Plаintiff appeals from the trial court’s grant of defendants’ motion for directed verdict on plaintiff’s claim and judgment entered thereon. It does not appeal from the jury’s verdict and court’s judgment for defendant Diedrich on his counterclaim.
Initially there were three defendants. At the close of plaintiff’s case, they moved for directed verdict on numerous bases and, after extended argument, the court reserved ruling. The motion was renewed at the close оf all the evidence. It was then granted as to one of the corporate defendants because it came into existence after all of the alleged tortious acts; as to the others, ruling was reserved until after the verdict.
A verdict form was submitted by the court to the jury, and a verdict was returned in favor of plaintiff on its claim, in the amount of $130,000 nominal damages, no special damages, and no punitive damages. After some discussion by the court and counsel, the court reinstructed the jury with respect to the meaning of, and distinction between, special and nominal damages. After further deliberation, the jury asked for definitions of these plus a charge on another subject. The court reinstructed and sent two written questions regarding the verdict, as to the type of damages (if the verdict was to be for plaintiff) and the amount of the verdict. The same verdict was returned and, after polling, the jury was discharged. 1
Several days later the court granted the motion for directed ver- *250 diet, giving its reasons, and entеred judgment for defendants. Held:
1. When a motion for directed verdict is reserved and ruled on after the verdict, it is treated as a judgment notwithstanding the verdict. “The purpose of CPA § 50 (b), allowing the trial judge to submit the case to the jury and then granting a judgment notwithstanding the verdict, is to avoid the necessity for a retrial if the appellate court determines that the trial court erred in granting the judgment notwithstanding the verdict, . .
Mayor &c. of Savannah v. Palmerio,
Thus, when a motion for directed verdict is considered after the verdict, its scоpe and effect is the same but it generally has the additional attribute of avoiding a new trial in the event it is held to be erroneous.
Consequently, “the primary question for determination is whether the evidence introduced, with all reasonable deductions therefrom demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. [Cits.] [T]he motion for 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. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.”
Bryant v. Colvin,
The court gave a number of bases for its judgment, each of which we will treat because when the judgment of the trial court is proper and legal for any reason, it should be affirmed even though there may possibly be an erroneous reason for that judgment.
Argonaut Ins. Co.
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v. Cline,
2. One of the grounds for the grant of judgment notwithstanding the verdict was that OCGA § 14-2-153 does not apply to the Georgia directors of foreign corporations, such as plaintiff, even though it has procured a certificatе of authority to transact business in this state from the Secretary of State pursuant to OCGA § 14-2-310. Plaintiff has operated in Georgia under such a certificate since 1974.
The Georgia Business Corporation Code (OCGA § 14-2-1 et seq.) was enacted in 1968. Ga. L. 1968, p. 565. The Act, in OCGA § 14-2-2, included definitions of certain words used throughout the Corporation Code: “(5) ‘Corporation’ or ‘domestic corporation’ means a corporation for profit subject to this chapter, except a foreign corporation ... (7) ‘Foreign corporation’ means a corporation for profit organized under laws other than the laws of this state for a purpose or purposes for which a corporation may be organized under the laws of this state.” There is no separate definition for a foreign corporation which has obtained a certificate of authority.
OCGA § 14-2-153 (a) (1) (C), which is invoked by plaintiff as the basis of its complaint against Diedrich individually аs its director for the appropriation of its business opportunities, is available as a cause of action to “persons named in subsection (b) of this Code section.” That subsection allows the action to be brought “by the corporation” (of which the defendant is a director), among others.
The question here is whether plaintiff had . a statutory right to bring the action. Although the definition of “corporation” excludes “foreign corporations,” it does not expressly exclude foreign corporations authorized by certificate to transact business in Georgia. Nor does the definition of “foreign corporations” expressly include those which are certificated.
The answer appears in OCGA § 14-2-311, setting out the powers and duties of corporations in plaintiff’s class: “A foreign corporation which shall have received a certificate of authority under this chapter shall, until a certificate of revocation or of withdrawal shall have been issued as provided in this chapter, enjoy the same but no greater, rights and privileges as a domestic corporation organized for the purposes set forth in the application pursuant to which such certificate of authority is issued and, except as otherwise provided in this chapter, shall be subject to the same duties, restrictions, penalties, and liabilities now or hereafter imposed upon a domestic corporation of like character.” (Code 1933, § 22-1402, enacted by Ga. L. 1968, p. 565, § i.)
Thus, the right to insist that its Georgia directors abide by the same statutory standards of conduct as are required of directors of Georgia corporations, and the right to enforce such standards by legal action, is given to certificated corporations. The state gives authority, *252 of which the certificate is evidence, for that foreign corporation to transaсt business here. It must do so, however, under our laws, and is treated as a domestic corporation (with explicit exceptions) with respect to its legal duties, restrictions, penalties, and liabilities. By the same token, and on the other side of that coin, it is then entitled to the same rights and privileges as a domestic corporation.
Since the law gives to domestic corporations legal recourse when a director appropriates its business opportunities, that same right is available to the authorized foreign corporations who seek to “enjoy,” in the word of the Code, our law’s protection. Legal authority to bring an action is a “right.”
Bryant v. Randall,
This is in keeping with the décision in
Southeast Consultants, Inc. v. McCrary Engineering Corp.,
Since we hold that the Code right of action is available to plaintiff, we need not address whether there would be a common law right of action if the Code door was closed. Nor is there a conflicts of law question involved. 3
3. We must continue the review because there may be another, valid basis for the judgment. A second ground was that $130,000 in nominal damages was “an illegal verdict on its face.” We take this to mean that the court viewed the verdict as excessive. Of course, if an award by a jury is “palpably unreasonable or excessive, or the product of bias,” it will be set aside.
Ford Motor Co. v. Stubblefield,
171 Ga.
*253
App. 331, 341 (
Instead, a motion for new trial would be the proper means of attack. OCGA § 5-5-40 (a) provides: “All motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict. . . .”
But neither of the parties moved in this direction. The plaintiff, it seems, hoped that the verdict would stand even though a rather large amount for nominal damages was awarded. In fact, it argues on appeal that the damages were really intended to be special damages and should be so construed. It is true that OCGA § 9-12-4 provides: “[v]erdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” “It is a cardinal rule, in the construction of verdicts, that every reasonable presumption sustaining their validity shall be indulged . . . .”
Atlantic Coast Line R. Co. v. Stephens,
However, it is abundantly clear from the record, including the jury instructions and the verdict form and answers to the court’s written questions, that nominal damages were intended. There is simply no room for construction otherwise. Cf.
West Ga. Pulpwood v. Stephens,
If plaintiff believed the jury meant to award special damages, it would have to obtain this correction to its satisfaction before the jury was discharged. See
Suber v. Fountain,
Defendants, on the other hand, apparently declined to seek a correction because they believed, as they argue on appeal, that the nominal damages were excessive. Whether they were or not is not properly before this court, because this defect, if it was such as a matter of law, would not be a basis for granting a directed verdict or a judgment notwithstanding the verdict. The remedy for defendants would be a motion for new trial. OCGA § 5-5-40.
King v. Loeb,
Thus, the trial court erred in granting judgment to defendants on *255 this ground. Avery v. K. I., Ltd., supra at 642. See also OCGA § 5-5-40 (h): “The court also shall be empowered to grant a new trial on its own motion within 30 days from entry of the judgment, ...” The most it could have done was to order a new trial. King v. Loeb, supra. OCGA § 9-11-50 (b): “If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” But a motion for new trial, which that Code section expressly allows to be filed with a motion for judgment notwithstanding the verdict, or new trial prayed for in the alternative to judgment notwithstanding the verdict, was not made.
Our opinion that the judgment notwithstanding the verdict could not be used to set aside the verdict for excessiveness of nominal damages, thus renders the judgment notwithstanding the verdict erroneous in this regard. Normally, “under these circumstances the appellate court then is in a position to simply reinstate the verdict.” Mayor &c. of Savannah v. Palmerio, supra, 422. That will be the result of our reversal if we conclude there is “some evidence,” which is what is required to support the jury’s verdict. Bryant v. Colvin, supra. A new judgment will then have to be entered by the trial court on the verdict. Of course, it may thereafter grant a new trial upon motion or on its own motion. OCGA § 5-5-40.
In this connection, we point out a defect in the verdict which we cannot cure and which could not be reached by a motion for directed verdict or judgment notwithstanding the verdict. It was not a ground for the trial court’s judgment, but the problem was apparently overlooked by the parties and the court and, if a new trial is granted, we caution against its recurrence. The verdict appears to be defective on its face because the claim for appropriating corporate business opportunity was against Diedrich alone, as a director of the plaintiff corporation. Only the latter two claims, unfair competition by trade name/ trade-mark infringement and unfair competition by hiring of all plaintiff’s Atlanta office emрloyees, were against both Diedrich and MWD. Neither the jury instructions nor the form verdict nor the written questions guided the jury to return separate verdicts as to the several causes of action, which was critical because all was not claimed against all.
Following the court’s directions, the jury’s verdict was against “the defendants,” and there is no way to determine whether it was thereby finding for Diedrich on the director claim (which would be authorized) or whether it was finding against both defеndants on that claim (which would not be authorized). If it was finding against Die-drich on that claim and against both defendants on the unfair competition claims (which would be authorized), there is a total absence of a designation of what portion of the verdict award is to be charged
*256
against Diedrich for appropriation as well as unfair competition (if he was found liable for both) and what portion against the corporation for unfair competition. The lаtter entity, of course, would not be liable in any amount for the tortious act of the director of another corporation. Since the verdict did not distinguish, no valid judgment could be entered thereon, and must be set aside. See
Four Oaks Homes v. Smith,
4. Another ground for the court’s grant of directed verdict and judgment was that the evidence did not warrant punitive damages being submitted to the jury. Such a matter would properly come within the scope of a motion for directed verdict and allow the court to eliminate punitive damages.
Quattlebaum v. Ga. Power Co.,
5. In another ground, the court concluded that Georgia does not recognize a common law right against trade-mark infringement and that defendant was therefore entitled to judgment on that ground. Although the order recited only the word “trade-mark,” it is clear that the court embraced in its ruling also the claim as to trade name. Plaintiff claimed that defendants used its nаme and logo without authority and therefore infringed on plaintiff’s rights to sole use thereof, and that this constituted unfair competition.
Protection of a trade name has been given in Georgia. When a case is made as to its infringement, its continued use may be enjoined.
Womble v. Parker,
While the cases cited involve the seeking of equitable relief to stop use, here plaintiff is seeking damages for use before it was stopped. Since Georgia has long recognized the right and provided a remedy to halt continued use, we see no reason for depriving a claimant in a proper case of the right to seek recovery for damage already sustained. As stated in the Atlanta Paper Co. case, supra at 211, “ ‘Every man has the right to use his own name reasonably and honestly in every way whether in a firm or corporation.’ ”
As to the use of the “logo,” if what is meant is a trade-mark or service mark, actions are limited to infringements of registered marks. OCGA §§ 10-1-450 and 10-1-451. There was no evidence that the trade-mark was registered. 7 Consequently, the court below was correct as to this question of law, as it related to trade-mark.
6. The last grounds to be considered are those which found deficiencies in the evidence which plaintiff was required to produce to establish a prima facie case on each claim.
First let us consider the issue of special damages. The court found the evidence lacking, as to eách count, in this regard. We need not address the merits of this for two reasons. One, the jury did not award special damages, so there is nothing to uphold or set asidе in this regard. Two, even if there was insufficient evidence of special damages, the defendants would not have been entitled to judgment. As discussed earlier, nominal damages would have been awardable so long as there is some proof of duty, breach, proximate cause, and “some actual loss” even if the damages are small or “not susceptible of reasonable certainty of proof as to their extent.” Ponce de Leon v. DiGirolamo, supra at 190. Even if there has been “no actual damage, the plaintiff can recover nominal damages which will carry the costs.” Bradley v. Godwin, supra at 784.
Next we reach whether plaintiff made out a prima facie case on any of the claims, as the trial court found that it did not, in certain particulars. In reviewing the grant of judgment notwithstanding the verdict we must view the evidence in the light most favorable to the party who secured the verdict and determine whether the evidence demanded the judgment notwithstanding the verdiсt or whether there was some evidence to support the jury’s verdict; if there is conflicting *258 evidence, a judgment for the opposite party is erroneous. Bryant v. Colvin, supra; Pendley v. Pendley, supra.
On each of the subjects concerning which the trial court found omissions, the evidence was in dispute. Much of it involved the credibility of the witnesses and the context in which actions were taken and language used. Much involved intent of the parties throughout the period of time the allegedly tortious acts occurred, when the relationship of the parties was itself in dispute and a gradual metamorphosis was occurring. We find that, in those instances in which the court below found no evidence, there was some. The matter thus rested with the jury.
Judgment reversed.
Notes
The foreman asked if he could elaborate on the verdict, which was denied.
This comports as well with the general view: “A foreign corporation is . . . entitled to the benefit of statutory or extraordinary remedies obtaining in the state where the suit is brought, unless there is something in the statute to exclude it. . . But a foreign сorporation doing business in the state will be held subject to the same limitation in taking advantage of a statutory remedy as is imposed upon a resident of the state.” Fletcher Cyc. Corp., § 8607 (Perm, ed.)
For discussions of the liabilities of corporate directors and officers in Georgia, see Baker, “Liability of Corporate Directors and Officers [and Shareholders] Under the Georgia Business Corporation Code,” 7 Georgia State Bar Journal 277 (Feb. 1971); Meeks and Jensen, “Usurpation of Corporаte Opportunities: Liabilities of the Former Officer or Director,” 18 Georgia State Bar Journal 150 (May 1982); Centner, “Georgia Business and Nonprofit Corporations — Directors’ Duties of Loyalty and Care,” 19 Georgia State Bar Journal 164 (May 1983); Note, “Southeast Consultants, Inc. v. McCrary Engineering Corp.: Georgia Opens the Door to Corporate Opportunity,” 33 Mercer L.R. 407 (1981).
For discussion of the development of nominal damages law in Georgia, see
Bradley v. Godwin,
Whether a new trial should be granted is not up to this court in the first instance, and the law provides that “[t]he first grant of a new trial shall not be disturbed by the appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and the facts require the verdict notwithstanding the judgment of the presiding judge.” OCGA § 5-5-50. See
Hicks v. American Interstate Ins. Co.,
As to whether the nominal damages were excessive, which we do not decide, Georgia applies a test of relativity rather than limiting them to a trivial sum. They may vary almost indefinitely, according to circumstances.
First Fed. Savings &c. Assn. v. White,
infra;
Ponce de Leon Condominiums v. DiGirolamo,
Plaintiff did not bring this count under OCGA §§ 10-1-372 or 10-1-373.