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Swanson Towing & Recovery, LLC v. Wrecker, Inc.

Court of Appeals of Georgia, Second Division

June 22, 2017

WRECKER, INC., et al.

          DOYLE, C. J., MILLER, P. J, and REESE, J.

          Doyle, Chief Judge.

         Wrecker 1, Inc., and its owner, Stacy Richardson, (collectively, "the plaintiffs") sued Swanson Towing & Recovery, LLC; Nick Group, LLC; Sarah Cha; and Amanda McCallister (collectively, "the defendants") for tortious interference with business relations, libel, and slander. The defendants moved for summary judgment, and the trial court denied the motion, certifying its ruling for immediate review.[1] This Court granted the defendants' application for interlocutory review, and this appeal followed. Because the defendants were entitled to judgment as a matter of law, we reverse the trial court's denial of their summary judgment motion.

         "'On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.'"[2]

         So viewed, the relevant facts show that for several years, Steve Richardson operated a towing company called Silent Night Recovery and Transport, Inc., the sole business of which was non-consensual towing. In 2007, pursuant to a consent agreement with Silent Night, the Public Service Commission ("the PSC") revoked Silent Night's permit to conduct non-consensual towing, imposed a fine against Silent Night, and ordered it to pay restitution to consumers. In a press release, the PSC noted that "Silent Night had violated state law and Commission rules, including providing false business addresses, improper signage, failing to file proof of proper insurance with the Commission[, ] and exceeding the maximum tariff rate approved by the Commission."

         Around the same time, in January 2007, Steve's wife, Stacy Richardson, incorporated her own towing company, Wrecker 1. Steve worked for Wrecker 1, advised Stacy with respect to the business, and advocated for the company with government entities including the PSC. Initially, Wrecker 1 only provided consensual towing services - towing requested by the vehicle's owner. In 2009, however, Stacy, with assistance from Steve, sought to be added to Henry County's list of approved towing services for non-consensual tows requested by public officials.[3] In May 2011, Wrecker 1 was added to the County's approved list. At that time, only two other companies were on the list, one of which was Swanson.[4]

         According to the defendants, the addition of Wrecker 1 to the County list of approved wreckers was financially devastating. Both Sarah Cha, the owner of Swanson, and Amanda McCallister, a long-term employee of the company, sent correspondence to the County manager and various County commissioners to complain about the financial hardship.[5] Several of the messages also conveyed complaints received about Wrecker 1's business integrity and billing habits. In one, McCallister wrote "I don't see how Wrecker 1 can even call themselves an upstanding company." In another, she wrote that Wrecker 1

has no morals [and] no regard for the Citizens of Henry County. . . . [Wrecker 1] used to be under the name "Silent Knight [sic] Towing and got in HOT water with the [PSC] . . . so they changed their name to Wrecker 1. . . . [Wrecker 1] continue[s] to overcharge on 95% of their calls. . . . We would think that the people [and] officials of Henry County would want valuable wrecker services dealing with their citizens . . . not a mean, vulgar, demeaning[] crook like Steve [and] Stacy Richardson of Wrecker 1.

Cha also sent letters stating that Wrecker 1 and Silent Night were the same company.

         At some point, Swanson heard from a GEICO insurance adjuster, Summer Smith, regarding complaints of over-charging by Wrecker 1. Swanson relayed those complaints to the County and encouraged Smith to contact the County directly. Smith did so; she also had a meeting with the city manager. In February 2012, the County held a due cause hearing regarding the complaints. None of the defendants were present at the hearing, and Stacy concedes that the defendants had "[nothing] to do with the evidence . . . provided at the hearing." In April 2012, based upon evidence introduced at the hearing, the County suspended Wrecker 1 from towing for 90 days after concluding that it had overcharged customers on 24 occasions.

         Unrelated to the defendants' complaints, the Wrecker Services Committee received a complaint from Lee Hamlin regarding a claim of overcharging. In 2012, a truck owned by Hamlin was in an accident with a truck owned by Penske, and Wrecker 1 cleared Hamlin's truck from the roadway; Hamlin offered to pay for services rendered in moving the truck to the shoulder, but requested that Wrecker 1 not tow the truck from the scene. Wrecker 1 not only disregarded Hamlin's request, it also charged him $11, 647.75 for the tow.

         On August 28, 2012, the Wrecking Service Committee conducted a due cause hearing on Hamlin's complaint. Although Wrecker 1 received notice of the hearing, no one from the company attended the hearing. The Committee issued a written ruling finding that Wrecker 1 had overcharged Hamlin by $7, 822.75.[6] Although Penske did not contest its bill, the Committee also reviewed Wrecker 1's $13, 965 invoice to Penske and found that Wrecker 1 over-charged Penske by $13, 055. Based upon the finding of overcharges to Penske and Hamlin, falsification of invoices, and the evidence supporting Wrecker 1's prior suspension, the Committee permanently removed Wrecker 1 from its list of authorized towing companies.

         The same day as the hearing, Wrecker 1 and Stacy Richardson filed suit against the Swanson defendants, alleging a claim for tortious interference with business relations. Specifically, the plaintiffs alleged that Swanson was responsible for Wrecker 1's removal from the County's list of authorized wreckers. In September 2012, the plaintiffs amended the complaint to include claims for libel and slander based upon comments made by Cha and McCallister that allegedly soiled the plaintiffs' reputations and linked Wrecker 1, erroneously, with Silent Night. Swanson moved for summary judgment on all three claims, and the trial court denied the motion. This appeal followed.

         1. Tortious interference with business relations.

         The defendants argue that the trial court erred by denying their motion for summary judgment as to the plaintiffs' claim of tortious interference with business relations. We agree.

          "Tortious interference claims, whether asserting interference with contractual relations, business relations, or potential business relations, share certain common essential elements: (1) improper action or wrongful conduct by the defendant[s] without privilege; (2) the defendant[s] acted purposely and with malice with the intent to injure; (3) the defendant[s] induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business ...

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