Cate v. Patterson

• Decision Date: 06 March 2020
• Docket Number: A19A1704
• Citation: 354 Ga.App. 108,840 S.E.2d 489
• Parties: CATE et al. v. PATTERSON et al.
• Court: Georgia Court of Appeals

354 Ga.App. 108

840 S.E.2d 489

CATE et al.

v.PATTERSON et al.

A19A1704

Court of Appeals of Georgia.

March 6, 2020

Keith White Edwards, for Appellant.

Benjamin Thomas Bradford, LaFayette, for Appellee.

Mercier, Judge.

In this libel action, defendants Forrest Cate, III, and Forrest Cate Auto Group, LLC d/b/a North Georgia Sales Center (collectively, "Cate Auto") appeal from a jury verdict in favor of plaintiffs Anthony and Arica Patterson. Cate Auto argues that the trial court erred in failing to refer all issues to arbitration, giving conflicting jury instructions on the issue of libel per se, and denying its motion for judgment notwithstanding the verdict. We discern no error and affirm.

Construed in the light most favorable to the verdict, the record reveals that in March 2015, the Pattersons went to North Georgia Sales Center to rent a U-Haul for their move to Georgia from Tennessee, but none were available. The salesperson, Todd Dilbeck, informed the Pattersons that he "had good deals on trailers." Dilbeck offered to sell one of the trailers to the Pattersons for $1,125. The Pattersons accepted Dilbeck’s offer and purchased the trailer with a check in the amount of $1,125. Anthony Patterson and Dilbeck signed a bill of sale. Dilbeck helped the Pattersons attach the trailer to their vehicle and assisted them in checking the trailer’s lights and turn signals. As the Pattersons were leaving the sales center with the trailer, Anthony Patterson noticed that the price tag on the trailer showed a price of $2,498, and thought, "I got a good deal."

Two days later, Dilbeck realized that he had sold the trailer at a price that was less than what the sales center had paid for it, and he contacted the Pattersons saying that he had "made a huge mistake" and requesting that they either pay the difference in price or return the trailer. Dilbeck also stated that he had put the incorrect serial number for the trailer on the bill of sale. The Pattersons refused to return the trailer and offered to "split the difference" with the sales center. Dilbeck apparently refused the offer, and he and the owner of the sales center, Forrest Cate, called the Pattersons several times, demanding that they return the trailer and accusing them of having taken the wrong trailer. On one occasion, during a discussion about the sale in the Pattersons’ driveway, Dilbeck accused the Pattersons of stealing the trailer. The Pattersons contacted the police to report Dilbeck’s and Cate’s actions, showed an officer the bill of sale, and were told by the officer that it was a civil matter.

Cate reported the trailer stolen to the county sheriff’s department and was advised that the matter was of a civil nature. He then filed a criminal warrant application in magistrate court against Anthony Patterson for theft by deception for leaving the premises with the wrong trailer and not returning it. However, the magistrate court found no probable cause to issue a warrant and dismissed the action.

Two months later, Cate published an advertisement in two local newspapers. The advertisements showed a picture of the purported trailer, with the word "REWARD" at the top, and offered a $500 reward

for the return or information leading to the return of: 2015 Arising Enclosed Trailer White In Color, 6’ x 10’ Single Axle, SERIAL #5YCBE1016FH022499 Last Seen with Anthony C. and Arica Patterson, 106 Ancel Dr., LaFayette GA 30728 Trailer was Taken from North Georgia Sales Center in LaFayette Ga in March without proper ownership, documentation and payment and has not been returned. Any Sale Or Transfer of This Trailer from ANYONE Other Than Its[ ] Rightful Owner NORTH GEORGIA SALES CENTER is illegal CONTACT North Georgia Sales Center 706-638-2928.

The Pattersons retained counsel who contacted the newpapers to inform them that Cate’s advertisements were libelous, and demanded a retraction. The newpapers published retractions, but Cate attempted to again have the advertisements published. When the newspapers refused to publish the advertisements a second time, Cate had one of the advertisements published in a bi-weekly magazine.

In August 2015, the Pattersons filed a complaint against Cate Auto alleging breach of contract, intentional infliction of emotional distress, defamation, invasion of privacy (false light), and civil conspiracy. Cate Auto filed an answer denying the allegations of the complaint, and months later it moved to dismiss the case contending that the parties had, based on the terms of the bill of sale, contractually obligated themselves to submit the matter to binding arbitration. Following a hearing, the trial court dismissed the Pattersons’ breach of contract claim as arising from or related to the bill of sale and therefore within the arbitration provision, but ruled that because the remaining claims contained factual allegations which were outside the scope of the contract’s arbitration provision, those claims would proceed to trial.¹

At the end of a three-day trial, the jury found that the defendants committed the torts of libel and invasion of privacy by false light against the Pattersons² and awarded each of them $1,125 in damages. The jury also awarded the Pattersons $25,000 in attorney fees and $47,750 in punitive damages. Following entry of the trial court’s judgment on the verdict, the defendants filed a motion for judgment notwithstanding the verdict and a motion for new trial. The trial court denied both motions, and this appeal followed.

1. Cate Auto contends that the trial court erred in denying its motion for judgment notwithstanding the verdict because the evidence was insufficient to prove libel. The trial court’s denial of a motion for judgment notwithstanding the verdict is to be reviewed under the any evidence test. Patterson-Fowlkes v. Chancey , 291 Ga. 601, 602, 732 S.E.2d 252 (2012). "[T]he evidence is to be construed most favorably toward the party opposing the motion. The question before this Court, then, is not whether the verdict and judgment of the trial court were merely authorized, but whether a contrary judgment was demanded." Turnage v. Kasper , 307 Ga. App. 172, 178 (1), 704 S.E.2d 842 (2010) (citations and footnotes omitted).

"A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." OCGA § 51-5-1 (a). "The publication of the libelous matter is essential to recovery." OCGA § 51-5-1 (b). In an action for printed defamation, "malice is inferred from the character of the charge." OCGA § 51-5-5. Slander includes "[i]mputing to another a crime punishable by law." OCGA § 51-5-4 (a) (1). "Although OCGA § 51-5-4 refers to slander and not libel, the definition of slander in Georgia has been incorporated into the definition of libel." Lucas v. Cranshaw , 289 Ga. App. 510, 515 (2), 659 S.E.2d 612 (2008) (citation and punctuation omitted).³ Thus, the requirements for slander per se apply to libel per se. Cottrell v. Smith , 299 Ga. 517, 524 (II) (A), 788 S.E.2d 772 (2016). With regard to imputing a crime,

to constitute slander per se, the words at issue must charge the commission of a specific crime punishable by law. Where the plain import of the words spoken impute no criminal offense, they cannot have their meaning enlarged by innuendo. Indeed, the statement must give the impression that the crime is actually being charged against the individual and couched in language as might reasonably be expected to convey such meaning to a hearer of the statement; a vague statement or even a derogatory one does not amount to slander per se when a person cannot reasonably conclude from what is said that the comments are imputing a crime to the plaintiff.

Id. at 524 (II) (A), 788 S.E.2d 772 (citations and punctuation omitted). "[I]t is libelous per se to falsely state that a person is guilty of a crime or has a criminal case pending against him." Harcrow v. Struhar , 236 Ga. App. 403, 404, 511 S.E.2d 545 (1999) (citations omitted).

The evidence presented here showed that Cate Auto published advertisements that offered a reward for the return of the trailer, stating that the trailer was "taken ... without proper ownership, documentation and payment" and was last seen with the Pattersons. The plain import of these words impute the criminal offense of theft to the Pattersons, a crime for which they had not been charged or found guilty. See OCGA § 16-8-2 (theft by taking) or OCGA § 16-8-3 (theft by deception). The Pattersons also presented evidence that they were in lawful possession of the trailer. Accordingly, because the evidence was sufficient to sustain the jury’s verdict as to libel per se, the court properly denied Cate Auto’s motion for judgment not withstanding the verdict. See Wolff v. Middlebrooks , 256 Ga. App. 268, 270-271 (1), 568 S.E.2d 88 (2002) (court correctly allowed jury to consider slander claim based upon defendant’s statement imputing to plaintiff the crimes of adultery or fornication); Davidson v. Walter , 93 Ga. App. 290, 293 (2), 91 S.E.2d 520 (1956) (holding that plaintiff set forth a viable defamation action based upon defendant’s alleged false statement that plaintiff had committed theft); see also Melton v. Bow , 241 Ga. 629, 630-631, 247 S.E.2d 100 (1978) ("To impute the crime of theft to a person is actionable per se without proof of special damages.").

2. Cate Auto asserts that the trial court erred in failing to refer all claims to arbitration pursuant to OCGA § 9-9-4 (d).⁴ It argues further that the question of whether those claims relate to the bill of sale is subject to the arbitration agreement in the bill of sale. We review the court’s refusal to refer the Pattersons’ tort claims to arbitration to determine if it was correct as a matter of law. D. S. Ameri Constr. Corp. v. Simpson , 271 Ga. App. 825, 826, 611 S.E.2d 103 (2005). We first consider whether it is the court...