Lead Opinion
After appellees Joann Peaks and Eric Jackson filed their complaint for false imprisonment, false arrest, slander, intentional infliction of emotional distress, loss of consortium, and bad faith against Drug Emporium, Inc. and Super Discount Markets d/b/a Cub Foods and both defendants were served with the summons and complaint, appellant Drug Emporium did not file a timely answer. Defendant Super Discount Markets filed its answer, but appellees dismissed the complaint against Super Discount Markets. On December 29, 1995, default judgment was entered against appellant.
Appellees pled in some 46 paragraphs the averred facts that set forth two theories of recovery that were ultimately presented to the
The complaint also averred that appellant’s employees did not merely report the felony but searched the premises of Cub Foods, twice falsely identified Peaks as the perpetrator, caused others to detain not only Peaks but also her husband, Jackson, and then had them taken to the manager’s office of appellant where they were detained while a second identification was made and a discussion took place about the arrest of Peaks. The complaint alleged that appellant “acted in bad faith, ha[s] been stubbornly litigious, and/or ha[s] caused plaintiffs unnecessary trouble and expense.” The complaint prayed “that plaintiff Joann Peaks be awarded punitive damages as a result of defendant Super Discount Market, Inc.’s wilful or grossly negligent conduct, which indicated a wanton disregard for the rights of plaintiff, in an amount not less than $500,000; that plaintiff Eric Jackson be awarded punitive damages as a result of defendant Super Discount Market, Inc.’s wilful or grossly negligent conduct, which indicated a wanton disregard for the rights of plaintiff, in an amount not less than $250,000; that plaintiff Joann Peaks be awarded punitive damages as a result of defendant Drug Emporium, Inc.’s wilful or grossly negligent conduct, which indicated a wanton disregard for the rights of plaintiff, in an amount not less than $500,000.”
The complaint alleged inter alia that the arrest of the plaintiffs was instigated and effectuated at the direction of employees of Drug Emporium, Inc. The body of the complaint, however, does not aver that the facts averred constitute aggravated circumstances authorizing the imposition of punitive damages under OCGA § 51-12-5.1 (b); that is, it is not averred in the body of the complaint that the facts alleged constituted “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”
On January 10, 1996, appellant filed its answer and moved to open the default. Attached to the motion to open default was the affidavit of Monique Jobs. The affidavit stated that she was the employee of C T Corporation Systems (“C T”) whose job it was to
The trial court heard the motion to open default on February 29, 1996. On June 11, 1996, the motion to open default was denied.
The suit came to jury trial on the issue of damages on June 11, 1996; a verdict was returned on June 14, 1996; and a judgment was entered on July 2, 1996, in the amount of $4,000 for necessary expenses, $82,000 for pain and suffering, $7,500 for loss of consortium, and $150,000 for punitive damages.
Although appellant filed its motion for new trial after oral argument on the motion, the trial court denied appellant’s new trial motion. Thereafter, appellant timely filed its notice of appeal. Held:
1. Appellant’s first enumeration of error is that the trial court erred in denying appellant’s motion to open default.
Appellant admitted receipt of the summons and complaint on September 5, 1995. Appellant then waited 117 days until after a default judgment was entered against it, before filing its motion to open the default under OCGA § 9-11-55. After the initial service, C T received additional subsequent pleadings for appellant, which were passed on to appellant and which appellant placed in its files without further inquiry as to the suit until it received the default judgment.
Where a defendant has been properly served and relies upon the insurer, the insurance agent, or counsel to file an answer timely, the failure of the defendant’s agent, counsel, or insurer is imputable to the defendant in determining the presence or absence of excusable neglect. See Pulliam v. Nichols,
The failure of the insurance agent to deliver the summons and complaint to the insurer and the failure of the defendant to check timely on the suit within the 45 days are omissions which the trial court, in its discretion, can find do not constitute “excusable neglect.” Conversely, the trial court in its discretion could have found that the case sub judice was an “appropriate case” to open default, but it did not.
The affidavit of the claims agent stated conclusions, not facts, upon which the trial judge could exercise sound discretion; the affidavit failed to set forth a “ ‘good and meritorious defense.’ ” Coleman v. Dairyland Ins. Co.,
The role of the appellate court, in reviewing a grant or denial of a motion to open default is the determination of whether all the conditions have been met and, if so, whether the trial court abused its discretion under the facts and circumstances. Majestic Homes v. Sierra Dev. Corp.,
2. Although the trial court did not abuse its discretion by denying Drug Emporium’s motion to open the default, this case is so procedurally and substantively defective that the judgment of the trial court awarding punitive damages cannot be affirmed. We cannot affirm an award of punitive damages in which the trial court declined to follow the procedures and standards now required by OCGA § 51-12-5.1, awarded punitive damages against appellant Drug Emporium to a party who did not pray for them, and charged the jury based on an outdated punitive damage Code section.
(a) Prejudicial error occurred in this case by the giving of an outdated charge on punitive damages consistent with the provisions of OCGA § 51-12-5. In charging the jury regarding the basis for an award of punitive damages, the court stated that “the jury may give additional damages either to deter the wrongdoer from repeating the
Appellant expressly objected to the trial court’s charge on punitive damages on the ground that the punitive damages statute had been changed. Appellant’s attorney specifically referred to the new statute, OCGA § 51-12-5.1, and stated that he had believed the court would charge portions of the new statute. The trial court responded: “I would have charged [the new statute] but [the plaintiff] wanted to insist on his position on the request he made. I gave it the way he wanted it.” Appellant’s exception clearly was sufficient to bring the issue to the trial court’s attention and preserve the issue for appeal. Appellant’s third enumeration of error on its face unequivocally is broad enough to assert this error to this Court. While appellant’s argument of this issue is not so apparent in its appellate brief, when viewed in its totality, we find that the argument advanced, although not a model to be followed,, did suffice to prevent this issue from being abandoned.
However, pretermitting whether appellant adequately preserved this question on appeal by taking a timely, adequate exception to the trial court’s charge of the old statute rather than the new statute and by sufficiently arguing this particular issue in its appellate brief, is the issue whether this was an error of such nature and magnitude as to constitute a plain error of which an appellate court can take notice sua sponte. It clearly is such. It is a general appellate rule that in “exceptional circumstances . . . appellate courts may, on their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” Kearney v. State,
The correct legal basis (as distinguished from the correct legal standard — an issue discussed in subsequent subdivisions in this opinion), which would support an award of punitive damages by the jury, was a substantial issue in these proceedings. It is beyond dispute that “ ‘the trial court has a duty, even in the absence of a request, to charge the jury the law as to every substantial and vital issue in the case. . . .’ [Cit.]” Agnew v. State,
(b) Secondly, although not enumerated as error or argued in Drug Emporium’s appellate brief, appellee Jackson is not entitled to punitive damages because the complaint’s prayer for relief contains no specific prayer for punitive damages (OCGA § 51-12-5.1 (d) (1)) on his behalf from Drug Emporium. Instead, his prayer for relief sought punitive damages only from a co-defendant who was dismissed from the case after Drug Emporium’s default. Therefore, he failed to meet
This error was not cured by the charge to the jury. At various times the charge discussed punitive damage awards to both appellees/plaintiffs for false arrest or false imprisonment but, at a later point, instructed the jury that appellee Jackson’s only claim was for loss of consortium. Because the charge to the jury was so misleading as to create a fair risk the jury would conclude that punitive damages could be awarded to both plaintiffs against Drug Emporium, because the verdict form was so ambiguous as to allow a lump sum award of punitive damages to both plaintiffs, and because the verdict and judgment on their face awarded punitive damages to both plaintiffs jointly, we cannot sever the punitive damages awarded Jackson from the punitive damages awarded Peaks. Therefore, the verdict and judgment are tainted and the judgment on punitive damages must be reversed. Reserve Life Ins. Co. v. Gay,
(c) In asserting that prejudicial error did not occur regarding the award of punitive damages, appellees rely substantially on the precedent of this Court in Hill v. Johnson,
In this case, because no evidence on liability for punitive damages was presented at the hearing, appellee Peaks’ entitlement to punitive damages depends solely upon the allegations in her complaint. As the complaint averred no viable claim for punitive dam
“A judgment by default properly entered against parties sui juris operates as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. Conclusions of law[ ] and facts not well pleaded and forced inferences are not admitted by a default judgment.” (Citations and punctuation omitted.) Stroud v. Elias,
In the case at bar there exists no separate count in the complaint for punitive damages, and particularly, there exists no averment that an award of punitive damages was merited under OCGA § 51-12-5.1. Thus, appellees cannot rely upon Hill, supra, to render harmless their failure to comply with the statutory requirements of OCGA § 51-12-5.1, particularly as to the higher standard of proof therein required to support an award of punitive damages. Hill did not hold that deviating from the procedures in OCGA § 51-12-5.1 was not error; Hill held that in that particular case it was harmless error. Moreover, Chrysler Credit Corp. v. Brown,
(d) Although the complaint contained allegations that Drug Emporium caused appellees’ false arrest, false imprisonment, slander, and intentional infliction of emotional distress, this case was submitted to the jury only on appellees’ claims of false arrest and false imprisonment. (The record does not reveal how or why the other allegations against Drug Emporium were removed from the jury’s consideration.) Therefore, it is wrong to conclude that punitive damages were authorized on one basis and then decide the amount of punitive damages to be awarded on another basis. This is particularly true when the allegations submitted to the jury regarding false imprisonment and false arrest do not allege facts sufficient to state a claim authorizing the award of punitive damages based only upon Drug Emporium’s default.
The complaint, which did not accompany the jury to the deliberations room, merely averred allegations of false arrest and false imprisonment, torts which in themselves have no element of malice.
Hence, the complaint does not authorize an award of punitive damages because there is no specific allegation that Drug Emporium’s actions showed wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. See OCGA § 51-12-5.1 (b). Further, nothing in the matters alleged authorized one to infer or conclude as a matter of fact (see Stroud v. Elias, supra at 193) that Drug Emporium’s actions róse to that level. The contention that Drug Emporium somehow satisfied the elements of the tort of intentional infliction of emotional distress is a conclusion of law that is not admitted by a default judgment. Id.
A default judgment only “operates as an admission, by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations.” (Citations and punctuation omitted.) Id. at 193 (1). Consequently, even excluding the fact that the trial court submitted the issue of damages solely as to appellees’ claims of false arrest and false imprisonment and appellee Jackson’s claim of loss of consortium, the default still does not support the award of punitive damages to the appellees. Notwithstanding that Drug Emporium’s default admitted each and every material allegation of the complaint except the amount of damages suffered by Peaks (Whitby v. Maloy,
3. Further, the statement in the prayer that appellee Peaks be awarded punitive damages because of Drug Emporium’s “wilful or grossly negligent conduct, which indicated a wanton disregard for
In another context, to state specifically special damages means that they must be pleaded with particularity. Signal Oil & Gas Co. v. Conway,
4. Moreover, we reject the contention that appellant’s mere failure .to move for a directed verdict or to strike the evidence, based upon a failure to prove aggravating circumstances by “clear and convincing evidence,” constituted an express waiver of this higher statutory standard of proof. Contrary to any implicit contention, Hill, supra, did not address this particular issue and did not so affirmatively hold. Likewise, the case of Floyd v. First Union Nat. Bank &c.,
5. Appellant took exception to the giving of both appellees’ Requests to Charge Nos. 4 arid 5 and to the charging remarks given by the trial court immediately following the giving of appellees/plaintiffs’ Request to Charge No. 5. In these charging remarks, the trial court emphasized that it was for the jury “to look at the evidence and make [its] determination” whether there exists evidence of the elements necessary to support an award of punitive damages. After re
This charge created a fair risk that the jury would believe they were compelled to award punitive damages to the appellees/plaintiffs, at least in some “nominal” amount. Thus, under the precedent of Foskey, supra, this charging error was not waived by a failure to take exception thereto. Further, it was of such nature as to bring them within the protective mantle of OCGA § 5-5-24 (c). Accordingly, this charging error was not waived on appeal, and it must, under the facts of this particular case, be presumed harmful. Foskey, supra; OCGA § 5-5-24 (c). As our Supreme Court recently held in Dept. of Transp. v. Davison Investment, supra at 570, “[w]e are unable to say that the erroneous charge, as vague as it was, could not have misled the jury.”
6. Wal-Mart Stores v. Forkner,
For these reasons, the judgment can be affirmed only on the condition that appellees/plaintiffs in error agree to strike therefrom the $150,000 punitive damage award within ten days from the date the remittitur of this Court is made the judgment of the trial court; otherwise, judgment is reversed in its entirety and the case remanded for a new trial. See generally Cullen v. Novak,
Judgment affirmed on condition.
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the majority’s Division 1 and respectfully dissent as to the remainder of the opinion.
1. OCGA § 51-12-5.1 (b) provides that where a “defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to the consequences,” the jury may consider additional damages “solely to punish, penalize, or deter a defendant,” under OCGA § 51-12-5.1 (c). Actions for “false imprisonment,” “false arrest,” “slander,” and “intentional infliction of emotional distress,” are all intentional torts which come under “willful misconduct,” “malice,” “wantonness,” or “entire want of care” and that authorize the jury to consider punitive damages.
Appellees chose to submit the case to the jury on the theories of false imprisonment and false arrest. “False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. “ ‘The restraint constituting a false imprisonment may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit, and it is sufficient if they operate upon the will of the person threatened and result in a reasonable fear of personal difficulty or personal injuries.’ ” Sinclair Refining Co. v. Meek,
“Wanton and wilful conduct differs from gross negligence. Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is so reckless or so charged with indifference to the consequences as to justify the jury in finding a wantonness in spirit to actual intent.” (Citations and punctuation omitted.) Hendon v. DeKalb County,
“False imprisonment is an intentional tort, not a tort of negligence.” Williams v. Smith,
By the default judgment, appellant is barred from showing that there was probable cause for the detention and arrest, and the complaint shows a complete absence of probable cause. “Malice may be inferred if‘defendant’s acts were wanton or were done with a reckless disregard for or conscious indifference to the rights of the plaintiff.’ Bowen v. Waters,
In the caption of Ga. L. 1987, pp. 915, 916, the General Assembly set out the purpose “to provide trial procedures for pleadings, evidentiary standards, findings of fact, and judgments for awards of punitive damages.” In Ga. L. 1987, pp. 917, 918, § 5, OCGA § 51-12-5.1 (d) (1), “[a]n award of punitive damages must be specifically prayed for in a complaint.” The act sets no pleading requirements other than “notice pleadings” for the complaint, i.e., pleadings which put the defendant on notice as to what damages will be sought. Punitive damages are not special damages within the meaning of OCGA § 9-11-9 (g); neither does it come within any of the other special pleading requirements. Instead, punitive damages are additional damages, which are limited by the provisions of OCGA § 51-12-5.1. The requirement that “[a]n award of punitive damages must be specifically prayed for in a complaint” must be read in pari materia with
In a default judgment, the aggravating factors under OCGA § 51-12-5.1 (b) have been deemed admitted; therefore, it is for the trier of fact, the jury in the case sub judice, to determine specifically if such damages are appropriate and to decide within the limits of the act how much to award. OCGA § 51-12-5.1 (d) (2); see generally Hill v. Johnson,
Unlike Clarke v. Cotton,
“[W]e pointed out that, in Georgia, the purpose of punitive dam
“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton. There is general agreement that, because it lacks this element, mere negligence is not enough, even though it is so extreme in degree as to be characterized as gross. Still less, of course, can such damages be charged against one who acts under an innocent mistake in engaging in conduct that nevertheless constitutes a tort.” (Citations and punctuation omitted.) Banks v. ICI Americas, supra at 610 (3), quoting Colonial Pipeline Co. v. Brown,
When a party is in default on an intentional tort which falls within the ambit of OCGA § 51-12-5.1 (b), the elements of punitive damages that must be proven by “clear and convincing evidence” are deemed admitted. However, the trier of fact still must make a specific determination from such admitted facts and circumstances as to whether or not punitive damages are appropriate. See Hill v. Johnson, supra at 824-825; Chrysler Credit Corp. v. Brown, supra at 656-657. In the case sub judice, the jury, by their action in separately filling out the space on the verdict form for punitive damages and inserting a specific award for punitive damages, made a specific finding thereby that “an award of punitive damages shall be made”; the jury’s actions satisfied OCGA § 51-12-5.1 (d) (1). Appellant failed to object at any time to such procedure or verdict form and waived any issue as to a procedure created for the defendant’s protection. See Hill v. Johnson, supra at 825; Shaw v. Ruiz, supra at 300-301.
The admitted facts of the complaint showed “[t]here was no
The provisions of OCGA § 51-12-5.1 set forth specific procedural requirements, i.e., that the standard of proof is clear and convincing evidence; that there must be a specific finding by the trier of fact of aggravating circumstances such as to warrant the imposition of punitive damages; and that there must be a bifurcation of the trial, with the trier of fact making findings of liability and as to some damages, prior to hearing evidence in aggravation. Such procedures are for the protection of the defendant and can be waived. However, nowhere in the record, either prior to the jury receiving the case or after the verdict was received but before the jury was dispersed, did counsel for appellant make any objection or motion before the trial court raising the issue of failure to follow the procedures of OCGA § 51-12-5.1. This enumeration of error was not raised at the trial and passed upon by the trial court in order to preserve it for appellate review. Thus, such issue was raised for the first time on appeal and is not appropriate for appellate review by this Court. Such issue is waived by failure to timely object. See Hill v. Johnson, supra at 825.
2. Appellant submitted no written request to charge on OCGA § 51-12-5.1. The trial court gave appellees’ Request to Charge No. 5, which embodied OCGA § 51-12-5 and which deviated from the principles of OCGA § 51-12-5.1 in stating that punitive damages are both to compensate for wounded feelings, as well as to deter the wrongdoer. The rest of the charge included language present in both statutes.
“Assuming without deciding that it is always error for the trial court not to comply exactly with the requirements of OCGA § 51-12-5.1 in a default judgment action ([cit.]), we find the failure to do so in this case was harmless error.” Hill v. Johnson, supra at 825. Appellant failed to show that the charge was harmful or to properly except to the charge as given so that the trial court could timely correct any harmful error. See Johnson v. State,
3. Appellant’s exception to Request to Charge No. 4 is based upon possible confusion to the jury with regard to pain and suffering and for loss of capacity to labor and earn money. However, the charge was a correct statement of the law. See Williams v. Vinson,
For reversal of a case based upon a jury charge or failure to charge, there must be a showing of harmful error, which causes such gross injustice that the question of whether the party has been deprived of a fair trial can fairly be raised. See Greenhill v. State,
Moreover, appellant’s exception to the charge did not set forth harmful error so that the trial court could correct any alleged error. The exception was so vague, indefinite, and lacking in specificity that it failed to point out any alleged error. Therefore, the exception was deficient. See Smaha v. Moore, supra; Stone v. Burell, supra; McGaha v. Kwon,