Stroud v. Elias
Decision Date | 24 February 1981 |
Docket Number | No. 36727,36727 |
Citation | 247 Ga. 191,275 S.E.2d 46 |
Parties | STROUD v. ELIAS et al. |
Court | Georgia Supreme Court |
Wendell K. Willard, Harvey, Willard, Elliott & Olsen, Decatur, Jeffrey M. Smith and Richard L. Shackelford, Trotter, Bondurant, Miller & Hishon, Atlanta, for John Stroud, III.
Murry M. Silver, Atlanta, for Mary Elias et al.
This appeal arises on certiorari to the Court of Appeals to review an affirmance by that court pursuant to its Rule 36. See Stroud v. Elias, 155 Ga.App. 445, 271 S.E.2d 240 (1980).
Respondents filed suit against petitioner for the breach of a lease agreement alleging that petitioner had failed to deliver possession of the premises. Respondents prayed for actual and punitive damages as a result of petitioner's breach of contract.
Petitioner filed a timely answer and counterclaim. Respondents demanded a jury trial. Petitioner and his counsel inadvertently failed to appear at the trial, and his answer and counterclaim were stricken pursuant to respondents' motion to strike. Respondents presented their case on damages to a jury and were awarded $8,650 actual damages and $30,000 in punitive damages, the full amount of their prayer. This was made the judgment of the court. No transcript of this trial was made.
Petitioner filed a motion for new trial and a motion to set aside the judgment two days later. Following the denial of these motions, petitioner appealed directly to the Court of Appeals. The Court of Appeals affirmed the judgment without opinion.
The question we are concerned with on certiorari is whether a "new or additional claim for relief" as provided for in Code Ann. § 81A-105(a) can be raised at trial as an "issue" pursuant to Code Ann. § 81A-115(b) thus allowing an appellate court, without a transcript, to assume that evidence was offered at the trial authorizing the damages awarded by the jury.
At the heart of petitioner's argument is the following code section: "Exemplary damages can never be allowed in cases arising on contracts." Code Ann. § 20-1405.
Petitioner contends that respondents would have necessarily had to have made out a case in tort to recover punitive damages and that such additional or new tort claim would have had to have been served on him pursuant to Code Ann. § 81A-105(a) even though he was in default. We agree and reverse.
Code Ann. § 81A-105(a), requiring service of "new or additional claims" on a defendant in default is based on notions of fairness. 2 Moore's Federal Practice Para. 5.05, 1338. "Hence, if the defendant fails to appear and the plaintiff amends his complaint, by inserting a new or an additional claim for relief, a copy of the amended complaint must be served in the same manner as a summons." Id. (Emphasis added).
Code Ann. § 81A-115(b), would allow amendment of the pleadings to conform to the evidence presented at trial if an issue was tried by the express or implied consent of the parties. 3 Moore's Federal Practice Para. 15.13(2), 15-174-175. Accord, Carreras v. Austell Box Board Corp., 154 Ga.App. 135, 267 S.E.2d 792 (1980).
Absent express or implied consent to the trial of an issue not contained in the pleadings, an amendment must be served on the opposite party pursuant to Code Ann. § 81A-105(a). The question then becomes whether a defendant in default and not present at the trial of the case can be held to have "consented" to the amendment of the pleadings to conform to the evidence presented in his or her absence.
In Lambert v. Gilmer, 228 Ga. 774, 187 S.E.2d 855 (1972), wife had sued husband for divorce. Husband filed no defense. Wife was granted a divorce and alimony. This court upheld the dismissal of a contempt citation sought against husband for failure to pay alimony as provided by the default judgment. The opinion set out the provisions of Code Ann. § 81A-115(b) and § 81A-154(c), and held as follows: 228 Ga. at 775, 187 S.E.2d 855 (emphasis added). Lambert goes on to provide that the spirit of Code Ann. § 81A-105(a) requires that written notice be given a party in default before an additional claim can be demanded. The idea is that the defendant must be given his day in court as to each issue established by the complaint or an amendment thereto, but that his opportunity to litigate those specific issues may be lost by his default. See Robinson-Shamburger v. Tenney, 135 Ga.App. 131, 134, 217 S.E.2d 184 (1975).
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