Aрpellee Manuel C. Ruiz filed a suit on a promissory note and for damages against Armour Alloy, Inc. and appellant Neil Shaw. After the filing of responses and counterclaims, a pretrial order was issued setting forth a succinct outline of the facts and contentions to be tried, as follows: Ruiz and Shaw were the co-owners of Armour Alloy, Inc. Ruiz sold his stock back to the corporation so that Shaw would be the sole owner in exchange for $20,000 cash and a promissory note in the amount of $50,000. Industrial Equipment Company, another corporation owned by Shaw which was added by amendment as a
1. Shaw contends that the trial court erred in failing to bifurcate the trial on the issue of punitive damages as required by OCGA § 51-12-5.1 (d) (2). The cаuse of action arose here subsequent to the effective date of the statute, and thus it should have controlled the trial procedure. However, this court has previously held that where this occurs a litigant cannot acquiesce in the form of the verdict used and then contest it on appeal.
Miles Rich Chrysler-Plymouth v. Massachusetts,
2. Likewise, no reversible error occurred because the trial court’s charge to the jury applied the principles found in OCGA § 51-12-5, which have been replaced by those enunciated in OCGA § 51-12-5.1. The judge specifically inquired at the end of his jury instructions if either counsel had any objections, and both attorneys stated that they had none. Such specific acquiescence waives any objections to the charge as given.
Von Hoff v. Carmichael,
There was no error in the charge so substantial as to be harmful as a matter of law, which would require our review under the exception set forth in OCGA § 5-5-24 (c).
Tahamtan v. Tahamtan,
3. Shaw insists that the trial court erroneously denied his motions for directed verdict on the issue of punitive damages because all legal theories pursuant to which the evidence was presented were based upon the old law in OCGA § 51-12-5, and the evidence was not adjusted to the new principles. For the reasons set forth above, there is no merit in this claim.
4. Shaw complains that the trial court erred in sustaining an objection on the ground of relevance when he asked Ruiz how hе got certain work in South America after he sold his stock and left Armour Alloy. Pretermitting any issue of whether such evidence was admissible for impeachment purposes, the trial transcript shows that this question was asked and answered in subsequent cross-examination, thereby curing and rendering harmless any error in sustaining the objection complained of.
Seay v. Urban Medical Hosp.,
5. Shaw protests the trial court’s overruling his objection based on lack of relevance to questions about whether he was initially unwilling to incorporate the partnership with Ruiz because of his ongoing divorce proceedings. The questions objected to alluded to a letter from Shaw’s attorney to his accountant, which wаs admitted in evidence without objection, explaining that in early 1985 Shaw “was not willing to incorporate because of his then hotly contested divorce.” Shaw testified only that he was not trying to hide anything from his wife and that he could not answer why his lawyer made the statement. “No other grounds for the objection appear in the record. Objections based on the irrelevancy of evidence are insufficient to show reversible error. [Cit.] Further, ‘(q)uestions of relevancy are within the domain of the trial court.’ [Cit.] The trial court did not abuse its discretion in allowing the testimony, and there was no reversible error.”
Davis v. Knight,
6. Shaw contends that the trial court incorrectly ruled that two invoices from а company in Cartersville, Georgia, to an individual in
7. In Enumerations 7 and 8, Shaw complains about the trial court’s sustaining an objection to his asking Ruiz to look at a stock purchase agreement and testify how much cash Armour Alloy had on a certain date. The trial transcript reveals that this document had already been introduced in evidence and there had been other testimony about it. There being competent evidence concerning the stoсk purchase agreement, the refusal to allow Ruiz’s testimony in this regard was not reversible error.
Ogletree v. Brokers South,
8. The trial court sustained an objection on the basis that a legal conclusion was called for when Shaw was asked if he felt Ruiz had “a responsibility for that equipment in South America and a responsibility for a portion of its payment, and if so, why?” Shaw suggests that this question does not call for a legal conclusion, but for an opinion which any lay person might be likely to have concerning business investments. “[W]hether a question calls for a legal conclusion^] or principally a fact which incidentally involves a legal word or phrase, is within the sound discretion of the trial court. [Cits.]”
Gage v. Tiffin Motor Homes,
9. Enumeration 10, which asserts error in the trial court’s refusal to admit a document which Shaw claimed would show Ruiz’s efforts to divert business away from Armour Alloy, is without merit. This
10. Shaw argues that the trial court erred in refusing to grant his motions for directed verdict as to his personal liability on the basis that the transactions involved were corporate undertakings. The trial judge denied thе motion on the grounds that material questions of fact existed as to whether Shaw used corporate funds to pay a personal debt and whether subsequent to entering into the stock purchase agreement Shaw transferred the assets of Armour Alloy to another corporation of which he was the sole stockholder; and thаt it was a jury question as to whether or not this action and conduct would warrant piercing the corporate veil and holding Shaw personally liable.
“When determining whether a trial court erred by denying a motion for a directed verdict, this court reviews and resolves the evidence and any doubts or ambiguities in favor of the verdict. A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions demands a certain verdict. OCGA § 9-11-50 (a);
Southern Store &c. Co. v. Maddox,
11. Shaw protests the trial court’s grant of Ruiz’s motion for directed verdict on two counts of Shaw’s counterclaim for breach of contract seeking damages for lost profits as a result of Ruiz’s alleged failure to use his best and reasonable efforts to generate sales. He argues that there is evidence of rеcord that Ruiz quit work before termination of an agency agreement to maintain sales at or above the level Armour Alloy had achieved in previous years; that there was evi
The evidence presented was insufficient to create any material issues of fact for jury resolution. The agreement expressly provided that Ruiz was not required to “devote all of his working time and efforts” to Armour Alloy’s business. To establish damages, Shaw could only estimate his profit margin to be 15 to 20 percent of gross sales and was unable to produce any past records of sales to substantiate the $79,154 in lost sales he claimed. The figures were based solely upon written and telephone inquiries Shaw testified he made to customers, and he admitted on cross-examination that the amount of $79,000 was gross sales from which he would have earned only $10,000 to $15,000 in profit.
“Ordinarily, anticipated profits are too speculative to be recovered, ‘but where the business has been established, has mаde profits and there are definite, certain and reasonable data for their ascertainment, and such profits (were) in the contemplation of the parties at the time of the contract, they may be recovered . . . even though they can not be computed with exact mathematical certainty.’ [Cit.] However, a claimant may recover lost profits ‘only if the business has a proven “track record” of profitability. The jury is not permitted to speculate as to what the allegedly lost profits might have (been). (Cit.)’ [Cits.]”
Empire Shoe Co. v. Nico Indus.,
“ ‘[T]o recover lost profits one must show the probable gain with great specificity as well as expenses incurred in realizing such prоfits. In short, the gross amount minus expenses equals the amount of recovery.’ [Cit.] Further, the losses must be directly traceable to the acts of the other party. [Cit.]”
Grossberg v. Judson Gilmore Assoc.,
12. A directed verdict was also granted as to Court 3 of the counterclaim for malicious interference with contractual relations and Count 5 alleging that Ruiz breached a covenant not to sue. Shaw contends this was erroneous because there was sufficient conflict in the evidence to raise a jury question on these issues. However, the transcript discloses that when the trial judge was considering the motion for directed verdict and offered to let Shaw present evidence on these
13. Shaw claims further error in the grant of directed verdict on Count 4 of the counterclaim in which he sought punitive damages. OCGA § 51-12-5.1 (b) permits the award of punitive damages only in tort actions where it is proved by clear and convincing evidence that the defendant’s actions showed wilful misconduct, malice, fraud, wantonness, oppression, оr that entire want of care which would raise the presumption of conscious indifference to consequences. The trial court correctly ruled that there had been no such evidence presented to authorize an award of punitive damages. Moreover, Shaw renewed his objection to the directed verdict only as to Counts 1 and 2 for breach of contract, and his lawyer agreed when the judge pointed out that even if these counts went to the jury punitive damages would not be authorized on a contract claim.
14. Shaw’s Enumeration 16, assigning error to the denial of his motion for judgment n.o.v., has not been argued in his brief and is in any event without merit. See
Stone v. Allen,
15. Shaw аsserts that the trial court improperly ruled that an amendment to his counterclaim filed on the first day of trial seeking return of funds he had paid Ruiz on the promissory note was a compulsory counterclaim under OCGA § 9-11-13 (a) because it arose out of the same transaction that was the subject matter of Ruiz’s suit. Shaw argues that the claim did not arisе until a factual determination was made whether Armour Alloy was insolvent at the time of the transaction, and under these peculiar circumstances the law should allow an amendment. However, Shaw did not seek leave of court to file the amendment.
As noted by the trial judge, the correct procedure for the late filing of a compulsory counterclaim is pursuant to OCGA § 9-11-13 (f), which provides that leave of court is necessary before an omitted counterclaim may be set up. Permitting the filing of such a counterclaim is within the discretion of the trial court.
Martin & Jones Produce v. Lundy,