Sam's Wholesale Club v. Riley, A99A1782.

Citation241 Ga. App. 693,527 S.E.2d 293
Decision Date30 December 1999
Docket NumberNo. A99A1782.,A99A1782.
PartiesSAM'S WHOLESALE CLUB v. RILEY.
CourtUnited 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.

"Upon appellate review, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52(a). The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them." (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) ("sole function of an appellate court reviewing a trial court's denial of a motion to open default is to determine whether ... the trial court abused its discretion based on the facts peculiar to each case").

(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."

A corporation conducting business in a trade name may sue or be sued in the trade name.... A suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else. As a general rule the misnomer of a corporation in a notice, summons, notice by publication, garnishment citation, writ of certiorari, or other step in a judicial proceeding is immaterial if it appears that it could not have been, or was not, misled. Our own Georgia cases implicitly followed this rationale and do not hold that the existence of a mere misnomer authorizes one freely to ignore the fact that he has been served with legal process.
(Citations and punctuation omitted; emphasis in original.) Carrier Transicold Div. v. Southeast Appraisal Resource Assoc., 233 Ga.App. 176, 177, 504 S.E.2d 25 (1998).

"A trade name is merely a name assumed or used by a person recognized as a legal entity.... An undertaking by an individual in a fictitious or trade name is the obligation of the individual." (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...

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