P&J Beverage Corp. v. Bottle Shop

• Docket Number: A24A0033
• Decision Date: 01 July 2024
• Citation: P&J Beverage Corp. v. Bottle Shop, 904 S.E.2d 125 (Ga. App. 2024)
• Parties: P&J BEVERAGE CORPORATION v. The BOTTLE SHOP, LLC.
• Court: Georgia Court of Appeals

904 S.E.2d 125

P&J BEVERAGE CORPORATION

v.The BOTTLE SHOP, LLC.

A24A0033

Court of Appeals of Georgia.

July 1, 2024

Stephen Joseph Hodges, Columbus, David Norton Nelson, Macon, for Appellant.

Travis Carlisle Hargrove, Robert R. Lomax, Columbus, for Appellee.

Mercier, Chief Judge.

This is not the first appearance of a legal dispute between these two parties before us. In the first action, P&J Beverage Corporation ("P&J") filed a lawsuit against the City of Columbus "seeking a writ of mandamus to prevent Columbus from issuing an alcoholic beverage license to The Bottle Shop, LLC, and then seeking to revoke the license once issued." Consolidated Govt. of Columbus, Ga. v. P&J Beverage Corp., 344 Ga. App. 482, 482-483, 810 S.E.2d 640 (2018) (footnote omitted) (physical precedent only). P&J sought the writ of mandamus, arguing that The Bottle Shop’s proposed location was within 600 feet of The Growing Room, a for-profit daycare facility, which P&J argued was a "school." Id. at 483, 810 S.E.2d 640. Therefore, P&J claimed that the proposed location for The Bottle Shop would violate a provision of Columbus’s city ordinances which prohibited the issuances of liquor licenses to establishments within 600 feet of a school. Id.

After all of the parties, including The Bottle Shop, which had intervened in the action, filed motions for summary judgment, the trial court granted P&J’s motion, ordering that Columbus declare The Bottle Shop’s license "improperly issued, and … treated as invalid from the outset, and shall not grant authority to any person to operate any business using said license." Consolidated Govt. of Columbus, Ga., 344 Ga. App. at 483, 810 S.E.2d 640 (punctuation omitted). Finding that the trial court erred by granting a writ of mandamus and injunctive relief, we reversed the trial court. Id. at 487 (1)-(2), 810 S.E.2d 640.

Thereafter, The Bottle Shop filed a lawsuit against P&J, alleging wrongful injunction, malicious abuse of process, and seeking attorney fees and punitive damages.¹ The matter proceeded to trial, and the jury awarded The Bottle Shop $175,451.51 in actual damages, along with $98,050 in attorney fees and $250,000 in punitive damages.² After the trial court denied P&J’s motion for a judgment notwithstanding the verdict or new trial, P&J filed this appeal. P&J alleges that the trial court erred by denying its motion for directed verdict and motion for judgment notwithstanding the verdict on The Bottle Shop’s claims for abusive litigation, attorney fees, and punitive damages. Further, P&J argues that The Bottle Shop’s counsel gave an improper closing argument and that the trial court erred in its jury charge. For the following reasons, we affirm.

[1, 2] 1. P&J argues that the trial court erred by denying its motion for directed verdict and subsequent motion for judgment notwithstanding the verdict on all of The Bottle Shop’s claims. In our review of a denial of a motion for judgment notwithstanding the verdict or a denial of a motion for directed verdict, we "determine whether there is any evidence to support the jury’s verdict." Patterson-Fowlkes v. Chancey, 291 Ga. 601, 602, 732 S.E.2d 252 (2012). "In so doing, this Court must construe the evidence in a light most favorable to the prevailing party in the court below." Id. (a) P&J claims that the trial court erred by denying its motions regarding The Bottle Shop’s abusive litigation claim. Specifically, P&J contends that The Bottle Shop failed to provide adequate written notice, pursuant to the requirements of OCGA § 51-7-84, and that P&J acted in good faith and received a final order in its favor.

OCGA § 51-7-84 (a) provides that

[a]s a condition precedent to any claim for abusive litigation, the person injured by such act shall give written notice by registered or certified mail or statutory overnight delivery or some other means evidencing receipt by the addressee to any person against whom such injured person intends to assert a claim for abusive litigation and shall thereby give the person against whom an abusive litigation claim is contemplated an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding, claim, defense, motion, appeal, civil process, or other position. Such notice shall identify the civil proceeding, claim, defense, motion, appeal, civil process, or other position which the injured person claims constitutes abusive litigation.

P&J does not contend that it did not receive written notice. Rather, P&J argues that the notice was deficient.

On March 26, 2017, after the trial court had issued the injunction, counsel for The Bottle Shop sent an email to counsel for P&J stating that, if The Bottle Shop won on appeal, it would assert a wrongful injunction claim and seek damages. Specifically, the email stated that they "wanted to discuss … whether P&J will agree to a stay of relief against The Bottle Shop … pending the ruling of the appellate court." Further, the correspondence stated: "If the Defendants win on appeal but the Bottle Shop [is] shut down in the interim, The Bottle Shop will assert a damages claim against P&J for wrongful injunction for the time that The Bottle Shop is shut down. P&J can keep that from being an issue by consenting to a stay of the Court’s Order and waiting on the Appellate ruling." P&J’s owner testified that she rejected the offer,³ and following this Court’s reversal of the injunction, The Bottle Shop filed the underlying lawsuit for abusive litigation.

[3] "The stated purpose of OCGA § 51-7-84 is to give the prospective defendant to the abusive litigation claim an opportunity to voluntarily withdraw his defense or position." Owens v. Generali-U. S. Branch, 224 Ga. App. 290, 292 (1), 480 S.E.2d 863 (1997) (citation and punctuation omitted). Here, the evidence at trial, viewed in the light most favorable to The Bottle Shop, showed that The Bottle Shop gave written notice to P&J, wherein it gave P&J the opportunity to consent to a stay of the injunction, and informed P&J that if it failed to do so The Bottle Shop would seek damages. Accordingly, there was evidence to support the jury’s finding that the notice met the statutory requirements of OCGA § 51-7-84. See Owens, 224 Ga. App. at 292 (1), 480 S.E.2d 863 (plaintiff’s letter was adequate notice under OCGA § 51-7-84 (a) when it notified the defendant’s agent of the plaintiff’s prospective claim and gave the defendant an opportunity to withdraw its position).

Further, P&J argues that The Bottle Shop’s claim was barred as a matter of law because P&J was substantially successful. P&J contends that, because the trial court granted its motion for summary judgment in the first action, The Bottle Shop failed to state a claim for abusive litigation. However, as mentioned previously, this Court reversed the trial court in the first appeal. See Consolidated Govt. of Columbus Ga., 344 Ga. App. at 482, 810 S.E.2d 640. We have previously held that, when a party is successful at every stage of litigation, but then is reversed on appeal, a showing of abusive litigation will require more than just the appellate reversal. See Bacon v. Volvo Svc. Center, 288 Ga. App. 399, 402, 654 S.E.2d 225 (2007) ("where a plaintiff survives motions for summary judgment and directed verdict and obtains a suc- cessful jury verdict, establishing lack of substantial justification requires more than a showing that the verdict was reversed on appeal, such as evidence of fraud").

[4] P&J filed the initial lawsuit against the City of Columbus seeking a restraining order to prevent The Bottle Shop from obtaining a license. And during an interview with a local newspaper, the owner of P&J stated:

It is a competitor that I do not want…. Some of the demographics I will reach here are people who work in uptown and live on the north end. Right now, there is nothing between them and home. I will be the closest place to Alabama and a lot of them are shopping at the Columbus Beverage Superstore. (The Bottle Shop) is a good bit closer to Alabama.

Therefore, there was evidence at trial that P&J was motivated by a desire to deter competition and acted with malice and without substantial justification, pursuant to OCGA § 51-7-81.⁴ Accordingly, there was evidence to support The Bottle Shops’s abusive litigation claim. Compare LaSonde v. Chase Mortg. Co., 259 Ga. App. 772, 774 (2), 577 S.E.2d 822 (2003) (complete defense to claim for abusive litigation where Chase Mortgage obtained a writ of possession against the plaintiff "and the judgment in that case was not appealed").

(b) P&J argues that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict on The Bottle Shop’s claim for attorney fees incorporated in the damages awarded for the abusive litigation claim. P&J argues that attorney fees were not recoverable due to its preliminary success in the underlying action, and that the fees were improperly submitted in a lump sum because The Bottle Shop’s appellate fees for abusive litigation were not recoverable.

[5] "An applicant for a restraining order does so at its own peril because if it succeeds in obtaining a restraint that is later determined to have been wrongful, then the wrongfully restrained party may recover actual damages caused by that restraint from the applicant." Hogan Mgmt. Svcs. v. Martino, 242 Ga. App. 791, 794 (2), 530 S.E.2d 508 (2000). Further, under OCGA § 51-7-83 (a), a party who prevails in bringing an abusive litigation action "shall be entitled to all damages allowed by law as proven by the evidence, including costs and expenses of litigation and reasonable attorney’s fees." Here, the lawyers for The Bottle Shop testified as to their fees for the original lawsuit, including their hourly rates and their fee amounts, and were cross-examined regarding the fees.

[6] P&J argues that "it is well settled law that claims for appellate proceedings related to abusive or frivolous litigation are not...