Milum v. Banks

• Court: Georgia Court of Appeals
• Writing for the Court: Barnes
• Citation: Milum v. Banks, 642 S.E.2d 892, 283 Ga.App. 864 (Ga. App. 2007)
• Decision Date: 05 March 2007
• Docket Number: No. A06A2394.,A06A2394.
• Parties: MILUM v. BANKS.

283 Ga. App. 864

642 S.E.2d 892

MILUM v. BANKS.

No. A06A2394.

Court of Appeals of Georgia.

March 5, 2007.

Woodard & Butler, B. Ray Woodard, Augusta, Jeffrey M. Butler, for appellant.

Myles E. Eastwood, Atlanta, for appellee.

BARNES, Chief Judge.

Rafe Banks III sued David Milum for general and punitive damages, contending that Milum published on his website libelous allegations about Banks. A jury awarded Banks $50,000 in general damages but no punitive damages. The trial court denied Milum's motion for a judgment notwithstanding the verdict, and he appeals. For the reasons that follow, we affirm.

The evidence at trial showed that Milum was charged in December 1998 with driving under the influence (DUI). He hired Banks, an attorney and the former district attorney for the Blue Ridge Judicial Circuit, to represent him for a flat fee of $3,000. Banks worked on the case until December 2000 or January 2001, when Milum discharged Banks due to what Banks described as "a fundamental disagreement on how to address the trial of the case. Mr. Milum wanted to make it a political forum, and my view was it should be addressed on the facts." Milum obtained a second lawyer, and a jury subsequently acquitted him.

In August 2001, Milum sent Banks an e-mail message stating that he thought the county solicitor-general's office had a vendetta against Banks. Milum said Banks should have told him about this vendetta because it affected how the solicitor-general handled Milum's DUI case, and resulted in a "half-hearted excuse for a defense" from Banks. Because Banks took Milum's case "knowing that it was a doomed defense from the beginning," Milum asked Banks to return his money. In exchange Milum said he would "be quiet on this issue as far as you are concerned in the future." Banks declined to return the fee, noting that despite any alleged vendetta, he had obtained an offer from the solicitor-general to allow Milum to plead to reckless driving instead of DUI, a highly sought-after lesser offense.

On May 10, 2004, Milum posted on his website, The Forsyth County Political Forum, a comment titled "Polo Fields Residents Don't Know About Attorney Rafe Banks?" In it, Milum stated,

Are you a drug dealer when you have an ounce of cocaine in your possession worth hundreds of dollars or when you carry $25,000.00 to a Superior Court judge . . . to keep a drug dealer out of jail? Are you a drug dealer when you have a gram of methamphetamine in your possession or is it when you arrange for a lifelong drug dealer to escape doing eighteen years in federal prison for attempted murder? Polo Fields resident Rafe Banks is both. For the proof of this, visit our . . . video. ... A cocaine dealer names Rafe Banks as being involved in bribing judges here in Forsyth County and in Federal Court in Miami. ... Rafe Banks will never make one single move against me or this website because he knows that we have the witnesses to prove that he carried these drug dealer payoffs to [a] judge. ...

Later that day, a reader asked whether Milum's comment that "[a]ny man who would sell his soul for a sack full of drug dealer coins has no place in decent society" included lawyers who represented drug dealers. An hour later, Milum responded, "No. This does not include those attorneys who simply defend drug dealers. I am speaking of transporting substantial bribes, as did attorney Rafe Banks, to those crooked judges ... to get drug dealers off. ..."

On June 9, 2004, Milum posted another comment on his website titled, "Cumming Attorney Rafe Banks, Drug Dealer Bribery Mule." The comment included this text:

Rafe Banks, do you still take drug dealer bribes to Forsyth County judges? How long has it been since you delivered to a judge $25,000 in cash for the release of a drug dealer? I know that you carried this kind of cash to [a] late Forsyth County Superior Court judge. ... I have witnesses to that fact. Which judge do you pay bribes to now Rafe, since [that judge] went to hell? Is it [another] Forsyth County judge? ...

Milum went on to ask if Banks recalled him saying he would "make the courthouse doors rattle with so much of their secret information they couldn't handle it all" when the judge on his DUI case ordered the case to proceed, then described why he thought the solicitor-general was retaliating against him. The comment ended with,

Rafe, don't you wish you had given back my three thousand dollar retainer, when I asked you too, [sic] because I found out you were helping them set me up? Rafe, do you also remember how I fired your ass, not once but twice before two different judges in Forsyth County courtrooms? That had to sting, didn't it? How about now Rafe, are you still selling out your clients, as you did me? How much of that dirty drug money did it take for you to buy that big house in Polo Fields, Rafe? ... I'll ask again: can you hear those courthouse doors rattling now Rafe Banks Cumming Georgia attorney, who is a drug dealer bribery mule?

On June 16, 2004, Banks' attorney sent Milum a letter demanding he retract these statements, and Milum declined to do so. Banks then sued him for publishing false, libelous and misleading allegations on the website. At trial, Milum acknowledged that in his interrogatories he named nine people with personal knowledge of these bribery allegations. Some of those people were mentioned in or appeared on a videotape that mysteriously appeared on Milum's carport steps. In that tape, a woman who was charged with a drug offense alleged that she heard that Banks and another lawyer had bribed judges, but Milum admitted he never personally talked to the woman making the statement, the sergeant questioning her, or anyone else before posting his comments and a portion of the tape on his website.

The other lawyer named in the tape, who represented both the woman being interviewed and the man on whose behalf a bribe was allegedly made, denied the bribery allegations and testified that he had never spoken to Milum. The sergeant questioning the woman on the tape testified that Milum never contacted him, and noted that the woman had no direct knowledge about anything she alleged, but merely repeated what she said she had been told by others. The sergeant turned the tape over to his captain and did not know how Milum gained possession of it. The sergeant, then in charge of the Criminal Investigation Division, gave the tape to the sheriff at the time, and did not investigate the matter further himself because the woman was not credible. To his knowledge the matter was not referred to the district attorney's office or to the Georgia Bureau of Investigation, and Milum never contacted him about it.

Milum also identified in his interrogatory answer two women he spoke to before posting his comments who he said had personal knowledge of the alleged bribery. He testified that one woman told him she spent $75,000 to $80,000 to get her stepson, who was represented by Banks, out of trouble, and he thought they meant that the entire $75,000 had been paid to Banks. The stepson had been charged with drug offenses for which he could have been sentenced to five years, Milum said, but only got probation. Milum recalled that "in the conversation, she made mention, or I did, ... do you suppose some of that money went to pay off the judge?" Milum said the woman's mother also speculated about a possible bribe.

The first woman testified, however, that she paid Banks $10,000 to represent her stepson and knew nothing about any money being paid to a judge on her stepson's behalf. The rest of the money was for rehabilitation and travel expenses. In her conversation with Milum, he raised the topic of bribery, and she merely speculated whether it was possible in her stepson's case. She had a favorable opinion of Banks' reputation before Milum raised the topic, but afterward she had a "seed of doubt in [her] mind as a result of the content of the website" and of his comments to her. She was not "pleasantly surprised" at the sentence Banks obtained for her stepson to the point that she suspected bribery, because, while the result could have been worse, he still served four months in boot camp.

The woman's mother testified she referred Banks to her daughter, who told her that the stepson's troubles cost the family $75,000. She discussed with Milum a conversation she had with someone else who suspected that Banks had bribed a judge, and wondered whether that had happened on her stepson's behalf, but never said she knew personally that money paid to Banks went to bribe a judge.

Milum testified that he was not stating facts when he posted his comments online, but simply giving his opinion. Several of his witnesses testified that Milum had served the county well by uncovering several instances of public corruption. None of the witnesses, however, testified that they personally knew anything about Banks bribing anyone. After deliberating for two days, the jury awarded Banks $50,000 in general damages, but no punitive damages. The trial court denied Milum's motion for a judgment notwithstanding the verdict, and this appeal followed.

Milum enumerates four errors. He contends that the trial court erred (1) by allowing the issue of whether Banks was a public or limited public figure to go to the jury; (2) by denying his motion for judgment notwithstanding the verdict because the court ruled Banks was a limited public figure and the jury later found that the statements were not made with wanton and reckless disregard for the truth; (3) by granting Banks' motion in limine prohibiting Milum from offering testimony about corrupt individuals he had exposed in the county; and (4) by denying his motion for a directed verdict because Banks failed to prove publication.

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,...