Danny M. Bennett v. Dennis Lee Hendrix ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12582 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 19, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:00-cv-02520-TWT
DANNY M. BENNETT,
DANNY L. REID,
TAMMY R. BENNETT,
lllllllllllllllllllll Plaintiffs - Appellees,
versus
DENNIS LEE HENDRIX,
Individually and in his Official capacity as Sheriff of Forsyth County,
lllllllllllllllllllll Defendant - Appellant,
EARL A. SINGLETARY,
individually and in his official capacity as
Chief Deputy Sheriff of Forsyth County, et al.,
llllllllllllllllllll lDefendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 19, 2011)
Before MARTIN, BLACK, and RESTANI* Circuit Judges.
PER CURIAM:
This appeal presents the latest iteration of a now eleven-year-old civil suit.
The plaintiff-appellee, Danny M. Bennett (“Bennett”), alleged that the defendant-
appellant, Dennis Lee Hendrix (“Hendrix”), engaged in tortious misconduct as
part of Hendrix’s 2000 campaign for reelection as Sheriff of Forsyth County.
Specifically, Bennett claimed that Hendrix engaged in defamation by distributing
36,000 fliers that stated untruthfully that Bennett was a convicted criminal.
Bennett v. Hendrix, 325 F. App’x 727, 728–29, 734 (11th Cir. 2009). A jury
agreed, and awarded Bennett $3.6 million dollars for damages caused by the three
fliers. Id. at 734. Subsequently, a panel of this Court held that 24,000 of the fliers
were protected by the First Amendment, and remanded for further proceedings
consistent with that outcome. Id. at 740. The district court, in turn, reinstated the
jury verdict, concluding a new trial was unnecessary because the jury would likely
reach the same outcome.
While we recognize the obvious interest of everyone involved to see this
litigation end, our precedent does not permit the jury’s general verdict to stand.
*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
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Specifically, we must reverse because the reinstated verdict improperly relies upon
the premise that all three fliers were defamatory. But because we held that two of
the three fliers were in fact protected speech, the jury was not permitted to premise
any damages upon those two fliers. Bennett, 325 F. App’x at 740. As a result, we
must reverse the reinstatement of the general verdict in this case, which has the
same consequence of effecting such an impermissible outcome. See Greenbelt
Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 11, 90 S. Ct. 1537, 1540 (1970)
(“[W]hen it is impossible to know, in view of the general verdict returned whether
the jury imposed liability on a permissible or an impermissible ground the
judgment must be reversed and the case remanded.” (quotation marks omitted));
see also Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690, 695 (5th Cir. 1975).
We must therefore remand this case for a new trial to determine what damages, if
any, can be attributed to the defamatory statement in the second flier.
Because we remand for a new trial on account of the jury’s general verdict,1
Hendrix’s alternative arguments for a new trial are moot. Properly before us,
however, is Hendrix’s alternative argument that Bennett is a limited purpose
1
To be clear, the trial for which we remand this case is solely for the purpose of
determining the measure of damages, if any, caused by the defamatory statement contained in the
second flier, which we have already determined is not protected by the First Amendment. See
Bennett, 325 F. App’x at 735–36.
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public figure entitled to lesser First Amendment protection. We cannot agree. To
determine whether an individual is a limited public figure under Georgia law, “a
court must isolate the public controversy, examine the plaintiff’s involvement in
the controversy, and determine whether the alleged defamation was germane to the
plaintiff’s participation in the controversy.” Mathis v. Cannon, 573 S.E.2d 376,
381 (Ga. 2002) (quotation marks omitted). We conclude that the third prong alone
is sufficient to defeat Hendrix’s assertion that Bennett was a limited purpose
public figure when the defamation occurred. As Hendrix concedes, the only
public matter in which Bennett engaged was a committee that advocated to reform
the local police force two years prior to Hendrix’s reelection campaign. But of
course the defamation occurred in relation to that later reelection campaign, in
which Bennett played no role other than contributing money. As a result, we have
concluded that the defamation was not germane to the sole public activity in which
Bennett participated, and therefore he was not a limited purpose public figure at
the time that defamation occurred.
For the foregoing reasons, we affirm the district court’s holding that Bennett
was a private figure, but remand this case for a new trial to determine the amount
of damages, if any, caused by the defamatory statement in the second flier.
REVERSED and REMANDED.
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