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Wolff v. Middlebrooks

Court of Appeals of Georgia
Jun 18, 2002
256 Ga. App. 268 (Ga. Ct. App. 2002)

Summary

holding that comments "made during a radio broadcast to thousands of people" were not directed towards the plaintiff

Summary of this case from Pierce v. Warner Bros Entm't, Inc.

Opinion

A02A0812.

DECIDED: JUNE 18, 2002.

Slander, etc. Cobb State Court. Before Judge Glover.

William G. Leonard, for appellant.

Christopger G. Moorman, for appellee.


Todd Wolff appeals from a general jury verdict against him on Anthony Middlebrooks's claims for slander per se and intentional infliction of emotional distress, and a verdict against him for punitive damages. On appeal Wolff contends that the trial court erred by failing to grant his motions for a directed verdict or judgment n.o.v. on plaintiff's slander per se, intentional infliction of emotional distress, and punitive damages claims. We find that the trial court erred by failing to grant a directed verdict on the intentional infliction of emotional distress claim but did not err by denying the motion on the slander per se claim. Since this court has no way of determining whether any or all of the damages awarded by the jury were related to the emotional distress claim (due to the general verdict form), we reverse the judgment of the trial court and remand for a new trial on Middlebrooks's slander per se and punitive damages claims.

Viewed in the light most favorable to the plaintiff, the evidence reveals that on December 11, 1998, Wolff called into a popular local morning radio program on the radio station "99X." During the broadcast, Wolff (Middlebrooks's former employer) engaged in the following on-air conversation with the program DJs (Steve Barnes, Leslie Fram, and Jimmy Baron):

Wolff: Jimmy . . . [t]here's a gentleman running around the Atlanta area claiming to have a love affair with you.

Baron: You know what, I heard about this.

Wolff: Yeah, yeah, you heard about him?

Barnes: What?

Fram: Somebody's obsessed with you.

Baron: Somebody's, there's some dude running around saying that he was gay with me.

Barnes: Really?

Fram: Really?

Wolff: Yeah, he was at the [softball] game.

Barnes: No.

Wolff: Yeah, he was at the game. He was behind one of the dugouts.

Baron: Really.

Wolff: Yes.

Barnes: He claims that he's your lover?

* * *

Wolff: The gentleman running around is Tony Middlebrooks.

Barnes: Oh, you know the guy?

Wolff: Well, no, I've just, uh, I had a friend introduce himself and I asked him what was going on. But it was Tony Middlebrooks that was saying that he was having an affair with you.

Baron: I don't know who that is.

Barnes: Check that out, Jimmy. Thanks, Tony.

Baron: Tony Middlebrooks. That's just dumb.

Middlebrooks was listening to the program at the time of the broadcast, as were 40,000 other listeners in the Atlanta area. It is undisputed that Wolff did not make the comments directly to Middlebrooks. Wolff knew that the statements that he made during the radio broadcast were false at the time that he made them.

Middlebrooks sued Wolff for slander per se and intentional infliction of emotional distress based on Wolff's on-air radio comments, and also for punitive damages due to other alleged aggravating circumstances (i.e. just four days before Wolff made the comments, Middlebrooks had filed an employment grievance against Wolff for engaging in inappropriate conduct towards his wife at an office party, and Wolff fired Middlebrooks just one day before making the comments). After the close of Middlebrooks's case at trial, Wolff moved for a directed verdict on all of Middlebrooks's claims, which the court denied. The jury returned a general verdict in favor of Middlebrooks, awarding him $30,000 in damages. The verdict form did not indicate whether the jury based its verdict on either the slander per se or intentional infliction of emotional distress claim, or both. Finding a specific intent to cause harm, the jury also returned a verdict for punitive damages of $250,000. Wolff moved for a judgment n.o.v. and a new trial, and both motions were denied.

1. Wolff argues that the trial court erred by denying his motions for directed verdict and judgment notwithstanding the verdict on Middlebrooks's claim for slander per se. We disagree.

The standard of review of a directed verdict and a judgment n.o.v. is the same, and "a directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict." (Citations omitted.) St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137(1) ( 508 S.E.2d 646) (1998). Here, there is some evidence from which a jury could determine that Wolff's on-air comments amounted to slander per se.

Slander or oral defamation that is actionable per se, meaning that no special damages need be shown, may consist in "[i]mputing to another a crime punishable by law . . . [or] [c]harging a person . . . with being guilty of some debasing act which may exclude him from society." OCGA § 51-5-4(a)(1)-(2), (b).

A slanderous charge is actionable per se, whether the words directly or indirectly, by intimation or innuendo, contain slander. The slanderous charge is just as effectively harmful, and therefore actionable per se . . . whether the harmful effect results from words which directly and unequivocally make a charge or whether it results from words which do so indirectly or by inference. It is the harmful effect of defamatory language as it is understood which renders it actionable per se, and not its directness or unequivocal nature.

(Citation omitted.) Southland Corp. v. Garren, 135 Ga. App. 77, 79 (2)(b) ( 217 S.E.2d 347) (1975), rev'd on other grounds, 235 Ga. 784 ( 221 S.E.2d 571) (1976).

In the instant case, Middlebrooks claimed that Wolff's words imputed to him the crimes of adultery or fornication (had someone listening not known that he was married) or charged him with being guilty of some debasing act that would exclude him from society. Adultery occurs when a married person "voluntarily has sexual intercourse with a person other than his spouse. . . ." OCGA § 16-6-19. Fornication occurs when an unmarried person "voluntarily has sexual intercourse with another person. . . ." OCGA § 16-6-18.

By stating that Middlebrooks, a married man, was going around town professing to have an illicit affair with the radio DJ, Wolff raised the inference that such an illicit affair was taking place. The jury was authorized to draw this inference from the evidence presented, and was further authorized to conclude that Middlebrooks's "having an affair" with the DJ included sexual relations. Baskin v. Rogers, 229 Ga. App. 250, 252(2) ( 493 S.E.2d 728) (1997). The trial court therefore correctly allowed Middlebrooks's slander per se claim to be considered by the jury. See id.; see also Veazy v. Blair, 86 Ga. App. 721, 723 (1) ( 72 S.E.2d 481) (1952).

2. We hold that the trial court erred, however, by denying Wolff's motion for a directed verdict on Middlebrooks's claim for intentional infliction of emotional distress. "[E]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff." Ryckeley v. Callaway, 261 Ga. 828, 829 ( 412 S.E.2d 826) (1992). "Defamatory remarks made . . . to the public in general are classic examples of conduct that, though harmful to the plaintiff, was directed toward the hearer of the statements, not to the plaintiff, and thus is not actionable as intentional infliction of emotional distress." Lively v. McDaniel, 240 Ga. App. 132, 134(2) ( 522 S.E.2d 711) (1999). It is undisputed that the comments here were made during a radio broadcast to thousands of people and were not made directly to Middlebrooks. The trial court therefore erred by failing to grant a directed verdict to Wolff on this claim.

3. In light of our holdings in Divisions 1 and 2, and due to our inability to determine upon what basis the jury rendered its verdict on the general verdict form, we also cannot determine the underlying tort theory upon which the jury based its award for punitive damages. If the jury based its award of punitive damages on the underlying claim for which there could be no liability, there could likewise be no recovery for punitive damages. See Groutas v. McCoy, 219 Ga. App. 252, 254 (3) ( 464 S.E.2d 657) (1995). Conversely, if the jury based its award on the underlying tort of slander, punitive damages could be recoverable. The award for punitive damages must therefore be reversed, and we remand this case for a new trial on the issues of slander per se and punitive damages.

We note that this entire question could have been resolved with a specific verdict form for slander per se and intentional infliction of emotional distress.

4. Based on the foregoing, Wolff's remaining enumeration is moot. As we have a transcript, Middlebrooks's motion to dismiss the appeal is denied.

Judgment reversed and case remanded with direction. BLACKBURN, C. J., and JOHNSON, P.J., concur.


DECIDED JUNE 18, 2002 — RECONSIDERATION DENIED JULY 2, 2002 — CERT. APPLIED FOR.


Summaries of

Wolff v. Middlebrooks

Court of Appeals of Georgia
Jun 18, 2002
256 Ga. App. 268 (Ga. Ct. App. 2002)

holding that comments "made during a radio broadcast to thousands of people" were not directed towards the plaintiff

Summary of this case from Pierce v. Warner Bros Entm't, Inc.

holding that punitive damages could not be awarded on underlying claims for which there was no liability

Summary of this case from Southland Propane, Inc. v. McWhorter

finding that when appellate court cannot determine upon what basis the jury rendered its verdict on a general verdict form, it also cannot determine the underlying tort theory upon which the jury based its award for punitive damages, and because jury may have based its award on an underlying claim for which there could be no liability, there can likewise be no recovery for punitive damages

Summary of this case from Lyman v. Cellchem Int'l, Llc.

affirming jury's finding of liability based upon defendant's statement that plaintiff was involved in the crime of adultery or fornication

Summary of this case from Turnage v. Kasper

reversing award of punitive damages when verdict form did not allow appellate court to determine whether jury had found for plaintiffs under cause of action making such damages available

Summary of this case from Bloodworth v. Bloodworth

reversing punitive damages award where verdict form did not allow for the finding prerequisite to that award

Summary of this case from Bloodworth v. Bloodworth

In Brooks, the Georgia Supreme Court held that "only damages to the plaintiff's realty alleged to have to have occurred within four years of his bringing suit are not barred by the statute of limitation."

Summary of this case from Tomczyk v. Rollins
Case details for

Wolff v. Middlebrooks

Case Details

Full title:WOLFF v. MIDDLEBROOKS

Court:Court of Appeals of Georgia

Date published: Jun 18, 2002

Citations

256 Ga. App. 268 (Ga. Ct. App. 2002)
568 S.E.2d 88

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