McClure v. Gower

• Decision Date: 26 October 1989
• Docket Number: Nos. S89A0149,S89X0344 and S89A0615,s. S89A0149
• Parties: McCLURE v. GOWER et al. GOWER v. McCLURE et al. GOWER v. WGBA, INC., et al.
• Court: Georgia Supreme Court

Page 271

385 S.E.2d 271

259 Ga. 678

McCLURE v. GOWER et al.

GOWER v. McCLURE et al.

GOWER v. WGBA, INC., et al.

Nos. S89A0149, S89X0344 and S89A0615.

Supreme Court of Georgia.

Oct. 26, 1989.

Reconsideration Denied Nov. 29, 1989 and Dec. 20, 1989.

William C. Rumer, Albert W. Stubbs, Stephen G. Gunby, Columbus, for McClure and WGBA, Inc.

Danny L. Dupree, Columbus, for Gower.

Charles A. Gower, Columbus, pro se.

MARSHALL, Chief Justice.

This case draws into question the punitive-damage provisions of the Tort Reform Act of 1987, OCGA § 51-12-5.1, and the cross-appeal provisions of the Appellate Practice Act. OCGA § 5-6-38.

In this case, Gower brought suit against McClure for specific performance of a real-estate sales contract. Gower also named WGBA, Inc., as a party defendant, based on allegations of tortious interference by WGBA with Gower's rights under his contract with McClure. After the trial court rendered a decree of specific performance, the jury returned a verdict against McClure, awarding Gower actual damages, as well as attorney fees incurred as part of his expenses of litigation. Verdicts were also returned against WGBA, in which Gower was awarded both actual and punitive damages.

The facts of this case are not overly complex:

Gower is an attorney, and the subject property is adjacent to his law office; he wants to use the property as a parking lot.

McClure entered into a contract to sell the property to Gower for $85,000 after McClure's real-estate agent told Gower that McClure wanted to "net" $80,000 for the property, and the agent wanted a $5,000 commission.

A closing date was agreed to by McClure's real estate agent and Gower's attorney approximately one week in advance, and this was communicated to both Gower and McClure. On the morning of the scheduled closing, McClure informed the closing attorney that he, McClure, would be unable to attend the closing because he was going out of town, although McClure further stated that he would return in a day or two and that a contract extension would be unnecessary. Gower arrived at the closing at the scheduled time, presented a check for the amount due, and signed the requisite documents. When McClure returned to town, his real estate agent tried repeatedly and unsuccessfully to communicate with him. After approximately one week, the agent finally spoke to McClure, and he stated that he did not intend to close the contract, because a strategically located advertising sign of WGBA radio was located on the property; his son was affiliated with the radio station; and Gower would not agree to let the sign remain on the property.

The jury returned a verdict against McClure for $586.36 in actual damages, consisting of lost interest on the earnest-money deposit, and $8,219.10 in litigation expenses/attorney fees; in regard to the amount of the attorney-fee award, Gower's attorney gave testimony concerning his training and credentials, his hours spent on this case, and his customary hourly fee.

The jury returned a verdict against WGBA for $33 in actual damages, also consisting of lost interest on the earnest-money deposit, and $1,500 in punitive damages.

In Case No. S89A0149, McClure filed an appeal in this Court as to the trial court's decree of specific performance and the jury's attorney-fee award to Gower.

In Case No. S89A0615, Gower filed an independent appeal in the Court of Appeals, complaining about the trial court's refusal to allow closing argument of counsel in the latter phase of this bifurcated tort trial. A motion to dismiss Gower's appeal was filed by WGBA on the ground that Gower failed to file requisite discretionary-appeal procedures under OCGA § 5-6-35(a)(6), in that Gower's appeal, standing alone, is an appeal of a money judgment in an amount less than $2,500. Finding that Gower's appeal in the Court of Appeals "may function as a cross appeal" to McClure's appeal in this Court, the Court of Appeals transferred Gower's appeal to us.

In Case No. S89X0344, Gower amended his notice of appeal with respect to WGBA, by designating it a notice of cross appeal, naming this Court, rather than the Court of Appeals, as the appellate court to which the cross appeal was to be taken. ¹

For reasons which follow, we affirm the judgment in Case No. S89A0149, which is McClure's appeal of the judgment entered against him. We reverse the judgment in Case No. S89A0615, which is Gower's appeal of the judgment entered against WGBA. And, inasmuch as Case No. S89X0344 is also an appeal by Gower of the judgment entered against WGBA, we dismiss this appeal as duplicative.

1. Contrary to McClure's assertions, there was ample evidence as to the sufficiency of the purchase price. See generally McLoon v. McLoon, 220 Ga. 18(2b), 136 S.E.2d 740 (1964). There was adequate proof of tender, which was, in any event, either waived by McClure, Good v. Tri-Cep, Inc., 248 Ga. 684(2), 285 S.E.2d 527 (1982), or vitiated by its conditional nature. Cotton States Mut. Ins. Co. v. McFather, 255 Ga. 13, 334 S.E.2d 673 (1985). And, there is evidentiary support for the amount of the attorney-fee award. See I.M.C. Motor Express, Inc. v. Cochran, 180 Ga.App. 232(1), 348 S.E.2d 750 (1986); Altamaha, etc., Center v. Godwin, 137 Ga.App. 394(2), 224 S.E.2d 76 (1976). Cf. Price v. Mitchell, 154 Ga.App. 523(6), 268 S.E.2d 743 (1980) and cits. ²

2. OCGA § 5-6-35(a)(6) requires an application for discretionary appeal "when there is an action for damages and the result is a judgment of $2,500 or less. See City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986)." Brown v. Assoc. Fin., etc., Corp., 255 Ga. 457, 339 S.E.2d 590 (1986).

We have held, however, that under the Appellate Practice Act, an appeal which, standing alone, would be subject to discretionary-appeal procedures, is appealable as a matter of right if it is classifiable as a cross appeal to an appealable order. OCGA § 5-6-34(c); Brown v. Assoc. Fin., etc., Corp., supra; Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980); Executive Jet Sales v. Jet America, 242 Ga. 307, 248 S.E.2d 676 (1978).

In Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317, 380 S.E.2d 704 (1989), we have recently held, in a case involving multiple parties, that a party can file a cross appeal against another party who is not an appellant in the main appeal.

In so holding, we reversed Sandner, Inc. v. Centennial Ins. Co., 189 Ga.App. 277, 375 S.E.2d 611 (1988), in which the Court of Appeals, in an en-banc decision, and in reliance upon Glennville Wood, etc., Co. v. Riddlespur, 156 Ga.App. 578(1), 276 S.E.2d 248 (1980), had reached the opposite conclusion.

Although it is argued here that McClure is not a party to Gower's appeal of the judgment entered against WGBA, OCGA § 5-6-37 states that "all parties to the proceedings in the lower court shall be parties on appeal." See Munday v. Brissette, 113 Ga.App. 147, 150(1), 148 S.E.2d 55 (1966), rev'd on other grounds sub nom., Brissette v. Munday, 222 Ga. 162, 149 S.E.2d 110 (1966).

However, OCGA § 5-6-38(a) provides that, in lieu of filing a cross appeal, "the appellee may at his option file an independent appeal." In this case, Gower did file an independent appeal in the Court of Appeals, presumably because the extant decisional authority at the time he filed that appeal did mandate that he follow such procedure. ³

In any event, the rationale underlying the previously-cited decisions is that it is the intention of the Appellate Practice Act that it

be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in [the Act].

OCGA § 5-6-30. See Holcomb v. Gray, 234 Ga. 7, 214 S.E.2d 512 (1975). See also OCGA §§ 5-6-37, 5-6-38, and 5-6-48(b) and (d).

And, our state appellate-court operating procedures dictate that whenever an appeal docketed in one appellate court is found to be within the jurisdiction of the other appellate court, it shall be transferred rather than dismissed.

With this in mind, we hold that Gower's appeal is properly before us as a cross appeal to McClure's appeal and, thus, should be decided on its merits.

3. OCGA § 51-12-5.1 was enacted as § 5 of the Tort Reform Act of 1987, which sets forth substantive and procedural rules to govern punitive-damage awards in tort actions in this state. See also § 6 of the Act, amending OCGA § 51-12-6. ⁴ Subsection (a) of § 51-12-5.1 defines punitive damages, ⁵ and subsection (b) states the circumstances under which such damages are awardable. ⁶ Subsection (c) states that, "[p]unitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant."

Subsection (d) is divided into two paragraphs.

Paragraph (1) of subsection (d) provides, in pertinent part, that, "[i]n any case in which punitive damages are claimed, the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made."

Paragraph (2) provides:

If it is found that punitive damages are to be awarded, the trial shall immediately be recommenced in order to receive such evidence as is relevant to a decision regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case. It shall then be the duty of the trier of fact to set the amount to be awarded according to subsection (e), (f), or (g).... ⁷

During opening and closing argument at the initial phase of this trial, Gower's attorney was allowed to make a presentation to the jury as to why punitive damages should be awarded in this case. And, the trial judge gave instructions to the jury in regard to the reasons for awarding punitive damages and the circumstances under which such damages are awardable.

However, at the phase of the trial in which the amount of the...