Order Granting Summary Judgment

Defendant Joe Nairon's ("Nairon") Motion for Summary Judgment having come before the Court on April 13, 1994, all parties being present or represented by counsel, and the Court having heard the arguments of counsel and considered the authorities submitted in briefs for both parties, does hereby find as follows:

This is an action brought sounding in tort for the alleged defamation of the Plaintiff Brock Construction Company, Inc. ("Brock") by Nairon and other unidentified John Doe defendants. Brock filed two applications with the DeKalb County Planning Department. One application was to change the zoning on a parcel of land fronting on Clairmont Road in DeKalb County, Georgia, and the second application was to seek an amendment to the land use plan regarding the same piece of property. Brock alleged that Nairon had published defamatory statements about its proposed real estate development and that as a result of that tort, Brock had suffered a loss due to the denial of his zoning applications. Nairon brought this motion for summary judgment contending that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. In granting Nairon's Motion, the Court finds that there is no genuine issue of material fact as to the following:

A. Constitutional Considerations

Enactment of zoning changes and changes in the land use map are essentially legislative acts of the county government. Like all other legislative matters considered by a county government, and especially in zoning cases where special sessions are held to receive public comments on pending zoning matters, the county board of commissioners relies in part on public sentiment in considering zoning matters.

The actions of Nairon, in speaking before the Planning Commission and the County Commissioners as well as distributing printed matter to them (Pages 1 and 3 of Exhibit "B" attached to the Complaint), is protected by the "petition clause" as set forth in the First Amendment to the Constitution of the United States as well as in the Georgia Constitution which guarantees, "the people have the right to assemble peaceably for their common good and to apply by petition or remonstrance to those vested with the powers of government for redress of grievances." GA. CONST., Art. 1, Sect. 1, Para. 9. Contrary to Brock's argument, not only are communications before government bodies afforded constitutional protection, but also communications to other citizens to encourage them to oppose zoning matters are constitutionally privileged. Any communication which is made with the ultimate goal of supporting or opposing legislative action by the government must be protected under the petition clause of the state and federal constitutions. The only exception to this protection would be where the defendant is trying to misuse or abuse the petition process against the plaintiff which is clearly not the case here. For this reason, as well as the others set forth hereinafter, summary judgment is granted in favor of Nairon. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L. Ed. 2d 382 (1991). Because this case appears to be one of first impression in the State of Georgia, the Court will also rule on Movant's other grounds for his motion.

B. Alleged Comments Do Not Constitute Defamation

In addition to finding that the words spoken by Nairon are protected by the United States and Georgia Constitutions, the words spoken by Nairon simply are not defamatory, and therefore, are not actionable. Brock has sought to base this action on statements attributed to Nairon to the effect that the proposed development planned to use Wellona Place for ingress and egress when in fact the Plaintiff intended to use Clairmont Road. Assuming for the sake of this motion that Nairon's statement were false and further assuming that it had injured Brock's business, this statement still does not qualify as the basis for a defamation action.

When the statement complained of is capable of but one meaning, it is for the Court to say whether it is defamation or not. Southland Publishing Company v. Sewell, 111 Ga. App. 803 (1965).

The statement made by the Defendant lacked the element of "personal disgrace." Southard v. Forbes, Inc., 588 F.2d 140 (5th Cir. 1979). In addition to being false and causing the Plaintiff an injury to his business, it must also appear that the language was defamatory and scandalous. Hardboard Machinery Company v. Coastal Products Corp., 280 F.Supp. 496, 498 (1967). Because the statements attributed to the Defendant were not defamation, the Defendant is entitled to summary judgment.

C. Proximate Cause

The issue of proximate cause is an element of Plaintiff's action upon which it bears the burden of proof at trial.

On summary judgment, a defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party's case, but may point out by reference to [the record] that there is an absence of evidence to support any essential element of the non-moving party's case. The non-moving party cannot then rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue... this rule has equal force in defamation cases..." Stange v. Cox Enterprises, Inc., 211 Ga. App. 731 (1994).

Brock seeks special damages based upon the fact that the zoning application was denied. Brock has provided no evidence that Defendant's activities were the proximate cause of the zoning denial. The Planning Commission stated its reasons for recommending denial of the applications and it did not on its face seem to incorporate or rely upon the issue of which means of ingress and egress the developer planned to use. The Board of Commissioners denied the applications without stating the reason for their actions. This Court knows of no way that the Plaintiff could introduce credible evidence which would permit the issue of proximate cause to go to the jury and certainly there is no evidence in the record at this time which would indicate that Defendant's actions were the proximate cause of the denial of the zoning. See Meyer v. Ladford, 170 Ga. App. 245 (1984).

D. Failure to Prove Damages

Nairon has also raised the issue that Brock has failed to prove the damages sought. Brock has sought its lost profits that it would have realized from the development of the subject property into cluster homes. As stated above, where the burden of proof at trial would be on Brock, it is up to Brock on motion for summary judgment to point to specific evidence when Nairon has suggested an absence of such evidence. OCGA section 51-12-8 states, "If the damage incurred by the Plaintiff is only the imaginary or possible result of a tortious act or if other contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer." Recovery may be had for loss of profits, provided their loss is the proximate result of Defendant's wrong and they can be shown with reasonable certainty (emphasis supplied). Norcross v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369 (1949). In the record before this Court, the only evidence regarding the proposed development is the sales price for the units which Plaintiff proposed, along with the unsupported opinion of the Plaintiff's president that the Plaintiff anticipated a profit of $1.4 million from the development. Any claim to a particular amount of profit would be sheer speculation on the part of the Plaintiff. For this reason, summary judgment should granted in favor of the Defendant on Plaintiff's claim for its actual damages, being its lost profit from the expected development of the subject property.

F. No Substantial Justification, Etc. -- Expenses of Litigation

The Court finds that plaintiff's claims have no legal merit and has granted summary judgment. The Court is greatly troubled by this litigation.

The Court believes that this case may have been filed with the express purpose of stifling the First Amendment rights of Nairon and other concerned citizens who might be identified as the John and Jane Doe Defendants.

There was no substantial justification for Brock's action against Nairon or the "John Doe" parties. The actions complained of were protected by the First Amendment of the Constitution of the United States and Art. 1, Sect. 1, Para. 9 of the Constitution of the State of Georgia. In addition, as previously discussed in this order, the statements alleged to be defamatory were not, there was no evidence of proximate cause and the damages sought were clearly remote and speculative.

Based upon the foregoing and the fact that the complaint was filed before the zoning was denied, the Court finds that the only conceivable purpose in filing this action was an attempt by Brock to improperly use the legal process to abuse, intimidate and harass Nairon and the other members of the committee. The Court notes that naming the so-called co-defendants, Jane and John Doe, clearly indicates to the legally unsophisticated that the expression of opposition to the plaintiff's zoning change request by others could result in their being added to the lawsuit, thereby chilling their First Amendment rights, even if they were not originally named as parties. This suit was not only used to harass Nairon, but was also designed to intimidate other persons as well from exercising their constitutional rights for fear of being named as a defendant in a multi-million dollar lawsuit.

Under similar circumstances, a New York Court noted that "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." Gordon v. Marone, No.185 4/90, Superior Court, Westchester County, New York, Decision at 28 (April 15, 1992).

Whatever this suit is labelled (be it a suit for defamation or a SLAPP suit), it was clearly an illegal act of intimidation aimed not only at Nairon but also any of the neighbors who might consider opposing and speaking against the rezoning of the Subject Property.

This abuse cannot be tolerated in a free society and therefore, the Court pursuant to OCGA section 9-15-14(b) must consider a motion for an award of expenses of litigation against plaintiff and its counsel brought the instant action without substantial justification and with the ulterior motive to harass and intimidate Nairon and others. The defendant is invited to file a two-page brief and affidavit in support stating his claim for attorneys' fees within twenty (20) days of the date of this Order. Within twenty (20) days of service of Nairon's brief and affidavit, Brock and his counsel shall file briefs opposing the claim.

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED AND ADJUDGED, that summary judgment is hereby granted in favor of Defendant JOE NAIRON and that the Complaint is dismissed hereby, with costs to be taxed against the Plaintiff. There being no further claims before the Court, this Judgment is entered as a final judgment as to all issues currently pending before the Court.

IT IS SO ORDERED this 22nd day of June, 1994.

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Clarence F. Seeliger
Judge, Stone Mountain Judicial Circuit