concurring in part and dissenting in part.
I agree with all that is said in Divisions 1 and 2 of the majority opinion. However, I respectfully dissent as to Division 3 as it is my view that Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793 (2) (298 SE2d 533), does not require a new trial.2
In Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793 (2), supra, Volkswagen Central sold a car to the Lawhorns informing them that the vehicle’s doors, roof and rear quarter panel had been repaired. Volkswagen Central did not tell the Lawhorns that the car had been totally rebuilt and the Lawhorns sold the car to Hubacher without disclosing that the car had been damaged. Hubacher later discovered that the vehicle had been totally rebuilt and sued the *14Lawhorns and Volkswagen Central for fraud. A jury returned a verdict for Hubacher, awarding actual damages, punitive damages and attorney fees. However, the trial court granted Volkswagen Central’s motion for judgment n.o.v. and, on appeal, this court affirmed, holding that Hubacher could not recover against Volkswagen Central because Hubacher did not rely on the fraudulent representations of Volkswagen Central. Id. at 792 (1). This court then held that the award of punitive damages and attorney fees against the Lawhorns “cannot stand undisturbed” since the award of punitive damages and attorney fees may have been erroneously based, in whole or in part, upon the malignant conduct of Volkswagen Central. Id. at 793 (2). The Hubacher panel then affirmed the judgment upon condition that Hubacher write-off the jury’s award of punitive damages and attorney fees or face a new trial, apparently on all issues.
Decided July 8, 1993 Reconsideration denied July 30, 1993 Alderman, Green & Hamby, Brady D. Green, for appellants. Hartley, Rowe & Fowler, Joseph H. Fowler, for appellees.It is my view that the logic in Hubacher v. Volkswagen Central, 164 Ga. App. 791, supra, does not control the case sub judice. In Hubacher, the tortious conduct of Volkswagen Central and that of the Lawhorns were completely separate and distinct, i.e., Volkswagen Central misled the Lawhorns and the Lawhorns misled Hubacher. However, in the case sub judice, there is no evidence that Barbara T. Roberts committed a tortious act which could have in any way confused the jury’s verdict. The jury’s award of punitive damages and attorney fees could therefore have only been attributable to the tortious conduct of Frank Roberts.3 Consequently, it is my view that a new trial is not warranted. In fact, my assessment of the record reveals that another trial will be nothing more than a replay of evidence already heard and considered by the finder of fact.
Since the jury’s verdict as to punitive damages and attorney fees is authorized by the evidence, I would affirm the judgment entered upon the jury’s verdict.
I note that Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793 (2), supra, is a two-judge decision and is therefore not mandatory authority.
The testimony of Frank Roberts and Barbara T. Roberts reveals that the defamatory conduct of Frank Roberts was stirred, in whole or in part, by animosity and anxiety of Barbara T. Roberts, allegedly brought on by odious conduct by Thad Lane and the Robertson boys. This evidence may authorize a finding that Barbara T. Roberts excited her husband to anger, but it does not show that she was a participant in the defamatory conduct of Frank Roberts.