Kelley v. Austell Bldg. Supply, Inc.

• Decision Date: 08 November 1982
• Docket Number: No. 64021,64021
• Parties: KELLEY v. AUSTELL BUILDING SUPPLY, INC.
• Court: Georgia Court of Appeals

Page 292

297 S.E.2d 292

164 Ga.App. 322

KELLEY v. AUSTELL BUILDING SUPPLY, INC.

No. 64021.

Court of Appeals of Georgia.

Nov. 8, 1982.

James R. Dollar, Jr., Douglasville, for appellant.

Wallace C. Clayton, Austell, Sergio Alverez-Mena, III, Samuel P. Pierce, Jr., Atlanta, for appellee.

McMURRAY, Presiding Judge.

This case began as an action on account with reference to building materials. The defendant answered denying the indebtedness and counterclaimed for damages for interference with business, malicious prosecution, and malicious abuse of process, seeking damages for the intentional wrongs, and for punitive damages, as well. The defendant W.L. Kelley's main defense to the main action is that he did not contract for the building materials but that as he was incorporated as W.L. Kelley, Inc., any and all materials provided by the plaintiff were for the corporation and not for the defendant. The counterclaim arises out of certain warrants taken out by an employee and agent of the plaintiff for defendant Kelley's arrest for theft by conversion of materials. An indictment was obtained containing several counts, but defendant was acquitted upon his written demand for trial and the failure to try him on the charges following two consecutive terms of court in which juries were empaneled and qualified.

The main action and the counterclaim were tried before a jury in which a verdict was returned on the account in favor of the plaintiff and for punitive damages in favor of the defendant against the plaintiff on the counterclaim. No actual damages were returned against the plaintiff although there was a verdict form for same submitted to the jury, and actual damages could have been returned in favor of the defendant.

Plaintiff moved for the entry of judgment notwithstanding the verdict or in the alternative a motion to set aside the verdict with reference to the punitive damages. After a hearing, the trial court struck the punitive damages since no actual damages were awarded. The court then allowed the remainder of the verdict to stand in favor of the plaintiff and issued a judgment in plaintiff's favor for the amount found by the jury, the defendant to recover nothing on the counterclaim. Defendant's motion for new trial was duly filed, heard and denied, and defendant appeals. Held:

1. The first enumeration of error complains that the trial court erred in holding that punitive damages could not be awarded by the jury unless actual damages were also awarded, for in order to award punitive damages in a case there must be some actual damages even though small or some injury which would support an action at least for a minimal amount. See in this connection Foster v. Sikes, 202 Ga. 122, 126, 42 S.E.2d 441. In the case sub judice defendant was seeking punitive damages under Code § 105-2002 as additional damages "to deter the wrongdoer." Defendant had offered testimony with reference to his actual damages, the amount of monies which he had been forced to expend in defense of the criminal action and the cost of the bond; also as to business losses including loss of profits from the completion and sale of the homes he had under construction, and he also sought to recover other elements of actual and special damages. During the jury's deliberations it sought further instruction of the trial court with reference to punitive damages, thus it was quite apparent that there was a question in the minds of the jury with reference to the actual and punitive damages, but we have no way of knowing what this was.

As the jury returned no actual damages, the trial court did not err in striking the punitive damages, that is, in failing thereafter to award punitive damages in the judgment. See Haugabrook v. Taylor, 225 Ga. 317, 318, 168 S.E.2d 162; Beverly v. Observer Publishing Company, 88 Ga.App. 490(5), 77 S.E.2d 80; Lary v. Gilmer, 125 Ga.App. 604, 605, 188 S.E.2d 432; Public Finance Corporation v. Cooper, 149 Ga.App. 42, 45(6), 253 S.E.2d 435; Snipes v. Leaseway of Georgia, Inc., 150 Ga.App. 135, 137, 257 S.E.2d 40; Cleary v. Southern Motors of Savannah, Inc., 142 Ga.App. 163, 164-165(1), 235 S.E.2d 623. While under Code § 105-2003 in some torts an aggrieved party (defendant/plaintiff in counterclaim) may seek vindictive damages for injury to the peace, happiness or feelings and in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors, we do not find that the defendant (plaintiff in counterclaim) here sought this type damage but only actual and special damages and additional damages to deter the wrongdoer. See Atlantic and Birmingham Railway Co. v. Bowen, 125 Ga. 460, 462, 54 S.E. 105. We note, however, an aggrieved party (defendant/plaintiff in counterclaim) cannot recover compensatory damages for injury to peace, feelings and happiness and exemplary damages for wounded feelings because this would amount to recovery for double damages for if damages are sought under Code § 105-2003 any additional recovery under Code § 105-2002 would be a double recovery. See Blanchard v. Westview Cemetery, Inc., 133 Ga.App. 262, 211 S.E.2d 135; Westview Cemetery, Inc. v. Blanchard, 234 Ga. 540, 546, 216 S.E.2d 776. Here it is quite evident that the defendant (plaintiff in counterclaim) did not seek vindictive damages in his pleadings, and the pretrial order does not reflect that same was being sought. In addition the plaintiff was contending that the grand jury had returned an indictment against the defendant for theft by conversion in a number of counts and the question of the existence of the want of probable cause and malice on the part of the agents of the plaintiff was being hotly contested. As the jury failed to return any sums for actual damages the trial court did not err in refusing to make an award of the punitive damages returned by the jury in rendering its judgment.

At the time the verdict was returned the attentions of counsel for both parties were called to it. Defendant now contends the trial court erred in failing to resubmit the case to the jury if the court was of the impression that a verdict for punitive damages only was illegal. The jury had been instructed as to the different types and forms of verdicts, and no objection to the form of the verdicts was made prior to the jury's deliberation or after the verdicts were returned by the jury which defendant now challenges. As defendant failed to object, defendant waived any complaints that the trial court should have sent the jury back for further deliberations. No abuse of discretion has been shown, and the defendant cannot ignore during the trial that which he thinks to be error or injustice and take his chances on that verdict and then complain later. See in this connection Simmons v. Edge, 155 Ga.App. 6, 8-9(2), 270 S.E.2d 457. There was no requirement of the trial court to offer to further instruct the jury and resubmit the case with reference to the award of punitive damages. There is no merit in this complaint.

2. The next enumeration of error considered contends that the plaintiff in charging a service charge on the account in the name of W.L. Kelley such service charge or interest amounted to usury, and the trial court erred in refusing to grant a motion of the defendant to strike the service charges or interest being computed upon the alleged open account at the rate of 18% per annum. Defendant contends that same was shown at the rate of 1 1/2% per month on the unpaid balance as to each building account, and as a matter of law same was usurious under Code Ann. § 57-111 (Ga.L.1980, p. 514). The amendment to this statute in 1980 effective March 20, 1980, now reads that unless otherwise provided in writing, signed by the obligor, a commercial account becomes due and payable upon the date a statement of the account is rendered to the obligor, and the owner of the account may charge interest on that portion of a commercial account which has been due and payable for 30 days or more at a rate not in excess of 1 1/2% per month calculated on the amount owed from the date on which it became due and payable until paid.

The accounts in question were created prior to the amendment of 1980 to Code § 57-111. In addition, The Retail Installment and Home Solicitation Sales Act became law in 1967 (Code Ann. Ch. 96-9; Ga.L.1967, pp. 659, 673, as amended 1970, pp. 98, 100). Yet, there is some doubt as to this law applying to this customer, that is, requiring him to pay the 18% per annum interest rate on the unpaid balance of his monthly bills. On each account the account stated referred to the 1 1/2% finance charge or current annual effective rate of 18% which would be added to the balance of the account if not paid by the 10th of each month. While there was no written application presented as to the customer seeking credit, it is quite evident that there was a continuous course of business dealings by and between the parties. Plaintiff argues that the defendant's action, in accepting the monthly statements without complaint, was an acceptance of the finance charge for doing business on credit.

The interest in question was being calculated under the terms of the open account at 1.5% monthly or approximately 18% annually. This rate of interest substantially exceeded the maximum interest permitted under the provisions of Code Ann. § 57-101 (Ga.L.1975, p. 370; 1979, pp. 355, 356). The violation of Code Ann. § 57-101 would produce a forfeit of the entire interest charged. Code § 57-112.

However, as the amount of the verdict $22,795.75 corresponds to the penny with the plaintiff's evidence as to charges for materials delivered prior to the addition of any interest (also called service charges) charges we find it reasonable to infer that the verdict contains no award of interest to plaintiff. The trial court's error, if any, was harmless. See Code § 110-105.

3. Defendant next contends that there was insufficient...