Bakhtiarnejad v. Cox Enterprises, Inc.
| Decision Date | 13 October 2000 |
| Docket Number | No. A00A1434.,A00A1434. |
| Citation | 247 Ga. App. 205,541 S.E.2d 33 |
| Parties | BAKHTIARNEJAD v. COX ENTERPRISES, INC. et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Wood & Grant, Wayne Grant, Kimberly W. Rabren, Atlanta, for appellant.
Dow, Lohnes & Albertson, Peter C. Canfield, Thomas M. Clyde, Atlanta, for appellees.
Shahriyar Bakhtiarnejad appeals an order of the trial court dismissing his claims for defamation and intentional infliction of emotional distress against Cox Enterprises, Inc. d/b/a the Atlanta Journal Constitution and staff writer Michael Weiss (hereinafter collectively "Cox"). The court dismissed the case after consideration of Cox's motion to dismiss for failure to state a claim upon which relief could be granted.1 We find that the motion to dismiss was converted into a motion for summary judgment, and we reverse because we find that neither summary judgment nor dismissal was warranted based on the allegations in Bakhtiarnejad's complaint and the evidence in the record. Because we find that the motion was converted into one for summary judgment, we also deny Cox's motion to dismiss this appeal on the ground that it is premature.
Bakhtiarnejad operated a tae kwon do academy in Gwinnett County. On June 19, 1998, S.R.M., a 15-year-old student at the academy, reported to police that during the previous roughly six and one-half months, Bakhtiarnejad had sexually harassed her, fondled her several times and on one occasion forced her to have oral sex with him. Subsequently, S.R.M. was interviewed by Gwinnett County Detective Michael Mirolli, and on August 19, Mirolli procured arrest warrants for Bakhtiarnejad for child molestation and aggravated child molestation.
Weiss obtained copies of the arrest warrants, pertinent affidavits and an incident report. On August 20, Weiss called Mirolli and said that he wanted to print an article about the matter. Mirolli told Weiss that the charges made in the warrants were based solely on S.R.M.'s statements to police and that Bakhtiarnejad had not been questioned or arrested yet. Mirolli further told Weiss not to print anything until he had heard back from him. After initially saying that he would assume it was okay to print a story if he had not heard from Mirolli by a certain time, Weiss agreed to wait until he had heard back from Mirolli.
Later on August 20, Mirolli interviewed Bakhtiarnejad. Shortly after beginning the interview, Mirolli developed serious doubts about the truthfulness of S.R.M.'s allegations. He took a break in the interview and called Weiss, leaving Weiss a voice message saying "do not print anything" because he probably would be withdrawing the warrants. Mirolli did not hear back from Weiss.
The next morning, Mirolli went before a Gwinnett County magistrate and formally withdrew the warrants. That same day, an article authored by Weiss entitled "Martial Arts Instructor Accused of Molesting Girl" appeared in the Gwinnett County Extra section of the Atlanta Journal-Constitution. The following day, August 22, Weiss published an article in the Gwinnett County Extra entitled "Child Molestation Charges Dismissed." On August 30, the Atlanta Journal-Constitution published a letter to the editor entitled "Martial Arts Teacher Clearly a Man of Highest Character."
On October 12, Bakhtiarnejad, through his attorney, demanded a retraction from the Atlanta Journal-Constitution. The Atlanta Journal-Constitution refused, asserting that the information contained in the original article was correct. On December 17, Bakhtiarnejad filed an action for defamation and intentional infliction of emotional distress against Cox, Mirolli and S.R.M. S.R.M. filed counterclaims against Bakhtiarnejad based on sexual assault. Bakhtiarnejad later voluntarily dismissed Mirolli from the suit.
Cox answered and filed a motion to dismiss for failure to state a claim upon which relief could be granted. It attached numerous documents to its answer and brief in support of the motion to dismiss—the incident report, the warrants, the warrant affidavits, an affidavit regarding pretrial release, the order recalling the warrants, the newspaper articles and written correspondence between counsel regarding Bakhtiarnejad's demand for a retraction. The motion to dismiss was granted.
Bakhtiarnejad appeals the dismissal of his defamation claim. He does not challenge the dismissal of his claim for intentional infliction of emotional distress.
1. Fair and honest reports of court proceedings and truthful reports of information received from arresting officers or police authorities are considered privileged communications.2 The court's order granting the motion to dismiss reflects that it compared the substance of the challenged article to the incident report, the affidavits, the warrants and Mirolli's answer, which was also a part of the pleadings, and determined that the challenged article accurately reported the contents of the court records and Mirolli's statements. The court rejected Bakhtiarnejad's assertion that applicability of the fair report privilege was conditioned upon the absence of actual malice; it further found that Bakhtiarnejad had failed to make specific allegations in support of his claim of actual malice and that the pleadings did not establish any set of facts from which he could make such a showing. Consequently, the court dismissed the defamation claim. It dismissed the intentional infliction of emotional distress claim because a defamation action is the legal remedy where one allegedly is injured by words published to a third person.3
The trial court shall give 30 days notice from the time the court considers matters outside the pleadings, sua sponte converting the motion to dismiss into a motion for summary judgment, to permit the respondent an opportunity to respond as required under OCGA § 9-11-56.6
However, "[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."7 In considering a motion to dismiss for failure to state a claim for which relief can be granted, a trial court may properly consider exhibits attached to and incorporated into the pleadings.8
The court's order indicates that in addition to considering the attachments to Cox's answer, it also read Mirolli's deposition which had not been incorporated into the pleadings. The order states:
[Bakhtiarnejad] cites to the deposition of Defendant Mirolli in support of his contention that the Journal Constitution Defendants acted with actual malice in the present case. Although Defendant Mirolli's deposition is not relevant to the present motion to dismiss and was not necessary to the Court's ruling, the Court's review of the deposition leads it to conclude that nothing contained therein is supportive of plaintiff's contention that dismissal is improper or that further discovery is warranted. [Cit.]
Despite the declaration that Mirolli's deposition was irrelevant and unnecessary to the court's ruling, it was considered by the court and not excluded. Thus, we find that the motion was converted into a...
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