Universal Underwriters Group v

Southern Guar. Ins. Co., 297 Ga. App. 587, 677 S.E.2d 760 (2009). Statute allows a trial court to defer the ruling on a motion for directed verdict and submit the case to the jury, subject to later determination of the legal questions raised by the motion. Mayor of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978). Subsection (b) of O.C.G.A. § 9-11-50 allows the device of a motion for judgment notwithstanding the verdict to be used when a motion for directed verdict does not end a trial and the trial proceeds to verdict. It is narrow, however, and does not permit reopening the case for new legal issues which are thought of retrospectively, with hindsight. Famiglietti v. Brevard Medical Investors, Ltd., 197 Ga. App. 164, 397 S.E.2d 720 (1990). Judgment notwithstanding the verdict does not actually change the verdict, but merely enters a judgment notwithstanding the verdict, thus, avoiding application of the old rule that it was error to direct a verdict and was never error to refuse to direct a verdict, and the constitutional problems involved therein as well as to eliminate a new trial. Ammons v. Horton, 128 Ga. App. 273, 196 S.E.2d 318 (1973). Standard for granting judgment notwithstanding verdict is the same as that for directed verdict. Russell v. State, 155 Ga. App. 555, 271 S.E.2d 689 (1980). Appellant’s standard of review in a judgment notwithstanding the verdict case is whether the evidence, with all reasonable deductions therefrom, demanded a verdict contrary to that returned by the fact-finder. Bagley v. Robertson, 265 Ga. 144, 454 S.E.2d 478 (1995). General grounds of motion for new trial and for JNOV are not always identical. Shetzen v. C.G. Aycock Realty Co., 93 Ga. App. 477, 92 S.E.2d 114 (1956). It was never intended that the movant be made to choose between moving for new trial and moving for judgment notwithstanding verdict. Shetzen v. C.G. Aycock Realty Co., 93 Ga. App. 477, 92 S.E.2d 114 (1956). Motion granted when only one reasonable conclusion possible. — Motion for judgment notwithstanding the verdict 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 there is conflicting evidence or if there is insufficient evidence to make a ‘‘one-way’’ verdict proper, judgment notwithstanding the verdict should not be awarded. Church’s Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979); Bryant v. Colvin, 160 Ga. App. 442, 287 S.E.2d 238 (1981). When jury’s verdict not supported by evidence. — If the verdict returned is not supported by any evidence, denial of a motion for judgment notwithstanding the verdict is error. Ford Motor Credit Co. v. Parsons, 155 Ga. App. 46, 270 S.E.2d 230 (1980); City of Atlanta v. West, 160 Ga. App. 609, 287 S.E.2d 558 (1981). Judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the jury verdict. Pendley v. Pendley, 251 Ga. 30, 302 S.E.2d 554 (1983). Error to strike evidence, then rule on motion. — Motion to strike is not a precursor to a motion for judgment notwithstanding the verdict. Moreover, the court may not excise some of the evidence admitted and then rule on the motion for judgment notwithstanding the verdict viewed with that evidence absent. Famiglietti v. Brevard Medical Investors, Ltd., 197 Ga. App. 164, 397 S.E.2d 720 (1990). Standard for judgment notwithstanding mistrial. — To warrant a grant of a motion for judgment notwithstanding mistrial, the same test obtains as that for directed verdict. Long v. Walls, 226 Ga. 737, 177 S.E.2d 373 (1970). Motion for judgment notwithstanding mistrial is analogous to a motion for directed verdict or for judgment notwithstanding the verdict in that the motion can be sustained only when there is no conflict in the evidence as to any material issue and when the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. Georgia Power Co. v. Purser, 152 Ga. App. 181, 262 S.E.2d 473 (1979); Findley v. McDaniel, 158 Ga. App. 445, 280 S.E.2d 858 (1981). Motion for directed verdict is a condition precedent to a subsequent motion for judgment notwithstanding the verdict. Whitman v. Burden, 155 Ga. App. 67, 270 S.E.2d 235 (1980). Requirement of directed verdict as prerequisite. — It is a condition precedent to a motion for judgment notwithstanding verdict that a motion for directed Judgment Notwithstanding Verdict (Cont’d) verdict must have been made and denied. Southwind Trucking Co. v. Harvey, 96 Ga. App. 715, 101 S.E.2d 223 (1957); Fulton v. Chattanooga Publishing Co., 100 Ga. App. 573, 112 S.E.2d 15 (1959), rev’d on other grounds, 215 Ga. 880, 114 S.E.2d 138 (1960). Motion for directed verdict is a prerequisite to a motion for judgment notwithstanding the verdict, and if it appears from the record that no such motion was made, the motion for judgment notwithstanding the verdict cannot be considered on appeal. Kiser v. Kiser, 101 Ga. App. 511, 114 S.E.2d 397 (1960). Motion for judgment notwithstanding the verdict may be granted only when a valid motion for directed verdict has been made by the movant and erroneously denied. Daniel v. Weeks, 217 Ga. 388, 122 S.E.2d 564 (1961); Simmons v. Watson, 221 Ga. 765, 147 S.E.2d 322 (1966); Maloy v. Planter’s Whse. & Lumber Co., 142 Ga. App. 69, 234 S.E.2d 807 (1977). If the record does not disclose the making of a motion for directed verdict, there is no error in the refusal of the trial judge to grant a motion for judgment non obstante veredicto. DeKalb County v. Brewer, 111 Ga. App. 269, 141 S.E.2d 234 (1965); Tadlock v. Duncan, 215 Ga. App. 441, 451 S.E.2d 80 (1994). When error is assigned on overruling of a motion for judgment notwithstanding the verdict made after trial, but no motion for directed verdict was made, no question is presented for determination by the appellate court. Lumbermen’s Mut. Ins. Co. v. Blackwell, 112 Ga. App. 398, 145 S.E.2d 287 (1965). Motion for judgment notwithstanding the verdict may be entertained only if the movant has previously moved for a directed verdict and is seeking to have judgment entered ‘‘in accordance with’’ that motion. Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 287 S.E.2d 257 (1981). If review of the record and transcript reveals that no motion for directed verdict was made in the case, it follows that a motion for judgment n.o.v. was not appropriate, and the trial court erred in granting the judgment. Gray v. Miller, 166 Ga. App. 792, 305 S.E.2d 651 (1983). If the ground asserted in defendant’s motion for judgment n.o.v. in the trial court is argued on appeal, but it was not contained in the motion for directed verdict, as required by subsection (b), it will not be considered on appeal. Wehunt v. ITT Bus. Communications Corp., 183 Ga. App. 560, 359 S.E.2d 383 (1987). Grounds asserted in the motion for judgment n.o.v. and on appeal were not considered because those grounds were not asserted in support of the motions for directed verdict. Glenridge Unit Owners Ass’n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987); Tanner v. Gilleland, 186 Ga. App. 377, 367 S.E.2d 257 (1988). Questions concerning the evidence offered to support a claim for attorney fees raised in a motion for judgment notwithstanding the verdict would not be reviewed because the defendants did not raise the questions in the defendants’ motion for a directed verdict. Dee v. Sweet, 218 Ga. App. 18, 460 S.E.2d 110 (1995). In light of the guardians’ failure to move for a directed verdict during the case, the trial court correctly found that their motion for judgment notwithstanding the verdict was procedurally barred under O.C.G.A. § 9-11-50(b). Moore v. Stewart, 315 Ga. App. 388, 727 S.E.2d 159 (2012). Equivalent motion held sufficient. — Motion made at the conclusion of the plaintiff ’s evidence, described by the movant as one for ‘‘involuntary nonsuit,’’ was a sufficient prerequisite for a motion for judgment notwithstanding the verdict. Jones v. Spindel, 128 Ga. App. 88, 196 S.E.2d 22 (1973). Time of making motion for directed verdict. — Although subsection (b) of O.C.G.A. § 9-11-50 provides that a motion for judgment n.o.v. may be made ‘‘whenever a motion for a directed verdict made at the close of all the evidence is denied,’’ the statutory phrase ‘‘at the close of all the evidence’’ does not deny to a defendant who has moved for a directed verdict at the close of the plaintiff ’s evidence the opportunity to move for judgment n.o.v. on the grounds presented in the plaintiff ’s motion for directed verdict. Marett v. Professional Ins. Careers, Inc., 201 Ga. App. 178, 410 S.E.2d 373 (1991); Professional Consulting Servs. of Ga., Inc. v. Ibrahim, 206 Ga. App. 663, 426 S.E.2d 376 (1992). Grounds for motion same as grounds for directed verdict. — Motion for judgment notwithstanding the verdict must be based on the same grounds raised initially in the motion for directed verdict, for it is in effect only a new ruling on a renewed motion. Famiglietti v. Brevard Medical Investors, Ltd., 197 Ga. App. 164, 397 S.E.2d 720 (1990). In an action among members of a limited liability company (LLC) that included a breach of contract by a physician against the LLC, in which the physician was awarded attorney fees, the trial court erred in granting judgment notwithstanding the verdict to the LLC on the issue of attorney fees because the LLC failed to raise, in the LLC’s motion for directed verdict, the claim that the physician failed to apportion the proof of attorney fees among the claims. James E. Warren, M.D., P.C. v. Weber & Warren Anesthesia Servs., 272 Ga. App. 232, 612 S.E.2d 17 (2005). In a negligence action by an automobile driver, a trial court erred in granting a judgment notwithstanding the verdict ( JNOV) under O.C.G.A. § 9-11-50(b) to the driver and amending the verdict to include a truck driver in the punitive damages portion thereof as the driver’s motion for directed verdict made after the appellants, the truck driver, the driver’s employer, and the employer’s insurer, rested only addressed the issue of the truck driver’s and the employer’s liability for compensatory damages. Am. Material Servs. v. Giddens, 296 Ga. App. 643, 675 S.E.2d 540 (2009). Motion for judgment notwithstanding the verdict may be considered only when based upon a motion for directed verdict timely made, that is, at the close of all the evidence. Battle v. Yancey Bros. Co., 157 Ga. App. 277, 277 S.E.2d 280 (1981); Buffington v. Haldi, 210 Ga. App. 542, 436 S.E.2d 740 (1993). Motion filed prior to judgment void. — Motion for judgment notwithstanding the verdict that is filed prior to entry of 9-11-50 judgment on the verdict is void. Wall v. Citizens & S. Bank, 153 Ga. App. 29, 264 S.E.2d 523 (1980), aff ’d, 247 Ga. 216, 274 S.E.2d 486 (1981), overruled on other grounds, McKeever v. State, 189 Ga. App. 445, 375 S.E.2d 899 (1988). Record as the record exists at the close of trial controls whether a motion for judgment notwithstanding the verdict should be granted. DeLoach v. Myers, 215 Ga. 255, 109 S.E.2d 777 (1959). Hearing of motion before transcript of evidence available. — As a motion for new trial may be passed on before the transcript of evidence is filed, and as a motion for judgment notwithstanding the verdict may be joined with the motion for new trial with a prayer for relief in the alternative, if the court is familiar with the evidence, such latter motion may be heard and, if proper, granted, even though the transcript is not physically available at the time. Castile v. Rich’s, Inc., 131 Ga. App. 586, 206 S.E.2d 851 (1974). Party cannot file, by amending new trial motion, late motion for judgment n.o.v. — If a party after suffering an adverse judgment filed only a motion for new trial within the 30-day period specified in O.C.G.A. § 9-11-50, then after the 30-day period expired the party sought to file, in the form of an amendment to the new trial motion, a motion for judgment notwithstanding the verdict, the latter motion must be considered invalid. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 329 S.E.2d 900, cert. denied, 254 Ga. 349, 331 S.E.2d 879 (1985). Error based on failure to grant motion not considered when directed verdict not asked for at close of evidence. — Because a motion for directed verdict was made by the defendant at the close of the plaintiff ’s evidence and was denied, and then evidence was offered by the defendant, who failed to renew the motion at the close of all the evidence, the enumeration of error based on failure to grant a motion for judgment notwithstanding the verdict cannot be considered. Battle v. Yancey Bros. Co., 157 Ga. App. 277, 277 S.E.2d 280 (1981). Reservation of ruling on pending motion. — Because a motion for directed Judgment Notwithstanding Verdict (Cont’d) verdict, renewed at the close of the case, was preserved by the court’s reserving ruling until after the jury’s verdict, the court’s ruling on the pending motion for directed verdict and grant of j.n.o.v. based on it without a formal motion for j.n.o.v. was not error. Brandvain v. Ridgeview Inst., Inc., 188 Ga. App. 106, 372 S.E.2d 265 (1988), aff ’d, 259 Ga. 376, 382 S.E.2d 597 (1989). Conditional ruling on motion for new trial. — Because the defendant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, and the trial court granted the j.n.o.v. motion, the case would be remanded for a conditional determination on the new trial motion. Ogletree v. Navistar Int’l Transp. Corp., 221 Ga. App. 363, 471 S.E.2d 287 (1996). Trial court erred in denying a city’s motion for a new trial because a corporation failed to cite evidentiary support for the difference between the amount that its expert considered for abandoned processed soil product and the amount of the jury’s award. City of Atlanta v. Landmark Envtl. Indus., 272 Ga. App. 732, 613 S.E.2d 131 (2005). Right of voluntary dismissal after mistrial. — If a mistrial has been declared due to the inability of the jury to reach a verdict, and the defendant thereafter files a timely motion for judgment notwithstanding the mistrial, the plaintiff ’s right of voluntary dismissal is not restored unless and until that motion has been denied. LeRoux v. Levine, 194 Ga. App. 381, 390 S.E.2d 629 (1990). Motion is not tool for opening new legal issues. — O.C.G.A. § 9-11-50(b) allows the device of a motion for judgment notwithstanding the verdict to be used when a motion for directed verdict does not end a trial and it proceeds to verdict; it is narrow, however, and does not permit reopening the case for new legal issues that are thought of retrospectively, with hindsight. Therefore, the developers’ contention that an attorney fee award was based on a legal bill containing inadmissible hearsay did not preserve the denial of their motion for judgment notwithstanding the verdict for appeal when the developers failed to raise the argument in the developers’ motions for directed verdict. Lincoln v. Tyler, 258 Ga. App. 374, 574 S.E.2d 440 (2002), overruled on other grounds by Monterrey Mexican Rest. of Wise, Inc. v. Leon, 282 Ga. App. 439, 638 S.E.2d 879 (2006). Standard of review on appeal. — Standard for granting a judgment notwithstanding the verdict is the same as that for a motion for directed verdict; it is warranted only when no conflict exists as to any material issue, and the evidence presented, together with all reasonable inferences, demands a certain verdict. On appeal, a court reviews the denial of either motion under the any evidence standard. Bacon v. Volvo Serv. Ctr., Inc., 266 Ga. App. 543, 597 S.E.2d 440 (2004). JNOV in asbestos related case.. — Trial court did not err in denying the manufacturer’s motion for judgment notwithstanding the verdict as evidence was introduced in the decedent’s case against the manufacturer to show that the manufacturer produced products containing asbestos, to which the decedent was exposed at the plant where the decedent worked and that such exposure was a contributing factor to the decedent’s asbestos-related illness. John Crane, Inc. v. Jones, 262 Ga. App. 531, 586 S.E.2d 26 (2003). Motion improperly denied. — Limited liability company’s (LLC) motion for a judgment notwithstanding the verdict was properly denied as the member presented evidence of the LLC’s collected funds and cash on hand as aids in the jury’s determination of damages for breach of contract, which were based on accounts receivable; the jury’s verdict was well within the range of the evidence. James E. Warren, M.D., P.C. v. Weber & Warren Anesthesia Servs., 272 Ga. App. 232, 612 S.E.2d 17 (2005). JNOV in attorney’s fees issue. — Trial court erred in denying the doctor’s motion for judgment notwithstanding the verdict on the issue of attorney fees awarded to the hospital under O.C.G.A. § 13-6-11 because the hospital failed to segregate the attorney fees allocable to the hospital’s counterclaim, which were recoverable, from those attorney fees incurred in defending against the doctor’s suit alleging that the hospital inappropriately revoked the doctor’s privileges in violation of the hospital’s bylaws and Georgia public policy, which were not recoverable. Whitaker v. Houston County Hosp. Auth., 272 Ga. App. 870, 613 S.E.2d 664 (2005). JNOV when punitive damages sought. — Trial court erred in denying a doctor’s motion for judgment notwithstanding the verdict on the issue of punitive damages awarded to a hospital on the hospital’s breach of contract claim as punitive damages are not available for breach of contract claims. Whitaker v. Houston County Hosp. Auth., 272 Ga. App. 870, 613 S.E.2d 664 (2005). JNOV in recission claim. — Because the alleged illegalities cited by a trustee were incidental to the purpose of the contracts with the investors, those contracts did not require a securities violation or usurious interest rate; thus, it followed that the trial court erred in denying a motion for judgment notwithstanding the verdict on the trustee’s recission claim Douglas v. Bigley, 278 Ga. App. 117, 628 S.E.2d 199 (2006). Because: (1) the appellate court could not agree that the broad statements regarding merger in the business plan between two investment companies and in an investing trustee’s testimony rendered the second of these two companies liable for the first company’s conduct; (2) the trustee failed to present evidence documenting a merger transaction between the two companies or establishing that either or both companies no longer existed; (3) the evidence failed to show that one of the companies was absorbed into the other, creating a de facto merger; and (4) the trustee failed to show that the companies lacked separate personalities, the jury was not authorized to find the second company liable for the first company’s activities; thus, the trial court erred in failing to enter judgment notwithstanding the verdict as to the trustee’s claims against the second company. Douglas v. Bigley, 278 Ga. App. 117, 628 S.E.2d 199 (2006). Trial court erred when the court denied the motion for judgment notwithstanding the verdict filed by two relatives in an action by a third relative to quiet title in property that had been owned by a decedent; the deed filed by the third relative did not contain a complete description of the property to which the deed pertained, and therefore, the deed was invalid and could not supply the third relative with good title. Lord v. Holland, 282 Ga. 890, 655 S.E.2d 602 (2008). New Trials Paragraph (c)(1) of O.C.G.A. § 9-11-50 does not require the trial court to make findings of fact and conclusions of law. Sigmon v. Womack, 158 Ga. App. 47, 279 S.E.2d 254 (1981). Paragraph (c)(1) of O.C.G.A. § 9-11-50 does not require the trial court to state the reasons for the court’s holding on a motion for judgment n.o.v. and, as to a motion for new trial, it applies only when the movant for judgment n.o.v. and the movant for new trial are one and the same party. Jamison v. First Ga. Bank, 193 Ga. App. 219, 387 S.E.2d 375 (1989). Discretion of judge to end litigation after trial. — Trial judge has discretion remaining after the trial is over, when the proper motions are made, whether to finally end the litigation or not; if the judge grants a new trial, the litigation is not finally disposed of. Wilson v. Matthews, 120 Ga. App. 284, 170 S.E.2d 346 (1969), overruled on other grounds, Jones v. Burton, 238 Ga. 394, 233 S.E.2d 367 (1977). Motion for new trial may not be filed prior to entry of judgment on the verdict under subsection (b) of O.C.G.A. § 9-11-50, and if such motion is filed prior to entry of judgment, the motion is void. Wall v. Citizens & S. Bank, 153 Ga. App. 29, 264 S.E.2d 523 (1980), aff ’d, 247 Ga. 216, 274 S.E.2d 486 (1981), overruled on other grounds, McKeever v. State, 189 Ga. App. 445, 375 S.E.2d 899 (1988). Specification of grounds for grant or denial of new trial when j.n.o.v. granted. — Requirement that, in passing upon a motion for new trial, the trial judge shall specify grounds for granting or denying such motion is only applicable under paragraph (c)(1) of this section if the motion for judgment notwithstanding the New Trials (Cont’d) verdict is granted. Guest v. Guest, 150 Ga. App. 48, 256 S.E.2d 654 (1979). Grant of first trial not error unless verdict for opposite party demanded. — Neither subsection (c) of Ga. L. 1967, p. 226, §§ 22, 43, and 48 (see now O.C.G.A. § 9-11-50) nor any other provision changes the law under former Code 1933, § 6-1608 (see now O.C.G.A. § 5-5-50), providing that the first grant of a new trial was not error unless the evidence demanded a verdict for the party opposing the motion therefor. Martin v. Denson, 117 Ga. App. 288, 160 S.E.2d 210 (1968). When the trial court grants separate motions for judgment notwithstanding the verdict and for a new trial on general grounds, the grant of a motion for new trial is conditional on the appellate court’s vacating or reversing the judgment n.o.v.; when the law and facts of the case do not demand a verdict for either party, the first grant of a new trial will not be disturbed on appeal. Hicks v. American Interstate Ins. Co., 158 Ga. App. 220, 279 S.E.2d 517 (1981). Motion improperly denied. — In an action involving the sale of land, because no adequate description of the property sought to be sold could be found within the four corners of the parties’ final agreement, no exhibits were attached, and the words used in the contract did not provide a sufficient description of the land, the trial court erred in admitting parol evidence to provide a legally sufficient description of the property at issue; hence, the property owners’ motion for a new trial was erroneously denied. McClung v. Atlanta Real Estate Acquisitions, LLC, 282 Ga. App. 759, 639 S.E.2d 331 (2006). New trial motion proper means of attacking excessive nominal damages. — Award of $130,000.00 nominal damages, if palpably unreasonable, excessive, or the product of bias, may be set aside, but these are not the criteria for a directed verdict; the motion for a new trial is the proper means of attack. Miller & Meier & Assocs. v. Diedrich, 174 Ga. App. 249, 329 S.E.2d 918, aff ’d in part, rev’d in part, 254 Ga. 734, 334 S.E.2d 308, vacated in part on other grounds, 176 Ga. App. 770, 338 S.E.2d 546 (1985). Granting directed verdict at new trial authorized. — At a second trial following the grant of the plaintiff ’s motion for a new trial, the trial court was authorized to dismiss the defendant’s counterclaims and grant a directed verdict for the plaintiff. Tyson v. Cheek Mechanical & Elec. Serv., Inc., 218 Ga. App. 134, 460 S.E.2d 536 (1995). JNOV after general verdict. — In an action filed by a trustee alleging various claims, including breach of contract, rescission, breach of fiduciary duty, and fraud against two investors and their two companies, while evidence supported some, but not all of a trustee’s claims, because the jury returned a general verdict, it was difficult to decipher on which claims the jury found the defendants liable, warranting a new trial on remand; but, judgment notwithstanding the verdict should have been entered against the second company as to all claims. Douglas v. Bigley, 278 Ga. App. 117, 628 S.E.2d 199 (2006). When a directed verdict under O.C.G.A. § 9-11-50(a) on medical expenses was erroneously granted in a suit based on a vehicular collision, a new trial was required because after the directed verdict, the jury awarded general damages, and the appellate court was unable to conclude that the error was harmless since it could not determine if the jury factored the medical bills into account in awarding the general damages. Allen v. Spiker, 301 Ga. App. 893, 689 S.E.2d 326 (2009), cert. denied, No. S10C0740, 2010 Ga. LEXIS 454 (Ga. 2010). Failure to hold new trial on remand. — On remand, because the only relief sought by a distributor in a contract action with a buyer was a new trial, and not the denial of a directed verdict or JNOV, the trial court erred in entering judgment in favor of the distributor without conducting a new trial; moreover, the buyer was not foreclosed from presenting additional or different evidence in support of the buyer’s claim for lost profits in the trial. Strickland & Smith, Inc. v. Williamson, 281 Ga. App. 784, 637 S.E.2d 170 (2006). As a former husband failed to seek a directed verdict in the trial court, the husband could not argue on appeal that the court should enter judgment in the husband’s favor as a matter of law based on the insufficiency of the evidence in a matter, wherein the husband was sued for 9-11-52 alleged nonpayment under a promissory note; however, the husband was not barred on appeal from arguing that a new trial was warranted. Cawley v. Bennett, 293 Ga. App. 46, 666 S.E.2d 438 (2008).