Time Warner Entertainment Co. v. Six Flags Over Georgia

• Citation: 254 Ga. App. 598,563 S.E.2d 178
• Decision Date: 29 March 2002
• Docket Number: No. A00A0120.,A00A0120.
• Parties: TIME WARNER ENTERTAINMENT COMPANY, L.P. et al. v. SIX FLAGS OVER GEORGIA, LLC et al.
• Court: United States Court of Appeals (Georgia)

563 S.E.2d 178

254 Ga. App. 598

TIME WARNER ENTERTAINMENT COMPANY, L.P. et al. v. SIX FLAGS OVER GEORGIA, LLC et al.

No. A00A0120.

Court of Appeals of Georgia.

March 29, 2002.

Chandler & Britt, Walter M. Britt, Buford, Alston & Bird, Ronald L. Reid, Troutman Sanders, John J. Dalton, Atlanta, for appellants.

Butler, Wooten, Fryhofer, Daughtery & Sullivan, James E. Butler, Jr., George W. Fryhofer, III, Joel O. Wooten, Jr., Columbus, Bondurant, Mixson & Elmore, H. Lamar Mixson, Michael B. Terry, Joshua F. Thorpe, Atlanta, Davidson & Tucker, Gerald Davidson, Jr., Lawrenceville, for appellees. ELLINGTON, Judge.

This is the second appearance of this case before this Court. On July 13, 2000, we affirmed the jury's award of compensatory and punitive damages to appellees Six Flags Over Georgia, LLC ("Flags") and Six Flags Fund, Ltd., L.P. ("Fund"). Time Warner Entertainment Company v. Six Flags Over Ga., 245 Ga.App. 334, 537 S.E.2d 397 (2000) (" Time Warner").¹ On January 18, 2001, the Supreme Court of Georgia denied the petition for a writ of certiorari filed by appellants Time Warner Entertainment Company, L.P. ("TWE") and its subsidiaries Six Flags Over Georgia ("SFOG"), Six Flags Entertainment Corporation ("SFEC"), and Six Flags Theme Parks, Inc. ("SFTP"). Time Warner Entertainment Co. v. Six Flags Over Ga. (2001). However, on October 1, 2001, the United States Supreme Court granted certiorari, vacated our opinion, and remanded the case to us for further consideration in light of an opinion it issued on May 14, 2001, Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) ("Leatherman"). Time Warner Entertainment Co. v. Six Flags Over Ga., ___ U.S. ___, 122 S.Ct. 24, 151 L.Ed.2d 1 (2001). Upon remand, we redocketed this case and gave the parties an opportunity to brief and to orally argue the relevant issues.

1. Leatherman pertains only to our analysis of whether the award of punitive damages in this case was excessive. We addressed whether the award of punitive damages was excessive in Division 6(c) of our original opinion. Time Warner, 245 Ga. App. at 356-357(6), 537 S.E.2d 397(c). Therefore, with the exception of Division (6)(c), we hereby reinstate our original opinion, Time Warner, 245 Ga.App. at 334-357, 537 S.E.2d 397.

2. Review of Allegedly Excessive Punitive Damages Awards.

(a) The Standard of Review.

(i) Federal Constitutional Excessiveness Claims. Leatherman requires state and federal appellate courts to review de novo claims that punitive damages awards are grossly excessive in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Leatherman, 532 U.S. at 433-434,121 S.Ct. 1678. However, "[i]f no constitutional issue is raised, the role of the appellate court, at least in the federal system, is merely to review the trial court's `determination [on the excessiveness issue] under an abuse of discretion standard.'" Id. at 433, 121 S.Ct. 1678, citing Browning-Ferris Indus. v. Kelco Disposal, 492 U.S. 257, 279, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989); see also Foster v. Time Warner Entertainment Co., 250 F.3d 1189, 1194, n. 3 (8th Cir. 2001) ("Time Warner has not argued that the punitive damages award violated its right to due process which would require a de novo review of the denial of its motion [for new trial or remittitur]" under Leatherman). Further, if the federal constitutional claim is not raised in the court below, such arguments on appeal are "unavailing." Leatherman, 532 U.S. at 433, n. 7,121 S.Ct. 1678.

Because Leatherman applies only to excessive punitive damages claims raised under the federal constitution's due process clause, it does not reach excessiveness claims raised under state and federal common law. Thus, state and federal appellate courts remain free to review common law excessiveness claims under an abuse of discretion standard. See id.; Foster, 250 F.3d at 1194; Stroud v. Lints, 760 N.E.2d 1176, 1180(I) (Ind.App.2002) (following the U.S. Supreme Court's remand for reconsideration in light of Leatherman, the Indiana Court of Appeals concluded that since no federal constitutional claim was raised, it could review the common law excessiveness claim under an abuse of discretion standard).

As one scholar quipped, judicial review of excessive punitive damages awards "now comes in both common-law and constitutional flavors." Murphy, Punitive Damages, Explanatory Verdicts, and the Hard Look, 76 Wash. L.Rev. 995, 1014 (Oct.2001). Since Leatherman, many state and federal courts have recognized this federal due process/common law analytical split. For example, in July 2001, the Eleventh Circuit reviewed an award of both compensatory and punitive damages in a diversity action under an abuse of discretion standard. Middlebrooks v. Hillcrest Foods, 256 F.3d 1241, 1249(IV) (11th Cir.2001). Applying Georgia law to the common law excessiveness claim, the Eleventh Circuit noted that de novo review under Leatherman was not required because the appellant failed to argue that the punitive damages award violated its constitutional rights. Id. at 1249, n. 5. Although some state appellate courts have embraced Leatherman's de novo standard of review and applied it to all excessive punitive damages claims, e.g., Campbell v. State Farm &c. Auto. Ins. Co., 432 Utah Adv. Rep. 44, 2001 WL 1246676 (2001), other jurisdictions have declined to extend the standard's application beyond its federal due process bounds, e.g., Trinity Evangelical Lutheran Church v. Tower Ins. Co., 251 Wis.2d 212, 641 N.W.2d 504, (Wis.App.2002): Stroud v. Lints, 760 N.E.2d 1176 (Ind.App.2002); State Compensation Ins. Fund v. WPS, Inc., 2001 WL 1262100 (Oct. 22, 2001). The Supreme Court of Georgia has yet to enter this fray, so we proceed with caution.

In Kent v. A.O. White, Jr., Consulting Engineers, P.C., 249 Ga.App. 893, 553 S.E.2d 1 (2002), a panel of this Court assumed that the Supreme Court of Georgia "sub silentio" adopted Leatherman with respect to all excessive punitive damages award claims by virtue of an order remanding Kent to this Court. We are now convinced, however, that the remand order had no such implications. The Supreme Court of Georgia's remand order in that case, like the U.S. Supreme Court's remand order in this case, was a mandate to reconsider our opinion "in light of" Leatherman. Kent v. A.O. White, Jr., Consulting &c. (2001). The U.S. Supreme Court has recognized that such a "grant-vacate-remand" order ("GVR") is a deferential method of sending a case back to a lower tribunal so that it may reconsider its decision in light of an intervening legal event. See Lawrence v. Chater, 516 U.S. 163, 166-169, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996); see also Hoover v. Kiowa Tribe &c., 986 P.2d 516, 519 (Okla.1999) (Wilson, J., dissenting). As Justice Scalia explained, "we left it to the state court to decide the effect of the intervening event, rather than follow our usual practice of deciding that question for ourselves." Lawrence v. Chater, 516 U.S. at 179, 116 S.Ct. 604 (Scalia, J., dissenting). Also, the Supreme Court of Georgia, in Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 616-617, 409 S.E.2d 501 (1991), a punitive damages case that was "GVR'd" by the U.S. Supreme Court in light of new case law, distinguished the intervening case law and affirmed and reinstated its previous decision. Implicitly then, if a higher court remands a case to a lower court to decide an issue for itself, it logically follows that the higher court did not decide the issue pending before it. Therefore, to the extent Kent holds that the Supreme Court of Georgia, by virtue of its remand order, adopted the Leatherman standard of review with respect to all excessive punitive damages award claims, it is hereby overruled.

(ii) State Common Law Excessiveness Claims. Because Leatherman applies only to excessiveness claims raised under the due process clause of the federal constitution, precedent dictates that we must continue to review state common law claims under an abuse of discretion standard. Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 760-766(1)-(5), 386 S.E.2d 120 (1989), vacated, 499 U.S. 914, 111 S.Ct. 1298, 113 L.Ed.2d 234 (1991), reinstated, 261 Ga. 613, 409 S.E.2d 501, supra; see also Scott v. Battle, 249 Ga. App. 618, 621(3), 548 S.E.2d 124 (2001). The Supreme Court of Georgia explained in Hosp. Auth. of Gwinnett County v. Jones that the right to punitive damages derives from the common law. 259 Ga. at 764(5)(b), 386 S.E.2d 120; 261 Ga. at 616-617(2), 409 S.E.2d 501. This Court has also held that the right to punitive damages is "as old as the right of trial by jury itself," is a "well established principle of the common law," and "is not, as many seem to suppose, an innovation upon the rules of the common law." (Citations and punctuation omitted.) K-Mart Corp. v. Hackett, 237 Ga.App. 127, 132-133(2), 514 S.E.2d 884 (1999). Our deferential standard of review in punitive damages cases is, in fact, well over two centuries old and derives from the aptly named English common law case, Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (K.B.1763). See Seaboard Air-Line R. v. Miller, 5 Ga.App. 402, 405, 63 S.E. 299 (1908). The King's Bench in Huckle opined that "it is very dangerous for the judges to intermeddle in damages for torts; it must be a glaring case indeed of outrageous damages in a tort, and which all mankind at first blush must think so, to induce a court to grant a new trial for excessive damages." See Seaboard, 5 Ga. App. at 405, 63 S.E. 299, quoting Huckle. This principle underlies OCGA § 51-12-12(a), pertaining to court interference with damages awards generally: "The question of damages is ordinarily one for the jury; and the court should not interfere with the jury's verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with...