Crotts Enterprises, Inc. v. John Payne Co., Inc., A95A1533

• Decision Date: 28 November 1995
• Docket Number: No. A95A1533,A95A1533
• Citation: 464 S.E.2d 844,219 Ga.App. 173
• Parties: CROTTS ENTERPRISES, INC. v. JOHN PAYNE COMPANY, INC.
• Court: Georgia Court of Appeals

Page 844

464 S.E.2d 844

219 Ga.App. 173

CROTTS ENTERPRISES, INC. v. JOHN PAYNE COMPANY, INC.

No. A95A1533.

Court of Appeals of Georgia.

Nov. 28, 1995.

A. Joseph Nardone, Jr., A. Joseph Nardone, P.C., Decatur, for appellant.

Rachelson & Beloin, Frederic S. Beloin, Atlanta, for appellee.

BEASLEY, Chief Judge.

Crotts manages a variety of real estate properties, including the Montreal office park. Payne is a heating, ventilation, and air conditioning contractor which serviced HVAC systems at various Crotts sites and had installed some of them, including the one at Montreal. Payne sued on account and for breach of contract for $21,429.26 representing unpaid invoices. Crotts counterclaimed for breach of contract, later amending it to assert passive concealment of construction defects.

At trial, Crotts contended that Payne improperly installed the Montreal HVAC system, did not reveal this after it became apparent during service calls, but billed for repairs and blamed most of the problems on lightning strikes or electric surges. Payne denied the system was installed contrary to the manufacturer's specifications and pointed out that others had worked on the system. It also maintained that lightning strikes and surges did cause the problems and that Crotts had rejected preventive equipment. A jury awarded Payne $14,459.56, and Crotts appeals.

1. Several enumerations address jury charges. We note that the trial judge absented herself from the courtroom while the parties placed their objections on the record. This practice defeats a primary purpose of requiring counsel to object to the court's charge after it has been given, which is " 'to insure that the trial judge is afforded an opportunity to (determine if a charging error in fact has occurred and to) correct any error in the instructions prior to verdict so that the necessity of an appeal will be obviated.' [Cit.]" Benton v. Chatham County, 206 Ga.App. 285, 287(2), 425 S.E.2d 317 (1992). The purpose is not simply to "perfect the record" for appeal. See OCGA § 5-5-24(a).

2. The court refused to give Crotts's requested jury charge on passive concealment, which it enumerates as error. See Miller v. Clabby, 178 Ga.App. 821, 822, 344 S.E.2d 751 (1986). The doctrine is clearly limited " 'to controversies between residential homeowners and residential builder/sellers as an exception to the doctrine of caveat emptor.' [Cits.]" Armstrong Transfer, etc., Co. v. Mann Constr., 217 Ga.App. 538, 539(1), 458 S.E.2d 481 (1995). As in Armstrong, the doctrine is inapplicable because the case involves commercial property.

3. Crotts contends the collateral source rule should have prevented the court from charging the jury that, as to the counterclaim, the jury "must" reduce any amount awarded Crotts by the amount Crotts had received from its insurer. First, despite Crotts's statements here, its counterclaim sounded only in contract; as discussed above, the court properly did not present any tort theory to the jury. The collateral source rule does not apply in contract cases because to do so would give the contract claimant more than his actual damages and more than he would have received if the contract had been fully performed. Amalgamated Transit Union, etc. v. Roberts, 263 Ga. 405, 406-408(1), 434 S.E.2d 450 (1993).

Second, if the court erred in charging the jury it "must" reduce any counterclaim award, there was no harm because the jury found against Crotts on the counterclaim. Crotts contends there was harm because the charge induced the jury to reduce Crotts's counterclaim by the amount of insurance benefits Crotts had received, $20,913.65; take the remaining counterclaim amount; and use it to reduce Payne's award on the main claim. Even if such a calculation would produce Payne's award from the evidence presented, we cannot assume the jury engaged in such an exercise. A special verdict form was used, and the jury specifically found that Payne was not liable to Crotts on the counterclaim.

Additionally, in response to Crotts's motion for new trial, Payne submitted an affidavit of the jury foreman sustaining the verdict. See OCGA § 9-10-9. The affidavit showed the jury completely rejected all Crotts's bases for its counterclaim and did not make...