Jones v. Spindel

• Decision Date: 04 January 1973
• Docket Number: No. 47581,No. 3,47581,3
• Citation: 196 S.E.2d 22,128 Ga.App. 88
• Parties: , 178 U.S.P.Q. 303 Candler JONES et al. v. George D. SPINDEL
• Court: Georgia Court of Appeals

Page 22

196 S.E.2d 22

128 Ga.App. 88, 178 U.S.P.Q. 303

Candler JONES et al. v. George D. SPINDEL.

No. 47581.

Court of Appeals of Georgia, Division No. 3.

Jan. 4, 1973.

Rehearing Denied Feb. 6, 1973.

George G. Finch, Atlanta, for appellants.

Webb, Parker, Young & Ferguson, John Tye Ferguson, Paul Webb, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

A verdict of $82,155.00 for plaintiff has brought this case for its third appearance in this court. The law points involved are complicated to the extent that there are forty-one assignments of error. Both law-year have ably argued legal questions contained in such enumerations in extensive briefs. ¹ These briefs have been of great help in our deliberations.

Our work has been considerably simplified by reason of the 'law of the case' having been established on the two previous appeals in Jones v. Spindel, 113 Ga.App. 191, 147 S.E.2d 615 and 122 Ga.App. 390, 177 S.E.2d 187, to which we will make reference hereafter. ²

The case was submitted to the jury on two counts with the first count seeking to recover the value of plaintiff's services based on use of his drawings. The other count was for damages claimed to have been sustained by an alleged conversion by defendants to their own use of plaintiff's property. The jury found there was a conversion and added exemplary damages and attorneys fees. Their verdict made the judgment of the court, was itemized as follows: 'Plans and interest $34,155; punitive damages $25,000; attorneys fees $23,000; totaling $82,155.'

As the evidence presented for the defendants consisted of denials of the version presented by plaintiff and which if accepted by the jury would have supported a verdict for defendants we deem it sufficient to state a summary of the plaintiff's case: Prior to meeting defendants, Spindel, a licensed professional engineer, had prepared certain drawings on which appeared the following statement 'Design by office of Gilbert D. Spindel, P.E., Consulting Design Engineer, Reg. Pro. Eng. D.C., S.C., Georgia, National Bureau Cert. Qual. 1970. All rights for these plans reserved by Modular Components, Inc., and G. D. Spindel, Copyright by G. D. Spindel.' They were for use through Modular Components, Inc., in constructing what are generally known to the layman as prefabricated houses. These plans were furnished to defendants for use in obtaining building permits and mortgage commitments. Plaintiff submitted evidence showing that his plans were either traced or redrawn with minor changes omitting the Spindel legend and used by defendants without his authorization for construction of an apartment project consisting of 64 units at a cost of $460,000. There was no federal copyright obtained as plaintiff relied solely on a common law copyright.

1. The herculean task confronting us has been lightened by the opinions rendered in the two previous decisions which established the 'law of the case'. As to those matters we need not indulge in redundant rhetoric. Both appellants and appellee recognize '. . . that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.' Code Ann. § 81A-160(h). They differ as to the rulings which were made. Because 'a court may take judicial notice of its own records in an immediate case before it' (Minor v. Ray, 127 Ga.App. 1, 2, 193 S.E.2d 41, 42), we have obtained the records of both appeals from the archives. Our examination of the records, transcripts, and briefs in those two files confirm this court has already passed on a number of matters which have been again argued on the instant appeal. Such rulings are not to be re-litigated. Sou. R.R. Co. v. Over-Nite Transportation Co., 225 Ga. 291, 168 S.E.2d 166; Bailey v. Dobbs, 126 Ga.App. 545, 191 S.E.2d 293.

The first appeal (Jones v. Spindel, 113 Ga.App. 191, 147 S.E.2d 615, supra), limited its holding to a cause of action being stated for acts done in pursuance of a conspiracy. In the second appeal (Jones et al. v. Spindel, 122 Ga.App. 390, 177 S.E.2d 187, supra, this court specifically covered a number of questions which we show by quotations from that opinion:

(a) It was proper to include in the charge 'a statement of the claim of the plaintiff for exemplary damages and attorney's fees and the substance of Code § 105-2002, accompanied by an explanation of the meaning.' P. 390, 177 S.E.2d p. 189.

(b) It was proper to charge the jury with reference to consideration of an award of attorney's fees. P. 391, 177 S.E.2d 187.

(c) 'It clearly appears that Spindel had a common law copyright in the plans . . . and the unauthorized use of the plans by the defendants as disclosed by the proof is shown to be entirely outside the scope of the arrangement with Modular Components.' P. 391, 177 S.E.2d p. 189.

(d) 'With respect to interest, the trial judge correctly instructed the jury that '(i)n an action for conversion such as has been set up by the plaintiff in his other count, the measure of damages is the fair reasonable market value of the property converted as of the date of conversion, plus interest. '"" P. 393, 177 S.E.2d p. 190.

(e) If the evidence warrants, then the verdict may exceed the amount claimed as ad damnum in the complaint. P. 393, 177 S.E.2d 187.

(f) 'The interest is to included in the verdict as additional damages, and not as interest eo nomine, because conversion is an ex delicto action.' P. 393, 177 S.E.2d p. 190.

A reading of the transcript of evidence in the first trial shows that substantially the same evidence was presented at both trials. Under this situation the items that we have recited as being the 'law of the case' and binding upon this subsequent appeal applies. Medlock v. Allison, 224 Ga. 648, 164 S.E.2d 112; Srochi v. Kamensky, 121 Ga.App. 518, 174 S.E.2d 263; Standard Oil Co. v. Harris, 120 Ga.App. 768, 172 S.E.2d 344. Therefore, we will not plow that ground again in this opinion.

2. Although the first two appeals established the law of the case as to plaintiff having the right to have the jury determine (a) if defendants by their acts pursuant to a conspiracy caused plaintiff damages as pleaded, (b) that Spindel possessed a common law copyright in his plans, (c) an unauthorized use thereof, if shown, constituted a conversion with the right to recover damages, both actual and punitive along with interest from the date of conversion and attorneys fees, other questions remain for consideration on this appeal. The first of these is whether the verdict is excessive to the extent of showing bias or prejudice. When the previous verdict was reversed on this ground, the law of the case was not created on this point because the litmus test of bias or prejudice necessarily must be applied anew to the evidence as presented upon the second trial. Because of the closeness of amounts ($85,000 contrasted with the instant $82,155) we have given special study to this problem. Despite the evidence here being substantially the same in many respects as that of the first trial, we must measure the verdict according to those principles contained in the cases that have considered Code § 105-2015 which provides 'The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.' The standard was stated in Realty Bond & Mortgage Co. v. Harley, 19 Ga.App. 186, 187, 91 S.E. 254, 255, in these words: 'Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts must shock the moral sense, appear 'exorbitant,' 'flagrantly outrageous,' and 'extravagant.' 'It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.' It must carry its death warrant upon it face.' In accord are St. Paul Fire &c. Ins. Co. v. Dillingham, 112 Ga.App. 422, 145 S.E.2d 624; Hein v. Morgan, 112 Ga.App. 535, 145 S.E.2d 780; Fields v. Jackson, 102 Ga.App. 117, 119(1), 115 S.E.2d 877; Western & Atlantic R. v. Burnett, 79 Ga.App. 530, 540, 54 S.E.2d 357.

Proper application of these standards should be made separately as to each item of damages in the instant verdict. Accordingly, we deal with each as follows:

(a) Actual damages. The trial judge instructed the jury if they found a wrongful conversion to have occurred, 'the measure of damages is the fair market value of the property converted, as of the date of conversion plus interest from that time until date figured at the rate of seven per cent.' (T. 435) In accordance with an instruction from the judge, who thereby complied with the Court of Appeals directive, the two items of fair market value and interest were combined rather than segregated as had erroneously been done by the previous jury. Subtracting interest computed from Labor Day 1962 to January 1972 from the combined figure of $34,155 leaves an amount well within the range of the evidence, plaintiff having placed a value of $25,000 (T. 95) and his witness a figure of $20,700 (T. 185).

(b) Attorney fees: On the previous appeal this court ruled the amount of $25,000 to be 'substantially in excess of what should be regarded as reasonable and adequate.' Since then, however, there was considerable time and effort consumed by the attorneys in seeking to certiorari the previous appeal to the Supreme Court, followed by a retrial consuming three days. Plaintiff's counsel testified as to the amount of time he devoted which at the recommended Atlanta Bar Association fee schedule of $35 per hour would authorize an award of $17,500 to $21,000 (T. 239). Another witness, an independent attorney, stated 'in view of the time consumed and the probable complexities that you outlined...