Hiers-Wright Associates, Inc. v. Manufacturers Hanover Mortg. Corp., HIERS-WRIGHT

• Citation: 182 Ga.App. 732,356 S.E.2d 903
• Decision Date: 28 April 1987
• Docket Number: No. 74137,HIERS-WRIGHT,74137
• Parties: ASSOCIATES, INC. v. MANUFACTURERS HANOVER MORTGAGE CORPORATION et al.
• Court: United States Court of Appeals (Georgia)

Page 903

356 S.E.2d 903

182 Ga.App. 732

HIERS-WRIGHT ASSOCIATES, INC. v. MANUFACTURERS HANOVER MORTGAGE CORPORATION et al.

No. 74137.

Court of Appeals of Georgia.

April 28, 1987.

James F. Baker, Forest Park, Paul H. Kehir, Snellville, S. Alan Schlact, Atlanta, for appellant.

Douglas D. Salyers, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Plaintiff Hiers-Wright Associates, Inc., a general contractor, brought suit in the Superior Court of Fulton County against Manufacturers Hanover Mortgage Corporation, South Hills Associates, a Michigan limited partnership, Steven J. Hayman and Allen J. Hayman, individually, and as general partners of South Hills Associates, a Michigan limited partnership, seeking additional compensation for an apartment rehabilitation project. The jury returned a verdict in favor of plaintiff in the amount of $49,600, and judgment was entered accordingly. Thereupon, defendants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court awarded judgment notwithstanding the verdict to defendants. In addition, the trial court conditionally granted defendants' motion for a new trial ("if the Judgment for Defendants is vacated or reversed"). See OCGA § 9-11-50(c). Plaintiff brings this appeal. Held:

1. Plaintiff contends the trial court erred in considering defendants' motion for judgment notwithstanding the verdict because it was not "sufficiently definite to inform" plaintiff of defendants' contentions. See OCGA § 5-6-49(b). This contention is without merit.

It is axiomatic that harmful error is to be found only where error and prejudice converge. In the absence of a showing of harm, a reversal of the trial court's judgment is not warranted. Shackelford v. Whatley, 172 Ga.App. 127, 131(8), 322 S.E.2d 331 (1984). Although the motion itself did not spell out why defendants were entitled to judgment, it was accompanied by a brief which set forth defendants' contentions in this regard. Moreover, the motion for judgment notwithstanding the verdict was made in accordance with the motion for directed verdict wherein defendants specifically informed the court and plaintiff of their contentions. See generally Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga.App. 468, 469(1), 287 S.E.2d 257 (1981). Thus, it cannot be said that plaintiff was prejudiced by the failure of the motion itself to inform plaintiff of defendants' contentions. The alleged error does not warrant a reversal. Shackelford v. Whatley, 172 Ga.App. 127, 322 S.E.2d 331, supra.

2. "As with a directed verdict, a motion for judgment notwithstanding the verdict is proper only where '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.' Code Ann. § 81A-150(a) [OCGA § 9-11-50(a) ]. State Farm Mut. Auto Ins. Co. v. Snyder, 125 Ga.App. 352 (187 SE2d 878) (1972); Canal Ins. Co. v. Tate, 111 Ga.App. 377, 386 (141 SE2d 851) (1965)." United States Fidelity, etc., Co. v. Blankenship Plumbing Co., 153 Ga.App. 335, 336(2), 265 S.E.2d 66 (1980). In applying this standard, we must view the evidence in a light most favorable to the party securing the jury's verdict. Church's Fried Chicken v. Lewis, 150 Ga.App. 154, 159, 256 S.E.2d 916 (1979). Viewing the evidence in a light most favorable to plaintiff, we find the following:

Plaintiff entered into a construction contract with Wellington South Company, a Georgia limited partnership, for the rehabilitation of an apartment complex. Defendant Manufacturers Hanover Mortgage Corporation provided the financing for the project. On or about August 5, 1980, after plaintiff began work, Wellington South Company sought protection under Chapter 11 of the Bankruptcy Code (Title 11 USCA § 1101 et seq.). Complying with a request from Manufacturers Hanover Mortgage Corporation, plaintiff secured the premises and ceased further work on the project.

In the winter of 1980-1981, while the bankruptcy proceeding was pending, plaintiff was asked to inspect the buildings because it was anticipated that work would begin again. Plaintiff observed that two buildings (F and H) were damaged as a result of freezing weather conditions. Shortly thereafter, plaintiff entered into negotiations with Wellington South Company and Manufacturers Hanover Mortgage Corporation for the repair of the freeze damage found in buildings F and H. On March 5, 1981, plaintiff entered into another contract with Wellington South Company (with the approval of the bankruptcy court) to repair the water damage in the two buildings. That contract required plaintiff to repair pipes, replace sheetrock and fix other items affected by the freeze. Plaintiff was to be paid on a cost plus basis for the additional work. However, a $24,000 cap was placed upon the "freeze damage" contract.

Thereafter, plaintiff began to repair the damage found in buildings F and H. As work progressed, plaintiff discovered that the winter weather wreaked massive water damage upon the two buildings. The damage was far greater than plaintiff anticipated.

Plaintiff informed Manufacturers Hanover Mortgage Corporation that it was experiencing large cost overruns with regard to buildings F and H. According to plaintiff's representative, Manufacturers Hanover Mortgage Corporation orally responded by agreeing to reimburse plaintiff for its plumbing cost overruns.

Plaintiff completed its work on the project in December 1981. In the meantime, Manufacturers Hanover Mortgage Corporation took over the apartment complex after successfully bidding at a foreclosure sale of the property. Plaintiff received payment for its work under the rehabilitation contract; it also received $24,000 for the "freeze damage" contract. Plaintiff was not paid, however, for the plumbing cost overruns it incurred with regard to buildings F and H.

Based on the foregoing facts, we conclude that the trial court properly granted defendants' motion for judgment notwithstanding the verdict. "The question on which the decision of the present case turns is whether the evidence adduced upon the trial showed the parol contract sued upon to be an enforceable agreement. Assent of the parties to the terms of the contract and a consideration for the performance of the same are...