Koppar Corp. v. Robertson
| Decision Date | 18 April 1988 |
| Docket Number | Nos. 75913,75914,s. 75913 |
| Citation | 368 S.E.2d 807,186 Ga.App. 856 |
| Parties | KOPPAR CORPORATION v. ROBERTSON et al. ROBERTSON et al. v. KOPPAR CORP. |
| Court | Georgia Court of Appeals |
Donald O. Nelson, College Park, for appellant.
Anthony L. Harrison, McDonough, for appellees.
Jerry Lee and Christa M. Robertson filed an action against Koppar Corporation alleging breach of warranty, fraud and misrepresentation in the sale of a house and lot to them, in that the location of a Georgia Power easement situated on the property was incorrectly represented to them. The trial court granted Koppar's motion for a directed verdict as to fraud, and the jury returned a verdict in favor of the Robertsons in the amount of $13,737 for diminution in value of the property, plus survey expenses and reasonable attorney fees to be determined by the court. Judgment was entered thereon, with the court awarding $7,088.50 in attorney fees. Koppar's motion for new trial was denied, and all parties appeal.
The record reveals that at the closing, the Robertsons were given a warranty deed which incorporated by reference a plat of the property recorded in the Clayton County Superior Court records at Book 17, Page 117. However, the copy of the plat which Koppar provided to the Robertsons at closing (marked Book 17 Page 117) was not, in actuality, a copy of the plat recorded in the Clayton County Superior Court records. Rather, the plat provided by Koppar at closing showed the easement as being located approximately 50 feet behind the house, whereas the recorded plat makes clear that the easement is actually located less than 20 feet from the house.
1. In the main appeal, Koppar contends the trial court erred by instructing the jury extensively on the issue of fraud, despite having removed that issue from the jury's consideration by granting Koppar's motion for a directed verdict. The Robertsons argue that it is not clear that the trial court granted the directed verdict as to fraud, rather than only as to punitive damages. However, the record does not support the Robertsons' argument on this point. Originally, the trial court announced that After that announcement, counsel for the Robertsons requested clarification, and asked the court whether he was "to understand the Court that ... the Court is granting the motion for directed verdict on all issue[s] of fraud and misrepresentation," to which the Court replied "[y]es, there is no evidence of fraud or misrepresentation." Thus, we cannot agree with the Robertsons that the trial court did not grant the directed verdict as to fraud.
We do not agree with the Robertsons' second argument that Koppar is barred from raising as error in this court the trial court's numerous and extensive charges on fraud because Koppar did not properly object to these charges below. Failure to object to a charge at the charge conference does not preclude a party from objecting to the charge when it is given. Turner v. Malone, 176 Ga.App. 132, 134 (4), 335 S.E.2d 404 (1985). See also OCGA § 5-5-24(a). The court informed the parties that it would give all charges requested by the Robertsons with the exception of "the punitive damages charges." We agree with Koppar that since the trial court had previously granted its motion for a directed verdict as to fraud, and since charges concerning fraud might naturally be taken to mean "punitive damages charges," Koppar need not have anticipated that the trial court would instruct the jury as to fraud. When the charge given by the trial court did include numerous references to fraud, its elements and its consequences, Koppar made specific objection at that time. We find this objection sufficient and timely.
Turning to the merits of Koppar's enumeration of error, the record reveals that the trial court removed the issue of fraud from the jury because of its finding that the evidence was insufficient to allow the jury to consider it (see Division 4 infra), yet the trial court's charge on fraud squarely presented that issue for jury determination. We cannot say that charging the jury concerning fraud did not confuse them as to whether the issue of fraud was to be considered by them. Myers v. Johnson, 113 Ga.App. 648, 653 (5), 149 S.E.2d 378 (1966). Accordingly, the trial court's denial of appellant's motion for a new trial is reversed, and this case is remanded to the trial court for a new trial. See Jones v. Davis, 183 Ga.App. 401, 403 (1), 359 S.E.2d 187 (1987).
2. Since we are reversing and remanding the jury issues for a new trial, the award of attorney fees as to those issues must necessarily fall as well, and hence we need not consider Koppar's enumeration concerning attorney fees.
3. In the cross-appeal, the Robertsons first maintain the trial court erred by granting Koppar's motion for a directed verdict...
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...the issue[s] of [informed consent and fraudulent misrepresentation were also] to be considered by them." Koppar Corp. v. Robertson, 186 Ga.App. 856, 858(1), 368 S.E.2d 807 (1988). See also Hopkins v. First Union Bank of Savannah, 193 Ga.App. 109(2), 387 S.E.2d 144 (1989). Thus, the trial co......
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Jamison v. First Georgia Bank, A89A1169
...loss and damage as the proximate result of their having been made." (Punctuation and citations omitted.) Koppar Corp. v. Robertson, 186 Ga.App. 856, 859(4), 368 S.E.2d 807 (1988). Appellant asserts he proved all five elements of fraud in regard to three representations made by appellee's em......
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...to the [plaintiff], and is error requiring the grant of a new trial." (Citations and punctuation omitted.) Koppar Corp. v. Robertson, 186 Ga.App. 856, 858(1), 368 S.E.2d 807 (1988). In my opinion the charge on contributory negligence was harmful error in this case; consequently, the judgmen......