Builders Transport, Inc. v. Hall

• Decision Date: 01 June 1989
• Docket Number: A89A0714,Nos. A89A0713,s. A89A0713
• Citation: 191 Ga.App. 889,383 S.E.2d 341
• Parties: BUILDERS TRANSPORT, INC. v. HALL; HALL v. BUILDERS TRANSPORT, INC.
• Court: Georgia Court of Appeals

Page 341

383 S.E.2d 341

191 Ga.App. 889

BUILDERS TRANSPORT, INC. v. HALL;

HALL v. BUILDERS TRANSPORT, INC.

Nos. A89A0713, A89A0714.

Court of Appeals of Georgia.

June 1, 1989.

Rehearing Denied June 19, 1989.

Certiorari Denied Sept. 29, 1989.

Fisher & Phillips, Griffin B. Bell, Jr., Charles A. Hawkins II, Atlanta, Blasingame, Burch, Garrand & Bryant, and Andrew J. Hill, III, Athens, for appellant.

Eichholz & Associates, Michael A. Lewanski, Harold J. Cronk, Gregory V. Sapp, and John R. Calhoun, Savannah, for appellee.

SOGNIER, Judge.

In an earlier appearance of these parties before this court, in which the facts of the case are set forth in detail, we addressed the appeal filed by Builders Transport, Inc., from the denial of its motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. Builders Transport v. Hall, 183 Ga.App. 812, 360 S.E.2d 60 (1987). In Division 1 of that opinion we reversed the jury's award of damages to Hall for breach of contract, based on the insufficiency of the foundation evidence presented to support Hall's opinion testimony as to the value of the property in question and Hall's failure to pinpoint the value of a repossessed truck on the actual date of repossession. Id. at 815(1), 360 S.E.2d 60. Upon the remittitur in that case being issued, the trial court entered an order granting Builders Transport's motion for judgment n.o.v. on Hall's contract claim pursuant to this court's opinion, then exercised its discretion by granting Hall a new trial. See OCGA § 5-5-40(h). The trial court denied Builders Transport's motion to reconsider and we granted Builders Transport's application for interlocutory appeal in Case No. A89A0713. In Case No. A89A0714 Hall appeals from the grant of partial summary judgment to Builders Transport on an issue involving the merits of Hall's tort claim.

1. In Case No. A89A0713, because a close reading of the record reveals that the trial court did follow the mandate of this court's opinion in Builders Transport, supra, by granting judgment n.o.v. to Builders Transport, the cases cited by Builders Transport regarding the interpretation to be given a reversal by an appellate court of the denial of various types of motions upon the remittitur being issued in the trial court are not applicable here. See, e.g., Kirkland v. Southern Discount Co., 187 Ga.App. 453, 370 S.E.2d 640 (1988). Rather, the issue presented is whether the trial court, after granting Builders Transport's motion for judgment n.o.v. pursuant to our opinion, then abused its discretion by granting Hall a new trial, sua sponte, within 30 days of the entry of that judgment.

OCGA § 5-5-50 provides: "The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." "While it is the well-settled rule that this court 'will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law, unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case'. [cits.; see also Trawick v. Jackson, 188 Ga.App. 664 (374 S.E.2d 114) (1988) ], it has nevertheless been held with equal uniformity that if the evidence does demand the verdict rendered, the first grant of a new trial will be reversed. [Cit.]" Moody v. Moody, 195 Ga. 13-14(1), 22 S.E.2d 836 (1942). In Builders Transport, supra, this court determined that Hall failed to establish the necessary foundation for his opinion testimony and failed to prove the value of the truck on the date of repossession. The trial court based its grant of a new trial to Hall on its determination that Hall had demonstrated at trial that he possessed the evidence necessary to establish a claim for damages for breach of contract, but had failed to present that evidence in the technical format required for opinion testimony, a failure that mandated the grant of judgment n.o.v. to Builders Transport as to the trial already conducted, but one which did not demand a verdict in favor of Builders Transport on the merits of Hall's claim, within the meaning of OCGA § 5-5-50, so as to preclude the grant of a new trial. However, Hall's failure to establish his claim by presenting the necessary evidence in the required legal format was not occasioned by any error on the trial court's part. "[E]ven a first new trial can not be granted where, under the law and the evidence, the verdict as rendered was the only lawful result." Jones Motor Co. v. Finch Motor Co., 34 Ga.App. 399, 403, 129 S.E. 915 (1925). Since the evidence as adduced at trial by Hall demanded the verdict in Builders Transport's favor, and no error of law whatsoever was committed by the trial court which prevented Hall from presenting the necessary evidence, the grant of new trial was an abuse of the trial court's discretion. See id. at 400-403, 129 S.E. 915; see also Bank of America, etc., Assn. v. Reserve Life Ins. Co., 90 Ga.App. 332, 333(8), 83 S.E.2d 66 (1954).

2. In Case No. A89A0714, Hall contends the trial court erred by granting partial summary judgment in favor...