Trial Practice and Procedure - Matthew E. Cook, Terrance C. Sullivan, Jason Crawford, Leigh H. Martin, and Michael A. Eddings

• Publication year: 2002

Trial Practice and Procedureby Matthew E. Cook^* Terrance C. Sullivan^** Jason Crawford Leigh H. Martin^**** Michael A. Eddings^***** and Dustin T. Brown^******

I. Introduction

The recent survey period yielded a great number of decisions of interest and importance to practitioners trying and preparing cases for trial. This Article will analyze the recent judicial developments in the law relating to punitive damages, tort actions, sovereign immunity, venue, arbitration, professional negligence, and juror qualification, as well as other issues of import to the trial practitioner. This Article also impact trial practice.

II. Case Law

A. Damages

1. Punitive Damages: Appellate Review. An area of Georgia law of great interest to the trial practitioner during the survey period is damages. In an interesting about-face, within the span of exactly two months, the court of appeals in Kent v. White¹ declared the determination of punitive damages a question of law to be decided de novo by the appellate court and then overruled that finding in Time Warner Entertainment Co. v. Six Flags Over Georgia, L.L.C.,² making it once again a question of fact to be decided under an abuse of discretion standard, as it had forever been.

In both cases, the issue was whether a punitive damages award was excessive. In Kent the court found the award excessive, adopting a de novo standard of review of punitive damages and declaring the determination of punitive damages to be a question of law.³ As explained by the court, the reason for this decision stemmed not so much from an interpretation of the law—which up to that point stood for the exact opposite proposition—as from the procedural posture of the case.⁴

The punitive damages award had survived all the way to the Supreme Court of Georgia, but during the appeals process, the Supreme Court of the United States decided the cases of Time Warner Entertainment Co. v. Six Flags Over Georgia, L.L.C.⁵ and Cooper Industries, Inc. v. Leatherman Tool Group, Inc.⁶ In those cases, the nation's highest court held that the issue of whether a punitive damages award is so excessive that it violates federal Due Process or Equal Protection was a question of law for the appellate court to determine de novo.⁷ The Supreme Court also expressly held that the review of punitive damages for nonconstitutional reasons, for instance, to determine whether they are excessive as a matter of federal or state common law, would remain unaffected by the decision.⁸ In other words, the Supreme Court left the decision of whether punitive damages are excessive under state law to the states, whose courts are free to review such awards as questions of fact under an abuse of discretion standard.⁹

The Supreme Court of Georgia vacated the court of appeals decision in Kent and remanded it to the court of appeals for further consideration in light of the two cases decided by the United States Supreme Court.¹⁰ The court of appeals then interpreted the state supreme court's action as an implicit direction to change the common law standard for reviewing punitive damages to a de novo review of a question of law.¹¹ Accordingly, the court of appeals changed the standard.¹²

Just two months later, the Six Flags case made its way back from the United States Supreme Court to the Georgia Court of Appeals. In a stunning decision, only because of the rapid reversal of course, a full panel of the court of appeals voted unanimously to overrule the two-month-old precedent of Kent.¹³ The court stated 10-0 that just because a higher court remands a case to the court of appeals for determination in light of another case, that remand is not the equivalent of a direction to change the law.¹⁴ Because the United States Supreme Court required a de novo review of punitive damages as a matter of law only when the award is challenged on federal constitutional grounds, and because Georgia precedent has for nearly a century reviewed punitive damages as a question of fact subject to an abuse of discretion stan-dard,¹⁵ the court felt bound to follow controlling Georgia precedent on the state law issue.¹⁶ Defendant had not preserved the federal constitutional objection to punitive damages on appeal so a common law review under an abuse of discretion standard was appropriate.¹⁷

Some observations are worth making because of their significance to trial lawyers. First, how can the same issue—excessiveness of a punitive damages award—be a question of fact when analyzed under state law and a question of law when analyzed under the federal constitution? This dichotomy seems to have been crafted by the United States Supreme Court to avoid running afoul of the Seventh Amendment right to a jury trial.¹⁸ By defining the analysis of a punitive damages award under the federal constitution as a question of law, contrary to common sense and precedent older than the republic, the United States Supreme Court deftly avoided a troublesome Seventh Amendment issue.

The dichotomy assures that defendants faced with a punitive damages award will always assert constitutional claims, and indeed, the Authors believe those claims will become the focus of defense attacks on punitive damages. The straight-forward de novo analysis conducted by the court of appeals in dicta in Six Flags belies the judicial quagmire that the United States Supreme Court has imposed from on high. Making a properly preserved constitutional objection to a punitive damages award a question of law, thereby denying litigants' right to trial by jury on this issue, will open up every punitive damages award not merely to second-guessing, but potentially to wholesale revision and appellate court imposition of its will upon the parties. An appellate court buying either party's arguments now has the theoretical power to consider the parties' arguments and award any amount of punitive damages it deems required "as a matter of law."

The lesson for defense lawyers: always make and preserve your constitutional arguments to punitive damages. The lesson for plaintiffs' lawyers: load up the record with all your evidence supporting punitive damages and argue it all on appeal, including filing a cross-appeal asking the higher court to increase the award. When it was a question of fact, the only issue was whether the award was excessive; in the new era wherein the determination is one of law, the decision would seemingly be entirely up to the appellate court, which could raise or lower the award in making its determination "as a matter of law."

2. Punitive Damages: Trial Procedure and Evidence. During this survey period, the court of appeals underscored that in order to obtain punitive damages, a litigant must follow the dictates of the punitive damages statute precisely. The case is Conseco Finance Servicing Corp. v. Hill.¹⁹ In Hill plaintiff obtained a default judgment against defendant, and after a hearing on damages, the trial court, sitting as finder of fact, entered a judgment that included an award of punitive damages. Defendant appealed the award, and argued that the trial court failed to follow the punitive damages statute, section 51-12-5.1(d)(1)²⁰ of the Official Code of Georgia Annotated ("O.C.G.A.").²¹ The court of appeals agreed, reversing because the trial court failed to "'resolve from the evidence produced at trial whether an award of punitive damages shall be made. This finding shall be made specially through an appropriate form of verdict, along with the other required findings.'"²² While it is technically true that the trial court, sitting as the finder of fact, did not render its finding in "'an appropriate form of verdict,'" it must have resolved "'from the evidence produced at trial'" that " 'an award of punitive damages [should] be made.'"²³ Since when have trial courts, sitting as finders of fact, been required to render their judgments in a verdict form? The point of practice for plaintiffs' lawyers is to submit a verdict form on punitive damages no matter who is the trier of fact.

In Crane Bros. v. May,²⁴ the court of appeals established the principle that an employer responsible for punitive damages on a respondeat superior theory may introduce evidence of the employee's criminal punishment in mitigation.²⁵ The practical significance of this holding is that it grants beneficial arguments to both plaintiffs and defendants. Defendants, particularly vicariously responsible defendants, can argue that the employee has been punished and that the employer should not be. Plaintiffs can argue that if criminal punishment is admissible in mitigation, it should also be admissible to show that the punishment did not work.

3. Wrongful Death Damages and Apportionment. The court of appeals took the opportunity to develop the law of wrongful death damages this survey period in Stewart v. Bourn.²⁶ In Stewart the court was called upon to interpret the term "next of kin" in O.C.G.A. section51-4-5(a),²⁷ the Wrongful Death Statute.²⁸ The reason: the decedent died leaving behind no spouse, child, or parent; only four siblings and three children of two previously deceased siblings remained as heirs.²⁹ So, the question was simply, do the surviving four siblings divide the proceeds of the wrongful death action, excluding the children of the deceased siblings, or do the children of the deceased siblings "fill the shoes" of their deceased parent? The court held that the children of the deceased siblings fit the definition of "next of kin" under Georgia's law of descent and distribution, so they take per stirpes.³⁰

Finally, in Hall v. Bailey,³¹ the court of appeals upheld a common-sense trial court ruling apportioning ninety-five percent of a wrongful death award to the custodial mother of the decedent and five percent to the father.³² Georgia law allows the trial court to apportion such damages between divorced parents based on their respective relationships with the deceased child.³³ This decision provides solid authority for...