MOTION TO SET ASIDE JUDGMENT OR IN THE ALTERNATIVE, FOR NEW TRIAL
COME NOW the Defendants and submit the amended Motion to Set Aside Judgment or, in the Alternative, for New Trial to correct grammatical and other errors.
Defendants supplement their Motion and Brief by submitting the following which was inadvertently omitted from the original Motion and Brief: Affidavits from ASIAN J. ESENYIE, EMILY HANSEN EMAH, AFFIONG ISRAEL IBANGA and SOLOMON UDO.
Respectfully submitted,
Michael L. Wetzel
Attorney for Defendants
Ga. Bar No. 750425
1000 Main Street, Suite B
Stone Mountain, Georgia 30083
(404)879-9618
_________________________________
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
Civil Action File No. E-29132
JANE UDOFIA, MARGARET MASSODI,
MICHAEL EFFIONG, EPHRAIM
MARSHAL AKPAN, PAUL ETIM, and
GEORGE GEORGE,
Plaintiffs,
FIRST UNITED CHURCH, INC.
d/b/a SANCTIFIED MOUNT ZION
CHURCH OF NIGERIA IN THE
UNITED STATES, and AKPAN JOHN
ESENYIE, IME ANDEM, ENYANGA
UMANAH, EMILY HANSEN EMAH,
AFEIONG ISRAEL IBANGA, SOLOMON
UDO, JOHN DOE I, and JOHN DOE II,
Defendants.
DEFENDANTS' AMENDED MOTION TO SET ASIDE JUDGMENT OR, IN THE ALTERNATIVE, FOR NEW TRIAL
<<Note 1 - The Court excluded from its Judgment Ime Andem, John Doe I and John Doe II. Therefore, 'Defendants refers to First United Church, Inc. d/b/a Sanctified Mount Zion Church of Nigeria in the United States, Akpan John Esenyie, Emily Hansen Emah, Affiong Israel Ibanga and Solomon Udo. Enyanga Umanah is not a party to this Motion and is not represented by undersigned counsel.>>
COME NOW the Defendants and, pray to this Court for an order setting aside its Order and Judgment entered on the 14th day of July, 1995 on the basis that it lacked jurisdiction over the person of these parties pursuant to O.C.G.A. SECTION 9-11-60(d) and, in the alternative, for a new trial in that the judgment of this Court, entered after a non-jury trial, is contrary to evidence and justice and it is contrary to law.
WHEREFORE, Defendants pray that this Court will hear, consider and grant their Motions and will either set aside the judgment entered on July 14, 1995 or will grant a new trial as to all issues.
BRIEF IN SUPPORT OF DEFENDANTS'
AMENDED MOTION TO SET ASIDE JUDGMENT OR, IN THE ALTERNATIVE FOR NEW TRIAL STATEMENT OF FACTS
I.
The Court entered its Order and Entry of Judgment on July 14, 1395, for the sum of $3,000,000 in favor of the Plaintiffs "jointly and severally" and from the Defendants "jointly and severally , excluding three named Defendants, and awarding to Plaintiff George George the sum of $10,800.00 from Defendants Jointly and severally, excluding three named Defendants and further ordering a retraction along with costs of Court. Each Plaintiff asserted a claim for slander against the Defendants, jointly and severally, from statements made by Enyanga Umanah, Emily Hansen Emah "and others" on December 31, 1993 and repeated by Affiong Israel Ibanga on January 9, 1994 before the congregation of Defendant Church and within the walls of the Church building. The defamatory statements were accusations that named Plaintiffs were witches and had practiced evil deeds upon family and fellow church members. (This summary is taken from Plaintiffs' Complaint and the Plaintiffs' Proposed Pretrial Order.)
II.
ARGUMENT AND CITATION OF AUTHORITY
A.
THE JUDGMENT OF JULY 14, 1995
SHOULD BE SET ASIDE AS THIS COURT
LACKED JURISDICTION OVER THE DEFENDANTS.
O.C.G.A. SECTION 9-11-60(d)(1) grants the court discretion to set aside a judgment based on ...lack of jurisdiction over the person....
In this case, Defendant First United Church, Inc. d/b/a Sanctified Mount Zion Church of Nigeria in the United States is allegedly a Fulton County resident because its place of business and office is located at 645 Carson Street, S.W., Atlanta, Georgia 30314. Unless jurisdiction and venue is predicated on joint and several liability, with Defendant Church being a resident of Fulton County, this Court lacks jurisdiction over the persons of the other Defendants .<<Note 2 - As demonstrated by their Affidavits, Defendant Esenyie is a resident of Cobb County, Georgia; Defendant Umanah, even though he is not a party to this Motion, is a resident of Cobb Country, Georgia, as shown by the allegations contained in Paragraph 2 of Plaintiffs' Complaint; Defendant Emah is a resident of DeKalb County, Georgia; Defendant Ibanga and Defendant Udo are residents of Douglas County and Cobb County, Georgia, respectively.>>
Service on Sanctified Mount Zion Church of Nigeria in the United States, Inc. ("Church") was purportedly accomplished, on October 14, 1994, by leaving summons and complaint with the registered agent for First United Church, Inc., the Reverend Dr. Edet A. Obong," at the offices of Plaintiffs' attorney. (See Return of Service Affidavit of Marvin Dixon.)
That service was deficient in that Obong had been stripped of his authority to act on behalf of the Church and in fact was not a member of the Church since his suspension on November 13, 1990. (See Exhibit "2" to the Affidavit of Akpan John Esenyie.) The dispute between Dr. Obong and the Church is chronicled in Obong v. Ekereke, 216 Ga. App. 59, 453 S.E. 2d 84 (1994), which confirms that Dr. Obong was not authorized to represent or act on behalf of the Church at the times pertinent to service in October 1994.
As a consequence of this Court lacking jurisdiction over the Church, arguably a Fulton County resident, venue was improper as to the other named Defendants, over whom the Court therefore lacked jurisdiction. Put another way, if the Church was not subject to the Court's jurisdiction, venue is improper as to the other Defendants and the Court lacks jurisdiction over them. Russell v. Hall, 165 Ga. App. 547, 548, 301 S.E. 2d 904 (1983); Evans v. Montgomery Elevator Co., 159 Ga. App. 834, 835, 285 S.E. 2d 236 (1381); Lansky v. Goldstein, 136 &a. App. 607(2), 222 S.E. 2d 62 (1975).
Even if the Court had jurisdiction over the Defendants on the assumption that the Church was properly before it, it lost that jurisdiction by virtue of the Church not being subject to the jurisdiction of this Court. Consequently, a verdict against the remaining Defendants is void. Stroud v. Dolittle, 213 Ga. 32, 96 S.E. 2d 876 (1957); see also Schwarcz v. Charlton County, 211 Ga. 923, 89 S.E. 2d 881 (1955).
B.
DEFENDANTS ARE ENTITLED TO NEW TRIAL
In the event that Defendants' Motion to set aside the judgment is overruled, they are entitled to a new trial for the following reasons:
1. CHURCH CANNOT BE LIABLE FOR SLANDER OR CONSPIRACY TO SLANDER.
Plaintiffs' Complaint and Pre-Trial Order alleged that the Defendants are guilty of a conspiracy to commit slander. The allegations with respect to the Church are not predicated on respondeat superior.
An alleged conspiracy which includes the Church is contrary to the law of Georgia, which holds that an individual arguably can be liable for conspiracy to commit slander, but that has not been extended to a corporation. Jordan v. Hancock, 91 Ga. App. 647, 86 S.E. 2d 11, 16 (1955). A corporation cannot conspire with itself. Nalley Northside Chevrolet Inc. v. Herring, 215 Ga. App. 185, 188, 450 S.E. 2d 452 (1994). A church has been defined as 'a building consecrated to the honor of God and religion, with its members united in the profession of the same Christian faith.' Wiggins v. Young, 206 Ga. 440, 57 S.E. 2d 486, 487 (1950). Consequently, as a church is not separate from its members, it cannot conspire with itself to commit slander. Cf. Nalley Northside Chevrolet, Inc. v. Herring supra.
While not suggested by Plaintiffs, the Defendant Church cannot be held liable under a theory of respondeat superior for slander because there was not even any allegation that it expressly directed or authorized any one of the other named Defendants to speak the words in question. Church of God, Inc. v. Shaw, 194 Ga. Amp. 694, 391 S.E. 2d 667, 668 (1990). See also Behre v. National Cash Resister Co., 100 Ga. 213(1), 27 S.E. 986 (1897); Bell v. Thiokol Chemical Corp., 126 Ga. App. 167, 190 S.E. 2d 150, 151 (1972); Safety-Klean Corp. v. Smith, 203 Ga. App. 514, 417 S.E. 2d 171, 172 (1992).
The Church would be entitled to judgment in its favor as a matter of law or, at the very least, a new trial should be granted. Moreover, because the Church cannot be held liable as a matter of law, upon its dismissal, this Court losses jurisdiction over the persons of the other named Defendants. (See Argument in Support of Defendants' Motion for New Trial, supra.)
2. JUDGMENT AWARDING $3,000,000 "JOINTLY AND SEVERALLY TO PLAINTIFFS' IS VOID ON ITS FACE.
A motion for new trial is the proper vehicle for attacking a judgment defective on its face.<<Note 3 - See Miller and Myer and Assoc. v. Diedrich, 174 Ga. App. 249, 329 S.E. 2d 918, aff'd in part, rev'd in part 254 Ga. 734, 334 S.E. 2x1 308 (1985).>>
Each of the Plaintiffs set forth a claim for slander, in a separate count in the Complaint, which was then reiterated in Plaintiffs' Proposed Pretrial Order. The judgment of this Court, entered on July 14, 1995, awarded $3,000,000 "jointly and severally to the Plaintiffs.
The Georgia Supreme Court addressed a similar situation with. respect to which it made the following comment: Bathe petition contains two causes of action in favor of different plaintiffs and properly there should have been a verdict in favor of each plaintiff for a given amount." Georgia Railroad Co. v. Tice, 124 Ga. 457(2), 464, 52 S.E. 916 (1905) .<<Note 4 - In the Tice case, the court refused to grant a new trial because the defendant failed to request a charge for a separate verdict or to object to the form of the verdict. In the present case, the Defendants had no such opportunity and therefore could not waive the objection to the form of the verdict or judgment.>>
3. JUDGMENT ORDERING RETRACTION IS VOID.
In addition to awarding damages, the Court ordered Defendants to issue a "formal verbal and written retraction" of each slanderous accusation. That part of the judgment is void because the Court exceeded its jurisdiction. The remedy for slander is damages, O.C.G.A. SECTION 51-5-4(b). Equity will not enjoin libel and slander. Pittman v. Cohn Communities, Inc., 240 Ga. 106, 239 S.E. 2d 526, 528 (1977). A person who abuses the right of free speech is "accountable for injuries sustained by others." Singer Mfg. Co. _. Domestic Sewing Mach. Co., 49 Ga. 70, 72 (1873). Courts leave the parties to their remedies at law . Id., 49 Ga. at 73.
4. JUDGMENT IS EXCESSIVE.
<<Note 5 - The excessiveness of a verdict or judgment is properly attacked by a motion for new trial. Miller and Myer and Assoc. v. Diedrich, supra.>>
$3,000,000 in general damages were awarded to the Plaintiffs in this action jointly and severally.
In discussing when a verdict may be found so excessive as to show undue bias or prejudice, such a verdict must "carry its death warrant upon its face", be "monstrous indeed," "must shock", or "appear exorbitant." Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 319 S.E. 2d 470, 481 (1983 Smith c. Milliken, 247 Ga. 369, 276 S.E. 2d 35, 38 (1981). That this case falls within those parameters can easily been seen by comparing it to the verdict in Simon v. Shearson Lehman Bros., Inc., 895 F. 2d 1304 (11th Cir. 1990), which was decided under Georgia law. In that case there was evidence that the brokerage firm's slanderous remarks to an investor, regarding his business manager, caused impairment of the manager's reputation, humiliation and anguish, but the court held that the award of $1,000,000 in general damages was excessive as a matter of law, in light of the fact that slander did not cause the manager any economic loss.
5. A NEW TRIAL SHOULD BE GRANTED BECAUSE THIS COURT LACKED SUBJECT MATTER JURISDICTION OVER THE INTERNAL ECCLESIASTICAL MATTERS OF THE CHURCH.
The alleged defamatory statements were made before the congregation during church services on December 31, 1993 and were repeated on January 9, 1994 in the context of a "testimony" or "confession" given by three members of the Church. As stated by our Constitution, "A person has the natural and inalienable right to worship God, each according to the dictates of that person's own conscience; and no human authority should, in any case, control or interfere with such right of conscience. Art. I, Sec. I, Para. 3, Ga. Const. of 1983. Giving testimony or making a confession during 2 religious service qualifies for the constitutional protection cited above.
As stated by our Supreme Court, for the Christian Church Universal, congregational worship services would include saying prayers, singing hymns, reading scriptures, and the giving of testimonies and sermons in a congregational setting.***" (emphasis added) Leggett v. Macon Baptist Assoc., Inc., 232 Ga. 27, 205 S.E. 2d 197, 200 (1974). Significantly, that proposition was recognized in Roberts v. Ravenwood Church of Wicca, 249 Ga. 348, 292 S.E. 2d 657, 659 (1982) where the Wiccan Church, whose members were commonly referred to as witches and warlocks, was recognized as a "church".
Our courts have repeatedly held that the courts cannot inquire into an internal ecclesiastical question, which is defined as "a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of members of the church doctrine, discipline, ecclesiastical government, or the conformity of members of the church to the standard of morals required of them." Carnes v. Smith, 236 Ga. 30, 222 S.E. 2d 322, 325 fn 2 (1976), quoting Watson v. Jones, 80 U.S. (13 Wa11 ) 679, 20 L. Ed. 666 (1871).
Examples of where the court was held not to lack jurisdiction over ecclesiastical matters abound under Georgia law. See, e.g., Sapp v. Calloway, 208 Ga. 805, 69 S.E. 2d 734 (1952) (trial court erred in charging the jury that it should determine whether a labor union was an oath-bound secret society, where the church had voted to stand aloof from oath- bound secret societies, including labor unions, and had expelled members who declined to submit to that order); Id., 210 Ga. 277, 79 S.E. 2d 532 (1954) (reversing judgment for plaintiff members because the court had allowed testimony that members of the faction, to which witness belonged, had consistently adhered to the faith, doctrines, practices, and decorum of the church, and that the majority faction had departed therefrom); McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174, 381 S.E. 2d 126 (1989) (summary judgment to the Diocese was affirmed on the basis that the civil court did not have jurisdiction of the ecclesiastical issue involving a clergyman's termination from his capacity as minister of two mission churches); Camp v. Durham, 219 Ga. 543, 134 S.E. 2d 598, 599 (1964) (whether church could expel from membership those who advocated or taught Sunday School with materials other than the Holy Bible); Stewart v. Carried, 206 Ga. 85,5, 59 S.E. 2d 368 (1950) (court refused to adjudicate an article of faith and determine the "true and correct members of the 'church'."); Knowles v. White, 199 Ga. 772, 35 S.E. 2d 451 (1945) (court refused to intervene n a suit by a deacon and member seeking an adjudication of the question of who was the lawful pastor of the church ); Gervin v. Reddick, 246 Ga. 56, 268 S.E. 2d 657, 659 (1980) (court had no jurisdiction to order church to adopt Mitten by-laws; lacked authority to appoint a special master to regulate the internal affairs and doctrine of the church).
Finally, in Crosby v. Lee, 88 Ga. App. 589, 76 S.E. 2d 856 (1953), the trial court correctly dismissed plaintiff's suit for defamation in the nature of a circular letter written by the clerk of the Alapaha River Primitive Baptist Association, suggesting the expulsion of Crosby, among others, for his many "transgressions", "innocent blood he has shed", accusing him of being part of a "bunch of gangsters", an ungodly man and an Edomite. Id., 67 S.E. 2d at 856-857.
6. IF THE CONDUCT OF WHICH PLAINTIFFS COMPLAIN DID NOT INVOLVE AN ECCLESIASTICAL MATTER, DEFENDANTS' STATEMENTS ARE ENTITLED TO A QUALIFIED PRIVILEGE WITH RESPECT TO WHICH PLAINTIFFS FAILED TO SHOW ACTUAL MALICE.
Statements of church members, made in the course of disciplinary or expulsion proceedings, or during Church worship, in the absence of actual malice, are protected by a qualified privilege. 50 Am. Jur. 2d, Libel and Slander 209; 63 ALR 649, 650. Defendants submit that testimonies and confessions, given during the course of a worship service, are entitled to the same conditional privilege, O.C.G.A. SECTION 51-5-7(2), as are statements made during the course of a church disciplinary proceeding or conference. Giving testimonies is a generally accepted public notion of congregational worship services intended to express adoration and homage for the Deity. Leggett v. Macon Baptist Assoc., Inc., supra.
In Etchison v. Pergerson, 88 Ga. 620 (1891) the court held that, "when one church member is a witness on the trial of another before the proper church tribunal, a bona fide disclosure of all relevant facts is incumbent upon him as a private moral duty [which have a qualified privilege under Former Code Section 2980, the predecessor to O.C.G.A. SECTION 51-5-7]; If those facts necessarily involve misconduct or even a crime on the part of a person not a member of the church, the naming of such person, as a part of the relevant testimony of the witness, is within the protection of the privileged occasion." Id., 88 Ga. at 621(2).
The statements allegedly made by Defendants, with which the other Defendants allegedly conspired, are entitled to the conditional privilege conferred by Section 51-5-7. Consequently, Plaintiffs had the burden of proving malice. See Melton v. Bow, 145 Ga. App. 272, 243 S.E. 2d 590, 591 (1978), aff'd 241 Ga. 629. 247 S.E. 2d 100 (1978); Layfield v. Turner Advertising 181 Ga. App. 824, 826, 354 S.E. 2d 14 (1987); accord, Criswell v. Pruitt, 239 S.W. 2d 165 (Texas Civil App. 1951). Accord, Flanders v. Dailey, 120 Ga. 885, 889, 48 S.E. 327 (1904) (where Methodist Minister was accused of being unfit, too dangerous and indiscreet by a member of the church or as a member of the quarterly conference of the church, at a time when the plaintiff's character WaS under investigation, and were uttered in good faith, the defendant would not be liable in damages, notwithstanding the language used might be calculated to injure the plaintiff in his profession as a minister of the gospel. In that case, the Supreme Court reversed a dismissal of the action as the pleadings did not show that the defendant was entitled to invoke the conditional privilege).
Absent proof by the Plaintiffs of actual malice on the part of the Defendants, they are entitled to recover. Defendants are not entitled to a new trial on this issue. See Herndon v. Melton, 249 N.C. 217, 105 S.E. 2d 531 (1958) (failure to prove express or actual malice entitled defendant to judgment as a matter of law); accord, Browning v. Gomez, 332 S.W. 2d 588 (Texas Civil App. 1960); Wolff v. Benovitz, 301 Sy. 661, 192 S.W. 2d 730 (1946); Murphy v. Hasty, 353 P. 2d 206 (Oregon 1964); Mosely v. Evans, 90 Ohio App. 3d 633, 630 N.E. 2d 75 (1993).
7. THERE WAS NO LEGAL "PUBLICATION OF THE ALLEGED DEFAMATORY STATEMENTS.
The alleged defamatory statements were made before the congregation during a church service on December 31, 1993 and repeated on January 9, 1994 at another church service.
In Rasmussen v. Bennett, 741 P. 2d 755 (Mont. 1987), the court found that the defendant's statements were made before the congregation and were based on ecclesiastical doctrine which prohibited adultery. Defendants were guaranteed the free exercise at religion under the First Amendment of the United States Constitution and the Montana Constitution. Id., at 758.
Moreover, the court rejected the plaintiff's contention that the congregational gathering included non-church members and thus the statements exceeded the scope of the privilege. The incidental communication to non-church members attending the service does not eliminate the privilege. cit] Id., 741 P. 2d at 758.
Rasmussen is consistent-with the intracorporate communication doctrine declared in Kurtz v. Williams, 188 Ga. App. 14, 371 S.E. 2d 878, 880 (1988): "Over the years, however, an exception to the broad definition of publication has evolved: When the communication is intracorporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication of the allegedly slanderous material, and without publication, there is no cause of action for slander. [cits]."
Applying this principle, the court in Church of Scientology of California, Inc. v. Green, 354 F. Supp. 800 (SDNY 1973) dismissed the slander action by a member of the church based on the following rationale: "However, the publication in this instance is subject to a qualified privilege and is, therefore, permissible. A communication made between officers within the organizational structure of the church, or a corporation for that matter, made in good faith, in any subject in which the one communicating has an interest or in which there is a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which without this privilege, would be Actionable. Such is the case even though the duty is not a legal one but only a moral or social duty or obligation. [cits]" Id., 354 F. Supp. at 804.
The moral duty in this case was for the members of the Church to confess their sins and testify as to their conduct prior to salvation, from which they have repented to conform to and obey the standard of morals required of them. The confession or testimony was heard only by those persons within the congregational service at the Defendant Church premises. That there may have been nonmembers in attendance does not deprive the Defendants of the privilege or otherwise constitute a publication.
WHEREFORE, for the reasons shown, Defendants are entitled to have the judgment set aside for lack of jurisdiction of this Court or, at the least, to a new trial.
