Kirkland v. Southern Discount Co.

• Decision Date: 27 May 1988
• Docket Number: No. 76302,76302
• Citation: 187 Ga.App. 453,370 S.E.2d 640
• Parties: KIRKLAND et al. v. SOUTHERN DISCOUNT COMPANY et al.
• Court: Georgia Court of Appeals

Page 640

370 S.E.2d 640

187 Ga.App. 453

KIRKLAND et al. v. SOUTHERN DISCOUNT COMPANY et al.

No. 76302.

Court of Appeals of Georgia.

May 27, 1988.

Rehearing Denied June 8, 1988.

Certiorari Denied July 6, 1988.

Kenneth M. Henson, Jr., Columbus, for appellants.

W. Rhett Tanner, Milton Jones, Columbus, Laureen McGurk, Atlanta, for appellees.

SOGNIER, Judge.

In a previous appeal of this case, this court reversed the judgment entered on a jury verdict in favor of Bill and Merlene Kirkland. Southern Discount Co. v. Kirkland, 181 Ga.App. 263, 351 S.E.2d 685 (1986). Subsequent to that decision, the Kirklands amended and restated their complaint and sought retrial. The trial court granted the motion of Southern Discount Company and its president to dismiss the complaint, and the Kirklands appeal.

Appellants contend the trial court erred by dismissing their amended complaint because this court's previous opinion did not terminate the litigation, and they were entitled to amend their complaint and to a new trial. The trial court agreed with appellees that the opinion in Southern Discount, supra, was a final determination and did not call for further proceedings on any of the issues.

1. It is clear that as to at least two issues, no further proceedings were indicated. First, the opinion in Southern Discount, supra, reversed the trial court's denial of Southern Discount's motion for a directed verdict as to that portion of Count IV of the complaint which sought damages for Southern Discount's returning to the Kirklands contracts in default marked "paid." Id. at 265(1). Second, the opinion reversed the denial of a directed verdict in favor of Southern Discount as to any claim for breach of contract. Id. at 265-266(2).

In Summer-Minter v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974), the Supreme Court dealt with the question of whether, after a reversal of the trial court's denial of defendants' motion for summary judgment, the plaintiffs could amend their complaint by alleging a new theory of recovery. An appeal had been taken from the trial court's denial of the defendants' motion for summary judgment and, in a prior opinion, the Supreme Court had reversed that denial of summary judgment, saying only that the defendants were entitled to a summary judgment and the trial court had erred in refusing to grant their motion therefor. Id. at 602. In Summer-Minter, supra, the Supreme Court undertook an extensive analysis of the underlying policy in holding that its prior decision was a decision that summary judgment should be granted, and that no amendment is permissible.

Although Summer-Minter was a summary judgment case, we are guided by the rationale in that decision because " '[t]he trial court's function in ruling on a motion for summary judgment is analogous to the function it performs when ruling on a motion for directed verdict. The essence of both motions is that there is no genuine issue of material fact to be resolved by the trior of the facts, and that the movant is entitled to judgment on the law applicable to the established facts.' " Summer-Minter, supra at 604, 203 S.E.2d 173. Just as reversal of the denial of a motion for summary judgment is a decision that summary judgment should be entered, reversal by an appellate court of the trial court's denial of a motion for a directed verdict can mean only that a directed verdict should have been and should be entered. This is tantamount to a reversal with direction, and thus no retrial can be held on those issues. Thus, as to the two issues in which the opinion in Southern Discount, supra, reversed the trial court's denial of appellees' motion for a directed verdict, we agree with appellees that the litigation was ended thereby. " 'When the remittitur from this court on the case's former appearance here reached the trial court, the only action under our decision and judgment that the court below could take was to make the judgment of this court the judgment of the trial court and to enter an order [granting a directed verdict.] ... [Cit.]' [Cit.]" Summer-Minter, supra at 607, 203 S.E.2d 173.

2. In Divisions 3 and 4 of the prior opinion, however, the reversal did not explicitly reverse denial of the motion for a directed verdict, and it is thus necessary to decide whether appellants were entitled to a new trial as to the issues presented in those divisions. Division 3 of the previous opinion dealt with the fact that the Kirklands alleged, and sought exemplary damages based on, Southern Discount's conversion of several vacuum cleaners. However, the only evidence offered to prove this conversion allegation was evidence relating to two checks, and the trial court charged the jury only on conversion of negotiable instruments. This court held that the issue of conversion of the checks had not been raised by the pleadings or the pretrial order, and could not have been tried by implied consent under the facts presented here. See Southern Discount, supra at 266-267, 351 S.E.2d 685(3). The decision reversed the jury verdict for damages for conversion and exemplary damages based thereon because no evidence had been proffered showing conversion of the vacuum cleaners.

"A verdict shall be directed 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. OCGA § 9-11-50(a). 'The standard of appellate review of the trial court's denial of a motion for a directed verdict is the "any evidence" standard. [Cit.]' [Cit.]" Rizer v. Harris, 182 Ga.App. 31, 32(2), 354 S.E.2d 660 (1987). It is clear from the record that Southern Discount properly moved for a directed verdict and enumerated denial of the motion as error. Consequently, the reversal of the verdict for damages on the conversion claim (including any exemplary damages based thereon) on the ground that there was no evidence proffered which would support it indicates there was no conflict in the evidence as to the fact that no conversion of vacuum cleaners was proved,...