Cottrell v. Smith
| Decision Date | 08 July 2016 |
| Docket Number | S16A0013 |
| Citation | 788 S.E.2d 772,299 Ga. 517 |
| Parties | Cottrell v. Smith et al. |
| Court | Georgia Supreme Court |
Tyler Charles Dixon, Raiford & Dixon, LLC, 1155 Hightower Trail, Suite 200, Atlanta, Georgia 30350, for Appellant.
Timothy Andrew Baxter, Law Offices of Timothy A. Baxter, P.C., 1360 Peachtree Street, Suite 1205, Atlanta, Georgia 30309, Christopher G. Moorman, Nicholas John Pieschel, Moorman Pieschel, LLC, One Midtown Plaza, Suite 1205, 1360 Peachtree Street, NE, Atlanta, Georgia 30309, for Appellee.
, Presiding Justice.
This is an appeal by plaintiff, Stanley W. Cottrell, Jr. (“Cottrell”), from the grant of judgment notwithstanding the verdict (“JNOV”) and earlier grants of directed verdicts in this action alleging defamation and related torts, and potentially implicating the constitutionality of portions of the Georgia Computer Systems Protection Act (“GCSPA”), OCGA § 16–9–90 et seq.
The suit against five defendants: Glenn and Marian Crocker (“Crockers”), Hugh Johnson (“Johnson”), Peggy Smith (“Peggy”), and Karen Smith (“Karen”), hereinafter collectively “Defendants,” arises out of online postings and other communications by Defendants about Cottrell. For the reasons which follow, we affirm.
A brief overview of the facts is in order. Cottrell for many years engaged in a number of solo running exhibitions with a Christian evangelical emphasis, some of which have been portrayed in the media, and was subsequently involved in various multi-level marketing endeavors, executive leadership positions, and motivational speaking. Cottrell's notoriety grew along with media controversy relating to his character, which questioned the authenticity and integrity of his claims and achievements. The Crockers worked for Cottrell planning two running exhibitions; Johnson was a long-time friend of Cottrell's who came to know some women with whom Cottrell was involved outside of his marriage; Peggy is one of the women with whom Cottrell had an extra-marital affair; and Karen is Peggy's daughter-in-law. Karen located and contacted several people she believed had information about Cottrell, including the Crockers and Johnson. Karen and her husband created a “WordPress” blog (the “Blog”) and posted stories based on this information, which portrayed Cottrell as having a long history of misrepresentation and deception for personal gain. Karen sent emails to a “list serve” group criticizing Cottrell and sharing links to the Blog posts, and Peggy sent messages to multiple Cottrell Facebook “friends” along the same lines.
Cottrell filed the present suit alleging a conspiracy among Defendants and a central claim of defamation with associated claims of invasion of privacy, intentional infliction of emotional distress, tortious interference with business opportunities, breach of fiduciary duty, and violation of the GCSPA. The case was tried before a jury, and at the conclusion of Cottrell's case-in-chief, the superior court directed verdicts in favor of Defendants as to the claims for intentional infliction of emotional distress and violation of the GCSPA. The superior court then also expressed doubt about the viability of the remaining causes of action in light of the presented evidence but chose to allow such claims to go to the jury, and determined if necessary, it would entertain a JNOV. The jury returned a verdict on the defamation claim in favor of Cottrell and against Peggy and Karen; a verdict in favor of Defendants on the claim of tortious interference with business opportunities; a verdict in favor of Cottrell and against Defendants on the claim of invasion of privacy; and a verdict in favor of Cottrell and against Peggy and the Crockers on the claim of breach of fiduciary duty. The jury did not award special damages, but awarded general damages in the amount of $200,000, punitive damages in the amount of $150,000, and $285,000 in litigation expenses and attorney fees.1 Judgment was entered accordingly. Karen, Peggy, and Johnson filed post-trial motions for JNOV, and in the alternative, for new trial. The superior court granted JNOV and vacated the judgment entered on the jury's verdicts.
In reviewing the grant of a motion for a directed verdict, this Court applies the “any evidence” test and construes the evidence in the light most favorable to the losing party. Hood v. Smoak , 271 Ga. 86, 86–87, 516 S.E.2d 301 (1999)
.
A.) GCSPA Claims. Cottrell alleged that Defendants' conduct constituted a violation or violations of Section 16–9–93.12 of the
GCSPA, thereby giving him a cause of action under Section 16–9–93 (g) (1).3
Cottrell contends that the superior court erred in directing a verdict in favor of Defendants on such claims because there was evidence that Defendants' conduct violated OCGA § 16–9–93.1
and OCGA § 16–9–93, and because the court mistakenly relied upon ACLU v. Miller , 977 F.Supp. 1228 (N.D. Ga. 1997) to find that OCGA § 16–9–93.1 is unconstitutional.
, the plaintiff internet users brought an action for declaratory and injunctive relief challenging the constitutionality of OCGA § 16–9–93.1, and the District Court granted plaintiffs' motion for a preliminary injunction after concluding, inter alia, that the statute is unconstitutionally overbroad and void for vagueness. It appears that the superior court based, at least in part, its grant of a directed verdict on the GCSPA claims on its favorable view of the analysis and holding in ACLU v. Miller.4 However, the superior court need not have considered any such constitutional challenge because a directed verdict was mandated in light of the statutory requirements of both OCGA § 16–9–93 and OCGA § 16–9–93.1. Indeed, a trial court should first resolve other questions regarding a statute before addressing an issue of constitutionality. Deal v. Coleman , 294 Ga. 170, 171 n. 7, 751 S.E.2d 337 (2013), citing Bd. of Tax Assessors v. Tom's Foods , 264 Ga. 309, 310, 444 S.E.2d 771 (1994). What is more, it is well-settled that this Court will not decide a constitutional question if the decision in the appeal can be made upon other grounds. Deal v. Coleman , at 171 n. 7, 751 S.E.2d 337. And, so it can in this case.
Pretermitting any questions as to the correctness and scope of the superior court's ruling in regard to the constitutionality of any portion of the GCSPA and of Cottrell's preservation of a constitutional issue for appeal,5 the direction of a verdict on the GCSPA claims was demanded based upon the evidence, or rather the lack thereof, in regard to the alleged statutory violations. Cottrell variously argues that there was evidence of computer theft (OCGA § 16–9–93 (a)
), computer trespass (OCGA § 16–9–93 (b) ), computer invasion of privacy (OCGA § 16–9–93 (c) ) and computer forgery (OCGA § 16–9–93 (d) ), and recites a litany of online actions by Defendants in support thereof; however, none of the cited conduct demonstrates, inter alia, the express specific criminal intent required in subsections (a), (b), (c), and (d).6 There was simply a failure of the evidence in regard to the GCSPA claims.
B.) Intentional Infliction of Emotional Distress . In order to sustain a claim of the intentional infliction of emotional distress, four elements must be present:
. The standard was plainly not met in this case, including the showing of extreme emotional distress suffered by Cottrell as a result of the Defendants' actions.
The superior court properly granted the requested directed verdicts at issue.
In reviewing a grant of JNOV, this Court must determine whether there was some evidence to support the jury's verdict or whether a consideration of all of the evidence demanded a judgment notwithstanding the verdict. Keaton v. A.B.C. Drug Co. , 266 Ga. 385, 385–386, 467 S.E.2d 558 (1996)
.
A.) Defamation . Cottrell's claims of defamation implicate both libel and slander. Libel is the “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
. Oral defamation constituting slander is of four categories:
(1) Imputing to another a crime punishable by law; (2) Charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; (3) Making charges against another in reference to his trade, office, or profession, calculated to injure him therein; or (4) Uttering any disparaging words productive of special damage which flows naturally therefrom.
OCGA § 51–5–4 (a)
. By the statutory express terms, the situation in category (4) requires special damage to...
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