VIRGIL A. GRACE A/K/A RICHARD GRACE v. JAMES LOWERY ( 2021 )

SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 18, 2021
In the Court of Appeals of Georgia
A21A0422. GRACE et al. v. LOWERY et al.
PIPKIN, Judge.
A jury returned a general verdict in favor of Appellees James Lowery and Ortiz
Custom Guns, LLC., finding Appellants Virgil A. Grace, Patricia A. Grace, and
Uniforms by Patrick, Inc., liable for damages arising after Appellees unwittingly
purchased stolen guns from Appellants’ employee. On appeal, Appellants assert,
among other things, that the evidence was insufficient to sustain the verdict. We agree
that at least one of Appellees’ claims – defamation – was improperly submitted to the
jury; accordingly, we reverse the judgment of the trial court and remand for a new
trial.
Virgil A. Grace and his wife, Patricia Grace, owned and operated “Uniforms
by Patrick,” a business that, as the name implies, largely sold uniforms; however, the
business also sold firearms and had a gun range. In 2013, Virgil hired Christopher
Edgecombe. Edgecombe eventually became gun range manager and master at
Uniforms by Patrick, which meant that he “oversaw everything on the firearms side”
of the business. In June 2013, Edgecombe began selling firearms to James Lowery,
a representative of a smaller firearms operations known as Ortiz Custom Guns.1 In the
nearly five months that followed, Edgecombe sold dozens of firearms to Ortiz Custom
Guns, either through Lowery or other Ortiz representatives. Unbeknownst to Ortiz
Custom Guns, its representatives, or Uniforms by Patrick, Edgecombe was pocketing
the proceeds of those firearms sales, and, it turned out, was a convicted felon who
was prohibited from dealing in firearms.2
The Graces eventually uncovered Edgecombe’s misdeeds and confronted him;
Edgecombe was arrested for theft, and all of the guns Edgecombe sold to Ortiz
Custom Guns were reported stolen. The Bureau of Alcohol, Tobacco, Firearms, and
Explosives (“ATF”) became involved in the matter, and the ATF seized firearms from
1
The jury heard testimony that it is not uncommon for a smaller gun shop to
buy firearms for resale from other gun retailers.
2
The Graces did not conduct a background check on Edgecombe when he was
hired; this decision, and the reasoning behind it, was a central issue at trial.
2
both Ortiz Custom Guns and from Ortiz’s customers .3 A local news station picked
up the story and published details of the affair, including a statement by local law
enforcement suggesting that Ortiz Custom Guns was complicit in Edgecombe’s
misdeeds. Ortiz Custom Guns also learned that the Graces had been making
disparaging comments about Ortiz Custom Guns and its involvement with
Edgecombe.
Appellees subsequently brought this action against Appellants alleging, among
other things, defamation, negligent hiring and retention of Edgecombe, and false light
invasion of privacy. At trial, the jury was charged on numerous claims and returned
a general verdict in favor of Appellees. The jury found Appellants liable for almost
$3 million in damages and attorney fees.4 Appellants now argue on appeal, among
3
The guns were later returned to both Ortiz Custom Guns and its customers;
Edgecombe eventually pleaded guilty to stealing firearms from a federally licensed
firearms dealer.
4
The jury awarded $1,000,000 to Lowery, $1,500,000 million to Ortiz Custom
Guns, and $202,000 in attorney fees; the jury also awarded punitive damages. The
jury apportioned fault as follows: Virgil Grace, 25%; Patricia Grace, 25%; and,
Uniforms by Patrick, 50%.
3
other things,5 that Appellees’ defamation claim was improperly submitted to the jury
because there was no evidence of any specific defamatory statement of fact.6 We
agree.
5
Appellants’ first enumeration of error concerns Appellees’ claim of false light
invasion of privacy, which arises out of the media coverage in which law enforcement
linked Appellees to Edgecombe’s gun-selling scheme. Appellees’ theory of the claim
is that, but for Virgil’s negligent hiring of Edgecombe, Appellees would not have
been involved in Edgecombe’s scheme or been publicly linked it. On appeal,
Appellants assert that they were entitled to a directed verdict on this claim.
Specifically, Appellants contend that a plaintiff may only pursue a false light claim
against the party who actually publishes the alleged falsehood placing the plaintiff in
a false light and that, here, the undisputed evidence shows that Appellants were not
responsible for the content of the news report or its publication. However, while
Appellants moved the trial court for a directed verdict on the question of
“publication” as to the various defamation claims and argued that Appellees could not
simultaneously pursue their defamation and false light claims, Appellants never
specifically argued below (as they do on appeal) that a false light claim requires that
a defendant be involved in the content or the publication of the alleged falsehoods.
Thus, though Appellees’ novel interpretation of the tort of false light invasion of
privacy is troubling, see Smith v. Stewart, 291 Ga App. 86, 100 (5) (a) (ii) (660 SE2d
822) (2008), and Torrance v. Morris Publishing Group, LLC, 281 Ga. App. 563, 572
(3) (b) (636 SE2d 740) (2006), Appellants’ failure to raise this specific claim in their
motion for directed verdict precludes them from pursuing it on appeal to seek a
judgment as a matter of law. See Old Republic Nat. Title Ins. Co. v. RM Kids, LLC,
337 Ga. App. 638, 645 (3) (788 SE2d 542) (2016). Further, while Appellants may still
seek a new trial based on the sufficiency of the evidence of this claim, see id., our
reversal of the general verdict on other grounds renders any such inquiry unnecessary.
6
Appellants did not move for a directed verdict on this claim, but they may
nonetheless still seek a new trial on the basis that the evidence was insufficient to
sustain the verdict. See Aldworth Co., Inc. v. England, 281 Ga. 197, 198-201 (2) (637
SE2d 198) (2006).
4
In their amended complaint, Appellees alleged that the Graces “made multiple
statements in front of customers and employees [of Uniforms by Patrick] that implied
that both Ortiz Custom Guns and its manager [Lowery] engaged in ‘illegal activity,’
including but not limited to unlawful firearms trading with [Edgecombe].” To prove
their claim of defamation, Appellees were required to show the following: “(1) a false
and defamatory statement concerning the plaintiff; (2) an unprivileged
communication to a third party; (3) fault by the defendant amounting at least to
negligence; and (4) special harm or the actionability of the statement irrespective of
special harm.” Infinite Energy, Inc. v. Pardue, 310 Ga. App. 355, 356 (1) (713 SE2d
456) (2011). “[T]he defamatory statement must be published,” and “[a] plaintiff
cannot prove publication without introducing evidence of the specific statement used
in an allegedly defamatory communication.” (Citations omitted.) Lewis v. Meredith
Corp., 293 Ga. App. 747, 748-749 (1) (667 SE2d 716) (2008). In reviewing this
claim, we look only to see whether there is “any evidence” to support it. See Aldworth
Co., Inc. v. England, 281 Ga. 197, 201 (2) (637 SE2d 198) (2006).
While Appellees claim that Appellants engaged in a “a campaign of defamatory
comments and slanderous allegations against Appellees” and were “making
allegations that Appellees knew of Edgecombe’s devious dealings and were willfully
5
complicit in his criminal enterprise,” Appellees have wholly failed to identify any
specific statements which would support a claim of defamation, and they have failed
to cite any meaningful case law supporting their position that the evidence was
sufficient to support a claim of defamation. A review of the transcript reflects that a
former employee at Uniforms by Patrick testified that “[c]onversations were had, in
the open, about firearms being stolen or Ortiz Customs buying stolen firearms. Exact
conversations, I couldn’t give you.” (Emphasis supplied.) In fact, this employee
repeatedly testified that, although the Graces had allegedly made derogatory
comments about Ortiz Custom Guns, he could not recall exact statements. This vague
testimony, which fails to identify any particular words or statements made by
Appellants, affords no basis for recovery. See ITT Rayonier, Inc. v. McLaney, 204 Ga.
App. 762, 765 (2) (420 SE2d 610) (1992).
Likewise, while the jury heard that Patricia Grace had been overheard saying,
“Once we’re done with them, they’ll be out of business,” this mere statement of
opinion or rhetorical hyperbole is not actionable. “An opinion can constitute
actionable defamation if the opinion can reasonably be interpreted, according to the
context of the entire writing in which the opinion appears, to state or imply
defamatory facts about the plaintiff that are capable of being proved false.” See Gast
6
v. Brittain, 277 Ga. 340, 341 (589 SE2d 63) (2003). At most, Patricia’s statement
“implies that [Appellants] ha[d] a negative opinion of [Appellees], but it is too far of
a stretch to interpret the [statement] as implying ‘defamatory facts’ about
[Appellees.]” Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, 811-812 (1) (a)
(708 SE2d 672) (2011) (yard sign stating “Ask our opinion why not to buy a Harrison
& Lynam Home” not actionable as defamation). Swanson Towing & Recovery, LLC
v. Wrecker 1, Inc., 342 Ga. App. 6, 11 (2) (a) (802 SE2d 300) (2017) (no action for
defamation where representative of one towing business wrote that the owners of a
competing towing business had no morals and were “mean, vulgar, and demeaning
crooks” (punctuation omitted)). Accordingly, there was no evidence supporting
Appellees’ claim of defamation, and it was error for the jury to consider the claim.
As discussed above, the jury considered numerous claims and returned only a
general verdict. Where, as here, a case is submitted to the jury on various claims, and
the jury returns a general verdict such that we cannot determine on which basis the
verdict was entered, the verdict cannot stand. Southeastern Pain Specialists, P.C. v.
Brown, 303 Ga. 265, 273 (2) (b) (811 SE2d 360) (2018); Godwin v. Godwin, 265 Ga.
7
891, 892 (1) (463 SE2d 685) (1995). Accordingly, we reverse the judgment of the
trial court and remand this matter for a new trial.7
Judgment reversed and case remanded. Miller, P. J., and Hodges, J., concur.
7
Our holding renders moot Appellants’ remaining enumeration, which argues
that a new trial is necessary because, they say, there was insufficient evidence to
support Appellees’ claims of negligence.
8