Corporate America Car Wash System et al v. Birmingham, Ala, City of, The et al

Filing 66

MEMORANDUM OPINION. Signed by Judge R David Proctor on 3/4/2016. Associated Cases: 2:14-cv-00781-RDP, 2:14-cv-00866-RDP(AVC)

FILED
2016 Mar-04 AM 10:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CORPORATE AMERICA CAR WASH
SYSTEM, et al.,
Plaintiffs,
v.
CITY OF BIRMINGHAM, et al.,
Defendants.

CORPORATE AMERICA CAR WASH
SYSTEM, et al.,
Plaintiffs,
v.
THE BIRMINGHAM PARKING
AUTHORITY, et al.,
Defendants.

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Case No.: 2:14-cv-781-RDP

Case No.: 2:14-cv-866-RDP

MEMORANDUM OPINION
This case is before the court on Defendants’1 Motion for Summary Judgment. (Case No
2:14-cv-00781-RDP Doc. # 38; Case No 2:14-cv-00866-RDP Doc. #54). Plaintiff has had an
opportunity to respond to the Motion and submit evidence, and Defendants have replied. (Case
No 2:14-cv-00781-RDP Docs. # 45, 46 and 49; Case No 2:14-cv-00866-RDP Docs. 63, 64 and
68).
1

The moving Defendants are Wanda Knight, Kevin Owens, the Birmingham Parking Authority, the
Birmingham Parking Authority Board Members, Lynn Thomas, and Larry Warde. (Case No 2:14-cv-00866-RDP
Doc. #54). However, this court’s memorandum opinion is equally applicable to the claims asserted against
Defendants the City of Birmingham, Mayor William Bell, Jarvis Patton, and Don Lupo. (Case No 2:14-cv-00781RDP Docs. # 1, 38 and 39).

I.

Summary of Relevant Facts2
The Birmingham Parking Authority was created by an act of the Alabama Legislature to

manage off street parking for the City of Birmingham. The BPA currently manages eight
parking decks and one parking lot, all of which are owned by the City. Kevin Owens and Larry
Ward are members of the Board of Directors of the BPA. Lynn Thomas is the Executive Director
of the BPA, and Wanda Knight is her Executive Assistant.
A.

The Agreement

On November 16, 2012, Plaintiff Michael Williams, doing business as Corporate
America Car Wash, and the BPA entered into an Agreement for Corporate America Car Wash to
Provide Services to Customers of The Birmingham Parking Authority. (Doc. # 39-1). No
money was exchanged between Plaintiff and the BPA in connection with the Agreement. (Doc.
# 39-2). The Agreement was designed to memorialize that Plaintiff would be allowed to clean
vehicles of his customers who parked in decks managed by the BPA and the terms under which
he would be allowed to do so. (Doc. # 39-2).
The Agreement included the following provisions:
1.

Corporate America Car Wash (CACW) shall abide by all rules
posted in City Parking Decks.

…
2

If facts are in dispute, they are stated in the manner most favorable to the non-movant, and all reasonable
doubts about the facts have been resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993); Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).
These are the “facts” for summary judgment purposes only. They may not be the actual facts that could be
established through live testimony at trial. See Cox. v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir.
1994).
Asserted “facts” that are not facts at all will be disregarded. Carter v. Three Springs Residential
Treatment, 132 F.3d 635, 642 (11th Cir. 1998) (conclusory allegations without specific supporting facts have no
probative value). Conclusory allegations of this type will be disregarded for summary judgment purposes.

2

3.

This agreement may be terminated for breach of the terms
provided herein. The Authority reserves the right to evaluate the
continuation of services under this agreement and establish
additional terms as required by the Board of Directors.

(Doc. # 39-1).
The Agreement did not authorize Plaintiff to store any equipment in BPA’s parking
decks, nor did it allow Plaintiff to advertise in the decks, or harass or intimidate members of the
BPA staff or employees of local businesses. (Doc. # 39-2).
The Rules and Regulations of the Birmingham Parking Authority, which the Agreement
required Plaintiff to follow, provided the following:
3.

Trespass and Loitering are not permitted. Unauthorized presence
in the Parking Deck or Lot is not permitted. Persons who engage
in any unlawful activity in the Deck or Lot will be prosecuted.

(Doc. # 39-3).
B.

The Birmingham Business Alliance’s Complaint and the BPA’s First
Warning to Plaintiff

On August 2, 2013, the Birmingham Business Alliance (“BBA”) emailed a complaint to
the BPA about Plaintiff. (Doc. # 39-4, ¶ 4). According to the BBA complaint, Plaintiff entered
the second floor offices of the BBA on several occasions, seeking publicity in magazines
published by the BBA. (Id.). The complaint further alleged that, while on BBA premises,
Plaintiff “exhibited aggressive, rude and threatening behavior. He speaks loudly and in an
intimidating way to our receptionist and to others who have tried to communicate with him. He
will not leave us alone.” (Id. at Ex. A). The BBA asked that the BPA tell Plaintiff not to return
to the BBA. (Id.). The BBA advised that if Plaintiff’s behavior continued, it would request
assistance from the Birmingham Police Department. (Id.).
3

On August 2, 2013, Defendant Lynn Thomas, the executive director of the BPA, sent a
warning letter to Plaintiff advising him of the BBA’s complaint. (Doc. # 39-5). Thomas’s letter
noted that Plaintiff had acted in a similar manner in BPA’s office several times C demanding to
advertise, and that he had been told no. (Id.). Thomas further reminded Plaintiff that he had
been given permission to wash cars only, and that if this type of behavior continued, the
Agreement to provide car wash services would be terminated. (Docs. # 39-5, 39-2).
C.

Additional Incidents Involving Plaintiff

Tony Blackerby, a cashier supervisor at the BPA, first noticed strange behavior by
Plaintiff when Plaintiff placed a sign on the sidewalk advertising that Plaintiff’s business was for
sale for $25 million. (Doc. # 39-6, ¶ 4). Blackerby also heard Plaintiff speaking loudly and
harshly to James Merkerson, the BPA maintenance supervisor. (Doc. # 39-6, ¶ 5). Plaintiff was
apparently upset that Merkerson had told him he could not put fliers on the cars in the deck.
(Id.). After that incident, Blackerby heard Plaintiff say he was going to buy the BPA and
everyone would work for him, except for Merkerson, whom he would fire. (Doc. # 39-6, ¶ 6).
Plaintiff also placed a sign in front of the BPA office stating that he would pay $1 million to
anyone who could inform him of investors to purchase the BPA. (Id.).
Another BPA employee, Sonja Mitchell witnessed Plaintiff come to the BPA office on
several occasions with a “strong and unprofessional, aggressive attitude.” (Doc. # 39-7, ¶ 4).
Plaintiff asked to speak to Merkerson, who explained to Plaintiff the rules and regulations for the
BPA decks. (Id.). This appeared to anger Plaintiff. (Id.).
On September 20, 2013, at approximately 6:40 a.m., Judy Butler, a cashier supervisor at
the BPA, was in an office and overheard Plaintiff say “when I buy this place the n*** in the back
4

ain’t going to have nothing to say. The n*** in the back don’t know that I talked to the board
president and he’s going to meet me here to walk the deck. I ain’t studying Lynn Thomas and
that n*** in the back.” (Doc. # 39-8, ¶ 4). Later that day, at approximately 10:00 a.m., Plaintiff
placed a sign in front of the BPA office offering $1 million for help finding investors to buy the
BPA. (Doc. # 39-8, ¶ 5). Plaintiff had a long stick, was waiving it around, and banged on the
door of the BPA. (Id.). Butler was concerned because Plaintiff “had been bombarding BPA
employees all morning and cussing, walking around with the big stick.” (Doc. # 39-8, ¶ 6).
Other BPA employees asked Plaintiff to leave and called the police. (Doc. # 39-8, ¶ 6).
The police arrived and spoke with Plaintiff. (Doc. # 39-8, ¶ 7). The police later told the
BPA “that they had experienced problems with [Plaintiff] in the past” and that his demeanor
“was escalating.” (Id.). Notably, Plaintiff had been arrested for First Degree Burglary and
Assault and was indicted on May 23, 2013. (Docs. # 39-12 – 39-14). Plaintiff also had multiple
prior felony convictions in his past. (Id.).
The September 20, 2013 incident was also observed by Mitchell, who felt that Plaintiff’s
behavior showed that he was becoming “extremely unraveled.” (Doc. # 39-7, ¶ 6). Mitchell
believed that Plaintiff presented a danger to both BPA employees and individuals who parked in
the decks managed by the BPA. (Id.).
D.

Removal of Plaintiff’s Property by Personnel of the City of Birmingham

On October 2, 2013, Plaintiff placed signs in front of the BPA office and in front of the
Wells Fargo office building, advertising that Plaintiff was looking for investors to buy the BPA.
(Docs. # 39-9, ¶ 5 and 39-6, ¶ 8). Matt McCombs, the Special Event Supervisor at the BPA, and
Blackerby observed Jarvis Patton, the Chief Operating Officer for the City of Birmingham,
5

speaking with a downtown patrol officer about the signs. (Docs. # 39-9, ¶ 4 and 39-6, ¶ 8).
After Patton left, two officers spoke with one of the car wash helpers who worked for
Plaintiff. (Docs. # 39-9, ¶ 5 and 39-6, ¶ 9). The helper removed the signs. (Id.). Plaintiff later
appeared and returned the signs to the front of the BPA office and the Wells Fargo building.
(Id.).
After a period of time, Plaintiff and his helper hid the signs in an alley stairwell on BPA
property. (Docs. # 39-9, ¶ 6 and 39-6, ¶ 10). McCombs then went and moved the signs into the
alley and off BPA property. (Doc. # 39-9, ¶ 7). McCombs was later notified that Plaintiff had
placed his signs in a reserved parking area on the basement level, together with carts that
Plaintiff used in his business. (Doc. # 39-9, ¶ 8).
Patton later returned, along with Don Lupo, the Director of the Mayor’s Office of
Citizens Assistance. (Doc. # 39-9, ¶ 9). McCombs spoke with Patton, who told him that they
were there to have Plaintiff’s signs removed. (Id.). McCombs showed Patton where Plaintiff had
stored the signs and carts on BPA property. (Id.). McCombs, Patton, and Lupo waited on a
Public Works truck to arrive, as well as several police officers in case they were needed. (Doc. #
39-9, ¶ 10).
Patton sent the officers to Wells Fargo to ask if they had a problem with the signs. (Doc.
# 39-9, ¶ 11). Wells Fargo reported they did not like the signs either. (Id.). Therefore Patton
instructed that all equipment and signs were to be removed from the area. (Id.).
E.

Termination Letter and Plaintiff’s Response

On October 7, 2013, LaVeeda Battle, corporate counsel for the BPA, sent a letter to Jay
Smith, an attorney who had previously “helped” Plaintiff concerning the BPA. (Docs. # 39-10
6

and 39-11). The letter stated that the BPA was terminating the Agreement with Plaintiff,
effective immediately. (Doc. # 39-10). In the letter, Battle reported that complaints had been
made about Plaintiff’s behavior, Plaintiff had been warned about his behavior, and that Plaintiff
had posted false, deceptive and misleading signs seeking regarding a sale of the BPA. Battle
further advised that Plaintiff’s signs violated Municipal Ordinance 12-1-1 and demanded that
Plaintiff cease and desist his conduct. (Doc. # 39-10). Mayor William Bell, city attorney
Thomas Bentley, and police chief A.C. Roper were copied on the termination letter. (Doc. # 3910). This termination letter is made the basis of Plaintiff’s slander claims. (Doc. 1-1 ¶29.)
F.

Plaintiff’s Incarceration for Violent Behavior

On August 14, 2012, Plaintiff was arrested for, and on April 23, 2014, he was convicted
of, First Degree Burglary and Assault. Plaintiff had entered the dwelling of a female with whom
he had previously had a relationship and hit and choked her. (Docs. # 39-12, 39-13, and 39-14).
Plaintiff was sentenced to twenty (20) years in prison in light of multiple prior felony
convictions. (Doc. # 39-13). Plaintiff’s criminal conviction in this case has been affirmed by the
Alabama Court of Criminal Appeals. (Doc. # 39-14). He remains in prison. (Doc. # 24).
II.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
7

filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323. Once the moving party has met its burden, the Rule requires the non-moving party
to go beyond the pleadings and -- by pointing to affidavits, or depositions, answers to
interrogatories, and/or admissions on file -- designate specific facts showing that there is a
genuine issue for trial. See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc. teaches, Rule 56(c) “does not allow the plaintiff to simply rest on his
allegations made in the complaint; instead, as the party bearing the burden of proof of trial, he
must come forward with at least some evidence to support each element essential to his case at
trial.” Anderson, 477 U.S. at 252. “Mere allegations” made by a plaintiff are insufficient. Id.
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”

8

Sawyer v. Southwest Airlines Co., 243 F. Supp.2d 1257, 1262 (D.Kan. 2003) (citing Anderson,
477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so onesided that one
party must prevail as a matter of law.’” Sawyer, 243 F. Supp.2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp.2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear … that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
III.

Analysis
In Count One (which appears in both of the Complaints in these cases) Plaintiff alleges

that Defendants violated Plaintiff’s constitutional rights by (1) removing Plaintiff’s car wash
supplies and related materials from the decks managed by the BPA without affording Plaintiff
due process of law, and (2) breaching Plaintiff’s “contract” with the BPA or depriving him of the
opportunity to continue his business in the BPA-managed parking decks. (Case No 2:14-cv00781-RDP Doc. # 1; Case No 2:14-cv-00866-RDP Doc. # 1). Count Two of the Complaint in
Case No 2:14-cv-00866-RDP also asserts that Defendants slandered Plaintiff. (Case No 2:14-cv00866-RDP Doc. # 1). The court addresses these claims below.
A.

Plaintiff Did Not Have a Constitutionally Protectable Property Interest to
Support his Due Process Claims

The Due Process Clause of the Fourteenth Amendment prohibits state action that
deprives “any person of life, liberty, or property, without due process of law.” U.S. Const.
9

Amend. XIV. To establish a due process violation, a plaintiff must show that he was deprived of
an interest cognizable under the Due Process Clause, and that the procedures attendant upon that
deprivation were not constitutionally sufficient. Kentucky v. Dep't of Corrections v. Thompson,
490 U.S. 454 (1989); Board of Regents v. Roth, 408 U.S. 564, 571 (1972).
The Due Process Clause encompasses two components: a substantive component and a
procedural component. The substantive component of the Due Process Clause protects only
“fundamental” rights. See McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (citing Palko
v. Connecticut, 302 U.S. 319, 325 (1937)). Fundamental rights “are protected against certain
government actions regardless of the fairness of the procedures used to implement them.”
McKinney, 20 F.3d at 1556. In contrast, “areas in which substantive rights are created only by
state law ... are not subject to substantive due process protection ... because substantive due
process rights are created only by the Constitution.” Id. Such state law-based rights can be
rescinded “so long as the elements of procedural–not substantive–due process are observed.” Id.
Property interests are created and defined by state law rather than the Constitution. See
Greenbriar Vill., L.L.C. v. Mountain Brook City, 345 F.3d 1258, 1262 (11th Cir. 2003) (citing
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). “[N]on-legislative deprivations of statecreated rights ... cannot support a substantive due process claim, not even if the plaintiff alleges
that the government acted arbitrary [sic] and irrationally.” Greenbriar Vill., 345 F.3d at 1263.
State created rights are not fundamental rights, and thus are not entitled to substantive due
process protection. See id. at 1262–63 (“[N]on-legislative deprivations of state-created rights ...
cannot support a substantive due process claim.”); see also Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 229 (1985) (Powell, J., concurring) (“While property interests are protected by
10

procedural due process even though the interest is derived from state law rather than the
Constitution ... substantive due process rights are created only by the Constitution.”).
With respect to the procedural component of the Due Process Clause, “no procedural due
process claim exists until a sufficiently certain property right under state law is first shown.”
Greenbriar Vill., 345 F.3d at 1265. Moreover, the Supreme Court has unequivocally held that an
unauthorized intentional deprivation of property by a state actor does not constitute a violation of
the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a
meaningful post-deprivation remedy for the loss is available. See Hudson v. Palmer, 468 U.S.
517, 533 (1984).
1.

Plaintiff Had No Property Right to Maintain Car Wash Supplies and
Related Materials in the Parking Decks Managed by the BPA

Plaintiff had no right to maintain his signs and equipment within the BPA decks.
Nothing contained in Plaintiff’s Agreement with the BPA allowed him to store any equipment
within the parking decks managed by the BPA. (Doc. # 39-1). Therefore, removal of his
equipment from the parking decks did not deprive Plaintiff of any right, and certainly did not
involve a protected property interest sufficient to support a procedural due process claim. The
Agreement merely set forth the terms under which Plaintiff was allowed to operate his business
within the BPA decks.
Nor are there any state laws which grant Plaintiff a property interest in either washing
cars in the decks managed by the BPA, or in storing materials in the BPA deck. Indeed, the
court is unaware of any decision wherein a court has determined that an individual has a property
interest in operating a business or storing materials on property managed by a state actor, such as
the BPA. In Ford v. Bentley, 580 Fed. Appx. 701, 711 (11th Cir. 2014), the plaintiffs asserted
11

claims arising from their alleged property right in owning, operating, and maintaining a bingo
business in Macon County, Alabama. Id. at 707. The court recognized that the plaintiffs’ rights
in bingo licenses were “created and defined by state law” and noted that the “uncertainty of the
Plaintiffs’ right, if any, to operate the games in question at least arguably renders that right
unprotectable as a matter of federal procedural due process.” Id. at 711-712 (citations and
punctuation omitted); see also Kinsey v. City of Opp, 50 F. Supp. 2d 1232, 1236 (M.D. Ala.
1999)(“First, the court notes that Plaintiff fails to cite, and the court has not found, a single case
wherein the Supreme Court, any court in the Eleventh Circuit, or any Alabama state court has
addressed whether failure to allow [the conduct prohibited in this case] constitutes a
constitutional violation. This evidences a finding that no clearly established constitutional right
was violated.”)
At best, Plaintiff and the BPA had an at-will Agreement which could be terminated at the
discretion of either party, including the BPA.

This Agreement did not create a protected

property interest that entitled Plaintiff to due process. For example, if the BPA had hired
Plaintiff as an at-will employee to wash cars in the parking decks, Alabama law is clear that the
BPA could have terminated Plaintiff’s employment without due process. See Ex parte Moulton,
116 So. 3d 1119, 1134 (Ala. 2013) (“Alabama recognizes an employer's right to terminate an atwill employee for any reason…Employment-at-will is not a property interest that requires due
process upon termination of the employment.”). Thus, Defendants were well within their rights
to remove Plaintiff’s signs and equipment from their property and terminate his Agreement
without due process.

12

To be clear, even though they had the right to do so, Defendants did not remove
Plaintiff’s materials and terminate his Agreement without warning or due process. Plaintiff was
informed that the BPA had received a formal complaint about Plaintiff’s behavior and warned
that if he continued that type of behavior, his Agreement may be terminated. Moreover, at least
as to Plaintiff’s signs, he was aware that Defendants did not want them on their property or that
of nearby businesses. Not only had he been told to remove them, Defendants had previously
removed the signs to property not managed by the BPA.
Therefore, Plaintiff cannot assert here that he had any protectable interest in the
Agreement. Nor can he claim that he was not provided any due process with regard to the
removal of his signs or the termination of his Agreement. As a matter of law, Plaintiff cannot
maintain a Due Process claim.
2.

Breach of Plaintiff’s “Contract” with the BPA

Plaintiff had no contractual right to continue to operate his business within BPA decks.
First, there is a substantial question as to whether the Agreement signed by Plaintiff is even a
binding contract. It merely specified the conditions under which Plaintiff would be allowed to
offer his services to customers parking in the decks.
“The requisite elements of a contract include: an offer and an acceptance, consideration,
and mutual assent to terms essential to the formation of a contract.” Hardy Corp. v. Rayco
Industrial Inc., 143 So.3d 172, 180 (Ala. 2013)(citations and punctuation omitted). The Rule 56
record does not contain substantial evidence indicating that the BPA actually received any
consideration (i.e., anything of value) in return for entering into the Agreement. Consideration is
an essential element of any contract formation claim.
13

Plaintiff did not pay the BPA for

permission to wash cars in the parking decks and did not share profits from his business with the
BPA. Plaintiff was given the right to provide car wash services to existing customers of the
BPA, under certain rules and requirements; however, the BPA did not receive any benefit from
these services provided by Plaintiff.
But even assuming this was an agreement between the parties, it was at best, an at-will
Agreement which the BPA could terminate at its discretion. And despite the at-will nature of the
Agreement, Defendants actually gave Plaintiff a warning before terminating the Agreement.
Plaintiff did not have any enforceable contractual rights in maintaining his signs and
equipment in BPA’s decks, or continuing to offer his services in the decks. Accordingly, his
contract claim fails as a matter of law.

Defendants are entitled to summary judgment on

Plaintiff’s due process claims.
B.

Plaintiff’s Slander Claim Fails as a Matter of Law

Plaintiff’s slander claim alleges that the Defendants made slanderous allegations against
Plaintiff when they copied Mayor Bell, City Attorney Bentley, and Chief Roper on a letter
accusing Plaintiff of trying to sell the BPA and of engaging in conduct that violated the
conditions under which he was allowed to operate in the BPA decks. (Case No 2:14-cv-00866RDP Doc. # 1-1, ¶¶29-30).
There are two types of defamation: libel, which involves the use of print media to publish
a defamatory comment; and slander, which involves the oral expression of a defamatory
comment. Blevins v. W.F. Barnes Corp., 768 So. 2d 386, 390 (Ala. Civ. App. 1999). “To
sustain an action for slander, plaintiff must show that the ‘alleged defamatory matter was
published,’ § 6–5–182, Ala.Code 1975, ‘by proof of communication of the defamatory matter to
14

someone other than himself.’” Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1093 (Ala.
1988). Because Plaintiff’s slander claim is based on a written communication, his claim is in
reality one for defamation, not slander. To prove a communication was defamatory, a plaintiff
must present evidence establishing the following elements: 1) a false and defamatory statement
concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3)
fault amounting at least to negligence on the part of the defendant; and 4) either actionability of
the statement irrespective of special harm or the existence of special harm caused by the
publication of the statement.

McCaig v. Talladega Pub. Co., Inc., 544 So.2d 875, 877

(Ala.1989) (citing Restatement (2d) of Torts § 558 (1977)).
Importantly, however, “[t]ruth is an absolute defense” to a defamation claim. Foley v.
State Farm Fire and Cas. Ins. Co., 491 So.2d 934, 937 (Ala.1986) (citation omitted). Whether
the statements at issue in a defamation case are reasonably capable of a defamatory meaning is a
question of law. Harris v. School Annual Publ'g Co., 466 So.2d 963, 964 (Ala. 1985).
1.

The Communication was Privileged

Plaintiff’s defamation claim is based on the BPA’s notification to Bell, Bentley, and
Roper that Plaintiff had posted false and misleading signs seeking to sell the BPA. (Case No
2:14-cv-00866-RDP Doc. # 1-1, ¶¶29-30). “A defendant is entitled to the affirmative defense of
qualified privilege if she can demonstrate that the communication was ‘prompted by duty owed
either to the public or to a third party, or the communication is one in which the party has an
interest, and it is made to another having a corresponding interest.’” Camp v. Correctional
Medical Services, Inc., 668 F. Supp. 1338, 1363 (M.D. Ala. 2009)(quoting Ex parte Blue Cross
& Blue Shield of Ala., 773 So. 2d 475, 478-79 (Ala. 2000)).
15

Where a party makes a communication, and such communication is prompted by
duty owed either to the public or to a third party, or the communication is one in
which the party has an interest, and it is made to another having a corresponding
interest, the communication is privileged, if made in good faith and without actual
malice. The duty under which the party is privileged to make the communication
need not be one having the force of legal obligation, but it is sufficient if it is
social or moral in its nature and defendant in good faith believes he is acting in
pursuance thereof, although in fact he is mistaken.
Kirby v. Williamson Oil Co., 510 So. 2d 176 (Ala. 1987) (quoting Willis v. Demopolis Nursing
Home, Inc., 336 So.2d 1117, 1120 (Ala.1976) (in turn quoting Berry v. City of New York Ins.
Co., 210 Ala. 369, 371, 98 So. 290, 292 (1923))) (punctuation omitted.)
Here, the BPA was created in order to manage off street parking for the City of
Birmingham. The parking decks and lots managed by the BPA are owned by the City of
Birmingham. The BPA entered into the Agreement with Plaintiff to allow him to operate his car
wash business in parking decks owned by the City and managed by BPA. Upon learning of
Plaintiff’s violations of the conditions under which he had been allowed to do business in the
decks, BPA had a duty to make the City aware that it was terminating Plaintiff’s right to conduct
his business on City property and the reason for the termination. Therefore, any communication
between the BPA and Bell, Bentley, and Roper regarding the operation of the decks is protected
by qualified privilege.

This includes the communications made the basis of Plaintiff’s

defamation claim. The communication at issue is not actionable.
2.

The Communications was Truthful

Additionally. because the statements in the BPA’s letter to Bell, Bentley, and Roper were
true, Plaintiff’s defamation claim fails as a matter of law.

Plaintiff disputes Defendants’

characterization of his conduct, but he simply cannot dispute (1) his objective conduct or (2) the
fact that Defendants received complaints about Plaintiff’s conduct. Whether Plaintiff intended
16

his conduct to be aggressive, rude, or threatening is not the issue; that is, his intent does not alter
the fact that Defendants had a good faith belief that Plaintiff acted in an aggressive, rude, and
threatening manner. Also, the record contains a photograph of the sign which Defendants
reported as Plaintiff seeking to sell the BPA. That sign states:
Corporate America Car Wash
Paying $1 Million Dollars Cash
Commission to Any Man Or
Woman Who Can Find Investors
So Corporate America Car Wash
System Can Purchase The
Birmingham Parking Authority.
(Doc. # 39-10 at 7).
3.

Plaintiff Suffered No Harm as a Result of the Communication

Finally, “[f]or a communication to be considered defamatory, it must tend to so harm the
reputation of another as to lower him in the estimation of the community or to deter third persons
from associating or dealing with him.” Clark v. America’s First Credit Union, 585 So. 2d 1367,
1370 (Ala. 1991)(citation omitted). Plaintiff was not harmed by the communications at issue
because BPA had already made the decision to terminate the Agreement. The communication
merely informed representatives of the City of that decision and the reasons for the decision.
Therefore the record does not support the conclusion that the communication to Bell, Bentley,
and Roper of that decision caused any additional harm.
Moreover, the record contains no evidence that any of the allegedly false statements by
Defendants caused Plaintiff’s reputation to have been lowered in the “estimation of the
community” or that third persons were deterred “from associating or dealing with him.” The
court can certainly not say that this communication by Defendants deterred persons from dealing
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with Plaintiff, particularly in light of the complaints Defendants received about Plaintiff’s
conduct. On this record, Plaintiff has failed to establish that he was damaged by Defendants’
allegedly defamatory communication.
IV.

Conclusion
For the foregoing reasons, Defendants are entitled to summary judgment on all of the claims

set forth in Plaintiff’s Complaints. A separate order will be entered.

The Clerk of the Court is DIRECTED to send a copy of this Order to the following:
Michael D. Williams, # 133193
Fountain Correctional Facility
3800 Fountain
Atmore, AL 36503
DONE and ORDERED this March 4, 2016.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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