McClure v. Gower, s. S89A0149

• Court: Supreme Court of Georgia
• Writing for the Court: MARSHALL
• Citation: 259 Ga. 678,385 S.E.2d 271
• Parties: McCLURE v. GOWER et al. GOWER v. McCLURE et al. GOWER v. WGBA, INC., et al.
• Docket Number: Nos. S89A0149,S89X0344 and S89A0615,s. S89A0149
• Decision Date: 26 October 1989

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.

Page 272

[259 Ga. 684] 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.

[259 Ga. 678] 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.

[259 Ga. 679] 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

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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

[259 Ga. 680] 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

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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.

[259 Ga. 681] 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...