Tri-State Systems, Inc. v. Village Outlet Stores, Inc.

• Decision Date: 12 June 1975
• Docket Number: TRI-STATE,No. 2,No. 50143,50143,2
• Parties: SYSTEMS, INC. v. VILLAGE OUTLET STORES, INC
• Court: Georgia Court of Appeals

Page 399

217 S.E.2d 399

135 Ga.App. 81

TRI-STATE SYSTEMS, INC. v. VILLAGE OUTLET STORES, INC.

No. 50143.

Court of Appeals of Georgia, Division No. 2.

June 12, 1975.

Jones, Cork, Miller & Benton, Bruce Benton, Lewis N. Jones, Macon, J. Norwood Jones, Jr., Atlanta, for appellant.

Clarke, Haygood & Lynch, Harold G. Clarke, Larry P. Lynch, Forsyth, for appellee.

PANNELL, Presiding Judge.

Tri-State Systems, Inc. initiated this action on a contract, alleging non-payment in the amount of $2,700 for the construction of a billboard sign on Interstate Highway 75 near Forsyth, Georgia. Appellee, Village Outlet Stores, Inc., brought a counterclaim, seeking $50,000 in lost profits allegedly occasioned by appellant's breach of the contract in failing to erect three of four billboard signs, as provided in the agreement.

This case was placed on the calendar of Monroe Superior Court for February 19, 1973. Counsel for both parties announced ready and were excused by the court until the morning of February 21. At the completion of the calendar call, counsel for the two parties entered into a discussion concerning the probable time at which their trial might commence. Due to the number of preceding cases on the calendar, it appeared that this case would not be called on February 21. At the request of counsel for appellant, appellee's attorney agreed to 'cover' or 'protect' him to the extent possible, although both attorneys recognized no assurances could be given. The other cases were settled or continued, and this matter was called for trial on the morning of February 21. Appellee's attorney informed the court of his earlier statement to his adversary, and the court decided to proceed with trial in the absence of appellant and its counsel.

Three witnesses testified in appellee's behalf. Mr. Trevitt, President of Village Outlet Stores, Inc., testified to the following: On the basis of his own market research study and his observation of other retail establishments located nearby, he concluded that a billboard advertising program would significantly increase his retail sales volume. In anticipation of the added business which he expected to be generated by the construction of the four billboards contemplated under the contract, he improved and expanded the physical facilities of the business, increased the inventory 'by many thousands of dollars,' and employed additional personnel. He further stated that due to appellant's failure to erect three of the billboards, the additional merchandise was not sold and consequently depreciated in value by 80% due to its seasonal nature and changes in fashion. Trevitt asserted that appellee's financial loss was $40,000.

L. Gary Bittick, Jr., Sheriff of Monroe County, testified that, in his opinion, current traffic count on Interstate Highway 75 was in excess of 30,000 vehicles per day. Don Daniel, former Director of Publicity at Six Flags Over Georgia and present publisher of the Monroe Reporter, testified as an expert witness on advertising. In response to a hypothetical question embracing the general nature of appellee's business and the advertising program contemplated by the contract, Daniel stated that a business of this sort could reasonably expect an increase in profits to the extent of $15,000 per year during a three-year period of advertising.

On the basis of the testimony summarized above, together with a copy of the contract, the jury awarded $40,000 to appellee. Appellant filed a motion for a new trial, a motion to vacate and set aside, and an extraordinary motion for a new trial. From the denials of these motions and from the judgment, appeal is taken to this court. Held:

1. Several enumerations of error concern the trial court's refusal to grant a new trial due to appellant's absence from the proceedings. The basis of this contention is appellant's reliance upon the statement of appellee's counsel that he would 'cover' for him. Affidavits, filed in conjunction with the motion for a new trial, further showed that appellant's attorney appeared in the courts of DeKalb and Fulton County on the date of this trial. In overruling appellant's motions, the trial judge concluded: 'The failure of the Plaintiff and its attorney to appear and be present for the trial of said case was the fault of said attorney and the Plaintiff.'

Despite a wealth of cases concerning judgments obtained in the absence of one of the parties, no fixed rule by which to determine questions of this character has developed. However, the 'wide divergence apparently existing in the authorities is not the result or the evidence of a confusion of the law, but indicates merely the breadth of the field of the discretionary power which is vested in the judges in matters of this kind.' Sherman v. Stephens, 30 Ga.App. 509, 517, 118 S.E. 567. The determination as to whether the absent party should be granted a new trial is a matter peculiarly within the discretion of the trial court. Courts of review will not control the judgment of the trial judge, unless it is shown that he manifestly and flagrantly abused his discretion. Leiter v. Arnold, 118 Ga.App. 108, 163 S.E.2d 235; Union Life Ins. Co. v. Aaronson, 109 Ga.App. 384, 136 S.E.2d 142. Compare, stamps Tire Co., Inc. v. Powers, 104 Ga.App. 860, 123 S.E.2d 203.

In the case sub judice, appellant has failed to show that the trial court's discretion has been flagrantly abused. Appellant was excused by the court until February 21, and, no request for a continuance having been made, this case was called in its due order. Counsel for appellant was not justified in basing his subsequent court appearance upon his own speculations concerning the length of time...