Brunswick Floors, Inc. v. Shuman

Beasley, Judge,

dissenting.

I respectfully dissent because both the majority and the responding dissent address an issue in Division 1 which is not properly before us. Thus a gratuitous ruling is made.

Appellant’s enumeration of error is that “the trial court erred on the issue of submitting attorney’s fees for the appellees to the jury.” Neither in its motion for directed verdict on attorney fees, nor even in its motion for judgment notwithstanding the verdict, did counter-defendant raise the issue of whether or not there was sufficient competent evidence of the amount of attorney fees for that element of damages to be submitted to the jury. Moreover, it expressly stated that it had no exceptions to the jury charge, which included instructions on attorney fees, and it agreed that the verdict form did not need a separate space for this element of damages because it could be included in the lump sum, if there were to be any. The first time the question emerges is in appellant’s brief, midway through its argument on the first enumeration of error. Thus the trial court cannot be faulted for failing to consider and rule insufficient the evidence of the amount of attorney fees presented by counter-claimant.

It is true that counter-defendant objected to the jury’s being permitted to consider that element of damages. However, the primary ground of the objection was that there was no evidence of bad faith, stubborn litigiousness, or unnecessary trouble and expense. In other words, he challenged the sufficiency of evidence on the underlying or substantive basis for attorney fees, not the sufficiency of evidence for non-speculative computation of the resulting damages. He also raised another ground, that a counter-claimant cannot recover attorney fees, but that is not pursued here.

The quotation in the majority opinion is an excerpt of a long quotation which counsel asked to read into the record in support of the already-argued ground that there was no evidence of one of the three statutory bases for attorney fees. It comes from Cobb & Eldridge, Ga. Law of Damages (1st ed.), § 9.1. He had already cited the treatise section for the position earlier advanced, and this recitation of a portion of the section as authority for it did not constitute the *367raising of another ground, just because reading the general quotation unbroken made mention of a principle of law not asserted as having been unmet.

Decided December 4, 1987 Rehearing denied December 17, 1987 John T. McKnight, Jr., for appellant. Richard D. Phillips, 0. Dale Jenkins, for appellees.

The point is that the ground ruled on in Division 1 was not raised or ruled on by the trial court, because no issue was made of it. Consequently there was no ruling on the question and there is nothing for us to review in this regard. Haldi v. DeKalb County Bd. of Tax Assessors, 178 Ga. App. 521, 526 (4) (344 SE2d 236) (1986); Burbridge v. State, 182 Ga. App. 864 (2) (357 SE2d 279) (1987).

That precludes consideration of it. As stated succinctly in Kingston v. State, 127 Ga. App. 660, 661 (2) (194 SE2d 675) (1972); “Grounds which may be considered on appeal are limited to those which were urged before the trial court.” In reviewing the scope of our function in MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (275 SE2d 142) (1980), the Court summarized: “[W]e will review and correct only such error as was made by the trial court, and only on the specific basis on which it was presented to the trial judge.” See also Proffitt v. State, 181 Ga. App. 564, 566 (2) (353 SE2d 61) (1987).