Troncalli v. Jones, A98A2143.

• Decision Date: 15 March 1999
• Docket Number: No. A98A2143.,A98A2143.
• Citation: 237 Ga. App. 10,514 S.E.2d 478
• Parties: TRONCALLI v. JONES.
• Court: Georgia Court of Appeals

514 S.E.2d 478

237 Ga. App. 10

TRONCALLI v. JONES.

No. A98A2143.

Court of Appeals of Georgia.

March 15, 1999.

Bach, Hulsey & Carver, John C. Bach, Robert J. Hulsey, Alpharetta, for appellant.

Gray & Gilliland, David S. Currie, Atlanta, for appellee.

POPE, Presiding Judge.

Regina Jones sued Tom Troncalli. Her complaint set forth one count of stalking; a claim for intentional infliction of emotional distress; a claim for negligent infliction of emotional distress; a claim for invasion of privacy; and a claim for assault and battery. In addition to the claim for compensatory damages, the complaint sought punitive damages.

The case was tried to a jury; at the conclusion of the evidence, the trial court directed a verdict on the claim for negligent infliction of emotional distress. The jury then returned a general verdict in Jones' favor for $45,000 in compensatory damages; the jury also found that punitive damages were warranted by the evidence and that Troncalli had acted with specific intent to cause harm. The punitive damages portion of the trial was then held, and the jury awarded $245,891 in punitive damages. The trial court entered judgment, Troncalli appeals, and based on our conclusion in Division 1 that stalking is not a tort, we reverse the judgment.

Viewing the evidence in the light most favorable to the verdict, Jones and Troncalli, who previously had met briefly, were at a mutual friend's house for a business-related party on April 24, 1996. Troncalli approached Jones and talked with her. During the conversation he "brushed up" against Jones' breasts with his arm and then looked at her to acknowledge that he had intentionally touched her. Jones felt uncomfortable and went to a different room; Troncalli followed her. He then gave her his business card and again intentionally touched her breasts.

Because she felt uncomfortable at the party, Jones left the party and got in her car. She saw Troncalli leaving the party and quickly walking to his car. As Jones was driving away, she noticed in her rearview mirror that Troncalli was following her in his car. Because she was afraid, Jones ran a stop sign, and Troncalli also ran the stop sign. Jones recalled that Troncalli followed her car very closely and when she began speeding, he began speeding too. Jones drove through the parking lot of a convenience store to avoid stopping at a stop sign; Troncalli followed her through the lot.

After traveling about three miles, Jones saw two police cars parked in front of a gas station. She drove up to the police and told them she was being chased. Troncalli arrived in the parking lot about a half-minute after Jones arrived. The police officers, who testified at trial, stated that Jones appeared "extremely frightened" and upset; she told the officers about Troncalli's behavior. At this point, Troncalli motioned at Jones as if to cut his throat. Troncalli looked angry, and Jones understood the gesture as a threat. One of the officers confirmed that the gesture appeared threatening and recalled that after Troncalli gestured, Jones asked the officers to tell Troncalli to go away. The officers then asked Troncalli to leave the premises. After about five minutes, Jones left the parking area and went home.

Officer Gomez testified that he asked Jones if she wanted to file a report regarding Troncalli's stalking. Jones did not want to pursue the matter. Gomez recalled that about a week after the incident, Jones came to the police station and asked that an incident report be made. She was also interested in getting a warrant against Troncalli. Though no charges were filed against Troncalli, both the incident report and the warrant were introduced as exhibits.

The evening after the business party, Jones and Troncalli were both present at a Chamber of Commerce meeting. Jones testified that before she was aware that Troncalli was present, he walked up behind her, put his mouth on her neck, and told her she had better be careful, because someone might be watching her. Jones became very frightened and tried to get away from Troncalli, but he followed her. Jones told Troncalli that he was frightening her and asked him to leave her alone, but Troncalli laughed at her request. Jones left the meeting soon thereafter.

On or about May 2, 1996, a little more than a week after the first business meeting, Troncalli came to Jones' house and banged loudly on the door for about five minutes. Although Jones was not at home, her teenage daughter testified that she saw Troncalli and that her mother became more frightened after this incident.

After these incidents Jones developed shingles, experienced nausea and vomiting, became frightened and depressed, and sought psychological counseling.

At trial, Paula Head and Tamara Roberts testified that Troncalli had also subjected them to unwanted attention, touched their breasts intentionally and against their will, continued to pursue them after they asked him to stop, and otherwise behaved in a sexually inappropriate manner.

Troncalli testified at trial and claimed that Jones' account of the above incidents was erroneous.

1. In his first enumeration of error, Troncalli claims that the trial court erred in denying his motion for directed verdict on Jones' claim of stalking.¹ Troncalli argues that the court's holding that a tort of stalking was created when the legislature created a criminal statute on stalking was erroneous. Jones argues that the court did not err in denying the motion for directed verdict and that the court's charge on stalking simply set forth a duty which Troncalli breached. Jones claims that because there was a general verdict form the fact that stalking was included as an offense was, at most, harmless error.

The enactment of OCGA § 16-5-90, which defines the crime of stalking, did not automatically create a tort of stalking. It is well settled that "[t]he violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who is injured thereby." (Punctuation omitted.) Cechman v. Travis, 202 Ga.App. 255, 256(1), 414 S.E.2d 282 (1991).

In Cechman, the plaintiff argued that OCGA § 19-7-5, which requires doctors with reasonable grounds for believing that a child has been abused to report such abuse, created a private cause of action. This Court rejected the argument that the criminal statute created a private cause of action in favor of the victim. See also Rolleston v. Huie, 198 Ga.App. 49, 50(2), 400 S.E.2d 349 (1990) (no tort remedy available under OCGA § 16-8-16 for the allegedly unlawful attempt to disseminate information tending to impair appellant's business); Sparks v. Thurmond, 171 Ga.App. 138, 142(5), 319 S.E.2d 46 (1984) (plaintiff did not acquire private right of action pursuant to OCGA § 35-3-38, which renders the unauthorized procurement of Georgia Crime Information Center record information punishable).

Here, although OCGA § 16-5-90 establishes the public policy of the state, nothing in its provisions creates a private cause of action in tort in favor of the victim. We have been unable to locate any Georgia case which analyzes this issue. Though in Aycock v. Calk, 222 Ga.App. 763, 476 S.E.2d 274 (1996), the complaint and the counterclaim contained a claim for stalking, this Court did not address the legitimacy of those claims. Because there is no cause of action for stalking, the court should have granted Troncalli's motion for directed verdict on this basis.²

Jones' argument that there was no harmful error because the jury returned a general verdict lacks merit. In fact, the opposite of this is true: "[s]ince the jury found a general verdict for the plaintiff against [the] defendant[], the verdict cannot stand for the reason that this court cannot determine whether the verdict was entered upon a proper basis. [Cits.]" Ga. Power Co. v. Busbin, 242 Ga. 612, 616-617(8), 250 S.E.2d 442 (1978).

Similarly, Jones' arguments that the jury was appropriately charged on stalking because the charge outlined Troncalli's duty and because all of the evidence regarding stalking would have been otherwise admissible under other theories are without merit. Stalking was one of Jones' main theories of recovery in the case; it formed a separate count of the complaint. Jones' opening statement listed stalking as the first theory of recovery. In its closing charge, the court gave the jury a lengthy charge regarding stalking, tracking the statutory definition which is set forth in OCGA § 16-5-90. Contrary to Jones' argument, the court did not instruct the jury that stalking simply defined a duty and Jones' argument that stalking was peripheral to her recovery is without merit.

Because Troncalli's additional enumerations involve issues which are likely to recur on retrial, we will also address these arguments.

2. In his second enumeration of error, Troncalli argues that the trial court erred in denying his motion for directed verdict on Jones' claim of invasion of privacy.

Under Georgia case law, the concept of invasion of privacy encompasses four loosely related but distinct torts, as follows: (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation for the defendant's advantage of the plaintiff's name and likeness. [Cit.]

Sun v. Langston, 170 Ga.App. 60, 61(2), 316 S.E.2d 172 (1984). In this case, Jones was clearly proceeding under the first category, i.e., intrusion into her private affairs.

As described above, Troncalli intentionally brushed up against and intentionally touched Jones' breasts; he followed her in his car; he made a threatening gesture at her; he put his mouth on her neck; he followed her when she tried to get away; and he came to her house and knocked loudly on the door. All of...