Norton v. Holcomb

• Decision Date: 16 July 2009
• Docket Number: No. A09A0091.,A09A0091.
• Citation: 682 S.E.2d 336,299 Ga. App. 207
• Parties: NORTON v. HOLCOMB.
• Court: Georgia Court of Appeals

682 S.E.2d 336

299 Ga. App. 207

NORTON v. HOLCOMB.

No. A09A0091.

Court of Appeals of Georgia.

July 16, 2009.

Certiorari Denied September 28, 2009.

William A. Neel Jr., Cartersville, for appellant.

Downey & Cleveland, George L. Welborn, Mary E. Priest, Marietta, for appellee.

ANDREWS, Presiding Judge.

We considered this case previously in Norton v. Holcomb, 285 Ga.App. 78, 646 S.E.2d 94 (2007), affirming the trial court's grant of summary judgment to the plaintiff, Vinnie Worley Holcomb, on her claim of intentional trespass against the defendant, Dirone C. Norton. We also affirmed the trial court's grant of summary judgment to Holcomb on Norton's counterclaim seeking to quiet title, condemnation of a private way, and damages for wrongful obstruction. Id. We remanded for further proceedings; at trial, a jury found for the plaintiff on all counts. On Holcomb's trespass claim, it awarded $5,000 nominal damages, $5,000 special damages for damage to real estate, and $5,000 general damages.¹ On Holcomb's claim for intentional infliction of emotional distress, the jury awarded $200,000. Holcomb also received attorney fees of $35,000 and punitive damages of $30,000.

On this appeal from the trial court's entry of judgment on the verdict, Norton argues that the trial court erred in (1) denying his motion for a judgment notwithstanding the verdict on the emotional distress claim; (2) awarding both punitive damages and emotional distress damages; (3) allowing an excessive damages award to stand; (4) making certain evidentiary rulings; (5) failing to give a complete damages charge; and (6) allowing the punitive damages award to stand. We agree with Norton as to the emotional distress claim but affirm in all other respects.

On appeal from a jury verdict, we affirm if any evidence supports the jury's verdict, construing the evidence in the light most favorable to the prevailing party. Ferman v. Bailey, 292 Ga.App. 288, 290(2), 664 S.E.2d 285 (2008). In order to prevail, Norton must show "that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought." (Citation and punctuation omitted.) Harrouk v. Fierman, 291 Ga.App. 818, 820(1), 662 S.E.2d 892 (2008). See also OCGA § 9-11-50(a); South Fulton Med. Center v. Poe, 224 Ga.App. 107, 108(1), 480 S.E.2d 40 (1996) (standards of review for directed verdict and judgment notwithstanding the verdict are the same).

So viewed, the evidence at trial showed that Holcomb inherited ten acres of undeveloped Pickens County property in 1996. Holcomb testified at deposition that Norton talked to her in July 2003 about wanting to cut a road through her property to reach property behind hers he wanted to buy. She responded that she "[didn't] want [her] property messed with."

Later in 2003, Norton bought almost 60 acres of landlocked property behind Holcomb's property. His deed of conveyance included no easement or right-of-way allowing him to cross Holcomb's property to get to his property, although he testified that an old road existed across Holcomb's property which he and the community had used for years. Norton returned to Holcomb and asked her to trade a piece of her property for a piece of his so he could put a road through, but she refused. He responded, "`Yeah, but I want that. I want yours.' He came down with his fist like that and says [sic]: `I want yours, and I can go right through the middle of it with a bulldozer.'" Holcomb thought that this "was ridiculous and not the truth. You know, I just never thought about it. I thought he was being funny about it."

Norton came to Holcomb's house twice for the purpose of obtaining access to the land, but did not succeed in seeing her. On the second occasion, Holcomb told her son-in-law to tell Norton to leave her alone. When the son-in-law talked to Norton on Holcomb's porch, Norton said he was going to get access through Holcomb's property one way or the other, shook his paperwork, and said he would see them in court.

In August or September 2003, Norton came to the house of Holcomb's daughter and son-in-law, who lived next door to Holcomb, with a stack of papers. Norton "started off calmly," but then flung his papers at the daughter and said, "`[Y]ou have got to get your mother—you have to get your mother to give me that acre of land.'" The daughter's husband then came out and told Norton to leave Holcomb alone. Norton then threatened to "take a bulldozer" through the property and that "it will all be over with and done before [Holcomb] even knows anything about it."

In June 2004, Norton contracted with a timber company to sell some trees on his property, intending to use Holcomb's property to gain access to his property. The timber company's contracting officer testified that he thought his company was traversing an old road bed, not Holcomb's private property, which it cleared so its larger vehicles could get in. Norton testified he consulted a lawyer who advised him he could use the old roadbed as long as he did not widen it beyond 20 feet, although the lawyer testified otherwise. The lawyer testified, however, that he told Norton about a similar situation in which one party cut a road through the other party's property and a lawsuit resulted.

The timber company hired a construction company to clear a road through Holcomb's property, and on June 7, 2004, the construction company did so, bulldozing more than 30 trees and cutting through the roots of 30 more to create an 18-foot-wide roadway. It pushed the trees clear of the road and left them lying on Holcomb's property, as directed by Norton. No silt fence or erosion control measures were installed. A short time later, Holcomb called her son-in-law and said she had been told there was a bulldozer on her property. He went to the site and saw Norton standing on the roadway that had been cut through Holcomb's woods. When asked what he was doing, Norton told the son-in-law to talk to Norton's lawyer, who had advised him he could cut the road. The son-in-law then drove Holcomb to the edge of the property. She could see the first 50 or 60 feet of broken trees pushed off the side into her woods and a dirt path scraped clean by the bulldozers. The son-in-law thought Holcomb "seemed to be extremely upset about it."

Shortly after the road was cut through Holcomb's property, her daughter and son-in-law strung barbed wire across it, hung a "Keep Out" sign on the wire, and put up signs reading "Posted No Trespassing." The timber company returned the next week and, under Norton's direction, removed the signs and barbed wire and began moving heavy equipment across Norton's property. Her daughter loaded Holcomb and her portable oxygen tank into the car and they went to the property to check on it. Trees had been removed from Norton's property but the timber company had already left by the time Holcomb had arrived.

Norton saw the barbed wire and signs posted by Holcomb's daughter and son-in-law but directed the timber company to remove them and proceed anyway because he thought he had a right to use what he described as an old road bed. The timber company traversed Holcomb's property for nine to thirteen days until the deputy sheriff told them to remove their equipment or it would be impounded. Norton admitted that at least nine of those days were after Holcomb's son-in-law told him he was trespassing, and Norton also admitted he directed the timber company to ignore the posted no trespassing signs. After Norton was served with Holcomb's suit alleging trespass and other counts, he returned to Holcomb's property without permission and took pictures.

An arborist testified that Holcomb's property contained trees in good health averaging 30 years old, with the largest trees being 16 inches in diameter. A total of 31 trees had been uprooted to clear the path and more than 40 percent of the root systems of 32 more trees were destroyed. The total tree loss was valued at $15,066.

1. Norton contends that the trial court erred in denying his motion for judgment notwithstanding the verdict on Holcomb's claim for intentional infliction of emotional distress. We agree.

To succeed in a claim for intentional infliction of emotional distress, a plaintiff must prove the existence of intentional conduct that was extreme and outrageous, and causing severe emotional distress. Yarbray v. Southern Bell Tel. etc., Co., 261 Ga. 703, 706(2), 409 S.E.2d 835 (1991). "Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law." Id. In the absence of any physical impact to her person, a plaintiff seeking to recover for emotional distress must show that the conduct in question was directed at her. Ryckeley v. Callaway, 261 Ga. 828, 829, 412 S.E.2d 826 (1992).

Even assuming that Norton acted with animus, "malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff." Ryckeley v. Callaway, 267 Ga. at 829, 412 S.E.2d 826. Neither Norton's threat nor his later trespasses nor these taken together authorize Holcomb's claim for emotional distress. According to Holcomb's own testimony, Norton's threat made to her directly did not cause her any distress; instead, she found his assertions "ridiculous and not the truth.... I just never thought about it. I thought he was being funny about it." And Norton's later trespasses, for which the jury awarded compensatory and punitive damages, were not committed in her presence. The trial court thus erred when it denied Norton's motion for directed verdict concerning Holcomb's emotional distress claim. Id. (affirming trial court's grant of motion to dismiss plaintiffs' emotional distress claim arising from defendants' damaging of private burial ground).

2. Norton contends...