Payne v. Jones & Kolb

• Decision Date: 03 January 1989
• Docket Number: Nos. 77863,77864,s. 77863
• Citation: Payne v. Jones & Kolb, 378 S.E.2d 467, 190 Ga.App. 62 (Ga. App. 1989)
• Court: Georgia Court of Appeals
• Parties: PAYNE v. JONES & KOLB et al.

Page 467

378 S.E.2d 467

190 Ga.App. 62

PAYNE v.JONES & KOLB et al.

Nos. 77863, 77864.

Court of Appeals of Georgia.

Jan. 3, 1989.

Rehearing Denied Jan. 27, 1989.

Certiorari Denied March 2, 1989 in No. 77863.

Herbert P. Schlanger, Atlanta, for appellant.

Jeffrey A. Bashuk, for appellees.

DEEN, Presiding Judge.

In 1984Joseph F. Payne and three other men hired the accounting firm of Jones & Kolb (Jones) and the law firm of David R. Kam & Associates(Kam) to assist them in setting up a business venture and creating a limited partnership to fund the venture.The partnership was created, but it never did any business.When the accounting and law firms were not paid for their services, Jones and Kam brought lawsuits against the four men for $7,935 and $19,165 plus interest.The suits were consolidated for trial by the court.Prior to trial, the plaintiffs settled with all of the defendants except Payne for $10,000.Jones and Kam continued to seek the full amount claimed for their services against Payne.A jury verdict awarded $2,000 to Jones and $3,915.20 to Kam plus 7 percent interest from July 1, 1985.Appellant filed a motion for a judgment notwithstanding the verdict and for a set-off against the verdict of the amount his co-defendants had paid the plaintiffs in settlement.The motions were denied.

1.The record shows that two of appellant's co-defendants had consent judgments entered against them for $5,000 and $4,500 respectively.The plaintiffs entered into a release and covenant not to enforce judgment with the third co-defendant for a $500 settlement.The release provided that it could not be used or adopted to release Payne from any claims that they were asserting against him in the lawsuit.Payne enumerates as error the trial court's denial of his motion to set-off the amount of the settlement against the jury verdict.Appellant argues that the jury verdict reflects the jury's assessment of the total value of appellees' services and that by dismissing one co-defendantthe plaintiff released the remainder.

In Rowland v. Vickers, 233 Ga. 67, 68, 209 S.E.2d 592(1974), the Supreme Court held: "The dismissal of an action against a defendant with prejudice even when a consideration is paid by such defendant to the dismissing party, does not, as a matter of law, adjudicate all issues in the case.Such a dismissal merely means that the same plaintiff cannot again sue that same defendant on that same cause of action.The dismissal of an action with prejudice against a defendant adjudicates only the non-liability of that defendant to the plaintiff.It does not adjudicate other issues.Such a dismissal is not the equivalent of a judgment rendered in favor of the plaintiff against the defendant, because such a judgment does adjudicate the liability of the defendant to the plaintiff.In short, a judgment of dismissal with prejudice against one defendant is not repugnant to and inconsistent with another judgment rendered in favor of the same complaining party against another defendant on the same cause of action.A dismissal with prejudice against one defendant does not preclude the same plaintiff from bringing the same cause of action against another defendant.The second defendant may be able to prove full satisfaction for the committed tort by the first defendant, but that is a question of fact that cannot be resolved unless the evidence submitted clearly and unequivocally shows full satisfaction by the first defendant."

We find that this rule also applies in a case in quantum meruit as in the instant case.As in Rowland v. Vickers, supra, 233 Ga. at 68, 209 S.E.2d 592, "[s]uch clear and unequivocal evidence is not present in this case."Indeed, the appellant presented no evidence to show appellees were fully compensated by the defendants.Appellees contend, without supporting evidence to be found in the record or transcript, that evidence of other defendants presence in the case and the amount of the settlement was not presented to the jury because appellant objected to a pretrial motion which sought to present this evidence to the jury.

As to the consent judgments entered against two of the defendants, we note that a judgment rendered in conformance with an agreement to settle is not synonymous with a contested trial.Blakely v. Couch, 129 Ga.App. 625, 629, 200 S.E.2d 493(1973).A consent judgment "is not a judgment of the court, it is the agreement of the parties, entered upon the record with the sanction and approval of the court, and is their act rather than that of the court.[Cits.]"Black's Law Dictionary, 978 (4th ed. 1968).Such judgments do, of course, bind the parties as fully as other judgments.

We find no error in the trial court's refusal to permit a set-off of the settlement amounts against the jury verdict.

2.It is within the trial court's discretion to permit a plaintiff to submit additional evidence after the plaintiff has rested its case.This discretion will not be disturbed on appeal absent abuse.A.P.S.S. v. Clary & Assoc., 178 Ga.App. 131, 342 S.E.2d 375(1986).We find no abuse of the court's discretion.

3.There is no merit in appellant's argument that he was entitled to a judgment notwithstanding the verdict.The value of services rendered by appellants was solely a jury question.Bailey v. Fox, 144 Ga.App. 195, 240 S.E.2d 737(1977).The plaintiffs offered testimony from expert witnesses as to the time, effort and expenses necessary to establish a limited partnership and also as to the amount of time, manpower, expenses, etc., the plaintiffs actually expended in this case.The testimony also included evidence as to the fees normally charged by others in the legal and accounting community for such services, that the value of their services was reasonable and that the professionals involved performed the services requested by Payne.The evidence was sufficient for the jury to determine the reasonable value of the plaintiffs' services.

4.As appellant raised no objection to improper venue until after the jury verdict was rendered, he waived it.Vanguard Ins. Co. v. Beasley, 167 Ga.App. 625, 307 S.E.2d 56(1983).

5.Appellant's remaining enumeration of error has been largely addressed in Division 1 above.The release and dismissal of some of the defendants from a lawsuit does not release others from liability unless it is specifically agreed that the release discharges them.Posey v. Med. Center-West, 257 Ga. 55, 59, 354 S.E.2d 417(1987).The release in question stated clearly that the plaintiffs were not releasing their claims against Payne.

Judgments affirmed.

McMURRAY and BANKE, P.JJ., and BIRDSONG, POPE, BENHAM and BEASLEY, JJ., concur.

CARLEY, C.J., concurs in the judgment only.

SOGNIER, J., dissents.

SOGNIER, Judge, dissenting.

I respectfully dissent.The record reveals that David R. Kam & Associates(Kam) and Jones & Kolb (J & K) brought suits against four...