IN THE SUPREME COURT OF GEORGIA
CASE NO. S16A0013
STANLEY W. COTTRELL, JR.
Appellant,
v.
PEGGY SMITH et. al.,
Appellees.
BRIEF OF APPELLEES PEGGY SMITH AND KAREN SMITH
CHRISTOPHER G. MOORMAN
Georgia Bar No. 521490
NICHOLAS J. PIESCHEL
Georgia Bar No. 579660
Attorneys for Appellees Peggy Smith and Karen Smith
MOORMAN PIESCHEL, LLC
One Midtown Plaza, Suite 1205
1360 Peachtree Street, NE
Atlanta, Georgia 30309
(404) 898-1240
Fax: (404) 898-1241
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................ ii
TABLE OF AUTHORITIES ......................................................................... iii
INTRODUCTION .......................................................................................... 1
BRIEF STATEMENT OF FACTS ................................................................. 3
STANDARD OF REVIEW .......................................................................... 10
ARGUMENT AND CITATIONS OF AUTHORITY ................................. 10
1(a) Directed Verdict on the Georgia Computer Systems Protection Act
Claim Should be Affirmed ............................................................................ 10
1(b) Directed Verdict on the IIED Claim Should be Affirmed .................... 16
2(a) JNOV on Cottrell’s Defamation Claim Should be Affirmed. .............. 21
2(b) JNOV on Breach of Fiduciary Duty Claim Should be Affirmed......... 29
2(c) JNOV on Invasion of Privacy Claim Should be Affirmed.................... 30
CONCLUSION ............................................................................................. 30
CERTIFICATE OF SERVICE ..................................................................... 32
ii
TABLE OF AUTHORITIES
Cases
Abdul–Malik v. AirTran Airways, 297 Ga.App. 852, 678 S.E.2d 555 (2009) .......20
ACLU v. Reno, 929 F.Supp. 824, (E.D.Pa.1996)....................................................15
Am. Civil Liberties Union of Georgia v. Miller, 977 F.Supp. 1228 (N.D.Ga. 1997)
......................................................................................................... 10,13,14,15,16
Atlanta Humane Soc. v. Mills, 274 Ga.App. 159, 618 S.E.2d 18 (2005)................22
Atlanta Journal-Constitution v. Jewell, 251 Ga.App. 808, 820 (2002) ...................25
Bellemead, LLC v. Stoker, 280 Ga. 635, 631 S.E.2d 693 (2006) ...........................22
Bennett v. Hendrix, 325 Fed.Appx. 727 (11th Cir. 2009) .......................................27
Blackburn v. BAC Home Loans Servicing, LP, 914 F.Supp.2d 1316 (M.D.Ga.
2012) ....................................................................................................................17
Bowers v. Estep, 204 Ga.App. 615, 420 S.E.2d 336 (1992) ...................................19
Burrow v. K–Mart Corp., 166 Ga.App. 284, 304 S.E.2d 460 (1983) .....................28
Clark v. West, 196 Ga.App. 456, 395 S.E.2d 884, 886 (Ga.App.,1990) .................17
Dagel v. Lemcke, 245 Ga.App. 243, 537 S.E.2d 694 (2000) ..................................27
Dun & Bradstreet, Inc. v. Miller, 398 F.2d 218 (5th Cir. 1968)..............................21
Garcia v. Shaw Industries, Inc., 321 Ga.App. 48, 741 S.E.2d 285, 289 (2013) 18,19
Gettner v. Fitzgerald, 297 Ga.App 258, 677 S.E.2d 149 (2009) .............................27
Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)
..............................................................................................................................15
Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 311 S.E.2d 818
(1984) ...................................................................................................................17
Hoffman-Pugh v. Ramsey 193 F.Supp.2d 1295 (N.D.Ga. 2002) ............................23
Howerton v. Harbin Clinic, LLC, 333 Ga. App. 191, 776 S.E.2d 288 (2015) .. 18,20
Infinite Energy v. Pardue, 310 Ga.App. 355, 713 S.E.2d. 456 (2011) ....................25
Jones v. Fayette Family Dental Care, 312 Ga.App. 230, 718 S.E.2d 88 (2011) .....20
Jones v.Warner, 301 Ga.App. 39, 686 S.E.2d 835(2009)........................................20
Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) .........15
Mathis v. Cannon, 276 Ga. 16, 573 S.E.2d 376 (2002) ...........................................22
Metropolitan Atlanta Rapid Transit Auth. v. Mosley, 280 Ga.App. 486, 634 S.E.2d
466 (2006) ............................................................................................................18
Parks v. Multimedia Technologies, 239 Ga.App. 282, 520 S.E.2d 517(1999) .......27
R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)...........14
Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 109 S.Ct. 2829,
106 L.Ed.2d 93 (1989) .........................................................................................15
Southard v. Forbes, Inc., 588 F.2d 140, (5th Cir. 1979) ..........................................23
iii
Southland Propane, Inc. v. McWhorter, 312 Ga. App. 812, 720 S.E.2d 270 (2011)
................................................................................................................. 18, 20, 30
Stange v. Cox Enterprises, Inc., 211 Ga.App. 731, 440 S.E.2d 503 (1994)...... 23,24
State v. Fielden, 280 Ga. 444, 629 S.E.2d 252, (2006) ..........................................13
Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981) ..............................................11
Tronitec, Inc., v. Shealy, 249 Ga.App. 442, 547 S.E.2d 749 (2001) .......................27
Turpin v. Worley, 206 Ga. App. 341, 425 S.E.2d 895 (1992) ................................12
Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100
S.Ct. 826, 63 L.Ed.2d 73 (1980) ..........................................................................14
Williams v. Trust Co. of Ga., 140 Ga.App. 49, 230 S.E.2d45 (1976).....................23
Wolff v. Middlebrooks, 256 Ga.App. 268, 568 S.E.2d. 88 (2002) .........................30
Wynn v. City of Warner Robins, 279 Ga.App. 42, 630 S.E.2d 574 (2006) ............10
Statutes
O.C.G.A. § 16-9-90 et seq. ......................................................................................10
O.C.G.A. § 16-9-92(1), (2), and (16) .......................................................................11
O.C.G.A. § 16-9-93..................................................................................................16
O.C.G.A. § 16-9-93.1...............................................................................................11
O.C.G.A. § 51-5-1....................................................................................................21
O.C.G.A. § 51-5-4....................................................................................................21
O.C.G.A. §51-5-4 (a)(1) & (3) .................................................................................22
iv
INTRODUCTION
Plaintiff Stan Cottrell (“Cottrell” or “Appellant”) filed suit in the Superior
Court of Cobb County, alleging defamation and other tort claims against five
individuals arising out of the Defendants’ on-line postings and other
communications about Cottrell. (R-11).
Defendants Karen and Peggy Smith
(“Smiths”) filed Answers contending that their statements about Cottrell were true
and/or otherwise not actionable under Georgia law. (R-25; R-35). No dispositive
motions were filed before trial.
At trial, the Smiths moved for directed verdict on all of Cottrell’s claims
after Cottrell concluded his case in chief. (T-1928). The court (The Honorable
Donald B. Howe, Senior Judge, sitting by designation) directed a verdict in favor
of Defendants as to Cottrell’s claims for intentional infliction of emotional distress
and for violation of the Georgia Computer Systems Protection Act. (T-2028-2029).
As to the remaining claims for defamation, invasion of privacy, tortious
interference with business opportunities, and breach of fiduciary duty, the Court
had concerns about the viability of some or all of those claims in light of the
evidence presented, but withheld ruling in order to await the jury’s determination
and, if necessary, further consider the issues in a JNOV setting. (T-2028; R-2657,
Order Granting Defendants’ Motion for Judgment Notwithstanding the Verdict
(“JNOV Order”), p. 7).
1
With regard to the defamation claim, the Court ruled that Cottrell was a
limited purpose public figure with respect to “running and evangelism,” a finding
Appellant does not contest. In that connection, the court also found that Cottrell’s
“character” was central to the underlying controversy. (T-2000-2001, 2007).
The jury returned a fragmented verdict, finding for Cottrell against Karen
and Peggy Smith for defamation but finding no special damages; for Cottrell
against all Defendants for invasion of privacy; for Cottrell against Peggy Smith,
Marian Crocker, and Glenn Crocker for breach of fiduciary duty; and for
Defendants on Cottrell’s claim for tortious interference. (R-2372-75). Damages
awarded were “general” damages and not connected to any of the three tort
theories on which Cottrell recovered.1
The Smiths and Hugh Johnson filed post-trial motions for JNOV and/or new
trial. (R-2376, 2424).
After briefs were submitted and a trial transcript was
prepared, the trial court conducted a two day hearing to hear arguments and review
the record. The court then granted the motions for JNOV and entered Judgment in
favor of the Smiths and Johnson. (R-2657). The Crockers did not file post-trial
motions. Cottrell now appeals from the trial court’s grant of JNOV to the Smiths
1
The jury awarded general damages in the amount of $200,000 and an additional
$285,000 for attorneys fees and litigation expenses; and $150,000 in punitive
damages. The jury found no joint and several liability and apportioned damages as
follows: $269,000 as to Peggy Smith, $293,250 as to Karen Smith, $24,250 as to
Marian Crocker, $24,250 as to Glenn Crocker, and $24,250 as to Hugh Johnson.
(R-71)
2
and Johnson and from the trial court’s directed verdict in Defendants’ favor on
Cottrell’s claims for intentional infliction of emotional distress and a violation of
the Georgia Computer Systems Protection Act.
BRIEF STATEMENT OF FACTS2
Beginning in the late 70’s and early 80’s, Stan Cottrell engaged in a number
of long distance running exhibitions with an evangelical and “friendship”
emphasis. Cottrell gained notoriety as his runs were epically portrayed in movies,
books, articles, and recorded interviews.3 Cottrell parlayed his status as a “worldrenowned ultra-marathon runner”4 into other endeavors, including multi-level
marketing, associations with health-related products, executive leadership
positions, and motivational speaking. (Ex. D20; T-1756-65).
Cottrell has
2
Trial Exhibits have not yet been submitted to the Supreme Court. References
herein to trial exhibits therefore do not include citation record citations.
3
In 1979, Cottrell claimed to set a world record for distance covered on a track in
24 hours. In 1980, he embarked on a sponsor-supported “Transamerica” run and
was credited by Guinness Book with a world record in that endeavor. (T-1693).
Cottrell also engaged in a series of multi-day “Friendship” runs in foreign
countries which involved covering vast distances on foot. (T-1693). Cottrell and
his film team conducted a run along the Great Wall of China which became the
subject of the 1987 feature film “China Run.” In 1988, Cottrell performed a
similar endeavor in Viet Nam which was portrayed in the 1990 feature film,
“Destination Da Nang.” The movies, parts of which were played for the jury
during trial, depict Cottrell interacting with foreign peoples and reflecting about his
interactions and journey. (T-1284; Exs. D12 & D13).
4
Per the inside jacket blurb of Cottrell’s first published book, No Mountain Too
High (Revell Company, 1984). (Ex. D3)
3
continued to plan and promote heroic exhibition runs. In May of 2013, Cottrell
and his longtime filmmaker, Mickey Grant, were working on finishing up film
projects depicting previous runs in Ethiopia and Bulgaria; and a “How to Run”
film. (R-2001, p. 90). In recent years, Cottrell has planned and advertised “The
Great Global Friendship Run,” through which Cottrell proposes to raise a billion
dollars for orphans. (T-1899).
Cottrell’s rise in notoriety has been accompanied by controversy relating to
his claims and character. The noteworthy running achievements always occurred
in solo exhibitions, not sanctioned races; and starting in the 1980’s, published
articles questioned Cottrell’s integrity and the authenticity of his claims.5 Cottrell
acknowledged the “controversy” in a letter he wrote to the Editor of Running
Times Magazine in response to an exposé piece questioning one of Cottrell’s
“Transamerica” exhibitions (“Porsche Gets Taken for a Ride”). Cottrell wrote:
“For the past 6 years, I have continued to be the subject of a number
of articles by both you and a handful of your cronies who…thrive on
creating scandal, controversy and ill-will around my name and
activities … To date, there has never been a runner that has been as
blasted, ridiculed slandered and scoffed at (sic)…”
(Ex. D134; T-1741-44).
5
Questions About Cottrell, Running Times Magazine, 1981 (Ex. D55); The
Selling of Stan Cottrell, Footnotes Magazine, 1981 (Ex. D58B); The Selling of Stan
Cottrell, Part Two, Footnotes Magazine, 1985 (Ex. D1007); Porsche Gets Taken
for a Ride, Running Times Magazine, year unknown, referenced at Ex. D134.
4
Cottrell fired back at the media in Lance Armstrong fashion. His attorney
(then and now) Tyler Dixon wrote scathing cease and desist letters to Cottrell
character critiquers. One was sent to Atlanta Newspapers (AJC’s predecessor),
threatening to sue the paper and journalist Dick Buerkle for defamation if they
published an exposition piece on Buerkle’s investigation into Cottrell’s recordsetting Transamerica run in 1980.6 (Exs. D132 & D133). The letter accused
Buerkle of “under(taking) a malicious and unwarranted assault on Stan’s
character.” Fearing litigation, the paper never published the story. (T-2150-54).
Evidence tendered by Defendants at trial demonstrates that Cottrell’s
character has continued to be the subject of public comment, rebuke, and ridicule
over the years.7
6
Buerkle, a former U.S. Olympic track star turned journalist, testified at trial. He
became aware of claims that Cottrell’s “Transamerica” run was not authentic and
began to investigate. Buerkle testified that he interviewed Cottrell and located
members of Cottrell’s run team, one of whom indicated that Cottrell travelled by
vehicle over distances he claimed to be covering on foot. (T-2150-2151). Reese
Thompson, who also testified at trial, was the run-team member who spoke with
Buerkle. (R-573, p. 31). Thompson’s testimony confirmed what he told Buerkle -that Cottrell rode in a support vehicle over distances he claimed to be running; and
that this led to an ugly confrontation between Cottrell and his team in Indianapolis
about the ethics of the run project and the ultimate decision to “just do everything
[they could] to get [Cottrell] to San Francisco in the timely fashion to break the
record.” (Id. at p. 22-24, 28).
7
See Ex. D74 (“Concept2” Rowing Forum, 2006) (“[Cottrell] came from nowhere
in the early 1980s to set amazing records for running across the USA, running the
Great Wall of China, running the length of Cuba, etc. etc. etc. Experienced
ultramarathoners smelled a rat when his exploits made their way into the running
5
The Defendants came to know Cottrell in different ways. Glenn and Marian
Crocker worked for Cottrell in the planning stages of two of Cottrell’s overseas
running exhibitions, including the “Great Global Friendship Run.” (T-720-721).
Hugh Johnson is a long-time friend and running companion of Cottrell’s who
became aware of Cottrell’s extra-marital involvement with various women. Peggy
Smith is one of several women with whom Cottrell became involved outside of his
marriage.8 Peggy and Stan initially met in 1980 and, after seeing each other only a
few times over the years, became reacquainted through Facebook in 2009; and then
became intimately involved for a period of months. (T-308, 313).
During their relationship, Peggy loaned Cottrell $20,000. She then became
magazines. They wondered aloud why he didn’t do any of the sanctioned ultra
races, which he would have won in a breeze if his other runs were real...”); Ex.
D79 (“Museum of Hoaxes,” 2008) (“Stan Cottrell is not just a mere scam artist.
I’ve heard stories over the years that would send a chill racing up your spine.”);
Ex. D77 (“coolrunning.com”/”Little Faith in the ‘Multi-day Record’,” 2010) (“I
thought we had all learned our lesson from Stan Cottrell. This has red flags all over
it...”); Ex. D72 (“coolrunning.com”/”Stan Cottrell - Scam Runner Coming to
Aus?,” 2010) (“I personally know Stan Cottrell and he is bad news, especially for
older women who are vulnerable. . .”); and Ex. D75 (“Live For the Run,” 2011)
(“Unlike Stan Cottrell of the 70s, who claimed to have completed some incredible
ultra runs only to be proven a fraud, Karnazes is a great runner.”).
8
Four other women, Karen Francis, Rose MacFarland (Nagel), Nancy Kimball,
and Beth Sutton testified at trial about being intimately involved with and/or
pursued by Cottrell. (T-2066-67; T-2124-25; Ex. P115; T-2198; R-2235, pp. 1112). There was evidence that another woman, who met Cottrell on a plane and
wanted a relationship with him, confronted Plaintiff’s wife, Carol, on the front
porch of their home and the two had a physical confrontation. (T-1149-1150).
6
suspicious that Cottrell had deceived her about various matters and required
Cottrell to sign a promissory note; and the relationship eventually broke off. (T351-52, 358). Peggy’s suspicions revolved around how Cottrell held himself out.
According to Peggy, Cottrell represented that he was “separated” from his wife and
“living with” a friend, Hugh Johnson, at the time of their Facebook reacquaintance.
(T-348-349). Peggy’s suspicion grew when Cottrell invited Peggy to accompany
him on an overseas running exhibition that never materialized. Further, Cottrell
falsely represented to Peggy that he was a decorated military officer and
undercover government operative – a representation that Cottrell admitted at trial
was false.9
Several other witnesses at trial, mostly women, testified that Cottrell held
himself out as having been a “General” and/or CIA operative.10 The true extent of
Cottrell’s military service is two years of reserve duty in college. (T-1704). Peggy
learned of and communicated with women who had similar experiences with
Cottrell. (T-441). Angered, Peggy sent Cottrell’s wife a package containing copies
of love letters between Stan and Peggy and a DVD video depicting Stan and Peggy
9
Cottrell admitted this fact at trial as well as the fact that he had testified falsely in
his deposition about same, which testimony was was recalled during crossexamination. (T-1699).
10
Nancy Kimball, Cherie Effron, Karen Francis, and Beth Sutton testified to this
effect (T-2066; T-2199; T-2212; R-2235, pp. 16, 25)
7
embracing one another in a parking lot (the making of which was unknown to
Cottrell).
Near the time her relationship with Cottrell was ending, Peggy revealed her
experiences to her daughter-in-law, Karen Smith. Karen became worried that
Peggy might not be repaid for the loan and intervened to attempt to collect from
Cottrell. (T-995, 1008). In the wake of Peggy’s revelations about Cottrell, Karen
began to research Cottrell via the internet. She read “hundreds and hundreds” of
pages of information and based on what she read, Karen located and contacted
various people she believed had information about Cottrell. (T-891).
Karen learned biographical details about Cottrell, his running background,
public persona, business dealings, and that certain people had given Cottrell money
without being repaid. (T-891). Based on the information she gathered, Karen came
to believe that Cottrell “misrepresent(ed) his professional life, his business
associations, and his athletic accomplishments in order to deceive and take
advantage of people, and [has been] doing it for decades.” (T-895).
In July, 2010, Karen Smith and her husband created a “WordPress” blog for
the purpose of posting information about Cottrell.11 The blog was first located at
http://stancottrell@wordpress.com, but because of a Wordpress rule that a
11
Cottrell eventually paid Peggy back for her loan, but not before the blog was
created. (Ex. Joint 1, p. 2; T-1010)
8
person’s name cannot appear in the title of the blog unless that person is the author,
the content was transferred to http://youshallknowthetruth@wordpress.com. (Ex.
Joint 1; T-780). Karen testified that she launched the blog because she “wanted
people to have the opportunity to see the part of Mr. Cottrell that he didn’t want
other people to see so that they could make a determination of their own as to his
character.” (T. 778-779).12
Karen controlled the content of the blog and posted stories and information
about Cottrell based on her communications with others and information she
learned. (T-771, 777, 795-796). Defendant Marian Crocker, for example, was a
Cottrell associate who revealed information that led to the post entitled “A
Smokescreeen to Get Money.” (Ex. Joint 1; T-731, 800). Karen wanted her blog to
have enough exposure so that it would work its way up to “page 1” of Google
searches relating to Cottrell. (T-824). In addition to the blog postings, Peggy
Smith sent messages to multiple Cottrell Facebook “friends” criticizing him and, in
some instances, including hyperlinks to internet postings about Cottrell. (T-268).
Karen Smith sent emails along the same lines to a “list serve” group in which she
participated. (Exs. P38, P202, P315).
During closing argument, Cottrell’s counsel was somewhat vague about the
12
The introduction to the Blog (contained in the first post, entitled “About”) states
Karen’s purpose. (Ex. Joint 1, pp. 1-2).
9
specific language claimed to be defamatory,13 but what counsel lacked in
specificity he made up for in vitriol. (“That is just wrong. That is worse than
wrong. That is evil…You look at those emails. They will make you sick;” “That’s
just plain mean.”) (T-2529, 2545).
STANDARD OF REVIEW
The standard of review in connection with the grant of a motion for directed
verdict and motion for j.n.o.v. is the “any evidence” standard. Wynn v. City of
Warner Robins, 279 Ga.App. 42, 43, 630 S.E.2d 574, 576 (2006).
ARGUMENT AND CITATIONS OF AUTHORITY
1(a) Directed Verdict on the Georgia Computer Systems Protection
Act Claim Should be Affirmed
Cottrell’s claim under the Georgia Computer Systems Protection Act,
O.C.G.A. § 16-9-90 et seq. (“the Computer Act”) was a minor part of the trial.
The claim was not alleged in the Complaint or Amended Complaint and was added
at the Pretrial Order stage. (R-11; R-92; R-349). The Smiths moved for directed
verdict (R-529) and the trial court granted directed verdict to all Defendants,
indicating that he was “going to follow” a federal case cited by the Smiths, Am.
Civil Liberties Union of Georgia v. Miller, 977 F.Supp. 1228 (N.D.Ga. 1997),
13
The blog posts, emails, and Facebook messages complained about fell mostly
into three categories: (a) statements about Cottrell’s running; (b) statements about
Cottrell’s affairs with women while married; and, (c) statements suggesting that
Cottrell misled others.
10
discussed infra. (T-2029).
This Court has alternative bases to affirm and
affirmance need not necessarily be based on the reason(s) articulated by the trial
court. “A correct decision of a trial court will not be reversed, regardless of the
reasons given therefor.” Tony v. Pollard, 248 Ga. 86, 88, 281 S.E.2d 557 (1981).
There Was No Evidence That the Smiths Violated the Computer Act.
A claim under § 16-9-93 of the Computer Act (a criminal statute also
providing civil relief) for computer theft, computer trespass, computer invasion of
privacy, or computer forgery requires a primary showing that the defendant
engaged in unauthorized “use” of a “computer or computer network” for certain
reasons declared to be unlawful. “Use” is defined to mean “causing or attempting
to cause” a computer (defined as a “device”) or computer network to do certain
enumerated things. O.C.G.A. § 16-9-92(1), (2), and (16). Thus, a violation must
involve some level of the defendant’s unauthorized interaction or engagement with
a particular computer device or network. O.C.G.A. § 16-9-93.1 makes it unlawful
to “transmit any data through a computer network” in certain situations.
Appellant’s Brief cites no evidence of Karen or Peggy Smith’s “use” of
Cottrell’s computer or computer network or unauthorized use of any computer or
network; and there was none.
Cottrell’s vague assertion that “Defendants
intentionally altered Plaintiff’s website and Facebook page,” like several other
references to purported facts at trial, is not supported by a record citation. (Brief of
11
Appellant, p. 14). Nor is evidence cited of the Smiths’ violatoin of conduct
outlawed by § 93.1.
Cottrell Waived any Error.
Appellant’s Brief does not demonstrate how he preserved for appeal any
impropriety with respect to the grant of directed verdict on Cottrell’s claim under
the Computer Act. Appellees filed a brief in support of their motion for directed
verdict, part of which dealt with the Computer Act claim. (R-529; T-1926).
Cottrell filed no brief in response and presented no argument on this issue. After
the trial court indicated that he had read the Smith brief and was inclined to grant
directed verdict on the Computer Act claim, Cottrell’s counsel made no argument,
tender, offer of proof, or request to delay ruling. (T-2029).
Following the directed verdict ruling, there was no further attempt to argue
or re-open the issue and no exception taken to the manner in which the directed
verdict disposition was handled. Thus, there is no record of Appellant’s position in
opposition to the motion for directed verdict on the Computer Act claim. Under
these circumstances, Cottrell waived any alleged error. See Turpin v. Worley, 206
Ga. App. 341, 344-45, 425 S.E.2d 895 (1992).14
“Pretermitting whether the trial court erred in granting directed verdict in favor of
Milford is the question whether the issue has been waived by the conduct of
appellant. We conclude it has. A party cannot complain of a judgment, order, or
ruling that his own trial procedure or conduct aided in causing. Such conduct
12
14
The Computer Act, or Portions thereof, is Unconstitutional
A statute is unconstitutionally vague if it describes conduct in a manner so
unclear that it leaves intelligent people uncertain as to the limits of its application.
State v. Fielden, 280 Ga. 444, 444, 629 S.E.2d 252, 254 (2006). A statute that is
clear about what it prohibits can nevertheless be unconstitutionally overbroad if it
“stifles expression or conduct that is otherwise protected by the Constitution.”
State v. Fielden, 280 Ga. 444, 445, 629 S.E.2d 252, 254-55 (2006). The doctrine
of overbreadth is particularly applicable where a statute infringes upon behavior
protected by the First Amendment. Id.
For the reasons articulated in Miller, supra, this Court should find that
O.C.G.A. §16-9-93.1, one of the bases for Cottrell’s Computer Act claim, to be
unconstitutional and unenforceable. Miller involved a constitutional challenge to
the §93.1 of the Computer Act in an injunction setting. Judge Marvin Shoob ruled
that plaintiffs were likely to prove that the statute (1) “imposes content-based
restrictions which are not narrowly tailored to achieve the state’s purported
compelling interest;” (2) is “overbroad and void for vagueness;” and (3) is not
readily susceptible to a limiting construction. 977 F.Supp. at 1232-33.
constitutes both a form of induced error and waiver.” Turpin , 206 Ga.App. at 344,
425 S.E.2d at 898 (internal cits. & quots. omitted)
13
The first problem with the language of § 93.1 is one of overbreadth in its
use of the words “falsely identify.”
The statute’s prohibition of internet
transmissions which “falsely identify” the sender “constitutes a presumptively
invalid content-based restriction.” 977 F.Supp at 1232, citing R.A.V. v. St. Paul,
505 U.S. 377, 382, 112 S.Ct. 2538, 2542–43, 120 L.Ed.2d 305 (1992).
Recognizing the state has an interest in fraud prevention (which the defendants in
Miller argued was the statute’s purpose), the prohibitions of § 93.1 would apply
regardless of whether a speaker intended to deceive or whether deception actually
occurs. The statute would therefore apply to a wide range of transmissions which
“falsely identify” the sender, but are not “fraudulent” within the specific meaning
of the criminal code. 977 F.Supp. at 1232.15
Given that the state may only impose content-based restrictions to promote a
compelling state interest through the use of “the least restrictive means to further
the articulated interest,” found Miller, § 93.1 “is not narrowly tailored to achieve
that end and instead sweeps innocent, protected speech within its scope.” Id.,
15
Miller noted that “[o]n its face, the act prohibits such protected speech as the
use of false identification to avoid social ostracism, to prevent discrimination and
harassment, and to protect privacy, as well as the use of trade names or logos in
non-commercial educational speech, news, and commentary—a prohibition with
well-recognized first amendment problems.” 977 F.Supp. at 1233, citing Village
of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct.
826, 834–35, 63 L.Ed.2d 73 (1980).
14
citing Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109
S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989).
Miller also noted vagueness problems with § 16-9-93.1. To avoid the voidfor-vagueness doctrine, criminal statutes must “define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75
L.Ed.2d 903 (1983).16 The court concluded in Miller that § 93.1 was likely void
for vagueness because it “1) does not give fair notice of the scope of conduct it
proscribes; 2) is conducive to arbitrary enforcement; and 3) infringes upon
plaintiffs’ free expression.” 977 F.Supp. at 1234-35, citing Grayned v. City of
Rockford, 408 U.S. 104, 108–09, 92 S.Ct. 2294, 2298–99, 33 L.Ed.2d 222
(1972).17
The failure to specifically articulate proscribed conduct not only
“provides prosecutors and police officers substantial room for selective
16
Like the overbreadth doctrine, the policies underlying the vagueness rule apply
with special force where the statute at issue restricts speech. ACLU v. Reno, 929
F.Supp. 824, 860 (E.D.Pa.1996).
17
More specifically, the act fails to give fair notice of proscribed conduct to
computer network users by failing to define “falsely identify,” “use,” “falsely
imply,” and “point of access to electronic information;” and thus, there is
“inadequate notice of the scope of proscribed conduct to persons of ordinary
intelligence” and the statute is void for vagueness.
Likewise, the act
problematically fails to explain the phrase “any data ... over the transmission
facilities or through the network facilities of a local telephone network for the
purpose of ... exchanging data with ... a point of access to electronic information.”
15
prosecution” of persons who express minority viewpoints, but chills protected
expression. Miller, 977 F.Supp. at 1234-35.
For the same reasons articulated in Miller as to § 93.1, this Court should
hold that O.C.G.A. § 16-9-93 is unconstitutional. This section likewise suffers
from overbreadth and/or vagueness problems with respect to at least of a couple of
its undefined terms, “taking” and “personal data” (subsections (a) and (c)). The
term “use,” which appears repeatedly, is likewise problematic even though it is
defined in § 16-9-92. For example, “use” is defined to mean, among other things,
causing or attempting to cause a person to put “false information” into a computer;
but “false information” is nowhere defined. The literal interpretation of “false
information” could lead to absurd results.
For the foregoing reasons, in the case at bar, the trial court’s grant of
directed verdict on Cottrell’s Computer Act claim should be affirmed.
1(b) Directed Verdict on the IIED Claim Should be Affirmed.
Cottrell brought a discrete claim for intentional infliction of emotional
distress. (R-11).
That claim was argued by counsel at directed verdict and
removed from the case. (T-2024-2028; 2029). On appeal, Cottrell appears to
change focus, arguing the sustainability of “damages for mental distress” not so
much as a distinct tort, but as a compensable item of damages in connection with
16
the other torts alleged.18 This position does not aid Cottrell in demonstrating error
with respect to the trial court’s entry of JNOV on the IIED claim.
Appellant’s Brief does not acknowledge the elements of the IIED tort or cite
applicable legal authority supporting Cottrell’s recovery on an IIED theory given
the evidence at trial.19 Further, the “facts” referenced in section 1(b) of Cottrell’s
brief are without citation to the record. Cottrell essentially refers to an amalgam of
conduct relating to other torts alleged which is not separately actionable as IIED.
Under Georgia law, though it is conceivable that the same conduct may
simultaneously support an IIED claim and another tort claim, the IIED theory is
not effectively used as a catch basin or for conduct that fails to support another
cause of action.
18
The Clark case (Appellant’s Brief, p.18) stands for the proposition that when an
intentional tort other than IIED is alleged, damages for mental distress may be
recovered without proof of physical injury. Clark v. West, 196 Ga.App. 456, 458,
395 S.E.2d 884, 886 (Ga.App.,1990) See also Blackburn v. BAC Home Loans
Servicing, LP, 914 F.Supp.2d 1316, 1329-30 (M.D.Ga. 2012) (tracing Georgia law
regarding emotional distress damages and relying on the Georgia Supreme Court’s
decision in Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 311
S.E.2d 818 (1984) to conclude that “where a plaintiff alleges a well-established
intentional tort,” the plaintiff may recover emotional distress damages proximately
caused by that tort and is not required to carry the extra burden of establishing the
elements for the separate tort of IIED.)
19
Neither Clark, a wrongful foreclosure case, nor Vandergriff, a 1936 general
demurrer case, lend support for the reversal of the trial court’s grant of JNOV in
the case at bar. (Appellant’s Brief, pp. 18, 20)
17
To recover on a claim for IIED, a plaintiff must prove that: (1) defendants’
conduct was intentional or reckless; (2) defendants’ conduct was extreme and
outrageous; (3) a causal connection existed between the wrongful conduct and the
emotional distress; and (4) the emotional harm was severe.” Southland Propane,
Inc. v. McWhorter, 312 Ga.App. 812, 818, 720 S.E.2d 270, 276 (Ga.App. 2011).
The plaintiff’s burden in proving an IIED claim is a “stringent one”20 because
Georgia’s definition of “outrageous conduct” provides a “high degree of tolerance
for a wide variety of questionable conduct.” Howerton v. Harbin Clinic, LLC, 333
Ga. App. 191, 204-05, 776 S.E.2d 288, 299 (2015). “Whether a claim rises to the
requisite level of outrageousness and egregiousness to sustain a claim for
intentional infliction of emotional distress is a question of law.” Garcia v. Shaw
Industries, Inc., 321 Ga.App. 48, 52, 741 S.E.2d 285, 289 (2013).
As noted by the Court of Appeals in Garcia:
It has not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by
malice, or a degree of aggravation which would entitle the plaintiff to
punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized
community.
20
Metropolitan Atlanta Rapid Transit Auth. v. Mosley, 280 Ga.App. 486, 490–
491(3), 634 S.E.2d 466 (2006).
18
321 Ga.App. at 52; 741 S.E.2d at 288-89, citing Bowers v. Estep, 204 Ga.App.
615, 618(2), 420 S.E.2d 336 (1992); and Restatement (Second) of Torts, § 46,
comment d.
In the case at bar, there was no conduct by Karen or Peggy Smith as
evidenced at trial that would rise to the level of conduct necessary to support a
recovery under Georgia law for IIED. Appellant’s brief characterizes things the
Smiths did and said.
Five of the items listed are separate in kind from the
communications themselves that Cottrell separately argues were defamatory:
“efforts to investigate Stan’s entire life;” “using expert [ ] techniques to. . .maintain
high Google [visibility]” and “encouraging hundreds of others to “ping” their cite;”
“publishing photos of Stan on their blog;” and “misappropriating [Cottrell’s] name,
likeness and slogans.” (Appellant’s Brief, pp. 18-19).
These things do not clear the high bar set by Georgia law for IIED claims
and Appellant provides no legal authority demonstrating otherwise. Garcia, supra.
Nor does Appellant provide legal authority supporting the proposition that an IIED
claim is sustainable based on the communication-oriented conduct described in
section 1(b).
Moreover, Appellant cites no evidence at trial (and there was none) proving
that Cottrell suffered “severe” emotional harm as a result of the Smiths’ (or any
Defendant’s) conduct. See Southland Propane, Inc. v. McWhorter, 312 Ga.App.
19
812, 820, 720 S.E.2d 270, 277 (Ga.App. 2011) (trial court erred in denying
directed verdict and JNOV to defendants on IIED claim where plaintiff testified,
generally, that he suffered “financial distress, mental, physical distress,” but there
was no evidence about “physical, mental, or emotional symptoms he suffered that
were related to his distress” and no evidence that defendants’ conduct caused
plaintiff to “take medication or seek medical or psychological help.”); and
Howerton v. Harbin Clinic, LLC, 333 Ga.App. 191, 207-08, 776 S.E.2d 288, 301
(Ga.App. 2015). (“To demonstrate that the emotional distress she suffered was
severe, a plaintiff must show, at the very least, that physical and/or mental
manifestations of that distress required her to seek medical or psychological
treatment.”)21
21
See also Jones v. Fayette Family Dental Care, 312 Ga.App. 230, 233–234, 718
S.E.2d 88 (2011) (evidence showing that plaintiff was “shocked” and “upset” and
that she suffered a depressed sex drive was insufficient as a matter of law to prove
severe emotional distress, given that plaintiff “sought no treatment from any type
of doctor, psychiatrist, psychologist, or counselor”); Jones v.Warner, 301 Ga.App.
39, 42–43, 686 S.E.2d 835(2009) (plaintiff’s evidence failed to prove severe
emotional distress where it showed only that plaintiff suffered anxiety,
nervousness, sleeplessness, and irritability and that she failed to seek medical or
psychiatric treatment for these symptoms); and Abdul–Malik v. AirTran Airways,
297 Ga.App. 852, 858(1), 678 S.E.2d 555 (2009) (affirming grant of summary
judgment to defendant on plaintiff’s intentional infliction of emotional distress
claim; evidence showing only that plaintiff suffered sleeplessness and weight gain
and that plaintiff sought no professional help for these symptoms was insufficient
to establish severe emotional distress).
20
Cottrell cites no evidence of any symptoms or manifestations as a result of
the “distress” caused by Defendants, no evidence that he sought or received
professional help due to such symptoms, and no evidence of taking medication to
deal with any such symptoms. Under these circumstances, any emotional distress
was not so “severe” as to support an IIED claim.
Because the conduct at issue is not actionable under an IIED theory and
there was no evidence Cottrell suffered “severe” emotional distress, the trial
court’s grant of directed verdict on that claim should be affirmed.
2(a) JNOV on Cottrell’s Defamation Claim Should be Affirmed.
Because the jury specifically found no special damages (R-2374), a verdict
for defamation was sustainable only if there was defamation per se.22 To be
slander per se,
22
In Georgia, libel is defined as “a false and malicious defamation of another,
expressed in print, writing, pictures, or signs, tending to injure the reputation of the
person and exposing him to public hatred, contempt or ridicule.” O.C.G.A. § 51-51. “Slander or oral defamation consists in: (1) Imputing to another a crime
punishable by law; or (2) Charging a person with having some contagious disorder
or with being guilty of some debasing act which may exclude him from society; (3)
Making charges against another in reference to his trade, office, or profession,
calculated to injure him therein; or (4) Uttering any disparaging words productive
of special damage which flows naturally therefrom.” O.C.G.A. § 51-5-4. Damage
is inferred in situations (1), (2), and (3), but special damage is essential to support
an action in situation (4). The four slander categories have been engrafted into the
libel statute, “the result of which is that a libel falling into one of the first three
slander categories is actionable without allegation or proof of special damages.”
Dun & Bradstreet, Inc. v. Miller, 398 F.2d 218, 222 (5th Cir. 1968).
21
“[T]he words are those which are recognized as injurious on their
face—without the aid of extrinsic proof. Should extrinsic facts be
necessary to establish the defamatory character of the words, the
words may constitute slander, but they do not constitute slander per
se. Thus, the court may not hunt for a strained construction in order to
hold the words used as being defamatory as a matter of law, and the
negative inference a hearer might take from the words does not
subject the speaker to liability for slander per se.”
Bellemead, LLC v. Stoker, 280 Ga. 635, 637 (2006) (internal citations omitted)
(emph. supp.). Given the evidence at trial, the only two per se categories that
could arguably apply in this case are “(i)mputing to another a crime punishable by
law” or “(m)aking charges against another in reference to his trade, office, or
profession, calculated to injure him therein.” O.C.G.A. §51-5-4 (a)(1) & (3).
Further, because Cottrell was deemed to be a public figure “as a runner and
evangelist,”23 a finding not challenged by Cottrell on appeal, he had to prove by
“clear and convincing” evidence that the defendants acted with “actual malice.”
Mathis v. Cannon, 276 Ga. 16, 573 S.E.2d 376 (2002). “‘Actual malice’ in a
constitutional sense is not merely spite or ill will, or even outright hatred; it must
constitute actual knowledge that a statement is false or a reckless disregard as to its
truth or falsity.’” Atlanta Humane Soc. v. Mills, 274 Ga.App. 159, 165, 618
S.E.2d 18, 24 (2005) (Citations omitted).24 Thus, “actual malice” is an issue which
23
24
(T-1947, 2000-2001, 2007)
The “reckless disregard” necessary to show actual malice “is not measured by
whether a reasonably prudent man would have published or would have
22
lends itself to summary adjudication. Southard v. Forbes, Inc., 588 F.2d 140, 146
(5th Cir. 1979).25
After reviewing the evidence during a two-day post-trial hearing, the trial
court determined that none of the statements/communications at issue could
support a recovery for defamation because the statements (1) do not amount to
defamation per se and/or (2) are non-actionable hyperbole, opinion, or rhetoric
and/or (3) are true or substantially true and/or (4) because there is no “clear and
convincing” evidence of actual malice. (R-2657, JNOV Order, p.14). The court
found that the actual malice hurdle was the biggest obstacle for Cottrell on review
of the evidence at trial:
“Though evidence could support the conclusion that the Smiths’
actions were vindictive or spiteful, there was no ‘clear and
convincing’ evidence of a ‘reckless disregard’ for whether the subject
statements were true or false as is necessary to support a finding of
investigated before publishing. There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of
his publication.” Stange v. Cox Enterprises, Inc., 211 Ga.App. 731, 732, 440
S.E.2d 503, 506 (1994) (“a failure to investigate alone does not establish malice”).
25
See also Williams v. Trust Co. of Ga., 140 Ga.App. 49 (1976) (defendant not
liable for statements accusing plaintiff, a public figure, of being a “charlatan,”
“drunkard” and “extortionist” since there was no evidence that those statements
were made with reckless disregard to whether they were false or not); and
Hoffman-Pugh v. Ramsey 193 F.Supp.2d 1295 (N.D.Ga. 2002) (Book written by
parents of murder victim did not defame their former housekeeper, under Georgia
law, by neglecting to include an express statement that the housekeeper was
“cleared” by authorities; parents were not required to clarify statements by adding
that police had eliminated the housekeeper as a suspect).
23
actual malice. There was no evidence the Smiths ‘in fact entertained
serious doubts as to the truth of [the] publication.’”
(JNOV Order, p. 14, citing Stange v. Cox Enterprises, Inc., 211 Ga.App. 731, 732,
440 S.E.2d 503, 506 (1994)). On appeal, Cottrell argues four statements were
defamatory per se:
• The Resnick Post (Appellant’s Brief, p. 20) Karen Smith’s blog contained
a post based on information she obtained from Dr. Joe Resnick, a biotechnology
scientist who worked with Cottrell at a company called BICO, where Cottrell was
a CEO. It was there, according to Dr. Resnick, where Cottrell “participated in the
theft of [Resnick’s] technology.” (Ex. Joint 1). The post also contains Resnick’s
assertions, re-told by Smith, that “I had $8 million invested in the company and
lost it all through fraud that was perpetrated by Stan and others at the company”
and that Cottrell “has taken money from a lot of people, and it’s a shame that more
of them are not willing to come forward about their experiences with him.”26
The trial court analyzed the Resnick post and the evidence related to its
publication in detail. (R-2657, JNOV Order, pp. 14-18). The court first found that
much of its objectionable content “may be characterized as hyperbole and/or
opinion which is ordinarily not actionable.”
The comment about Cottrell
participating in the theft of Resnick’s technology, the court noted, was arguably
26
The verbatim text of the Resnick post is quoted in footnote 18 of the JNOV
Order, p. 15. (R-2657)
24
per se defamation. But the court found that post was not actionable because there
was no evidence of “actual malice” by Karen Smith -- i.e., no evidence clearly and
convincingly establishing that she published the Resnick post with reckless
disregard for whether it was true or false). (JNOV Order, p. 16). The “actual
malice” standard applied, said the court, because the Resnick post was “germane to
Cottrell’s status as an evangelist.” (JNOV Order, p. 16, citing Infinite Energy v.
Pardue, 310 Ga.App. 355, 360, 713 S.E.2d. 456 (2011).27
Appellant’s argument that the Resnick post did not relate to Cottrell’s
limited purpose public figure status as a runner and evangelist ignores Georgia law
relating to the relevance of a publication in a controversy. “A publication is
germane to a plaintiff’s participation in a controversy if it might help the public
decide how much credence should be given to the plaintiff.” Atlanta JournalConstitution v. Jewell, 251 Ga.App. 808, 820 (2002) (emph. supp.). ”Anything
which might touch on the controversy is relevant,” whereas “misstatements wholly
unrelated to the controversy do not require a showing of actual malice to be
actionable.” Jewell, supra, 251 Ga.App. at 819-20 (“Certainly, the information
reported regarding Jewell’s character was germane to Jewell’s participation in the
controversy over the Olympic Park’s safety. A public figure’s talents, education,
27
The court noted that the Resnick post itself makes reference to Cottrell’s
evangelism (“When I first met Stan he came under the guise of the Lord”). (JNOV
Order, p. 16)
25
experience, and motives are relevant to the public’s decision to listen to him.”).
Here, the “controversy” related to Cottrell’s “character” and the trial court
found that all of the potentially defamatory communications at issue, including the
Resnick Post, were “germane” to Cottrell’s participation in the controversy
because they “might help the public decide how much credence should be given to
the plaintiff” and are not “wholly unrelated to the controversy;” and “[t]o say that
the objectionable statements at issue do not relate to Cottrell’s status as a runner or
evangelist would be too narrow a reading of them and would be at odds with
Georgia law.” (JNOV Order, pp. 13, 16).
On appeal, Cottrell has not demonstrated that the trial court erred by
applying the “actual malice” standard to the Resnick post. Nor does Appellant cite
clear and convincing evidence demonstrating that Karen Smith disbelieved what
Resnick told her or otherwise had a high degree of awareness of the probable
falsity of what she published (i.e., actual malice).28 Thus, the Resnick post is not
actionable.
28
Cottrell’s argument that “Karen admitted at trial that she did not think Stan was
involved in any of the fraudulent activities at BICO. . .yet published Resnick’s post
anyway” (Appellant’s Brief, p. 22) is based on an email from Karen Smith to
Peggy Smith and Maggie Smith on July 25, 2010 indicating that “[Cottrell] has
probably not done anything illegal.” (Ex. P169). The trial court clarified that the
“probably not” comment related specifically to an SEC/criminal investigation
involving BICO which was “a different matter than Resnick’s claim against
Cottrell relating to patents.” (R-2657, JNOV Order, pp. 17-18). The evidence,
noted the court, was that Karen Smith did not understand the nature of Resnick’s
26
• “Scam Artist” comment / “Criminal” comment (Appellant’s Brief, p. 23)
The trial court found that remarks in the “Master of Hyperbole” post in Karen
Smith’s blog that Cottrell is “not trustworthy” and “[his] activities with the women
that he has deceived and taken money from are criminal” amounted to hyperbole
and/or opinion;29 and that there was no evidence these posts were made with actual
malice. (R-2657, p.19). Appellees further note that if a plaintiff is relying on a
statement imputing a crime to support a defamation claim, the statement must be
“specific and. . . plainly impute a criminal offense.” Tronitec, Inc., v. Shealy, 249
Ga.App. 442 (2001) (overruled on other grounds); Dagel v. Lemcke, 245 Ga.App.
243, 244, 537 S.E.2d 694, 696 (2000) (statement that plaintiff’s conduct “smacks
of illegality” does not, standing alone, impute the commission of any specific
personal issue with Cottrell until she corresponded with him in September, 2010
and the post, read as a whole, explained the basis for Resnick’s view that Cottrell
participated in the “theft” of his technology. It also includes the fact that as to any
criminal matters, “Fred Cooper was the only one who was convicted of a crime.”
(Ex. Joint 1). The court concluded that to the extent the “probably not” email from
Smith suggests that she had a higher level of knowledge than what Resnick told
her about the substance of what she reported from Resnick, it did not rise to the
level of “clear and convincing” evidence of “reckless disregard.” (JNOV Order, p.
18)
The expression of opinion on matters with respect to which reasonable people
might entertain different opinions (i.e., which cannot be proved false) is not
libelous. Gettner v. Fitzgerald, 297 Ga.App 258, 261 (2009). Nor are non-literal
assertions of fact or rhetorical hyperbole. Bennett v. Hendrix, 325 Fed.Appx. 727
(11th Cir. 2009) (quoting Georgia law and U.S. Supreme Court law).
29
27
crime).30 The subject characterization of Cottrell is non-specific and/or does not
plainly impute a criminal offense.
The court likewise found that the comment in the “More Vanishing Stan
Cottrell Web Content” post “seems like a scam artist is on the loose. Beware
ladies - he’s a sly one…” (from “FC Bernstein”) amounted to non-actionable
hyperbole and was unaccompanied by evidence of actual malice. (R-2657, p.19).31
Appellant’s lip service argument that actual malice may be shown by failure to
properly/thoroughly investigate type evidence is unavailing.
• “Tak[ing] money from MIA/POW families” comment (Appellant’s Brief,
p. 24). Appellant apparently refers to a Facebook message sent by Peggy Smith to
Cottrell’s Facebook “friend” John Vanderveld. (Ex. P268). It quotes a post from
an “Owen” on a running blog called “Coolrunning” and indicates that Cottrell
“reported seeing MIA’s in Viet Nam, apparently as part of a scam so he could
make millions on the families of missing Americans.”
See also Parks v. Multimedia Technologies, 239 Ga.App. 282 (1999) (upholding
summary judgment because the words at issue did not charge the commission of a
specific crime); and Burrow v. K–Mart Corp., 166 Ga.App. 284 (1983) (“where
the plain import of the words spoken impute no criminal offense, they cannot have
their meaning enlarged by innuendo”).
30
31
The court further noted that Cottrell admitted to having affairs with Peggy
Smith and Karen Frances and that there was evidence of his extra-marital
involvement with several other women. (R-2657, p. 19). The court also noted that
several witnesses attested to loaning money to Cottrell and not being paid back.
(Id.)
28
As to this statement, the trial court noted that there was no evidence that
Peggy was “aware of the likelihood (she) was circulating false information”
relating to Cottrell’s claim that he spotted MIA soldiers on his Viet Nam run; and
thus no actual malice. (R-2657, p. 22). Appellant’s citation to pages 900-904 of
the Trial Transcript provides no support for the conclusion he urges -- that the
Smiths “either knew [the MIA statements] to be false, or made the statement with a
reckless disregard for the truth.” (Appellant’s Brief, p. 24).32
For the foregoing reasons, the trial court’s grant of directed verdict to the
Smiths on Cottrell’s defamation claim should be affirmed.
2(b) JNOV on Breach of Fiduciary Duty Claim Should be Affirmed
The trial court properly set forth why a breach of fiduciary duty claim does
not hold up against Peggy Smith. (R-2657, pp. 27-29). As a mere girlfriend, Peggy
owed Cottrell no fiduciary duty; and the “aid and abet” theory fails for reasons
noted by the trial court. Cottrell does not demonstrate on appeal how or why the
the trial court’s reasoning was erroneous. The fact that the Crocker Defendants
(found by the jury to be liable for BOFD) did not appeal the jury’s verdict does not
preclude Peggy Smith from contesting their underlying fiduciary duty post-trial.
32
With regard to an issue Cottrell voluntarily injected himself into via an
interview he gave for a 1989 magazine article – claiming to see “at least twenty”
American POW’s while in Viet Nam – it is worth noting that representatives from
the United States Congress Committee on Foreign Affairs wrote Cottrell a letter
expressing doubt about Cottrell’s claim. (Ex. P MIA)
29
The QoS Networks case cited by Appellant does not hold otherwise. (Appellant’s
Brief, p. 27).
2(c) JNOV on Invasion of Privacy Claim Should be Affirmed
Regarding Cottrell’s appeal from the trial court’s grant of directed verdict to
Defendants with respect to Cottrell’s invasion of privacy claim, the Smiths adopt
herein the arguments made by Appellee Hugh Johnson in section III of his
appellate brief, pages 10-17. For the reasons stated therein, the trial court’s grant
of directed verdict to the Smiths on the invasion of privacy claim should be
affirmed.
CONCLUSION
For the foregoing reasons, the trial court’s grant of Judgment
Notwithstanding the Verdict in favor of Peggy and Karen Smith should be
affirmed. If this Court determines that either the defamation or invasion of privacy
claim was inappropriately submitted to the jury over Defendants’ motion for
directed verdict, the jury verdict could not stand because it is now impossible to
determine if the jury’s finding of entitlement to general damages was based on a
theory that should not have survived directed verdict. See Wolff v. Middlebrooks,
256 Ga.App. 268, 568 S.E.2d. 88 (2002). Likewise, the punitive damages awarded
by the jury could not stand. See Southland Propane, Inc. v. McWhorter, 312 Ga.
App. 812, 821, 720 S.E.2d 270, 278 (2011).
30
Respectfully submitted this 22nd day of October, 2015.
/s/Christopher G. Moorman
CHRISTOPHER G. MOORMAN
Georgia Bar No. 521490
Counsel for Peggy Smith and Karen Smith
MOORMAN PIESCHEL, LLC
One Midtown Plaza, Suite 1205
1360 Peachtree Street, NE
Atlanta, Georgia 30309
(404) 898-1240
Fax: (404)898-1241
cgm@moormanpieschel.com
31
CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing BRIEF OF
APPELLEES KAREN SMITH AND PEGGY SMITH by depositing a copy of
same in the United States mail in a properly addressed envelope with adequate
prepaid postage thereon to ensure delivery to the following:
Tyler C. Dixon
Raiford & Dixon, LLC
6065 Roswell Road, Suite 200
Atlanta, Georgia 30328
Timothy A. Baxter
Law Offices of Timothy A. Baxter, P.C.
1360 Peachtree Street, NE
Suite 1205
Atlanta, Georgia 30309
This 22nd day of October, 2015.
/s/Christopher G. Moorman
Christopher G. Moorman
Georgia State Bar No. 521490
Attorney for Appellees
Karen Smith and Peggy Smith
Moorman Pieschel, LLC
One Midtown Plaza, Suite 1205
1360 Peachtree Street, NE
Atlanta, Georgia 30309
(404)898-1240
Fax: (404)898-1241
cgm@moormanpieschel.com
njp@moormanpieschel.com
32