Kemira, Inc. v. Williams Investigative & Sec. Services, Inc.

Decision Date18 October 1994
Docket NumberNos. A94A1193,A94A1194,s. A94A1193
Citation215 Ga.App. 194,450 S.E.2d 427
CourtGeorgia Court of Appeals

Clark & Clark, Fred S. Clark, Savannah, for appellant.

Karsman, Brooks & Callaway, Stanley E. Harris, Jr., Savannah, for appellees.

McMURRAY, Presiding Judge.

Plaintiff Williams Investigative & Security Services, Inc. ("Williams Investigative") and its president, plaintiff Tim Williams, brought this contract action against defendant Kemira, Inc. According to the amended complaint, Williams Investigative and defendant "entered into a 'subcontract for project security services'.... Pursuant to the contract, [Williams Investigative provided] personnel and other related services and undertakings for security on the plant and property of [defendant] in Chatham County, Georgia. Over the course of the contract ... varying levels of personnel, supporting equipment and services were provided by [Williams Investigative] with [defendant] retaining the right to specify its demands and requirements from time to time." On October 18, 1989, defendant's Corporate Safety Manager, "Joseph E. Clonts, ... gave written notice to [Williams Investigative] of a reduction ..." in defendant's need for future security services. Tim Williams "communicated with Clonts regarding the status of the contract and future services to ascertain whether it would be terminated [and further ...] ascertain what contractual and other commitments [Williams Investigative] must continue in order to be able to provide services required of it under the contract [such as ...] office space, vehicles, insurances, and employee staff levels." In a letter dated March 19, 1990, Clonts purportedly "represented that [Williams Investigative's] engagement would continue." Alleging that defendant "has never given notice of termination as required under Section 15 of the contract[,]" Williams Investigative demanded contractual damages as well as OCGA § 13-6-11 attorney fees. Williams Investigative further sought to recover expenses it incurred and profits it anticipated as a result of its detrimental reliance on defendant's assertions of continued security work, alleging that defendant "should be estopped from relying upon provisions in the contract limiting its liability." As a separate claim, Tim Williams sought to recover $142,329 he allegedly loaned Williams Investigative between January 3, 1990, and August 28, 1990, on the ground that "[b]ut for the representations and assurances by Kemira, through Mr. Clonts, Mr. Williams and [Williams Investigative] would not have procured and expended these funds."

Defendant denied the material allegations, arguing that "the contract provided for the work to be performed during a specific construction project and the conclusion of the construction project effectively terminated the contract." The case was tried before a jury. Answering special interrogatories, the jury found in favor of Williams Investigative "based upon the written agreement," awarding $28,345 in contractual damages. The jury found for defendant on a claim of fraud but found in favor of plaintiffs on a claim of promissory estoppel, awarding them $5,000. The jury disallowed punitive damages but awarded $10,000 in attorney fees. In Case No. A94A1193, defendant appeals from the judgment entered on the jury's verdict and, in Case No. A94A1194, plaintiffs cross-appeal. Held:

Case No. A94A1193

1. In its first enumeration, defendant contends the trial court erred in denying its motion for directed verdict as to any claim for damages for breach of the written contract "on the grounds that the evidence [of damages] was conclusory and the amount sought was not proved to a reasonable certainty and because the proper foundation had not been laid." A directed verdict is authorized only "[i]f 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).

(a) Defendant objected to plaintiffs' exhibit 13-A, a document allegedly showing plaintiffs' actual monthly income and expenses, on the ground that "unless the supporting documents are in evidence, we object to it as being a conclusion." The following then transpired: "THE COURT: I think he can testify to those on there, but I don't believe it's admissible in evidence to the jury. [PLAINTIFFS' COUNSEL]: Okay, we would like to tender it and then it's objected and ruled out; is that correct? THE COURT: Yes." Tim Williams then testified without objection that Williams Investigative had an average monthly profit of $28,435, based on his knowledge of actual revenues and expenses for the preceding seven-month period. Nevertheless, at the close of the evidence, the trial court ultimately admitted plaintiffs' exhibit 13-A.

" 'All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver, and prevent the court, on a motion for a new trial, from inquiring as to the competency of the evidence.' Andrews v. State, 118 Ga. 1, 43 S.E. 852." Hall v. Browning, 71 Ga.App. 835(3), 32 S.E.2d 424. In the case sub judice, "[n]o timely and specific objection was posed at trial to [Tim Williams'] testimony concerning [average monthly profits]. Thus, any foundation objection thereto was waived. Patton v. Bank of LaFayette, 124 Ga. 965(7) (53 SE 664); McGee v. State, 205 Ga.App. 722, 726(9) (423 SE2d 666)." Truck Parts & Svc. v. Rutledge, 211 Ga.App. 166(1), 438 S.E.2d 404.

(b) Nevertheless, defendant contends the trial court should have granted its motion for directed verdict because Tim Williams' testimony as "proof of damages without supporting data is unclear."

Section 15(C) of the written subcontract provided: "Upon termination, Subcontractor shall be entitled to be paid the value, including a reasonable allowance for [Subcontractor's] profit, calculated on the basis of the compensation provisions [of the subcontract], of all Work properly done by Subcontractor together with reasonable costs occasioned by such termination and not previously paid for...." In support of Williams Investigative's claim for 30 days' lost profits, Tim Williams testified as to his familiarity with Williams Investigative's monthly billings and expenses, identifying specifically that percentage of overhead attributable to work at defendant's plant in Savannah, Georgia. He calculated "the average profit during this time ... was $28,435 a month. That's gross profit." This figure was "derived from looking at the revenues versus the expenses associated with the Kemira contract."

OCGA § 13-6-2 provides: "Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach." In the case sub judice, the contract expressly contemplated a "reasonable allowance for [Subcontractor's] profit, calculated on the basis of the compensation provisions...." Pursuant to Appendix A of the subcontract, Kemira would pay a fixed hourly rate, an additional fee of 10 percent for "Supervision and Administration," a fixed weekly allowance for vehicle rental, as well as "exact cost" reimbursement for materials, equipment, and expenses. Since this contract contemplated both fixed and variable costs, it was not necessary to prove to an "exact computation" the "reasonable allowance for [Subcontractor's] profit" element of contractual damages. Compare Bennett v. Associated Food Stores, 118 Ga.App. 711, 714(2), 165 S.E.2d 581.

Furthermore, "a distinction is to be drawn between illegal testimony and secondary evidence or other evidence which is legal in itself because it is of probative value but is inadmissible until the proper foundation for its reception has been laid. Hearsay testimony has no probative force whatsoever ( [cit.] ), and its only effect is to prejudice the party against whom it is offered. Evidence of a secondary nature, the only objection to which is that it was received without the preliminary foundation for its introduction being first laid, stands upon an altogether different footing; and if admitted without objection, it is to be treated as altogether competent, and the court may properly instruct the jury as to its relevancy and legal weight and effect. [Cit.]" Patton v. Bank of LaFayette, 124 Ga. 965, 973(7), 974, 53 S.E. 664, supra. In the case sub judice, "a prima facie case [was] made by ... plaintiff where oral evidence concerning [one month's anticipated profit was] introduced without objection [even if the] documents setting forth the [arithmetical basis for that calculation] are not received in evidence. Thomas etc. Lumber Co. v. Atlantic Mill etc. Co., 24 Ga.App. 749(2) (102 SE 135). See also Rothstein v. Mirvis & Fox, 155 Ga.App. 79, 80(2) (270 SE2d 301)." Professional Ins. Svc. v. Sizemore Elec. Co., 188 Ga.App. 463(1), 373 S.E.2d 276. "In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence, even where the verdict may be against the preponderance of the evidence. Thompson v. Hill, 143 Ga.App. 272, 276 (238 SE2d 271)." Mizell v. Spires, 146 Ga.App. 330, 331(1), 246 S.E.2d 385. Consequently, the trial court did not err in refusing to direct the verdict against Williams Investigative's claim for contractual damages.

2. Next, defendant contends the trial court erred in failing to direct the verdict as to the claim of a promissory estoppel "because the purported...

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