed by appellee]. The burden is on the defendant to establish this defense.”
Van Gundy v. Wilson,
On a motion for summary judgment in an action for libel, a movant defendant must negate a plaintiffs claim of actual malice by establishing that he lacked “ ‘knowledge thаt (the defamatory matter) was false or [did not publish it] with reckless disregard as to whether it was false or not.’ New York Times v. Sullivan,
In addition to the pleadings, appellee supported his motion for summary judgment with his affidavit and the deposition of Mrs. Grover. Appellee disclaimed any malice in sеnding the letter. He asserted that he sent the letter pursuant to his client’s instructions; *544 that his purpose in sending the letter was to fulfill his professional obligation to his client and to protect her interest; that he was not acquainted with appellant, had never met appellant рersonally and had no knowledge of appellant other than the information he received from his client and other residents of the park; that the letter was sent in anticipation of subsequent litigation; and that the letter was sent to one held out to be appellаnt’s agent. Mrs. Grover’s deposition supported these assertions.
“An attorney can claim the privilege to which his client is entitled.” Kenny v. Cleary,
In opposition to the motion for summary judgment, appellant submitted the deposition of appellee Boshears, the affidavit of óne Brazell (a member of the “group”), as well as his own affidavit. Appellant asserted that he was not a member of the “group” at the time the letter was sent and that Phillips had never been held out to be his agent. He also stated that in sending the letter appellеe “did not act with a bona fide intent to protect Mrs. Grover’s interest, but acted with ill will and malice towards me.” Brazell averred in his affidavit that аppellee “had shown his personal ill will towards the group of investors who were purchasing the mobile home park” including appеllant. Appellee’s deposition disclosed no evidence of actual malice.
Pretermitting the question of whether Phillips was aсtually appellant’s agent, the evidence submitted by appellant related no facts or circumstances showing actual maliсe. “Conclusory allegations by the plaintiff of conspiracy, malice, and defamation are insufficient — in the absence of substantiаting fact or circumstances [—] to raise a material issue for trial. ‘ (I) t is the duty of each party at the hearing on the motion for summary judgment tо present his case in full.’
Summer-Minter & Assoc. v. Giodano,
Judgment affirmed.