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Hartman v. The Pip-Group, LLC.

Court of Appeals of Georgia, Fifth Division

March 7, 2019

HARTMAN
v.
THE PIP-GROUP, LLC.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          McFADDEN, PRESIDING JUDGE.

         The two orders on appeal are from a second round of litigation arising out of the breakdown in the commercial relationship between Jason Hartman and The PIP-Group, LLC ("PIP"). They had entered a contract for PIP to provide services to help Hartman purchase tax liens. After the relationship soured, Hartman sued PIP for, among other things, breach of the contract. PIP counterclaimed for, among other things, defamation.

         One order granted PIP's motion to dismiss or for judgment on the pleadings. We affirm that order because an exculpatory clause in the parties' contract relieves PIP from liability for claims related to the contract and because Hartman's other claims are untimely.

         The other order granted PIP's motion for injunctive relief, directing Hartman to remove podcasts and posts from certain websites and prohibiting Hartman from making oral or written statements about PIP that could be interpreted as defamatory or irreparably harmful. . We reverse that order because PIP has not met the heavy burden of showing that this case should be excepted from the general rule that equity will not enjoin libel and slander.

         1. Standard of review, facts, and procedural posture.

         As an initial matter, we agree with Hartman that, by considering a document outside the pleadings - the parties' agreement settling prior litigation - the trial court converted PIP's motion to dismiss or for judgment on the pleadings into a motion for summary judgment. See OCGA § 9-11-12 (c); Cox v. Athens Regional Med. Ctr., 279 Ga.App. 586, 587 (631 S.E.2d 792) (2006) (motion to dismiss was converted to motion for summary judgment because court considered a contract between the parties). So we review the trial court's order "under the de novo standard of review applicable to orders on summary judgment, construing the evidence in a light most favorable to [Hartman], as the nonmovant." Carter v. VistaCare, LLC, 335 Ga.App. 616, 617 n.4 (1) (782 S.E.2d 678) (2016) (citation omitted).

         So viewed, the record shows that PIP is a business that provides services to investors in tax liens, tax deeds, and foreclosures, among other things. On September 5, 2006, Hartman and PIP entered an agreement under which PIP agreed to serve as Hartman's agent for purposes of making tax lien investments. The parties refer to this as an agency agreement. The agreement contains a Limitation of Liability and Indemnity clause for PIP's benefit.

         Hartman paid PIP to foreclose on certain unredeemed tax liens. Some time later, PIP informed Hartman that it had never received the authorization form required to move forward with the foreclosures and that his right to foreclose had expired. PIP foreclosed on one of the unredeemed tax liens in its own name.

         Hartman recorded a podcast about his experience with PIP and posted the podcast on his website.

         On December 31, 2014, PIP sued Hartman and his company in Fulton Superior Court for defamation and breach of contract. Hartman and his company answered the complaint and asserted a breach-of-contract counterclaim. On March 2, 2017, PIP and Hartman entered a settlement agreement under which PIP dismissed its claims with prejudice and Hartman dismissed his counterclaim without prejudice. Some time after that, Hartman reposted the original podcast and posted another podcast about PIP.

         Within six months of the dismissal of the prior lawsuit, Hartman filed this action, alleging that PIP unlawfully converted the unredeemed tax lien and breached the agency agreement. He also alleged that PIP breached its fiduciary duties, that PIP breached the covenant of good faith and fair dealing, and that PIP was unjustly enriched by putting one property in its name. PIP answered the complaint and asserted counterclaims for defamation, defamation per se, and tortious interference with business relations.

         The trial court granted PIP's motion to dismiss or for judgment on the pleadings as to Hartman's complaint, converting it, as noted above, to a motion for summary judgment. A week later, the court granted PIP's motion for temporary and interlocutory injunctive relief, ordering Hartman to remove his communications about PIP from certain websites and prohibiting him from making certain oral and written statements about PIP in the future. Hartman filed this appeal.

         2. Failure to give notice of conversion of PIP's motion to ...


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