Carlin v. Fuller

Deen, Presiding Judge. On June 15, 1981, the appellee, Alta Mae Fuller, sold almost 519 acres of land to James Bland, who executed a promissory note and a deed to secure debt in favor of Fuller. The promissory note provided for a specific disposition of proceeds from the sale of any timber on the land. On February 16, 1982, Bland sold the property to the appellant, M. A. Carlin, who assumed the note and leased the property back to Bland. Subsequently, the house on the property burned, and the homeowner’s insurance carrier (on a policy purchased by Bland) paid $20,000 to Fuller instead of Bland under the standard mortgagee clause because of Bland’s misrepresentation of ownership at the time of the application. Carlin eventually commenced this action against Fuller seeking (1) a credit for the insurance proceeds against the note she assumed in purchasing the property; (2) injunctive relief requiring Fuller to consent to the cutting and sale of timber on the land; and (3) damages for conversion of a sugar cane mill that was removed from the property by Fuller’s husband. Fuller counterclaimed for $270 proceeds from the sale of timber on the property, and for damages for abusive litigation. The trial court granted summary judgment for Fuller on Carlin’s claims for the insurance proceeds and for consent to the harvesting of timber on the land, and this court affirmed that adjudication. Carlin v. Fuller, 189 Ga. App. 845 (377 SE2d 877) (1989). Subsequently, the trial court directed a verdict against Carlin on the conversion claim, and directed a verdict for Fuller on the claim for $270 proceeds from the sale of timber. The jury returned a $335,000 verdict for Fuller on the abusive litigation claim, and this appeal followed. Held: 1. When Fuller sold the land to James Bland, on the property there was a sugar cane mill placed in a shed which was attached to four posts in the ground. The Fullers testified that they had made it clear at the time of the sale that the purchase did not include the sugar cane mill, which belonged to Fuller’s husband. Bland denied that, and instead claimed that he only allowed Fuller’s husband to come on the land and use the sugar cane mill at his pleasure. After Bland sold the land to Carlin, Fuller’s husband removed the mill and sold it to an antiques dealer. The trial court properly directed verdict [55] for Fuller, on the basis that there was no evidence that Fuller, as opposed to her husband, had anything to do with the removal of the mill. Fuller’s testimony on cross-examination that she would not give her husband a hard time about it if he had wanted to sell something out on the property, did not establish an agency between Fuller and her husband. 2. The note held by Fuller provided that any proceeds from the cutting of timber on the land were to be applied against the amount due under the note. In 1983, Fuller’s husband discovered and stopped a sawmill crew cutting timber on the property. That sawmill consequently tendered a check for $270 to Fuller, made out to Fuller and Carlin as joint payees, to cover 6 cords of wood it had cut down. Fuller sent the check to Carlin, who never endorsed the check or returned it to Fuller because she thought the sawmill had cut down more than 6 cords. The evidence provided no defense to Fuller’s claim for the $270, and the trial court thus properly directed a verdict for Fuller on that claim. 3. In her counterclaim, Fuller originally sought $50,000 for damages to her peace of mind and wounded feelings, plus $10,000 for expenses of litigation. On the day of trial, Fuller sought leave to amend the counterclaim to increase the prayer for damages to $1 million, but the trial court considered it unconscionable to raise the demand at that time. Fuller also at that time elected to pursue damages for peace of mind and wounded feelings solely under OCGA § 51-12-6. At the close of the evidence, however, the trial court allowed the amendment to the counterclaim to remove any specific cap on the amount of damages sought. The end result was the $335,000 verdict for Fuller. OCGA § 51-12-6 provides that “[i]n 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, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be awarded.” During closing argument, Fuller’s counsel emphatically argued that Carlin “needs to be punished and penalized so that she won’t ever think about doing it again.” Counsel for Carlin objected that such argument improperly invited the jury to award punitive damages, and requested curative instructions, but the trial court overruled the objection. Fuller’s closing argument clearly asked for punitive damages, and this was improper. “It is, upon timely objection, error to decline to rebuke counsel and to give cautionary instructions to the jury. [Cits.] The gist of the error is that where the rebuke is not made or cautionary instructions given the improper argument goes with the apparent sanction of the court. [Cit.]” Howard v. Renfroe, 93 Ga. App. 59, 62 (90 SE2d 598) (1955). The trial court erred in not instructing the jury [56] accordingly, and given the size of the verdict we cannot say that the error was harmless. It is true, as the dissent points out, that during closing argument both parties engaged in developing a metaphor, with the parties as feuding children and the jury as the parent who bore the task of deciding which “child” was at fault and in need of discipline. But this metaphorical analysis, even though it literally referred to punishment, did not address the matter of punitive damages, the purpose of which is to compensate for wounded feelings or to deter the wrongdoer from repeating the trespass. OCGA § 51-12-5, generally; Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) (1975). The issue of punitive damages was not raised until counsel for Fuller declared that Carlin “needs to be punished and penalized so that she won’t ever think about doing it again.” There was nothing metaphorical about this argument, and counsel for Carlin promptly and properly objected. Consequently, contrary to the position of the dissent, Carlin did not “open the door” to this issue, and did not waive any objection to the impermissible request for punitive damages. 4. With regard to Carlin’s remaining enumerations of error, we find no reversible error. Judgment reversed. Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Carley, C. J., McMurray, P. J., and Beasley, J., dissent.