Kent v. AO WHITE

• Decision Date: 29 January 2002
• Docket Number: No. A01A0756.,A01A0756.
• Citation: 253 Ga. App. 492,559 S.E.2d 731
• Parties: KENT v. A.O. WHITE, JR., CONSULTING ENGINEER, P.C.
• Court: Georgia Court of Appeals

559 S.E.2d 731

253 Ga. App. 492

KENT v. A.O. WHITE, JR., CONSULTING ENGINEER, P.C.

No. A01A0756.

Court of Appeals of Georgia.

January 29, 2002.

Christopher J. McFadden, Decatur, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Gregory S. Ellington, Columbus, for appellee. ELDRIDGE, Judge.

The Supreme Court of Georgia vacated and remanded this case to this Court for further consideration in light of Time Warner Entertainment Co. v. Six Flags Over Ga., ___ U.S. ___, 122 S.Ct. 24, 151 L.Ed.2d 1 (2001), and Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) ("Cooper").

In Kent v. A.O. White, Jr., Consulting Engineer, P.C., 238 Ga.App. 792, 796(7), 520 S.E.2d 481 (1999) ("Kent I") (see this case for facts),¹ this Court held:

The judgment is affirmed in part as to the breach of contract and interest awards. It is also affirmed as to the findings of liability for fraud, punitive damages, and attorney fees. The judgment is reversed in part and the case remanded as to amount of the damages for fraud, attorney fees, and punitive damages.

Kent now seeks on this appeal to reverse the retrial of the damages on three grounds: (1) that the trial court erred in reading to the jury a portion of the opinion in explaining and limiting the issues that they were to decide on the retrial; (2) that the trial court erred in entering judgment on the punitive damages award; and (3) that the trial court erred by entering judgment on the attorney fees award. The instruction to the jury limiting the issues for jury determination as described by this Court in its opinion was not error. This Court previously held that Kent was liable in some amount of punitive damages, which is conclusive of the issue of liability for punitive damages in some amount and cannot be relitigated. We returned the case for jury determination of the amount of punitive damages to be awarded in the enlightened conscience of fair and impartial jurors. Also, this Court held that Kent was liable for attorney fees; the evidence supported the amount of attorney fees awarded on retrial of this issue, as was found in the first trial. We affirmed the judgment of the trial court.

1. In this case, this Court on remand restricted the issues for jury determination to damages on retrial, because the affirmance of the judgment finding liability drastically restricted the issues for jury determination on subsequent retrial to damages only. Kent I, supra at 796, 520 S.E.2d 481.

Under the law of the case, neither Kent nor the jury could revisit the issues of liability for damages for fraud, punitive damages, or attorney fees; this is what the trial court properly instructed the jury using our opinion from the first appearance of this case before us. Crowell v. City of Eastman, 187 Ga.App. 891, 892(1), 371 S.E.2d 667 (1988); see also Intl. Indem. Co. v. Robinson, 231 Ga.App. 236, 237(2), 498 S.E.2d 795 (1998); Lowman v. Advanced Drainage Systems, 228 Ga.App. 182, 183-184, 491 S.E.2d 427 (1997); Palm Restaurant of Ga. v. Prakas, 192 Ga.App. 74, 76, 383 S.E.2d 584 (1989); Stafford Enterprises v. American Cyanamid Co., 164 Ga.App. 646, 650, 299 S.E.2d 390 (1982). To charge the jury on the law, and even the facts, as affirmed on appeal is not reversible error where such facts have been precluded from relitigation under the law of the case.

Hudson v. Hudson, 90 Ga. 581, 586-587(3), 16 S.E. 349 (1892), is distinguishable on the law and facts from this case; therefore, the case does not control. "Whenever it is necessary for this court to allude to or comment upon the facts of a case, we do so as they appear in the record then before us, but in another investigation the evidence may be, and often is, entirely different, and the case may present quite another complexion." Id. at 587(3), 16 S.E. 349. The law of the case froze the facts as to liability as tried in the first trial, and for this reason the trial court so charged the new jury as to these fixed, previously determined facts so that they would not be retried by this jury. In Hudson, the issue of law disapproved by the Supreme Court was that the trial lawyer read the law and facts from an opinion to the jury, because the jury was to receive the law exclusively from the trial court. In this case, the trial court read the law and facts to the jury from this Court's prior opinion as determined applicable for this case and, thus, limited and defined this jury's special duties and responsibility on retrial of damage issues only. The reading from this Court's opinion defined for the jury what their limited role would be and did not involve facts that they were to decide in this new trial, which was unlike the situation in Hudson.

Similarly, Allen v. Hiwassee Land Co., 172 Ga.App. 814(1), 324 S.E.2d 742 (1984), has no application to the facts of this case pertaining to liability, because unlike that case, which was tried de novo, in this case the charge went only to issues of fact and law that could not be tried again by this jury, i.e., matters that were the law of the case, because the findings of liability by the prior jury had been affirmed on appeal and had become the law of the case. Thus, the verdict of the prior jury resulting in a judgment of liability was affirmed by this Court as a matter of law.

2. Kent contends that the judgment for punitive damages was error for several reasons: it was excessive; it was a double recovery of damages in both tort and contract; and plaintiff made an election between contract damages and tort damages.

(a) OCGA § 51-12-5.1 made the standard of proof in cases for punitive damages clear and convincing evidence for determination of whether or not punitive damages in a case are appropriate prior to the determination of the amount of such damages in a bifurcated proceeding with the jury; the right to a bifurcated hearing separately on the appropriateness of punitive damages from aggravating circumstances and on the amount of damages is waived if the case goes to verdict without such procedure being followed, because such bifurcation is for the protection of the defendant. See OCGA § 51-12-5.1(b), (d); Ga. L.1987, p. 915, § 5; Martin v. Williams, 215 Ga.App. 649, 651(2), 451 S.E.2d 822 (1994); MultiMedia WMAZ v. Kubach, 212 Ga.App. 707, 711(3), 443 S.E.2d 491 (1994). Thus, the law of the case governs the issue of sufficiency of the evidence for the award of punitive damages, and this Court held that in this case the award of punitive damages was appropriate in an amount to be determined by a jury.

In such cases the award is not measured as compensation, but is fixed in an amount necessary to deter future acts. The rule which requires the amount of punitive damages to evidence a reasonable proportion to the extent of the injury applies to exemplary damages for wounded feelings. The amount, as measured by the enlightened conscience of an impartial jury, which would be required to deter future acts necessarily depends upon the facts of the particular case.

(Citations, punctuation and emphasis omitted.) Ford Motor Co. v. Stubblefield, 171 Ga.App. 331, 341(7), 319 S.E.2d 470 (1984).

In this case, the evidence showed that Kent had repeated the identical tortious conduct in the same case subsequently with another expert witness, Brown. The evidence was sufficient to support punitive damages in such amount. Ford Motor Co. v. Stubblefield, supra.

It is ... true in considering excessiveness that an appellate court does not have the broad discretionary powers invested in trial courts to set aside verdicts, and where the trial court before whom the witnesses appeared had the opportunity of personally observing the witnesses has approved the verdict, this court is without power to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means. The excessiveness of the verdict was raised below on motion for new trial and overruled by the judge who had presided over the trial.... And the Court trying the case[ ] must receive more light on the question of excessive damages[ ] than it can impart to any other Court. Considering all of the circumstances in this case, we do not find the trial court erred in declining to find the verdict excessive.

(Citations and punctuation omitted.) Id. at 341-342(7), 319 S.E.2d 470.

(b) Kent complains that the amount of the punitive damages bears no proportionality to the fraud damages; however, the jury returned fraud damages in the amount of $18,407.75, which the trial court wrote off, and punitive damages of $750,000, which the trial court reduced to the statutory maximum of $250,000.

Kent relies upon Colonial Pipeline Co. v. Brown, 258 Ga. 115, 365 S.E.2d 827 (1988). First, such case arose in 1982 and was decided prior to the 1987 amendment so that the law is not the same as applied here. Ga. L.1987, p. 915, § 5. Secondly, the opinion was rendered by a divided majority of four, who concurred in the judgment only, because a three-judge opinion was joined by a special concurrence in the judgment only to create the majority, while three judges dissented; therefore, the opinion has physical precedence only. See Art. VI, Sec. VI, Par. VI of the Ga. Const. of 1983; Grantham Transfer Co. v. Hawes, 225 Ga. 436, 439(2), 169 S.E.2d 290 (1969); McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967); Southern R. Co. v. Parker, 194 Ga. 94, 102(2), 21 S.E.2d 94 (1942); Supreme Court Rule 58.

Although it is true that the punitive damage award here is approximately 45.5 times higher than the actual damage award, punitive damages may be given even where recoverable, actual damages are small, and the amount of the punitive damage award is exclusively a question for the jury to determine.

(Citation and punctuation omitted.) McClure v. Gower, 259 Ga. 678, 684(4), 385 S.E.2d 271 (1989); see also Tyler v. Lincoln, 272 Ga. 118, 121(1), 527...