Craig v. Holsey

• Decision Date: 25 November 2003
• Docket Number: No. A03A1644.,A03A1644.
• Citation: 264 Ga. App. 344,590 S.E.2d 742
• Parties: CRAIG v. HOLSEY.
• Court: Georgia Court of Appeals

590 S.E.2d 742

264 Ga. App. 344

CRAIG v. HOLSEY.

No. A03A1644.

Court of Appeals of Georgia.

November 25, 2003.

Certiorari Denied March 29, 2004.

Mabry & McClelland, James T. Budd, Chambers, Brian W. Sprinkle, Atlanta, for appellant.

Mathis & Adams, Charles A. Mathis, Jr., Andrew B. Koplan, Aileen R. Page, Cash, Krugler & Fredericks, David N. Krugler, Atlanta, for appellee. ADAMS, Judge.

Rodney Leroy Craig appeals a verdict and judgment against him arising out of a car accident he caused while under the influence of drugs and alcohol. He contends the trial court failed to enforce a settlement agreement, that the court made two evidentiary errors, and that the award of punitive damages was unconstitutional.

Construed in favor of the verdict, the facts show that on August 9, 1998, while he was on probation, Craig smoked two marijuana cigarettes, drank six beers and eight ounces of straight gin, then crashed his car into the back of a car driven by Tamika Holsey, pushing her car into the lane of oncoming traffic. Craig also fled the scene. Craig's blood alcohol level was 0.169 three hours after the accident. He eventually pled guilty to leaving the scene of an accident, following too closely, and driving under the influence. His sentence included 30 months of probation. Holsey sustained injuries in the accident. Following trial, the jury returned a verdict of $8,801.40 in actual and compensatory damages and, following a separate hearing, $200,000 in punitive damages.

1. We first address whether Craig filed a timely notice of appeal.

Judgment was entered on March 15, 2002. On April 8, Craig filed a timely motion for new trial, but the trial court dismissed the motion as void on September 5, 2002, because of Craig's failure to obtain or serve a rule nisi, as required by OCGA § 5-5-44. On September 11, 2002, Craig filed a notice of appeal from the verdict and judgment and the September 5 order dismissing his motion for new trial. Holsey has now filed a motion to dismiss the appeal, contending that this Court does not have jurisdiction to consider it because a void motion for new trial does not extend the time for filing a notice of appeal.

Craig's motion for new trial was void. OCGA § 5-5-44 provides that "[i]n all motions for a new trial the opposite party shall be served with a copy of the rule nisi unless such copy is waived." Failure to perfect service of the motion for new trial in accordance with OCGA § 5-5-44 renders the motion void. See Dunn v. Dunn, 221 Ga. 368, 369(1), 144 S.E.2d 758 (1965).¹

It is true that a motion for new trial that is void because it was not timely filed does not extend the time for filing the notice of appeal. Porter v. State, 271 Ga. 498-499, 521 S.E.2d 566 (1999); Wright v. Rhodes, 198 Ga.App. 269, 401 S.E.2d 35 (1990). It appears, however, that in other cases, including failure to serve a rule nisi, a timely filed motion for new trial that is dismissed as void will toll the period for filing a notice of appeal. See, e.g., Harrison v. Harrison, 229 Ga. 692(1), 194 S.E.2d 87 (1972) (prematurely filed motion for new trial); Gold Kist, Inc. v. Stokes, 135 Ga.App. 382(2)(a), 217 S.E.2d 352 (1975), rev'd on other grounds, 235 Ga. 643, 221 S.E.2d 49 (1975) (failure to attach rule nisi). In these cases, an order dismissing the motion for new trial is considered a disposition of the motion pursuant to OCGA § 5-6-38(a), and it commences the running of the 30-day period for filing an appeal. Heard v. State, 274 Ga. 196(1), 552 S.E.2d 818 (2001); see also Johnson v. State, 246 Ga.App. 239, 539 S.E.2d 914 (2000). Moreover, the allegations of error raised in the void motion for new trial may be reviewed on appeal. Gold Kist, 235 Ga. 643, 221 S.E.2d 49; Checker Cab Co. v. Fedor, 134 Ga.App. 28, 29, 213 S.E.2d 485 (1975). Hence, the appeal is properly before us and will be considered on its merits. The motion to dismiss is denied.

2. Craig contends the trial court erred by failing to enforce a settlement agreement. The undisputed evidence shows that on November 8, 2001, Holsey made a written, time-limited offer to settle the case for the policy limits of $15,000. The offer explicitly stated that Craig was required to deliver payment within five days from delivery of the letter, which was sent by facsimile on Friday, November 9, 2001, and delivered on Monday, November 12, via Federal Express. It is undisputed that Craig failed to make a payment by Friday, November 16. Craig contends that on Monday, November 12, his attorney had a telephone call with one of Holsey's attorneys, in which it was agreed that the case was settled and that the deadline would not be enforced. Holsey denies that the deadline was waived. None of the associated writings indicate that the deadline was waived.

Craig moved to enforce the settlement agreement and a hearing was held. The parties submitted affidavits on the issue and argued based on the affidavits. The court did not hear live testimony. The court made clear that, based solely on the affidavits, it could not resolve who was telling the truth about the telephone conversation, and therefore it held that there was insufficient evidence to contradict the fact that the time-limited offer was not accepted by full payment within the deadline. It therefore denied Craig's motion.

"Because the trial court decided this case on motion and not by bench trial, the issues raised in this appeal are analogous to those in a motion for summary judgment. Our review is de novo." (Citation omitted.) Walls v. Walls, 260 Ga.App. 673, 675, 580 S.E.2d 564 (2003). Compare Griffin v. Wallace, 260 Ga.App. 857, 581 S.E.2d 375 (2003) (when the trial court is called upon to act as the finder of fact regarding a motion to enforce a settlement, the clearly erroneous standard is used). We find no error. Whether the parties agreed to waive the deadline was disputed, and therefore the trial court correctly denied the motion. Scott v. Carter, 239 Ga.App. 870, 521 S.E.2d 835 (1999), is not controlling. In that case, the existence of an agreement was established by letters between counsel for both parties, who had authority to settle, confirming that the case had been settled. Here, there were no writings confirming that the deadline had been waived.

3. Craig contends the court abused its discretion by allowing Holsey to cross-examine him regarding the details of a prior criminal conviction. Craig notes that although prior felony convictions are admissible for impeachment purposes, the evidence admitted must be limited to certified copies of the prior convictions. See Willett v. Russell M. Stookey, P.C., 256 Ga.App. 403, 568 S.E.2d 520 (2002). Craig does not contend that the conviction itself was inadmissible. See Moore v. Thompson, 255 Ga. 236, 336 S.E.2d 749 (1985) (evidence of defendant's prior and subsequent guilty pleas to driving under the influence admissible on question of punitive damages).

But the questioning at issue occurred during the punitive damages phase of the trial. Punitive damages are recoverable only where "it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." OCGA § 51-12-5.1(b). During the punitive damages phase of the trial, the court may receive evidence that "is relevant to a decision regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case." OCGA § 51-12-5.1(d)(2). The award authorized by this statute for the tortfeasor's intent, motive, or attitude as described above "has been construed as that which is related to the tort." Carter v. Spells, 229 Ga.App. 441, 442, 494 S.E.2d 279 (1997). "It is this orientation of defendant in connection with the act at issue [that] aggravates the act's wrongfulness." Id. at 442-443, 494 S.E.2d 279.

But that does not mean that the question of the defendant's state of mind must be examined "solely by focusing on the incident in issue." Moore, 255 Ga. at 237, 336 S.E.2d 749. And the general rule still holds: "trial judges may exercise discretion in excluding relevant evidence if its probative value is substantially outweighed by the risk that its admission will confuse the issue, mislead the jury, or create substantial danger of undue prejudice." Webster v. Boyett, 269 Ga. 191, 195, 496 S.E.2d 459 (1998).

Craig contends that the court should not have allowed cross-examination into the details of his prior criminal conviction and probation for possession of a controlled substance, specifically, the fact that the controlled substance was crack cocaine intended for his personal use. But the evidence offered was relevant to the issue of whether on the day of the accident, Craig's actions showed wilful misconduct, wantonness, or that entire want of care that would raise the presumption of conscious indifference to consequences.

The evidence was introduced together with other evidence regarding Craig's past drug use such as: that Craig violated the terms of his probation by drinking and using drugs on the day of the accident; that he smoked marijuana that day because he "just felt like it"; that he often smoked marijuana while he was on probation; that he sometimes drove a car after smoking marijuana; and that he has continued to smoke marijuana since the accident. The evidence taken as a whole suggests that Craig was disposed to wilfully violate the law and the terms of his probation by using illegal drugs, that he consciously drove under the influence of drugs, and that he did not even change this wanton conduct after the accident.² See Langlois v. Wolford, 246 Ga.App. 209, 214(2)(d), 539 S.E.2d 565 (2000) (prior similar acts of drunk driving and intoxication are relevant and material as evidence of aggravated conduct for ...