Evers v. Equifax, Inc.

• Decision Date: 17 July 1981
• Docket Number: No. 80-7005,80-7005
• Citation: 650 F.2d 793
• Parties: Lynne M. EVERS, Plaintiff-Appellant, v. EQUIFAX, INC., Defendant-Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 793

650 F.2d 793

Lynne M. EVERS, Plaintiff-Appellant, v. EQUIFAX, INC., Defendant-Appellee.

No. 80-7005.

United States Court of Appeals, Fifth Circuit.

Unit B

July 17, 1981.

Carr, Abney & Tabb, W. Pitts Carr, Charles B. Zirkle, Jr., Atlanta, Ga., for plaintiff-appellant.

Hansell, Post, Brandon & Dorsey, W. Rhett Tanner, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before JONES, TJOFLAT and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Appellant, Lynne M. Evers, appeals the award of a new trial to appellee, Equifax, Inc., claiming that the trial court was laboring under a misapprehension of the law and abused its discretion in granting the new trial. She asks this court to reinstate the jury verdict of the first trial, or alternatively, to order a remittitur on damages. We reject her arguments and affirm.

FACTS

Evers brought suit against Equifax seeking damages and other relief under the Fair Credit Reporting Act, 15 U.S.C.A. §§ 1681, et seq. (1974). She alleged both negligent and willful violation of the Act. The evidence, as presented by Evers at the first trial, shows that when she applied for additional automobile insurance, she was informed that her existing insurance was being cancelled because of a credit problem. Taking several hours off work, Evers viewed her credit reports at both Equifax and another credit bureau. ¹ The credit report at Equifax inaccurately stated that Evers' whereabouts was unknown and that she was not expected to return to her last known address. The report grossly understated Evers' net worth and annual income. The report also indicated erroneously that Evers' former landlord stated she had stolen some property from her apartment and would not be acceptable as a tenant. While at Equifax's offices, Evers informed Equifax of the inaccuracies in the report. When she returned to Equifax's offices the next day for a second meeting, she learned that the bulk of the erroneous information in the report had been corrected. Four days after she learned of the threatened cancellation of her insurance, Evers was informed that the problem had been resolved and her insurance would be reinstated.

The cause of the inaccuracies was disputed at trial. Equifax's version of the events was presented by its investigator and a general manager. The investigator testified that the request for an investigation of Evers' version as to the cause of the inaccuracies was based on the testimony of the apartment manager interviewed by Equifax's investigator. He testified that he had given the investigator the name of the tenant in the apartment inquired about, a name different from Evers. Equifax attacked this testimony by attempting to impugn the manager's memory of the events.

Evers was handwritten by an employee of someone other than Equifax, presumably by an employee of the insurer. He read the handwritten address as an apartment complex at 3301 Roswell Road, when in reality Evers' address was an apartment complex at 3501 Roswell Road. The investigator went to 3301 Roswell Road where he interviewed the manager. The investigator claims the manager identified Evers as the former tenant in the apartment number given to the investigator and stated this tenant had taken some property from the apartment and would no longer be accepted as a tenant. The investigator admitted that he had no information regarding Evers' net worth or income, but had estimated these figures based on his experience of financial assets of individuals living in apartment complexes similar to the one where he had interviewed the manager. The general manager of Equifax testified that net worth and income figures are unimportant in credit reports to the automobile insurance industry. The investigator testified that he called businesses with names similar to Evers' employer, described in the form given to Equifax as "American C-o-1-1." Evers' employer's name is actually "American Fashion College." When Evers complained to Equifax, Equifax learned her correct address and employer. It quickly corrected its report on the basis of this information.

At the close of evidence in the first trial, the district court ruled that it would not submit to the jury Evers' claim for punitive damages pursuant to 15 U.S.C.A. § 1681n because of insufficient evidence to prove willfulness. ² The court accordingly instructed the jury only on actual damages. ³ The jury returned a verdict for Evers in the amount of $9,100.

On Equifax's motion for a new trial or in the alternative remittitur, the district court granted Equifax a new trial. It found the jury's verdict to be excessive and punitive for three reasons: (1) the minimal loss of time from Evers' job, the minimal travel expenses to correct the report, and absence of evidence demonstrating any great emotional stress, worry, anxiety, injury to reputation or the like, ⁴ (2) two appeals by Evers' attorney in closing argument that the jury award sufficient damages to prevent a recurrence of similar incidents, despite the district court's ruling before closing argument that the claim for punitive damages would not be submitted to the jury and, despite the district court's admonishment to Evers' attorney after he made the first improper appeal, and (3) a query by the jury during deliberation as to whether they could consider damages in the form of court costs, attorney fees, and direct payment to Evers. ⁵

During the course of the second trial, the same issue as to whether there was sufficient

evidence on willfulness to submit Evers' punitive claim to the jury arose again. The district court, after a second look at the evidence, held that it was sufficient to submit the question to the jury. When Evers suggested that if the court was prepared to submit the punitive claim to the jury, it should reinstate the first verdict, the district court replied that it could not do so because of its inability to determine whether the jury had intended the damage award to be only for actual injury or to be split between actual injury and a punitive award. The case, together with Evers' punitive claim, went to the second jury which returned a verdict for Equifax.

DISCUSSION

Evers does not challenge on this appeal any part of the second trial. Instead, she only attacks the propriety of the order granting the second trial. Appeal with respect to that order properly awaited entry of final judgment in the second trial. Massey v. Gulf Oil Corp., 508 F.2d 92 (5th Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 67, 46 L.Ed.2d 57 (1975); 11 Wright & Miller, Federal Practice and Procedure, § 2818 (1973).

Ascertaining what Evers is arguing on appeal has required diligent study of her briefs and oral argument. She in no way contests the second trial, but limits her arguments to the propriety of the grant of the new trial. It is unclear that her legal theories are always consistent with the relief she requests. We construe her position to challenge the grant of the new trial and to request a reinstatement of the first verdict. She asserts three grounds: (1) Evers argues that the district court abused its discretion in granting the new trial, assuming arguendo that the first jury verdict was entirely for actual damages; (2) she argues that when a district court finds a verdict excessive, it may not order a new trial without conditioning same upon a refusal by the plaintiff of a remittitur; and (3) she argues that the district court erred at the first trial in refusing to submit the punitive damages issue to the jury and that this error somehow requires reinstatement of the first verdict. ⁶

I. Abuse of Discretion in Granting a New Trial.

The general rule is that a district court's denial or grant of a new trial is within its discretion and is ordinarily nonreviewable save for an abuse of that discretion or misapprehension of the law. Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 269 (5th Cir. 1980); Cruthirds v. RCI, Inc., 624 F.2d 632 (5th Cir. 1980); Love v. Sessions, 568 F.2d 357 (5th Cir. 1978); Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir. 1976); Massey v. Gulf Oil Corp., 508 F.2d 92 (5th Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 67, 46 L.Ed.2d 57 (1975). Qualifying this deference is a rule developed in recent cases in this circuit to protect a litigant's Seventh Amendment rights and to prevent improper intrusion on the jury's function. The rule is that a somewhat broader review applies to an order granting a new trial as opposed to an order denying such a motion, and the greatest degree of scrutiny is exercised when a new trial is granted on the ground that the verdict is against the weight of the evidence. Love v. Sessions, supra; Massey v. Gulf Oil Corp., supra; Spurlin v. General Motors Corp., supra. Nevertheless, the district court's discretionary power is still afforded the deference required by the trial judge's presence at the trial and his duty to see that there is no miscarriage of justice. Love v. Sessions, supra.

Evers argues that the verdict was not excessive, assuming arguendo that the verdict amount was entirely for actual damages. We cannot accept the assumption on which Evers' argument rests. Evers' attorney twice made an improper argument to the jury which placed the punitive damage claim before the jury in violation of the district court's ruling and admonishment. This closing argument together with the amount of the award, is sufficient evidence to justify the district court's conclusion that the jury awarded punitive damages as well as actual damages. We conclude that the district court did not abuse its discretion in granting a new trial on the ground that the jury improperly considered punitive damages in violation of the district court's ruling withdrawing that issue from the jury.

Moreover, we have reviewed the record and have concluded that the district court...