LAWRENCE v. DIRECT MORTGAGE LENDERS CORPORATION, 254 Ga. App. 672

Andrews, Presiding Judge. Direct Mortgage Lenders Corporation sued Rodney Lawrence alleging that he breached an agreement to lease a trailer, converted the trailer to his own use, and wrongfully obtained title to a truck from Direct Mortgage by presenting a bad check for the purchase price. After a bench trial, the trial court entered a judgment in favor of Direct Mortgage and against Lawrence in the amount of $1,500 as past due rent on the trailer claim; $30,750 on the truck claim; $1,800 in attorney fees pursuant to OCGA § 9-15-14 (b); and $50,000 in punitive damages.

On appeal Lawrence claims the trial court erred: (1) by refusing to continue the trial to permit him to conduct discovery; (2) by erroneously admitting parol evidence; (3) by awarding punitive damages; and (4) by awarding attorney fees. For the reasons set forth below, the judgment should be affirmed except for the award of attorney fees. 1. The trial court did not abuse its discretion by refusing to continue the trial to allow Lawrence to commence discovery.

Direct Mortgage filed its complaint on November 16, 2000, and Lawrence (represented by defense counsel) filed an answer and counterclaim on November 21, 2000. On January 9, 2001, Lawrence’s defense counsel filed a motion to withdraw as attorney of record on the basis that Lawrence had failed to pay attorney fees. The trial court granted the motion and allowed defense counsel to withdraw on January 25, 2001. On January 17, 2001, before defense counsel withdrew, Direct Mortgage served defense counsel with an amendment to the complaint adding the truck claim.

The case was subsequently placed on the trial calendar for trial on February 26, 2001. When the case was called for trial on February 26, Lawrence appeared represented by new defense counsel who told the court that he had met with Lawrence and reviewed the file for the first time ón February 25.

Defense counsel made an oral motion that the trial court continue the case so Lawrence could commence discovery in the case and argued that Lawrence had a right to conduct discovery within six months after filing his answer on November 21, 2000, pursuant to Uniform Superior Court Rule (USCR) 5.1 (as applicable in the state courts). The trial court denied the motion to continue the case for this purpose. It ruled that Lawrence had failed to diligently pursue any discovery, even after receiving notice of the trial date, and that the mobile nature of the assets at issue demanded a prompt trial.

Lawrence also objected to trying the claim raised in the amendment to the complaint on the basis that the amendment was not located in the court’s file prior to the call of the case. The record shows that the filed amendment had been misplaced by the trial court clerk, and the trial court allowed a copy of the amendment to be filed on the day of the trial to complete the record. Lawrence raised no objection in the trial court, and makes no claim in this appeal, that he did not receive proper notice of the amendment to the complaint.

The record shows that Lawrence’s first defense counsel was served with the amendment over a month prior to the trial date, and subsequent defense counsel who appeared for Lawrence at the call of the case indicated that he had reviewed the file and was aware of the amendment. Contrary to Lawrence’s argument, USCR 5.1 did not give him a right to conduct discovery for a six-month period of time after he filed his answer.

Rule 5.1 provides that: In order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within six months after the filing of the answer. At any time, the court, in its discretion, may extend, reopen or shorten the time to utilize the court’s compulsory process to compel discovery. This rule does not require that Lawrence be given six months in which to complete discovery. Alexander v. Macon-Bibb County Urban Dev.

Auth. &c., 257 Ga. 181, 184 (357 SE2d 62) (1987); Walton v. Datry, 185 Ga. App. 88, 90 (363 SE2d 295) (1987). Rather, the time for conducting discovery rests in the sound discretion of the trial court. “A trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown.” Woelper v. Piedmont Cotton Mills, 266 Ga. 472, 473 (1) (467 SE2d 517) (1996); Ambassador College v. Goetzke, 244 Ga. 322, 323 (260 SE2d 27) (1979).

In the present case, Lawrence made no effort to conduct discovery after he filed his answer on November 21, 2000, or after the amendment to the complaint was served, or after he was notified that the case had been placed on the court’s trial calendar. The first defense counsel withdrew because Lawrence failed to pay him, and Lawrence did not obtain and meet with his new defense counsel until the day before the case was set for trial.

Given Lawrence’s complete lack of diligence in failing to conduct any discovery prior to the trial date, we find the trial court did not abuse its discretion by denying the motion made at the start of the trial to continue the case so discovery could be commenced. Woelper, 266 Ga. at 473. 2. Lawrence waived his claim that the trial court erroneously admitted parol evidence by failing to make any objection when the evidence was introduced. Golden Peanut Co. v. Bass, 249 Ga. App. 224, 239 (547 SE2d 637) (2001). 3. There was evidence supporting the award of punitive damages, and the amount awarded was not excessive.

The original complaint included an allegation that Lawrence converted a trailer owned by Direct Mortgage and sought punitive damages for the conversion. In an amendment to the complaint, Direct Mortgage alleged that Lawrence purchased and obtained title to a truck from Direct Mortgage by presenting a bad check in the amount of $30,750. The amendment sought to recover $30,750 from Lawrence but did not allege a conversion or pray for punitive damages. In the judgment in favor of Direct Mortgage, the trial court made findings with respect to Lawrence’s conduct on the trailer claim and the truck claim.

The court found that “Defendant’s actions constituted wilful conversion” and awarded $50,000 in punitive damages. Although the judgment did not specify whether the conduct justifying the award of punitive damages related to the trailer claim or the truck claim, the trial court made clear in its oral pronouncement of judgment at the trial that it intended to award punitive damages solely on the conversion claim stated in the complaint which prayed for the award of those damages.

When the written judgment is read in conjunction with the court’s oral pronouncement of judgment, it is clear that punitive damages were awarded based on the trial court’s finding that Lawrence converted and refused to return the trailer to Direct Mortgage after he stopped paying the rent due. In the Interest of L. H., 242 Ga. App. 659, 660 (530 SE2d 753) (2000). The record shows that Lawrence came into possession of the trailer lawfully pursuant to his agreement to lease it from Direct Mortgage.

Where a defendant lawfully acquires, possession of the property at issue, there is no conversion in the absence of proof that the owner made a demand for possession and that the defendant wrongfully refused to deliver possession. Brooks v. Fincher, 150 Ga. App. 201, 203 (257 SE2d 326) (1979).

Direct Mortgage produced evidence showing that, after Lawrence failed to pay the rent due, it demanded that he return the trailer, that Lawrence refused to return the trailer despite several attempts by Direct Mortgage to take possession of it, and that Lawrence attempted to conceal the trailer and misrepresented the location of the trailer in an effort to frustrate repossession. Direct Mortgage eventually obtained possession of the trailer from Lawrence with the aid of the sheriff and an order from the trial court granting a writ of possession.

Because there was “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences,” the evidence was sufficient to support the award of punitive damages under OCGA § 51-12-5.1.

The trial court made a finding in compliance with OCGA § 51-12-5.1 (d) (1) that an award of punitive damages was justified, but it awarded $50,000 in punitive damages without complying with the procedural requirements of § 51-12-5.1 (d) (2) that it hold a bifurcated hearing to consider the amount of punitive damages to be awarded. Nevertheless, because no objection was raised to this deficiency in the trial court, the error was waived. Shaw v. Ruiz, 207 Ga. App. 299, 300 (428 SE2d 98) (1993); Wal-Mart Stores v. Forkner, 221 Ga. App. 209, 210 (471 SE2d 30) (1996).

Although the $50,000 in punitive damages awarded substantially exceeded the compensatory damages of $1,500 awarded on the trailer claim, the award was not excessive given the evidence of misconduct before the trial court. Punitive damages are not awarded based on the actual harm caused, but to punish reprehensible conduct and deter its occurrence in the future. Hosp. Auth. of Gwinnett County v.

Jones, 259 Ga. 759, 761-766 (386 SE2d 120) (1989). “Because deterrence is based on factors other than the actual harm caused, we have rejected the notion that punitive damages must necessarily bear some relationship to the actual damages awarded by the [court].” (Emphasis omitted.) Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614 (1) (409 SE2d 501) (1991). The trial court did not abuse its discretion in awarding punitive damages in the amount of $50,000. Hosp. Auth. of Gwinnett County, 259 Ga. at 766; Moody v. Dykes, 269 Ga. 217, 221-222 (496 SE2d 907) (1998); Time Warner Entertainment Co. v.

Six Flags Over Ga., 254 Ga. App. 598, 599 (2) (563 SE2d 178) (2002). 4. The trial court also awarded Direct Mortgage $1,800 in attorney fees pursuant to OCGA § 9-15-14 (

b) based on the court’s finding that there was no substantial justification for Lawrence’s defense to the claim asserted in the amended complaint that he obtained title to the truck by presenting a bad check. Evidence was presented that Direct Mortgage incurred attorney fees in the amount of $1,800 for prosecution of the entire case. Although the trial court did not abuse its discretion in awarding attorney fees in some amount pursuant to § 9-15-14 (b) (Haggard v.

Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (360 SE2d 566) (1987)), Direct Mortgage was only entitled to attorney fees attributable to the conduct that the trial court found justified the award. Accordingly, we reverse the attorney fees award and remand the case to the trial court for a hearing to allow Direct Mortgage to establish what portion of the $1,800 in attorney fees it expended on the entire case was attributable to the successful truck claim asserted in the amendment to the complaint. Duncan v. Cropsey, 210 Ga. App. 814, 815-816 (437 SE2d 787) (1993).

Judgment affirmed in part, reversed in part and case remanded with directions. Johnson, R J, Ruffin, Miller and Ellington, JJ., concur. Eldridge and Phipps, JJ., dissent. The trial court took judicial notice of the writ of possession it granted in the case and the sworn statements contained in the request for the writ. Whether the award of punitive damages was excessive under the Due Process Clause of the Fourteenth Amendment to the United States Constitution was not raised as an issue in this case.

Accordingly, there is no need to address whether the award conforms with the substantive standards for determining compliance with federal due process set forth in BMW of North America v. Gore, 517 U. S. 559 (116 SC 1589, 134 LE2d 809) (1996). Cooper Indus. v. Leatherman Tool Group, 532 U. S. 424, 433, n. 7 (121 SC 1678, 149 LE2d 674) (2001); Brouming-Ferris Indus. &c. v. Kelco Disposal, 492 U. S. 257, 276-277 (109 SC 2909, 106 LE2d 219) (1989). Nor do we apply the de novo standard of review required for appellate review of the federal due process issue by Cooper Indus., 532 U. S. at 430-434.

Since no federal constitutional due process issue was raised, state standards apply to determine the validity of the award, and the standard for appellate review of the award for excessiveness under state common law is whether the trial court abused its discretion. Hosp. Auth. of Gwinnett County, 259 Ga. at 766; Cooper Indus., 532 U. S. at 433-434; Time Warner, 254 Ga. App. at 601 (2) (a) (ii).