Sumner v. First Union Nat. Bank of Georgia

• Decision Date: 08 April 1991
• Docket Number: No. A91A0289,A91A0289
• Citation: 409 S.E.2d 212,200 Ga.App. 729
• Parties: SUMNER v. FIRST UNION NATIONAL BANK OF GEORGIA.
• Court: Georgia Court of Appeals

Page 212

409 S.E.2d 212

200 Ga.App. 729

SUMNER v. FIRST UNION NATIONAL BANK OF GEORGIA.

No. A91A0289.

Court of Appeals of Georgia.

April 8, 1991.

Reconsideration Denied July 30, 1991.

Certiorari Denied Oct. 18, 1991.

Elizabeth Pelypenko, Atlanta, for appellant.

Benjamin C. Sumner, pro se.

Kennedy, Lewis, Smart & Brannon, Charles W. Brannon, Jr., Hunter, MacLean, Exley & Dunn, Roland B. Williams, Savannah, for appellee.

BEASLEY, Judge.

Appellant Benjamin Carmichael Sumner sued the appellee bank and certain of its officers and employees to recover damages for defamation and emotional distress. The complaint alleged that the bank had knowingly caused a false financial report that Sumner's checking account had been involuntarily closed to be published by Cheque Inquiries, Inc., an out-of-state credit reporting agency also named as a defendant, for the purpose of injuring his personal and business reputation. These charges arose during the pendency of prior litigation between Sumner and the bank's predecessor, resolved in Savannah Bank & Trust Co. v. Sumner, 174 Ga.App. 229, 329 S.E.2d 910 (1985).

The bank moved for summary judgment on all claims. It was granted on the issue of defamation because there was no showing of libel per se and Sumner had failed to plead and prove special damages to make out a case of libel. The claim of intentional infliction of emotional distress was reserved for trial by jury. A verdict in favor of the bank was returned and judgment was entered.

Sumner appealed, requesting that nothing be omitted from the record. By amendment he requested the omission of one designated letter, but he later requested that the letter and seven other specified items be included in the appeal record. The bank then filed a designation of addenda to request inclusion of two pretrial orders and certain depositions considered by the trial court in ruling on its motion for summary judgment.

1. Sumner contends that the grant of summary judgment was erroneous because special damages are not necessary to support a claim of libel, and that even if proof of special damage was required, the bank accused him of "kiting" checks and the accusation of criminality is libel per se.

The evidence showed that Sumner's Mastercard account with the bank became delinquent in 1982 because he was not making adequate payments to keep it current. As required by state and federal banking regulations, the bank routinely charged off his account by transferring it from the credit card department to the recovery department. A charge-off caused by a delinquent credit card debt is normally subject to a credit report but because Sumner had sued the bank and legal proceedings were pending, it was decided to refrain from the usual credit reporting procedures. However, information that the bank had incurred a charged-off loan from Sumner was inadvertently transmitted to Cheque Enquiries and communicated to another bank which rejected Sumner's application to open a personal checking account.

An allegation that one owes a delinquent debt does not impute that he has committed a crime. Estes v. Sterchi Bros. Stores, 50 Ga.App. 619(1), 179 S.E. 222 (1935); Haggard v. Shaw, 100 Ga.App. 813(1), 112 S.E.2d 286 (1959). A "business libel" may be actionable because of special damages, although not libelous per se. Weatherholt v. Howard, 143 Ga. 41(4), 84 S.E. 119 (1914). It is not necessary to allege special damages to recover in a libel action if it is shown that the plaintiff suffered an injury to his reputation, but "merely to charge one as a delinquent debtor is, as a matter of law, not libelous per se under the provisions of [present OCGA §§ 51-5-1 and 51-5-2]." Floyd v. Atlanta Newspapers, 102 Ga.App. 840, 842(1), 117 S.E.2d 906 (1960). "As respects a charge of failure to pay debts, without any imputation of insolvency, it seems to be settled that a writing containing the mere statement that a person who is not a trader or merchant, or engaged in any vocation wherein credit is necessary for the proper and effectual conduct of his business, owes a debt and refuses to pay, or owes a debt which is long past due, is not libelous per se and does not render the author or publisher of such statement liable without proof of special damages." Mell v. Edge, 68 Ga.App. 314(2), 22 S.E.2d 738 (1942).

The partial summary judgment was warranted.

2. Sumner complains that the trial court erred in not submitting to the jury his proposed stipulation of facts concerning the prior litigation. This stipulation was not agreed to by the bank. As Sumner has offered neither authority nor argument to require the presentation to the factfinder of a unilaterally proposed factual stipulation, we find no ground for reversal.

3. Sumner enumerates as error the court's not striking from evidence a document showing that his first suit was voluntarily dismissed without prejudice, when the court later became aware that counsel at the time of the dismissal had agreed that the fact of dismissal would not be revealed to the jury. No motion to strike was made, and appellant has cited no authority for the proposition that the court was bound, sua sponte, to instruct the jury to disregard the evidence. It was incumbent upon counsel to call this matter to the trial court's attention and ask for a specific ruling. Barron v. Pacific Employers Ins. Co., 149 Ga.App. 113(3), 253 S.E.2d 777 (1979).

In the course of appellant's argument, he contends that the document was objected to at the time it was offered. However, this was on the ground of relevancy, which was overruled. Where the trial court's ruling on the objections raised is not enumerated as error on appeal, the reviewing court cannot decide the admissibility of the evidence as against the objections. Department of Transp. v. Bennett, 194 Ga.App. 789(1), 391 S.E.2d 724 (1990).

4. Appellant has shown no grounds for reversal in his enumerations complaining that the trial court erred by commenting during a motion hearing outside the presence of the jury that while a witness had used the term "kiting," she did not understand the meaning of it, and that "kiting" was not an issue at trial. Where no ruling has been made there is nothing for this court to review. See Rowe v. Rowe, 195 Ga.App. 493(3), 393 S.E.2d 750 (1990).

5. Appellant challenges the trial court's failure to rebuke the bank's attorney for making an allegedly prejudicial remark in closing argument, in violation of OCGA § 9-10-185. The remark was that the lawsuit had been filed before, dismissed, and refiled. There was evidence earlier in the trial, outside the jury's presence, that defendant's counsel and plaintiff's prior counsel had agreed these facts would not be revealed to the...