Trial Practice and Procedure - Terrance C. Sullivan, Jason Crawford, and Matthew E. Cook

• Publication year: 2001

Trial Practice and Procedure

Terrance C. Sullivan^* eJasoim Crawford^** and

Matthew E. Cook^***

I. Introduction

The recent survey period was most notable for the diversity of issues impacting trial practice and procedure. The appellate courts considered cases marking the culmination or continuation of evolving legal precedent from recent years, and they explored some seemingly new areas that may evolve and develop over the course of future surveys. This Article analyzes the recent judicial developments in the law relating to jury instructions, attorney fees and damages, actions against state entities, venue, pleading, judicial and collateral estoppel, and other issues of import to the trial practitioner. The authors also highlight the legislation passed by the General Assembly that will impact trial practice.

II. Case Law

A. Jury Instructions

If one mantra emerges, survey period after survey period, it would be for lawyers to state their objections to the court's jury charge early, often, and as many times as the court will tolerate. Once again, in Adams v. Metropolitan Atlanta Rapid Transit Authority,¹ the court of appeals admonished that counsel's failure to state a specific objection to a jury charge constituted a waiver under Official Code of Georgia Annotated ("O.C.G.A.") section 5-5-24(a),² and noted such objection can be made before the jury returns its verdict.³ An objection merely listing the charge not given is insufficient to preserve the error for review.⁴

The court of appeals in Adams noted, however, O.C.G.A. section 5-5-24(c) requires appellate review, regardless of whether a proper objection was made, if the charge contains a substantial error that is harmful as a matter of law.⁵ Adams involved a passenger suing a common carrier. The reviewing court found no error as a matter of law in the court's failure to define "extraordinary diligence" for the jury.⁶ While concluding the trial judge should define such technical words that persons untrained in the law may misunderstand, the court of appeals observed previous appellate decisions that found litigants had not been deprived of a fair trial when the court's charge did not define the terms "reasonable doubt," "corroboration," "accident," "spirituous liquors," "possession," and "maliciously."⁷

Counsel's duty to object clearly to charges was again emphasized in Thrash v. Rahn.⁸ The court in Thrash observed that evidence supporting a charge does not have to be direct evidence but may stem from a fair inference about the subject.⁹

After the sobering pronouncements in Adams and Thrash, the court in Golden Peanut Co. v. Bass¹⁰ was much more forgiving. One issue at stake was the trial court's failure to give a requested pattern charge.¹¹ The court discussed past appellate confusion regarding the difference between a refusal to give a charge and a failure to give a charge¹² and reviewed the seminal decision of Continental Casualty Co. v. Union Camp Corp.¹³ With eleven judges participating, the court decided that fifteen of its previous decisions, including Adams decided a mere five months earlier, had been incorrectly decided and should no longer be followed.¹⁴ In reversing the trial court for failing to give Golden Peanut's requested jury charge on accord and satisfaction, the full bench of the court of appeals opined the better practice to be followed by litigants and courts of this state would be to place one's reasoning for the requested charge in the record.¹⁵ Nonetheless, it is not necessary to have more than a perfunctory objection identifying the charge so the reviewing court can ascertain the grounds urged below.¹⁶ Golden Peanut's minimalist objection to the trial court's failure to submit a written request to charge was held to be adequate to preserve the objection according to Continental Casualty.¹⁷

B. Judgment Notwithstanding the Verdict

Experienced trial lawyers have long contended there is no difference in the standard applied to motions for directed verdict and motions for judgment notwithstanding the verdict ("j.n.o.v."), although obtaining relief postjudgment seems more difficult once the jury has spoken. Atlantic Coast Cable, Inc. v. Mallory,¹⁸ reiterated the movant's evidentiary burden, stating: '"A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.'"¹⁹ The court reversed the trial court's grant of j.n.o.v., finding the corporate veil had been pierced and an individual was liable for corporate debts because the individual abused the corporate form.²⁰

In a previous suit about a debt incurred for the laying of new cable, the corporate defendant consented to entry of judgment against it. Later, plaintiff sued the corporation's individual officers, Mallory and Watts, seeking to hold them personally liable. The jury found against both officers, and the trial court, having denied a directed verdict during the trial, granted j.n.o.v. after the verdict.²¹

Finding Mallory and Watts commingled personal funds with corporate funds, the appellate court concluded the corporate veil was pierced when parties disregarded the separateness of the legal entities.²² In Georgia, the rule has long been that confusing separate properties, records, or control of legal entities leads to problems in asserting corporate defenses. Because some facts supported the verdict, Mallory and Watts could not claim the evidence in their favor was plain, palpable, and indisputable.²³

In applying this "any evidence" test to the grant of j.n.o.v., the court of appeals in Ledee v. Devoe²⁴ affirmed the trial court's refusal to disturb the jury's findings, and concluded that denial of the motion was not error if there was evidence to support the verdict.²⁵ The facts of this case again demonstrate lawyer defendants carry a heavy burden, especially when their alleged negligence is compounded by dissembling.

Findley referred Bertha Devoe to Ledee to represent her in a premises liability case. Ledee presented himself as Devoe's attorney though he was not, nor ever was, licensed. In fact, Findley filed the claim, but not before he was disbarred. The underlying action was dismissed for want of prosecution. Devoe sued Ledee and Findley, and the jury awarded Devoe damages, including $100,000 in punitive damages.²⁶ The appellate court affirmed and found scienter to be present, supporting not only claims of professional negligence but also allegations of fraud and conspiracy.²⁷

The court of appeals reversed a partial grant of j.n.o.v. in Kraft v. Dalton.²⁸ The trial judge upheld plaintiff's award of general damages in a breach of contract case but granted j.n.o.v. on the claim for expenses of litigation against defendant.²⁹ The appellate court found a basis for the award of expenses of litigation, and yet again wrote, "'[j.n.o.v.] is properly granted only when there can be only one reasonable conclusion as to the proper judgment.'"³⁰

C. Attorney Fees and Damages

In Friedrich v. Fidelity National Bank,³¹ the court of appeals announced Georgia will follow the "percentage of the fund" rule³² in fixing the measure of attorney fees in class actions when the recovery results in a common fund.³³ The court in Friedrich looked to the Eleventh Circuit's opinion in Camden I Condominium Ass'n v. Dunkle³⁴ and concluded the "percentage of the fund" rule is preferable both to the lodestar³⁵ and twelve-factor test,³⁶ both of which make "the most heavily weighted criteria tin fixing a fee] the time and labor required."³⁷

The court rejected the lodestar approach, observing its undesirable effects on litigation.³⁸ The court found persuasive the criticisms that "the lodestar method 'encourages significant elements of inefficiency' [and gives] incentive to attorneys 'to spend as many hours as possible, billable to a firm's most expensive attorneys' [as well as] afford[ing] 'a strong incentive against early settlement since attorneys will earn more the longer a litigation lasts.'"³⁹ Because the twelve-factor approach focuses primarily on the hours invested by counsel, the court of appeals rejected it as well.⁴⁰ The court chose the "percentage of the fund" method because it more closely comports with goals developed "to encourage early settlement or determination of cases; to provide predictability . . . and to arrive at fee awards that are fair and equitable to the parties and that take into account the economic realities of the practice of law."⁴¹ Thus, "unless unusual circumstances would make its use unfair or impractical," the percentage of the fund method is to be applied in Georgia.⁴² To facilitate appellate review of common fund fee awards, the court gave some guidance to trial courts in setting the amount of recoverable attorney fees:

[W]hen awarding attorney fees in this type of case, a trial court must "articulate specific reasons for selecting the percentage upon which the . . . award is based." The trial court's order must identify all factors on which the court relied and explain how each factor affected the selection of the percentage awarded as attorney fees.⁴³

The court further instructed:

In Olariu v. Marrero,⁴⁶ the court of appeals considered whether medical expenses discharged in bankruptcy would constitute a collateral source payment. The court held such expenses were not collateral source payments, and, therefore, defendant was entitled to a set-off of such expenses against past medical expenses awarded by a jury.⁴⁷

In Olariu, plaintiff Marrero sought damages for personal injuries she sustained in an automobile collision with defendant Olariu.⁴⁸ The court concluded while "a reasonable argument can be made for treating debts discharged in bankruptcy as subject to the 'collateral source rule,'" two compelling reasons for authorizing a set-off exist.⁴⁹ First, "the effects of a bankruptcy do not constitute a...