JONES v. PADGETT

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Docket Number

75500, 75501.

Attorney(S)

William F. Braziel, Jr., Robert P. Phillips III, for appellants. Alton D. Kitchings, for appellee.

Judges

CARLEY, Judge.

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Smart Summary

Factual and Procedural Background

Carlton Padgett sued Mr. and Mrs. William Jones, who did business as Jones Painting, alleging malicious interference with his business. A jury returned a verdict in Padgett's favor against both Mr. and Mrs. Jones, and judgment was entered on that verdict. The trial court later granted judgment notwithstanding the verdict (JNOV) in favor of Mrs. Jones but denied Mr. Jones's motion for JNOV or, alternatively, for a new trial. Mr. Jones appealed the judgment entered on the verdict (Case No. 75500). Padgett appealed the grant of JNOV in favor of Mrs. Jones (Case No. 75501). The appeals were consolidated for disposition.

Legal Issues Presented

Whether the trial court erred in granting JNOV for Mrs. Jones because of an alleged lack of evidence that she committed a tortious act or was vicariously liable.
Whether Padgett's appeal from the trial court's denial of attorney's fees under OCGA § 9-15-14 must be dismissed for failure to comply with OCGA § 5-6-35.
Whether the trial court erred in denying Mr. Jones's motion for new trial on the general grounds (i.e., whether the evidence demanded a verdict for Mr. Jones).
Whether the jury's award of nominal damages was excessive as a matter of law.
Whether the award of punitive damages against Mr. Jones was supported by sufficient evidence.
Whether the trial court erred by permitting impeachment of Mr. Jones after calling him as a witness.
Whether the trial court abused its discretion in denying two motions for mistrial.
Whether the jury instructions regarding character evidence were erroneous and, if so, whether any objection was preserved for appeal.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
City of Atlanta v. West, 160 Ga. App. 609, 611 (287 S.E.2d 558) (1981)	Standard for reviewing a motion for JNOV: whether the evidence demands a verdict for the movant.	Used to review the record and conclude that no evidence supported the verdict against Mrs. Jones, justifying JNOV.
City of Brunswick v. Todd, 255 Ga. 448 (339 S.E.2d 589) (1986)	Interpretation that OCGA § 5-6-35(a)(6) renders discretionary appeals for certain money judgments and applies to judgments of one cent through $2,500.	Compared to OCGA § 5-6-35(a)(10) to explain that appeals from awards under OCGA § 9-15-14 are discretionary and must be brought pursuant to OCGA § 5-6-35.
Martin v. Outz, 257 Ga. 211 (357 S.E.2d 91) (1987)	Procedural authority regarding appeals and compliance with OCGA § 5-6-35.	Cited generally to support dismissal of Padgett's appeal from the order denying attorney's fees for failure to comply with OCGA § 5-6-35.
Bodge v. Salesworld, Inc., 154 Ga. App. 65, 66 (267 S.E.2d 505) (1980)	Elements and definition of the tort of malicious interference with business, including malice and intent.	Referenced to state the elements the plaintiff must prove and to evaluate whether the evidence authorized the jury's verdict against Mr. Jones.
Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 272 (2) (329 S.E.2d 900) (1985)	Supporting authority on the tort of malicious interference.	Used as additional authority in discussing the tort's elements.
Ponce De Leon Condominiums v. DiGirolamo, 238 Ga. 188, 190 (3) (232 S.E.2d 62) (1977)	Definition and nature of nominal damages and standard for awarding punitive damages (wilful misconduct, malice, etc.).	Applied to uphold the jury's nominal damages award and to state the standard that justified punitive damages against Mr. Jones.
First Fed. Savings c. Assn. of Atlanta v. White, 168 Ga. App. 516, 517 (3) (309 S.E.2d 858) (1983)	Explains that "nominal damages" is a relative term and may vary widely.	Used to support the conclusion that the jury's nominal damages award was not excessive as a matter of law.
Krasner v. Lester, 130 Ga. App. 234 (1) (202 S.E.2d 693) (1973)	Permissible methods of impeaching witnesses once they are made subject to impeachment.	Supported the court's conclusion that appellee could impeach Mr. Jones after calling him as a witness under OCGA § 24-9-81.
Firestone Tire c. Co. v. King, 145 Ga. App. 840, 843 (2) (244 S.E.2d 905) (1978)	Trial judge's broad discretion in ruling on motions for mistrial; appellate review limited to abuse of that discretion.	Applied to uphold the trial court's denial of Mr. Jones's motions for mistrial as not an abuse of discretion.
Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109, 112 (6) (316 S.E.2d 554) (1984)	Additional support for the rule that mistrial rulings are within the trial court's broad discretion.	Used in conjunction with Firestone Tire to affirm denial of motions for mistrial.
Jeff Goolsby Homes Corp. v. Thomas, 181 Ga. App. 308, 310 (5) (352 S.E.2d 172) (1986)	Doctrine that failure to make a specific objection to a jury charge and the grounds when given the opportunity waives the right to raise it on appeal.	Applied to find appellant waived the challenge to the character-evidence portion of the jury charge and to affirm the charge as not blatantly or prejudicially erroneous.
Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 543 (2) (309 S.E.2d 816) (1983)	Supporting authority on waiver of objections to jury charges.	Used to reinforce the conclusion that the appellant waived the objection to the jury instructions.

Court's Reasoning and Analysis

Case No. 75501 (Padgett's appeal from grant of JNOV for Mrs. Jones): The court applied the JNOV standard—asking whether the evidence demanded a verdict for the movant (City of Atlanta v. West)—and reviewed the trial record. It determined that no evidence authorized the jury's verdict against Mrs. Jones and therefore the trial court properly granted JNOV. Regarding Padgett's separate enumeration challenging denial of attorney's fees under OCGA § 9-15-14, the court explained that appeals from such awards are discretionary under OCGA § 5-6-35(a)(10) and must be brought pursuant to that provision; relying on City of Brunswick v. Todd and Martin v. Outz, the court dismissed the appeal for noncompliance with OCGA § 5-6-35.

Case No. 75500 (Mr. Jones's appeal): The court reiterated the elements of the tort of malicious interference with business (Bodge; Preferred Risk) and concluded that, while the evidence did not demand a verdict for Mr. Jones, it was sufficient to authorize the jury to find each element in Padgett's favor—thus the denial of Mr. Jones's motion for new trial was proper. On nominal damages, the court applied authority explaining the nature of nominal damages (Ponce De Leon; First Fed. Savings) and held the jury's nominal award was not excessive as a matter of law. For punitive damages, the court applied the standard requiring wilful misconduct, malice, fraud, wantonness, oppression, or conscious indifference (Ponce De Leon) and found sufficient evidence to authorize punitive damages. The court upheld the trial court's allowance of impeachment after Padgett called Mr. Jones as a witness, citing OCGA § 24-9-81 and Krasner for permissible impeachment methods. It also found no abuse of discretion in the denial of two mistrial motions (Firestone Tire; Sepulvado). Finally, because appellant failed to make a specific objection to the character-evidence jury instructions when given the opportunity, the court found the objection waived and found no blatant or prejudicial error (Jeff Goolsby; Dept. of Transp.).

Holding and Implications

Judgment in Case No. 75500 affirmed. Judgment in Case No. 75501 affirmed as to the grant of judgment n.o.v. in favor of Mrs. Jones; appeal dismissed as to the denial of attorney's fees and expenses of litigation pursuant to OCGA § 9-15-14.

Direct consequences: The jury verdict and resulting judgment against Mr. Jones were affirmed; Mrs. Jones's JNOV was affirmed, relieving her of liability; Padgett's appeal of the denial of attorney's fees was dismissed for procedural noncompliance, leaving the denial intact. The opinion does not announce or establish a new legal precedent beyond its application of existing authorities.

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JONES v. PADGETT; and

CARLEY, Judge.

Alleging a malicious interference with his business, Carlton Padgett brought suit against Mr. and Mrs. William Jones d/b/a Jones Painting. The case was tried before a jury and a verdict in Padgett's favor against both Mr. and Mrs. Jones was returned. Judgment was entered on the verdict. As to Mrs. Jones, however, the trial court subsequently granted judgment n. o. v. As to Mr. Jones, the trial court denied his motion for judgment n. o. v. or, in the alternative, for new trial. In Case No. 75500, appellant-defendant Mr. Jones appeals from the judgment entered on the verdict in favor of appellee-plaintiff Padgett. In Case No. 75501, appellant-plaintiff Padgett appeals from the grant of judgment n. o. v. in favor of appellee-defendant Mrs. Jones. The two appeals are hereby consolidated for disposition in this single opinion.

Case No. 75501

1. We turn first to appellant-plaintiff Padgett's appeal from the grant of judgment n. o. v. in favor of appellee-defendant Mrs. Jones. The trial court granted judgment n. o. v. on the ground that appellant had produced no evidence that appellee had committed any tortious act of her own or that she was vicariously liable for any tortious act committed by her husband. Appellant enumerates this ruling as erroneous.

"`[I]n giving consideration to a motion for judgment notwithstanding the verdict ... [t]he question for determination is whether or not the evidence demands a verdict for movant [cits.], and if there is no evidence to support the verdict returned, denial of the motion is error. [Cit.]' [Cit.]" City of Atlanta v. West, 160 Ga. App. 609, 611 (2) ( 287 S.E.2d 558) (1981). Our review of the record reveals that there was no evidence produced at trial upon which the jury was authorized to return its verdict against appellee. Accordingly, the trial court did not err in granting her motion for judgment n. o. v.

2. Appellant further enumerates as error the trial court's denial of his motion for an award of attorney's fees under OCGA § 9-15-14"

OCGA § 5-6-35 (a) (10) provides that "[a]ppeals from awards of attorney's fees or expenses of litigation under Code Section 9-15-14" are discretionary appeals which must be brought pursuant to OCGA § 5-6-35. The "awards" which are made discretionary pursuant to OCGA § 5-6-35 (a) (10) are not otherwise limited by an amount of recovery and, therefore, an award which denies attorney's fees and expenses of litigation to a movant pursuant to OCGA § 9-15-14 is as much discretionary as an award which grants such relief to the movant. Compare City of Brunswick v. Todd, 255 Ga. 448 ( 339 S.E.2d 589) (1986), holding that the provision of OCGA § 5-6-35 (a) (6) which renders discretionary only those "[a]ppeals in all actions for damages in which the judgment is $2,500 or less" applies only to actions in which there is a money judgment "of one cent through $2,500." Accordingly, appellant's appeal from the order denying attorney's fees and expenses of litigation must be dismissed for failure to comply with the requirements of OCGA § 5-6-35. See generally Martin v. Outz, 257 Ga. 211 ( 357 S.E.2d 91) (1987).

Case No. 75500

3. Appellant-defendant Mr. Jones enumerates as error the denial of his motion for new trial on the general grounds.

"This state recognizes a cause of action where one maliciously and wrongfully, and with intent to injure, harms the business of another. [Cit.] "The act is malicious when the thing done is with the knowledge of the plaintiff's rights, and with the intent to interfere therewith.' [Cit.] `The essential thing is the intent to cause the result. If the actor does not have this intent, his conduct does not subject him to liability under this rule even if it has the unintended effect of deterring the third person from dealing with the other.' [Cit.]" Bodge v. Salesworld, Inc., 154 Ga. App. 65, 66 ( 267 S.E.2d 505) (1980). See also Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 272 (2) ( 329 S.E.2d 900) (1985). The evidence which appellee produced at trial did not demand a verdict against appellant. It was, however, sufficient to authorize the jury to find in favor of appellee as to each element of the tort of malicious interference with his business. Therefore, this enumeration is without merit.

4. Asserting that the award of nominal damages returned by the jury was excessive, appellant enumerates as error the entry of judgment on that award.

"`A recovery may be classified as coming under the definition of nominal damages where the violation of a right is shown, substantial damages claimed, and some actual loss proved, and yet the damages are not susceptible of reasonable certainty of proof as to their extent.' [Cit.] In such a case the jury's prerogative of fixing the amount of recovery of damages termed nominal will not be disturbed on appeal, except in extreme cases. [Cits.]" Ponce De Leon Condominiums v. DiGirolamo, 238 Ga. 188, 190 (3) ( 232 S.E.2d 62) (1977). "[I]in Georgia, the term `nominal damages' is `purely relative, and carries with it no suggestion of certainty as to amount ....' [Cit.] Instead of being restricted to a very small amount, the sum awarded as nominal damages may, according to circumstances, `vary almost indefinitely.' [Cit.]" First Fed. Savings c. Assn. of Atlanta v. White, 168 Ga. App. 516, 517 (3) ( 309 S.E.2d 858) (1983). Having reviewed the evidence produced at trial, we cannot find that the nominal damages which were awarded by the jury are excessive as a matter of law. Accordingly, this enumeration is without merit.

5. Appellant further enumerates as error the trial court's entry of judgment on the jury's award of punitive damages. The contention is that this award is without sufficient evidentiary support.

"`To authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.' [Cits.]" Ponce De Leon Condominiums v. DiGirolamo, supra at 189 (1). The evidence produced at trial was sufficient to authorize an award of punitive damages against appellant.

6. During its case-in-chief, appellee called appellant as a witness for the purpose of cross-examination and, thereafter, undertook to impeach him. The trial court's ruling that it was permissible to impeach appellant is enumerated as error.

OCGA § 24-9-81 provides, in pertinent part: "[I]n the trial of all civil cases, either plaintiff or defendant shall be permitted to make the opposite party ... a witness, with the privilege of subjecting such witness to a thorough and sifting examination and with the further privilege of impeachment, as if the witness had testified in his own behalf and were being cross-examined." The trial court did not err in permitting appellee to follow this procedure. While the authorized methods of impeaching witnesses are controlled by statute, once a witness is subject to impeachment, any of the statutorily sanctioned methods may be employed. See generally Krasner v. Lester, 130 Ga. App. 234 (1) ( 202 S.E.2d 693) (1973). This enumeration is without merit.

7. The trial court's denial of two of appellant's motions for mistrial is enumerated as error.

"`The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. [Cits.] Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.' [Cit.]" Firestone Tire c. Co. v. King, 145 Ga. App. 840, 843 (2) ( 244 S.E.2d 905) (1978). See also Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109, 112 (6) ( 316 S.E.2d 554) (1984). Our review of the record reveals no abuse of discretion by the trial court in denying either of appellant's motions for mistrial. Accordingly, these enumerations are without merit.

8. The jury instructions which were given by the trial court as to character evidence are enumerated as error. "Appellant failed to make specific [objection] to [this portion] of the jury charge and the grounds therefor when given the opportunity to do so, thus waiving [his] right to raise [it] on appeal. We find no blatant or prejudicial error in the charge and therefore affirm the trial court. [Cits.]" Jeff Goolsby Homes Corp. v. Thomas, 181 Ga. App. 308, 310 (5) ( 352 S.E.2d 172) (1986). See also Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 543 (2) ( 309 S.E.2d 816) (1983). This enumeration is without merit.

Judgment in Case No. 75500 affirmed. Judgment in Case No. 75501 affirmed as to the grant of judgment n. o. v. in favor of appellee and appeal dismissed as to the denial of appellant's motion for attorney's fees and expenses of litigation pursuant to OCGA § 9-15-14. Banke, P. J., and Benham, J., concur.