Roswell Properties, Inc. v. Salle
| Decision Date | 19 March 1993 |
| Docket Number | No. A92A1734,A92A1734 |
| Citation | 430 S.E.2d 404,208 Ga.App. 202 |
| Parties | ROSWELL PROPERTIES, INC. v. SALLE. |
| Court | Georgia Court of Appeals |
Mark A. Smith III, Atlanta, for appellant.
B. Thomas Cook, Jr., Atlanta, for appellee.
Roswell Properties, Inc. appeals from a judgment, based upon a jury verdict, in favor of Sarah Salle, individually and as executrix of the estate of her late husband, Gilbert Salle, (collectively "Salle") on Salle's claims for conversion of earnest money and retention of other payments, conversion of personal property, attorney fees, and punitive damages. The record shows Salle sued Roswell Properties for its actions concerning the proposed sale of a house.
Salle contracted with Roswell Properties to purchase a house that Roswell Properties would build in one of its subdivisions. As part of the agreement, Salle made certain earnest money payments and also paid for an addition to the house. For whatever reason, construction of the house did not proceed as contemplated, and the house was not ready for occupancy as expected. Consequently, the completion date of the house was repeatedly extended. Ultimately, however, Roswell Properties notified Salle that if the purchase did not close by a date certain, Roswell Properties would sell the house to another.
The sale to Salle did not close, and Roswell Properties sold the house to another party. After Roswell refused Salle's demand for return of monies she claimed she was owed, Salle sued and recovered a judgment. This appeal followed. Held:
1. Roswell Properties' first enumeration of error contends the trial court erred by denying its motion to stay the proceedings and compel arbitration. Pretermitting whether the contract authorized arbitration under 9 U.S.C. § 1 et seq., the record shows the trial court did not err by denying this motion because Roswell Properties waived any right to arbitration which it might have had. The record shows that rather than submitting to arbitration any disputes with Salle, including whether the house was complete and ready for occupancy, Roswell repudiated the contract by deeming the contract "null and void or cancelled" and by selling the house to a third party. These actions waived Roswell Properties' right to seek arbitration. National Parents' Resource Institute for Drug Ed. v. Peachtree Hotel Co., 201 Ga.App. 637, 638, 411 S.E.2d 884. (Citations omitted.) McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga.App. 10, 12-13, 345 S.E.2d 53.
2. Roswell Properties' second enumeration contends the trial court erred by denying its motion for judgment n.o.v. or in the alternative for a new trial because the verdict is contrary to the law as there was no evidence supporting the conversion and attorney fees claims, and the verdict is contrary to the evidence and strongly against the evidence because no evidence supported Salle's claims for conversion and attorney fees or her opposition to Roswell Properties' reliance on the liquidated damages clause of the contract. In enumerations of error 3, 4, and 5 Roswell contends the trial court erred by denying its motion for directed verdict on the issues of conversion, attorney fees, and liquidated damages and in its second enumeration refers us to its arguments in the other enumerations.
We will first consider whether the trial court erroneously denied Roswell Properties' motion for a new trial and will address the trial court's denial of the motion for judgment n.o.v. when we consider the denial of Roswell Properties' motions for a directed verdict.
Denials of motions for new trial on evidentiary grounds will be reversed on appeal only if no evidence supports the verdict. Estfan v. Poole, 193 Ga.App. 507, 509, 388 S.E.2d 373; Mathis v. Dept. of Transp., 185 Ga.App. 658, 365 S.E.2d 504. Moreover, after a jury verdict is approved by the trial court, a judgment, supported by the evidence, will not be disturbed on appeal unless there is a material error of law. Archer Motor Co. v. Intl. Business Invest., 193 Ga.App. 86, 88, 386 S.E.2d 918; Smith v. Clifford H. Pryor, etc., 193 Ga.App. 523, 524, 388 S.E.2d 383. Further, whether a verdict is contrary to the weight of the evidence is a question vested in the trial court's discretion. The trial court may grant a new trial on these grounds, but appellate courts have no such power. After the trial court approves the verdict, the sole question for this court is whether there is any evidence sufficient to authorize it. Green v. Dillard, 176 Ga.App. 574, 337 S.E.2d 55, overruled on other grounds, Kres v. Winn-Dixie Stores, 183 Ga.App. 854, 857, 360 S.E.2d 415.
As will be discussed below, the record contains sufficient evidence to support the trial court's denial of Roswell Properties' motion for a new trial on each of the grounds asserted. Accordingly, the trial court did not err by denying Roswell Properties' motion for a new trial.
3. When considering whether the trial court erred by denying motions for directed verdicts and motions for judgment n.o.v., we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. Southern Store, etc., Co. v. Maddox, 195 Ga.App. 2, 3, 392 S.E.2d 268. Thus, a 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. If the evidence is conflicting, or if insufficient evidence exists to make a "one-way" verdict proper, judgment n.o.v. should not be granted. Further, when considering these motions, trial and appellate courts must view the evidence in the light most favorable to the party securing the jury verdict. Denson v. City of Atlanta, 202 Ga.App. 325, 326, 414 S.E.2d 312.
(a) On the issue of conversion, the record shows the evidence presented did not demand a verdict for Roswell Properties on any of the grounds asserted. Salle presented evidence showing that under the terms of the contract of sale the earnest money paid was "to be applied as part payment of purchase price of said property at the time sale is consummated," that she made two earnest money payments in the total amount of $12,500, and Roswell Properties refused to return the earnest money to her after the sale of the house did not close. This evidence authorized submitting to the jury a claim for conversion of the earnest money. Winterchase Townhomes v. Koether, 193 Ga.App. 161, 163, 387 S.E.2d 361. The conflicting evidence presented by Roswell Properties merely created a jury issue.
(b) The trial court also did not err by denying Roswell Properties' motions on the issue of attorney fees. Salle's complaint claimed attorney fees from Roswell Properties under OCGA § 13-6-11 because of Roswell Properties' bad faith, stubborn litigiousness, and causing unnecessary trouble and expense. Salle presented evidence tending to show that Roswell Properties breached its contract with her in bad faith because it could sell the house to another for a greater profit.
In this regard, the evidence showing the price to Salle was $153,000, the selling price to the third party was $166,000 and Roswell Properties kept the earnest money and other sums Salle paid for improvements to the house. Other evidence was presented from which the jury could conclude Roswell Properties unreasonably attempted to delay completion of the house, and that Salle had to sue to recover money that should have been returned to her under the contract of sale. Issues concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense are generally questions for the jury. Gorin v. FPA 2, 184 Ga.App. 239, 241, 361 S.E.2d 193; Jeff Goolsby Homes Corp. v. Smith, 168 Ga.App. 218, 221, 308 S.E.2d 564.
(c) Under the circumstances of this case, we also find the trial court did not err by denying Roswell Properties' motions on liquidated damages. See OCGA § 13-6-7. We must note, however, that trial courts should not ordinarily submit the issue of whether a contract provides for liquidated damages or a penalty to the jury. See Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809, 375 S.E.2d 222. This issue should be decided as a matter of law, unless after applying the usual rules of contract construction, an ambiguity remains warranting submitting a factual issue to the jury. See Lineberger v. Williams, 195 Ga.App. 186, 190, 393 S.E.2d 23. In this case, as neither party objected to the procedure and instead submitted requested charges on the issue, we find no harmful error. One cannot complain of a result he procured or aided in causing (Locke v. Vonalt, 189 Ga.App. 783, 787, 377 S.E.2d 696) and induced error is not an appropriate basis for claiming prejudice. Sullens v. State, 239 Ga. 766, 767, 238 S.E.2d 864; Martin v. State, 193 Ga.App. 581, 584, 388 S.E.2d 420. Moreover, we find as a matter of law that the contract provision did not call for liquidated damages. Therefore, any error resulting from the submission of this issue to the jury was harmless. A party seeking a reversal must show not only error, but harm. Georgia Power Co. v. Bishop, 162 Ga.App. 122, 126, 290 S.E.2d 328.
"[A] liquidated damages provision is or is not enforceable based upon the intent that was manifested at the time that the provision was originally proposed and agreed to" (Adams v. D & D Leasing Co., 191 Ga.App. 121, 123, 381 S.E.2d 94), and to determine the intent, we first look to...
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