Coen v. Aptean, Inc.

356 Ga.App. 468

847 S.E.2d 835

COEN

v.APTEAN, INC. et al.

A18A0522

Court of Appeals of Georgia.

August 25, 2020

Charles Madden Cork III, Timothy Fredericks Coen, for Appellant.

Matthew Blane Ames, Steven M. Collins, Rachel Frazier Gage, Richard L. Robbins, Alexa R. Ross, Atlanta, for Appellee.

Barnes, Presiding Judge.

Timothy F. Coen filed a renewal action against his former employer and several other defendants, asserting a claim for abusive litigation under OCGA § 51-7-80 et seq. and seeking, among other things, punitive damages. The trial court dismissed Coen's renewal action, and in Coen v. Aptean, Inc. , 346 Ga. App. 815, 816 S.E.2d 64 (2018), we affirmed in part and reversed in part the trial court's dismissal order. In Division 2 of our opinion, we affirmed the dismissal of Coen's request for punitive damages under OCGA § 51-12-5.1 on the ground that such damages were not available for a statutory abusive litigation claim. Id. at 823-824 (2), 816 S.E.2d 64. The Supreme Court of Georgia granted certiorari and reversed Division 2 of our opinion, concluding that OCGA § 51-7-83 (a) allows for the recovery of punitive damages in a statutory claim for abusive litigation not based solely on injured feelings. Coen v. Aptean, Inc. , 307 Ga. 826, 826-827 (4), 838 S.E.2d 860 (2020). The Supreme Court noted that the defendants raised alternative grounds for why punitive damages might not be available to Coen but declined to address them as outside its grant of certiorari, instead leaving those issues to be addressed by this Court on remand. Id. at 840-841 (5), 838 S.E.2d 860.

Now that the case is back before us on remand, we vacate Division 2 of our original opinion and adopt the Supreme Court's opinion as our own.¹ We now consider the defendants’ alternative arguments for why Coen could not seek punitive damages, and, for the reasons discussed below, we reject those arguments. We therefore reverse the trial court's dismissal order.

1. The CD Software Defendants² argue that Coen was not entitled to seek punitive damages in the current renewal action because he did not seek punitive damages in the original action that he filed against them. According to the CD Software Defendants, because Coen filed his renewal action for abusive litigation after the expiration of the applicable one-year statute of limitation,³ his renewal action must be substantially the same as his original action. And, the CD Software Defendants maintain, a new request for punitive damages would enlarge their potential liability beyond what was indicated in the original action such that Coen's renewal action would not be substantially the same as his original action. Consequently, they argue that the trial court's decision that Coen could not seek punitive damages from them should be affirmed under the right for any reason rule. See Worley v. Winter Constr. Co. , 304 Ga. App. 206, 208 (1), 695 S.E.2d 651 (2010) (dismissal of complaint will be affirmed if right for any reason). We are unpersuaded.

Georgia's renewal statute provides in pertinent part:

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later ....

OCGA § 9-2-61 (a).

"[A] properly filed renewal action stands on the same footing as the original action with respect to statutes of limitation. Accordingly, if a renewal action is properly filed within six months after dismissal of the original action, it remains viable even though the statute of limitation may have expired." (Citations and punctuation omitted.) Blier v. Greene , 263 Ga. App. 35, 36 (1) (a), 587 S.E.2d 190 (2003). "While a plaintiff's substantial rights or a defendant's liability cannot be enlarged in a renewal action, the renewal action need not be identical to the first one." Cushing v. Cohen , 323 Ga. App. 497, 507 (3), 746 S.E.2d 898 (2013). Rather "to be a good renewal of an original suit, so as to suspend the running of the statute of limitations under OCGA § 9-2-61, the new petition must be substantially the same both as to the cause of action and as to the essential parties." (Punctuation and emphasis omitted.) Baker v. GOSI Enterprises , 351 Ga. App. 484, 486, 830 S.E.2d 765 (2019), quoting Safi-Rafiq v. Balasubramaniam , 298 Ga. App. 274, 275, 679 S.E.2d 822 (2009). Thus, if a plaintiff files a renewal suit after the applicable limitations period has expired and adds "a new cause of action based on a new theory of recovery," "the renewal statute is inapplicable to save [the] claim from being time-barred." (Citation and punctuation omitted.) Auto-Owners Ins. Co. v. Hale Haven Properties , 346 Ga. App. 39, 48 (1) (b), 815 S.E.2d 574 (2018). See Baker , 351 Ga. App. at 489 (4), 830 S.E.2d 765 ; Safi-Rafiq , 298 Ga. App. at 276, 679 S.E.2d 822 ; Burns v. Dees , 252 Ga. App. 598, 607-608 (1) (d), 557 S.E.2d 32 (2001).

Coen filed the current action within six months after the dismissal of his original action against the CD Software Defendants,⁴ and he asserted claims for abusive litigation under OCGA § 51-7-80 et seq. in both actions. Because the causes of action in Coen's two lawsuits were substantially the same, the current suit was a "good renewal of [the] original suit" so as to suspend the one-year statute of limitation applicable in abusive litigation suits. Baker , 351 Ga. App. at 486, 830 S.E.2d 765, quoting Safi-Rafiq , 298 Ga. App. at 275, 679 S.E.2d 822. Coen's statutory abusive litigation claim asserted in the current renewal suit thus was not time-barred.

While the CD Software Defendants contend that Coen's new request for punitive damages in his renewal action was time-barred, the relevant inquiry is whether the causes of action asserted in the original and renewal suits were substantially the same. See Baker , 351 Ga. App. at 486, 830 S.E.2d 765 ; Safi-Rafiq , 298 Ga. App. at 275, 679 S.E.2d 822. And Coen's request for punitive damages was not a separate and independent cause of action. See Irvin Intl. v. Riverwood Intl. Corp. , 299 Ga. App. 633, 639 (3), n.17, 683 S.E.2d 158 (2009) (pointing out that "punitive damages ... flowing from a specific tort are not [an] independent cause[ ] of action") (citation omitted). See also Franklin Credit Mgmt. Corp. v. Friedenberg , 275 Ga. App. 236, 242 (2) (d), 620 S.E.2d 463 (2005) ("The law does not support the concept that pursuing each type of damages flowing from a specific tort is a separate and independent cause of action."). Rather, his request for punitive damages was derivative of his underlying substantive claim for abusive litigation. See Racette v. Bank of America, N.A. , 318 Ga. App. 171, 181 (6), 733 S.E.2d 457 (2012) ("An award of ... punitive damages is derivative of a plaintiff's substantive claims."). Consequently, Coen did not add a new cause of action based on a new theory of recovery by requesting punitive damages for the first time in the renewal suit. See Pratt Eng. & Machine Co. v. Trotti , 142 Ga. 401, 403, 83 S.E. 107 (1914) (amendment adding request for punitive damages "did not add a new and distinct cause of action"); Chitwood v. Stoner , 60 Ga. App. 599, 601, 4 S.E.2d 605 (1939) (amendment adding request for punitive damages did not "introduce a new cause of action [because such damages] inhered in and flowed from the same tort") (citation, punctuation, and emphasis omitted). Coen's request for punitive damages therefore was not time-barred. Compare Baker , 351 Ga. App. at 487-489 (1)-(4), 830 S.E.2d 765 (claims for breach of partnership agreement, breach of fiduciary duty, negligent misrepresentation, and promissory estoppel that were raised for first time in renewal suit, after applicable statutes of limitation had run, were properly dismissed by trial court); Auto-Owners Ins. Co. , 346 Ga. App. at 48 (1) (b), 815 S.E.2d 574 (statutory claim to enforce check, raised for first time in renewal suit after limitation period had expired, was time-barred because not substantially the same as breach-of-contract claim raised in original suit); Burns , 252 Ga. App. at 607–608 (1) (d), 557 S.E.2d 32 (claims for unjust enrichment and quantum meruit, asserted for first time in renewal suit after applicable limitation period had run, were time-barred because not substantially the same as claim for breach of contract and other claims asserted in original suit).

2. Defendant Gabriel Mendel likewise argues that Coen's request for punitive damages in his renewal action was properly dismissed by the trial court because Coen did not seek punitive damages in the original abusive litigation action that he filed against Mendel. Mendel's argument fails for the same reasons discussed supra in Division 1.

3. Lastly, Mendel contends that Coen's request for punitive damages was properly dismissed by the trial court because in his renewal complaint, Cohen also requested damages for injury to his peace, happiness, and feelings under OCGA § 51-12-6⁵ and alleged that those damages were his "sole injury." Because punitive damages sought under OCGA § 51-12-5.1 (b)⁶ are recoverable as part of a statutory abusive litigation claim only when the claim is not based solely on injured feelings, see Coen , 307 Ga. at 840 (4), 838 S.E.2d 860, Mendel argues that Coen's sworn allegations about his injured feelings show that he cannot recover punitive damages as a matter of law. We do not agree.

As our Supreme Court noted in Coen , "this case is still at the pleading stage." Coen , 307 Ga. at 841 (5), n. 20, 838 S.E.2d 860. And under Georgia's liberal pleading rules, Coen was entitled to set forth in his complaint two or more alternative statements of his abusive litigation claim. See OCGA § 9-11-8 (e) (2) ("A party may set forth two or more statements of a claim or...