326 Ga. App. 163
Ga. Ct. App.2014Background
- Hinson, a Gwinnett County family-law attorney, consulted with Pampattiwar on July 2, 2010 to represent him in a divorce; Pampattiwar said he had a pending separate maintenance action in Fulton County but that no divorce counterclaim had been filed. Hinson checked the Fulton County online docket, which did not show a divorce counterclaim, and then filed a divorce petition in Gwinnett County.
- Opposing counsel later informed Hinson that a divorce counterclaim in the Fulton County case had been filed nearly a year earlier; Hinson obtained a deposition showing Pampattiwar knew of the counterclaim at the time of the consultation.
- The Gwinnett petition was voluntarily dismissed; Hinson continued representing Pampattiwar in Fulton for a time but later withdrew.
- Hinson discovered two allegedly defamatory internet reviews on Kudzu.com (usernames STAREA and REALPOLICE); an IT expert linked the IP address used to post the reviews to Pampattiwar. Hinson sued for fraud (misrepresentation re: counterclaim), libel per se, and false light invasion of privacy, seeking "wounded feelings" damages under OCGA § 51-12-6.
- A jury found for Hinson on fraud, libel per se, and false light claims. Pampattiwar moved for JNOV and new trial; the trial court denied those motions. Pampattiwar appealed; the Georgia Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Hinson) | Defendant's Argument (Pampattiwar) | Held |
|---|---|---|---|
| Whether jury verdict on fraud should stand given alleged lack of justifiable reliance | Hinson argued she reasonably relied on Pampattiwar's statement and the online Fulton docket showing no counterclaim | Pampattiwar argued Hinson should have examined the Fulton County documents he brought and thus reliance was unjustified | Court: Reliance was a jury question; denying JNOV was proper because evidence supported reasonable reliance |
| Whether "wounded feelings" damages under OCGA § 51-12-6 constitute "actual damages" for fraud | Hinson contended her entire injury was to peace, happiness, and feelings and such damages are recoverable actual damages for fraud | Pampattiwar argued those damages are not "actual damages" for fraud | Court: "Wounded feelings" are recoverable as actual/general damages for fraud; new trial denied |
| Whether Hinson could recover OCGA § 51-12-6 damages on libel given failure to request retraction (impact on punitive/deterrence aspect) | Hinson argued current § 51-12-6 no longer authorizes punitive-deterrence considerations, so wounded-feelings damages are available | Pampattiwar argued § 51-12-6 awards are partly punitive and unavailable because no retraction request was made | Court: After 1987 amendments, § 51-12-6 no longer permits punitive/deterrent awards; damages were permissible and trial court did not err (defendant forfeited any charge objections) |
| Whether false-light claim failed because second Kudzu review was not publicly posted | Hinson argued both reviews were posted and traceable to Pampattiwar's IP; jury could find publicity | Pampattiwar argued the REALPOLICE review was flagged/rejected and never posted, so no publicity | Court: Factual dispute existed; Kudzu business records and testimony supported posting; publicity element was for jury; new trial denied |
Key Cases Cited
- Wellons, Inc. v. Langboard, Inc., 315 Ga. App. 183 (court will affirm denial of new trial or JNOV if any evidence supports verdict)
- Wright v. Apartment Investment & Mgmt. Co., 315 Ga. App. 587 (question is whether a contrary judgment was demanded)
- Elliott v. Marshall, 179 Ga. 639 (diligence and whether falsity could have been ascertained is ordinarily for the jury)
- Isbell v. Credit Nation Lending Svc., 319 Ga. App. 19 (failure to pursue available means of knowledge can preclude fraud recovery as a matter of law)
- Catrett v. Landmark Dodge, 253 Ga. App. 639 (justifiable reliance generally a jury question)
- Kelley v. Cooper, 325 Ga. App. 145 (actual damages for fraud may include nonpecuniary "wounded feelings")
- Zieve v. Hairston, 266 Ga. App. 753 (injury to reputation is personal injury; general damages recoverable in fraud action)
- Holland v. Caviness, 292 Ga. 332 (1987 amendment to OCGA § 51-12-6 removed deterrence/punitive considerations)