Brantley Co. v. Simmons, A90A0628

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPOPE; DEEN, P.J., and BEASLEY
Citation395 S.E.2d 656,196 Ga.App. 233
Docket NumberNo. A90A0628,A90A0628
Decision Date03 July 1990

Gibson & Jackson, Douglas L. Gibson, Waycross, for appellant.

W. Vincent Settle III, for appellee.

POPE, Judge.

The Brantley Company, plaintiff below, appeals from the trial court's grant of Ralph Simmons' motion for judgment notwithstanding the verdict (JNOV). The jury had returned a verdict of $15,165.27 on an open account against defendant Simmons and co-defendant Jack Wall. At trial, plaintiff proceeded on the theory that Simmons had represented to its general manager that he and Jack Wall were partners in a farming venture and that Simmons had agreed to "stand good" for Wall's debt. In his motion for JNOV, Simmons argued that because there was no writing signed by him in which he promised to pay Wall's debt, the Statute of Frauds was applicable and he could not be held liable. This was the basis upon which the trial court granted JNOV. Held:

Plaintiff first argues that defendant's motion for JNOV was based on a ground not raised in his motion for directed verdict as required by OCGA § 9-11-50(b). Our review of the record shows that defendant's motion for a directed verdict was on the basis that defendant never asked for any credit nor endorsed any credit and that under the UCC as it relates to retail sale of goods he could not orally agree to be responsible for the goods. The motion for JNOV was based upon the application of OCGA § 13-5-30, the Statute of Frauds. Although defendant argues his motion for directed verdict logically included § 13-5-30, we do not agree. OCGA § 9-11-8(c) specifically lists the Statute of Frauds as an affirmative defense that must be raised by pleading or be waived. Beck v. Johnston, 118 Ga.App. 541, 164 S.E.2d 342 (1968); see also New House Products v. Commercial Plastics, etc., Corp., 141 Ga.App. 199(1), 233 S.E.2d 45 (1977). Defendant never raised the defense, either in his pleadings, by motion or in the pre-trial order. We agree with plaintiff that the language used by defendant in his motion for directed verdict did not contain the ground raised in his motion for JNOV and even if it had, under the authorities set out above, the defense had been waived. It follows that the trial court erred in granting JNOV. Because OCGA § 13-5-30 was the only ground urged in support of the motion for JNOV, we need not consider the merits of defendant's alternative ground for directed verdict.


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    • U.S. District Court — Northern District of Georgia
    • August 31, 2015
    ...Life Care Ambulance, Inc. v. Hosp. Auth. of Gwinnett Cnty., 202 Ga.App. 864, 415 S.E.2d 502, 504 n. 1 (1992) ; Brantley Co. v. Simmons, 196 Ga.App. 233, 395 S.E.2d 656, 657 (1990) ; S. Intermodal Logistics, Inc. v. Smith & Kelly Co., 190 Ga.App. 584, 379 S.E.2d 612, 614 (1989) ; JOHN K. LAR......
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    • March 6, 2002
  • Famiglietti v. Brevard Medical Investors, Ltd.
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    • September 19, 1990
    ...Corp., 140 Ga.App. 502(1), 231 S.E.2d 362 (1976). We recently reaffirmed this long-standing procedural rule in Brantley Co. v. Simmons, 196 Ga.App. 233, 395 S.E.2d 656 (1990). Grounds asserted in a motion for j.n.o.v. but not in the motion for directed verdict are not considered on appeal e......
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    • U.S. District Court — Middle District of Georgia
    • March 7, 2002
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