Quinones v. Maier & Berkele, Inc., A89A0574

• Decision Date: 14 July 1989
• Docket Number: No. A89A0574,A89A0574
• Citation: 385 S.E.2d 719,192 Ga.App. 585
• Court: Georgia Court of Appeals
• Parties: QUINONES et al. v. MAIER & BERKELE, INC. et al.

Page 719

385 S.E.2d 719

192 Ga.App. 585

QUINONES et al. v. MAIER & BERKELE, INC. et al.

No. A89A0574.

Court of Appeals of Georgia.

July 14, 1989.

Rehearings Denied July 31, 1989.

Certiorari Granted Oct. 6, 1989.

Robert M. Goldberg, Atlanta, Michael E. Bergin, Fairburn, for appellants.

Lamar, Archer & Cofrin, David W. Davenport, Norton, Pennington & Goetz, Charles M. Goetz, Jr., Atlanta, for appellees.

BIRDSONG, Judge.

Appellants, Edwin Quinones (a/k/a Edwin Quinones Rivera) and Melquiades Gavillan, appeal the judgment entered in favor of appellee, Maier & Berkele, Inc. (hereinafter Maier & Berkele) and JoAnn Acree Jansen pursuant to the trial court's grant of appellee's motion for directed verdict.

Appellants entered Maier & Berkele so that appellant Quinones could get some gold bracelets repaired. Appellant Quinones was holding about 20 credit cards, making a stack of cards about 1 to 1 1/2 inches high, in one hand and several gold bracelets tied together by string in the other. Appellee Jansen, who was employed part-time as a security officer for Maier & Berkele, noticed the cards and initiated a conversation with the two men.

Appellee Jansen was regularly employed as a lieutenant for the City of Morrow Police Department. At the time of the incident, she was dressed in her police uniform and was wearing her city-issued revolver, badge, and walkie-talkie radio. As a city police officer, appellee Jansen was on duty at all times, even when not working normal shifts. In these latter circumstances, it was policy to request an on-duty police officer to come to the scene and handle the situation, except in emergency circumstances.

Appellee Jansen asked if she could see appellant Quinones' credit cards. The two appellants conversed in Spanish as to whether Quinones should allow Jansen to see his cards. When the cards were voluntarily shown to her, Jansen noticed that among the cards appellant had two cards from the same bank issued in two different last names. Jansen could not recall the names on the card, but appellant Quinones testified, without contradiction, that the cards were issued to Edwin R. Quinones and Edwin Q. Rivera, respectively. Appellant Quinones testified that he explained to Lt. Jansen that in his home country, Puerto Rico, people used their first and their mother's and father's last name, but that banks make mistakes in issuing cards. Jansen asked appellant Quinones for his driver's license; Quinones responded that he had several but none on him as Gavillan was driving. The evidence is in conflict as to the exact number of driver's licenses that Quinones said he had. (Moreover, according to the posture of the evidence, at no time did Quinones expressly indicate to Jansen, or did Jansen inquire of Quinones, whether any of these licenses were currently valid or as to when and why they had been obtained.) Lt. Jansen then asked appellant Quinones where he worked. Quinones responded that he worked for the Department of Justice, but declined to reveal what his job was with that agency. The evidence is in conflict as to whether appellant Quinones flashed some type of badge and his work identification card (ID) during this part of the conversation. Conflict also exists as to when appellant Gavillan informed Jansen that he worked for the Department of Justice, and whether he flashed a badge at any time during the conversation between Jansen and Quinones.

At some point, appellants attempted to leave the store. As they were leaving, appellee Jansen demanded that they show some work identification to verify their status as law enforcement officers. The evidence is in conflict as to the manner in which this demand was made, whether the demand included an order for appellants not to leave the premises, and whether appellants were free to go at this point. Likewise, there is an evidentiary conflict as to whether appellants voluntarily agreed to remain near the first phone area in the store or were merely acquiescing to Lt. Jansen's directions. Appellants produced their work ID cards and Jansen took them. At some point, Jansen called for a back-up officer on her police radio, and an on-duty uniformed police officer arrived several minutes later. Appellant Gavillan testified that Jansen told the officer to "keep an eye on [appellants]"; and appellant Quinones testified that Jansen told the officer to "watch these individuals, not to leave." This testimony is not expressly contradicted in the record. Jansen then contacted the police station to make a "personal check," and called the federal prison where appellants worked. But the evidence is conflicting as to how many calls were made to the prison by Jansen.

The evidence is further contradictory as to when Jansen took possession of appellant Quinones' two credit cards and as to when exactly she called the "credit card company." When the "credit card company," Citibank, was contacted, appellee Jansen was informed that they would handle the credit card matter. Appellant Quinones testified that subsequently Jansen returned with the cards and told him that he needed to call the bank about the cards, returned the cards, and then grabbed the cards again to make some notation from them. At some point after demanding work identification, Jansen took or was given both appellants' ID cards. Both appellants testified that they could not leave after Jansen had their official work ID cards in her possession. After expiration of a period of time, appellants' ID cards were returned and they were allowed to leave the premises. The evidence is in conflict whether appellee Jansen ordered appellants not to re-enter the premises.

This case was tried on appellants' averments of causes of action sounding in false imprisonment, violation of 42 U.S.C. § 1983 (violation of appellants' Fourth Amendment rights of privacy and freedom from unlawful seizure), libel, slander, and intentional infliction of emotional distress. Held:

1. Appellants assert that the trial court erred in directing a verdict for appellees at the close of appellants' case. "A directed verdict ... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict." Union Camp Corp. v. Daley, 188 Ga.App. 756(1), 374 S.E.2d 329; OCGA § 9-11-50(a).

a. The trial court did not err in granting a directed verdict to appellees as to appellants' cause of action for intentional infliction of emotional distress. A directed verdict is proper whenever a plaintiff simply fails to prove his case. Collins v. Ralston, etc., 186 Ga.App. 583, 585, 367 S.E.2d 861. Appellants have failed to prove that appellees' conduct rose to the requisite level of outrageousness and egregiousness required by Moses v. Prudential Ins. Co., 187 Ga.App. 222, 225, 369 S.E.2d 541. Compare Kornegay v. Mundy, 190 Ga.App. 433, 434-435, 379 S.E.2d 14. Further, the severity of the emotional distress allegedly produced by the defendants' conduct is also a factor in determining liability for mental distress. Moses, supra 187 Ga.App. at 226, 369 S.E.2d 541. The law will intervene only where the distress inflicted is so severe that no reasonable man could be expected to endure it. Id. It is for the court to determine whether on the strength of the evidence severe emotional distress can be found. Id. We find as a matter of law that appellants' alleged emotional distress does not meet the above severity requirement.

b. We find that any cause of action grounded on the torts of invasion of privacy has been waived by appellants' failure to argue this principle in their brief or to provide citations of authority pertaining thereto. Court of Appeals Rule 15(c). Moreover, in Georgia the tort of invasion of privacy is actually comprised of four separate torts protecting different privacy interests. Cabaniss v. Hipsley, 114 Ga.App. 367, 370, 151 S.E.2d 496. The posture of the evidence in this case would demand a verdict for appellees as to any cause of action grounded on any one of these four torts. See generally, Cabaniss, supra at 371-380, 151 S.E.2d 496; Thomason v. Times-Journal, 190 Ga.App. 601, 604, 379 S.E.2d 551.

c. The trial court did not err in granting a directed verdict for appellees in regard to causes of action sounding in libel and slander. Assuming the letter in question here was mailed and read by appellants' supervisor, Lt. Howington, to whom it was addressed. However, this is not enough to present a jury question on this issue. " 'In order to effect the publication of a libel there must be a reading of it. Not only that, there must be an understanding of its meaning by the person reading it....' " (Emphasis deleted.) Sigmon v. Womack, 158 Ga.App. 47, 50, 279 S.E.2d 254. The record, especially when viewed in support of the trial court's verdict, contains no probative evidence that this letter when read was understood as to its significance. "Thus, even assuming the evidence authorized a finding that the [letter] was read by someone, there was no evidence that it was 'communicated' to [Lt. Howington] this [apparent] sole reader in a sense libelous to [plaintiffs]. 'The plaintiff has the burden of proof on the question of the publication of the defamatory matter. To satisfy this burden, it is necessary that he show not only that the defendant spoke or wrote or otherwise prepared the defamatory matter or made it available to a third person, but also that the third person understood its significance.' " (Emphasis supplied.) Sigmon, supra at 50, 279 S.E.2d 254. Accordingly, appellants have failed to establish that any publication of the allegedly libelous letter occurred.

Regarding the dissent's express assertion that "there was no real dispute at trial" regarding the issue of the receipt, reading and understanding of the letter, we disagree. However, assuming arguendo, no such dispute existed, we by our analysis have shown...