Miller & Meier & Associates v. Diedrich, 69481

• Decision Date: 15 March 1985
• Docket Number: No. 69481,69481
• Citation: 329 S.E.2d 918,174 Ga.App. 249
• Court: Georgia Court of Appeals
• Parties: MILLER & MEIER & ASSOCIATES et al. v. DIEDRICH et al.

Page 918

329 S.E.2d 918

174 Ga.App. 249

MILLER & MEIER & ASSOCIATES et al. v. DIEDRICH et al.

No. 69481.

Court of Appeals of Georgia.

March 15, 1985.

Rehearing Denied March 28, 1985.

Randolph A. Mayer, Michael T. Nations, Atlanta, for appellants.

Howell Hollis III, T. Ryan Mock, Jr., Atlanta, for appellees.

BEASLEY, Judge.

Plaintiff appeals from the trial court's grant of defendants' motion for directed verdict on plaintiff's claim and judgment entered thereon. It does not appeal from the jury's verdict and court's judgment for defendant Diedrich on his counterclaim.

Initially there were three defendants. At the close of plaintiff's case, they moved for directed verdict on numerous bases and, after extended argument, the court reserved ruling. The motion was renewed at the close of all the evidence. It was then granted as to one of the corporate defendants because it came into existence after all of the alleged tortious acts; as to the others, ruling was reserved until after the verdict.

A verdict form was submitted by the court to the jury, and a verdict was returned in favor of plaintiff on its claim, in the amount of $130,000 nominal damages, no special damages, and no punitive damages. After some discussion by the court and counsel, the court reinstructed the jury with respect to the meaning of, and distinction between, special and nominal damages. After further deliberation, the jury asked for definitions of these plus a charge on another subject. The court reinstructed and sent two written questions regarding the verdict, as to the type of damages (if the verdict was to be for plaintiff) and the amount of the verdict. The same verdict was returned and, after polling, the jury was discharged. ¹

Several days later the court granted the motion for directed verdict, giving its reasons, and entered judgment for defendants. Held:

1. When a motion for directed verdict is reserved and ruled on after the verdict, it is treated as a judgment notwithstanding the verdict. "The purpose of CPA § 50(b), allowing the trial judge to submit the case to the jury and then granting a judgment notwithstanding the verdict, is to avoid the necessity for a retrial if the appellate court determines that the trial court erred in granting the judgment notwithstanding the verdict, ...." Mayor etc. of Savannah v. Palmerio, 242 Ga. 419, 422, 249 S.E.2d 224 (1978).

Thus, when a motion for directed verdict is considered after the verdict, its scope and effect is the same but it generally has the additional attribute of avoiding a new trial in the event it is held to be erroneous.

Consequently, "the primary question for determination is whether the evidence introduced, with all reasonable deductions therefrom demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. [Cits.]. [T]he motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a 'one-way' verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts." Bryant v. Colvin, 160 Ga.App. 442, 444, 287 S.E.2d 238 (1981). " 'While it is erroneous for a court to direct a verdict in favor of a particular party to the cause where there is an issue of fact, when the proved facts, viewed from every possible legal point raised by the evidence, would sustain no finding other than the one directed, i.e., where there is no issue of fact, then it is error to refuse to direct an appropriate verdict. [Cits.] Further, in giving consideration to a motion for judgment notwithstanding the verdict, the court is concerned substantially with the same principles of law as are applicable upon consideration of the motion for directed verdict. The question for determination is whether or not the evidence demands a verdict for movant [cits.], and if there is no evidence to support the verdict returned, denial of the motion is error.' " City of Atlanta v. West, 160 Ga.App. 609(2), 287 S.E.2d 558 (1981). "The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same." Pendley v. Pendley, 251 Ga. 30, 302 S.E.2d 554 (1983).

The court gave a number of bases for its judgment, each of which we will treat because when the judgment of the trial court is proper and legal for any reason, it should be affirmed even though there may possibly be an erroneous reason for that judgment. Argonaut Ins. Co. v. Cline, 138 Ga.App. 778, 782(4), 227 S.E.2d 405 (1976).

2. One of the grounds for the grant of judgment notwithstanding the verdict was that OCGA § 14-2-153 does not apply to the Georgia directors of foreign corporations, such as plaintiff, even though it has procured a certificate of authority to transact business in this state from the Secretary of State pursuant to OCGA § 14-2-310. Plaintiff operated in Georgia under such a certificate since 1974.

The Georgia Business Corporation Code (OCGA § 14-2-1 et seq.) was enacted in 1968. Ga.L.1968, p. 565. The Act, in OCGA § 14-2-2, included definitions of certain words used throughout the Corporation Code: "(5) 'Corporation' or 'domestic corporation' means a corporation for profit subject to this chapter, except a foreign corporation ... (7) 'Foreign corporation' means a corporation for profit organized under laws other than the laws of this state for a purpose or purposes for which a corporation may be organized under the laws of this state." There is no separate definition for a foreign corporation which had obtained a certificate of authority.

OCGA § 14-2-153(a)(1)(C), which is invoked by plaintiff as the basis of its complaint against Diedrich individually as its director for the appropriation of its business opportunities, is available as a cause of action to "persons named in subsection (b) of this Code section." That subsection allows the action to be brought "by the corporation" (of which the defendant is a director), among others.

The question here is whether plaintiff had a statutory right to bring the action. Although the definition of "corporation" excludes "foreign corporations," it does not expressly exclude foreign corporations authorized by certificate to transact business in Georgia. Nor does the definition of "foreign corporations" expressly include those which are certificated.

The answer appears in OCGA § 14-2-311, setting out the powers and duties of corporations in plaintiff's class: "A foreign corporation which shall have received a certificate of authority under this chapter shall, until a certificate of revocation or of withdrawal shall have been issued as provided in this chapter, enjoy the same but no greater, rights and privileges as a domestic corporation organized for the purposes set forth in the application pursuant to which such certificate of authority is issued and, except as otherwise provided in this chapter, shall be subject to the same duties, restrictions, penalties, and liabilities now or hereafter imposed upon a domestic corporation of like character." (Code 1933, § 22-1402, enacted by Ga.L.1968, p. 565, § 1.)

Thus, the right to insist that its Georgia directors abide by the same statutory standards of conduct as are required of directors of Georgia corporations, and the right to enforce such standards by legal action, is given to certificated corporations. The state gives authority, of which the certificate is evidence, for that foreign corporation to transact business here. It must do so, however, under our laws, and is treated as a domestic corporation (with explicit exceptions) with respect to its legal duties, restrictions, penalties, and liabilities. By the same token, and on the other side of that coin, it is then entitled to the same rights and privileges as a domestic corporation.

Since the law gives to domestic corporations legal recourse when a director appropriates its business opportunities, that same right is available to the authorized foreign corporations who seek to "enjoy," in the word of the Code, our law's protection. Legal authority to bring an action is a "right." Bryant v. Randall, 244 Ga. 676, 261 S.E.2d 602 (1979). The law as written would require the same standards of conduct of Georgia directors, whether the corporation they serve is one created in Georgia or one which has been formally and officially authorized to transact business here. As said in the Comment following OCGA § 14-2-311, this places "qualified foreign corporations on a par with domestic corporations," except as otherwise provided.

This is in keeping with the decision in Southeast Consultants, Inc. v. McCrary Engineering Corp., 246 Ga. 503, 273 S.E.2d 112 (1980). Although it did not deal with the issue here raised, the case involved an authorized foreign corporation's resort to the business opportunities Code section, and the Court did not preclude its use. ²

Since we hold that the Code right of action is available to plaintiff, we need not address whether there would be a common law right of action if the Code door was closed. Nor is there a conflicts of law question involved. ³

3. We must continue the review because there may be another, valid basis for the judgment. A second ground was that $130,000 in nominal damages was "an illegal verdict on its face." We take this to mean that the court viewed the verdict as excessive. Of course, if an award by a jury is "palpably unreasonable or excessive, or the product of bias," it will be set aside. Ford Motor Co. v. Stubblefield, 171 Ga.App. 331, 341, 319 S.E.2d 470 (1984); Thompson Enterprises v. Coskrey, 168 Ga.App. 181(3), 308 S.E.2d 399 (1...