United Federal Sav. & Loan Ass'n of Waycross v. Connell
| Decision Date | 19 April 1983 |
| Docket Number | No. 66179,66179 |
| Citation | 304 S.E.2d 131,166 Ga.App. 329 |
| Court | Georgia Court of Appeals |
| Parties | UNITED FEDERAL SAVINGS & LOAN ASSOCIATION OF WAYCROSS v. CONNELL. |
Neal L. Conner, Jr., Waycross, for appellant.
George H. Wynn, Lakeland, for appellee.
In 1979 appellant made a construction loan of $51,200 to a building contractor with whom it had had dealings for a number of years. The loan was secured by a deed to secure debt, couched in standard language. In 1980 the builder contracted with appellee, with whom he had previously dealt, to make and install cabinets for the kitchen and bathrooms. While under construction the house was kept unlocked at all times so that workmen and sub-contractors might come and go as needed. In November 1980 appellee submitted to the builder a bill for about $2,300 for the cabinets, which had been placed in the house but only partially installed, and on which the finish work had not yet been done. At no time did appellee file a mechanic's or materialman's lien on the cabinets.
In the spring of 1981 the builder defaulted on his loan, and appellant prepared to foreclose. At about the same time appellee, who had not been paid for the cabinets, learned of the builder's financial difficulties. Since the latter had made no response to appellee's reminders that payment for the cabinets was past due, appellee went to the unlocked house and physically removed the cabinets. Upon inspecting the house in connection with the foreclosure, appellant discovered that the cabinets had been removed and demanded that appellee replace them. When appellee did not do so, appellant contracted with another cabinet man to construct and install cabinets, and sued appellee for the amount of the second sub-contractor's bill, or approximately $3,000.
At trial there was conflicting evidence regarding such issues of material fact as the degree, if any, to which the cabinets had been installed in the house; whether appellee learned of the builder's financial status before or after appellant foreclosed; whether the cabinets were removed before or after the foreclosure; and whether removal of the cabinets damaged the house, and if so, to what extent. There was considerable testimony offered on such issues as the relationship between appellant's perfected security interest in the realty and appellee's interest in the cabinets, and whether appellee had retained actual or constructive possession, if either, of the unpaid-for cabinets while they were physically located in the house.
In addition to the usual instructions appropriate in such a proceeding, the court instructed the jury on liens, security interests, priorities among creditors, and the distinction between real and personal property. Appellant objected to this last instruction. The jury found for the defendant. Plaintiff-appellant, having previously moved for summary judgment and for a directed verdict, moved unsuccessfully for judgment notwithstanding the verdict or a new trial. On appeal he enumerates as error the court's denial of his motions for a directed verdict, for judgment notwithstanding the verdict, and for a new trial, alleging the general grounds. He further assigns as error the court's instruction on the distinction between realty and personalty. Held:
1. Appellant's enumeration of the general grounds is without merit. Conflicting testimony was offered at trial therefore, neither a directed verdict nor judgment notwithstanding the verdict was appropriate. OCGA § 9-11-50 (Code Ann. § 81A-150). Evidence that strongly supports but does not demand a particular verdict does not warrant a directed verdict. Walnut Equip. Leasing Co. v. Williams, 159 Ga.App. 679, 285 S.E.2d 54 (1981); Barber v. Atlas Concrete Pools, 155 Ga.App. 118, 270 S.E.2d 471 (1980). The standard of appellate review of the trial court's denial of a motion for a directed verdict is the "any evidence" standard. Dept. of Human Resources v....
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...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......
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