TAYLOR, EXR. v. THE DEVEREUX FOUNDATION, INC. (And Vice Versa)

885 S.E.2d 671, 316 Ga. 44

• Court: Supreme Court of Georgia
• Decided: March 15, 2023
• Docket: S22A1060, S22X1061
• Status: Published

Opinion

316 Ga. 44 FINAL COPY

S22A1060, S22X1061. TAYLOR v. THE DEVEREUX FOUNDATION, INC. et al.; and vice versa.

WARREN, Justice.

This appeal and cross-appeal stem from the sexual assault of a

15-year-old girl, Tia McGee (whose interests are represented by Jo-

Ann Taylor, the executor of her estate), while McGee was living in a

behavioral health facility that was operated by the Devereux

Foundation (“Devereux”).1 The sexual assault was perpetrated by

Jimmy Singleterry, a Devereux employee who was charged with

supervising McGee and other girls in a cottage where they were

living at the Devereux facility. At trial, Devereux admitted that

“Devereux breached the legal duty of ordinary care owed to Tia

McGee for her safety from sexual assault and that the breach of

Devereux’s legal duty contributed to Jimmy Singleterry’s sexual

1 Although McGee initially filed suit, Taylor later replaced McGee as the

plaintiff, first as McGee’s conservator and then (following McGee’s death after the trial) as the executor of McGee’s estate. assault of Tia McGee.” The jury returned a verdict for $10,000,000

in compensatory damages, finding both Devereux and Singleterry,

the employee who assaulted McGee, at fault, and $50,000,000 in

punitive damages against Devereux. The trial court ultimately

reduced the jury’s punitive-damage award from $50,000,000 to

$250,000, consistent with the statutory cap on punitive damages

found in OCGA § 51-12-5.1 (g).

Taylor contends that OCGA § 51-12-5.1 (g) violates the rights

to trial by jury, separation of powers, and equal protection

guaranteed by the Georgia Constitution. As the party challenging

the constitutionality of a statute, Taylor has the burden to show that

there is a “clear and palpable” conflict between OCGA § 51-12-5.1

(g) and the Georgia Constitution, “and this Court must be clearly

satisfied of its unconstitutionality.” Barnhill v. Alford, 315 Ga. 304,

311 (882 SE2d 245) (2022) (citation and punctuation omitted). We

conclude that Taylor has not satisfied that burden here.

Following the framework this Court laid out in Atlanta

Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (691 SE2d 218)

2 (2010), and earlier cases addressing Georgia’s constitutional right to

trial by jury, we conclude that although Taylor’s claim for premises

liability would have been available in Georgia in 1798,2 and

although juries were authorized to award in certain instances

damages to punish the defendant and not merely to compensate the

plaintiff, Taylor has failed to show that a Georgia jury in 1798 was

authorized to award punitive damages for the kind of claim she

brought in 2017. Specifically, Taylor has failed to show that a jury

would have been authorized to award punishment damages for a

claim alleging that the defendant acted only with an “entire want of

care,” rather than for a claim alleging that the defendant engaged

in intentional misconduct. Thus, Taylor has failed to prove that the

punitive damages she seeks are within the scope of her Georgia

constitutional right to a jury trial.

We further conclude that the punitive damages cap contained

in OCGA § 51-12-5.1 (g) does not violate the separation of powers or

2 As we explain more below in Division III (a), 1798 is the date we have

historically used to evaluate the Georgia Constitution’s “inviolate” right to trial by jury. 3 equal protection guarantees in the Georgia Constitution. As a

result, we reject Taylor’s challenges to OCGA § 51-12-5.1 (g) under

the Georgia Constitution and affirm the trial court’s application of

OCGA § 51-12-5.1 (g) to the jury’s damages award.

In Devereux’s cross-appeal, we apply the “any evidence”

standard in reviewing the jury’s award of punitive damages and

attorney fees and conclude that there was evidence to support

awarding both. Applying that same standard, we further conclude

that there was evidence to support the amount of attorney fees

awarded and therefore affirm the trial court’s attorney fee award.

Finally, we conclude that the trial court did not err in starting the

accrual of post-judgment interest at the time the jury verdicts for

compensatory and punitive damages were returned by entering the

judgments for those verdicts nunc pro tunc. Thus, we affirm the

trial court’s judgments in both the appeal and the cross-appeal.

I. Background

In April 2012, 15-year-old Tia McGee began living at

4 Devereux’s Georgia facility, receiving treatment for mental

conditions stemming, at least in part, from a history of sexual abuse.

In May, McGee was sexually assaulted by Jimmy Singleterry, a

direct-care professional at Devereux.

After McGee was assaulted, she filed a lawsuit against

Devereux and Gwendolyn Skinner, the executive director of

“Devereux’s Georgia Treatment Network,”3 alleging general

negligence; negligent hiring, training, and supervision; professional

negligence; respondeat superior; and failure to keep the premises

safe.4 She also requested punitive damages under OCGA § 51-12-

5.1, alleging that Devereux’s conduct “was such as to evince an

entire want of care and indifference to the consequences of such

3 At the close of Taylor’s case-in-chief, Skinner moved for a directed verdict as to her, which was granted on the ground that she was a corporate officer who did not directly participate in employee training.

4 Commonly referred to as “premises liability,” this claim is based on a

landowner’s general “duty to keep its premises safe for visitors.” Cham v. ECI Mgmt. Corp., 311 Ga. 170, 173 (856 SE2d 267) (2021). See also OCGA § 51-3- 1 (“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”). 5 conduct,” and expenses of litigation under OCGA § 13-6-11, alleging

that “Defendants have acted in bad faith, have been stubbornly

litigious, and/or have caused Plaintiff unnecessary trouble and

expense.” Before trial, Devereux conceded that it acted negligently.

A jury trial on damages and attorney fees was held from November

12 to 19, 2019, and the following evidence was presented.

A. The Sexual Assault

On April 16, 2012, when McGee was 15 years old, she was

admitted to Devereux’s Georgia facility to receive in-patient

treatment. Her admission evaluation noted that she had a history

of harming and threatening to kill herself; that she had repeatedly

been sexually abused, which “may have led to sexual reactivity”; and

that she reported “having obsessive thoughts about sex.” Five days

after her admission, McGee was involved in a sexual incident, where

a male patient touched her “on top of her clothes between her

thighs.” The next day, McGee asked a different male patient to

“touch her . . . vaginal area over her clothes,” which he did. And on

May 10, a patient reported that another patient had been “fingering”

6 McGee. Karsten Hartman, a Devereux employee who helped with

training staff and investigating incidents like these, acknowledged

during his testimony that one of the reasons these incidents took

place was “poor supervision” and that “further training was needed

of whatever staff was responsible for the kids at that time.” He did

not know, however, if that staff was given any additional training or

disciplinary action.

On May 17, about a month after McGee’s admission, Akeavia

Mays and Jimmy Singleterry, direct-care professionals, were

assigned to the 3:00 to 11:00 p.m. shift to supervise the girls’ cottage

where McGee was staying. At about 10:30 p.m., Singleterry went

outside the cottage for about 12 minutes. During this time, he

walked to McGee’s bedroom window and stuck his penis inside, and

McGee performed oral sex on him. Mays, who was unaware of

Singleterry’s actions, left the cottage at about 10:50 p.m. to go to the

bathroom before clocking out for the day. Singleterry then went into

McGee’s room and had sexual intercourse with her. When the

direct-care professional assigned to the next shift, Olenette Hudson,

7 arrived at the cottage at 11:15 p.m., Singleterry was standing in the

doorway to the cottage, which Hudson testified was “unusual” but

did not cause her to suspect that he had engaged in sexual activity

with a resident.

McGee reported this incident two days later to Tony Foster,

another direct-care professional. McGee was taken to the hospital,

where a rape kit was administered. The police were notified and

conducted an investigation, including speaking to McGee, resulting

in Singleterry entering a guilty plea on October 29, 2013, to one

count each of child molestation, statutory rape, and sexual assault

against a person in custody.5 As part of Devereux’s internal

investigation, a “root cause analysis” was conducted, which

identified one of the “most proximate factors” of the crimes as

Singleterry’s assignment to a female cottage and his “opportunities

to be alone with [McGee] by taking an unauthorized break and his

co-worker leaving the shift early.” The report also noted that

5 For each count, Singleterry was sentenced to concurrent sentences of

20 years, with the first 12 in prison and the remainder on probation.

8 because Mays left early without notifying her supervisor, “the unit

was not in compliance with the required staff[-]client ratio for 25

minutes.”6

McGee continued to receive treatment at Devereux.

Immediately after the assault, she was given “one-to-one

supervision,” but she was not moved from the cottage where the

assault happened. Dr. Nancy Aldridge, a psychotherapist who

interviewed McGee in 2018 and 2019, testified that “generally

speaking,” it is “not a good idea” to keep the assault victim in the

same location “because it causes them . . . to think about [the

incident], to relive it” and to feel unsafe. Dr. Aldridge further

explained that McGee’s therapy notes indicate that, although the

therapists continued to speak with McGee about her history of

sexual abuse, they did not specifically address Singleterry’s sexual

assault of her. Dr. Aldridge testified that this lack of

6 According to Devereux’s supervision ratios that were in place before

McGee was assaulted, two direct-care professionals were required to supervise the cottage during the 3:00-11:00 p.m. shift. Only one was required on the 11:00 p.m.-7:00 a.m. shift, when residents were expected to be asleep. 9 acknowledgement or apology was “significant” because McGee “was

never supported as to what happened to her.”

When McGee was interviewed by Dr. Aldridge in 2018, McGee

indicated that she “felt guilty” and “blamed [her]self” after this

incident and that she had “flashbacks” related to the incident.

McGee was discharged from Devereux’s facility on June 29, 2012.

Her discharge summary noted that while at Devereux’s facility, a

therapist worked with McGee to overcome her sexual trauma and

that in the “later half of her treatment,” McGee “interact[ed] more

appropriately with her peers and staff and . . . displayed better

coping skills” but would still “need ongoing therapy to focus on

sexual trauma history and sexual acting out behaviors.” McGee died

after the trial, in August 2020.

B. Devereux’s Employment Policies

Mary Esposito, an assistant executive director at Devereux,

testified that the procedure for hiring a direct-care professional,

which was applied to Singleterry, required contacting the

applicant’s references; doing a background check through an

10 independent company; sending the applicant’s information to the

Chamblee Police Department, which also did a background check;

and sending the applicant’s fingerprints to “the State agency” to be

cleared.7 None of this information about Singleterry indicated any

history of sexually assaulting or otherwise abusing children or

adults. Singleterry also signed a statement, as required of all

Devereux direct-care professionals, that he had “never been shown

by credible evidence . . . to have abused, neglected, sexually

exploited, or deprived a child or adult or to have subjected any

person to serious injury as a result of intentional or grossly negligent

misconduct.” Mays testified that Singleterry made her

“uncomfortable” and he seemed “creepy” and like a “womanizer,” but

acknowledged that he had not said or done anything to make her

think he posed a risk of sexually harming any patient.

7 Skinner testified that Devereux’s background check procedure was required by the State Department of Behavioral Health because Devereux is a “psychiatric residential treatment facility.” Skinner acknowledged that a background check had been run on all of the Devereux employees, including on those who later abused patients, saying, “[a] background check is not going to keep someone from abusing a child.” 11 Testimony from Hartman and Singleterry’s employment

documents showed that Singleterry, like all Devereux direct-care

professionals, was trained about maintaining appropriate

boundaries and sexual-risk reduction. Mays and Hudson, however,

testified that they were not given any training about how to deal

with patients, like McGee, who were “sexually reactive.” Mays

further testified that she was not told of McGee’s “sexual reactivity,”

and if she had been, she would not have left her shift early, knowing

that the only other direct-care professional supervising the cottage

was a man. Foster testified that girls’ units were required to be

supervised by at least one female employee.8 Hudson testified that

sometimes shifts did not have the required ratios of staff to patients

and that she had seen instances of a male staff member supervising

a female cottage alone. She testified that Devereux management

8 Foster testified that he understood that one of the reasons for this gender-based policy was “the possibility” that a staff member could interact or be alleged to have interacted “inappropriately with a patient.” Skinner, however, testified that Devereux had “no gender-specific policy, except saying that same-sex employees will supervise staff when it is on matters that require privacy: restroom, things like that” and that sometimes it was okay to have a male staff member supervise a female cottage alone, including if all of the girls were “in bed asleep.” 12 was “already aware” of this situation and when she complained,

nothing was done about it.

Mays testified that Devereux was frequently short-staffed, and

Hartman testified that Singleterry was assigned to a female cottage

because Devereux had “a limited staff on the shift” and “a lot of new,

unseasoned staff.” Hartman further explained that Singleterry was

assigned to the cottage where McGee lived because the girls in that

cottage “were better behaved” than the girls in the other cottage and

they had an early bedtime because most of the girls were on the “red

phase.”9 Foster testified that Singleterry was usually assigned to a

male unit and he thought that if Singleterry was assigned to a

female cottage, “that would be a mismatch for him.”

Hudson testified that although Devereux’s management was

aware of the problem of direct-care professionals leaving their shifts

early, no one disciplined those who left early or otherwise addressed

9 Hartman also testified, however, that “red phase” patients were the

“lowest level . . . behavior-wise” and were “the most challenging ones to deal with.” McGee was classified as “red phase” at that time.

13 the problem. Mays similarly testified that she had left her shift

early before and not gotten in trouble, and she did not get in trouble

for leaving early on the night of the sexual assault.10 Foster testified

that “people did turn a blind eye to a lot of things at Devereux.” He

also testified that he knew that people “often” left their shift at the

cottages early, describing it as a “loophole,” where staff would leave

the cottage and “go to the main building and use the restroom and

just kind of mingle around there for 15 minutes” until it was time to

clock out. He testified, however, that people were disciplined for

leaving early if the supervisor found out.

As part of Devereux’s investigation into the sexual assault,

some changes to Devereux’s hiring and training procedures were

suggested, including investigating the use of an extra screening

service in the hiring process, developing a video to demonstrate how

10 Foster testified that he was told that Mays was fired for her part in

allowing the assault, but Mays testified that she chose to leave Devereux because she felt “overall afraid” and that after a particular incident “where a client pushed a door on [her],” she “couldn’t do it anymore.” Skinner testified that Mays was not disciplined for leaving early on the night of the assault because Devereux was waiting until the police investigation was finished, and Mays left her job at Devereux before then. 14 proper shift exchange should be done, incorporating role-plays that

“focus on the risks of working with sexually reactive youth” into the

training for direct-care professionals, and adding specific

information in each client’s treatment plan to address any “sexually

reactive” behavior. None of the Devereux employees could testify as

to whether any of these actions were actually implemented, and

Foster specifically testified that he had never seen a video about

shift change or participated in role-plays for interacting with

“sexually reactive” youth.

C. Other Similar Incidents

At trial, Taylor introduced evidence of incidents of sexual

abuse at Devereux facilities in other states: three incidents before

2012 that involved a Devereux staff member sexually assaulting a

patient and five that happened after 2012. In addition, with respect

to the Georgia facility, Taylor introduced evidence that a therapist

who was employed at the facility was arrested in 2017 for possession

of child pornography and admitted that he was “grooming” two

patients. Also, Foster testified that in 2013, two or three female

15 patients in the Georgia facility held another female patient down

and penetrated her with pencils, and Hudson testified that in 2013,

a group of male patients “pulled out their penises and spanked

[another male patient] in the face and then they sat in his face.”

Foster and Hudson each testified that they did not “know where the

staff was” during the incidents.

When these incidents were introduced, the trial court gave a

limiting instruction, directing that “other similar incidents that

occurred prior to May 17th, 2012” were admitted for the limited

purpose of “show[ing], if they do, knowledge, notice, and intent on

the part of the defendants” and “[e]vidence of other similar incidents

that occurred after May 17th, 2012” was “admissible on the issue of

punitive damages.” Similar instructions were given in the final

charge to the jury.

D. The Verdict

Because Devereux had conceded before trial that it acted

negligently, the trial court told the jury that Taylor and Devereux

stipulated that

16 Devereux breached the legal duty of ordinary care owed to Tia McGee for her safety from sexual assault and that the breach of Devereux’s legal duty contributed to Jimmy Singleterry’s sexual assault of Tia McGee. Defendant also admits that Devereux is legally responsible for any harm which it proximately caused Tia McGee to suffer. And Devereux further admits that Tia McGee should receive some compensatory damages.

At the close of Taylor’s evidence, Devereux moved for a directed

verdict on the punitive damages, which was denied. In closing

argument, Devereux’s attorney argued that Devereux’s “one

mistake” of Mays leaving early “makes Devereux liable,” but told the

jurors they had to decide “apportionment, causation, and damages,”

arguing that they should assign more fault to Singleterry than to

Devereux and that Taylor had not proven that all of the damages

she requested were caused by the assault at Devereux as opposed to

the other trauma McGee had suffered in her life before her time at

Devereux. As to punitive damages, Devereux’s attorney argued that

Devereux had taken a number of steps to protect McGee, showing

that there was not “an entire lack of any care whatsoever” provided.

On November 18, 2019, the jury found that McGee had suffered

17 $10,000,000 in compensatory damages and that Devereux was 50

percent at fault and Singleterry was 50 percent at fault. The jury

also found that Devereux was liable for punitive damages and for

expenses of litigation because “they acted in bad faith in the

underlying transaction” and “have been stubbornly litigious or

caused unnecessary trouble and expense.”11 On November 19,

additional evidence was presented on the issue of punitive damages,

which included evidence of Devereux’s financial situation. The jury

found that Devereux was liable for $50,000,000 in punitive damages.

The parties agreed to submit the question of the amount of expenses

of litigation to the trial court, and the jury was dismissed.

On July 1, 2021, the trial court held a hearing on the issue of

whether the statutory punitive damages cap in OCGA § 51-12-5.1

(g), which says that, with a few exceptions not applicable here, the

amount of punitive damages “shall be limited to a maximum of

11 The expenses of litigation issue was presented in two questions on the

verdict form: if Devereux was liable for expenses because it “acted in bad faith in the underlying transaction” and if Devereux was liable for expenses because it had “been stubbornly litigious or caused unnecessary trouble and expense.” The jury answered “Yes” to both questions. 18 $250,000.00,” violated the Georgia Constitution, as well as on the

appropriate measure of attorney fees. On February 8, 2022, the trial

court entered three orders: one ruling that OCGA § 51-12-5.1 (g) did

not violate the Georgia Constitution and thus reducing Taylor’s

punitive damages award to $250,000 in accord with the statute; one

finding that Taylor was entitled to 40 percent of the jury’s

enforceable verdict as attorney fees; and one entering the final

judgment requiring Devereux to pay $5,000,000 in compensatory

damages (50 percent of $10,000,000) and $250,000 in punitive

damages (the capped amount of punitive damages allowed under

OCGA § 51-12-5.1 (g))—both nunc pro tunc to the date of the jury

verdict, so that post-judgment interest ran from the date of the

verdict—as well as $2,100,000 in attorney fees and $288,055.03 in

litigation expenses.12

Case No. S22A1060

12 The award of attorney fees and litigation expenses was not made nunc

pro tunc, and the court’s order made clear that post-judgment interest would run on these amounts from the court’s February 8, 2022 order. 19 II. Taylor’s Appeal

In her appeal, Taylor raises three arguments, all of which are

focused on whether OCGA § 51-12-5.1 (g)—which the trial court

applied to reduce the punitive damages she received from

$50,000,000 to $250,000—violates the Georgia Constitution.13

Taylor argues, as she did in the trial court, that the $250,000 limit

is unconstitutional because it violates three rights protected by the

Georgia Constitution: (1) the right to trial by jury, Ga. Const. of 1983

Art. I, Sec. I, Par. XI, (2) the guarantee of separation of powers, Ga.

Const. of 1983 Art. I, Sec. II, Par. III, and (3) the guarantee of equal

protection, Ga. Const. of 1983 Art. I, Sec. I, Par. II.

Before we address each of Taylor’s challenges to OCGA § 51-

12-5.1 (g) based on the Georgia Constitution, we will set out the

burden that she must meet to prevail on any of them; the statute

she challenges; and specific arguments pertaining to her claim for

punitive damages.

A. Taylor’s Burden to Succeed on Her Constitutional Claims

13 Taylor does not assert any argument on appeal that OCGA § 51-12-5.1

(g) violates the United States Constitution. 20 “Duly enacted statutes enjoy a presumption of

constitutionality,” and the party challenging the statute bears the

burden to show that the statute “manifestly infringes upon a

constitutional provision or violates the rights of the people.”

Nestlehutt, 286 Ga. at 732 (citation and punctuation omitted).

[A]ll presumptions are in favor of the constitutionality of an Act of the legislature and before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality. Moreover, because statutes are presumed to be constitutional until the contrary appears, the burden is on the party alleging a statute to be unconstitutional to prove it.

Barnhill, 315 Ga. at 311 (citation and punctuation omitted). See

also Craig v. Maltbie, 1 Ga. 544, 547 (1846) (“[W]hile it is a clear

position, that if a legislative act oppugns a constitutional principle,

the former must give way, and that in every such case it will be the

duty of the court to declare the statute null, on the score of

repugnance. Still, before the court [w]ill be justifiable in doing this,

the opposition between the constitution and the law must be plain

21 and palpable.”); Flint River Steamboat Co. v. Foster, 5 Ga. 194, 209

(1848) (“It must be a very clear and palpable case, which would

warrant the Judiciary to exercise this delicate duty of declaring a

law unconstitutional[.]”); Carey v. Giles, 9 Ga. 253, 258 (1851) (“If

the constitutionality of the Acts [at issue] was the least doubtful, it

would be our duty to carry them into effect. To set them aside, their

repugnancy to the Constitution should be most manifest. It is

contrary to the practice and policy of this Court, as it should be of

all others, rashly and lightly to pronounce void a solemn Act of the

Government; the case must be clear to justify it.”).

B. Taylor’s Claim for Punitive Damages

In the suit underlying this appeal, Taylor sought punitive

damages under OCGA § 51-12-5.1—Georgia’s punitive damages

statute. Because each of Taylor’s constitutional claims—particularly

Taylor’s claim based on the right to trial by jury in Georgia—

requires not only an understanding of Georgia’s historical right to

trial by jury, but also of modern punitive damages, we first turn to

the punitive damages statute under which Taylor sought and was

22 awarded damages.

(1) OCGA § 51-12-5.1 provides for punitive damages in certain circumstances and also places restrictions on some of those damage awards.

Taylor moved for punitive damages under OCGA § 51-12-5.1,

which was enacted in 1987, see Ga. L. 1987, p. 915.14 OCGA § 51-

12-5.1 (a) explains that “[a]s used in this Code section, the term

‘punitive damages’ is synonymous with the terms ‘vindictive

damages,’ ‘exemplary damages,’ and other descriptions of additional

damages awarded because of aggravating circumstances in order to

penalize, punish, or deter a defendant.” Subsection (b) of the same

statutory provision says:

Punitive damages may be awarded only in such tort actions in which it is proven by 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.

And subsection (c) makes clear that: “Punitive damages shall be

14 The statute has been amended three times since then, but that does

not affect our analysis, because we are concerned with Georgia law as to punitive damages before 1798 and the law applicable to the punitive damages claim Taylor now brings. 23 awarded not as compensation to a plaintiff but solely to punish,

penalize, or deter a defendant.”

As noted above, Taylor alleges that subsection (g), which limits

punitive damages awards for certain tort actions, violates the right

to a trial by jury. Subsection (g) says:

For any tort action not provided for by subsection (e) or (f) of this Code section in which the trier of fact has determined that punitive damages are to be awarded, the amount which may be awarded in the case shall be limited to a maximum of $250,000.00.

The subsection (e) carve-out applies to “tort case[s] in which the

cause of action arises from product liability.” And the subsection (f)

carve-out makes clear that in tort cases other than products-liability

cases, the $250,000 cap does not apply when an active tort-feasor

acts (or fails to act) with “the specific intent to cause harm” or while

under the influence of certain intoxicants. It says:

In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol,

24 or other toxic vapor to that degree that his or her judgment is substantially impaired, there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than an active tort-feasor.[15]

As these statutory provisions show, the punitive damages

available today under OCGA § 51-12-5.1: (1) are awarded “solely to

punish, penalize, or deter,” and (2) may be awarded only if the

defendant’s actions showed a state of mind indicating some extra

degree of culpability, such as “willful misconduct, malice, fraud,

wantonness, oppression, or that entire want of care which would

raise the presumption of conscious indifference to consequences.”

OCGA § 51-12-5.1 (b), (c). Punitive damages may not be awarded

under OCGA § 51-12-5.1 when the defendant’s actions sound only in

negligence; mere negligence, or even gross negligence, is not

sufficient. See MDC Blackshear, LLC v. Littell, 273 Ga. 169, 173

(537 SE2d 356) (2000). However, intentional misconduct is not

required either; acting with an “entire want of care” and “conscious

15 It is undisputed that subsections (e) and (f) do not apply to this case.

25 indifference to consequences” can be enough. See OCGA § 51-12-5.1

(b); Tyler v. Lincoln, 272 Ga. 118, 120 (527 SE2d 180) (2000) (“A

conscious indifference to consequences relates to an intentional

disregard of the rights of another. Wilful and intentional

misconduct is not essential.”) (citations and punctuation omitted;

emphasis in original).

(2) Taylor’s claim for punitive damages relies on her allegation that Devereux acted with an “entire want of care.”

At trial, Taylor focused on the “entire want of care” state of

mind found in OCGA § 51-12-5.1 (b), arguing to the jury that

Devereux “just didn’t care” and acted with an “entire want of care”

and “a total lack of disregard.” Taylor made no claim at trial that

her claim fit under the carve-out to the punitive damages cap in

OCGA § 51-12-5.1 (f) for claims that “the defendant acted, or failed

to act, with the specific intent to cause harm,” and she did not

contend at trial that Devereux engaged in any intentional

misconduct that led to McGee’s sexual assault; rather, she argued

that Devereux’s “entire want of care” toward protecting McGee

26 allowed McGee to be sexually assaulted.16

III. Right to Trial by Jury

We now turn to Taylor’s primary argument: that the portion of

OCGA § 51-12-5.1 (g) that establishes a $250,000 cap on the amount

of punitive damages a plaintiff may recover violates the Georgia

Constitution’s right to trial by jury.17

A. The Georgia Constitution’s Right to Trial by Jury

The Georgia Constitution of 1983 provides: “The right to trial

by jury shall remain inviolate, except that the court shall render

judgment without the verdict of a jury in all civil cases where no

16 Specifically, even to the extent Taylor alleged in her complaint that

Devereux was liable for punitive damages based on acting with states of mind other than an “entire want of care,” she did not make any such argument to the jury.

17 We note that on this question we were assisted by several amici curiae

who filed briefs in this case, and whom we thank: American Medical Association and Medical Association of Georgia; Child USA and National Center for Victims of Crime; Georgia Defense Lawyers Association; Georgia Trial Lawyers Association and American Association for Justice; Georgians for Lawsuit Reform; Professors Anthony J. Sebok and John C. Goldberg; and United States Chamber of Commerce, Georgia Chamber of Commerce, and American Tort Reform Association. We also thank the Attorney General of Georgia, who presented oral argument as amicus curiae in addition to filing a brief.

27 issuable defense is filed and where a jury is not demanded in writing

by either party.” Ga. Const. Art. I, Sec. I, Par. XI (a).

The right to a jury trial has been understood as an important

right in Georgia since the State’s founding. See, e.g., Flint River, 5

Ga. at 206 (describing, in 1848, the right to a jury trial as “one of the

great elements, the greatest characteristic of free government”);

Craig, 1 Ga. at 546 (explaining, in 1846, that the Court would not

“wish to curtail or abridge the right of trial by jury, believing, as we

do, . . . that the more it is searched into and understood, the more it

is sure to be valued,” and describing the right to a jury trial as a

“principal bulwark of English and American liberties”). Indeed, a

version of this jury-trial provision has been included in almost every

Georgia Constitution since 1777, with “very similar” language. De

Lamar v. Dollar, 128 Ga. 57, 59 (57 SE 85) (1907).18 And critical to

our analysis in this case, is that for almost 175 years, this Court has

18 The provision was not included in the Constitutions of 1861 and 1865,

see De Lamar, 128 Ga. at 59, a point neither party in this case raises on appeal. We note, however, that—as discussed further below—the Georgia Constitution’s jury-trial provision has long been interpreted as preserving the jury trial right as it existed in 1798. See, e.g., Nestlehutt, 286 Ga. at 733. 28 consistently interpreted the Georgia Constitution’s right to a jury

trial as meaning that “[t]he people of this State . . . are entitled to

the trial by jury, as it was used in the State prior to the Constitution

of [17]98.” Tift v. Griffin, 5 Ga. 185, 189 (1848) (emphasis in

original). See also Flint River, 5 Ga. at 207-208 (explaining, in 1848:

“The provision in our State Constitution, that trial by jury, as

heretofore used, shall remain inviolate, means that it shall not be

taken away, as it existed in 1798, when the instrument was adopted,

and not that there must be a jury in all cases.”) (emphasis in

original); Williams v. Overstreet, 230 Ga. 112, 116 (195 SE2d 906)

(1973) (“‘The provision in the Constitution of Georgia, that “trial by

jury, as heretofore used, shall remain inviolate” means, that it shall

not be taken away in cases where it existed when that instrument

was adopted in 1798; and not that there must be a jury in all cases.’”)

(citing Flint River, 5 Ga. at 195); Benton v. Georgia Marble Co., 258

Ga. 58, 66 (365 SE2d 413) (1988) (“It has been held that the Georgia

Constitution (Art. I, Sec. I, Par. XI) guarantees the right to a jury

trial only with respect to cases as to which there existed a right to

29 jury trial at common law or by statute at the time of the adoption of

the Georgia Constitution in 1798.”); Nestlehutt, 286 Ga. at 733 (“It

is well established that Art. I, Sec. I, Par. XI (a) ‘guarantees the right

to a jury trial only with respect to cases as to which there existed a

right to jury trial at common law or by statute at the time of the

adoption of the Georgia Constitution in 1798.’”) (citing Benton, 258

Ga. at 66).19

19 It is not entirely clear why these cases pointed to the Georgia Constitution of 1798 as the touchstone of our Constitution’s jury-trial right, rather than looking to Georgia’s earlier Constitutions from 1777 or 1789, which contained similar provisions protecting the right to a jury trial. Regarding the 1798 date, we note that two of the cases cited above, Tift and Flint River, were decided when the Constitution of 1798 was the operative Constitution. We also note that the jury-trial provision in the Constitution of 1798 “contains the words, ‘as heretofore used in this State,’ which do not appear in the other instruments.” De Lamar, 128 Ga. at 59. See also Ga. Const. of 1798 Art. IX, Sec. V. Although no reported case expressly focuses on the meaning of this language, it is possible that it implicitly incorporated all of Georgia’s prior history and practice with respect to jury trials, including the years before 1798. The dissenting opinion suggests that Nestlehutt (and all the parties and amici in this case) were wrong to follow our line of decisions identifying 1798 as the relevant date for determining the scope of the right to trial by jury. The dissenting opinion does not, however, engage in any meaningful stare decisis analysis to show that we should overturn Nestlehutt or the cases it relies on it with respect to the key date for evaluating the right to trial by jury under the Georgia Constitution. What is more, the dissenting opinion contends that we do not even need to engage in a stare decisis analysis before overruling Nestlehutt and other

30 The consequence of this well-settled 1798 cutoff is significant.

If the type of claim at issue in this case is one as to which there

existed a right to trial by jury as of 1798, our Constitution’s right to

a trial by jury applies in the same way the right applied in 1798. For

other types of claims, the right does not attach. Accordingly, we look

to Georgia law from 1798 and earlier in evaluating the scope of

Georgia’s right to trial by jury. That law includes not only early

Georgia cases and statutes, but also the English common law of

1776, which in 1784 was adopted as the law of Georgia. See

cases setting 1798 as the key date because stare decisis is not required to “correct[ ] our identification of Georgia’s first constitution.” Dissent Op. p. 107 n.77. But neither Nestlehutt nor the opinions cited above purport to identify the 1798 Constitution as Georgia’s first Constitution—the error that the dissenting opinion appears to identify in Nestlehutt and Benton. It is true that a few other cases say that we should look to Georgia’s “first Constitution” in analyzing the scope of our State’s constitutional right to a jury, but these cases are ambiguous about which Constitution that is. See Metropolitan Cas. Ins. Co. of N.Y. v. Huhn, 165 Ga. 667, 672 (142 SE 121) (1928) (explaining that “[i]n a number of cases in this state it has been held that in civil actions the right of jury trial exists only in those cases where the right existed prior to the first Constitution,” but not clarifying the date of that Constitution); Strange v. Strange, 222 Ga. 44, 45 (148 SE2d 494) (1966) (noting “an unbroken line of decisions” from this Court holding “that in civil actions the right of a jury trial exists only in those cases where the right existed prior to the first Georgia Constitution,” and citing Metropolitan). We need not resolve this mystery today, however, given that no one has asked us to reconsider our precedents setting the key date at 1798. Accordingly, we will follow those precedents.

31 Nestlehutt, 286 Ga. at 733 (“[T]he initial step in our analysis must

necessarily be an examination of the right to jury trial under late

eighteenth century English common law.”); OCGA § 1-1-10 (c) (1)

(adopting in Georgia’s new code the act “adopting the common laws

of England as they existed on May 14, 1776,” which was approved in

Georgia on February 25, 1784). See also Tift, 5 Ga. at 191 (“From

the earliest times, the trial by jury has descended to us, through

usage in England — in our Provincial state, and after the

organization of our State Government, subject to this limitation.”).

We recognize that even to the extent the Georgia constitutional

provision on jury trials “froze” the scope of the inviolate right to a

jury trial as it existed in 1798, it did not freeze the law completely.

“New forums may be erected, and new remedies provided,

accommodated to the ever shifting state of society.” Flint River, 5

Ga. at 208. In other words, the General Assembly is authorized to

create new statutory causes of action that did not exist before 1798,

and is likewise authorized to create new or additional remedies for

those causes of action. Those new remedies, however, do not

32 automatically come with a constitutional right to a trial by jury. The

1966 case of Strange v. Strange, 222 Ga. 44 (148 SE2d 494) (1966),

illustrates this dynamic. There, a divorced mother brought a claim

for child support in 1965 under the Uniform Reciprocal Enforcement

of Support Act and the trial court, acting without a jury, entered a

judgment ordering the father to pay future child support. Strange,

Id. at 44-45. After the father appealed and complained that his right

to a jury had been violated, this Court held that the father did not

have a constitutional right to a jury trial. Id. at 45, 47. We explained

that because the mother, “under the factual situation of this case,

could not bring a common law action against the father of the minor

children” for future child support, the mother’s claim was “wholly of

statutory origin and unknown to the common or statutory law of

England prior to our first Constitution.” Id. at 47. Similarly, in

Williams, we held that “there is no constitutional right to a trial by

jury in an equity case” because the use of juries in equity cases

“originated in this State in the Judiciary Act of 1799.” 230 Ga. at

115-116.

33 Because Georgia’s constitutional jury trial right protects only

those rights to a jury trial that existed in Georgia in 1798, to

determine whether a party has a right to a jury trial for a particular

claim, we must determine whether such a claim existed and was

decided by a jury in Georgia in 1798.

B. Nestlehutt’s Analytical Framework

In Nestlehutt, this Court applied the well-established

analytical framework described above to evaluate a contention that

a statutory cap on non-economic damages in medical malpractice

claims violated Georgia’s constitutional right to trial by jury. See

286 Ga. at 732-738. In that case, we first considered whether in

Georgia in 1798, the underlying claim of medical malpractice existed

and concluded that it did, such that the right to trial by jury applied

to the claim. See id. at 734 (“Given the clear existence of medical

negligence claims as of the adoption of the Georgia Constitution of

1798, we have no difficulty concluding that such claims are

encompassed within the right to jury trial[.]”). We then considered

the scope of the jury-trial right that applied to medical-negligence

34 claims in or before 1798, focusing on the particular aspect of the

historical jury trial that the plaintiff alleged was restricted by the

modern statute in question. See id. at 733-735. There, the key

questions were whether Georgia juries in 1798 determined damages

in tort cases involving medical negligence, and whether those

damages included the non-economic damages that were sought by

the plaintiff (and restricted by a modern statute) in Nestlehutt. See

id. We concluded that the plaintiff made those showings, explaining

that it “ha[d] been the rule from the beginning of trial by jury” that

the “determination of damages rests peculiarly within the province

of the jury,” and that “[n]oneconomic damages have long been

recognized as an element of total damages in tort cases, including

those involving medical negligence.” Id. at 735 (citation and

punctuation omitted). In other words, the claim that was restricted

by the statute—a claim for non-economic damages in a tort case

involving medical negligence—was within the scope of the

constitutional right to trial by jury in Georgia. See id. at 735 (“[W]e

conclude that at the time of the adoption of our Constitution of 1798,

35 there did exist the common law right to a jury trial for claims

involving the negligence of a health care provider, with an attendant

right to the award of the full measure of damages, including

noneconomic damages, as determined by the jury.”).

Then, in examining a statutory cap on damages against the

backdrop of this constitutional right to a jury trial, we held that a

legislatively-imposed limit on the jury’s award violated the

plaintiff’s right to trial by jury because “the right to a jury trial

includes the right to have a jury determine the amount of damages,

if any, awarded to the plaintiff.” Id. at 734 (citation and punctuation

omitted; emphasis in original). We thus concluded that the

statutory limit on non-economic damages “clearly nullifie[d] the

jury’s findings of fact regarding damages and thereby undermine[d]

the jury’s basic function.” Id. at 735.20

20 Although neither party has asked us to reconsider Nestlehutt, amicus

curiae the Attorney General of Georgia—without engaging in a stare decisis analysis—has asked that we overrule the portion of Nestlehutt holding that a right to a jury trial has “an attendant right to the award of the full measure of damages . . . as determined by the jury,” 286 Ga. at 735, arguing that the right to a jury trial protects only the procedural “right to have a trial by jury,” and

36 Applying that same framework of analysis to the case before us

yields the following: if Taylor can show that at least one of her claims

of liability against Devereux existed in Georgia in 1798 and that the

kind of punitive damages she seeks were within the scope of her

right to a jury trial on that claim, then the legislatively-imposed

damages cap set forth in OCGA § 51-12-5.1 (g) violates her right to

a trial by jury under the Georgia Constitution. If Taylor cannot

make that showing, then she will not carry her burden of showing

that the constitutional right to trial by jury extended to her claim

for punitive damages. As we explain more below, Taylor’s claim fails

because she cannot show that a Georgia jury in 1798 would have

been authorized to award the kind of punitive damages she seeks

today based on a defendant acting with an “entire want of care.”

C. Limitations of Teasley v. Mathis and State v. Moseley in Addressing Georgia’s Constitutional Jury-Trial Right

Before we apply the Nestlehutt framework to Taylor’s claims,

not necessarily the right for the jury to be able to award certain types of damages or to receive any or all of the damages awarded by the jury. We decline the invitation. 37 we note that Devereux and the special concurrence assert that we

need not engage in this analysis and should instead rely on two of

our prior cases: Teasley v. Mathis, 243 Ga. 561 (255 SE2d 57) (1979),

and State v. Moseley, 263 Ga. 680 (436 SE2d 632) (1993), which held

that certain legislatively-imposed limitations on punitive damages

did not violate Georgia’s constitutional right to a jury trial. See

Teasley, 243 Ga. at 564; Moseley, 263 Ga. at 681. As an initial

matter, Teasley and Moseley addressed challenges to different

statutory provisions than the cap at issue here. Teasley addressed

a jury-trial-right challenge to the complete elimination of punitive

damages in the “no fault statute” for car accident cases where there

was no “serious injury,” 243 Ga. at 561, and Moseley addressed a

jury-trial-right challenge to OCGA § 51-12-5.1 (e) (2)’s

apportionment of 75 percent of a punitive damages award to the

State of Georgia in a products liability case, 263 Ga. at 680-681. And

although it may seem like Teasley and Moseley are similar to this

case because those cases, like this case, deal with a plaintiff’s

constitutional challenge to a legislatively-imposed restriction on

38 punitive damages, the reasoning of those cases is cursory, fatally

incomplete, and does not withstand our later holding in Nestlehutt.

Indeed, in Nestlehutt, we noted that both Teasley and Moseley

“reserv[ed] only cursory analysis to the right to jury trial issue,

which was summarily resolved in reliance on precedent that did not

address the right to jury trial at all.” 286 Ga. at 736. Specifically,

we rejected the plaintiff’s constitutional challenge in Teasley in only

two sentences that provided no express analysis of the right to a jury

trial under the Georgia Constitution:

The legislature, however, may modify or abrogate common law rights of action (Silver v. Silver, 280 U.S. 117 (50 SCt 57, 74 LE 221) (1929); Arizona Employers’ Liability Cases, 250 U.S. 400 (39 SCt 553, 63 LE 1058) (1918); Munn v. Illinois, 94 U.S. 113 (24 LE 77) (1876)), as well as statutorily created rights, Kelly v. Hall, [191 Ga. 470 (12 SE2d 881) (1941)]. Therefore, eliminating the right to sue for exemplary damages where there are no serious injuries is well within the province of the legislature and Teasley’s constitutional challenge on this ground must also fail.

243 Ga. at 564. Notably, the only citations included in this sparse

analysis were citations to three United States Supreme Court cases

and one case from this Court, none of which addressed the right to

39 a jury trial under the Georgia Constitution. See Silver, 280 U.S. at

122 (considering whether a Connecticut law violated the “equal

protection of the laws guaranteed by the Fourteenth Amendment”

to the United States Constitution); Arizona Employers’ Liability,

250 U.S. at 417 (considering whether an Arizona statute violated the

Fourteenth Amendment to the United States Constitution); Munn,

94 U.S. at 123 (considering whether an Illinois statute violated

provisions in the United States Constitution regulating commerce

and the Fourteenth Amendment); Kelly, 191 Ga. at 472-473

(considering whether taking away the right to punitive damages

violated “Federal and State provisions against the deprivation of

property without due process of law”).

Moseley’s analysis on this issue was similarly brief, rejecting

the argument that the legislature could not apportion 75 percent of

the plaintiffs’ punitive damage award to the State by saying:

The Moseleys, in essence, are asking this Court to rule that Art. 1, Sec. 1, Par. 11 prohibits the General Assembly from abrogating or circumscribing common law or statutory rights of action. We have held, however, that that provision of the Constitution has no such effect,

40 Teasley v. Mathis, 243 Ga. [at 564]; see also, Georgia Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60, 61-62 (335 SE2d 127) (1985), and we decline to part from that rule in this case.

263 Ga. at 681. In other words, Moseley relied on Teasley’s

unsupported reasoning and cited yet another case addressing a due

process challenge—not a challenge to the right to trial by jury. See

Georgia Lions Eye Bank, 255 Ga. at 60-61.

The sparse analysis in both cases is fatally incomplete not only

because the opinions do not expressly consider the scope of the

constitutional jury-trial right, but also because they held that the

Georgia General Assembly could modify “common law rights of

action,” without acknowledging the foundational principle that the

legislature cannot abrogate constitutional rights. See Ga. Const. of

1983 Art. III, Sec. VI, Par. I (“The General Assembly shall have the

power to make all laws not inconsistent with this Constitution, and

not repugnant to the Constitution of the United States, which it

shall deem necessary and proper for the welfare of the state.”)

(emphasis supplied). See also Nestlehutt, 286 Ga. at 736 (although

41 “the Legislature has authority to modify or abrogate the common

law,” it may not “abrogate constitutional rights that may inhere in

common law causes of action”) (emphasis in original).21 For this

reason, the summary conclusions contained in Teasley and Moseley

noted above were necessarily rejected by this Court in Nestlehutt,

insofar as Teasley and Moseley failed to recognize the limit the

Georgia Constitution may put on the legislature’s ability to modify

causes of action. As Nestlehutt held, when Georgia’s constitutional

right to a jury trial applies, the legislature cannot infringe on that

right. See Nestlehutt, 286 Ga. at 736. We agree with the bedrock

principle, articulated in Nestlehutt, that the legislature may not

“abrogate constitutional rights” that may inhere in common-law

causes of action. Id. (emphasis in original).22 To the extent Teasley

21 Notably, this foundational principle was recognized by a case this Court cited in Moseley: Georgia Lions Eye Bank, which states that [r]ights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. 255 Ga. at 61-62 (emphasis supplied). 22 Notably, although the dissenting opinion disagrees with our ultimate

conclusion—based on the application of the Nestlehutt framework—that the

42 and Moseley conflict with that well-established principle, or with

Nestlehutt’s holding on that point, we are bound to follow

Nestlehutt’s holding, and not those earlier decisions. See White v.

State, 305 Ga. 111, 122 n.10 (823 SE2d 794) (2019) (“When a high

court finds discordant opinions among its own horizontal

precedents, the court generally follows its decision in the most

recent case, which must have tacitly overruled any truly

inconsistent holding.”) (citation and punctuation omitted).23

D. Applying Nestlehutt’s Analytical Framework to Taylor’s Claims

punitive damages Taylor seeks here are not within the scope of the right of trial by jury guaranteed by the Georgia Constitution, the dissenting opinion nonetheless agrees that Teasley and Moseley are flawed insofar as they “failed to recognize the limits the constitutional right to trial by jury puts on the scope of the General Assembly’s authority.” Dissent Op. p. 114 n.88.

23 Moreover, contrary to the special concurrence’s assertion, applying Nestlehutt’s reasoning in this case does not “extend” Nestlehutt, because its reasoning was not limited to a specific type of damages; it set forth an analytical framework for interpreting Georgia’s constitutional right to trial by jury and how that right may limit the power the legislature otherwise holds. Additionally, the special concurrence asserts that Nestlehutt holds that its “analytical framework did not apply to statutory limits on punitive damages.” We do not agree. Nestlehutt factually distinguished Teasley and Moseley on the ground that they dealt with punitive damages, whereas Nestlehutt addressed non-economic damages. It did not hold that the analytical framework to determine if a constitutional jury-trial right attaches did not apply at all to punitive damages. 43 Turning to the framework laid out in Nestlehutt, we specifically

consider whether any of Taylor’s underlying claims existed in

Georgia in 1798 and whether the scope of a jury trial on that claim

includes damages to punish based on Taylor’s contention that

Devereux acted with an entire want of care. Because we have

identified no pre-1798 Georgia case or statute relevant to the

questions before us—and the parties have offered none—we focus on

the claims and types of damages that were available in England in

and before 1776. See Nestlehutt, 286 Ga. at 733 (“Thus, the initial

step in our analysis must necessarily be an examination of the right

to jury trial under late eighteenth century English common law.”).

See also OCGA § 1-1-10 (c) (adopting in Georgia’s new code the act

“adopting the common laws of England as they existed on May 14,

1776”).24

(1) At least one of Taylor’s underlying claims—premises liability—existed in England in 1776.

24 As we noted in Nestlehutt, “Because there is only a sparse record of

reported Georgia cases prior to the publication of the first volume of the Georgia Reports in 1846, Georgia precedent is of limited utility in ascertaining the extent of the jury trial right as of 1798.” 286 Ga. at 733 n.3.

44 We begin, as we did in Nestlehutt, by considering whether the

type of underlying claim of liability (there, medical malpractice) was

available in Georgia in 1798. See 286 Ga. at 733-734. As noted

above, Taylor brought a number of claims of liability against

Devereux, including a premises liability claim under OCGA § 51-3-

1, and Devereux conceded that it “breached the legal duty of

ordinary care owed to Tia McGee for her safety from sexual assault”

and that the breach contributed to McGee’s sexual assault.25

Because the jury rendered a general verdict on compensatory

damages and was not asked to determine which theory of liability

was the basis for its awards, we need only determine at this step if

one of Taylor’s underlying claims was available in Georgia in 1798.

Taylor contends that at common law in England, defendants

25 Under OCGA § 51-3-1, “[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” Devereux does not argue that it was not liable for premises liability. Thus, the question of whether Devereux properly could have been found liable for a violation of OCGA § 51-3-1 is not at issue on appeal. 45 could be liable for a failure to keep their premises safe for invitees,

and Devereux does not argue otherwise on appeal. Taylor appears

to be correct. See, e.g., Calye’s Case, 77 Eng. Rep. 520, 522 (1583)

(“[T]he inkeeper is bound in law to keep [his guest’s goods and

chattels] safe without any stealing or purloining[.]”); Gelley v. Clerk,

79 Eng. Rep. 164, 164-165 (1606) (explaining that an innkeeper may

be sued for failing to protect a guest’s horse kept at the inn). See

also Rider v. Smith, 100 Eng. Rep. 848, 848 (1790) (holding that the

plaintiff could bring an action against the defendant for not

repairing a road on the defendant’s ground that the plaintiff was

entitled to use); Payne v. Rogers, 126 Eng. Rep. 590, 590 (1794) (“If

the owner of a house is bound to repair it, he . . . is liable to an action

on the case for an injury sustained by a stranger from the want of

repair.”); Brock v. Copeland, 170 Eng. Rep. 328, 328-329 (1794)

(“[W]here there is either a public way, or the owner of a mischievous

animal suffers a way over his close to be used as a public one, if he

keeps such animal in his close, he shall answer for any injury any

46 person may sustain from it.”).26

Because Taylor has shown that at least one of the underlying

claims of liability supporting her punitive damages claim was

available in pre-1776 England, we proceed to the next step in

Nestlehutt’s analytical framework: determining whether the scope of

the right to a jury trial on this claim included the punitive damages

Taylor seeks—i.e., damages to punish Devereux for acting with an

“entire want of care.” We address this question by considering each

of the pre-1776 English cases Taylor relies on, particularly focusing

on six key English cases.27 We conclude that the cases Taylor cites

show that English juries in 1776 could award damages designed to

punish a defendant, or what we will call “punishment damages,” in

certain circumstances—but that Taylor offers no evidence that

English juries in 1776 or Georgia juries in 1798 could award

26 We acknowledge that these three cases were decided after 1776, but at

a minimum they provide some additional evidence that similar cases could have been brought in Georgia at the time these cases were decided.

27 These cases are discussed in detail throughout subsection (2) of this

division. We address the other pre-1776 English cases cited by Taylor in subsection (2) (c) of this division and footnote 40 below.

47 punishment damages for a claim that a defendant acted with an

“entire want of care,” and has therefore failed to show that the

punitive damages she seeks are within the scope of Georgia’s

(2) Taylor cites six cases in which English juries awarded damages to punish the defendant for claims of intentional misconduct.

As discussed above, Taylor argued that Devereux acted with

an “entire want of care”; on that basis, she sought—and the jury

awarded—punitive damages under Georgia’s modern punitive

damages statute, OCGA § 51-12-5.1.28 Taylor cites six cases, each

discussed below, that she says are examples of pre-1776 English

juries awarding the kind of punishment damages she sought and

received from the jury.29 We thus consider whether these cases show

28 As previously noted, punitive damages under OCGA § 51-12-5.1 are

awarded “to punish, penalize, or deter a defendant,” and they are awarded only for claims that the defendant acted with “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b), (c).

29 We acknowledge that in England around the time these six cases were

decided, “only a small proportion of decided cases was reported.” Honda Motor

48 that juries awarded damages to punish, penalize, or deter a

defendant based on a defendant acting with an “entire want of care.”

In discussing these cases, we bear in mind that, as noted above,

the term “punitive damages” as used today in OCGA § 51-12-5.1 “is

synonymous with the terms ‘vindictive damages,’ ‘exemplary

damages,’ and other descriptions of additional damages awarded

because of aggravating circumstances in order to penalize, punish,

or deter a defendant.” Id. (a). Thus, when considering whether a

1776 English jury could award damages like the kind Taylor sought

with her claim for “punitive damages” under OCGA § 51-12-5.1, the

key question is not the exact nomenclature of the damages available

at English common law, but rather the substantive purpose of the

damages—whether they were awarded “because of aggravating

circumstances in order to penalize, punish, or deter a defendant.”

OCGA § 51-12-5.1 (a). Notably, the term “exemplary damages,” a

term listed in OCGA § 51-12-5.1 (a) as “synonymous” with “punitive

Co., Ltd. v. Oberg, 512 U.S. 415, 423 (114 SCt 2331, 129 LE2d 336) (1994) (noting that in “the year Beardmore was decided, only 16 Common Pleas cases are recorded in the standard reporter”). 49 damages,” is used in some of the early English cases discussed

below. Id. While the term “exemplary damages” alone is not

dispositive of whether these damages were damages awarded “to

penalize, punish, or deter a defendant” like damages under OCGA §

51-12-5.1 (a) are, we consider the use of the term as part of the

description of the damages in determining their purpose.

We turn now to the cases.30 In Huckle v. Money, 95 Eng. Rep.

768 (1763), a claim for “[t]respass, assault, and imprisonment,” the

jury awarded “exemplary damages” of £300. Id. at 768. There, the

plaintiff, a “journey-man printer,” “was taken into custody by the

defendant (a King’s messenger) upon suspicion of having printed the

North Briton, Number 45,” and kept in custody “about six hours,”

but the defendant “used him very civilly by treating him with beef-

steaks and beer, so that he suffered very little or no damages.” Id.

The warrant used to justify the plaintiff’s seizure was granted by the

30 We note that Taylor has not cited any pre-1776 English or pre-1798

Georgia cases addressing claims of premises liability, or any of the other claims she raises, where punishment damages were awarded. However, the following cases are instructive on whether juries could award damages to punish defendants and the types of claims that would support such damages in 1798. 50 Secretary of State “without any information or charge laid before the

Secretary of State, . . . and without naming any person whatsoever

in the warrant.” Id. After the defendant argued that the jury had

given excessive damages, Chief Justice Pratt explained that “the

personal injury done to [the plaintiff] was very small, so that if the

jury had been confined by their oath to consider the mere personal

injury only,” the jury’s award would have been too high. Id.

However, the Chief Justice held that because of the magistrate’s

“exercising arbitrary power, violating Magna Charta, and

attempting to destroy the liberty of the kingdom,” he thought the

jury had “done right in giving exemplary damages.” Id. at 769.

In Wilkes v. Wood, 98 Eng. Rep. 489 (1763), a claim of “trespass,

for entering the plaintiff’s house, breaking his locks, and seizing his

papers” (again related to the North Briton), the jury was told it could

award “damages for more than the injury received” and awarded

£1,000. See id. at 498-499. There, Wood and “several of the King’s

messengers, and a constable,” entered Wilkes’s house, broke his

locks, and seized his papers based “upon a bare suspicion of a libel

51 by a general warrant, without name of the person charged.” Id. at

490. Chief Justice Pratt instructed the jury:

I have formerly delivered it as my opinion on another occasion, and I still continue of the same mind, that a jury have it in their power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.

Id. at 498-499.

Damages of £1,000 were also awarded and upheld in a similar

case for a claim of “trespass and false imprisonment” after the

defendants entered the plaintiff’s house, searched his private

papers, and confined him for six and a half days based on an illegal

warrant. See Beardmore v. Carrington et al., 95 Eng. Rep. 790, 790-

791, 793 (1764). The judge who presided over the case thought the

argument that “the jury were to measure the damages by what the

defendant had suffered by this trespass and six days and an half

imprisonment” to be a “gross absurdity,” and on appellate review,

the court concluded that the jury’s high damages were not excessive,

52 describing the defendant’s actions as “an unlawful power assumed

by a great minister of State” and “concern[ing] the liberty of every

one of the King’s subjects.” Id. at 793-794.

Similarly, in Grey v. Grant, 95 Eng. Rep. 794 (1764), a claim

for “assault and battery,” the jury awarded the plaintiff “exemplary

damages” of £200 after the defendant stole the turtle the plaintiff

shipped in from the West Indies, refused to return or pay for it

because “he had invited some friends to dine with him upon it,”

“shoved the plaintiff out of his house with his elbow,” and gave the

plaintiff “a blow upon the face, which caused a black eye.” Id. at 794-

795. The defendant argued that the amount of damages awarded by

the jury was too high, but the court held that “when a blow is given

by one gentleman to another, a challenge and death may ensue, and

therefore the jury have done right in giving exemplary damages[.]”

Id. at 795.

And in Benson v. Frederick, 97 Eng. Rep. 1130 (1766), a claim

based on the defendant “order[ing] [an] innocent man to be flogged,”

the jury awarded £150 after the defendant ordered that the plaintiff

53 be whipped because he was angry at the military official who had

granted the plaintiff furlough. Id. at 1130. The defendant argued

that the jury’s damages were too high, but the court held that it “was

not dissatisfied with the verdict,” explaining that the plaintiff,

“though not much hurt indeed, was scandalized and disgraced” and

“the defendant had acted very arbitrarily, and was well able to pay

for it[.]” Id.

Finally, in Tullidge v. Wade, 95 Eng. Rep. 909 (1769), a claim

of “trespass” and “assault,” the court held that the £50 the jury

awarded were not excessive in a case where the defendant “with

force and arms made an assault upon A. B. daughter and servant of

the plaintiff, and got her with child.” Id. at 909. The Chief Justice

explained: “Actions of this sort are brought for example’s sake; and

although the plaintiff’s loss in this case may not really amount to

the value of twenty shillings, yet the jury have done right in giving

liberal damages.” Id. He also noted that if A. B. brought another

action against the defendant “for the breach of promise of marriage,

54 so much the better; he ought to be punished twice.” Id.31

(a) Taylor offers evidence that juries were the arbiters of the large damages awarded in pre-1776 English cases.

In all six of the pre-1776 English cases Taylor relies on, the

jury decided the damages award—which suggests that the question

of damages was a jury question, and one in which English courts

were hesitant to meddle. See Beardmore, 95 Eng. Rep. at 793 (“We

desire to be understood that this Court does not say, or lay down any

31 In addition to these cases, Taylor points out that there are references

to “exemplary” damages in William Blackstone’s Commentaries on the Laws of England. See, e.g., Rouse v. State, 4 Ga. 136, 145 (1848) (looking to Blackstone’s Commentaries to determine “[w]hat was the trial by jury, as used in this State in 1798, the time when the Constitution was adopted”). Blackstone explained that when “Adultery, or criminal conversation with a man’s wife” is “considered as a civil injury, (and surely there can be no greater) the law gives satisfaction to the husband for it by an action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary.” 3 William Blackstone, Commentaries on the Laws of England 139 (1772). See also Black’s Law Dictionary (11th ed. 2019) (defining “vi et armis” as “[b]y or with force and arms”). Likewise, Blackstone noted with respect to nuisance claims brought in the form of action called an “action on the case”: “[E]very continuance of a nu[i]sance is held to be a fresh one; and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardiness to continue it.” Blackstone at 220 (emphasis in original). Although these are only brief references, they support the idea that punishment damages existed in England before 1776 and that juries were authorized to award them in at least some cases. See footnote 35 for a discussion about “trespass vi et armis” and “action on the case.” 55 rule that there never can happen a case of such excessive damages

in tort where the Court may not grant a new trial; but in that case

the damages must be monstrous and enormous indeed, and such as

all mankind must be ready to exclaim against, at first blush.”);

Wilkes, 98 Eng. Rep. at 498 (instructing the jury that it “ha[d] it in

their power to give damages for more than the injury received”). See

also 3 William Blackstone, Commentaries on the Laws of England

397 (1772) (“[W]here damages are to be recovered, a jury must be

called in to assess them; unless the defendant, to save charges, will

confess the whole damages laid in the declaration[.]”); Nestlehutt,

286 Ga. at 734 (citing Blackstone, among other sources, to show that

the jury determined damages). Thus, consistent with Nestlehutt,

Taylor has shown that in pre-1776 England, juries generally

determined the amount of damages and were empowered to award

large amounts of damages in certain circumstances. The next

question we consider is whether those large damages were, like

modern punitive damages, damages designed to punish the

56 defendant.32

(b) Taylor has shown that in pre-1776 English cases, at least some damages were awarded to punish.

We now evaluate whether the six English cases Taylor cites

involved juries awarding the kind of damages Taylor seeks in her

suit, i.e., damages to punish. Devereux acknowledges that the six

cases cited by Taylor show examples of juries giving large damages

awards, but Devereux argues that the damages the English juries

in those cases awarded are not equivalent to the punitive damages

Taylor seeks in this case because the former were not damages

designed to punish a defendant. See OCGA § 51-12-5.1 (c) (“Punitive

damages shall be awarded not as compensation to a plaintiff but

solely to punish, penalize, or deter a defendant.”). Instead,

Devereux argues that no punishment damages existed in pre-1776

32 Devereux argues that whether to award punitive damages at common

law was not a jury question because Nestlehutt described punitive damages as “not really a ‘fact’ ‘tried’ by the jury.” 286 Ga. at 736 (citation and punctuation omitted). However, this statement in Nestlehutt was dicta, and to the extent it can be read as indicating that punishment damages were not a component of the damages decided by a jury in pre-1776 England or pre-1798 Georgia, we disapprove it. 57 England, and that the damages that seemed disproportionately high

compared to the injury awarded in the cases discussed above were

really only compensation for non-economic damages. See Simon

Greenleaf, 2 Treatise on the Law of Evidence 243 (16th ed. 1899)

(asserting that “the terms ‘exemplary damages,’ ‘vindictive

damages,’ ‘smart-money,’ and the like” “seem to be intended to

designate in general those damages only which are incapable of any

fixed rule, and lie in the discretion of the jury; such as damages for

mental anguish, or personal indignity and disgrace, etc., and these,

so far only as the sufferer is himself affected”). See also Smith v.

Overby, 30 Ga. 241, 248 (1860) (explaining that in cases such as an

assault and battery, “the injury is to [the plaintiff’s] feelings — his

honor — his pride — his social position,” and explaining that in such

cases, the jury “should render large damages, not as punishment,

but to compensate the actual injury”) (emphasis supplied).

It is true that the structure of the damages awards in pre-1776

English cases appears to be somewhat different than it is today. The

damages verdicts discussed in those cases were comprised of one

58 large sum, meaning that any punishment damages that were

awarded were not clearly separated out from compensatory damages

that were also awarded, as they would be today. See, e.g., Wilkes,

98 Eng. Rep. at 499 (noting that the jury awarded the plaintiff

£1,000); Grey, 95 Eng. Rep. at 794 (noting that the jury awarded the

plaintiff £200). This makes it difficult, in retrospect, to identify

which portions of those verdicts, if any, were serving a purpose of

punishment. And it does appear that there may have been some

elements of non-economic compensatory damages included in the

high awards some English juries gave: for example, the court in

Benson noted the “scandal[ ] and disgrace[ ]” experienced by the

plaintiff when considering whether the jury’s verdict was excessive.

97 Eng. Rep. at 1130.

However, we reject Devereux’s argument that punishment

damages did not exist at all in pre-1776 England, and that the high

damages English juries awarded were exclusively compensatory in

nature. To the contrary, the six English cases discussed above show

that some of the damages English juries awarded served “as a

59 punishment to the guilty, to deter from any such proceeding for the

future.” Wilkes, 98 Eng. Rep. at 498-499. See also Tullidge, 95 Eng.

Rep. at 909 (noting that high damages and possibly another lawsuit

were appropriate because the defendant “ought to be punished

twice”). Moreover, other cases reference “exemplary damages” and

damages “for example’s sake,” indicating that the damages the

juries awarded did not serve a compensatory purpose; they were

awarded to make an example out of the bad actor, expressing

society’s outrage against this action and deterring future abuses.

See, e.g., Huckle, 95 Eng. Rep. at 769 (holding that the jury had

“done right in giving exemplary damages”); Tullidge, 95 Eng. Rep.

at 909 (noting that “[a]ctions of this sort are brought for example’s

sake”); Grey, 95 Eng. Rep. at 795 (“[T]he jury have done right in

giving exemplary damages[.]”). Thus, we conclude that punishment

damages of some kind existed in England in 1776, and the mere fact

that jury awards may have been partially compensatory—for

economic and non-economic damages—does not erase the fact that

the juries were authorized to award some damages designed to

60 punish the defendant. Taylor has therefore shown that punishment

damages existed in England in 1776.

(c) In 1776 England, damages were not awarded to punish defendants who acted only with an “entire want of care.”

Continuing our analysis of whether the punitive damages

Taylor seeks were included within the scope of the jury trial right in

1798 Georgia, we consider whether the cases Taylor cites show that

her claim that Devereux acted with an “entire want of care” was the

kind of claim that could have supported punishment damages in

1776 England. Devereux contends that even if damages were

awarded to punish defendants, they were awarded only in cases

where the defendant engaged in “intentionally abusive conduct” or

had a “specific intent to inflict harm.” Here, by contrast, Taylor’s

claim for punitive damages stemmed from an allegation that

Devereux acted with an “entire want of care.” See OCGA § 51-12-

5.1 (b) (providing for punitive damages when a defendant’s actions

show “that entire want of care which would raise the presumption

61 of conscious indifference to consequences”).33 And because Taylor’s

claim of premises liability required only that she prove that

Devereux “fail[ed] to exercise ordinary care in keeping the premises

and approaches safe,” OCGA § 51-3-1, she did not need to prove any

intentional misconduct to prevail on her underlying claim of

premises liability under OCGA § 51-3-1 or as part of her claim for

punitive damages under OCGA § 51-12-5.1 (b).34

We acknowledge that nothing contained in the English cases

discussed above expressly limited punishment damages to claims of

intentional misconduct. However, Taylor has the burden of showing

a “clear and palpable” conflict between OCGA § 51-12-5.1 (g) and

Georgia’s constitutional right to trial by jury. Barnhill, 315 Ga. at

311. And unlike the claim at issue in this case, each of the cases

Taylor has cited to show the use of punishment damages before 1798

33 As noted above, Taylor did not contend that her claim for punitive

damages was based on Devereux acting with “the specific intent to cause harm” under OCGA § 51-12-5.1 (f).

34 Likewise, Taylor was not required to show that Devereux engaged in

intentional misconduct with respect to the other claims she alleged (which are recounted above in Division I).

62 involved a claim of intentional misconduct. Indeed, the claims in

those cases were for “[t]respass, assault, and imprisonment,”

Huckle, 95 Eng. Rep. at 768; “trespass, for entering the plaintiff’s

house, breaking his locks, and seizing his papers,” Wilkes, 98 Eng.

Rep. at 489; “trespass and false imprisonment,” Beardmore, 95 Eng.

Rep. at 790; “assault and battery,” Grey, 95 Eng. Rep. at 794;

“order[ing] [an] innocent man to be flogged,” Benson, 97 Eng. Rep.

at 1130; and “[t]respass” and “assault,” Tullidge, 95 Eng. Rep. at

909. See also Blackstone at 208 (explaining that an action for

trespass generally includes “any misfeasance, or act of one man

whereby another is injuriously treated or damnified”); id. at 209

(explaining that trespass in the more “limited” sense means “an

entry on another man’s ground without a lawful authority, and

doing some damages, however inconsiderable, to his real property”);

id. at 120 (explaining that assault “is an attempt or offer to beat

another,” such as if “one lifts up his cane, or his fist, in a

threat[e]ning manner at another; or strikes at him, but misses

him”); id. at 127 (explaining that false imprisonment requires “1.

63 The detention of the person; and, 2. The unlawfulness of such

detention,” including “confinement or detention without sufficient

authority”); id. at 120 (explaining that battery “is the unlawful

beating of another,” including “[t]he least touching of another’s

person wilfully, or in anger”).35 Additionally, an examination of

35 At this time (before and during 1776), claims for injuries were divided

into actions of “trespass vi et armis” (or simply “trespass”) and actions for “trespass on the case” (also known as “actions on the case”). Blackstone at 209. “[W]henever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, and action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.” Id. See also Blackstone at 122 (explaining that the “action, of trespass, or transgression, on the case, is an [sic] universal remedy, given for all personal wrongs and injuries without force . . . . And it is a settled distinction, that where an act is done which is in itself an immediate injury to another’s person or property, there the remedy is usually by an action of trespass vi et armis; but where there is no act done, but only a culpable omission; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trespass vi et armis will lie, but an action on the special case, for the damages consequent on such omission or act”). The claims in the six cases described above—such as for assault, battery, and false imprisonment—were brought as actions for trespass vi et armis. See Blackstone at 120-121 (assault and battery), 138 (false imprisonment). Actions on the case, on the other hand, “may be regarded as the ancestor of the modern tort action based on negligence.” Sonja Larsen, 1 Am. Jur. 2d Actions, § 18 Trespass on the case; as distinguished from trespass (Feb. 2023 update). “Some authority makes the distinction” between trepass vi et armis and trespass on the case “on the basis of the defendant’s intent, stating that trespass involves a willful and deliberate act while trespass on the case contemplates an act or omission resulting from negligence.” Id. However, some actions on the case could still involve claims of defendants engaging in

64 some of the language used to describe the wrongs for which

punishment damages were awarded in those cases shows that the

defendants’ intentional misconduct was in fact a key aspect of the

claims for which punishment damages were awarded.

For example, in Huckle, the Chief Justice of the King’s Bench

described the defendant’s actions of executing an illegal warrant as

attempting to destroy the liberty of the kingdom.” 95 Eng. Rep. at

769. In Wilkes, the Chief Justice discussed the Secretary of State’s

“claim[ing] a right . . . to force persons houses, break open escrutores,

seize their papers, [etc.].” 98 Eng. Rep. at 498. Similarly in

Beardmore, the court described the defendant’s actions as “an

unlawful power assumed by a great minister of State.” 95 Eng. Rep.

intentional misconduct. Notably, actions for nuisance, discussed above in footnote 31 and again in footnote 37 below, were generally brought as actions on the case at English common law. See Blackstone at 220. However, as explained in footnote 37, the nature of the acts alleged to support a repeated nuisance claim—which includes continuing the actions that create a nuisance after notice of the initial claim—could support an award of “exemplary damages” because the defendant in such a case would have engaged in intentional misconduct.

65 at 794. In this way, it is clear that the claims in these cases—which

the court agreed with—were not that the defendants negligently or

carelessly searched the plaintiff’s houses but rather that these

defendants knowingly “exercis[ed] arbitrary power,” “claimed a

right,” or “assumed” “an unlawful power,” Huckle, 95 Eng. Rep. at

769; Wilkes, 98 Eng. Rep. at 498; Beardmore, 95 Eng. Rep. at 794—

not that the defendants acted merely with an “entire want of care.”36

36 As the dissenting opinion points out, the defendants in Huckle, Wilkes,

and Beardmore were the people who executed the illegal warrants, rather than the government official who issued them. But we do not see how this fact affects the conclusion that those cases involved claims of intentional misconduct. The dissenting opinion asserts that the defendants in these cases “understood” the warrants “to be legally sanctioned” and that “[f]rom the defendants’ points of view . . . they had legal authority and justification to enter the plaintiffs’ homes” and engage in the associated conduct, Dissent Op. pp. 110-111. As an initial matter, none of the cases actually say or even indicate that was so. But in any event, the juries in those cases found the defendants liable for claims of intentional misconduct—trespass (in all three cases) and assault and false imprisonment (in some of the cases)—and the courts in fact attributed intentional misconduct to the defendants. The court in Huckle, for example, described “enter[ing] a man’s house by virtue of a nameless warrant” as “worse than the Spanish Inquisition,” 95 Eng. Rep. at 769, and indicated that the warrant, which plainly did not name any specific person, was directed to the messengers: [A] warrant was granted by Lord Halifax, Secretary of State, directed to four messengers, to apprehend and seize the printers and publishers of a paper called the North Briton, Number 45, without any information or charge laid before the Secretary of State, previous to the granting thereof, and without naming any

66 person whatsoever in the warrant; Carrington, the first of the messengers to whom the warrant was directed, from some private intelligence he had got that Leech was the printer of the North Briton, Number 45, directed the defendant to execute the warrant upon the plaintiff, (one of Leech’s journeymen,) and took him into custody for about six hours. 95 Eng. Rep. at 768 (emphasis supplied). Similarly, in Wilkes, the judge noted that evidence was presented from which the jury could infer that the defendant Wood was “very active in the affair” and explained to the jury that if it found that Wood was an “[a]ider[ ] and abetter[ ],” rather than “a person present remains only a spectator,” it “must find a verdict for the plaintiff with damages”—which it did. Wilkes, 98 Eng. Rep. at 498. And in his explanation of the punishable conduct, the judge discussed both “the defendants” and Lord Halifax: The defendants claimed a right, under precedents, to force persons houses, break open escrutores, seize their papers, [etc.] upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a Secretary of State, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject. Id. (emphasis supplied). Finally, although the dissenting opinion asserts that the court in Beardmore “acknowledged the argument that Lord Halifax was ‘more culpable’” than the defendants, Dissent Op. p. 111, the full context of that quote shows that the court was not persuaded by that argument: [T]he plaintiff has still another action against Lord Halifax, who, it is said, is more culpable than the defendants, who are only servants, and have done what he commanded them to do, and therefore the damages are excessive as to them: but we think this is no topic of mitigation, and for any thing we know the jury might say, “We will make no difference between the minister who executed, and the magistrate who granted this illegal warrant;” so the Court must consider these damages as given against Lord Halifax. Beardmore, 95 Eng. Rep. at 793 (emphasis supplied). Contra Dissent Op. p.

67 Similarly, in Grey, the court noted that the defendant’s acts

were all acts of intentional misconduct: “the plaintiff has been used

unlike a gentleman by the defendant in striking him, withholding

his property, and insisting upon his privilege,” 95 Eng. Rep. at 795.

And in explaining why the damages were not excessive in Benson,

the court noted that the defendant “had manifestly acted arbitrarily,

unjustifiably and unreasonably” in ordering an “innocent man to be

flogged (though unjustly and improperly,) merely out of spite to his

major” and the defendant “acted malo animo, and out of mere spite

and revenge.” 97 Eng. Rep. at 1130. And in Tullidge, the evidence

showed that the defendant “made his addresses to [the plaintiff’s

daughter] as a lover, with an intention (as she then thought) to

marry her,” and that the defendant “promised her marriage, and got

her with child.” 95 Eng. Rep. at 909. In other words, the defendant

engaged in intentional misconduct, lying to the plaintiff and his

111 n.83. In sum, in all three of these illegal warrant cases, punishment damages were given for claims of intentional misconduct that was attributed not only to the person who ordered the intentional misconduct, but also to the defendants who carried it out.

68 daughter about his intentions and taking advantage of them.37 The

defendant’s intentional misconduct in these cases was, in this way,

a crucial part of the plaintiff’s overall claim for damages, including

for punishment damages.38

Taylor, however, contends that another case from pre-1776

England shows that punishment damages were awarded in cases

37 The descriptions of exemplary damages in Blackstone support that

such damages were given only in cases of intentional misconduct, including for “adultery” and repeated nuisance. Although an initial nuisance arguably could be caused by mere negligence and a nuisance claim was considered to be an “action on the case,” “exemplary” damages were available for a nuisance claim only when the nuisance was repeated, meaning “the defendant has the hardiness to continue,” Blackstone at 220, thus demonstrating intentionality insofar as the defendant continued the nuisance, even after being notified (by a first lawsuit) that the act was harming the plaintiff.

38 In addition to intentional misconduct, other aggravating circumstances were often listed by the courts in explaining why juries were authorized to award punishment damages. For example, in cases of trespass based on an illegal warrant, the court emphasized the outrage to conceptions of liberty. See, e.g., Huckle, 95 Eng. Rep. at 769 (describing the defendant’s act of “enter[ing] a man’s house by virtue of a nameless warrant” as “worse than the Spanish Inquisition”); Wilkes, 98 Eng. Rep. at 498 (telling the jury that the Secretary of State’s actions “certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject”). And in Tullidge, the court noted that the defendant’s insult to the plaintiff was particularly galling where “the plaintiff ha[d] received this insult in his own house; where he had civilly received the defendant, and permitted him to make his addresses to his daughter.” 95 Eng. Rep. at 909.

69 where intentional misconduct was not a required element: Farmer

v. Darling, 98 Eng. Rep. 27 (1766). Extrapolating from this case,

Taylor argues that in 1798 Georgia, intentional misconduct was not

required to authorize punishment damages. We disagree.39

In Farmer, the plaintiff had spent £140 defending himself

against two claims brought by the defendant, which the plaintiff

alleged were malicious prosecutions. See 98 Eng. Rep. at 28-29. The

jury awarded the plaintiff £250 in damages, and on review, the court

concluded that the damages were not excessive. See id. at 27-29.

Under applicable precedent, malicious prosecution could be proven

39 Citing Day v. Woodworth, 54 U.S. 363 (14 LE 181) (1852), Taylor also

argues that punishment damages could be awarded in all torts: “It is a well- established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff.” Id. at 371. Day, however, addressed a lawsuit between “a citizen of New York” and “citizens of Massachusetts” for an alleged trespass in Massachusetts, and was decided in 1851. Id. at 363. And although Day broadly referred to the “common law,” it did not cite any cases in support of this statement or even clarify to which sources it was looking to determine the scope of “common law.” Thus, we do not view this broad statement in Day in 1851 to be compelling evidence of the kinds of claims in which punishment damages could be awarded in England in 1776 or in Georgia in 1798.

70 by “express or implied” malice, and the judge reported that “[i]t

appeared upon the report ‘that there was malice implied.’” 98 Eng.

Rep at 27. Taylor argues that the high damages in that case were

awarded to punish the defendant based only on implied malice and,

citing a case from this Court that was decided more than 200 years

after Farmer—Parker v. State, 270 Ga. 256 (507 SE2d 744) (1998),

overruled in part on other grounds by Linson v. State, 287 Ga. 881,

886 (700 SE2d 394) (2010)—contends that implied malice is

equivalent to “reckless disregard,” and that intentional misconduct

was not required to authorize punishment damages as a result. See

Parker, 270 Ga. at 260 (“[R]eckless disregard for human life may be

the equivalent of a specific intent to kill.”).

We disagree with Taylor’s characterization of Farmer and with

her assessment of its significance. First, it is not clear that the high

damages awarded in Farmer actually were punishment damages.

There was no discussion in the opinion of punishment or making an

example of the defendant; the judge told the jury that it could award

the expenses paid by the plaintiff, or less, or “more, if they should

71 see it proper to do so,” and the plaintiff argued that the jury should

consider “[t]he distress and vexation, and all the inconvenience the

plaintiff was put to . . . as well as the pecuniary [expense]”—that is,

ordinary economic and non-economic damages. 98 Eng. Rep. at 27-

28. Second, Parker was a criminal case addressing the statutory

elements of malice murder and whether a “reckless disregard for

human life” could meet those requirements. See 270 Ga. at 259-260.

Parker’s holding, even assuming it is correct, cannot be mapped onto

the civil issue in Farmer 200 years in the past to require the

conclusion that a defendant can be found guilty of malicious

prosecution based on a jury finding that the defendant maliciously

prosecuted the plaintiff but did not engage in intentional

misconduct.

Finally, although claims of malicious prosecution were

generally brought as actions on the case (see footnote 35 for more

discussion of “actions on the case”), they involved a claim that the

defendant engaged in intentional misconduct. See Blackstone at

126 (explaining that a “way of destroying or injuring a man’s

72 reputation is, by preferring malicious indictments against him;

which, under the mask of justice and public spirit, are sometimes

made the engines of private spite and enmity,” and the “usual way”

for bringing a claim for this injury is “by a special action on the

case”). For these reasons, Farmer does not show punishment

damages being given against a defendant based on something other

than intentional misconduct.40

40 Taylor also cites Bruce v. Rawlins, 95 Eng. Rep. 934 (1770), and three

cases dealing with claims of slander—Townsend v. Hughes, 86 Eng. Rep. 850 (1676), Duke of York v. Pilkington, 89 Eng. Rep. 918 (1682), and Roe v. Hawkes, 83 Eng. Rep. 316 (1663)—to show that English juries in 1776 could award punishment damages for claims like the one Taylor raises. In Bruce, the jury awarded £100 after the defendants trespassed in the plaintiff’s house to search for “uncustomed goods.” 95 Eng. Rep. at 934. Although the defendants “did very little or no damage,” the “plaintiff’s wife and daughter being only at home, were frightened and much surprised.” Id. The court held that £100 was not excessive. Id. at 934-935. The Chief Justice explained that “[t]he suspicion of having run-goods in his house is a very injurious imputation upon him; and though he is but a butcher, it is the same damage to him as if he was the greatest merchant in London,” and further opined that the defendants “invaded the plaintiff’s house and property, and disturbed his family.” Id. Like in Farmer, it is not clear that any of the £100 of damages were awarded to punish the defendant, rather than to compensate him for intangible harms. However, even assuming these damages are indeed punishment damages, the plaintiff in this case was required to prove that the defendant engaged in intentional misconduct. In Townsend, Pilkington, and Roe, juries awarded large damages for claims of slander. See Townsend, 86 Eng. Rep. at 850 (jury awarded £4,000); Pilkington, 89 Eng. Rep. at 918 (jury awarded £100,000); Roe, 83 Eng. Rep. at

73 By pointing only to pre-1776 English cases in which

punishment damages were awarded for claims that a defendant

engaged in intentional misconduct, Taylor has failed to show that

punishment damages could be awarded for her claim that Devereux

acted with an “entire want of care.” She has therefore failed to show

that the kind of punitive damages she seeks were within the scope

of the jury-trial right in Georgia in 1798.

316 (jury awarded £700). And in Townsend and Roe, the defendants requested new trials based on excessive damages, which the court denied. See 86 Eng. Rep. at 850; 83 Eng. Rep. at 316. However, Taylor points to nothing aside from the large damages award to support her argument that the damages in these cases were punishment damages, rather than, for example, damages for reputational harms. And even assuming the damages were punishment damages, these cases do not show that punishment damages could be awarded for claims that the defendant did not act with intentional misconduct. Even though slander claims were generally brought as actions on the case, see Blackstone at 123-124, such claims required showing that the defendant engaged in intentional misconduct, and in each of the three cases noted above, the defendants were alleged to have intentionally said unflattering things about the plaintiffs. See Blackstone at 125 (explaining that “[w]ords of heat and passion, . . . if productive and of no ill consequence” and “words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill will” are “not actionable” because “they are not maliciously spoken, which is part of the definition of slander”) (emphasis in original). See also id. at 123 (explaining that a claim for “Scandalis Magnatum”—the claim brought in Townsend and Pilkington—required showing that the defendant spoke words “in derogation of a peer, a judge, or other great officer of the realm” and that the claim for injuring a man’s reputation involves “a man, maliciously and falsely, utter[ing] any slander or false tale of another”).

74 (d) Early cases from other states do not show that punishment damages could be awarded for claims that did not involve the defendant’s intentional misconduct.

In addition to English cases, Taylor cites cases from other

states to argue that punitive damages were not limited to claims of

intentional misconduct. We first note that although all of these

cases were decided before 1798, we do not afford them significant

persuasive value as evidence of the law in Georgia in 1798 because

they are not Georgia cases.41 And even assuming for the sake of

argument that these cases shed some light on Georgia’s law in 1798,

it is important to recognize that each of these cases involves a

defendant who was punished (through high punishment damages)

for intentional misconduct.

41 Notably, these non-Georgia cases do not rely on any pre-1776 English

cases. And although it is possible that they are interpreting the same English common law in effect in Georgia at that time, the non-Georgia cases do not expressly indicate that is so, and in any event, Georgia’s interpretation of the English common law controls. See Slaton v. Hall, 168 Ga. 710, 716-717 (148 SE 741) (1929) (explaining that “[t]he common law is presumed to be the same in all the American States where it prevails. Though courts in the different States may place a different construction upon a principle of common law, that does not change the law”); Krogg v. Atlanta & West Point R., 77 Ga. 202, 214 (1886) (“[W]e are not bound by the interpretation of the common law, as made by the courts of Alabama.”). 75 Taylor first argues that Genay v. Norris, a 1784 case from

South Carolina, shows that juries could award punishment damages

in cases where there was no claim that the defendant engaged in

intentional misconduct. See 1 Bay 6, 6 (S.C. 1784). In Genay, the

defendant, a physician, put “a large portion of cantharides” in the

plaintiff’s drink and caused him “extreme and excruciating pain.”

Id. The defendant argued that “the whole transaction was nothing

more than what is usually termed a drunken frolic, and no injury

was seriously intended” and that he “mistook the quantity poured

into the glass; that he did not put so much, he thought, as would by

any means, injure [the plaintiff].” Id. at 6-7. But the trial court

appears to have rejected that argument, which is evident from its

charge to the jury that “this was a very wanton outrage upon a

stranger in the country” and that “notwithstanding it was called a

frolic, yet the proceedings appeared to be the result of a combination,

which wrought a very serious injury to the plaintiff, and such a one

as entitled him to very exemplary damages, especially from a

professional character, who could not plead ignorance of the

76 operation, and powerful effects of this medicine.” Id. at 7 (emphasis

supplied). In this way, the jury was told that the defendant knew

what he was doing when he caused the injury: he engaged in

intentional misconduct.42

The other pre-1798 non-Georgia cases Taylor cites fare no

better. Although they indicate that juries in these states could

award punishment damages, they do not show that such damages

could be awarded absent a claim grounded in intentional

misconduct. See Coryell v. Colbaugh, 1 N.J.L. 90, 91 (1791) (in an

“action of breach of promise of marriage,” charging the jury “not to

estimate the damages by any particular proof of suffering or actual

loss; but to give damages for example’s sake, to prevent such offences

in future”). See also Hoomes v. Kuhn, 4 Call 274, 278 (Va. 1792);

42 This case was brought as an “action on the case.” However, we note once again that the designation of this form of action does not itself control our analysis, and the instructions to the jury in this case show that the plaintiff acted with more than mere negligence or even recklessness—he instead engaged in intentional misconduct.

77 Legaux v. Feasor, 1 Yeates 586, 588 (Pa. 1795).43

Finally, Taylor points out that later discussions of punitive

damages in an influential American treatise concluded that a

“reckless disregard” of the rights of others was sufficient to support

an award of punitive damages, thus supporting the notion that

intentional misconduct was not required for a jury to award

punishment damages in Georgia in 1798. See Theodore Sedgwick,

2 A Treatise on the Measure of Damages 720 (9th ed. 1912) (“If the

injury is wantonly inflicted, exemplary damages may be recovered;

as for instance where the act was done with reckless disregard of the

rights of others, or of the consequences of the act.”) (emphasis

supplied; footnote omitted). However, all of the cases cited by

Sedgwick in support of this assertion were decided after 1830 and

43 We note that, like Genay, Legaux was brought as an “action on the

case,” and the court explained that this form of action was proper as long as the defendant did not use “unequivocal direct force.” 1 Yeates at 588. That the claim in Legaux was brought as an action on the case does not preclude our determination that the claim involved the defendant engaging in intentional misconduct.

78 none were decided in Georgia, thus diminishing their value for

answering the relevant question here.44

We do not dispute that at some point after 1798, punitive

damages were in some courts around the United States

authorized—in at least some instances—for conduct amounting to

something less than intentional misconduct, such as for wanton or

reckless disregard of the rights of others. See, e.g., Milwaukee & St.

Paul R. Co. v. Arms, 91 U.S. 489, 493-494 (23 LE 374) (1875)

(recognizing the power of the jury “to assess against the tort-feasor

punitive or exemplary damages” in circumstances where “the injury

complained of has been inflicted maliciously or wantonly, and with

circumstances of contumely or indignity,” and explaining that “the

44 We note that recklessness and similar states of mind have at times

long after 1798 been equated with an intentional misconduct under certain circumstances. See, e.g., George W. Field, A Treatise on the Law of Damages, 82-83 (2d ed. 1881) (explaining that in considering exemplary damages, “[t]he wrong must be intended, and the result of a spirit of mischief, wantonness, or of criminal indifference to civil obligations, or the rights of others, from which malice may well be inferred”) (emphasis supplied); Milwaukee & St. Paul R. Co. v. Arms, 91 U.S. 489, 493-494 (23 LE 374) (1875) (explaining that the jury could not award punitive damages “unless [the wrongful act] was done wilfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them”) (emphasis supplied). 79 malice spoken of in this rule is not merely the doing of an unlawful

or injurious act: the word implies that the wrong complained of was

conceived in the spirit of mischief, or criminal indifference to civil

obligations”) (emphasis supplied); Kountz v. Brown, 16 B.Mon. 577,

586 (55 Ky. 577) (1855) (“It is not alone for willful trespasses that

exemplary damages are authorized by law to be given, but they are

authorized also for acts of wanton and reckless carelessness.”).45

Courts in other states, however, indicated that punitive

damages were not available absent intentional misconduct. See

Cole v. Tucker, 6 Tex. 266, 268 (1851) (“Compensatory damages are

given where the injury is not tainted with fraud, malice, or willful

wrong; but where either of these elements intervene . . . damages

are given as well for compensation to the sufferer as for the

45 There is some evidence that by 1860, the law in England had similarly

expanded punishment damages beyond damages to punish only intentional misconduct. See Emblen v. Myers, 6 Hurlstone and Norman 54, 54 (1860) (concluding that “[i]n an action for wilful negligence, the jury may take into consideration the motives of the defendant, and if the negligence is accompanied with a contempt of the plaintiff’s rights and convenience, the jury may give exemplary damages,” with one judge explaining, “If in actions of trespass the plaintiff may recover damages beyond the amount of the actual injury, I see no reason why the same rule should not extend to wilful negligence”). 80 punishment of the offender.”); Hoyt v. Gelston & Schenck, 13 Johns.

141, 151-152 (N.Y. 1816) (noting that the judge held that the

plaintiff’s admission “that the defendants had not been influenced

by any malicious motives” in their conduct and “had not acted

therein with any view or design of oppressing or injuring the

plaintiff” “precluded the plaintiff from claiming any damages

against the defendants by way of punishment or smart money”).46

We do not view these much later developments, which varied from

state to state and court to court and were not clearly based in pre-

1776 English law, as persuasive evidence of what the law of Georgia

46 On the other end of the spectrum, at least one Georgia judge rejected

altogether the availability of punitive damages. See Cherry v. McCall, 23 Ga. 193, 200 (1857) (expressing “for [him]self” a “strong conviction” that “vindictive, or punitive, or exemplary, damages” are not “authorized by law”) (Benning, J., delivering the opinion of the Court); Macon & Western R. Co. v. Winn, 26 Ga. 250, 265 (1858) (“The doctrine of ‘punitive’ damages, is one for which I cannot see any warrant in the law.”) (Benning, J., dissenting). For the reasons addressed in our discussion of pre-1798 Georgia law above, this judge’s broad assertions that punishment damages were not supported by Georgia law were wrong. And his apparent misunderstanding of the history of punishment damages does not influence our view of what the law of Georgia was in 1798. Notably, the availability of punitive damages was codified in statute in Georgia in the 1860 Code of Georgia. See Code of 1860, Part 2, Title 8, Chapter V, § 2998 (effective Jan. 1, 1863) (“In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrong doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff.”). 81 was in 1798.

Accordingly, Taylor has only presented evidence from which we

can conclude that a plaintiff could succeed on a claim for punishment

damages in Georgia in 1798 against a defendant who engaged in

intentional misconduct. And she has not presented evidence from

which we can conclude that a jury would be authorized to award

such damages when a defendant acted only with an “entire want of

care.” It follows that the constitutionally protected right to a jury

trial in Georgia does not include the right to have a jury determine

punitive damages under the circumstances of this case.47

47 The dissenting opinion asserts that because juries were authorized to

award punishment damages under certain circumstances in pre-1776 England and “given the breadth of a jury’s authority,” Georgia’s constitutional right to a jury trial simply must have included “the right to have a jury determine whether punitive damages are warranted” and such a right therefore “inheres in a common law cause of action for premises liability.” Dissent Op. p. 109. But this assertion rests on multi-layered extrapolations unsupported by legal citations or analysis that compel this conclusion. Moreover, this conclusion—which is based more on speculation than legal authority—cannot meet Taylor’s burden of showing a “clear and palpable” conflict between the application of the statutory punitive damages cap to her claim and Georgia’s Constitution—a heavy burden that has long been the standard plaintiffs must meet to prevail on a claim that a statute is unconstitutional. See, e.g., Craig, 1 Ga. at 547 (explaining, in 1846, that a court is justified in declaring a statute unconstitutional only if “the opposition between the constitution and the law . . . [is] plain and palpable”); Flint River,

82 E. Conclusion

Taylor has failed to show that the right to a jury trial under

the Georgia Constitution protects the jury’s award of punitive

damages in this case. Although the cases cited by Taylor indicate

that the right to a jury trial extended to some aspects of her case,

they do not prove that the scope of the right included a jury awarding

the punitive damages she seeks. More specifically, Taylor has not

shown that juries in Georgia in or before 1798 or in England in or

before 1776 were authorized to award punishment damages for

claims in which the defendant acted only with an “entire want of

care,” as opposed to engaging in intentional misconduct. She has

therefore failed to meet the difficult burden of showing a “clear and

palpable” conflict between the application of the legislatively

enacted punitive-damages cap in OCGA § 51-12-5.1 (g) to her claim

and the right to a jury trial as preserved in the Georgia Constitution.

5 Ga. at 209 (explaining, in 1848: “It must be a very clear and palpable case, which would warrant the Judiciary to exercise this delicate duty of declaring a law unconstitutional[.]”); Carey, 9 Ga. at 258 (explaining, in 1851: “To set [statutes] aside, their repugnancy to the Constitution should be most manifest.”). 83 See Barnhill, 315 Ga. at 311. See also Metropolitan Cas. Ins. Co. of

N.Y. v. Huhn, 165 Ga. 667, 672 (142 SE 121) (1928) (“The provision

in our constitution in reference to trial by jury should never in any

way be impinged upon, in cases to which such provision is

applicable. But it is not applicable to this case.”).48 As a result,

Taylor has failed to prove that OCGA § 51-12-5.1 (g)—which the trial

court applied to reduce Taylor’s punitive damages award to

$250,000—violated her right to a jury trial protected by Article I,

Section I, Paragraph XI (a) of the Georgia Constitution.

IV. Separation of Powers

Taylor next argues that OCGA § 51-12-5.1 (g) is a violation of

the Georgia Constitution’s guarantee of the separation of powers.

Specifically, Taylor contends that the General Assembly cannot

48 Practically speaking, this means that the punitive damages awarded

in this case were purely statutory in nature—created by the General Assembly consistent with its power to authorize punitive damages more expansive than the punishment damages that were available before 1798—including by authorizing punitive damages for claims that did not exist in 1798 or for conduct (such as an “entire want of care”) that could not have been the basis for punishment damages in 1798. When a remedy such as punitive damages is not of constitutional origin and is instead purely a creation of statute, the Georgia Constitution’s jury-trial right does not prevent the General Assembly from modifying that remedy—including by restricting it. 84 define the limits of punitive damages as it has in OCGA § 51-12-5.1

(g) because putting a ceiling on punitive damages essentially

constitutes a legislative remittitur, and remittitur is a function

reserved exclusively for the judicial branch. For the reasons we

explain below, we disagree.

The Georgia Constitution provides: “The legislative, judicial,

and executive powers shall forever remain separate and distinct;

and no person discharging the duties of one shall at the same time

exercise the functions of either of the others except as herein

provided.” Ga. Const. of 1983 Art. I, Sec. II, Par. III. When it comes

to the General Assembly’s authority in our three-branch system, “we

have held that the Legislature generally has the authority to define,

limit, and modify available legal remedies.” Nestlehutt, 286 Ga. at

737. See also, e.g., Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 543

(436 SE2d 635) (1993) (“We have previously held that the legislature

may lawfully circumscribe punitive damages in this

85 circumstance.”).49 We have even made clear that “the General

Assembly properly can enact legislation that departs from the

common law. And, in fulfilling that legislative function, the General

Assembly has not invaded the province of the judiciary.” Dion v.

Y.S.G. Enterprises, Inc., 296 Ga. 185, 189 (766 SE2d 48) (2014)

(citations and punctuation omitted). Cf. Jones v. State, 290 Ga. 670,

676 (725 SE2d 236) (2012) (rejecting a challenge based on the

separation of powers doctrine because “the legislature acted within

constitutional bounds in establishing maximum and minimum

punishment and eliminating judicial discretion in sentencing

certain serious violent offenders”) (citation and punctuation

omitted).

As the discussion above shows, creating punitive damages like

those Taylor was awarded here—and defining the parameters of

that remedy’s availability—is a legislative power. Taylor argues,

however, that in creating a cap on punitive damages, the legislature

49 As explained in Division III above, the legislature’s authority to circumscribe damages may be limited by other constitutional provisions. 86 improperly infringed on the judicial power of determining whether

and when to grant a new trial.

It is true that the judicial branch alone has the power to “grant

new trials on legal grounds,” Ga. Const. of 1983 Art. VI, Sec. I, Par.

IV, and that “[j]udicial remittitur, the power to reduce a damages

award deemed clearly excessive, is a corollary of the courts’

constitutionally derived authority to grant new trials,” Nestlehutt,

286 Ga. at 737. In contending that OCGA § 51-12-5.1 (g) violates

the separation of powers, Taylor characterizes the punitive damages

cap contained in OCGA § 51-12-5.1 (g) as an improper legislative

remittitur—a contention that, if correct, very well could constitute a

legislative usurpation of judicial power.50 But we are not persuaded

50 Taylor points out that some cases from other states have opined that

legislative caps on damages are a violation of those states’ separation of powers doctrines because they infringe on the judicial power of remittitur. See Best v. Taylor Mach. Works, 179 Ill. 2d 367, 413 (689 NE2d 1057) (1997) (explaining that a cap on non-economic damages “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts,” and thus “functions as a ‘legislative remittitur’”); Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 654 (771 P2d 711) (1989), amended, 780 P2d 260 (Wash. 1989) (explaining that a statutory cap on non-economic damages “may, indeed, violate the separation of powers” because the cap applies without judicial “case-by-case determinations” of the circumstances of the case). As Devereux points out, however, other states have

87 that the limitation contained in OCGA § 51-12-5.1 (g) constitutes a

remittitur as Taylor argues.

Unlike judicial remittitur, which involves judges weighing

evidence and is authorized only where the “‘jury’s award of damages

is clearly so . . . excessive as to any party as to be inconsistent with

the preponderance of the evidence,’” damages caps “are

automatically triggered when a damages award exceeds the

threshold amount.” Nestlehutt, 286 Ga. at 737-738 (citing OCGA

§ 51-12-12 (b)). These caps do not require judges to weigh the

evidence or other circumstances of the individual cases. Instead, the

caps apply to all damages awards that fall under the statutorily-

rejected this idea of an improper legislative remittitur and concluded that damage caps do not run afoul of the required separation of powers. See Estate of Overbey v. Chad Franklin Nat. Auto Sales North, LLC, 361 SW3d 364, 378 (Mo. 2012) (holding that a cap on punitive damages “does not violate the separation of powers doctrine” and rejecting the argument that such a cap “restrain[ed] the judiciary’s power to grant remittitur of judgments”); Rhyne v. K-Mart Corp., 149 N.C. App. 672, 679 (562 SE2d 82) (2002) (rejecting a separation of powers challenge to a cap on punitive damages and explaining, “remittitur and the punitive damages cap operate under differing circumstances”); Gourley ex rel. Gourley v. Nebraska Methodist Health Sys., Inc., 265 Neb. 918, 955 (663 NW2d 43) (2003) (collecting cases that have “specifically disagreed with the reasoning that a cap acts as a legislative remittitur” and finding those cases more persuasive). 88 prescribed parameters. Thus, we conclude that the very nature and

operation of OCGA § 51-12-5.1 (g) is different from the nature of the

judicial remittitur power and does not infringe on the judicial power

as Taylor contends. Taylor’s claim that OCGA § 51-12-5.1 (g) is a

violation of the separation of powers required by the Georgia

Constitution fails.

V. Equal Protection

Finally, Taylor argues that OCGA § 51-12-5.1 (g) violates the

Georgia Constitution’s guarantee of equal protection. The Georgia

Constitution says: “Protection to person and property is the

paramount duty of government and shall be impartial and complete.

No person shall be denied the equal protection of the laws.” Ga.

Const. of 1983 Art. I, Sec. I, Par. II.

“In analyzing an equal protection challenge, the first step is

deciding what level of scrutiny to apply to the statute. If neither a

suspect class nor a fundamental right is implicated, the most lenient

level of judicial review—rational basis—applies.” Harvey v.

Merchan, 311 Ga. 811, 825-826 (860 SE2d 561) (2021) (citations and

89 punctuation omitted).51 Here, it is undisputed that Taylor is not a

member of a protected class, and the only fundamental right Taylor

argues is implicated by the statutory limit on punitive damages is

her right to a jury trial under the Georgia Constitution. As

explained in Division III above, the limit on punitive damages does

not violate her constitutional right to a jury trial, and she does not

argue that any other fundamental right is implicated. Thus, we

apply rational basis review to her claim. See Mack Trucks, 263 Ga.

at 541 (applying “the rational basis test, which the parties concede

is applicable here,” to an equal protection challenge to OCGA § 51-

12-5.1 (e) (2), which requires that 75 percent of a punitive damages

award in a product liability action be paid into the state treasury);

51 We note that in Harvey, as in many of our cases, we treated the equal

protection afforded by the Georgia Constitution as coextensive with that provided by the federal Constitution—in large part because the parties did not ask us to do otherwise. See 311 Ga. at 825 n.13. Although in this case, Taylor raises an equal protection claim under only the Georgia Constitution, “neither party makes an argument that the equal protection clause under Georgia’s Constitution should be construed differently than the parallel provision in the United States Constitution. Therefore, we decline to consider in this case whether the state provision should be considered any differently than the federal provision.” Id.

90 Teasley, 243 Ga. at 563-564 (considering whether “a rational

relationship” existed supporting the elimination of exemplary

damages for accident victims who did not sustain “serious injury”).52

Under the rational basis test, the party challenging the

constitutionality of a statute “bear[s] the burden of establishing that

52 Taylor cites some cases from other states that have applied a more

stringent test than rational basis in evaluating statutory caps on punitive damages. See Trujillo v. City of Albuquerque, 110 N.M. 621, 628 (798 P2d 571) (1990) (holding that intermediate scrutiny should be applied to an equal protection challenge to a cap on damages recovered from a city because “[a] tort victim’s interest in full recovery of damages calls . . . for a form of scrutiny somewhere between the largely toothless invocation of minimum rationality and the nearly fatal invocation of strict scrutiny”) (citation and punctuation omitted); Balboni v. Ranger American of the V.I., Inc., 70 V.I. 1048, 1096 (2019) (applying heightened rational basis review to review an equal protection challenge to a cap on non-economic damages in car accidents because “heightened rational basis review represents the appropriate standard for determining the validity of a Virgin Islands statute under the equal protection clause of the Virgin Islands Bill of Rights”). We are not persuaded by the reasoning in these cases and note that the majority of states have applied the rational basis test. See Gourley, 265 Neb. at 946 (collecting cases and noting that “[a] majority of jurisdictions apply a rational basis or other similar test and determine that a statutory cap on damages does not violate equal protection”). See also, e.g., Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1, 21 (509 SE2d 307) (1999) (“[N]o fundamental right or suspect class is affected by application of the medical malpractice cap.”); Phillips v. Mirac, Inc., 251 Mich. App. 586, 596-597 (651 NW2d 437) (2002) (applying rational basis to review a cap on recoverable damages for certain motor vehicle accidents, explaining that the cap “does not create an inherently suspect classification, nor is the fundamental right to a jury trial implicated” and that the cap is one of the “classification schemes created by various tort reform legislation [that] are social or economic legislation,” which the court had held was subject to the rational basis test). 91 they are treated differently than similarly situated individuals and

that there is no rational basis for such different treatment.” Harvey,

311 Ga. at 826 (citations and punctuation omitted). “And because

statutes are presumed to be constitutional, the party challenging the

law must negate every conceivable basis that might support it.” Id.

See also State v. Nankervis, 295 Ga. 406, 408 (761 SE2d 1) (2014)

(“Under the rational basis test, a court will uphold the statute if,

under any conceivable set of facts, the classifications drawn in the

statute bear a rational relationship to a legitimate end of

government not prohibited by the Constitution.”) (citations and

punctuation omitted).

Here, Taylor argues that because OCGA § 51-12-5.1 (g)

established a fixed amount as the cap on punitive damages, it treats

similarly situated tort plaintiffs differently based on the amount of

punitive damages the jury awards, explaining that, for example,

where a jury awards $250,000 in punitive damages, the victim

recovers 100 percent of the jury’s award, but in a case like this one,

where a jury awards $50,000,000, the plaintiff recovers only 0.5

92 percent of the jury’s award. But even assuming for the sake of

argument that (1) the two plaintiffs in Taylor’s hypothetical are

similarly situated for purposes of an equal protection analysis and

(2) recovering different percentages of a jury’s award is a difference

that is cognizable under the equal protection rubric, Taylor’s

contention still fails. That is because we can identify a “conceivable

basis that might support” this different treatment. Harvey, 311 Ga.

at 826. For example, the General Assembly could have concluded

that choosing a flat-sum cap rather than a cap based on, for example,

a percentage of the jury’s award was an appropriate way to address

the need to punish and deter defendants while limiting economic

uncertainty. See Mack Trucks, 263 Ga. at 543 (explaining that “the

legislature has determined that, absent specific intent to harm,

there are public policy reasons which dictate that a cap should be

placed on punitive damages”).

Taylor further argues that the limit of $250,000 is not

rationally related to any purpose that could be served by a limit on

punitive damages because $250,000 is an arbitrary amount.

93 However, to the extent this argument varies from the argument

addressed above and is simply a challenge to the General Assembly’s

choice of $250,000, Taylor does not explain how $250,000 (as

opposed to some other amount) treats similarly situated plaintiffs

differently. That is a threshold requirement of an equal protection

argument, and the argument fails for the lack of it.53

Thus, Taylor has failed to demonstrate a violation of the

Georgia Constitution’s equal protection guarantee. And because

Taylor has not met the heavy burden required to show that OCGA §

51-12-5.1 (g) violates the Georgia Constitution, we affirm the trial

court’s order reducing the punitive damages award to $250,000.

Case No. S22X1061

VI. Sufficiency of the Evidence Supporting the Jury’s Punitive Damages Award

In its cross-appeal, Devereux first argues that the trial court

should have granted its motion for a directed verdict on Taylor’s

53 This threshold requirement is also missing from Taylor’s argument

that because the $250,000 cap is not adjusted to inflation, it is too low to serve its intended purpose now. 94 claim for punitive damages. As noted above, OCGA § 51-12-5.1 (b)

says: “Punitive damages may be awarded only in such tort actions

in which it is proven by 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.”

Indeed,

[s]omething more than the mere commission of a tort is necessary for the imposition of punitive damages. Negligence alone, even gross negligence, is insufficient to support punitive damages. Punitive damages cannot be imposed without a finding of culpable conduct based upon either intentional and wilful acts, or acts that exhibit an entire want of care and indifference to consequences.

MDC Blackshear, 273 Ga. at 173. When reviewing a jury’s verdict

that the plaintiff is entitled to punitive damages, an appellate court

considers whether there is any evidence to support the jury’s verdict

under the “clear and convincing” standard. See Poverty Destroyed

Forever, LLC v. Visio Financial Services, Inc., 360 Ga. App. 691, 692

(859 SE2d 612) (2021).

Here, Devereux argues that the jury could not find that there

95 was clear and convincing evidence that Devereux acted with “an

entire want of care and indifference to consequences” because there

was evidence from which the jury could conclude that Devereux took

some measures to ensure McGee’s safety. For example, Devereux

points to evidence that it vetted Singleterry and had no reason to

believe he posed a danger, that Devereux prohibits sexual contact

between staff and residents and trains staff about setting

boundaries and sexual risk reduction, and that the number of direct-

care professionals assigned to McGee’s cottage on the night of the

assault satisfied Devereux’s required ratios. However, in reviewing

the jury’s verdict on appeal, we consider whether there is any

evidence to support the jury’s verdict—not whether there was any

evidence from which the jury could have concluded that Devereux’s

actions showed care.

With respect to the applicable “any evidence” standard, we

conclude that Taylor did, indeed, present evidence from which jurors

could have inferred that Devereux acted with “an entire want of care

and indifference to consequences” with respect to McGee. To that

96 end, although evidence was presented that Devereux ran a

background check on Singleterry—as it does on all employees before

they begin employment—evidence was also presented that despite

Devereux’s hiring policies, there were still incidents of Devereux

staff members in other states sexually assaulting residents,

including three before 2012 and five after 2012, and one incident of

a staff member “grooming” two patients in the Georgia facility in

2017.54 The jury also could have credited evidence that Devereux

knew that its training and supervision policies failed to prevent two

incidents of patients sexually assaulting other patients in 2013 at

the Georgia facility as well as the three incidents of inappropriate

sexual activity between McGee and other residents in 2012. A

Devereux employee testified that the incidents happened because of

“poor supervision” and acknowledged that the staff needed “further

training.” As to training, although Hartman testified that all direct-

54 Devereux argues that these other occurrences were not sufficiently

similar to constitute evidence in support of punitive damages. Of course, if the jury found these other incidents too dissimilar, it was authorized to disregard them. 97 care professionals were trained in “sexual risk reduction,” Mays and

Hudson testified that they were not given any training as to how to

address “sexually reactive” patients. Further, Mays testified that

she was not even told about McGee’s “sexual reactivity” when

assigned to supervise McGee’s cottage.

Although evidence was presented that a sufficient number of

direct-care professionals were assigned to McGee’s cottage based on

Devereux’s required supervision ratios, the jury could have

nonetheless credited evidence that the required ratios were

routinely disregarded by direct-care professionals who left shifts

early, and by Devereux, which took no action to address that

situation. And although evidence was presented that there was no

indication Singleterry was a danger to any residents, the jury could

have credited testimony that Singleterry being assigned to a female

cottage was “a mismatch for him” and that he was assigned to

supervise McGee’s cottage only because Devereux had “a limited

staff on the shift.” The jury was also entitled to credit Mays’s

testimony that if she had been fully informed about McGee’s “sexual

98 reactivity,” she would not have left Singleterry alone to supervise

McGee’s cottage. Finally, the jury could have credited evidence that

after the sexual assault, Devereux did not take appropriate steps to

help McGee recover from her trauma and did not implement its own

recommendations to improve Devereux’s hiring and training

procedures developed in response to the crime. Given all of this

evidence, and especially in light of McGee’s history of being sexually

abused and acting out sexually and her recent sexual activity at

Devereux in three separate incidents, the jury could have concluded

that Taylor presented clear and convincing evidence that Devereux’s

conduct demonstrated an “entire want of care” with respect to the

safety of McGee and its other patients.

Even to the extent evidence was presented that supported the

reasonableness of Devereux’s training, hiring, or employment

policies, or conflicting evidence was presented—such as about

employee training related to sexual risks for residents or the efficacy

of Devereux’s supervision ratios—there was also evidence presented

from which the jury could conclude that Taylor presented clear and

99 convincing evidence that Devereux’s actions toward McGee

demonstrated an “entire want of care which would raise the

presumption of conscious indifference to consequences.” See, e.g.,

Ponce de Leon Condos. v. DiGirolamo, 238 Ga. 188, 189-190 (232

SE2d 62) (1977) (holding that when the “appellants made some

effort to alleviate” the run-off problem they created, but did not

address the source of the problem, “[t]he jury was authorized to find

that appellants had acted with ‘conscious indifference’ to

consequences, if not in creating, then in failing to correct a drainage

system which was causing damage to appellee”); Jones v. Bebee, 353

Ga. App. 689, 695 (839 SE2d 189) (2020) (holding that the trial court

did not err by denying the motion for directed verdict on punitive

damages, because “while it is true that there was some evidence of

remedial steps taken by the Joneses after the first two attacks by

their dog, it was for the jury to determine ‘whether the actions (the

Joneses) took on the day of the incident showed the requisite want

of care or conscious indifference to the consequences that would

warrant punitive damages’”) (citation and punctuation omitted;

100 alteration in original).55 Thus, Devereux has failed to show that

there was insufficient evidence to support the jury’s verdict on

punitive damages, and we affirm that verdict as a result.

VII. Sufficiency of the Evidence Supporting the Attorney Fee Award

Devereux next argues that the jury’s verdict that Taylor was

55 Devereux cites several cases where the evidence was found to be insufficient to support an award of punitive damages, arguing that these cases show that as long as Devereux took some measures to protect McGee, it cannot be liable for punitive damages. The cases decided by this Court are distinguishable from the case before us because in those cases the evidence showed that the defendants took reasonable steps to avoid the injury and there was no additional evidence showing a want of care. See MDC Blackshear, 273 Ga. at 174 (holding that although the appellant may have been negligent in failing to correctly determine the owner of the land after the appellee informed it of his claim, in light of the appellant’s due diligence, including performing a title search and the sanction the appellant received from City officials to pave the property, the trial court should not have concluded that “the record shows clearly and convincingly that [the appellant]’s actions were in wanton and wilful disregard of [the appellee]’s property rights”); Stone Man, Inc. v. Green, 263 Ga. 470, 471-472 (435 SE2d 205) (1993) (holding that although the appellant’s operation of a quarry was a nuisance, in this case of a commercial enterprise “which is accompanied by a certain amount of unpleasant but unavoidable effects or byproducts,” the appellant’s “compliance with county, state, and federal regulations is not the type of behavior which supports an award of punitive damages”). Devereux also cites a number of cases from the Court of Appeals. Even assuming without deciding that all of these cases were correctly decided, they are not binding on this Court and are, in any event, factually distinguishable. See, e.g., Roberts v. Quick Rx Drugs, Inc., 343 Ga. App. 556, 561-562 (807 SE2d 476) (2017); Wardlaw v. Ivey, 297 Ga. App. 240, 242 (676 SE2d 858) (2009).

101 entitled to attorney fees was not supported by the evidence. OCGA

§ 13-6-11 says:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

The jury found that Devereux acted in bad faith.56 “The issue

of attorney fees under OCGA § 13-6-11 is a question for the jury and

an award will be upheld if there is any evidence to support it.” Duffy

Street S.R.O., Inc. v. Mobley, 266 Ga. 849, 850 (471 SE2d 507) (1996).

See also City of Hoschton v. Horizon Communities, 287 Ga. 567, 569

(697 SE2d 824) (2010) (“An award of attorney fees under OCGA §

13-6-11 will be affirmed if there is any evidence to support it.”). Bad

faith warranting an award of attorney fees must be based on conduct

56 As noted above in Division I, the jury marked on the verdict form both

that Devereux had acted in bad faith and had been “stubbornly litigious or caused unnecessary trouble and expense.” Because, as discussed below, we affirm the bad-faith basis for the attorney fee award, we need not decide whether there was any evidence to support this alternate basis for attorney fees. See, e.g., Burlington Air Express, Inc. v. Georgia-Pacific Corp., 217 Ga. App. 312, 313-314 (457 SE2d 219) (1995).

102 “during the transaction out of which the lawsuit arose.” Merlino v.

City of Atlanta, 283 Ga. 186, 191 (657 SE2d 859) (2008).

Both parties argue that the bad-faith question here is tied to

the question of punitive damages, with Devereux asserting that “the

bad faith claim fails for the same reason as the punitive damages

claim.”57 However, we have already held in Division VI that there

was at least some evidence presented at trial from which the jury

could conclude that Devereux acted with “that entire want of care

which would raise the presumption of conscious indifference to

consequences” with respect to McGee’s sexual assault, OCGA § 51-

12-5.1 (b). See also Tyler, 272 Ga. at 120 (“A conscious indifference

to consequences relates to an intentional disregard of the rights of

another.”). Just as this evidence supports the jury’s finding that

Taylor was entitled to punitive damages under OCGA § 51-12-5.1

57 Although Devereux cites language from Wilson v. Redmond Constr.,

Inc., 359 Ga. App. 814, 816-817 (860 SE2d 118) (2021), arguing that there was no evidence it acted with “sinister motive,” “ill will,” or “conscious doing of wrong,” Devereux does not argue that in order to show bad faith, Taylor was required to prove something more than that Devereux acted with an “entire want of care.” Rather, Devereux argues that Taylor failed to present evidence that Devereux acted with an “entire want of care”—an argument we reject in Division VI above. 103 (b), it constitutes “any evidence” to support the jury’s finding that

Devereux acted in bad faith toward McGee by being consciously

indifferent to the consequences of its failure to, among other things,

give McGee appropriate and adequate supervision. See, e.g.,

Merlino, 283 Ga. at 190-191 (concluding that the defendant’s

plugging a pipe despite knowing that such action could lead to

flooding on the plaintiff’s property was “some evidence” from which

the jury could find “bad faith”); DiGirolamo, 238 Ga. at 190 (“The

same testimony as to the appellee’s early, persistent, and unheeded

complaints which authorizes the verdict for punitive damages in this

case also provides authorization for the jury’s finding that the

appellants acted in bad faith in failing to correct the run-off

problem.”). Thus, we conclude that the evidence presented at trial

was sufficient to support the jury’s finding that Taylor was entitled

to attorney fees under OCGA § 13-6-11.

VIII. Sufficiency of the Evidence Supporting the Trial Court’s Determination of the Amount of Attorney Fees

Devereux next argues that Taylor did not present sufficient

104 evidence of the amount of attorney fees to which Taylor was entitled.

As noted above in Division I, after the jury found that Taylor was

entitled to attorney fees, the parties agreed that the trial court

should determine the amount of fees, and the trial court held a

hearing on the fee amount and concluded that Taylor was entitled

to 40 percent of the recoverable damages award, or $2,100,000 in

attorney fees.58 On appeal, Devereux argues (as it did at trial) that

Taylor’s attorney fee award could not be based on the 40 percent

contingency fee agreement she signed with her attorneys—and

which she entered into evidence at the hearing on attorney fees—

and that Taylor otherwise failed to present evidence sufficient to

prove the amount of her attorney fees.

In addressing this argument, both parties argue that we should

look to the standard this Court set out in Georgia Department of

Corrections v. Couch, 295 Ga. 469 (759 SE2d 804) (2014), in which

we evaluated what kind of evidence was necessary to prove the

58 This was calculated based on the jury’s verdicts with the $250,000

limit on punitive damages applied, see OCGA § 51-12-5.1 (g). 105 amount of attorney fees under OCGA § 9-11-68 when the party

seeking fees signed a contingency-fee agreement. More specifically,

Taylor points out that the attorney fee award at issue in this case

was made under OCGA § 13-6-11, and that the text of OCGA §§ 9-

11-68 and 13-6-11 differs in the way it describes the attorney fees

that can be awarded. Compare OCGA § 9-11-68 (providing for the

recovery of “reasonable attorney’s fees”) with OCGA § 13-6-11

(providing for the recovery of “[t]he expenses of litigation”). She

argues, however, that we “need not reach” whether we should apply

a more favorable standard to her attorney fee award based on the

lack of “reasonable” language in OCGA § 13-6-11, because she wins

under the arguably stricter standard set out in Couch. We agree

that Taylor prevails even applying Couch. We therefore assume

without deciding that Couch applies to the attorney fee award at

issue in this case, and we conclude that Taylor has met the standard

set forth in Couch.

In Couch, this Court said:

“[E]vidence of the existence of a contingent fee contract,

106 without more, is not sufficient to support the award of attorney fees. An attorney cannot recover for professional services without proof of the value of those services.”

295 Ga. at 483 (citing Brandenburg v. All-Fleet Refinishing, Inc., 252

Ga. App. 40, 43 (555 SE2d 508) (2001)). We further explained that

in determining the amount of an award of attorney fees, “‘[a] court

may consider a contingent fee agreement,’” but

“[w]hen a party seeks fees based on a contingent fee agreement, . . . the party must show that the contingency fee percentage was a usual or customary fee for such case and that the contingency fee was a valid indicator of the value of the professional services rendered. In addition, the party seeking fees must also introduce evidence of hours, rates, or some other indication of the value of the professional services actually rendered.”

Id. (citing Brock Built, LLC v. Blake, 316 Ga. App. 710, 714-715 (730

SE2d 180) (2012)).

“It is solely for the trier of fact to resolve whether attorney fees

and expenses should be awarded under OCGA § 13-6-11, and, if so,

in what amount. . . . We review the decision about whether and to

what extent to award attorney fees and expenses under the

deferential ‘any evidence’ standard.” Water’s Edge Plantation

107 Homeowner’s Assn., Inc. v. Reliford, 315 Ga. App. 618, 619 (727

SE2d 234) (2012). See also City of Hoschton, 287 Ga. at 569.

A. Evidence Submitted by Taylor Showing the Amount of her Attorney Fees

As evidence of her attorney fees, Taylor presented the contract

signed by McGee and then Taylor agreeing to pay her attorneys a 40

percent contingency fee for trial work as well as affidavits from five

attorneys, employed by three law firms, who worked on the case.

Three attorneys from the first law firm described their

qualifications; averred that the 40 percent contingency fee was

customary for this kind of case; and summarized the work that

plaintiff’s counsel did on the case over nearly eight years, including

investigating McGee’s sexual assault, meeting with potential

witnesses, attempting to settle the case without litigation, drafting

and filing the complaint, taking nine depositions, defending

depositions of two witnesses, inspecting Devereux’s Georgia

facilities, drafting discovery requests and responses, reviewing

discovery, litigating discovery issues, briefing and arguing against

108 Devereux’s motions for summary judgment on punitive damages

and litigation expenses, reviewing and briefing the admissibility of

other incidents, attending a pretrial conference on motions in

limine, preparing for trial, and participating in the trial. An

attorney from the second law firm described his qualifications and

summarized the work done by the plaintiffs’ attorneys, pointing to

the same acts described by the other three attorneys. And an

attorney from the third law firm described her qualifications and the

appropriateness of the contingency fee. Additionally, one attorney

from each law firm detailed the expenses advanced by each firm.59

Devereux submitted an affidavit from one of its lawyers

attesting that Devereux’s attorneys and paralegals worked 730.4

hours on the case. Taylor responded with supplemental affidavits

from four attorneys, who “reasonably estimate[d],” based on their

“education, training, and experience, and based on the work [they]

performed on this case, as well as the work performed by Plaintiff’s

59 Devereux does not dispute the appropriateness of the amount awarded

by the trial court in litigation expenses. 109 other counsel” that Taylor’s counsel “has worked, at least, four to

five times as much as” Devereux’s counsel on the case. The

affidavits noted that for most of the case, only one attorney from the

firm representing Devereux formally appeared and litigated the

action, whereas Taylor “has reasonably and necessarily been

represented by at least eight attorneys . . . throughout substantial

phases of this action,” and that “at trial itself, at least six attorneys,

plus an assistant, paralegal, and a trial consultant (who herself is a

lawyer), represented Plaintiff and divided up various tasks at trial.”

Further, one of Taylor’s attorneys stated that his hourly rate is $625

per hour and that the reasonable market rates for the work of the

three attorneys from the first law firm who submitted affidavits

would be $625, $875, and $900 per hour, based on their experience

and the type of work they completed on this case. He then multiplied

the lowest market rate of $625 per hour by 2,921.6 and 3,652 hours60

to conclude that the reasonable attorney fee range was $1,826,000

to $2,282,500. Supplemental affidavits stated that Taylor’s counsel

60 These hours were calculated by multiplying 730.4 hours by 4 and by 5.

110 had rendered more services since counsel had submitted their initial

affidavits, including handling post-trial discovery requests from

Devereux, preparing and responding to briefs about attorney fees

and the punitive damages cap, preparing filings addressing McGee’s

death, and preparing for a hearing about attorney fees and punitive

damages.

As it noted in its order on attorney fees, the trial court

considered the affidavits submitted by Taylor’s attorneys and found

that the “40% contingency fee is usual and customary and is

reasonable under the circumstances in this case.” The trial court

then considered whether the contingency amount “‘was a valid

indicator of the value of the professional services rendered,’” citing

Couch, 295 Ga. at 483. The court observed that the case was “time-

consuming, complex, and hard-fought” and noted that the attorney

affidavits “set forth information relating to the value of the

professional services actually rendered” and noted that during the

trial, “[a]pproximately 6 attorneys, 1 assistant, 1 paralegal, and 1

trial consultant (also an attorney), appeared at trial and divvyed up

111 the various tasks a jury trial requires.” The court also observed that

counsel completed substantial legal work on behalf of Taylor post-

trial. The court thus found that Taylor “provided sufficient evidence

of the value of the professional services actually rendered by her

trial counsel over an eight-year period” and that all of the

circumstances “justify the 40% contingency fee of the jury’s

enforceable verdict,” citing several Court of Appeals cases, including

one applying Couch: Cajun Contractors, Inc. v. Peachtree Property

Sub, LLC, 360 Ga. App. 390, 405-406 (861 SE2d 222) (2021).

B. Sufficiency of the Evidence Supporting the Amount of Attorney Fees

Devereux argues that the evidence described above was not

sufficient under Couch to support the attorney fee award because

Taylor presented merely “broad summaries” of work performed and

“hindsight estimates” of the time spent. And although it is true that

Taylor did not present contemporaneous records documenting each

hour her attorneys spent working on the case, that is not what

Couch requires. We said in Couch that when a party seeks attorney

112 fees based on a contingency-fee agreement, the party “must show

that the contingency fee percentage was a usual or customary fee for

such case and that the contingency fee was a valid indicator of the

value of the professional services rendered,” and that “the party

seeking fees must also introduce evidence of hours, rates, or some

other indication of the value of the professional services actually

rendered.” 295 Ga. at 483 (emphasis supplied).

Here, where Taylor presented not only her contingency-fee

agreement but also evidence that the contingency fee was customary

for this kind of case, and evidence of the amount and type of work

done by the many attorneys who represented her, we cannot say that

the trial court erred by concluding that the standard we articulated

in Couch was met. See Cajun Contractors, 360 Ga. App. at 405-406

(holding that the party seeking attorney fees presented sufficient

evidence of the amount of attorney fees where the party presented

evidence of the contingency fee agreement, affidavits that the fee

was customary and reasonable, estimates of the number of the hours

the attorneys performed, and affidavits describing the work the

113 attorneys performed). See also City of Atlanta v.

Hofrichter/Stiakakis, 291 Ga. App. 883, 890 (663 SE2d 379) (2008)

(holding that the evidence was sufficient to establish the amount of

attorney fees when the plaintiff introduced the 40 percent

contingency fee contract and evidence that this was the customary

fee in such a case and that her attorney “had taken over 26

depositions and had spent hundreds of hours on the case”).61

61 In support of its argument, Devereux cites several cases in which there

was no contingency fee agreement and the Court of Appeals held that only generalized summaries of the number of hours spent on the case was insufficient evidence to sustain the amount of the fee award. See, e.g., Hardnett v. Ogundele, 291 Ga. App. 241, 245 (661 SE2d 627) (2008). We do not view these cases as persuasive in the context of this case, where the contingency-fee agreement and evidence that it was a customary fee was presented to, and considered by, the fact-finder. Devereux also cites Kennison v. Mayfield, 359 Ga. App. 52 (856 SE2d 738) (2021), in which the Court of Appeals held that the evidence presented was not sufficient to support the trial court’s award of attorney fees that matched the fees due under the contingency- fee agreement. See id. at 68. We have real doubts about the correctness of Kennison’s holding on this issue under Couch, some of which were also raised by the dissent in that case. See 359 Ga. App. at 73, 76-77 (McFadden, C. J., concurring fully in part and dissenting in part) (noting that the trial court “heard extensive evidence about the value of the professional services the plaintiffs’ attorneys actually rendered, [and] made findings of fact on the issue”). Notably, the division of Kennison that pertains to the sufficiency of the evidence to show the attorney fee amount is not binding Court of Appeals precedent, because a majority of the judges did not fully concur in its rationale. See Court of Appeals Rule 33.2 (a) (1) (“If an appeal is decided by a division of this Court or by the Court sitting en banc, a published opinion in which a

114 IX. Nunc Pro Tunc Entry of the Final Judgment Pertaining to Compensatory and Punitive Damages

Finally, Devereux contends that the trial court erred when, as

part of the “Final Judgment” entered on February 8, 2022, the trial

court entered the judgments as to compensatory and punitive

damages nunc pro tunc62 to the entry of the jury’s verdicts on

November 18 and 19, 2019, and therefore ordered that those

amounts begin accruing post-judgment interest from the dates of the

verdicts, as opposed to from the date the “Final Judgment” was

entered. Devereux argues that this was improper because the

attorney fee award had not yet been decided in November 2019, so

the judgment was not final. However, Devereux has failed to show

that the trial court erred by entering the damage judgments nunc

pro tunc to the day they were rendered by the jury and imposing

post-judgment interest from that date.

majority of the judges fully concur in the rationale and judgment of the decision is binding precedent.”).

62 The phrase “nunc pro tunc,” which is Latin for “now for then,” means

that an order or judgment “ha[s] retroactive legal effect through a court’s inherent power.” Black’s Law Dictionary (11th ed. 2019). 115 A trial court may enter a judgment nunc pro tunc to “perfect[ ]

the record” and properly reflect when an order or judgment “should

have been entered.” Maples v. Maples, 289 Ga. 560, 562 (713 SE2d

865) (2011) (“The trial court had authority to enter a divorce decree

nunc pro tunc as of the prior date where the jury had previously

returned a verdict and the cause was ripe for judgment.”) (citations

and punctuation omitted). This power applies to “all judgments,

whether interlocutory or final.” Perdue v. Bradshaw, 18 Ga. 287,

288 (1855) (“The Common Law rule is, that all judgments, whether

interlocutory or final, shall be entered of record, of the day of the

month and year when signed . . . . Still, the discretion is given to the

Court or Judge to order a judgment to be entered nunc pro tunc.

Indeed, it is not only competent to do this, but it seems to be almost

a matter of course.”) (emphasis in original). See also Pendergrass v.

Duke, 147 Ga. 10, 11 (92 SE 649) (1917) (“A nunc pro tunc entry is

for the purpose of recording some action that was taken or judgment

rendered previously to the making of the entry, which is to take

effect as of the former date.”).

116 OCGA § 7-4-12 (a) provides that “[a]ll judgments in this state

shall bear annual interest upon the principal amount

recovered . . . .” And subsection (c) says: “The postjudgment interest

provided for in this Code section shall apply automatically to all

judgments in this state and the interest shall be collectable as a part

of each judgment whether or not the judgment specifically reflects

the entitlement to postjudgment interest.” OCGA § 7-4-12

“presuppos[es] the rendition of a judgment for a sum certain, or for

an amount mathematically determinable without reliance upon

additional evidence.” Brown v. Brown, 265 Ga. 725, 727 (462 SE2d

609) (1995).

In this case, Devereux is correct that the judgment in the case

overall was not final in November 2019. See Islamkhan v. Khan,

299 Ga. 548, 550 (787 SE2d 731) (2016) (holding that because the

trial court order reserved the pending issue of attorney fees for later

determination, the order was not a “final judgment” but instead “an

interlocutory order appealable only pursuant to the procedures set

117 forth in OCGA § 5-6-34 (b)”).63 See also OCGA § 9-11-54 (b) (“[A]ny

order or other form of decision, however designated, which

adjudicates fewer than all the claims or the rights and liabilities of

fewer than all the parties shall not terminate the action as to any of

the claims or parties[.]”). However, Devereux has not shown that a

judgment of damages returned by a jury must be a “final judgment”

that is immediately appealable in order for it to be a “judgment”

under OCGA § 7-4-12. Here, we see no impediment to the trial

court’s entering the jury’s damages awards—which fully decided the

claims for compensatory and punitive damages—nunc pro tunc to

accurately reflect when the verdicts had been returned and signed

by the jury. And we see no impediment to the court applying post-

judgment interest to those judgments, which were “for a sum

63 OCGA § 5-6-34 (a) (1) says that “[a]ll final judgments, that is to say,

where the case is no longer pending in the court below,” may generally be immediately and directly appealed. OCGA § 5-6-34 (b) provides procedures to seek an appeal of “an order, decision, or judgment, not otherwise subject to direct appeal,” including judgments that are not “final.”

118 certain.” Brown, 265 Ga. at 727.64

Notably, the Court of Appeals has affirmed a trial court’s

decision to make a judgment nunc pro tunc to the time of a jury’s

verdict in a case very similar to this one. In Wingate Land &

Development, LLC v. Robert C. Walker, Inc., 252 Ga. App. 818 (558

64 Although Devereux’s main argument is that the judgments lacked finality because there was no decision on the attorney fee award, Devereux also notes in its brief on appeal that the punitive damages award also was not settled because the trial court had not decided whether OCGA § 51-12-5.1 (g) limited it. However, Devereux does not cite any authority for the proposition that a jury verdict cannot be subject to post-judgment interest if it is later reduced, and cases from this Court and the Court of Appeals indicate that post- judgment interest may still begin to run at the time the original judgment is entered, even if the judgment is later modified. See CRS Sirrine v. Dravo Corp., 219 Ga. App. 301, 304 (464 SE2d 897) (1995) (adopting the federal approach to this question and holding: “In general, where a first judgment lacks an evidentiary or legal basis, post-judgment interest accrues from the date of the second judgment; where the original judgment is basically sound but is modified on remand, post-judgment interest accrues from the date of the first judgment.”). See also Security Life Ins. Co. of America v. St. Paul Fire & Marine Ins. Co., 278 Ga. 800, 803 (606 SE2d 855) (2004) (holding that the trial court was correct in computing post-judgment interest on the damages award from the date of entry of the original judgment because “the modified judgment is based on the same jury verdict and for the same damages as the judgment which was originally entered”); Johansen v. Combustion Engineering, Inc., 170 F3d 1320, 1339-1340 (11th Cir. 1999) (“Where the initial judgment is supported by the evidence and the later judgment merely reflects a remittitur of a certain portion of that judgment as excessive, the courts of appeals have routinely decided that damages were sufficiently ‘ascertained’ at the time of the first judgment and that post-judgment interest should run from the date of the original judgment.”).

119 SE2d 13) (2001), the jury returned a verdict for the plaintiff as to his

claims for compensation on April 2, 1999. Id. at 820, 823 n.9. The

trial court then held a bench trial on the plaintiff’s claim for attorney

fees and decided that issue on March 15, 2000. Id. at 823. The court

entered its final order deciding all issues in the case on March 15,

but entered the portion of the judgment related to the jury’s verdict

nunc pro tunc “to give effect to the jury’s verdict on the date the

verdict was rendered.” Id. The Court of Appeals affirmed the trial

court’s order. Id.

Devereux argues that we should not be guided by Wingate

because the attorney-fee issue is not fully bifurcated here (as it was

in Wingate), and the jury in this case decided the initial question of

whether Devereux was liable for attorney fees. We are not

persuaded that this distinction makes a difference here. In both

cases, the damages had been fully and finally decided by the jury

even when the decision on the attorney fee amount remained

outstanding. Like the Court of Appeals in Wingate, we conclude that

the trial court was authorized to enter the jury verdicts nunc pro

120 tunc and apply post-judgment interest to them in this situation.65

For these reasons, we conclude that the trial court did not err

by applying post-judgment interest to the compensatory and

punitive damage amounts under OCGA § 7-4-12, and we affirm that

order.66

65 Devereux argues that instead of Wingate, we should follow Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 459 (585 SE2d 643) (2003), and St. Paul Reinsurance Co. v. Ross, 276 Ga. App. 135, 142 (622 SE2d 374) (2005), in which the Court of Appeals held that the trial court’s application of post-judgment interest nunc pro tunc was improper. We disagree. Schoenbaum did not address completed jury verdicts but instead addressed the trial court’s grant of partial summary judgment on one count in a 20-count complaint. 262 Ga. App. at 458-459. There, the Court of Appeals concluded that the trial court erred by ordering post-judgment interest to be paid on the amount awarded in the partial summary judgment, reasoning that “[p]ost-judgment interest accrues only after the entry of final judgment.” Id. at 459-460. But in support of this assertion, the Court of Appeals cited only a case holding that the trial court erred by awarding post-judgment interest on the special master’s award “prior to the jury verdict and entry of a final judgment,” see City of Atlanta v. Wright, 159 Ga. App. 809, 809-810 (285 SE2d 250) (1981). And in Ross, the first order, which the Court of Appeals held the trial court should not apply post-judgment interest to, “did not spell out the dollar amount that was subject to garnishment.” 276 Ga. App. at 137. We do not view either of these cases as supporting the notion that the trial court here could not enter nunc pro tunc and apply post-judgment interest to judgments for damages that had been fully decided by a jury for a specific sum.

66 To the extent Devereux argues that the imposition of post-judgment

interest “violates basic principles of equity” because Devereux was not to blame for several of the delays between the jury’s verdicts and the court’s ruling on the attorney fees amount, we note that OCGA § 9-11-67 provides a way for a party to abate the accrual of interest. See also JTH Tax, Inc. v. Flowers, 311

121 Judgments affirmed in Case Nos. S22A1060 and S22X1061. All the Justices concur, except Colvin, J., who concurs specially as to Division III, and Ellington, J., who dissents as to Division III and concurs specially as to Division VIII. Peterson, P. J., disqualified.

Ga. App. 495, 495-496 (716 SE2d 559) (2011) (discussing the party’s depositing into the court registry the amount awarded for one of the claims, thereby abating the accrual of interest on that amount). We also note that Devereux presented no evidence that it petitioned the trial court to resolve the attorney- fee issue earlier. 122 BETHEL, Justice, concurring.

In Division III D. (2) (d), the Court considers cases from sister

states that were decided prior to 1798. Because the Court does not

apply any rule articulated in these cases and I otherwise agree with

the analysis and conclusions reached, I join the opinion of the Court

fully. I write separately for the sole purpose of expressing my view

on the limited value of such cases to our consideration of the common

law that was incorporated into our Constitution.

In my view, such cases have value only to the extent they

contain meaningful and persuasive analysis of the state of the

common law as it existed in England in 1776 or in Georgia prior to

1798. Such analysis would serve as persuasive authority. Here,

however, as noted in footnote 41 by the Court, none of these cases

rely on pre-1776 English decisions applying the common law of

England nor do they include any express indication of their effort to

make such an analysis. Likewise, they do not rely on nor provide a

meaningful analysis of any Georgia authority. Thus, these cases

have no persuasive value when analyzing the common law that was

123 incorporated into our State’s Constitution. Accordingly, I see no

reason to give them further consideration, and I view the Court’s

efforts to analyze, characterize, and distinguish those cases as

unnecessary.

I am authorized to state that Justice LaGrua joins in this

concurrence.

124 COLVIN, Justice, concurring specially.

Division III of the majority opinion addresses Taylor’s

argument that the portion of OCGA § 51-12-5.1 (g) establishing a

$250,000 cap on punitive-damages awards violates the Georgia

Constitution’s right to trial by jury. The majority opinion resolves

this issue by applying our reasoning in Atlanta Oculoplastic

Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (691 SE2d 218) (2010),

where we determined that a statutory cap on compensatory damages

violated the constitutional right to a jury trial. But Nestlehutt

expressly stated that its reasoning did not apply in the context of

punitive damages, see Nestlehutt, 286 Ga. at 736 (2) (b), and, in my

view, extending Nestlehutt is unnecessary in this case. The

challenge to the punitive-damages cap at issue here is easily

resolved under Teasley v. Mathis, 243 Ga. 561 (255 SE2d 57) (1979),

and State v. Moseley, 263 Ga. 680 (436 SE2d 632) (1993), where we

rejected claims that the constitutional right to a jury trial prevented

the legislature from establishing statutory limits on punitive

damages. Because neither party asks us to overrule Teasley or

125 Moseley, and because I am unsure whether Nestlehutt was correctly

decided, I would reject the challenge to the punitive-damages cap at

issue here under Teasley and Moseley rather than extending

Nestlehutt to do so.67 Accordingly, I concur only in the result of

Division III.

In Teasley, a plaintiff, who sought exemplary damages for

negligence arising from a car accident, challenged Georgia’s “no

fault” automobile insurance statute, which prevented accident

victims from suing for exemplary damages unless they sustained a

“serious injury.” Teasley, 243 Ga. at 561-562. On appeal, we

rejected the plaintiff’s argument that the statute “depriv[ed] him of

his right to a jury trial.” Id. at 564 (2). Because “[t]he legislature . .

. may modify or abrogate common law rights of action, as well as

statutorily created rights,” we explained, “eliminating the right to

sue for exemplary damages where there are no serious injuries is

67 I thank the Attorney General of Georgia for his helpful brief as amicus

curiae, which persuasively argued both that this Court should apply the Teasley/Moseley line of cases and that this Court should reconsider Nestlehutt in an appropriate case. 126 well within the province of the legislature.” Id. (citations omitted).

We addressed another challenge to a statutory limit on

recovery for punitive damages in Moseley. See Moseley, 263 Ga. at

681 (2). There, the plaintiffs challenged a Georgia statute that

required a trial court to apportion a punitive damages award

between a plaintiff and the State. See id. In an argument that bears

a striking resemblance to Taylor’s argument here, the plaintiffs in

Moseley contended that the statute violated Georgia’s constitutional

right to trial by jury because, “under the common law[,] it was the

function of the jury to determine what amount of punitive damages

must be awarded to a plaintiff to punish or deter a defendant.” Id.

Relying on Teasley, we rejected the plaintiffs’ argument, concluding

that the provision of Georgia’s Constitution guaranteeing the right

to a trial by jury “has no such effect” and does not “prohibit[ ] the

General Assembly from abrogating or circumscribing common law

or statutory rights of action.” Id.

As Nestlehutt correctly noted, Teasley and Moseley performed

“only [a] cursory analysis [of] the right to jury trial issue, which was

127 summarily resolved in reliance on precedent that did not address

the right to jury trial at all.” Nestlehutt, 286 Ga. at 736 (2) (b).

Nevertheless, even “summarily” decided opinions “with no analysis”

are “binding precedent” until overruled, Olevik v. State, 302 Ga. 228,

244 (2) (c) (iii) (806 SE2d 505) (2017), and there is no question that

our decisions in Teasley and Moseley resolve Taylor’s challenge to

the statutory punitive-damages cap. Both cases concluded that

Georgia’s constitutional right to a jury trial does not prevent the

legislature from “circumscribing” recovery for punitive damages.

Moseley, 263 Ga. at 681 (2). See Teasley, 243 Ga. at 564 (2).

Accordingly, regardless of whether the cause of action at issue here

was recognized at common law, and regardless of whether “it was

the function of the jury [at common law] to determine what amount

of punitive damages must be awarded to a plaintiff,” Moseley, 263

Ga. at 681 (2), Teasley and Moseley permit only one conclusion

here—that OCGA § 51-12-5.1 (g)’s cap on punitive damages does not

violate the constitutional right to a jury trial.

Admittedly, there is a tension between Teasley’s and Moseley’s

128 conclusion that the legislature can limit punitive-damages awards

without infringing upon the constitutional right to a jury trial and

Nestlehutt’s conclusion that the right to a jury trial prevents the

legislature from capping compensatory damages for certain claims.

But Nestlehutt itself addressed this tension, concluding that Teasley

and Moseley “do not support a different result” because “these cases

addressed statutory limits on punitive damages, which, unlike the

measure of actual damages suffered are not really a ‘fact’ ‘tried’ by

the jury.”68 Nestlehutt, 286 Ga. at 736 (2) (b) (citation and

68 The majority opinion misinterprets this statement in Nestlehutt, describing it as “dicta,” Maj. Op. p. 69 n.32, that did “not limit[ Nestlehutt’s reasoning] to a specific type of damages,” Maj. Op. p. 63 n.23. To the contrary, Nestlehutt’s statement that punitive-damages determinations are not factual determinations was not dicta because it was key to explaining why Teasley and Moseley did not dictate “a different result.” Nestlehutt, 286 Ga. at 736 (2) (b). See South Ga. Med. Center v. Washington, 269 Ga. 366, 367 (1) (497 SE2d 793) (1998) (“An adjudication on any point within the issues presented by the case cannot be considered a dictum, and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement in the opinion as to a matter on which the decision is predicated.” (citation and punctuation omitted)). Further, in distinguishing Teasley and Moseley on that basis, Nestlehutt clarified that its analytical framework for determining whether a statutory limit on damages violated Georgia’s constitutional right to a trial by jury did not apply to a specific class of damages. Specifically, Nestlehutt stated that its analytical framework did not apply to statutory limitations on punitive

129 punctuation omitted; emphasis in original). It is clear from this

statement that this Court cannot apply Nestlehutt to the claim at

issue here, which challenges a statutory cap on punitive damages,

without extending Nestlehutt in a way that would conflict with what

the opinion itself expressly stated. It is also clear from this

statement that Teasley and Moseley remain good law.69 Because

Taylor’s challenge to the statutory punitive-damages cap can be

resolved in straightforward fashion under Teasley and Moseley—

which the parties have not asked us to overrule—there is no need to

extend Nestlehutt in this case.70

damages because punitive-damages determinations are not determinations of fact to which the right to a jury trial could attach. See Nestlehutt, 286 Ga. at 736 (2) (b) (noting that the United States Supreme Court had held in Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (121 SCt 1678, 149 LE2d 674) (2001), that, “because [a] punitive damages award does not constitute [a] finding of fact, potential limitations on [the] size of awards do not implicate [the] Seventh Amendment jury trial right”). Because Nestlehutt stated that its reasoning did not apply in the context of punitive damages, the majority opinion erroneously states that “applying Nestlehutt’s reasoning in this case does not ‘extend’ Nestlehutt.” Maj. Op. p. 63 n.23. 69 As noted above, Nestlehutt made statements critical of Teasley and

Moseley. However, Nestlehutt did not expressly overrule or disapprove of the holdings of those cases. 70 I find the majority opinion’s explanations for why it cannot look to

Teasley and Moseley to answer the constitutional question Taylor presents unpersuasive. First, although the majority opinion claims that neither Teasley

130 I am also reluctant to extend Nestlehutt here because it is

unclear whether the case was correctly decided. Nestlehutt reasoned

that the Georgia Constitution “guarantees the right to a jury trial

only with respect to cases as to which there existed a right to jury

trial at common law or by statute at the time of the adoption of the

Georgia Constitution in 1798.” Nestlehutt, 286 Ga. at 733 (2)

(citation and punctuation omitted). Nestlehutt then canvased the

common law and concluded that, at common law, medical-negligence

nor Moseley answers the precise question at issue here, see Maj. Op. pp. 60-61, the majority opinion makes the question presented more complicated than it needs to be. As I explained above, applying the principles announced in Teasley and Moseley to this case cleanly resolves Taylor’s challenge to the punitive-damages cap. Second, the majority opinion criticizes Teasley and Moseley for employing weak reasoning. See Maj. Op. pp. 61-62. But the fact that the cases employed weak reasoning does not mean that they reached the wrong conclusions. Nor does it deprive the cases of their status as binding precedent. See Olevik, 302 Ga. at 244 (2) (c) (iii). Third, the majority opinion states that “the summary conclusions contained in Teasley and Moseley . . . were necessarily rejected by this Court in Nestlehutt, insofar as Teasley and Moseley failed to recognize the limit the Georgia Constitution may put on the legislature’s ability to modify causes of action. “ Maj. Op. p. 62. As noted above, however, Nestlehutt itself concluded that Teasley’s and Moseley’s holdings did not conflict with the principle that “the Legislature [cannot] abrogate constitutional rights,” reasoning that Teasley and Moseley addressed determinations of punitive damages to which the constitutional right to a jury trial did not apply. Nestlehutt, 286 Ga. at 736 (2) (b) (emphasis omitted). Thus, disapproving of Teasley and Moseley “[t]o th[at] extent” does not explain why this Court should not apply those cases here. Maj. Op. p. 62-63. 131 claims were well established, juries were tasked with determining

the amount of damages, and damages could be awarded for

noneconomic damages. See id. at 733-735 (2) (a). Based on these

determinations, Nestlehutt concluded that Georgia’s constitutional

right to a trial by jury guaranteed the right to a jury trial for

medical-negligence claims, “with an attendant right to the award of

the full measure of damages, including noneconomic damages, as

determined by the jury.” Id. at 735 (2) (a). Nestlehutt further

reasoned that the statute “requiring the court to reduce a

noneconomic damages award determined by a jury that exceeds the

statutory limit” of $350,000 “clearly nullifie[d] the jury’s findings of

fact regarding damages” and therefore “infringe[d] on a party’s

constitutional right . . . to a jury determination as to noneconomic

damages.” Id. at 735-736 (2) (b).

While Nestlehutt’s conclusion may be correct, it appears

inconsistent with the traditional understanding of the constitutional

right to trial by jury. See Elliott v. State, 305 Ga. 179, 212 (IV) (B)

(824 SE2d 265) (2019) (“[W]here the right enshrined in the

132 constitution was one found at common law, that constitutional right

is understood with reference to the common law, absent some clear

textual indication to the contrary.”). At common law, the right to a

trial by jury functioned primarily as a procedural safeguard,

limiting the potential for a corrupt or biased judge to work injustice

on a party by dividing authority between judge and jury. See 3

William Blackstone, Commentaries 379-380 (“[I]f [the

administration of justice] be entirely entrusted to the magistracy, a

select body of men, and those generally selected by the prince or such

as enjoy the highest offices in the state, their decisions, in spite of

their own natural integrity, will have frequently an involuntary

biss[ ] towards those of their own rank and dignity . . . . [I]n settling

and adjusting a question of fact, when [e]ntrusted to any single

magistrate, partiality and injustice have an ample field to range in

. . . . [T]herefore a competent number of sensible and upright

jurymen chosen by lot from among those of the middle rank, will be

found the best investigators of truth, and the surest guardians of

133 public justice.”).71 See also Austin Wakeman Scott, Trial by Jury

and the Reform of Civil Procedure, 31 Harv. L. Rev. 669, 676-677

(1918) (“At the time when the first permanent settlements were

being established in America there was a great deal of popular

enthusiasm in England for trial by jury . . . based chiefly on the value

of the institution as a bulwark of liberty, as a means of preventing

oppression by the Crown. . . . In the American colonies during the

eighteenth century there was a gradually increasing popular

enthusiasm for trial by jury and a popular desire strictly to limit the

powers of the judges and to give the jury great latitude[ because t]he

Crown judges were generally and increasingly unpopular.”). Judges

were entrusted to make legal determinations based on general

principles of law. See 3 William Blackstone, Commentaries 380 (“It

is wisely . . . ordered, that the principles and axioms of law, which

are general propositions, flowing from abstracted reason, and not

71 See Nestlehutt, 286 Ga. at 733 (2) (noting that “Blackstone, ‘whose

commentaries constituted the law of this State, before and since the Revolution,’ [are] authoritative on [the] jury trial right as of 1798” (citation and punctuation omitted)). 134 accommodated to times or to men, should be deposited in the breasts

of the judges . . . .”). But answering factual questions was a task left

for the jury. See 3 William Blackstone, Commentaries 366 (noting

that “jurors . . . are the judges of fact” and “are impaneled and sworn

to try” the “facts”). See also Scott, Trial by Jury and the Reform of

Civil Procedure, supra at 677 (“It may safely be said that at the time

of the American Revolution the general principle was well

established in the English law that juries must answer to questions

of fact and judges to questions of law.” (citation and punctuation

omitted)).

Against this backdrop, it is clear from the text of Georgia’s

constitutional provision protecting the right to trial by jury that the

constitutional right, as applied to a civil case, includes a procedural

right to have a jury, rather than a judge, decide questions of fact.

Indeed, the text of that constitutional provision emphasizes this

point, explaining that, in contrast with a jury in a civil case, a jury

in a criminal case decides both the facts and the law:

The right to trial by jury shall remain inviolate, except

135 that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.

Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a) (emphasis supplied).

Nestlehutt correctly recognized that “the amount of damages

sustained by a plaintiff is ordinarily an issue of fact” and that the

right to a jury trial has therefore been understood as “includ[ing] the

right to have a jury determine the amount of damages, if any,

awarded to the plaintiff.” Nestlehutt, 286 Ga. at 734 (2) (a) (citation

and punctuation omitted; emphasis in original). But it does not

follow from the existence of a procedural right to have a jury, rather

than a judge, make factual findings about damages that, as

Nestlehutt concluded, the right to a jury trial also guarantees a

substantive “right to the award of the full measure of damages . . .

as determined by the jury.” Id. at 735 (2) (a) (emphasis supplied).

Because reducing a damages award as prescribed by law does not

require a judge to act as a factfinder or substitute his judgment for

136 that of the jury, doing so does not appear to “infringe” on or

“nullif[y]” the procedural right to have a jury make factual findings

regarding damages. Id. at 735 (2) (b). Thus, in concluding that a

court violates the right to a jury trial by reducing damages in

accordance with a statutory cap, Nestlehutt appeared to recognize a

novel substantive component of the right—a substantive right to a

particular remedy that limits a legislature’s ability to define the

legal principles applicable to a cause of action.72

We should take a careful look at Nestlehutt in an appropriate

case. In this case, however, we need not reconsider Nestlehutt or

extend it. Instead, I would resolve Taylor’s challenge to the

statutory punitive-damages cap under Teasley and Moseley.

Because those cases dispose of Taylor’s challenge, I concur only in

the result of Division III.

72 As the Attorney General notes in his brief as amicus curiae, “[i]f taken

to its logical conclusion,” Nestlehutt’s view of the right to a jury trial as including a “substantive component” would have “drastic” implications, “freez[ing] any limits on liability as they existed in 1798,” preventing the legislature from “eliminat[ing] or restrict[ing] archaic causes of action,” and “invalidat[ing] scores of statutes or common-law doctrines that modified common law causes of action.” 137 ELLINGTON, Justice, dissenting in part and concurring in the judgment only in part.

1. I agree with much that is said in Division III of the majority

opinion, but disagree with the majority opinion’s ultimate

conclusion that OCGA § 51-12-5.1 (g), which required the trial court

to reduce the jury’s award of punitive damages in this case to

$250,000, does not violate the right to trial by jury protected by

Article I, Section I, Paragraph XI (a) of the Georgia Constitution of

1983. Accordingly, I respectfully dissent in Division III of the

majority opinion.

(a) If this issue of whether the General Assembly can

circumscribe a jury’s determination of damages must be decided

based on the scope of the constitutional right to a jury trial as it

existed when Georgia first protected the right, according to our

holding in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga.

731 (691 SE2d 218) (2010),73 we must be guided by foundational

73 I accept that departing from the analytical framework set out in Nestlehutt would require a stare decisis analysis. I am not persuaded by Nestlehutt, the authority the majority cites, and cases that have followed

138 documents and first principles. Initially, I take issue with the

majority opinion’s use of 1798 as the “key date” for our constitutional

analysis in this case. The majority opinion cites to this Court’s

analysis in Benton v. Georgia Marble Co., 258 Ga. 58 (365 SE2d 413)

(1988), that “[i]t has been held that the Georgia Constitution (Art. I,

Sec. I, Par. XI) guarantees the right to a jury trial only with respect

Nestlehutt, however, that developments in Georgia law between the late eighteenth century and 1987, when the General Assembly imposed caps on punitive damages, must be deemed irrelevant here. The people of Georgia adopted a constitution in 1983 affirming that the right to trial by jury shall remain inviolate. Certainly, at that time, the common understanding was that a Georgia jury could determine the amount of punitive damages warranted in a tort case in which there were aggravating circumstances. Juries had been doing so for decades, and large awards drew much public attention. The understanding of the availability of jury-determined punitive damages at the time our most recent constitution was adopted should have at least some bearing on our analysis of the scope of the constitutional right to trial by jury. See De Lamar v. Dollar, 128 Ga. 57, 64 (57 SE 85) (1907) (“The validity of the county-court act of 1872 in so far as it deprives parties to a case involving fifty dollars, or less, of a trial by jury, depends upon whether it violated that provision of the Constitution of 1868 [the constitution in effect when the statute was adopted] which declared that trial by jury should remain inviolate. At the time the Constitution of 1868 took effect, in every court having jurisdiction to try a common-law case of a civil nature, the parties were secured the right of trial by jury,” either in the first instance on demand or on appeal. “This was the character of trial by jury that the Constitution [of 1868] intended to preserve.” (emphasis supplied); see also Kemp v. Gonzalez, 310 Ga. 104, 108 (849 SE2d 667) (2020) (constitutional language that has received consistent and definitive construction and is then readopted into a new constitution is presumed to carry the same meaning as that prior construction); Elliott v. State, 305 Ga. 179, 184-187 (II) (B) (824 SE2d 265) (2019) (same).

139 to cases as to which there existed a right to jury trial at common law

or by statute at the time of the adoption of the Georgia Constitution

in 1798.” In Nestlehutt, this Court judged it to be “well established”

that Georgia’s constitution guarantees the right to a jury trial only

with respect to cases as to which the right was protected in 1798.

Nestlehutt, 286 Ga. at 733 (2). And here the majority opinion insists

that the “1798 cutoff” for analysis of the right to trial by jury is “well-

settled” and “significant.” Maj. Op. p. 57.

As Tift v. Griffin, 5 Ga. 185 (1848), another case cited by

Nestlehutt, makes clear, however, 1798 was the key date in Tift only

because, when Tift was decided, the 1798 constitution, Georgia’s

third constitution, was the most recently adopted.74 The Court

specifically referenced that all three constitutions adopted in

Georgia by that time had affirmed the right to trial by jury. In Tift,

this Court gave a “brief history of the right of trial by jury,” including

the following:

74 The same goes for another 1848 case cited in the majority opinion,

Flint River Steamboat Co. v. Foster, 5 Ga. 194, 207-208 (1848). See Maj. Op. p. 53. 140 The right [of trial by jury] came with the colonists. It was derived from Magna Charta. It was their birth right. They brought with them the Common Law, so far as it was applicable to their condition. . . . In the year 1770, the Provincial Assembly [of the British colony of Georgia] asserted their right to the privileges of the Common Law, and more especially to the “great and inestimable privilege of being tried by their peers of the vicinage, according to the cause of the Common Law.” This was done by solemn resolution of the Assembly, and was declaratory of rights which then, and prior to that time, belonged to the Colony. When the State became independent of the British Crown, this right of being tried by their peers, appertained to the people. It was one of the great bases of the new civil polity. . . . The Constitution of the United States affirmed the right in criminal cases originally, and by an amendment, in civil cases in 1789. Our Constitutions of 1777, of 1789, of 1798, adopt and affirm the right. The last, in the language before quoted, which is now the organic law of the State.

Tift, 5 Ga. at 188-189.75 This Court’s subsequent treatment of 1798

75 See De Lamar, 128 Ga. at 59-61 (The declaration in Georgia constitutions, including the constitutions of 1777, 1789, and 1798, that trial by jury “shall remain inviolate” meant that trial by jury “must be preserved in the future in all cases in which it was allowed under valid laws existing at the time that the Constitution was adopted.” Regarding “common-law jurisdiction in civil cases,” an expression “intended to embrace only cases which were the subject of real, personal, or mixed actions, according to the practice of the English common-law courts,” and not those proceedings only authorized under Georgia statutes, this Court “found no court in existence prior to the Constitution of 1777,” which had such jurisdiction “in which trial by jury was not provided for.”).

141 as the key date for analysis of the right to trial by jury, no matter

how many times repeated,76 does not change the historical fact that

the people of Georgia adopted constitutions in 1777 and 1789

enshrining the right, as correctly recited in Tift. To be clear, the

correct date from which to measure the constitutional right to trial

by jury in Georgia under the Nestlehutt framework should be the

date when the people of Georgia first enshrined the right in a

constitution: February 5, 1777. Although, as the majority opinion

states, “no one has asked us to reconsider our precedents setting the

key date at 1798,” Maj. Op. p. 57 n.19, I find it indefensible to

perpetuate here our historical error, which was picked up in Benton

76 See also Swails v. State of Ga., 263 Ga. 276, 278 (3) (431 SE2d 101)

(1993) (following Foster in identifying 1798 as the key date for an analysis of the right to trial by jury); Hudson v. Abercrombie, 258 Ga. 729, 730 (2) (a) (374 SE2d 83) (1988) (following Foster and Williams v. Overstreet, 230 Ga. 112, 116 (195 SE2d 906) (1973), in identifying 1798 as the key date for an analysis of the right to trial by jury); Cawthon v. Douglas County, 248 Ga. 760, 762 (1) (286 SE2d 30) (1982) (following Williams in identifying 1798 as the key date for an analysis of the right to trial by jury); Williams, 230 Ga. at 116 (following Foster in identifying 1798 as the key date for an analysis of the right to trial by jury); Foster, 5 Ga. at 207-208 (identifying, without citation or analysis, 1798 as the key date for an analysis of the right to trial by jury).

142 and so greatly expanded in Nestlehutt.77

(b) In the preamble to Georgia’s Constitution of 1777, the

General Assembly explained that, even before the execution of the

Declaration of Independence by the General Congress meeting in

Philadelphia, which dissolved all political connection between the

colonies and the Crown of England, the General Congress

recommended to any of the “respective assemblies and conventions

of the United States” that had not yet established a government “to

77 I do not agree that correcting our identification of Georgia’s first constitution requires consideration of the doctrine of stare decisis. None of the cases relied upon in the majority opinion for identifying 1798, as opposed to 1777, as the key date for an analysis of the right to trial by jury took into account any difference in the common understanding of the right in 1798 compared to the understanding in 1777. See Nestlehutt, 286 Ga. at 731; Benton, 258 Ga. at 66; Williams, 230 Ga. at 116. The specific question of whether 1798, as opposed to 1777, is the key date for an analysis of the right to trial by jury was not raised and decided in those cases. See Schoicket v. State, 312 Ga. 825, 832 (865 SE2d 170) (2021) (“[A] decision’s holding is limited to the factual context of the case being decided and the issues that context necessarily raises.” (citation and punctuation omitted)). Even assuming that identifying 1798 as the key date constituted a holding in those cases, and assuming that consideration of the doctrine of stare decisis would be necessary to stop identifying 1798 as the key date for the analysis of the right to trial by jury, that holding is so plainly wrong it could not survive application of the doctrine. See Ammons v. State, 315 Ga. 149, 156 (2) (880 SE2d 544) (2022) (“The soundness of a precedent’s reasoning is the most important factor” in reconsidering prior decisions. (citation and punctuation omitted)).

143 adopt such government, as may, in the opinion of the

representatives of the people, best conduce to the happiness and

safety of their constituents in particular, and America in general.”

Georgia’s representatives heeded this advice. On February 5, 1777,

the representatives of the people of Georgia “ordained and declared,

that the following rules and regulations be adopted for the future

government of the State.” Paragraph LXI of that first constitution

provided that “trial by jury” was “to remain inviolate for ever [sic].”

That first constitution also had several specific provisions

regarding jury trials. Paragraph XL provided, in pertinent part:

All causes of what nature soever, shall be tried in the supreme court, except as hereafter mentioned[.] . . . [I]f any plaintiff or defendant in civil causes shall be dissatisfied with the determination of the jury, then and in that case they shall be at liberty within three days to enter an appeal from that verdict, and demand a new trial by a special jury

chosen in the manner specified in that paragraph.78 Paragraph XLI

78 Exceptions to the general rules appeared in Paragraph XLIV, for “[c]aptures, both by sea and land,” and in Paragraph XLVI, which provided for the continuation of “courts of conscience” that had jurisdiction to try causes not amounting to more than ten pounds. 144 provided:

The jury shall be judges of law as well as of fact, and shall not be allowed to bring in a special verdict; but if all, or any, of the jury have any doubts concerning points of law, they shall apply to the bench, who shall each of them in rotation give their opinion.

And Paragraph XLII provided: “The jury shall be sworn to bring in

a verdict according to law, and the opinion they entertain of the

evidence; provided it be not repugnant to the rules and regulations

contained in this constitution.”79

Clearly, at Georgia’s founding as a sovereign state, the people

felt strongly about the government’s duty to provide trial by jury for

almost any legal dispute. The jury’s determination was subject to

review, not by trial or appellate judges, but only by a second jury.

See Paragraph XL.80 Under the plain terms of these expansive

79 See also Paragraph XXXVII (providing for venue in “[a]ll causes and

matters of dispute between any parties residing in the same county”); Paragraph XXXVIII (providing for venue in “[a]ll matters in dispute between contending parties residing in different counties”). 80 See Christopher J. McFadden et al., Georgia Appellate Practice § 1:1

(Dec. 2022 update) (discussing the development after 1777 of judicial appellate review in Georgia). 145 provisions, a jury was empowered to decide whether a plaintiff had

proved a right to recover and what total damages the defendant

should pay. In 1784, Georgia formally recognized the continuing

force, as part of Georgia’s own law, of the English common law as of

May 14, 1776. See OCGA § 1-1-10 (c) (1) (providing that the 1784 act

that adopted “the common laws of England as they existed on May

14, 1776,” was not repealed by the 1981 Code of Georgia).81

81 The 1784 act “for reviving and enforcing certain laws therein mentioned” was necessitated by the disruptions of the war years (“the late convulsions in this State”), in which “several salutary laws were lost, and destroyed, that had from time to time been enacted by the general assembly” of Georgia. Robert Watkins et al., Digest of the Laws of Georgia, preface by the editor, p. 289 (1799) (Act No. 287, February 25, 1784). The act provided: “all and singular the several acts, clauses, and parts of acts that were in force, and binding on the inhabitants of the . . . province” of Georgia on May 14, 1776, so far as they are not contrary to the constitution, laws and form of government now established in this State, shall be, and are hereby declared to be in full force, virtue and effect, and binding on the inhabitants of this State . . . until the same shall be repealed, amended or otherwise altered by the legislature. And also the common laws of England, and such of the statute laws as were usually in force in the said province, except as before excepted. Id. at 290. See Tift, 5 Ga. at 189 (Even without a legislative declaration of the right of being tried by one’s peers, “it must have been considered inherent in that system of Government, which the State adopted. But in [17]84, our own Legislature adopted the Common Law of England, and such of the Statute Laws of England as were usually of force in the province of Georgia, except so far as they were contrary to the constitution and laws and form of Government

146 (c) Cases discussed in the majority opinion show that England’s

common law as of May 14, 1776, recognized the jury’s broad

authority to find aggravating circumstances in tort cases and to

award, in addition to damages awarded to compensate plaintiffs for

their injuries, additional damages to punish defendants and deter

them from repeating tortious conduct. Therefore, I generally agree

with the majority opinion’s holdings within the Nestlehutt

framework regarding pre-1776 common law juries: juries awarded

damages in tort for what would later be called premises liability

claims; juries generally determined the amount of damages to award

in tort cases; juries in tort cases were authorized to award damages

in excess of the actual injury suffered by a plaintiff based on

aggravating circumstances; and juries were authorized to award, in

addition to damages to compensate the plaintiff for the actual injury,

damages specifically for the purpose of punishing the defendant.

then established. By this Act, if there were no other recognition of it, the right of trial by jury was asserted, as guaranteed by Magna Charta. Nor was it alone the right of trial by jury in criminal cases, but also in civil cases for that Charter provides for both.”). 147 From these holdings, and given the breadth of a jury’s authority

under Georgia’s first constitution, the conclusion is inescapable that

the right to trial by jury deemed inviolable in the Constitution of

1777 embraced the right to have a jury determine whether to award

additional damages based on aggravating circumstances in a

tortfeasor’s acts or intentions and, if so, to determine the amount of

punitive damages to award. In other words, the right to have a jury

determine whether punitive damages are warranted and, if so, in

what amount, inheres in a common law cause of action for premises

liability, and, therefore, the General Assembly may not modify or

abrogate that right by statute. See Pollard v. State, 148 Ga. 447, 454

(96 SE 997) (1918) (The constitutional provision that the right of

trial by jury shall remain inviolate “preserved not merely the form

or mode of trial, but the right of trial by jury in all its essential

elements as it existed at common law and as it obtained in this State

at the date of the adoption of our earliest constitution.”).

The majority opinion goes to great lengths to escape this

conclusion and to decide the constitutionality of OCGA § 51-12-5.1

148 (g) in the narrowest possible terms. I disagree with the majority

opinion’s conclusion that Taylor loses her constitutional right to

have a jury determine all of her damages solely because she does not

argue that Devereux engaged in intentional misconduct but,

instead, pleads for punitive damages on the basis that Devereux’s

conduct “was such as to evince an entire want of care and

indifference to the consequences of such conduct.” The majority

opinion frames all six pre-1776 English cases that Taylor points to

as primary sources for jury-determined punishment damages as

cases involving “a claim of intentional misconduct.” The majority

opinion holds that Taylor has therefore failed to show that punitive

damages for a claim that a tortfeasor acted with an “entire want of

care” was within the scope of the jury-trial right in Georgia in 1798.

Notably, none of those cases describe the tortious conduct as

“intentional” or address in any way the defendants’ mental state.

More importantly, the “intentional misconduct” framing in the

majority opinion distorts the facts underlying the three warrant-

execution cases to exclude cases based on an entire want of care from

149 the scope of the right to have a jury determine the amount of

punitive damages. Unlike the cases involving physical attacks or

malicious prosecution, the warrant-execution cases involved conduct

that the defendants understood to be legally sanctioned, even

required of them as agents of the government acting at the direction

of their superiors. Specifically, the case reports show that the

defendants entered the plaintiffs’ residences and otherwise

infringed on the plaintiffs’ liberty in search of evidence of seditious

libel because warrants issued in the name of the King by Lord

Halifax, a secretary of state, commanded the “King’s messengers” to

do so. See Wilkes v. Wood, 98 Eng. Rep. 489 (King’s Bench, 1763)

(North Briton, No. 45); Huckle v. Money, 95 Eng. Rep. 768 (King’s

Bench, 1763) (North Briton, No. 45); Beardmore v. Carrington et al.,

95 Eng. Rep. 790 (King’s Bench, 1764) (The Monitor or British

Freeholder). The defendants in these cases were either the King’s

messengers or, in Wood’s case, sent by Lord Halifax to supervise

messengers in the execution of a warrant. The defendants’ conduct

constituted trespass (along with false imprisonment in Huckle and

150 Beardmore, in which the plaintiffs were detained) only because the

warrants the defendants executed were determined to have been

issued illegally.82 In Beardmore, the Court acknowledged the

82 In this case, we are concerned with the scope of the right to trial by

jury and, within the Nestlehutt framework, whether pre-1776 English juries awarded punitive damages only in cases involving intentional misconduct, as the majority opinion concludes. Consequently, it is not necessary to discuss in detail the development, and ultimate scope, of the rejection of the use of general warrants, although these and related cases are studied in detail by scholars of the development of the Fourth Amendment to the United States Constitution and related state protections against unreasonable searches and seizures and warrant requirements. To oversimplify, dozens of people were arrested and subjected to search as a result of general warrants that Lord Halifax issued in 1762 and 1763. Litigation over the execution of the warrants continued until 1769. In the course of dozens of cases, multiple reasons were advanced, considered, and rejected or accepted in various combinations for holding the warrants to be illegal or for finding that the manner in which the warrants were executed to constitute trespass, including: the warrants did not identify the persons to be seized; the warrants directed that all of an arrested suspect’s papers be seized, rather than those relevant to the alleged seditious libel; taking a person’s papers to prove libel violated the rights against compelled self-incrimination; the “precedents” or custom Lord Halifax relied on as the authority for issuing such warrants was contrary to common law; Lord Halifax acted only as a secretary of state (and only justices of the peace designated by statute were authorized to issue arrest warrants for the alleged crimes); Lord Halifax did not issue the warrants based on evidence given under oath by a witness; evidence received before issuance of the warrants did not provide probable cause to arrest; the warrants required the messengers arresting a suspected author, publisher, or printer to be accompanied by a constable, but no constable attended them; and no inventory of seized material was returned. By about 1765 or 1766, enough of the cases had been resolved in the plaintiffs’ favor, and covered in the press, that it should have been widely known that general warrants were illegal, but that was hardly well-settled law when warrants were executed in 1762 and 1763 to arrest authors, printers, or publishers of The Monitor or The North Briton, No. 45. See Wilkes, 98 Eng.

151 argument that Lord Halifax was “more culpable, than the

defendants, who [were] only servants, and [had] done what he

commanded them to do.” Beardmore, 95 Eng. Rep. at 793.

Nevertheless, “[t]he jury were directed [by the trial court] to assess

damages for the plaintiff according to the evidence given, under an

idea that the defendants could not by law justify the trespass under

[the] warrant by any manner of plea whatsoever.” Id. at 792. Thus,

the defendants were liable for the full amount of the plaintiff’s

damages because liability for the trespass was “joint and several” as

a matter of law.83 Id. at 793. From the defendants’ points of view in

Rep. 489; Huckle, 95 Eng. Rep. 768; see also Entick v. Carrington, 95 Eng. Rep. 807, 810 (King’s Bench, 1765) (At various times over the preceding 80 years, general warrants like that issued against the plaintiff “have been frequently granted by the Secretaries of State, and executed by the messengers in ordinary,” under their oath to “be a true servant to the King[.]”); id. at 812-813 (The plaintiff conceded that “never before [the] time” of the trial had general warrants granted by secretaries of state “been opposed or controverted[.]”); Money v. Leach, 96 Eng. Rep. 320, 97 Eng. Rep. 1050 (King’s Bench, 1765); Thomas K. Clancy, “The Fourth Amendment’s Concept of Reasonableness,” 2004 Utah L. Rev. 977, 984-987 (2004); T.T. Arvind, et al., “A New Report of Entick v. Carrington (1765),” 110 Ky. L.J. 265, 298-332 (2022) (containing Entick v. Carrington, as reported by Edward Moore); Thomas Y. Davies, “Recovering the Original Fourth Amendment,” 98 Mich. L. Rev. 547, 560-570 (1999). 83 The majority opinion misrepresents the Beardmore case in saying that

the Court “described the defendant’s actions as ‘an unlawful power assumed by

152 all three of the warrant-execution cases, however, they had legal

authority and justification to enter the plaintiffs’ homes and seize

evidence, so their conduct cannot fairly be classified as intentional

misconduct in the same vein as punching a person in the face or

falsely accusing a person of a crime. Rather, the defendants in the

warrant-execution cases at most acted without care in failing to

refuse Lord Halifax’s directive to execute the warrants. Although

none of the cases Taylor cited expressly recognize the culpability

category of an “entire want of care” in those words, the warrant-

execution cases show that pre-1776 English juries could and did

award punishment damages even absent intentional misconduct.

The majority opinion overreaches in holding that all six of the pre-

1776 English cases Taylor cited involved “intentional misconduct”

when fully half of them did not involve any intentional violation of

the plaintiffs’ rights by the defendants.

It is hardly surprising that neither party found any pre-1776

a great minister of State[.]’” Maj. Op. p. 73. The Court was actually describing the actions of Lord Halifax who issued the illegal warrant to be served by the defendants, the King’s messengers. 153 cases either expressly allowing or expressly rejecting the recovery of

additional damages based on a defendant’s “entire want of care.”

Before the Tort Reform Act of 1987, Georgia law recognized that in

every tort there may be aggravating circumstances and provided

that, “[i]n a tort action in which there are aggravating

circumstances, in either the act or the intention, the jury may give

additional damages to deter the wrongdoer from repeating the

trespass or as compensation for the wounded feelings of the

plaintiff.” OCGA § 51-12-5 (1986).84 See also Colonial Pipeline Co. v.

Brown, 258 Ga. 115, 122 (5) (365 SE2d 827) (1988) (OCGA § 51-12-

5 “states that in every tort there may be aggravating circumstances,

either in ‘the act or the intention’ in which event additional or

punitive damages may be awarded.”); Code of 1860 § 2998 (“In every

tort there may be aggravating circumstances, either in the act or the

84 Cf. Ga. L. 1987, p. 915, § 4 (“striking in its entirety Code Section 51-

12-5, relating to additional damages for aggravating circumstances, and inserting in its place a new Code Section 51-12-5 to read as follows: 51-12-5. (a) In a tort action in which there are aggravating circumstances, in either the act or the intention, the jury may give additional damages to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff. (b) This Code section shall apply only to causes of action for torts arising before July 1, 1987.”). 154 intention, and in that event the jury may give additional damages,

either to deter the wrong doer from repeating the trespass, or as

compensation for the wounded feelings of the plaintiff.”). And the

law made special provision for compensatory damages for torts for

which the entire injury is to the peace, happiness, or feelings of the

plaintiff and for which the only measure of damages is the

enlightened conscience of impartial jurors.85 The Tort Reform Act of

1987 replaced the broad descriptive term “aggravating

circumstances, in either the act or the intention” with a list of types

of culpable conduct drawn from Georgia’s decisional law on punitive

damages: “willful misconduct, malice, fraud, wantonness,

oppression, or that entire want of care which would raise the

presumption of conscious indifference to consequences.” OCGA § 51-

85 See OCGA § 51-12-6 (1986) (“In some torts the entire injury is to the

peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed. The verdict of a jury in such a case should not be disturbed, unless the court should suspect bias or prejudice from its excess or its inadequacy.”); Code of 1860, § 2999 (same, with different punctuation).

155 12-5.1 (b).86 See OCGA § 51-12-5 (b). These types of culpable conduct

have the common element of being greater than gross negligence.

See Southern R. Co. v. O’Bryan, 119 Ga. 147, 148-149 (1) (45 SE

1000) (1903) (“Mere negligence can never amount to . . . aggravating

circumstances [in a tortfeasor’s act or intention] as to warrant the

86 See Chattanooga, Rome & Columbus R. Co. v. Liddell, 85 Ga. 482, 495-

496 (5) (11 SE 853) (1890) (“[T]he absence of [the] care [that was required to avoid a railroad accident], whether called gross or ordinary negligence, did not authorize the jury to visit the company with damages beyond the limit of compensation for the injury actually inflicted. To do this, there must have been some willful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences. . . . In order to warrant a jury in giving vindictive damages, something more than mere unlawfulness must be shown; there must be evidence either of malice, fraud, wantonness, or oppression. The act must have been done under such circumstances as show a disregard for the rights of others, or an intention to set at defiance the legal rights of others, or the ordinary obligations of society.” (citation and punctuation omitted)); see also Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188, 189 (1) (232 SE2d 62) (1977) (“To authorize the imposition of punitive or exemplary damages there must be evidence of willful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” (citations and punctuation omitted)); Parsons v. Ponder, 161 Ga. App. 723, 724 (2) (288 SE2d 751) (1982) (“To authorize the imposition of exemplary damages, or punitive damages as they are commonly called, under Code Ann. § 105-2002[, the immediate predecessor to OCGA § 51-12-5,] there must be evidence of wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” (citation and punctuation omitted)).

156 imposition of . . . [additional] damages [under a predecessor to

OCGA § 51-12-5]; and this is true though the negligence be gross.”);

Chattanooga, Rome & Columbus R. Co. v. Liddell, 85 Ga. 482, 495-

497 (5) (11 SE 853) (1890) (accord). OCGA § 51-12-5.1 treats all of

these types of culpable conduct equally, capping them unless the

defendant acted with the specific intent to cause harm (or, under the

2010 amendment while the defendant’s judgment was impaired by

alcohol or drugs). OCGA § 51-12-5.1 (f).

As previously discussed, a close reading of the pre-1776

English cases identified by Taylor undercuts the majority opinion’s

holding that juries of that era awarded punitive damages only in

cases involving intentional misconduct.87 The majority opinion errs

in using this holding to carve out cases involving an entire want of

care from the universe of tort cases in which juries historically could

87 See Reid v. Morris, 309 Ga. 230, 235 (845 SE2d 590) (2020) (explaining

OCGA § 51-12-5.1’s three-tiered structure for punitive damages awards: (1) cases involving products liability claims, (2) cases involving a specific intent to harm the plaintiff, and (3) cases involving willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences). 157 award punitive damages, thereby avoiding the broader question of

whether the right to a jury trial in Georgia inheres in awards for

punitive damages generally, such that the punitive damages cap in

OCGA § 51-12-5.1 (g) is unconstitutional. As discussed above,

Georgia constitutionally guaranteed the right to trial by jury at a

time when a jury had the authority to award additional, exemplary

damages for whatever conduct the jury found egregious enough to

warrant such damages. Having a jury determine the amount of

punitive damages, unfettered by legislative acts, was an essential

element of the right to trial by jury as it existed at common law and

as it continued to be protected in Georgia at the date of the adoption

of our earliest Constitution. See Nestlehutt, 286 Ga. at 735 (2) (a);

Pollard, 148 Ga. at 454. Thus, even under the Nestlehutt framework,

the right to a jury trial in Georgia inheres in awards for punitive

damages generally, including for cases involving an entire want of

care. It follows that the General Assembly wrongfully curtailed the

constitutional right to a jury trial by requiring courts not to enforce

a jury’s determination of the amount of punitive damages warranted

158 for a tortfeasor’s willful misconduct, malice, fraud, wantonness,

oppression, or that entire want of care which would raise the

presumption of conscious indifference to consequences.88

For these reasons, I dissent in Division III.

2. In Division VIII, the majority opinion determines that Taylor

is entitled to 40 percent of the recoverable damages under OCGA §

13-6-11 because she presented, in addition to her contingency-fee

agreement for such recovery, some evidence of the value of the

professional services actually rendered. In doing so, the majority

opinion followed the analysis in Ga. Dept. of Corrections v. Couch,

88 To the extent Teasley v. Mathis, 243 Ga. 561 (255 SE2d 57) (1979), and

State v. Moseley, 263 Ga. 680 (436 SE2d 632) (1993), hold that the constitutional right to a jury trial does not prevent the General Assembly from establishing statutory limits on punitive damages, as advanced in Justice Colvin’s concurrence, those cases failed to recognize the limits the constitutional right to trial by jury puts on the scope of the General Assembly’s authority. See Georgia Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60, 61-62 (2) (335 SE2d 127) (1985) (“A right of action existing at common law may be modified or abrogated by” the General Assembly “unless prevented by constitutional limitations.”); see also Nestlehutt, 286 Ga. at 736 (2) (b) (agreeing with the general principle stated in Moseley and Teasley that the General Assembly has authority to modify or abrogate the common law, but rejecting the idea “that this general authority empowers the [General Assembly] to abrogate constitutional rights that may inhere in common law causes of action”). 159 295 Ga. 469 (759 SE2d 804) (2014), a case that dealt with attorney

fees under OCGA § 9-11-68. The majority opinion states that both

Taylor and Devereux “argue that we should look to the standard . .

. set out” in Couch. But Taylor does not argue that we should look to

Couch. Rather, she assumes that we will, and she argues that she

offered evidence of the value of her attorney’s services sufficient

under the approach of Couch and its progeny to support the trial

court’s award of fees. In the face of extensive Court of Appeals

precedent requiring proof of the reasonable value of fees awarded

under OCGA § 13-6-11,89 this was a reasonable argument to make

in the alternative, and it prevailed in the majority opinion.

The majority opinion’s approach makes it unnecessary to reach

Taylor’s argument that “Devereux’s entire argument is based on a

‘reasonableness’ requirement that does not exist in the plain

89 See Wimpy v. Martin, 356 Ga. App. 55, 59-60 (3) (a) (846 SE2d 230)

(2020); City of Atlanta v. Hofrichter/Stiakakis, 291 Ga. App. 883, 889-890 (3) (663 SE2d 379) (2008); Home Depot U.S.A., Inc. v. Tvrdeich, 268 Ga. App. 579, 584-585 (2) (602 SE2d 297) (2004); Patton v. Turnage, 260 Ga. App. 744, 746- 749 (2) (580 SE2d 604) (2003); Rivergate Corp. v. BCCP Enterprises, Inc., 198 Ga. App. 761, 761-762 (2) (403 SE2d 65) (1991). 160 language of Code Section 13-6-11.” Thus, the majority opinion does

not consider whether the difference in language between OCGA §

13-6-11, which authorizes the recovery of “[t]he expenses of

litigation,” and statutes that authorize only “reasonable attorney

fees” is legally significant. While the procedural posture of this case

may permit resolution of this appeal without reaching the issue, it

must be emphasized that the majority opinion does not hold that,

despite its plain language, OCGA § 13-6-11 authorizes only

reasonable attorney fees. This case cannot be cited as precedent for

such a holding. If the procedural posture had compelled this Court

to answer the question whether OCGA § 13-6-11 contains a

reasonableness requirement and permits a Couch-type review of the

evidence, I believe the plain text and the historical context of the

statute would demand an answer in the negative.

Georgia follows the “American Rule” of attorney fees: even a

prevailing litigant bears the cost of asserting his legal rights and can

recover the expenses of litigation including his attorney fees from

the opposing party only where authorized by a statutory provision

161 or by the parties’ contract.90 Several of Georgia’s statutes that

authorize an award of expenses of litigation and attorney fees

authorize the trial court to grant only reasonable attorney fees, 91

which has generally required a determination, based on evidence, of

the value of the legal services provided. See Couch, 295 Ga. at 483

(3) (a).92 The amount of “reasonable” attorney fees, as determined by

the finder of fact, will not necessarily match the amount of fees the

90 See Ga. Subsequent Injury Trust Fund v. Muscogee Iron Works, 265

Ga. 790, 790-791 (462 SE2d 367) (1995); Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 344 (3) (348 SE2d 628) (1986); Bowers v. Fulton County, 227 Ga. 814, 815 (1) (183 SE2d 347) (1971); Horton v. Dennis, 325 Ga. App. 212, 215 (750 SE2d 493) (2013). 91 See, e.g., OCGA §§ 9-11-68 (b) (“reasonable attorney’s fees and

expenses of litigation” incurred during a specified period in the case of certain offers of settlement rejected by the opposing party in civil litigation); 9-15-14 (“reasonable and necessary attorney’s fees and expenses of litigation” in certain cases of frivolous litigation); 10-1-764 (“reasonable attorneys’ fees to the prevailing party” in certain claims of misappropriation of a trade secret); 13-1- 11 (allowing “obligations to pay attorney’s fees upon any note or other evidence of indebtedness” and requiring that fees greater than $20,000 be reasonable); 51-7-83 (“costs and expenses of litigation and reasonable attorney’s fees” in certain cases of abusive civil litigation). 92 See also Brock Built, LLC v. Blake, 316 Ga. App. 710, 713-715 (2) (730

SE2d 180) (2012) (remanding for a determination of the value of an attorney’s services, where employment contract provided for “all costs and expenses (including court costs and reasonable attorney fees) incurred by [employee] in connection with any litigation seeking to enforce [his] rights” under the agreement, provided that he was “substantially successful in such litigation” (punctuation omitted)).

162 litigant would owe under the contract of legal representation, which

may provide for pro bono representation (no fees), a flat rate, an

hourly rate, a contingent fee (usually a percentage of the monetary

recovery for the litigant), or some other arrangement between

attorney and client.

Unlike OCGA § 9-11-68, the Code section at issue in Couch,

and many other statutes that provide for attorney fee awards, OCGA

§ 13-6-11, does not modify the term “the expenses of litigation” with

“reasonable” or any similar term.93 Likewise, the predecessors to

OCGA § 13-6-11 extending at least back to the 1860 Code of

93 See OCGA § 13-6-11 (1983) (“The expenses of litigation generally shall

not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”); Code of 1933, Title XX, Part III, Chapter 20-14, § 20-1404 (“The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”); Code of 1910, Part II, Title VIII, Chapter VIII, § 4392 (same); Code of 1895, Part II, Title VIII, Chapter VIII, § 3796 (same); Code of 1882, Part II, Title VII, Chapter X, § 2942 (same); Code of 1873, Part II, Title VII, Chapter X, § 2942 (same); Code of 1867, Part II, Title 7, Chapter X, § 2891 (same); Code of 1860, Part II, Title 7, Chapter IX, § 2883 (same).

163 Georgia94 have never modified the term “the expenses of litigation.”

The General Assembly found it proper to provide only for reasonable

attorney fees in OCGA §§ 9-11-68 (b), 9-15-14, 10-1-764, and others,

but brought forward the unrestricted term “the expenses of

litigation” in OCGA § 13-6-11 and its predecessors in each Code

revision since 1860. Thus, a plain reading of the text of OCGA § 13-

6-11 indicates that, the other requirements of the Code section being

met, a jury is authorized under OCGA § 13-6-11 to award a litigant’s

94 For purposes of this analysis, I am referring to the Code of the State

of Georgia, prepared by R. H. Clark, T. R. R. Cobb, and D. Irwin, as “codifers,” adopted by the General Assembly and signed into law by the governor on December 19, 1860, and published by John H. Seals, in Atlanta, Georgia, in 1861. See Ga. L. 1860, p. 24. The Code of 1860 designated that it would be effective on January 1, 1862. See id. Before the designated effective date, Georgia seceded from the union, and on March 18, 1861, “a convention of the people, then in session” resolved to amend the Code “to conform to the government of the Confederate States, instead of the government of the United States[.]” See Code of 1860, preface by the codifers, p. iv. On December 16, 1861, the General Assembly voted to delay the effective date of the Code to January 1, 1863, Ga. L. 1861, p. 27, and the original Code is also sometimes referred to as the Code of 1861 or the Code of 1863. See Jefferson James Davis, “The Georgia Code of 1863: America’s First Comprehensive Code,” 4 J. S. Legal Hist. 1 (1995-1996) (referring to the Clark, Cobb, and Irwin Code as the “Georgia Code of 1863,” due to the delayed effective date); Caldwell v. State, 313 Ga. 640, 650 n.11 (872 SE2d 712) (2022) (McMillian, J., concurring) (same); Paul S. Milich, “Georgia’s New Evidence Code – An Overview,” 28 Ga. St. U. L. Rev. 379, 380 (2012).

164 actual expenses of litigation.95

95 It would also be worth exploring whether the original predecessor to

OCGA § 13-6-11 was intended to apply to tort claims at all. The codifers were charged with preparing for the people of Georgia a Code, which shall as near as practicable, embrace in a condensed form, the Laws of Georgia, whether derived from the Common Law, the Constitution of the State, the Statutes of the State, the Decisions of the Supreme Court, or the Statutes of England of force in this State[.] . . . [W]hen ratified and adopted by [the General Assembly], it may supercede [sic] all other laws and decisions and establish fixed and uniform law in the State of Georgia. Ga. L. 1858, p. 95. See Sons of Confederate Veterans v. Henry County Bd. of Commrs., 315 Ga. 39, 58 (2) (c) (ii) n.14 (880 SE2d 168) (2022) (explaining differences between current codification practices, which are generally limited to incorporating acts of the General Assembly, and the practices employed in Georgia’s early codes). As the codifers explained, they undertook to draft a code that would “arrange” the “somewhat chaotic mass” of the statutes of Georgia and in addition “to interweave” with the statutes “the great fundamental principles of our jurisprudence from whatsoever source derived” of which the statutes “constituted but disjointed parts.” Code of 1860, preface by the codifers, p. iii. See also id., preface by the committee appointed by the General Assembly to review the Code drafted by the codifers and to recommend whether to adopt it, p. vi (The Code was intended to mingle together “in condensed and intelligible form the common and statute Laws, Constitutional provisions and Court Decisions, and thus to place the whole body of all the Law within the reach of the people” and to refer every citizen “to the whole embodiment of the Law in a single volume to be exactly informed what are his rights in any and every exigency, and what his remedies for their enforcement and protection.”). As part of this grand plan of organization and comprehensiveness, the codifers placed the 1860 predecessor to OCGA § 13-6-11, § 2883, in Part II (The Civil Code), Title 7 (Contracts), Chapter IX (Breach of Contracts and Damages). In total, that chapter provided thirteen sections, most of which used the words “breach,” “contract,” or both. In context of the title and chapter in which it was placed, § 2883 can only be fairly read as providing that “[t]he expenses of litigation are not generally allowed as a part of the damages” in a suit for

165 breach of a contract, “but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” In contrast, the Code of 1860, Part II, Title VIII (Torts), Chapter V (Damages) made no explicit reference to recovery of the expenses of litigation. Despite its placement in the title covering contracts, the text of the predecessors to OCGA § 13-6-11, viewed apart from the context of the rest of the chapter on breach of contracts and damages, did not expressly limit the Code section to contracts cases, and the section was soon applied in torts cases. See Tift v. Towns, 63 Ga. 237, 242 (3) (1879) (In a negligence action against a toll-bridge owner for failure to keep a bridge in proper repair, the jury awarded the plaintiff damages and “counsel fees,” and the defendant argued that the award of counsel fees was not warranted by evidence that the defendant “had acted in bad faith, or had been stubbornly litigious, or had caused the plaintiff unnecessary trouble and expense” as provided in Irwin’s Revised Code Ann. 1873 § 2942, another predecessor to OCGA § 13-6-11. This Court found the damages were excessive, in part because the award included counsel fees. The Court found that the defendant’s resistance to the plaintiff’s “too high” demand for damages did not amount to “wanton or excessive indulgence in litigation.”); Selma, Rome & Dalton R. Co. v. Fleming, 48 Ga. 514 (1873) (noting in dicta that, “[u]nder section 2891, Irwin’s Revised Code [1867],” the successor to Code of 1860 § 2883, “damages for a tort may be increased by the expenses of litigation, if the defendant have shown himself specially litigious in the matter”). By 1903, applying § 3796 of the Civil Code of 1895, the latest successor to Code of 1860 § 2883, which was still plainly lodged in Title VIII, Contracts, Chapter VIII, Breach and Damage, we noted in Traders Ins. Co. v. Mann, 118 Ga. 381 (45 SE 426) (1903), that attorney fees under the subsection for bad faith, stubborn litigiousness, or causing unnecessary trouble and expense had “usually been asked for by the plaintiff in actions ex delicto,” that is, tort actions, listing numerous cases, including Selma &c. R. Co., which we identified as “the first case construing this section.” Traders Ins. Co., 118 Ga. at 384. In Traders Ins. Co., we doubtfully accepted that a few Georgia cases ex contractu might stand for the principle that “the right to recover expenses of litigation is not confined to actions sounding in tort,” and held that, if so, “the same element of bad faith must appear in order to warrant their recovery in actions ex contractu.” Id. at 385. At some point, the General Assembly inserted “in making the contract” after “bad faith,” which would indicate an intent that OCGA § 13-6-11 should

166 It is true that Taylor focuses on her alternative argument and

says this Court “need not reach” the issue of the lack of a textual

basis for Devereux’s reliance on a “reasonableness” requirement for

attorney fee awards under OCGA § 13-6-11, but this does not bind

us to review the trial court’s award as if Couch applies, effectively

rewriting the Code section to include a reasonableness requirement

not present in the text. The General Assembly is perfectly capable

of limiting awards of statutory attorney fees to “reasonable”

amounts, as demonstrated in the numerous statutes in which it did

so, and it alone is authorized to amend OCGA § 13-6-11 to limit

awards under that Code section. In this case, Taylor’s actual

expenses of litigation are 40 percent of the jury’s enforceable verdict

not be applied in tort cases. See Sepulvado v. Daniels Lincoln-Mercury, Inc., 170 Ga. App. 109, 110 (2) (316 SE2d 554) (1984) (quoting the immediate predecessor to OCGA § 13-6-11 as follows: “The expenses of litigation generally shall not be allowed as a part of the damages; but where the defendant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”). But, in 1984, the General Assembly reversed that change. See Ga. L. 1984, p. 22, § 13 (deleting “in making the contract” from Code Section 13-6-11, relating to recovery of expenses of litigation generally). Therefore, even if this Court in the past incorrectly allowed the predecessors to OCGA § 13-6-11 to authorize expenses of litigation in tort cases, the General Assembly has since embraced that interpretation. 167 as attorney fees under her contingency fee contract with counsel,

plus $288,055.03 in other litigation expenses proven at trial. The

trial court reached the right result, even though it applied Couch to

Taylor’s claim under OCGA § 13-6-11. Accordingly, I concur in

Division VIII only to the extent the majority opinion affirms the trial

court’s ruling that Taylor be awarded expenses of litigation under

OCGA § 13-6-11 in that amount.

168 Decided March 15, 2023 — Reconsideration denied March 30,

2023.

OCGA § 51-12-5.1 (g); constitutional question. Cobb State

Court. Before Judge Golick.

Bondurant Mixson & Elmore, Naveen Ramachandrappa,

Joshua F. Thorpe; Deitch & Rogers, Gilbert H. Deitch, Andrew T.

Rogers, Kara E. Phillips, W. Michael D’Antignac; Isenberg & Hewitt,

Melvin L. Hewitt, Jr., Hilary W. Hunter, for Taylor.

Webb Daniel Friedlander, Laurie W. Daniel, Matthew D.

Friedlander, Jeffrey K. Sandman; Hawkins Parnell Thackston &

Young, Matthew F. Barr, for The Devereux Foundation, Inc. et al.

Ashby Thelen Lowry, Andrew S. Ashby, Maxwell K. Thelen;

Shook Hardy & Bacon, Anna S. Pieschel, Philip S. Goldberg; The

Hanson Firm, David C. Hanson; Anthony J. Sebok, John C. P.

Goldberg; Christopher M. Carr, Attorney General, Stephen J.

Petrany, Solicitor-General, Ross W. Bergethon, Drew F. Waldbeser,

Deputy Solicitors-General; King & Spalding, Letitia A. McDonald,

Robert B. Friedman, Erin M. Munger; Jones Day, Brian C. Lea,

169 Matthew J. Rubenstein, amici curiae.