Evans v. Willis

• Decision Date: 08 February 1994
• Docket Number: A93A2444,Nos. A93A2443,s. A93A2443
• Parties: EVANS v. WILLIS et al. WILLIS et al. v. EVANS.
• Court: Georgia Court of Appeals

Page 770

441 S.E.2d 770

212 Ga.App. 335

EVANS v. WILLIS et al.

WILLIS et al. v. EVANS.

Nos. A93A2443, A93A2444.

Court of Appeals of Georgia.

Feb. 8, 1994.

Reconsideration Denied March 9, 1994.

Certiorari Denied April 28, 1994.

Edward J. Magner, Jr., Kennesaw, for appellant.

Walter C. Herin, Jr., Atlanta, for appellees.

BIRDSONG, Presiding Judge.

This is the second appearance of this case before the court. See Evans v. Willis, 203 Ga.App. 699, 418 S.E.2d 73.

L.D. Willis and Marilyn Willis sued William L. Evans d/b/a Deluxe Cleaners to recover damages for the conversion of Marilyn Willis' wedding dress which was left at Deluxe Cleaners in 1964. As the Willises believed the dress was being stored at the cleaners, they did not demand possession of the dress until 1984. When L.D. Willis did so, Evans told him the dress had been given to a charitable organization. According to L.D. Willis, Evans denied any responsibility for the problem and ultimately told him to see Evans' lawyer if he was dissatisfied. Moreover, even though Evans sometime later found the dress, he did not tell the Willises that the dress was recovered. When the dress was located, a ticket was attached to the dress showing a charge of $17.50 for cleaning and a notice that the cleaners would be responsible only for 30 days. Further, although the Willises asserted that the dress was left for storage, Evans claimed that he was only to clean the dress. Evans was never paid for the storage of the dress. Since the dress was not returned to them before the wedding, the Willises had to buy another dress for their daughter's wedding, and they asserted that they suffered emotional distress because of Evans' actions and because their daughter was not married in the dress. The Willises also sought damages for intentional infliction of emotional distress, punitive damages, and litigation expenses under OCGA § 13-6-11.

Ultimately, the jury returned a verdict awarding Marilyn Willis $3,000 in actual damages for conversion of the dress, $3,250 punitive damages, $4,000 for emotional distress, and $4,888.75 for attorney fees. The jury also awarded L.D. Willis $3,000 for punitive damages, $2,000 for emotional distress, and $3,000 for attorney fees. The jury found against Evans on his counterclaim against the Willises.

At the conclusion of the Willises' case, and at the close of the evidence, Evans, in effect, moved for a directed verdict on L.D. Willis' individual claims, on the claim for punitive damages, on the claim for emotional distress, and on the claim for attorney fees, and he contends the trial court erred by denying these motions. Evans also contends the trial court erred by amending the judgment to award pre-judgment interest after the notice of appeal was filed, contends the trial court erred by allowing the verdict to stand since the damages exceeded the proof, and contends the trial court erred by allowing damages under both OCGA §§ 51-12-5 and 51-12-6. Evans further contends the trial court erred by denying his motion to dismiss the complaint based upon the running of the statute of limitation. Held:

Case No. A93A2443

1. Evans contends the trial court erred by denying his motion to dismiss the Willises' claims for punitive damages, intentional infliction of emotional distress, and litigation expenses under OCGA § 13-6-11. Review of the record shows that these claims are based upon Evans' statement that the dress was given to a charitable organization and that when L.D. Willis protested, Evans told him to contact his attorney.

Although expressed as a motion to dismiss, Evans' motions were in effect motions for a directed verdict on these claims; accordingly, we must measure the trial court's decision by standards appropriate to a motion for directed verdict. "In determining whether the trial court erred by denying appellants' motion[ ] for a directed verdict ... this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict ... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict." (Citations and punctuation omitted.) Southern Store, etc., Co. v. Maddox, 195 Ga.App. 2, 3, 392 S.E.2d 268. Considered in this manner it is apparent that the evidence in this case was insufficient to support claims for intentional infliction of emotional distress, for punitive damages, and for expenses of litigation under OCGA § 13-6-11.

(a) Since the Willises' claim did not involve injury to the person or pecuniary loss resulting from an injury to the person, recovery would be allowed only if Evans' conduct was malicious, wilful, or wanton. Ob-Gyn Assoc. of Albany v. Littleton, 259 Ga. 663, 386 S.E.2d 146; Westview Cemetery v. Blanchard, 234 Ga. 540, 216 S.E.2d 776. Thus, to prevail on their claim for intentional infliction of emotional distress, the Willises must establish that Evans' conduct was wilful or wanton and intentionally directed to harm them, that his actions were such as would naturally humiliate, embarrass, frighten, or outrage the Willises, and the conduct caused mental suffering or wounded feelings or emotional upset or distress. Coleman v. Housing Auth. of Americus, 191 Ga.App. 166, 381 S.E.2d 303. As the evidence shows that Evans' loss or misplacement of the dress after it had been left at his establishment for many years was not intentional and was not directed toward the Willises, the evidence fails to establish these necessary elements of the case. Moreover, Evans' conduct in this case fails to reach the level of conduct required in this state to support such a claim. See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 409 S.E.2d 835; Moses v. Prudential Ins. Co. &c., 187 Ga.App. 222, 369 S.E.2d 541. Further, since Marilyn Willis was not present when her husband confronted Evans about the dress, she cannot recover since his conduct was not directed toward her. Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826. Accordingly, the trial court erred by submitting the claim for emotional distress to the jury.

(b) In the same manner, Evans' conduct was insufficient to support a claim for punitive damages. Since this cause of action arose before July 1, 1987, OCGA § 51-12-5 applies. Carter v. Myers, 204 Ga.App. 498, 419 S.E.2d 747. " 'To authorize the imposition of punitive damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression relates to an intentional disregard of the rights of another, knowingly or...