Coen v. Aptean, Inc.

• Citation: 838 S.E.2d 860
• Decision Date: 10 February 2020
• Docket Number: S18G1638
• Parties: COEN v. APTEAN, INC. et al.
• Court: Supreme Court of Georgia

838 S.E.2d 860

COEN
v.
APTEAN, INC. et al.

S18G1638

Supreme Court of Georgia.

Decided: February 10, 2020

Charles Madden Cork, Law Offices of Charles M. Cork, III, P.O. Box 2594, Decatur, Georgia 30031, for Appellant.

Matthew Blane Ames, Michael J. Bowers, Jessica Fawn Nwokocha, Jena Camella Lombard, Balch & Bingham, LLP, 30 Ivan Allen Jr. Boulevard, N.W. Suite 700, Atlanta, Georgia 30308, Steven M. Collins, Samuel Reed Rutherford, Elizabeth Broadway Brown, Alston & Bird LLP, 1201 West Peachtree Street, Atlanta, Georgia 30309-3424, Richard L. Robbins, Alexa R. Ross, Rachel Frazier Gage, Robbins Ross Alloy Belinfante Littlefield LLC, 999 Peachtree Street, N.E. Suite 1120, Atlanta, Georgia, for Appellee.

Nahmias, Presiding Justice.

The parties in this case have spent years engaged in a series of lawsuits. The case now before this Court concerns a claim of abusive litigation that Timothy Coen filed based on a previous contract lawsuit against his former employer that was resolved in his favor. In his abusive litigation case, Coen seeks punitive damages. In Coen v. Aptean, Inc. , 346 Ga. App. 815, 816 S.E.2d 64 (2018), the Court of Appeals upheld the trial court’s ruling that punitive damages are not available for a statutory abusive litigation claim. See id. at 823-824, 816 S.E.2d 64. The Court of Appeals relied on its prior decisions that in turn rely on dicta in footnote 3 of this Court’s opinion in Yost v. Torok , 256 Ga. 92, 95 n.3, 344 S.E.2d 414 (1986), which was decided three years before the current abusive litigation statutes, OCGA §§ 51-7-80 to 51-7-85, were enacted in 1989. See Ga. L. 1989, p. 408. OCGA § 51-7-83 (a) describes the damages that may be recovered in abusive litigation actions this way: "A plaintiff who prevails in an action under this article 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."

838 S.E.2d 861

We granted Coen’s petition for certiorari to decide whether that statute authorizes the recovery of punitive damages. As explained below, we conclude that punitive damages generally may be recovered in an abusive litigation lawsuit (as long as the lawsuit is not solely to recover damages for injury to peace, happiness, or feelings),¹ because the text of OCGA § 51-7-83 (a) indicates that punitive damages are included, the statute did not change the common law generally allowing punitive damages in abusive litigation cases, and punitive damages in abusive litigation cases do not always constitute an impermissible double recovery. Accordingly, we reverse the holding in Division 2 of the Court of Appeals’s opinion and remand the case for further proceedings consistent with this opinion.

1. Coen worked for CDC Software Corporation from December 2011 until April 2012, when he was terminated. He then filed a lawsuit against CDC Software in DeKalb County State Court, alleging that the company breached the severance and other provisions in his employment contract. CDC Software hired the law firm Sutherland Asbill & Brennan LLP (now known as Eversheds Sutherland) to represent the company, with Allegra Lawrence-Hardy serving as lead counsel and Gabriel Mendel as associate counsel. While this contract lawsuit was pending, Aptean, Inc. acquired CDC Software and was added as a defendant as a corporate successor-in-interest. In April 2014, the trial court granted Coen partial summary judgment, ruling that the contract was valid and enforceable and there was no basis for CDC Software’s withholding payment to him.²

Coen then filed a motion for attorney fees and litigation expenses under OCGA § 9-15-14 (a) and (b), which the trial court granted in the total amount of $176,484.80, holding CDC Software, Aptean, and Sutherland jointly and severally liable. The court found that CDC Software had "adopted a strategy of litigation by attrition," litigating "numerous baseless defenses" despite "its lack of a justiciable defense," and that this "strategy constitutes the very bad faith OCGA § 9-15-14 exists to prevent, and the very bad faith that warrants an award of attorneys’ fees and expenses." In September 2014, Coen dismissed with prejudice the remaining counts in his complaint.

In 2015, Coen filed three abusive litigation lawsuits in Fulton County State Court: one against Sutherland and Lawrence-Hardy, one against Mendel, and one against Aptean, CDC Software, and five officers of CDC Software. In May 2016, Coen dismissed these lawsuits without prejudice.³

In September 2016, Coen filed a single renewal action under OCGA § 9-2-61 (a) in DeKalb County State Court, naming all of the defendants from the previous three abusive litigation lawsuits. He again raised a claim of abusive litigation and specifically requested damages for injury to his peace, happiness, or feelings; punitive damages; and attorney fees for the pending action.⁴

838 S.E.2d 862

Coen alleged, among other things, that in the contract lawsuit, the defendants "asserted baseless primary defenses and numerous boilerplate affirmative defenses, all without substantial justification and for a wrongful purpose." He alleged that this

intentionally overaggressive litigation strategy ... caused delay[;] unnecessarily caused him time, trouble and mental distress; unnecessarily expanded the proceedings; and unjustifiably forced [him] to incur substantial fees and expenses at high financial risk to himself and his family, all to recover an obviously valid debt.

In October 2016, the defendants filed motions to dismiss Coen’s claims. In May 2017, after a hearing, the trial court granted the motions to dismiss. The court held that Coen’s claim of abusive litigation failed because he did not plead special damages (and he had already recovered attorney fees and litigation costs for the underlying contract lawsuit); his claim for damages based on injury to peace, happiness, or feelings was not a stand-alone claim but was subsumed by – and thus failed with – the abusive litigation claim; and his pleading for punitive damages failed because punitive damages are not available in an abusive litigation lawsuit. The court also held that Coen’s claim for attorney fees failed because it was ancillary to his abusive litigation claim. Coen appealed.

The Court of Appeals affirmed in part and reversed in part the trial court’s dismissal of Coen’s complaint. See Coen , 346 Ga. App. at 816, 816 S.E.2d 64. In Division 2 of its opinion, the Court of Appeals affirmed the dismissal of Coen’s request for punitive damages, agreeing with the trial court’s holding that a plaintiff cannot recover punitive damages for a statutory abusive litigation claim. See id. at 823-824, 816 S.E.2d 64. The Court of Appeals reversed the trial court’s holding that Coen was required to plead special damages, see id. at 821-823, 816 S.E.2d 64 ; that holding is not at issue here. Coen petitioned for a writ of certiorari, arguing that the Court of Appeals’s holding as to punitive damages is wrong because OCGA § 51-7-83 (a) authorizes the recovery of punitive damages in an abusive litigation case (not based solely on injured feelings). We granted his petition to consider that question.⁵

2. (a) The abusive litigation statutory tort

In 1989, the General Assembly created the statutory tort of "abusive litigation," defined as follows:

Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts:

(1) With malice; and

(2) Without substantial justification.

OCGA § 51-7-81. The statutory tort expressly replaced all other abusive litigation torts except OCGA § 9-15-14 :

On and after April 3, 1989, no claim other than as provided in this article or in Code Section 9-15-14 shall be allowed, whether statutory or common law, for the torts of malicious use of civil proceedings, malicious abuse of civil process, nor abusive litigation, provided that claims filed prior to such date shall not be affected. This article is the exclusive remedy for abusive litigation.

OCGA § 51-7-85. As to the damages available in a statutory abusive litigation case, as mentioned above, OCGA § 51-7-83 (a) says: "A plaintiff who prevails in an action under this article 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."

838 S.E.2d 863

(b) "All damages allowed by law as proven by the evidence"

"All damages" is a broad phrase. In Gordon v. Atlanta Casualty Co. , 279 Ga. 148, 611 S.E.2d 24 (2005), for example, this Court applied a broad interpretation of the adjective "all" in holding that a plaintiff who was entitled to recover "all sums" under an automobile insurance statute could recover for the death of his son in a car accident, explaining:

The language of the statute is plain and it is not illogical. It clearly states that the insurer is to pay "all sums which [the] insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle." All means all, every single one.

Id. at 149, 611 S.E.2d 24 (emphasis in original; quoting former...