MATHIS v. CANNON
S02G0361
Supreme Court of Georgia
NOVEMBER 25, 2002
RECONSIDERATION DENIED DECEMBER 13, 2002.
276 Ga. 16 | 573 SE2d 376
FLETCHER, Chief Justice.
Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant. Cole, Bryman & Clerke, William H. Clerke IV, for appellee.
The proper standard for evaluating the effectiveness of appellate counsel is set forth in Shorter v. Waters, 275 Ga. 581 (571 SE2d 373) (2002). See also Battles v. Chapman, 269 Ga. 702 (506 SE2d 838) (1998). Applying that standard, the ineffectiveness of trial counsel would be procedurally defaulted for purposes of habeas corpus relief unless Smith can meet his burden of showing that appellate counsel‘s decision to forego that issue was an unreasonable tactical move which no competent attorney in the same situation would have made. See Shorter v. Waters, supra at 585; Battles v. Chapman, supra at 705 (1) (a). “The reviewing court may not use hindsight to second-guess appellate counsel‘s strategy and tactical choices. [Cit.]” Battles v. Chapman, supra at 704 (1) (a). To overcome the presumption that his appellate counsel was effective, Appellee must prove that the failure to raise the issue of his trial lawyer‘s effectiveness was a decision which “only an incompetent attorney would have adopted.” Shorter v. Waters, supra at 585. See also Battles v. Chapman, supra at 705 (1) (a).
Accordingly, the order is reversed and the case is remanded with direction that the trial court enter a new order which contains pertinent findings and conclusions if it has jurisdiction or that it transfer the case to the appropriate superior court if it does not.
Judgment reversed and case remanded with direction. All the Justices concur, except Benham, J., who dissents.
MATHIS v. CANNON.
FLETCHER, Chief Justice.
This libel action involves the interplay between the constitutional right of free speech under the First Amendment and an individual‘s right to protect his reputation. Bruce Mathis, a Crisp County
THE CRISP COUNTY SOLID WASTE RECOVERY FACILITY
1.
The Solid Waste Management Authority of Crisp County began meeting in March 1994 to develop a project to process and recycle solid waste and create jobs for county residents. Composed of the five Crisp County commissioners and two private citizens, the authority planned to construct a solid waste material recovery facility. The project was designed to separate residential and commercial garbage or solid waste, sell the recyclable “materials of value,” and produce commercial compost from the organic materials, with the residual waste being deposited in the county‘s landfill. Initial projections required the facility to process a minimum of 1,200 tons of solid waste daily (later reduced) to be financially feasible. Because the county did not generate that amount of solid waste, the authority immediately began soliciting commitments from cities and counties to serve as waste providers.
Chris Cannon began attending the authority‘s monthly meetings in October 1994 as majority owner and president of TransWaste Ser-
The solid waste recovery plant began operating in May 1998. At its open house in July 1998, the authority described its $70 million facility as “a state-of-the-art-integrated waste processing and composting operation” — “the only one of its kind in the United States.” The facility was located on 52 acres and consisted of five buildings, the adjacent county-owned landfill, a composting facility, and a greenhouse.
Despite the optimism and fanfare surrounding the plant‘s opening, the facility was never able to perform as predicted, failing from the beginning to generate sufficient revenue to cover its expenses. In December 1998, the authority fired its executive director and laid off employees. It subsequently hired a private management firm, which had just been started by former county administrator Bill Goff, to manage the plant.
Because of the plant‘s continuing financial problems, the authority made several controversial decisions during its first 18 months of operation. Reversing prior policies, for example, the authority voted to accept out-of-state waste and used prison labor for three months until the state attorney general ruled that the practice was illegal. Problems encountered in processing solid waste at the recovery plant forced the authority to divert more waste to the landfill, causing the county-owned landfill to fill up faster than projected. In addition, the authority was not paying TransWaste for its services in collecting and hauling solid waste to the recovery plant or making total payments to the county for the costs of operating the landfill. In July 1999, the county commission voted to raise property taxes based on the costs related to the county‘s disposal of its garbage, which included a $93,600 monthly fee due to the authority.
These problems caused several county residents to form a citizens’ group, the Crisp Watchdogs. Members of that group and other
In September 1999, three separate events highlighted the authority‘s troubled operations. First, authority members learned at their monthly meeting that the facility was still not profitable despite performing at its top capacity. Goff reported that the recovery plant was operating at its maximum capacity, which was only 75 percent of the advertised production goals, and was generating an average value of $12 per ton of recycled materials from municipal solid waste or wet garbage, which was well below the projected value of $38 to $42 per ton. Second, the county commission voted to expand the county landfill to accommodate the 550 tons of waste that Cannon‘s company, TransWaste, was hauling into the county daily under the authority‘s contracts with other cities and counties. Third, TransWaste sued the authority for $2.25 million that the authority owed under a promissory note and its contract with TransWaste.
On November 1, the grand jury issued a report recommending that the authority do a better job informing the public about its finances, operations, and plans. Three days later, TransWaste stopped all deliveries of solid waste to the recovery plant after Cannon learned that the authority had paid $220,000 to the county instead of paying towards its debt with TransWaste. Cannon‘s decision to stop deliveries to the authority precipitated a crisis.
That evening, by coincidence, Mathis posted three messages on Yahoo‘s electronic message board for Waste Industries, Inc., the company that acquired TransWaste through a merger. Mathis had just read the grand jury‘s report and the news articles about it. His first message, posted at 11:14 p.m., stated:
what u doing???
by: duelly41does wwin think they can take our county — stop the trash flow cannon we would love u for it — our county not a dumping ground and sorry u and lt governor are mad about it — but that is not going to float in crisp county — so get out now u thief
The second message, posted at 11:27 p.m., stated:
cannon a crook????
by: duelly41explain to us why us got fired from the calton company please???? want hear your side of the story cannon!!!!!!!!
The third message, posted at 11:52 p.m., stated:
cannon a crook
by: duelly41hey cannon why u got fired from calton company???? why does cannon and lt governor mark taylor think that crisp county needs to be dumping ground of the south??? u be busted man crawl under a rock and hide cannon and poole!!! if u deal with cannon u a crook too!!!!!!! so stay out of crisp county and we thank u for it
On November 9, the authority met in an emergency executive session to discuss the TransWaste litigation. Two days later, the authority held a specially called public meeting at which it asked Cannon to appear. Before discussing the lack of deliveries, the authority‘s chairman read a letter from Goff terminating his firm‘s management of the solid waste recovery facility, effective immediately, because his management team had been excluded from the authority‘s recent executive sessions. On November 12, the authority voted to reduce its operations and laid off three-fourths of its employees to meet its payroll. As one member described the situation, “[W]e don‘t have the money, the county is not getting paid, the hauler is not getting paid, we don‘t have the cash reserves in the bank, [and] we don‘t have any way to borrow any funds.” At a meeting on November 15, reportedly held in violation of the Open Meetings Act, the authority hired the former plant manager as its executive director.
LIBEL PER SE
2. At common law, libel was a strict liability tort that did not require proof of falsity, fault, or actual damages.3 Since the United States Supreme Court‘s decision in New York Times Co. v. Sullivan, 376 U.S. 254 (84 SC 710, 11 LE2d 686) (1964),4 the law of defamation has undergone substantial changes.5 The Restatement now lists four elements in a cause of action for defamation: (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or
The first issue in this case concerns whether the trial court and court of appeals adopted the proper standard of liability for the element of fault. If Cannon is a private figure, as both courts held, then a negligence standard applies.11 If he is a public figure, as the defendant contends, then the more stringent standard from the New York Times case applies.12
LIMITED-PURPOSE PUBLIC FIGURE
3. In New York Times v. Sullivan, the Court held that the constitutional guarantees of free speech and free press prohibited a public official from recovering damages for defamatory criticism of his conduct unless the official proves the statement was made with “actual malice.”13 This standard requires the public official to prove that the defendant had knowledge that the statement was false or was made with reckless disregard of whether it was true or false.14
Three years later in Curtis Publishing Co. v. Butts, 388 U.S. 130 (87 SC 1975, 18 LE2d 1094) (1967),15 a majority of the Court applied the New York Times rule on actual malice to criticism of “public figures,” defined as individuals who are “intimately
Later declining to apply the New York Times standard of fault in cases involving private-figure plaintiffs, the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (94 SC 2997, 41 LE2d 789) (1974) explored the difference between public figures and private persons in defamation cases involving statements of public concern.19 The Court explained that some persons may hold positions with such pervasive fame or power that they are deemed public figures for all purposes,20 but more often “an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.”21
Whether a person is a public figure is a question of law that requires the court to review the nature and extent of the individual‘s participation in the specific controversy that gave rise to the defamation.22 The court of appeals has adopted a three-part analysis used in federal cases to determine whether an individual is a limited-
Applying this analysis, we conclude that Cannon is a limited-purpose public figure in the controversy surrounding the recycling facility and landfill in Crisp County. The public controversy concerns the Solid Waste Management Authority of Crisp County‘s financially unsuccessful operation of its solid waste recovery facility and resulting strain on the county‘s resources and its taxpayers. After 18 months of operation, the plant was not able to process the solid waste or produce the recyclable materials and commercial compost as projected. As a result, a large amount of solid waste that was collected from other locations for processing at the authority‘s plant was instead being diverted to the county landfill. The county commission voted to raise property taxes to deal with the costs related to disposing of the county‘s own waste and expand the county-owned landfill to accommodate the additional solid waste that TransWaste was bringing into the county under its contract with the authority.
In reviewing Cannon‘s role, we find that he was involved in the public controversy in Crisp County in at least three ways. First, he was a crucial actor in helping the authority obtain the commitments from other county and city governments in south Georgia to provide solid waste for the authority‘s facility. Without these early commitments, the authority would not have been able to obtain the construction loans necessary to go forward with the project.
Second, Cannon represented the authority in a variety of ways that far exceeded the terms of TransWaste‘s contract to collect and haul solid waste to Crisp County. As he explained in his deposition, the authority in 1996 was still “just a shell of an authority developing a concept,” with no funding, lines of credit, or buildings. “TransWaste would step in to try to help the Authority in whatever way they could, and there are many, many instances of that.” Although he described his position as an independent contractor who functioned as “the garbage man of the deal,” it is difficult to distinguish between his efforts on behalf of the public authority and his efforts on behalf of his private company. Using his personal contacts with city and county officials developed from selling them heavy-duty equipment, Cannon solicited business for the authority; this solicitation helped generate business for TransWaste as the authority‘s exclusive hauler.
Third, Cannon precipitated the financial crisis in November 1999 by filing a lawsuit against the authority and then temporarily halting deliveries to the solid waste recovery plant. TransWaste‘s actions in stopping deliveries forced the authority to address its financial and legal problems. Moreover, Cannon knew, or should have known, that suing the authority for payment for services rendered would affect the county as the other major participant in the project.
Based on Cannon‘s role in developing the project, representing the authority, and accelerating the crisis, we conclude that he voluntarily injected himself into the controversy or, at a minimum, became drawn into the public controversy over the operation of the authority‘s facility and county‘s landfill. Contrary to the dissent‘s analysis, it is not the global nature of the public‘s interest that defines a dispute as a public controversy, but rather whether the issue generates discussion, debate, and dissent in the relevant community, which in this case happens to be a county. Having blurred the distinction between his work for his private business and his more public efforts in helping develop the quasi-governmental project, he should not be able to erect a barrier to public criticism of his role once the project failed to perform as planned.
Finally, we determine that Mathis‘s statements were germane to Cannon‘s participation in the controversy. Mathis posted his message on the Internet bulletin board of Waste Industries, Inc., TransWaste‘s parent company, three days after the Crisp County grand jury issued its report on the authority. In his messages, he attacked “wwin” and its chief executive officer; told Cannon to “stop the trash flow” because “our county [is] not a dumping ground“; questioned why Cannon and the lieutenant governor, whose family owned a minority interest in TransWaste, “think that crisp county needs to be dumping ground of the south???“; and urged others to stay out of the county “and we thank u for it.” Although the messages accused Cannon of being a crook and a thief and asked why he had been fired from a specific company, these accusations were made as part of the ongoing debate about the garbage disposal dispute in Crisp County. Moreover, any person reading the postings on the message board — written entirely in lower case replete with question marks, exclamation points, misspellings, abbreviations, and dashes — could not reasonably interpret the incoherent messages as stating actual facts about
In sum, we conclude that the nature and extent of Cannon‘s participation in the local controversy concerning solid waste disposal has made him a limited-purpose public figure. This conclusion means that he must meet the standard of fault established in the New York Times v. Sullivan case. Under that standard, Cannon must show by clear and convincing evidence that Mathis published false and defamatory statements knowing that they were false or acting in reckless disregard of their truth or falsity.26 Because the trial court and the court of appeals did not apply this standard of fault, Cannon was not entitled to summary judgment on the issue of liability.
RETRACTION STATUTE
4. In addition to granting Cannon partial summary judgment, the trial court also denied Mathis summary judgment, rejecting his contention that Cannon‘s failure to seek a retraction means he cannot recover punitive damages. The second issue in this case is whether the retraction statute applies to a “publication” involving the Internet and a non-media defendant, like Mathis, or applies solely to the written publications of the traditional print media.
Although the dissent suggests that we should avoid deciding this issue because “it is not properly before this Court,” the Georgia Constitution gives this Court the power to “review by certiorari cases in the Court of Appeals which are of gravity or great public importance.”27 In this case, the trial court and court of appeals decided the retraction statute issue, Mathis and Cannon briefed the issue in seeking this Court‘s review, and Cannon and amici thoroughly argued the issue in their briefs after we granted certiorari. Under these circumstances, we choose to rule on the statutory interpretation issue, which involves a question of law, rather than allow an erroneous court of appeals’ interpretation to stand as the law of this state.
(a) In any civil action for libel which charges the publication of an erroneous statement alleged to be libelous, it shall be relevant and competent evidence for either party to prove that the plaintiff requested retraction in writing at least seven days prior to the filing of the action or omitted to request retraction in this manner.
(b) In any such action, the defendant may allege and give proof of the following matters, as applicable:
(1) (A) . . . .
(B) That the defendant, in a regular issue of the newspaper or other publication in question, within seven days after receiving written demand, or in the next regular issue of the newspaper or other publication following receipt of the demand if the next regular issue was not published within seven days after receiving the demand, corrected and retracted the allegedly libelous statement in as conspicuous and public a manner as that in which the alleged libelous statement was published.
There is a similar statute that applies in defamation actions involving a visual or sound broadcast.28 Unlike the cases involving the Internet from other states cited by the dissent, the Georgia statute deals solely with claims for punitive damages in libel actions and does not affect an individual‘s right to sue for libel.
In construing the retraction statute, we consider the statutory language and legislative intent in enacting it. Generally we give words their ordinary signification, except that we construe words of art or words connected with a particular trade or subject matter according to their meaning within that subject matter or trade. “It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together.”29
A review of the libel and slander code sections, of which the retraction statutes are a part, shows that the word “publication” is used in five different sections.
The court of appeals in 1984 interpreted the provision “newspaper and other publication” in subsection (b) to mean a “written publication” produced by the “print media.”30 Although the language of the retraction statute provides some support for this interpretation, we find it problematic for several reasons. First, it ignores legislative history showing that the General Assembly adopted the phrase “other publication” as a substitute for “magazine or periodical” in the initial statute.31 This change suggests that the legislature intended for the retraction statute to apply to more than “newspaper libel” as defined in
Moreover, we find unpersuasive the appellate court‘s rationale in this case for following the “plain language” of the retraction statutes.34 Nothing in
Instead, we construe the word “publication” in subsection (b) of the retraction statute as meaning a communication made to any person other than the party libeled.35 Under this interpretation, the retraction statute applies to the words that Mathis wrote in his messages posted on the bulletin board of Waste Industries, Inc. The practical effect of this decision is to require all libel plaintiffs who intend to seek punitive damages to request a correction or retraction before filing their civil action against any person for publishing a false, defamatory statement.
Our reasons for preferring this broader reading are many. This construction makes the same word mean the same thing in all the libel and slander code sections. It treats a publication for purposes of seeking a retraction the same as a publication for purposes of imposing liability. It acknowledges that the legislature extended the retraction defense originally created for newspapers, magazines, and periodicals to include newspapers and “other publications.” It encourages defamation victims to seek self-help, their first remedy, by “using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation.”36 It eliminates
Applying our decision to the facts here, we find that Cannon asked the Internet service provider Yahoo! to delete the three messages that Mathis posted, but did not ask Mathis to correct or retract any of his statements. Because it is undisputed that Cannon did not request a correction or retraction in writing before filing his complaint, he is not entitled to recover punitive damages from Mathis for any defamatory statements posted on the bulletin board on the Internet.
Judgment reversed. All the Justices concur, except Hunstein, Carley and Hines, JJ., who dissent.
HUNSTEIN, Justice, dissenting.
Today, the majority holds Bruce Mathis, a defamation defendant, wholly unaccountable for damaging statements he made on an Internet discussion forum about a private individual, Thomas C. Cannon. In my opinion, Mathis should be held accountable for speech that exceeded the scope of legitimate criticism and instead fell within the range of reckless falsehoods against a private-plaintiff. Moreover, I take issue with the majority holding that Cannon is precluded from recovering punitive damages because he failed to request a retraction of Mathis’ defamatory remarks.
Cannon sued Mathis for clearly actionable remarks he made about him on a financial message board that allows access to financial and other information about a corporation in which an individual has a particular interest:
From a First Amendment perspective, the financial message
boards contribute to the marketplace of ideas by encouraging citizens to participate in public decision making. . . . At a minimum, therefore, the boards provide an avenue for citizens to converse with one another and to seek consensus about topics that affect their lives.
Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L. J. 855 (2000). The issues raised in this case are whether the comments posted by Mathis, an outspoken opponent of the Solid Waste Management Authority, exceeded the “marketplace of ideas” that the First Amendment seeks to protect, see Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (89 SC 1794, 23 LE2d 371) (1969), and if so, in seeking recovery on those comments, whether Cannon is a private or limited-purpose public figure.
The majority erroneously concludes that Cannon is a limited-purpose public figure within the context of the public controversy surrounding the landfill in Crisp County. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (94 SC 2997, 41 LE2d 789) (1974), the U. S. Supreme Court defined “public figures” as people who
have assumed roles of special prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classified as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.
Id. As noted by the majority, in Georgia, a plaintiff is a limited-purpose public figure if the facts satisfy the three-prong test set forth in Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 816-820 (555 SE2d 175) (2001). In determining that Cannon is a limited-purpose public figure, the majority identifies Cannon as a “crucial actor” in helping to develop and finance the project and describes his conduct as “exceeding the terms of TransWaste‘s contract to collect and haul solid waste to Crisp County.” The majority also relies on Cannon‘s lawsuit against the Authority, concluding that Cannon precipitated the county‘s financial crisis by the filing of TransWaste‘s lawsuit against the Authority. The record reflects, however, that TransWaste was the sole waste hauler for the Authority and that Cannon, as president of the company, was merely fulfilling the duties of his office and performing his obligations under the contract with the Authority when he conducted the activities cited by the majority. For example, the Authority required that all business and correspondence relating to its contracts be conducted under the Authority‘s
Similarly, Cannon‘s resort to judicial litigation upon the county‘s alleged breach of contract cannot be used as a factor to determine whether Cannon is a limited-purpose public figure. In Time, Inc. v. Firestone, 424 U.S. 448, 454-457 (96 SC 958, 47 LE2d 154) (1976), one of only three cases39 since Gertz in which the U. S. Supreme Court has addressed the limited-purpose public figure doctrine, the Supreme Court refused to rely on subject matter classifications, such as “judicial proceeding,” to determine the extent of constitutional protections afforded defamatory falsehoods.
Finally, the fact that the issues concerning the landfill may have been of public interest does not make Cannon a public figure. Not all issues that spark public debate constitute a public controversy. Each case cited by the majority in which plaintiffs were found to be limited-purpose public figures involved significant social events occurring on the state, national, or international level. In Curtis Publishing Co. v. Butts, 388 U.S. 130 (87 SC 1975, 18 LE2d 1094) (1967), the defendant magazine accused the athletic director of the University of Georgia of conspiring to “fix” a football game. In Associated Press v. Walker, 388 U.S. 140 (87 SC 1975, 18 LE2d 1094) (1967), a former U. S. army general personally led students in an attack on law enforcement who were enforcing a desegregation order. Finally, the Jewell case involved the 1996 bombing of the Olympic Games, which resulted in Jewell initially being hailed as a hero for his role in discovering the bomb and evacuating bystanders and Jewell‘s participation in national television and print interviews and his use of a media “handler.” The case at hand, however, involving a county-wide debate about a local landfill project, simply does not rise to the level
The facts of this case also fail to establish the third prong of the test outlined in Jewell for determining whether under Georgia law a person is a limited-purpose public figure. Under this prong, the court must determine whether the alleged defamation was germane to the plaintiff‘s participation in the controversy. The majority summarily determines that Mathis’ statements were germane to the local landfill debate because the first message made vague references to the controversy. The majority determines, therefore, with no further analysis, that the false accusations that Cannon was a crook and thief and had been fired from the Carlton company were “made as part of the ongoing debate about the garbage disposal dispute in Crisp County.” In fact, many of the statements against Cannon have absolutely no relevance to the landfill project. In the first message, Mathis states, “so get out now u thief.” The second message makes no reference to Crisp County or garbage dumping whatsoever but directly and falsely accuses Cannon of being fired from a previous job and demands an explanation. Finally, the third message, posted nearly 30 minutes later, reiterates the accusation that Cannon was fired and states that anyone dealing with Cannon is also a crook. A reasonable reader of these messages would not conclude that such false and inflammatory statements constitute public criticism of Cannon‘s work on the landfill project, but would consider them to be assertions of fact constituting malicious and personal attacks on Cannon‘s character and reputation. When Mathis posted these three Internet messages on Yahoo!, he was personally attacking Cannon using a method of broadcast that reaches far beyond Crisp County and those who possessed knowledge of the local landfill operation. The messages posted by Mathis under a pseudonym on the Yahoo! message board dedicated to the discussion of Waste Industries, Inc. and targeted to a receptive audience far exceeded mere hyperbole or exaggeration. Mathis’ messages contained accusations of dishonesty and criminality on the part of Cannon. Therefore, because the record demonstrates that Cannon was not a prominent figure in the controversy, he had no control over those aspects of the facility involved in the controversy, and he did not avail himself of the media in an effort to comment on or influence the outcome of the debate concerning the controversy, I would affirm the Court of Appeals’ determination that Cannon was not a limited-purpose public figure.
Nor can I agree with the majority‘s consideration of
I further take issue with the majority‘s expansive rewriting of the retraction statute to make it applicable to any and all “communications of defamatory words to someone other than the person defamed.” Had the legislature intended to require a retraction for every defamatory publication and every libel defendant, as the majority holds today, it could have done so. Instead, in plain and unequivocal language, the legislature limited the application of the retraction statute to defendants who regularly publish information by mandating that the libel defendant correct and retract the allegedly libelous statement in the “next regular issue of the newspaper or other publication” following receipt of the demand for retraction.
Where the language of an act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. City of Jesup v. Bennett, 226 Ga. 606 (2) (176 SE2d 81) (1970). The plain language of
In my view, the majority ruling which asks no self-censorship of an Internet poster is unconscionable in that it allows Internet users free reign to injure the reputations of others, even when the statements cross the bounds of propriety. I believe we are better served by applying our laws so that they do not threaten legitimate criticism or deter Internet users from speech that is truthful and non-defamatory, while protecting private individuals from cyberspace posters, like Mathis, who use the Internet to seek to foster the “poisonous atmosphere of the easy lie.” Rosenblatt v. Baer, 383 U.S. 75, 94 (86 SC 669, 15 LE2d 597) (1966).
I am authorized to state that Justice Carley and Justice Hines join in this dissent.
DECIDED NOVEMBER 26, 2002 — RECONSIDERATION DENIED DECEMBER 13, 2002.
James W. Hurt & Associates, James W. Hurt, Thomas H. Hurt, for appellant.
Jones, Cork & Miller, Robert C. Norman, Jr., Hubert C. Lovein, Jr., for appellee.
Powell, Goldstein, Frazer & Murphy, James C. Rawls, Eric P. Schroeder, Bondurant, Mixson & Elmore, Jeffrey O. Bramlett, Michael B. Terry, Hull, Towill, Norman, Barrett & Salley, David E. Hudson, King & Spalding, Jamie N. Shipp, amici curiae.