MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
McFADDEN, PRESIDING JUDGE.
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.
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.
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.
Standard of review, facts, and procedural posture.
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
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.
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
recorded a podcast about his experience with PIP and posted
the podcast on his website.
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
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.
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
Failure to give notice of conversion of PIP's motion