concurring in part and dissenting in part.
I fully agree that the trial court correctly directed the verdict as to plaintiffs’ claim for OCGA § 13-6-11 attorney fees. However, regarding the claim for negligent construction, my analysis of both procedure and substance differs from that of my colleagues in the majority and so I respectfully dissent from the judgment insofar as it affirms the direction of the verdict on that claim.
In their first enumeration, plaintiffs contend the trial court erred in “refusing to charge the jury on plaintiffs’ theory of negligent construction,” arguing that a verdict for defendant was not demanded. I fully agree with the majority that any error in the refusal to charge the substance of plaintiffs’ contentions is moot after the direction of the verdict unless and until that directed verdict is set aside as erroneous. Unlike the majority, I would hold that the error enumerated is *860sufficient to authorize this court to determine the sufficiency of the evidence under the “any evidence” standard of OCGA § 9-11-50 (a), pursuant to the broad reach of OCGA § 5-6-48 (f). Even if the decision of the Supreme Court of Georgia in Adams-Cates Co. v. Marler, 235 Ga. 606 (221 SE2d 30) does not mandate that this court consider the underlying substance of the directed verdict, it is my view that, certainly that decision authorizes this court to do so.
When plaintiffs put their expert, Mr. Mandato, on the stand, they questioned him as to his years of home repair/home improvement experience in the locality but they never formally tendered him as an expert witness. Defendant did not cross-examine Mr. Mandato as to his credentials nor did it make any contemporaneous objection to the lack of his qualifications as an expert witness. Neither did defendant move to strike Mr. Mandato’s testimony on the ground that it was incompetent. Instead, at the close of plaintiffs’ case, defendant moved for a directed verdict.
“ ‘The record as it exists at the close of the trial controls as to whether the verdict should be directed and as to whether motion for judgment notwithstanding verdict should be granted.’ Wooten v. Life Ins. Co. of Ga., 93 Ga. App. 665, 670 (92 SE2d 567).” DeLoach v. Myers, 215 Ga. 255, 256 (1) (109 SE2d 777). “ ‘Under this rule the trial court may not on motion for [directed verdict or] judgment notwithstanding the verdict eliminate evidence on the ground that it was improperly received at the trial and then dispose of the case on the basis of the diminished record.’ [Cits.]” Wooten v. Life Ins. Co. of Ga., 93 Ga. App. 665, 670 (on rehearing), supra. It follows that a motion for directed verdict is not an authorized vehicle to challenge the competency of expert opinion testimony on the ground that the witness was not tendered as an expert. Consequently, it is my view that the majority errs in holding that the discretion of the trial court in qualifying a witness as an expert under OCGA § 24-9-67 (when the question is raised for decision) is so broad as to permit the trial court, of its own motion, silently and without notice to the adverse party, to strike the testimony of a witness who has testified without objection but who was not formally tendered as an expert.
In the whole court decision of Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 574 (2), 575 (396 SE2d 562), this court found a waiver of any challenge to the qualifications of an expert witness on the following ground: “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the party might have had.” (Citations and punctuation omitted.) In the case sub judice, defendant made no contemporaneous challenge to Mr. Mandato’s credentials as an expert in residential construction. Accordingly, it is my view that, any foundation objection thereto was waived. Truck Parts *861&c. v. Rutledge, 211 Ga. App. 166 (1) (438 SE2d 404). Since defendant waived its foundation objection to Mr. Mandato’s opinion evidence by permitting its introduction without objection, that opinion evidence should be treated as “altogether competent” under the holding of the Supreme Court of Georgia in Patton v. Bank of LaFayette, 124 Ga. 965, 973 (7), 974 (53 SE 664). It is my view that the trial court would abuse any discretion it may possess by excluding, sua sponte, unobjected-to evidence on a ground which had been waived by the party adversely affected by that evidence.
Defendant’s motion for directed verdict was made, in part, on the ground that “I don’t think that they established a professional standard of care under a negligent construction theory, even for those items that the garage insulation and the slab that Mr. Mandato talked about. ...” The trial court directed the verdict as to negligent construction, concluding “there was no testimony to what the standard within the industry with regard to the care — necessary care or degree of workmanship, et cetera, and that these matters were less than that standard.”
A claim for negligent construction “arises in tort and exists independently of any claim for breach of contract. Sam Finley, Inc. v. Barnes, 156 Ga. App. 802 (1) (275 SE2d 380) (1980).” Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522 (1a) (428 SE2d 426). “ ‘The law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession. [Cits.]’ [Cits.] ‘In a proper case the question of whether the defendant exercised the required degree of skill is, like any other question of fact, to be decided by the jury.’ Mauldin v. Sheffer, 113 Ga. App. 874, 880 [(150 SE2d 150)].” Howell v. Ayers, 129 Ga. App. 899, 900 (1) (202 SE2d 189). “In an action against a builder, ‘(i)t is essential to present competent evidence as to the acceptability of specific professional conduct.’ Coursey Bldg. Assoc. v. Baker, [165 Ga. App. 521, 523 (2) (301 SE2d 688)].” Hudgins v. Bacon, 171 Ga. App. 856, 857 (1), 859 (321 SE2d 359). To qualify as an expert within the purview of OCGA § 24-9-67, “ ‘generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study. (Cits.)’ ” Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521, 522 (1), supra.
In the case sub judice, plaintiffs’ witness, Mr. Mandato, lives in Doraville, Georgia, and “[renovates] homes and [does] home repairs.” He started in this business “with [his] family growing up and [has] been doing ever since.” During the past 15 years, he has worked on *862“[t]housands” of home improvement projects, covering “ [everything that has to be done with the home, except heating and air.” Mr. Mandato inspected plaintiffs’ house, described numerous flaws in the workmanship, offered solutions, and gave his estimation of the costs of the necessary remedial work. “The record is replete with evidence of [defendant’s] mistakes and inefficiencies in building [plaintiffs’ residence], as well as [plaintiffs’ steps] to rectify the problems created thereby.” Savannah Indus. Constr. &c. v. Sumner, 189 Ga. App. 319, 320 (375 SE2d 486). It is true that, in the case sub judice, Mr. Mandato never uttered the phrase: “I am familiar with the degree of reasonable care, skill, and ability which is generally taken to be that degree of care and skill as is ordinarily employed by residential contractors under similar conditions and like surrounding circumstances, and defendant failed to meet that standard in the following particulars. . . .” Nevertheless, Mr. Mandate’s testimony was “competent evidence as to the acceptability [or unacceptability] of specific professional conduct.” Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521, 523 (2), supra. Accordingly, in the absence of a timely objection, I would hold that these repeated references to deviations from good construction practice were sufficient to establish a prima facie case of negligent construction. See Shaw v. Petersen, 180 Ga. App. 823, 824 (1) (350 SE2d 831). See also White Repair &c. Co. v. Daniel, 171 Ga. App. 501 (1), 502 (320 SE2d 205). The jury would not “be left to speculate too freely on what constitutes actionable negligence,” based upon this evidence. Hudgins v. Bacon, 171 Ga. App. 856, 857 (1), 859, supra. In my view, the trial court erred in directing the verdict for defendant on plaintiffs’ claim of negligent construction, as the “evidence here did not demand a finding that the . . . construction work was performed with a reasonable degree of care, skill and ability.” Howell v. Ayers, 129 Ga. App. 899, 900 (1b), supra. Accordingly, I respectfully dissent from that portion of the judgment affirming the direction of the verdict as to this claim.
Decided December 5, 1994 Reconsideration denied December 20, 1994 William R. Hurst, for appellants. T. Tucker Hobgood, T. Gabriel Hotard, Jr., for appellee.I am authorized to state that Judge Blackburn joins in this opinion.