General Ins. Services, Inc. v. Marcola, s. A97A1846

Decision Date12 March 1998
Docket NumberNos. A97A1846,A97A1847,s. A97A1846
Citation231 Ga.App. 144,497 S.E.2d 679
Parties, 98 FCDR 1166 GENERAL INSURANCE SERVICES, INC. et al. v. MARCOLA. MARCOLA v. GENERAL INSURANCE SERVICES, INC. et al.
CourtGeorgia Court of Appeals

Westmoreland, Patterson & Moseley, Stewart R. Brown, Macon, for appellants.

Michael A. Lewanski, Savannah, for appellee.

McMURRAY, Presiding Judge.

Plaintiff Linda F. Marcola, f/k/a/ Linda Mobley brought this contract action against defendants General Insurance Services, Inc. ("GIS") and its president, Karl Byers, alleging "On or about October of 1990, the Plaintiff agreed to sell and the defendants' [sic] agreed to purchase from the Plaintiff a business known as Mobley Insurance Agency. The purchase price of said agency was Thirty Three Thousand Five Hundred Dollars ($33,500.00). The Defendant or Defendants have paid the approximate amount of $13,642.58 leaving an approximate balance of $19,857.42." Plaintiff also sought $1,263.94 as the unpaid balance due for the contents of the office. By amendment, she further alleged that defendants "entered into an employment contract with the plaintiff ... for a period of 12 months ... [whereby] plaintiff was to receive $1,000.00 per month as office manager." Defendants denied the material allegations and counterclaimed for a return of all sums paid to plaintiff as the purchase price for Mobley Insurance Agency, alleging plaintiff had "breached and entirely denied ... the benefit of said contract...."

The case was tried before a jury which returned a verdict for plaintiff as to all the damages she sought. Defendant Karl Byers' motion for judgment notwithstanding the verdict was granted while the motions of defendant GIS for judgment notwithstanding the verdict and for new trial were denied. In Case No. A97A1846, defendant GIS appeals from the judgment entered on the jury's verdict. In Case No. A97A1847, plaintiff cross-appeals. Held:

Case No. A97A1846

1. Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue. White v. Lance H. Herndon, Inc., 203 Ga.App. 580(1), 417 S.E.2d 383. Consequently, defendant's first enumeration presents nothing for review.

2. In its second and third enumerations, defendant GIS contends the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict and also for new trial, on the ground that plaintiff failed to prove the terms of her purchase and sale agreement and her contractual damages resulting from defendant's failure to pay. We disagree.

(a) "Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. [Cits.]" Taylor v. Ga. Power Co., 136 Ga.App. 412, 413(1), 221 S.E.2d 222. A directed verdict or j.n.o.v. should not be granted unless "there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict...." OCGA § 9-11-50(a).

Attached to defendants' answer and counterclaim is the written agreement between plaintiff and defendant GIS. Plaintiff identified "the contract that [she] and [defendant] Karl [Byers] signed together...." During cross-examination, plaintiff affirmed she was "referring to this October 1990 contract we've been talking about saying that the purchase price he [sic] was paying you for [including] a figure here, ... $13,642 and some odd [received], leaving an approximate balance [due] of $19,857.42." Subject to the results of an audit, defendant GIS promised to pay plaintiff $33,500, calculated as "50 % of estimated commissions generated from October 1, 1989, to October 1, 1990, which amount is estimated to be $67,000.00...." Thus, the existence of the sales agreement and its material terms were not matters of factual dispute. The evidence, including defendant's cross-examination, made out a prima facie case of plaintiff's damages for breach of the purchase and sale agreement. Whether defendant's audit figures in support of its claim for offset were accurate and determined in good faith were questions for the jury. Consequently, the trial court did not err in denying defendant's motion for directed verdict or judgment notwithstanding the verdict, on the ground that plaintiff failed to prove her damages for that claim.

(b) Relying on Beasley v. Paul, 223 Ga.App. 706(1), 707, 478 S.E.2d 899, defendant GIS also argues that, even if the grant of a directed verdict may be precluded because there is evidence to support a verdict for the nonmovant plaintiff, nevertheless, a new trial is authorized because that verdict is contrary to or against the great weight of the evidence when viewed as a whole.

"No court except the trial court is vested with the authority to grant a new trial in a matter relating to the weight of the evidence. [Cit.] 'The appellate courts are not vested with discretion in this regard as are ... the trial courts.' [Cit.]" Allstate Ins. Co. v. Brannon, 214 Ga.App. 300, 304(5), 447 S.E.2d 666. See also OCGA § 13-6-4. "Thus, the only query [raised by defendant's third enumeration] is whether the evidence supported the verdict. [Cits.]" Daniels v. Hartley, 120 Ga.App. 294, 170 S.E.2d 315. We have already determined the evidence is sufficient to support the plaintiff's verdict for breach of the purchase and sale agreement. Consequently, this enumeration is without merit.

3. In its fifth enumeration, defendant GIS contends the trial court erred in giving the following jury instruction: "For purposes of determining whether or not a corporate entity was used to perpetuate a fraud a person commits fraud when that person makes a misrepresentation which is intended to deceive and which does deceive," whereupon the trial court defined actual and constructive fraud and charged the elements of fraud in the inducement.

It is clear the jury was directed to consider solely the acts of defendant Karl Byers and not those of defendant GIS. Nothing in these instructions purports to authorize a verdict against defendant GIS on the basis of fraud in the inducement. We find no error.

4. Defendant GIS's Request to Charge No. 13 sought credit toward the purchase price for payments made by defendants which "inured to the benefit of the Plaintiff, conferred value to her to the extent of the payment, or satisfied obligations she would have otherwise had to satisfy...." The failure of the trial court to give this instruction is enumerated as error.

"A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased so as to have tendency to confuse and mislead the jury or to becloud the issues in the case. [Cits.]" Cohen v. Sapp, 110 Ga.App. 413, 415(2), 138 S.E.2d 749, overruled on other grounds, Peppers v. Smith, 151 Ga.App. 680(1), 681, 261 S.E.2d 427.

The trial court's instruction on equitable recoupment did not itself adequately address whether defendants were entitled to any reduction of the purchase price for payments made by defendants as contemplated in paragraph 2 of the agreement sued upon. But the trial court did not err in failing to give defendant GIS's request as drafted. The request failed to relate to the specified items for "amounts past due," as contemplated in paragraph 2 of the agreement, and so was argumentative and misleading.

5. The seventh, eighth, and ninth enumerations complain of the denial of j.n.o.v. as to plaintiff's claim for breach of an alleged employment contract. Defendant GIS argues the trial court erred in permitting plaintiff to amend her pleadings and to prove her employment contract with parol evidence. We disagree.

(a) "If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet the evidence." OCGA § 9-11-15(b). " 'The fact that [such amendment] involves a change in the nature of the cause of action, or the legal theory of the action, is immaterial so long as the opposing party has not been prejudiced in presenting his case....' [Cit.]" Hirsch's v. Adams, 117 Ga.App. 847, 848(1), 162 S.E.2d 243.

Here, defendant GIS did not request a continuance in order to meet the new evidence nor did it demonstrate to the trial court how it would be prejudiced. In our view, defendant GIS has failed to demonstrate how the trial court abused its broad discretion in permitting plaintiff to amend the complaint during trial to allege breach of an employment contract whereby plaintiff was to be paid $1,000 per month for 12 months to act as the GIS office manager. Abernethy v. Cates, 182 Ga.App. 456, 460(8), 356 S.E.2d 62.

(b) Over defendant GIS's objection that such a contract would be subject to the statute of frauds so that "hearsay would [not] be admissible to prove it," the trial court permitted plaintiff to testify orally as to the terms of her...

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