Turnage v. Kasper., A10A1598.

CourtUnited States Court of Appeals (Georgia)
Citation307 Ga.App. 172,704 S.E.2d 842
Docket NumberNo. A10A1598.,A10A1598.
PartiesTURNAGE et al.v.KASPER.
Decision Date30 November 2010

OPINION TEXT STARTS HERE

John D. Wales, Marietta, for appellants.Melinda D. Taylor, Marietta, Sharon T. McCoy, for appellee.DILLARD, Judge.

This case demonstrates the deleterious consequences that flow from neighbors turning the admonition to “love your neighbor as yourself” on its head. Christine E. Kasper sued her neighbors, Mark Turnage and Bryant Daniel Penton (collectively, Appellants), for, inter alia, malicious prosecution, intentional infliction of emotional distress, and defamation, after the men had her arrested for aggravated stalking because she had the temerity to walk past them while retrieving her children from their designated bus stop. Kasper spent two weeks in jail before the case was eventually dismissed for lack of probable cause. On a verdict form that set out Kasper's causes of action separately, a Cobb County jury awarded her compensatory damages against the Appellants on every claim, as well as attorney fees, in a verdict totaling $210,500. The trial court then entered judgment on the jury's verdict against the Appellants jointly and severally.1 This appeal follows.

Appellants argue that the jury's verdict was not supported by the evidence, and that the jury's separate awards of monetary damages to Kasper on her claims for malicious prosecution and intentional infliction of emotional distress constitute an impermissible double recovery. For the reasons noted infra, we affirm the jury's verdict as to all claims against Turnage, and as to the claims of malicious prosecution and intentional infliction of emotional distress against Penton. We are constrained to conclude, however, that the evidence did not justify a finding of liability against Penton for defamation. We, therefore, reverse the defamation judgment against Penton, and remand the case to the trial court for a retrial solely on the issue of damages against Turnage for his defamation of Kasper.

At the outset, we note that while Kasper's claims were limited to only a few specific events, such that the facts underlying her lawsuit are relatively finite in nature, it is necessary to provide a detailed history of the long and tortured relationship between the parties in order to place this case in its proper context.

The backdrop for this unfortunate affair is the Applegate subdivision in Acworth, Georgia, where Kasper, her husband, and their two children resided. Penton and his family lived two doors down from the Kaspers, and the Turnage family lived on a separate street in the same subdivision. Due to the location of their homes, any person coming to or from the Kaspers' residence was forced to pass by the Pentons' house in order to enter or exit the neighborhood.

Although at one time the parties were friendly and socialized together, their relationship began to deteriorate rapidly in early 2005. Kasper and her husband described a neighborhood environment in which their family became the target of derision and harassment. The neighbors, led in large part by Turnage and Penton, formed an Orwellian “neighborhood watch” group that monitored and reported the Kaspers' activities. They retained walkie-talkies to facilitate their communications about the Kasper family, and took it upon themselves to photograph and record the Kaspers as they carried out their daily routines. For example, Penton testified at trial that he took approximately thirty photographs of the Kasper family during a one-month period, and purchased a digital audio recorder for the specific purpose of recording them.

The specific encounter underlying the litigation was preceded by several feuds that erupted in August 2005, some of which are set forth below, and in all of which Turnage and/or Penton participated to varying degrees. On August 12, 2005, the Kaspers' next door neighbor believed that the Kasper children were crossing over on to his property line as they rode a motorbike around their yard. Upon learning of the neighbor's suspicions, Penton gave him wooden stakes and string in order to delineate what he understood his property line to be. Believing the stakes to be a potential hazard to the neighborhood children (including her own), Kasper removed them from her neighbor's yard. This action resulted in a heated verbal altercation between Kasper and the neighbor (involving profanity), during which they got directly in each others' faces and Kasper pushed the neighbor on his chest. The police were called, and Penton (among others) complained about Kasper's behavior, but the police took no action.

The following day, August 13,2 Kasper and her daughter were riding a motorbike in the neighborhood. As they approached the street in front of Penton's house, a group of teenagers—including Turnage's two daughters—formed a human chain across the road, so that Kasper and her daughter could not pass. Although there were several adults present, including Turnage and Penton, none of them discouraged the teens from obstructing Kasper and her daughter's path. Instead, Kasper was forced to stop and ask the teens to move before they released their arms from one another and let them through. While Kasper and both of Turnage's daughters denied that Kasper's bike touched any of them, one teenager testified that the bike hit his arm and side as it passed. Turnage called the police to report the incident, and Appellants claimed that Kasper struck the teens with her motorbike. The police came, but once again took no action. According to the Appellants, Kasper returned to her home, retrieved her German Shepherd puppy, walked down the street past Turnage and Kasper with her dog in tow, and urged the dog twice to “sic 'em.”

Later that same day, Kasper was passing a football in her yard with a neighborhood boy she cared for while his grandmother worked late hours. At some point, the football flew over the boy's head and landed in the street. Moments later, one of the teenage girls who participated in the human-chain incident skated by on her rollerblades, grabbed the football, and then fled toward the end of the street with the ball.3 When Kasper and the boy went to retrieve the ball, they discovered it cut into two pieces and placed in the gutter, and then saw the teenage culprit sitting in the garage of a nearby residence with several other teenagers and at least one adult. Kasper stood outside the garage and demanded that the girl accompany her to discuss the incident with her parents, but she refused to do so. According to Kasper, she then entered the garage and pulled the girl by the arm in an attempt to escort her home, at which time the girl fell on her rollerblades and began screaming and kicking Kasper. The girl claimed that Kasper grabbed her by the throat, caused her to fall to the ground, and then began hitting her before she responded in kind by kicking Kasper. Eventually, Kasper and the boy left the garage alone. Shortly thereafter, Turnage, Penton, and other neighbors—communicating via walkie-talkies—descended upon the garage and called the police. This time, Kasper was arrested and accused of simple battery and battery, and spent approximately 12 hours in a holding cell before being bailed out by her husband.

The following day, August 14, Turnage, Penton, and Kasper's neighbor, among others, went to the magistrate's office to file warrant applications against Kasper. Specifically, Kasper's neighbor filed a warrant application seeking (again) to have her arrested for assault for pushing his chest during their argument about the stakes in his yard; and Turnage filed a warrant application seeking (again) to have Kasper arrested for aggravated assault for allegedly striking the teenage children with her motorbike and terroristic threats for ordering her puppy to “sic 'em.”

On September 8, 2005, the magistrate court held a hearing on the warrant applications filed by Kasper's neighbor and Turnage. Following the hearing, Kasper was arrested on two counts of simple assault based on the motorbike incident. She was released from jail on her own recognizance with certain bond conditions, one of which required that she “stay away, absolutely, directly or indirectly” from her neighbor, Turnage, and any other witnesses to the incidents at issue, which included Penton.

Then, on September 13, Kasper left her home and began walking with her dog up the sidewalk past Penton's house in order to pick up her children from their designated bus stop, in accordance with her daily routine.4 Having noticed that Turnage and Penton were in Penton's yard, and fearing that Kasper or their children would be subjected to harassment, Kasper's husband, who was conducting a work-related conference call, stood watch as Kasper walked to the bus stop. As feared, Turnage and Penton moved into the street and began inching closer to the sidewalk as Kasper approached. It is undisputed that Kasper did not speak to, make any gestures toward, or interact with the men in any way, nor did she leave the sidewalk. As Kasper silently passed by Turnage, he told her to keep the “f* *king dog away from me,” and then looked over at Penton and exclaimed, “Can you believe this sh*t?” At Turnage's prompting, Penton stepped within three feet of Kasper, and, in a paparazzi-esque fashion, snapped a photograph of her. Penton also recorded the incident with an audio recorder that was concealed in his pocket.5 Undeterred, Kasper continued on to the bus stop, where Turnage and Penton observed as she called for her children and then walked home with them on the opposite side of the street. Again, Kasper said nothing to the men, and Turnage and Penton testified definitively that Kasper's presence was not threatening, nor did they feel intimidated by her in any way.

After this incident, Kasper contacted the police and advised the responding officer of what had just occurred, and expressed her fear that ...

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