Preferred Risk Ins. Co. v. Boykin

• Citation: 329 S.E.2d 900,174 Ga.App. 269
• Decision Date: 07 March 1985
• Docket Number: No. 68980,68980
• Parties: PREFERRED RISK INSURANCE COMPANY v. BOYKIN.
• Court: United States Court of Appeals (Georgia)

Page 900

329 S.E.2d 900

174 Ga.App. 269

PREFERRED RISK INSURANCE COMPANY v. BOYKIN.

No. 68980.

Court of Appeals of Georgia.

March 7, 1985.

Rehearing Denied March 29, 1985.

Certiorari Denied May 1, 1985.

Fred S. Clark, Savannah, for appellant.

Brent J. Savage, George L. Lewis, Savannah, for appellee.

CARLEY, Judge.

Appellee, who is an independent insurance agent, entered into a nonexclusive agency agreement with appellant. Appellant subsequently terminated that agreement. Alleging that appellant had violated the termination provisions of the contract, appellee sued appellant for breach of contract, tortious interference with contract rights, and tortious interference with business relations. Appellant appeals from the judgment entered on a jury verdict in favor of appellee.

1. Appellant enumerates as error the denial of its motions for directed verdict and for judgment n.o.v. At the outset of our consideration of this enumeration, a rather complex procedural analysis is required.

It appears from the record and transcript that no express ruling from the trial court was ever obtained on appellant's motions for directed verdict. "Nevertheless, by allowing the case to go to the jury, accepting its verdict, and entering judgment, the court tacitly denied the motion[s]." Horton v. Ammons, 125 Ga.App. 69, 71, 186 S.E.2d 469 (1971), aff'd Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972). In Horton, such tacit denial was a sufficient basis upon which to predicate a subsequent motion for judgment n.o.v., the denial of which was enumerated as error. In the instant case, appellant filed a motion which purported to include a motion for judgment n.o.v., and it now enumerates the denial of that motion as error. However, no ruling on that aspect of the motion appears in the record. If a valid motion for judgment n.o.v. remains pending in the trial court, even after that court's denial of a motion for new trial, then the instant appeal to this court must be dismissed as premature. Pirkle v. Triplett, 153 Ga.App. 524, 265 S.E.2d 854 (1980). Thus, we must determine whether there remains pending a valid motion for judgment n.o.v.

After suffering an adverse judgment, appellant filed only a motion for new trial within the 30-day period specified in OCGA § 9-11-50(b). Subsequently, and after the 30-day period had expired, appellant filed another document styled as an "Amended Motion for New Trial or in the Alternative, Motion for Judgment Notwithstanding the Verdict." It is clear that under OCGA § 5-5-40(b), appellant could amend its motion for new trial "any time on or before the ruling thereon." However, OCGA § 5-6-39(b) provides that "[n]o extension of time shall be granted for the filing of motions for new trial or for judgment notwithstanding the verdict." Motions for new trial and for judgment n.o.v. are separate and distinct procedural vehicles, even though they may be joined or sought alternatively under OCGA § 9-11-50(b). Burnet v. Bazemore, 122 Ga.App. 73, 176 S.E.2d 184 (1970). To give validity to an otherwise untimely motion for judgment n.o.v. merely because it is filed under the guise of an amendment to a timely filed independent motion for new trial would contravene the principle embodied in OCGA § 5-6-39(b). Therefore, we hold that such an amendment filed outside the 30-day period specified in OCGA § 9-11-50(b) cannot be employed to effect a valid motion for judgment n.o.v. when such latter motion would otherwise be untimely.

Accordingly, since appellant's motion for judgment n.o.v. was not timely filed, it was void and a nullity, and provided no basis for a ruling on its merits by the trial court. Cf. Bennett v. Caton, 154 Ga.App. 515, 268 S.E.2d 786 (1980); Venable v. Block, 141 Ga.App. 523, 233 S.E.2d 878 (1977). Under this circumstance, unlike the procedural posture which obtained in Pirkle v. Triplett, supra, the failure of the trial court to rule on appellant's void motion for judgment n.o.v. does not render the instant appeal to this court premature.

Moreover, the invalidity of the motion for judgment n.o.v. does not affect this court's review of the trial court's tacit denial of appellant's motions for directed verdict. Appellate review of the denial of a motion for directed verdict is appropriate even where no motion for judgment n.o.v. has been filed. Mayor, etc., of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978).

2. We thus come to a consideration of the merits of appellant's contention that its motions for directed verdict should have been granted. Such motions should be granted only where there is no conflict in the evidence as to any material issue, and the evidence presented, together with all reasonable deductions therefrom, demands a verdict in favor of the movant. OCGA § 9-11-50(a); Timber Equipment v. McKinney, 166 Ga.App. 757(1), 305 S.E.2d 468 (1983). In reviewing the trial court's denial of motions for directed verdict, the appellate courts apply the "any evidence" standard. United Fed. Savings, etc., Assn. of Waycross v. Connell, 166 Ga.App. 329, 330(1), 304 S.E.2d 131 (1983).

As noted previously, appellee's claims were based upon the termination provisions of his contract, and the conduct of appellant in relation thereto. The contractual provision in issue expressly provided that in the event of the termination of the agreement, appellant insurance company "shall give first consideration to a nomination by the [appellee] ... of his successor, provided the successor is in all respects acceptable to [appellant]." (Emphasis supplied.) Appellee could then negotiate with his successor to receive compensation for the value of the nomination and the good will of the agency. The contract further provided that if no such acceptable successor was nominated, and if appellant did not purchase appellee's agency at a specified price, then appellant and appellee would each be free to solicit the policyholders' business separately, each for its or his own benefit.

Construed in the light most favorable to appellee, there was evidence that appellant sent appellee a notice of termination which stated that appellant elected to compete independently for the policyholders' business, rather than indicating that it would first afford appellee the opportunity to nominate a successor agent. After receiving the letter, appellee made no attempt to nominate a successor, because he determined that such an act would be useless. There was further evidence that, prior to sending the notice of termination to appellee, an employee of appellant had informed another person that appellee's agency was to be terminated, and that appellee's block of business would be transferred to such person. Subsequent to the termination of appellee's agency, appellant contacted the policyholders who had heretofore maintained a business relationship with appellee. The policyholders were informed that there had been a change of agent, and a new agent's name and address were supplied to them. Only 41 of approximately 273 policyholders so contacted continued or resumed purchasing their insurance through appellee. Expert testimony assigned a monetary value to the lost business. Thus, there was some evidence to support a finding that appellant damaged appellee by breaching the termination provisions of the agency agreement. The trial court did not err in denying appellant's motion for a directed verdict on appellee's breach of contract claim.

Appellant also complains of the denial of its motion for directed verdict on the claim of tortious interference with business relations. At trial, appellant contended that since appellee could have re-solicited the business of his former customers, and since he did business with companies other than appellant, his business relationships were not disrupted. However, evidence was presented to show that commissions derived from appellant's policies constituted roughly one third of appellee's total revenues, and that because appellant contacted its policyholders and provided them with the name and address of a new agent, appellee suffered a loss of credibility, and most of the policyholders so contacted by appellant ceased doing business with appellee. Thus, there was some evidence from which a jury could find that appellant maliciously and wrongfully, and with the intent to injure, harmed appellee's business. Bodge v. Salesworld, Inc., 154 Ga.App. 65, 267 S.E.2d 505 (1980). Accordingly, the trial court did not err in denying the motion for directed verdict on this claim. See generally Architectural Mfg. Co. v. Airotec, Inc., 119 Ga.App. 245, 166 S.E.2d 744 (1969).

With regard to the claim of tortious interference with contract rights, appellant urged in the lower court that there was no contractual relationship between appellee insurance agent and his customers who purchased policies with appellant. Accordingly, appellant contended, there were no contract rights with which it could interfere. However, there was testimony that appellee had maintained a continuing relationship with the policyholders from year to year, and that he had done business with some of them for as long as 17 years. These customers depended on appellee as an independent agent to accommodate their insurance needs, and many of them had no knowledge of appellant at the time they sought to obtain insurance through appellee. Thus, there was some evidence of the existence of an implied agreement to procure insurance coverage between appellee and the policyholders. See generally Speir Ins. Agency v. Lee, 158 Ga.App. 512, 513-514(2), 281 S.E.2d 279 (1981); Nat. Property Owners Ins. Co. v. Wells, 166 Ga.App. 281, 282-283(2), 304 S.E.2d 458 (1983); Northeastern Ins. Agency v. Courson, 156 Ga.App. 321, 274 S.E.2d 714 (1980). Appellant's motions for directed verdict were properly denied.

3. Appellant made motions for mistrial on the basis of two remarks made by counsel for appellee during his opening statement to...