Sam's Wholesale Club v. Riley, A99A1782.
Citation | 241 Ga. App. 693,527 S.E.2d 293 |
Decision Date | 30 December 1999 |
Docket Number | No. A99A1782.,A99A1782. |
Parties | SAM'S WHOLESALE CLUB v. RILEY. |
Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
McLain & Merritt, Anthony A. Rowell, Atlanta, for appellant.
John P. Batson, John J. Czura, Augusta, for appellee. BLACKBURN, Presiding Judge.
Sam's Wholesale Club (Sam's) appeals the trial court's denial of its motion to dismiss, motion to set aside, and motion to open default judgment. The issues on appeal concern whether: (1) this appeal is properly brought as a direct appeal; (2) Victoria Riley, in her suit against Sam's, named a proper party in the suit; (3) service was perfected; (4) the action fell within the exclusive remedy provisions of the Workers' Compensation Act; (5) the statute of limitation had expired; and (6) the trial court properly awarded compensatory damages after a bench trial. The trial court wrote a very thorough order including findings of fact and specific rulings on each of Sam's motions. After determining that the trial court's findings of fact are supported by the evidence, we have adopted much of the trial court's rendition.
(Citations and punctuation omitted.) Lyon v. State of Ga., 230 Ga.App. 264, 495 S.E.2d 899 (1998).
Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga.App. 641, 643(4), 507 S.E.2d 823 (1998).
On August 8, 1997, Riley filed the underlying complaint seeking compensatory and punitive damages for the defendant's alleged intentional infliction of emotional distress, assault, and attempts to commit physical injuries in violation of OCGA § 51-1-14. In her complaint, Riley named "Sam's Wholesale Club" as the defendant. On August 15, 1997, Deputy Bill Morgan of the Richmond County Sheriff's Department served the complaint and summons on a manager of Sam's, Tom Fernandez.1 After Sam's failed to file an answer or other entry of appearance for over 90 days, Riley moved for a default judgment, which the trial court granted by order dated November 17, 1997.
On December 11, 1997, a bench trial was held on the issue of damages. The trial court bifurcated the issues of compensatory and punitive damages pursuant to OCGA § 51-12-5.1(d). Although the hearing was not recorded, the trial court outlined its procedure in its order as follows:
The [trial] Court, after hearing evidence on compensatory damages, found that actual and general damages had been proven and announced that they would be awarded to [Riley]. The [trial] Court did not state the amount of such award in open court or enter a written award of compensatory damages. The [trial] Court further determined that based on the evidence produced at trial that [Riley] had proven by clear and convincing evidence that [Sam's] actions showed willful misconduct, malice, fraud, wantonness, oppression or that entire want of care which would raise the presumption of conscious indifference to consequences and that an award of punitive damages should be made. The [trial] Court then received evidence on the issue of punitive damages hearing testimony from an expert economist as to [Sam's] net worth. Due to time constraints the punitive damage phase of the trial could not be completed and the [trial] Court recessed the trial. On February 23, 1998, the [trial] Court re-convened the trial on the issue of punitive damages, giving notice to [Sam's]. [Sam's] did appear on February 23, 1998, more than six months after service of the summons and complaint.
Upon its appearance, Sam's filed an answer, a motion to open default judgment, a motion to dismiss, a motion to set aside the judgment, a motion for trial, and a motion for continuance. On February 9, 1999, the trial court entered its orders. The trial court awarded Riley $750,000 in compensatory damages based upon Sam's actions of intentional infliction of emotional distress and sexual assault, by and through overt acts, with acquiescence and ratification by Sam's management and other employees. In its second order, the trial court denied Sam's motion to dismiss, motion to set aside, and motion to open default judgment. The trial court also denied Sam's motion for jury trial with regard to compensatory damages, but granted it with regard to punitive damages. This appeal followed. The issue of punitive damages remains pending below.
1. Initially, we must resolve Riley's motion to dismiss Sam's direct appeal. Sam's filed the instant direct appeal as well as applications for interlocutory and discretionary appeal. Sam's applications for appeal were denied. Sam's direct appeal is proper, despite the fact that a claim for punitive damages remains pending. Pursuant to OCGA § 9-11-54(b), a direct appeal is proper where the trial court specifically determines that its ruling on a claim is final and that there is no just reason for delay. In this case, the trial court made a final ruling with regard to compensatory damages and specifically found that there was no just reason for delay. Therefore, Riley's motion to dismiss Sam's direct appeal is denied.
2. The trial court did not abuse its discretion in denying Sam's motion to open the default. See K-Mart Corp. v. Hackett, 237 Ga.App. 127(1), 514 S.E.2d 884 (1999) ().
(a) Sam's contends that "Sam's Wholesale Club" is not a legal entity and that, therefore, Riley's action cannot be maintained. Sam's argues that "Sam's Wholesale Club" is not a corporation registered to do business in the State of Georgia. Sam's contends that the proper legal entity is "Wal-Mart Stores, Inc." or the trade name "Sam's Club No. 8115."
The trial court found that "Sam's Wholesale Club" was a trade name of Wal-Mart. Such determination is supported by evidence. Wal-Mart holds the exclusive federal trade name registration for "Sam's Wholesale Club." The members' identification cards issued by Sam's specifically gives membership privileges to "Sam's Wholesale Club." Additionally, the record is replete with evidence of Sam's referring to itself as "Sam's Club," "Sam's Wholesale Club," or "Sam's Wholesale Club # 8115."
(Punctuation omitted.) Crolley v. Haygood Contracting, 201 Ga.App. 700, 702(3), 411 S.E.2d 907 (1991). "A corporation conducting business in a trade name may sue or be sued in the trade name." John L. Hutcheson &c. Hosp. v. Oliver, 120 Ga.App. 547(1), 171 S.E.2d 649 (1969).
The trial court's determination that Sam's Wholesale Club is a trade name for Wal-Mart, Inc. d/b/a Sam's Wholesale Club No. 8115 is supported by evidence and, therefore, will not be reversed on appeal.
(b) Sam's contends that service was never perfected. Sam's argument that the deputy's...
To continue reading
Request your trial-
Monterrey Mexican Rest. of Wise v. Leon
...action of trover is maintainable") (citation and punctuation omitted). 7. (Citation and punctuation omitted.) Sam's Wholesale Club v. Riley, 241 Ga.App. 693, 527 S.E.2d 293 (1999). 8. (Citations and punctuation omitted.) Nabors v. Blanche Reeves Interiors, 139 Ga.App. 638(1), 229 S.E.2d 117......
-
Birch Prop. Partners, LLC v. Simpson
...direct appeal is because the trial court lawfully finalized the judgment as to the Simpsons’ complaint. Sam's Wholesale Club v. Riley , 241 Ga. App. 693, 695 (1), 527 S.E.2d 293 (1999). Relatedly, we reject Birch Properties’ argument that the trial court's "verdict" ran afoul of OCGA § 9-12......
-
Birch Prop. Partners v. Simpson
...... complaint. Sam's Wholesale Club v. Riley , 241. Ga.App. 693, 695 (1) (527 S.E.2d ......
-
Valdosta Hotel Properties, LLC v. White
...Veterans Transp., supra; Khawaja, supra; Abbott v. Gill, 197 Ga.App. 245, 398 S.E.2d 225 (1990). 21. Sam's Wholesale Club v. Riley, 241 Ga.App. 693, 696(2)(a), 527 S.E.2d 293 (1999). 22. Compare id. at 695-696, 527 S.E.2d 293 (plaintiff could maintain action against a defendant identified o......