McCannon v. McCannon, A98A0592.

Citation231 Ga. App. 601,499 S.E.2d 684
Decision Date10 March 1998
Docket NumberNo. A98A0592.,A98A0592.
PartiesMcCANNON v. McCANNON et al.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Thomas M. Strickland, Athens, Benjamin C. Free, for appellant.

Fortson, Bentley & Griffin, J. Edward Allen, Jr., Michael M. Duclos, Richard L. Ford, Jr., Athens, Rodger E. Davison, Royston, for appellees.

BLACKBURN, Judge.

Plaintiff Walter Allen McCannon, Sr. appeals the grant of a directed verdict to his wife, Sara D. McCannon, and his son, Walter Allen McCannon, Jr. (Allen McCannon), defendants in this action, for fraud. Plaintiff alleges that defendants deceived him into transferring certain stock and real property to them. The case went to trial in 1996, ending in a mistrial when the jury deadlocked. The defendants then appealed the trial court's denial of their motion for directed verdict, and this Court affirmed the denial in an unpublished opinion. During the second trial, the defendants again moved for a directed verdict at the close of plaintiff's case, this time on the grounds that there was insufficient evidence of damages. The trial court granted this motion. Plaintiff appeals this ruling as well as several other rulings of the trial court.

1. Plaintiff claimed that he was defrauded into transferring his interest in his two corporations, McCannon Granite Company, Inc. and Crystal Blue Quarries, Inc., and certain real property to his son. The trial court granted a directed verdict in favor of defendants on the grounds that there was insufficient evidence as to the value of the transferred property. "A directed verdict is proper only if 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). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test." (Citation and punctuation omitted.) Doubletree, Inc. v. Schanley, 226 Ga.App. 776, 487 S.E.2d 506 (1997).

In evaluating the sufficiency of evidence regarding damages, "[t]he ability to estimate damages to a reasonable certainty is all that is required and mere difficulty in fixing the exact amount will not be an obstacle to the award. The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages." (Citations and punctuation omitted.) Shepherd v. Aaron Rents, 208 Ga.App. 139, 143(3), 430 S.E.2d 67 (1993).

The trial court erred in directing a verdict for defendants, as the evidence, construed in favor of plaintiff, provided the jury with a basis to estimate plaintiff's damages. Defendant Sara McCannon admitted that she had testified at her deposition that the assets of the two corporations, excluding the land on which the Crystal Blue quarry was located (which she claimed was already owned by her son), were worth between $800,000 and $1 million. Although she claimed at trial that this deposition testimony was inaccurate, this claim at most creates a jury question and does not remove the effect of her deposition testimony. See Gibbons v. State, 248 Ga. 858, 862-863, 286 S.E.2d 717 (1982) (prior inconsistent statement of witness admissible as substantive evidence). Defendant Allen McCannon admitted that he had testified at his deposition that the liquidation value of the corporations was between $600,000 and $800,000. Although defendants argue that it is unclear whether he was referring to one or both corporations, that does not change the fact that this testimony constitutes some evidence upon which a jury could make a determination of plaintiff's damages.

Furthermore, plaintiff testified that the value of the two corporations was $3 million. Although the trial court found that this was proper opinion testimony and that plaintiff stated a basis for his opinion, it held that the testimony was insufficient because it did not take into account the fact that the land on which the Crystal Blue quarry was located was owned by Allen McCannon. However, plaintiff was asked about the value of the corporations, not about the value of the land. When asked what he based his opinion on, he referred primarily to the equipment owned by the corporations and did not indicate that his opinion included a value for the land. In ruling on a motion for directed verdict, the evidence must be construed in favor of the non-movant, in this case the plaintiff. In finding that plaintiff's testimony included the value of the land, however, the trial court improperly construed the testimony in favor of the defendants.

Defendants also claim that this testimony does not provide a basis for estimating plaintiff's damages because it does not provide a separate value for each corporation. They contend that, at the time of the fraudulent transfers at issue, plaintiff owned only a one-third interest in McCannon Granite Company, having previously conveyed the other two-thirds to defendants. Therefore, since plaintiff owned one-third of McCannon Granite Company and all of Crystal Blue Quarries at the time of the alleged fraudulent transfers, defendants contend that a combined value for the two corporations does not provide the jury with a basis to estimate the value of the interest conveyed by plaintiff.

This contention is without merit for two reasons. First, plaintiff testified that he owned 100 percent of both corporations and did not recall ever transferring a two-thirds interest to defendants. No stock certificates or other documents were placed into evidence showing such transfer. Therefore, the jury could have concluded that plaintiff owned the entire stock in both corporations at the time of the alleged fraudulent transfers. Furthermore, even assuming that plaintiff owned only one-third of McCannon Granite Company, testimony regarding the combined value of the two corporations would still provide the jury a basis to estimate plaintiff's damages to a reasonable degree of certainty. If the jury believed plaintiff's testimony that the two corporations combined were worth $3 million, it could conclude that plaintiff's one-third interest in one corporation and full interest in the other were worth at a minimum $1 million.1 Therefore, testimony as to the combined value of the...

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12 cases
  • Evans Timber Co. v. Central of Ga. R. Co.
    • United States
    • Georgia Court of Appeals
    • 22 Junio 1999
    ...used to review the grant or denial of a directed verdict is the any evidence test. (Punctuation omitted.) McCannon v. McCannon, 231 Ga.App. 601(1), 499 S.E.2d 684 (1998). Prior to the enactment of the GCPT in 1973, Georgia recognized that a railroad could be negligent for the failure to ins......
  • Witty v. McNeal Agency, Inc.
    • United States
    • Georgia Court of Appeals
    • 10 Agosto 1999
    ...standard of review for the denial of the motion for directed verdict requires the affirmance of the trial court. McCannon v. McCannon, 231 Ga.App. 601(1), 499 S.E.2d 684 (1998); Doubletree, Inc. v. Schanley, 226 Ga.App. 776, 487 S.E.2d 506 5. Plaintiffs contend that the trial court erred in......
  • Caldwell v. Church
    • United States
    • Georgia Court of Appeals
    • 30 Octubre 2019
    ...of fact finder where there is any data upon which fact finder may exercise its own knowledge and ideas); McCannon v. McCannon , 231 Ga. App. 601 (1), 499 S.E.2d 684 (1998) ("In evaluating the sufficiency of evidence regarding damages, the ability to estimate damages to a reasonable certaint......
  • Pulmonary Assocs. of Charleston PLLC v. Greenway Health, LLC
    • United States
    • U.S. District Court — Northern District of Georgia
    • 16 Diciembre 2020
    ...that is required and mere difficulty in fixing the exact amount will not be an obstacle to the award" (citing McCannon v. McCannon , 231 Ga.App. 601, 499 S.E.2d 684, 686 (1998) )); see also Hawthorne Indus., Inc. v. Balfour Maclaine Int'l, Ltd. , 676 F.2d 1385, 1387–88 (11th Cir. 1982) (not......
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