The Higbee Company v. Damien Solomon

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 20, 2015
In the Court of Appeals of Georgia
A15A1176. THE HIGBEE COMPANY, et al. v. DAMIEN
SOLOMON.
BRANCH, Judge.
The Higbee Company and its codefendants appeal a punitive damages
judgment entered against them following a jury verdict for plaintiff Damien Solomon
in this false imprisonment and malicious prosecution case. The appellants contend
that punitive damages were not allowed under OCGA § 51-12-6 because Solomon’s
entire injury was to his peace, happiness, or feelings. We agree with the trial court
that the appellants waived this challenge, and we affirm.
Solomon was arrested and charged with shoplifting two pairs of jeans from a
Dillard’s department store. The charges were eventually nolle prossed for insufficient
evidence. Solomon brought a complaint for malicious prosecution, false
imprisonment, and punitive damages against The Higbee Company, which owned the
Dillard’s store;1 Securitas Security Services, USA, Inc., which provided security for
the store; and two employees of Dillard’s. For convenience, we will refer to the
defendants/appellants collectively as “Dillard’s.”
The case proceeded to a bifurcated trial, with the first part focusing on the
issues of liability, compensatory damages, and whether the conduct of Dillard’s
warranted an award of punitive damages. At the close of the evidence, Dillard’s
sought a directed verdict as to Solomon’s claim for punitive damages on the ground
that there was insufficient evidence from which the jury could conclude that Dillard’s
had acted in bad faith.2 Notably, Dillard’s did not argue that punitive damages were
categorically unavailable as a matter of law. The trial court denied the motion, finding
that “ultimately it is going to be up to a jury to decide.”
Following a charge conference, the court instructed the jury on compensatory
damages, as follows:
1
Solomon initially named Dillard’s as the defendant but later substituted The
Higbee Company as the correct party.
2
Dillard’s also sought a directed verdict as to Solomon’s underlying claims,
but those claims are not at issue in this appeal.
2
Damages are given as pay or compensation for injury done. When one
party is required to pay damages to another, the law seeks to ensure that
the damages awarded are fair to both parties. If you believe from a
preponderance of the evidence that the Plaintiff is entitled to recover,
you should award to the Plaintiff such sums as you believe are
reasonable and just in this case. In a tort action in which the entire injury
pertains to the peace, happiness, or feelings of the Plaintiff, no measure
of damages may be prescribed except the enlightened conscience of
impartial jurors. In determining the amount of such damage you would
consider all of the facts and circumstances of this case, as disclosed by
the evidence, and fix a sum as you think would be reasonable, fair and
just.
The court further charged the jury that punitive damages may be warranted in a tort
action if the plaintiff proved by clear and convincing evidence that the defendants’
actions showed, among other things, willful misconduct.3 Dillard’s did not object to
the jury charge on punitive damages.
The jury was given a two-part verdict form. The first part required it either to
find for Dillard’s, or to “find for the Plaintiff, and against the Defendant[s], and find
3
Although Solomon’s requests to charge were not included in the record, it
appears that he asked for the punitive damages charge. There was no discussion of
that charge during the charge conference and no indication that Dillard’s contested
it then.
3
that Plaintiff has suffered damages in the amount of $_____.” The second part,
labeled “Punitive Damages,” asked:
Do you, the Jury find by clear and convincing evidence that the
Defendants’ conduct showed willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care that would raise the
presumption of conscious indifference to consequences, so that punitive
damages should be awarded?
The verdict form did not ask the jury to determine the amount of punitive damages,
if any, at that point. Dillard’s agreed to the form.
After deliberating, the jury returned a verdict for Solomon and awarded him
$250,000 in compensatory damages. In addition, the jury checked the “yes” box in
answer to the question of whether punitive damages should be awarded. The court
then excused the jury to discuss with counsel the procedure for the punitive damages
phase of the trial. Toward the end of the discussion, counsel for Dillard’s stated:
“Inasmuch as the entire damages award to Plaintiff was to his peace and happiness,
. . . any award of punitive damages is duplicative and . . . [t]he jury can no longer
consider punitives in this case.” Solomon’s attorney conceded that “[t]here are no lost
wages or medical bills,” but argued that punitive damages were nevertheless
available. The trial court elected to proceed with the second phase of the trial and
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consider Dillard’s objection later. The jury then heard evidence and argument about
the financial circumstances of Dillard’s, after which it returned a punitive damages
verdict in the amount of $350,000. Dillard’s orally renewed its objection to the award
of punitive damages, but the court reserved ruling.
Dillard’s subsequently filed a written motion for new trial and for j. n. o. v.,
reiterating its argument that punitive damages were unavailable as a matter of law
because Solomon’s entire injury was to his peace, happiness, or feelings. The trial
court denied the motion, ruling that although this assessment of Solomon’s injury
“may be correct,” Dillard’s had waived its argument by not objecting to the first
verdict form and not making the argument until after the jury had already returned a
verdict finding that Solomon should be awarded punitive damages. This timely appeal
followed.
Dillard’s contends that the trial court erred by denying its motion for j. n. o. v.
or new trial because punitive damages were not available here as a matter of law.
Dillard’s relies upon OCGA § 51-12-6, which provides:
In a tort action in which the entire injury is to the peace, happiness, or
feelings of the plaintiff, no measure of damages can be prescribed except
the enlightened consciences of impartial jurors. In such an action,
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punitive damages under Code Section 51-12-5 or Code Section 51-12-
5.1 shall not be awarded.
Thus, where the only injury is to a plaintiff’s peace, happiness, or feelings, punitive
damages are not allowed and evidence of the defendant’s worldly circumstances is
not admissible. Holland v. Caviness, 292 Ga. 332, 337 (737 SE2d 669) (2013).
Assuming without deciding that Solomon’s entire injury was to his peace, happiness,
or feelings, we agree with the trial court that Dillard’s waived its objection to the
availability of punitive damages.
“In order to preserve a point of error for the consideration of an appellate court,
counsel must take exception to the alleged error at the earliest possible opportunity
in the progress of the case by a proper objection made a part of the record.” Womack
v. Johnson, 328 Ga. App. 543, 544-545 (1) (762 SE2d 428) (2014) (citation and
punctuation omitted; emphasis in original). An objection to a jury charge must be
asserted before the jury returns its verdict, or else it is waived. Vaughn v. Protective
Ins. Co., 243 Ga. App. 79, 81 (1) (532 SE2d 159) (2000); see also Milum v. Banks,
283 Ga. App. 864, 869 (1) (642 SE2d 892) (2007) (party could not complain on
appeal about an issue being submitted to the jury where he did not timely “object to
the issue going to the jury”). With respect to the verdict form, “[i]n the absence of a
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specific and timely objection, a party waives error relating to the manner in which
questions are submitted to the jury.” Milum, 283 Ga. App. at 870 (2) (citation and
punctuation omitted).
Although Dillard’s moved for a directed verdict on punitive damages at the
close of the evidence, the basis for its motion was that there was insufficient evidence
that it had acted in bad faith, not that punitive damages were unavailable as a matter
of law because Solomon’s entire injury was to his peace, happiness, or feelings.
Dillard’s did not object to the proposed punitive damages charge either before or after
the trial court gave it. It did not object beforehand to the bifurcated trial procedure
required in punitive damages cases. See OCGA § 51-12-5.1 (d). And it did not object
to the proposed verdict form providing for an award of punitive damages. Instead,
Dillard’s waited until after the jury had returned a verdict finding that Solomon
should receive punitive damages to protest that such damages were not available.
This belated protest was, in essence, a motion for judgment notwithstanding the jury’s
verdict that punitive damages were warranted – a motion Dillard’s orally renewed
after the jury’s verdict on the amount of punitive damages and eventually submitted
in written form.
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But a motion for j. n. o. v. must be based on grounds previously raised in a
motion for directed verdict. James E. Warren, M. D., P. C. v. Weber & Warren
Anesthesia Svcs, 272 Ga. App. 232, 234 (1) (612 SE2d 17) (2005). As noted,
Dillard’s did not seek a directed verdict on the ground that punitive damages were
unavailable as a matter of law because Solomon’s entire injury was to his peace,
happiness, or feelings. Accordingly, it was foreclosed from raising that argument in
its subsequent oral and written motions for j. n. o. v., and we cannot consider the
argument on appeal. Southern Land Title v. North Ga. Title, 270 Ga. App. 4, 7 (2)
(606 SE2d 43) (2004); see also Little v. Chesser, 256 Ga. App. 228, 231-233 (3) (568
SE2d 54) (2002) (defendant waived right to challenge punitive damages award –
despite plaintiff’s prior stipulation that such damages were not available – by failing
to raise it until after jury returned verdict of punitive damages).
Dillard’s argues that there was no waiver here for several reasons. First, it
maintains that Solomon’s punitive damages award constituted a double recovery, and
“a claim that a verdict was an impermissible double recovery as a matter of law”
cannot be waived. City of Roswell v. Bolton, 271 Ga. App. 1, 8 (5) (608 SE2d 659)
(2004) (citations omitted); but see Wolf Camera v. Royter, 253 Ga. App. 254, 260 (2)
(558 SE2d 797) (2002) (rejecting defendant’s argument that jury charge on punitive
8
damages in malicious prosecution case led to double recovery because “a defendant
cannot complain of a decision to which his conduct contributed”) (citations omitted).
This “double recovery” argument assumes that OCGA § 51-12-6 damages for injury
to the plaintiff’s peace, happiness, or feelings are a form of punitive damages. That
was true under the former version of the statute, which permitted the jury to consider
“the worldly circumstances of the parties” and “the amount of bad faith in the
transaction.” Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (2) (B) (216 SE2d
776) (1975) (citations and punctuations omitted). But the current version of OCGA
§ 51-12-6 does not permit the jury to consider such evidence; thus, the damages
awarded thereunder are not punitive in nature. Pampattiwar v. Hinson, 326 Ga. App.
163, 171-173 (3) (756 SE2d 246) (2014).4 It follows that the jury award in this case
did not constitute a double recovery.
4
The pre-1987 version of OCGA § 51-12-6 stated: “In a tort action in which
the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of
damages can be prescribed except the enlightened consciences of impartial jurors. In
such a case, the worldly circumstances of the parties, the amount of bad faith in the
transaction, and all the attendant facts should be weighed; and the verdict of the jury
should not be disturbed unless the court suspects bias or prejudice from its excess or
its inadequacy.” See Pampattiwar, 326 Ga. App. at 172 (3) (citation omitted;
emphasis in original).
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Second, Dillard’s contends for the first time in its appellate reply brief that its
alternative pleading of its written j. n. o. v. motion as a motion for new trial defeats
any waiver argument because “[t]he propriety of a new trial is not dependent on the
same grounds being previously raised in a motion for directed verdict.” “[T]his Court
will not consider arguments raised for the first time in a reply brief.” Barron v. Wells
Fargo Bank, 332 Ga. App. 180, 187 (4) (769 SE2d 830) (2015) (citations omitted).
In any event, the contention lacks merit. While arguments concerning the sufficiency
of the evidence may be raised in a motion for new trial, and subsequently on appeal,
even if the movant did not first seek a directed verdict on that ground, see Aldworth
Co. v. England, 281 Ga. 197, 198-201 (2) (637 SE2d 198) (2006), Dillard’s does not
ask us to review the sufficiency of the evidence; it asks us to answer the legal
question of whether Solomon was categorically foreclosed from an award of punitive
damages. Dillard’s could not avoid the requirement of making a timely objection
simply by labeling his motion as one for new trial. See Bryan v. Brown Childs Realty
Co., 252 Ga. App. 502, 506-507 (2) (556 SE2d 554) (2001) (legal argument in motion
for new trial was waived by party’s failure to make contemporaneous objection).
Finally, Dillard’s asserts that the trial court was bound by its prior concession
that Dillard’s had preserved its argument that the issue of punitive damages should
10
not have been submitted to the jury. When Dillard’s orally renewed its request for j.
n. o. v. after the jury returned its second verdict fixing the amount of punitive
damages, the following exchange occurred:
THE COURT: [T]hat is probably something that needs to be briefed.
[DEFENSE COUNSEL]: Yes, Judge.
THE COURT: And if there is law that says I’m wrong, then I will
certainly consider it. I’m not going to grant the motion at this time.
[DEFENSE COUNSEL]: We reserve the ruling.
THE COURT: You reserved it, preserved it, whatever else you need to
do, and you can file whatever . . . post-judgment motions that you deem
appropriate.
We decline to rule that this passing comment by the trial court, made in the context
of her observation that briefing was needed, constituted a final, binding ruling as to
whether Dillard’s had waived its argument.
Because Dillard’s waived the argument that it raises on appeal, we affirm the
award of punitive damages in this case.
Judgment affirmed. Andrews, P. J., concurs. Miller, J., concurs in judgment
only.
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