Winburn, Lewis & Barrow, P.C. v. Richardson

Blackburn, Judge,

concurring specially.

I agree that the judgment below must be affirmed, but write separately to address plaintiff’s claim that the trial court erred in entering judgment on the jury’s verdict.

In its second enumeration of error, plaintiff contends that the trial court erred in entering judgment on the verdict, because there was no evidence to support the jury’s finding that the parties did not *539intend for the term “value of proceeds of recovery” to include monies recovered from Bridges out of his share of the farm proceeds. In essence, plaintiff is contending that, even if it is not entitled to one-third of the entire proceeds from the sale of the farm, it is entitled to some recovery because, under the consent judgment, defendants received more than they would otherwise have been entitled to upon the sale of the farm. Plaintiff contends that this extra amount, coming out of Bridges’ share of the proceeds, constitutes a recovery for which it is entitled to a contingency fee.

Decided July 6, 1998 Reconsideration denied July 21, 1998 Cashin, Morton & Mullins, Harry L. Cashin, Jr., Troutman Sanders, Richard W. Gerakitis, Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellant. Stewart, Melvin & Frost, Frank Armstrong III, for appellee.

However, plaintiff did not move for a directed verdict on this specific ground. Moreover, plaintiff did not object to the special interrogatory submitting this issue to the jury. Accordingly, plaintiff cannot now complain of the trial court’s entry of judgment upon the jury’s special verdict on this issue. See Sun v. Bush, 179 Ga. App. 80, 81 (4) (345 SE2d 85) (1986) (party not entitled to judgment n.o.v. in absence of motion for directed verdict on issue); Knisely v. Gasser, 198 Ga. App. 795, 796-797 (1) (403 SE2d 85) (1991) (party waived claim that special verdict was inconsistent with evidence by failing to timely object to special verdict form).

I am authorized to state that Judge Eldridge joins in this opinion.