Post-Tensioned Const., Inc. v. VSL Corp., POST-TENSIONED

• Decision Date: 11 July 1977
• Docket Number: No. 2,54033,POST-TENSIONED,Nos. 54032,s. 54032,2
• Parties: CONSTRUCTION, INC. v. VSL CORP. VSL CORP. v.CONSTRUCTION, INC
• Court: Georgia Court of Appeals

Page 618

237 S.E.2d 618

143 Ga.App. 148

POST-TENSIONED CONSTRUCTION, INC. v. VSL CORP.

VSL CORP. v. POST-TENSIONED CONSTRUCTION, INC.

Nos. 54032, 54033.

Court of Appeals of Georgia, Division No. 2.

July 11, 1977.

Rehearing Denied July 29, 1977.

Richard A. Thibadeau, Decatur, for appellant.

Rose & Stern, James W. Penland, Steven Schaikewitz, Atlanta, for appellee.

SHULMAN, Judge.

A jury returned a verdict in favor of plaintiff-appellee VSL Corp. in a suit based on breach of contract. This appeal follows the denial of a motion for a new trial.

1. Appellant asserts that the verdict cannot stand because it was based on an improper consideration of evidence.

The record shows that the jury interrupted deliberations to request that the court supply them with certain figures relevant to damages. The court refused this request. While the jury was in the courtroom requesting the calculations, the figures were on the blackboard within the jury's view. The figures totalled $113,332.53. The jury returned a verdict of $113,296.27. Appellant submits, based on the closeness of the award and blackboard figures, that the jury noted the blackboard calculations in rendering its verdict. The regulation of a juror's note-taking is addressed to the sound discretion of the trial court. Williamson v. State, 142 Ga.App. 177(3), 235 S.E.2d 643. Here, the trial court exercised its discretion by deciding that if notes were in fact taken, this would not be sufficient to warrant a new trial. We cannot say that this was error. Vaughn v. State, 17 Ga.App. 268(2), 86 S.E. 461; Simmons Lumber Co. v. Toccoa Furniture Co., 26 Ga.App. 758(3), 107 S.E. 340.

2. Citing O'Barr v. Alexander, 37 Ga. 195(6), the appellant attacks the jury verdict because an unauthorized person, without the knowledge or consent of counsel, visited the jury in the deliberation room sometime during the course of the trial. The trial judge questioned the intruder, ascertained that the stranger's purpose in visiting the jury room was to bring refreshments to a juror-companion and was satisfied that a fair and impartial trial could be had.

"Ordinarily motions for (new trial) because of improper conduct of jurors or parties are addressed to the sound discretion of the trial judge." Emory University v. Lee, 97 Ga.App. 680, 693(2), 104 S.E.2d 234, 245. Unless there is an abuse of discretion the appellate court will not upset the trial judge's determination. Bennett v. State, 86 Ga.App. 39(2), 70 S.E.2d 882; Smith v. Blackshear, 127 Ga.App. 610, 194 S.E.2d 519. We do not agree that the irregularity in the conduct of the jury which occurred here requires a new trial. Southern Ry. Co. v. Brown, 126 Ga. 1(3), 54 S.E. 911. See also Southern Ry. Co. v. Jones, 98 Ga.App. 313(5), 106 S.E.2d 298.

3. Appellant contends that the judge erred in excluding evidence as to attorney's fees relating to appellant's counterclaim. This enumeration must fail.

Under repeated rulings of this court, any error in excluding evidence as to damages affords no basis for reversal where the jury finds for the opposing party on the issue of liability. Maloy v. Dixon, 127 Ga.App. 151, 156 (Footnote 2), 193 S.E.2d 19 4. Appellant argues in his brief that the exclusion of certain testimony from a deposition constituted error. Unfortunately for appellant, this was not enumerated as error. Accordingly, this court is without jurisdiction to consider the issue. Riggins v. State, 128 Ga.App. 478(2), 197 S.E.2d 154.

5. In enumeration 5, it is submitted that the court erred in failing to inform appellant's counsel of its intention concerning opposing counsel's requests to charge as required by Code Ann. § 70-207(b). Although we emphatically disapprove of the failure of a trial judge to comply with statutory requirements, we see no error under the facts of this case.

At no time did appellant request to reargue the facts in light of the law of the case as charged. See Daniels v. State, 137 Ga.App. 371(4), 224 S.E.2d 60. At no time did appellant object to the court's failure to comply with Code Ann. § 70-207(b). At no time did appellant request to be informed of the charges.

"( I)n the absence of any request by counsel to be informed of the judge's proposed action on the requested charges (which request was not made in the instant case), noncompliance with the provision in question is not, in and of itself, reversible error. (Cits.)" Braswell v. Owen of Ga., 128 Ga.App. 528(3), 530, 197 S.E.2d 463, 466. Even if a proper request had been made, ". . . in order to warrant a reversal or new trial for failure to comply with this rule, prejudice must be shown. (Cits.)" Seaney & Co., Inc. v. Katz, 132 Ga.App. 456, 208 S.E.2d 333, 334. See also Smith v. Poteet, 127 Ga.App. 735(8), 195 S.E.2d 213. No such showing was made here.

6. In Enumerations 6 and 7, appellant urges that the court erred in giving various charges. Appellant did not object to any charge of the trial court and may not raise these issues for the first time on appeal. Atlanta & West Point R. Co. v. Armstrong, 138 Ga.App. 577(2), 227 S.E.2d 71; Christiansen v. Robertson, 237 Ga. 711, 229 S.E.2d 472; Code Ann. § 70-207(a).

7. Enumerations 8, 9 and 10 are not argued in the brief and are deemed abandoned. Power v. Tallant, 137 Ga.App. 575, 224 S.E.2d 534; O'Neal v. Haverty Furniture Cos., Inc., 138 Ga.App. 346, 226 S.E.2d 141.

8. In cross appeal, VSL Corporation asserts that the trial court erred in striking Count II of its complaint against Post-Tensioned Construction, Inc. and in refusing to apply Code Ann. § 81A-136 to Post-Tensioned's failure to reply to certain requests for admissions. Count II alleges that cross appellee Post-Tensioned committed an anticipatory breach by canceling a contract to purchase building materials after cross appellant had begun manufacturing.

Although in a verified answer to VSL's complaint, Post-Tensioned denied any amount was owing, Post-Tensioned failed...