I.A. Group, Ltd. Co. v. Rmnandco, Inc , 346 Ga. App. 396 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 19, 2018
In the Court of Appeals of Georgia
A18A0578. I. A. GROUP, LTD, et al. v. RMNANDCO, INC.
DILLARD, Chief Judge.
I. A. Group Limited Company and Stephan Fitch (collectively, “the
appellants”) appeal the trial court’s denial of their motion for summary judgment in
RMNANDCO, Inc.’s action against them, in which it asserted various business-
related tort claims, as well as the trial court’s reinstatement of a damages award to
RMNANDCO, which had been reversed by this Court in a prior appeal. Specifically,
the appellants argue that the trial court erred in denying their motion for summary
judgment because RMNANDCO lacked standing to bring direct claims against them
and the trial court was unauthorized to reinstate the judgment. For the reasons set
forth infra, we affirm in part, reverse in part, and remand the case with direction.
When this case was previously before us in I. A. Group Co. v. RMNANDCO,
Inc.1 (“I. A. Group I”), we reversed a jury verdict in favor of RMNANDCO because
the trial court erroneously instructed the jury on joint and several liability, rather than
on apportionment.2 In the case giving rise to I. A. Group I, RMNANDCO sued I. A.
Group, Fitch, CX5 Capital Corporation, and Christopher Collins3 (collectively, “the
defendants”), asserting several claims, including breach of fiduciary duty, fraud, and
violations of the Georgia Racketeer Influenced and Corrupt Organizations Act
(“RICO”).4 Due to discovery abuses by the defendants, the trial court struck their
answers, counterclaims, and third-party complaints, and entered a default judgment
as to liability on all counts.5 As a result of the default judgment, the only issue
remaining for trial was a determination of unliquidated damages.6 Following a jury
trial solely on damages, the jury awarded $2,500,000 in compensatory damages,
1
336 Ga. App. 461 (784 SE2d 823) (2016).
2
See id. at 462-64 (1).
3
Collins and CX5 Capital Corporation are not parties to the instant appeal, nor
were they parties in I. A. Group I. See I. A. Group I, 336 Ga. App. at 461 n.1.
4
See I. A. Group I, 336 Ga. app. at 461.
5
See id.
6
See id.
2
jointly and severally against the defendants, as well as attorney fees.7 And finding
specific intent to harm, the jury also awarded $10,000,000 in punitive damages
against Fitch.8 Thereafter, each defendant retained new counsel and filed separate
motions for new trial, all of which were denied.9
I. A. Group and Fitch appealed, raising several arguments, including that the
damages award must be reversed because the trial court improperly instructed the jury
that damages should be awarded jointly and severally among the four defendants,
rather than based on apportionment of fault.10 In I. A. Group I, this Court agreed that
the jury instruction was erroneous, holding that I. A. Group, Fitch, and the other
defendants were entitled to a new trial.11 And given our reversal of the final judgment
and remand for a new trial, we did not address most of I. A. Group’s remaining
enumerations of error.12 On remand, the appellants filed a motion for summary
7
See id.
8
See id.
9
See id.
10
See id. at 462 (1).
11
See id. at 464 (1).
12
See id. Specifically, in I. A. Group I, we characterized the appellants’ claims
of error as follows:
3
judgment, arguing that RMNANDCO’s claims must be dismissed as a matter of law
because the well-pleaded facts in its complaint and amended complaint establish that
this lawsuit should have been brought as a derivative action, rather than a direct
action. But before the trial court ruled on that motion, RMNANDCO filed a motion
to reinstate the original damages award and hold a new trial solely for the jury to
[The appellants] contend that the trial court erred in its jury instructions
and jury verdict form because the jury should have been instructed on
apportionment of damages rather than joint and several liability; in
prohibiting them from challenging issues related to liability and
damages; in admitting hearsay evidence of damages over objection; and
in failing to rule on their motion for arbitration. Id. at 461.
Then, in a footnote, we further explained:
RMNANDCO contends that damages may not be apportioned under
RICO, and I A. Group and Fitch contend that RMNANDCO’s complaint
is not well-pleaded because this should have been brought as a
derivative action rather than direct. As these matters are not central to
our decision, we do not address them on appeal and leave them for the
trial court to address in the first instance should they be raised during the
new trial proceedings. See id. at 464 (3) n.6.
Other than the apportionment error, the only other issue addressed by this Court was
the appellants’ claim that the trial court erroneously failed to rule on their motion for
arbitration, and we rejected that claim. See id. at 464 (2).
4
apportion those damages among the defendants. This motion was based on a decision
issued by the Supreme Court of Georgia after our decision in I. A. Group I, but before
the new trial ordered by this Court was held by the trial court.
Specifically, following I. A. Group I, the Supreme Court of Georgia decided
Martin v. Six Flags Over Georgia II, L.P.,13 in which it addressed the appropriate
means for correcting a trial court’s apportionment error when there are no other
outstanding issues.14 Ultimately, our Supreme Court concluded that the apportionment
error in Martin required a new trial only on apportionment, rather than a new trial on
liability and damages.15 So, relying on Martin, RMNANDCO argued to the trial court
that, despite our reversal of the jury’s verdict and grant of a new trial on damages, it
should reinstate the judgment and hold a new trial solely for the jury to apportion the
compensatory damages among the defendants. And following a hearing, the trial
court issued an order, denying I. A. Group’s motion for summary judgment, granting
RMNANDCO’s motion to reinstate the prior judgment, and scheduling the case for
retrial solely on the issue of apportionment. Thereafter, the trial court granted the
13
301 Ga. 323 (801 SE2d 24) (2017).
14
See id. at 336-40 (III).
15
See id.5
appellants’ request for a certificate of immediate review. We then granted the
appellants’ petition for an interlocutory appeal, and this appeal follows.
1. The appellants first argue that the trial court erred in denying their motion
for summary judgment because RMNANDCO’s complaint and amended complaint
establish that it was required to bring a derivative, rather than a direct, action against
them, and thus, the default judgment did not result in their admission of liability. We
disagree.
When, as here, a question of law is at issue we “owe no deference to the trial
court’s ruling and apply a de novo standard of review.”16 Further, while the appellants
couch their argument in terms of the sufficiency of the allegations in the complaint
and amended complaint, whether a shareholder plaintiff is authorized to bring a direct
action is, of course, a matter of standing.17 And as we have explained, a derivative suit
16
Venable v. SunTrust Bank, 335 Ga. App. 344, 345 (780 SE2d 793) (2015)
(punctuation omitted).
17
See, e.g., Grace Bros. v. Farley Indus., Inc., 264 Ga. 817, 818 (1) (450 SE2d
814) (1994) (“The law is well settled that a former shareholder in a merged
corporation has no standing to maintain a shareholder’s derivative action.”);
Crittenton v. Southland Owners Ass’n, Inc., 312 Ga. App. 521, 525 (2) (718 SE2d
839) (2011) (holding that because the plaintiffs’ claims were derivative in nature,
they had “no standing to bring a direct action based on those claims”); Haskins v.
Haskins, 278 Ga. App. 514, 520 (2) (629 SE2d 504) (2006) (holding that a
shareholder of a company no longer had standing to bring a derivative action because
6
is brought “on behalf of [a] corporation for harm done to it and any damages
recovered are paid to the corporation.”18 Thus, to have standing to sue individually,
rather than derivatively on behalf of the corporation, the plaintiff must “allege more
than an injury resulting from a wrong to the corporation.”19 In this respect, the
Supreme Court of Georgia has held that “[t]he failure to assert a plaintiff’s alleged
lack of standing prior to the entry of judgment results in the waiver of such
he had redeemed his shares in the company); Parks v. Multimedia Techs., Inc., 239
Ga. App. 282, 288 (520 SE2d 517) (1999) (affirming the trial court’s finding that a
shareholder had “standing to pursue direct claims against [the defendant] for breach
of fiduciary duty, misappropriation of corporate opportunities, conversion, and
tortious interference”).
18
Southland Propane, Inc. v. McWhorter, 312 Ga. App. 812, 816 (1) (720 SE2d
270) (2011) (punctuation omitted); accord Sw. Health & Wellness, L.L.C. v. Work,
282 Ga. App. 619, 624 (2) (b) (639 SE2d 570) (2006).
19
McWhorter, 312 Ga. App. at 816 (1); accord Crittenton, 312 Ga. App. at 524
(2).
7
defense.”20 In one case, our Supreme Court explained the reasons for allowing the
waiver of a standing objection as follows:
The timely assertion of a standing defense is necessary to prevent
precisely what happened here. Discovery, a pretrial conference and
order, and a fairly lengthy trial consumed judicial as well as private
resources unnecessarily, if plaintiff had no capacity to pursue this claim.
It is primarily a threshold question and generally collateral to the real
issues. The object of lawsuits is to resolve merits of disputes, not to
engage in a meaningless frustration of them.21
Additionally, the purpose of requiring that affirmative defenses be pleaded is to
“prevent surprise and to give the opposing party fair notice of what he must meet as
20
Lewis v. Van Anda, 282 Ga. 763, 765 (1) (653 SE2d 708) (2007); see
Calliope Props., LLC v. Fulton Cty. Bd. of Assessors, 313 Ga. App. 795, 796 (723
SE2d 34) (2012) (holding that the defendant waived any opposition to the plaintiff’s
standing as the real party in interest because the issue was not raised until after the
trial court entered a judgment on the merits of the case); Rome Hous. Auth. v. Allied
Bldg. Materials, Inc., 182 Ga. App. 233, 237 (2) (355 SE2d 747) (1987) (holding that
a “real-party-in-interest” objection was waived when it was raised for the first time
following judgment in a motion for a new trial); Dorsey Heating & Air Conditioning
Co. v. Gordon, 162 Ga. App. 608, 610 (292 SE2d 452) (1982) (holding that a trial
court erred in directing a verdict in favor of the defendant based on a plaintiff’s lack
of standing when that defense was not properly raised in a pleading).
21
Lewis, 282 Ga. at 765 (1) (punctuation omitted), quoting Adams v. Cato, 175
Ga. App. 28, 28 (1) (332 SE2d 355) (1985).
8
a defense.”22 Thus, if it is not pleaded, it is “generally held that the [standing] defense
is waived.”23
Here, when the default judgment as to liability was entered, all of the
responsive pleadings in which the appellants could have raised a standing defense
were stricken as a sanction for discovery violations. And regardless, none of those
pleadings specifically asserted, as I. A. Group does now, that RMNANDCO was
required to bring its claims in a derivative-shareholder’s action. Indeed, while Fitch’s
amended answer—which again, was also stricken—asserted generally that
RMNANDCO lacked standing to sue, he did not provide any specific basis for that
claim. Furthermore, after the trial court entered the default judgment, the appellants
filed motions to vacate the judgment, but neither I. A. Group nor Fitch argued that the
judgment should be vacated due to RMNANDCO’s lack of standing. Instead, they
both argued that the judgment should be vacated because they had made diligent
efforts to comply with discovery requests. But ultimately, the default judgment was
22
Early v. MiMedx Grp., Inc., 330 Ga. App. 652, 655 (1) (a) (768 SE2d 823)
(2015) (punctuation omitted); accord Hardy v. Ga. Baptist Health Care Sys., Inc.,
239 Ga. App. 596, 596 (1) (521 SE2d 632) (1999).
23
Early, 330 Ga. App. at 655 (1) (a) (punctuation omitted); accord Hardy, 239
Ga. App. at 596 (1).
9
not vacated, and this Court denied I. A. Group’s application for an interlocutory
appeal from that judgment. Given these particular circumstances, the appellants
waived their standing defense by failing to raise it prior to the entry of the default
judgment.24
In their reply brief, the appellants appear to concede that the first time they
raised their standing argument was on appeal to this Court in I. A. Group I following
the default judgment and the jury verdict on damages. But they contend that their
liability has not been established because a default judgment “operates only as a
24
See Gerschick & Assocs., P.C. v. Pounds, 266 Ga. App. 852, 855 (1) (a) (598
SE2d 522) (2004) (“[T]he failure to assert this affirmative defense in an answer or
motion prior to suffering a default judgment acts as a waiver of the defense.”
(punctuation omitted)); Dunn v. Ceccarelli, 227 Ga. App. 505, 509 (1) (a) n.4 (489
SE2d 563) (1997) (“If the defendant does not assert that the claim was derivative, the
court may treat the action as properly brought.” ) (physical precedent only); see also
supra notes 20-23 & accompanying text. But see Dunaway v. Parker, 215 Ga. App.
841, 845 (1) (453 SE2d 43) (1994) (addressing and ruling upon the propriety of the
plaintiff’s direct action when it was not raised until a motion for a new trial following
the verdict “since interests other than those of defendant are at stake, i.e., the rights
of corporate creditors and possibly shareholders not parties to [the] action”). We note
that, unlike in Dunaway, the appellants, here, first raised their standing defense on
appeal in I. A. Group I, but did not raise their standing argument in the trial court
until after this Court had already affirmed the default judgment in I. A. Group I. See
Hart v. Groves, 311 Ga. App. 587, 588 (1) (716 SE2d 631) (2011) (“This is a Court
for correction of errors below, and, in the absence of a ruling by the trial court, this
Court has nothing to review.” (punctuation omitted) (emphasis supplied)).
10
defendant’s admission of the truth of a complaint’s well-pleaded allegations.” But as
previously explained, whether a plaintiff can maintain a direct, rather than derivative,
lawsuit against a defendant is a matter of standing, not a matter of whether a
complaint is sufficient to state a valid claim. And the appellants have never argued
that the complaint failed to adequately plead the elements of any particular claim,
including when they moved to vacate the default judgment or when they appealed the
judgment in I. A. Group I. Regardless of how the appellants characterize their claim
of error, in substance, they challenge RMNANDCO’s standing to sue, and as
explained supra, standing defenses are waived if they are not asserted prior to the
judgment.25
Nevertheless, the appellants further argue they should be permitted to challenge
RMNANDCO’s standing at this late stage in the litigation because I. A. Group I
reversed the default judgment and specifically instructed the trial court to consider
whether RMNANDCO could maintain a direct action against them. They are
mistaken. Indeed, there is nothing in I. A. Group I to suggest that this Court reversed
the default judgment on liability or that the new trial would exceed the scope of the
25
See supra notes 20-24 & accompanying text. Cf. Robinson v. Glob. Res., Inc.,
300 Ga. App. 139, 140 (684 SE2d 104) (2009) (noting that this Court evaluates
pleadings by their content not by their name).
11
original trial, which was limited to the issue of damages. In I. A. Group I, this Court
did not even address the validity of the default judgment or the propriety of the
sanctions that gave rise to the judgment.26 The sole basis for our reversal of the
damages award was an erroneous jury instruction on the allocation of damages, which
had no bearing on the default judgment or the trial court’s imposition of sanctions.27
Although the judgment line of I. A. Group I merely said “reversed,” the
substance of the opinion made clear that only the damages award was being
reversed.28 Indeed, in ruling on the apportionment error in I. A. Group I, this Court
rejected the appellants’ argument that a jury could not apportion fault because “no
trier of fact determined the defendants’ respective fault in the entry of the default
judgment.”29 In doing so, we explained that
[w]hile it is correct that a default concludes the defendant’s liability and
estops him from offering any defenses which would defeat the right of
recovery, and that any argument that goes to liability for the damages
and not the amount of damages awarded is not permitted, assessment of
26
See generally I. A. Group I, 336 Ga. App. at 462-64 (1).
27
See generally id.
28
See generally id.
29
Id. at 463 (1).
12
fault for purposes of apportioning damages between the defendants in
the instant context does not violate that rule.30
Thus, because we held that apportionment of fault was still permitted, even though
liability had been established in a default judgment, rather than by a trier of fact, we
necessarily affirmed the trial court’s imposition of sanctions and the resulting default
judgment.
The appellants rely heavily on a footnote in I. A. Group I, in which this Court
acknowledged the appellants’ standing argument and noted that the trial court could
address it upon remand if it was raised in the new-trial proceedings,31 but we did not
address the merits of the claim or whether it had been waived.32 We simply declined
to address the issue. If this Court had reviewed the appellants’ standing argument, we
would have reviewed the record, followed our well-established precedent, and
deemed the standing defense waived because it was neither raised nor ruled upon in
30
Id. at 463-64 (1) (punctuation and citations omitted).
31
See id. at 464 (3) n.6; supra note 12.
32
See id. at 464 (3) n.6.
13
the trial court prior to I. A. Group I.33 And because the appellants’ motion for
summary judgment was summarily denied, it is unclear whether the trial court
rejected the motion on the merits or denied it because the appellants’ standing defense
had been waived. But we conduct a de novo review of the law and the evidence when
considering a trial court’s grant or denial of a motion for summary judgment, and
“affirm the court’s grant of the motion if it is right for any reason.”34 Thus, regardless
of the trial court’s reasoning for denying the appellants’ motion for summary
judgment, it did not err in doing so for the reasons discussed in this opinion.
2. The appellants next argue that the trial court erred by reinstating the damages
award, even though it had been reversed by this Court, and finding that, based on the
Supreme Court of Georgia’s decision in Martin,35 only a new trial on apportionment
was required. We agree.
33
See Pfeiffer v. Ga. Dep’t of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389)
(2002) (“[O]ur appellate courts are courts for the correction of errors of law
committed in the trial court. Routinely, this Court refuses to review issues not raised
in the trial court. . . . Fairness to the trial court and to the parties demands that legal
issues be asserted in the trial court. . . . Therefore, absent special circumstances, an
appellate court need not consider arguments raised for the first time on appeal.”
(punctuation and footnotes omitted)).
34
Georgia-Pac., LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013).
35
See supra note 13.
14
Specifically, the appellants raise several arguments, including that regardless
of whether Martin applies to the facts of this case, the trial court and this Court are
bound by our reversal of the judgment because I. A. Group I is “law of the case.” In
relevant part, the Supreme Court of Georgia has explained that
[u]nder the ‘law of the case’ rule, any ruling by the Supreme Court or
the Court of Appeals in a case shall be binding in all subsequent
proceedings in that case in the lower court and in the Supreme Court or
the Court of Appeals, as the case may be. Georgia’s appellate courts are
required to adhere to the law of the case rule in all matters which they
consider.36
36
Hicks v. McGee, 289 Ga. 573, 577-78 (2) (713 SE2d 841) (2011)
(punctuation omitted); accord Sec. Life Ins. Co. of Am. v. Clark, 273 Ga. 44, 46 (1)
(535 SE2d 234) (2000). This principle of law is codified at OCGA § 9-11-60 (h),
which provides that
[t]he law of the case rule is abolished; but generally judgments and
orders shall not be set aside or modified without just cause and, in
setting aside or otherwise modifying judgments and orders, the court
shall consider whether rights have vested thereunder and whether or not
innocent parties would be injured thereby; provided, however, that any
ruling by the Supreme Court or the Court of Appeals in a case shall be
binding in all subsequent proceedings in that case in the lower court and
in the Supreme Court or the Court of Appeals as the case may be.
(Emphasis supplied).
15
And even when the law subsequently changes, “appellate rulings remain binding as
between parties to a case, so long as the evidentiary posture of the case remains
unchanged, despite all contentions that prior rulings in the matter are erroneous.”37
Put another way, even “[i]f the decision of an appellate court thereafter becomes
‘incorrect’ because the law changes—either because of subsequent case law or
because of later-enacted statutes—it may not be binding precedent for other
situations[,] [but], . . . between the parties to the original decision it remains the law
of the case.”38
As previously explained, Martin was decided following I. A. Group I, but
before the trial court conducted the new trial ordered by us in this case. And Martin,
similarly to I. A. Group I, held that there was an apportionment error at trial and
37
Hicks, 289 Ga. at 578 (2) (punctuation omitted); accord Clark, 273 Ga. at 46(1); see Rymer v. Polo Golf & Country Club Homeowners Ass’n, Inc., 335 Ga. App.
167, 170 (1) (a) (780 SE2d 95) (2015) (“If . . . subsequent to an appellate decision,
the evidentiary posture of the case changes in the trial court, the law of the case rule
does not limit or negate the effect that such change would otherwise mandate. The
posture of the case can be changed by an amendment to the complaint or by the
submission of additional evidence.” (punctuation and citation omitted)).
38
See Atlanta Women’s Health Grp., P.C. v. Clemons, 299 Ga. App. 102, 106
(681 SE2d 754) (2009) (punctuation omitted); accord Fulton-DeKalb Hosp. Auth. v.
Walker, 216 Ga. App. 786, 787 (1) (456 SE2d 97) (1995).
16
remanded the case for further proceedings.39 In Martin, the Supreme Court affirmed
the jury’s verdict as to liability and damages and remanded the case for a retrial solely
for the apportionment of those damages.40 But in I. A. Group I, without the benefit of
Martin, this Court affirmed the default judgment as to liability, reversed the damages
award, and remanded the case for a new trial on damages with instructions that the
trial court properly charge the jury on apportionment.41 Nevertheless, upon remand,
the trial court reinstated the damages award based on its finding that, in light of
Martin, it need only impanel a jury to apportion the damages that had already been
awarded to RMNANDCO.42
39
See Martin, 301 Ga. at 341 (III); I. A. Group I, 336 Ga. App. at 464 (1).
40
See Martin, 301 Ga. at 341 (III).
41
See I. A. Group I, 336 Ga. App. at 464 (1).
42
To its credit, the trial court expressed uncertainty as to its decision to
reinstate a judgment that had been reversed by this Court:
As a judge, I want to do the right thing. It’s my job to get it right. And
obviously the Court of Appeals has told us what they think and we’ve
got the Supreme Court with the Martin decision. I disagree on that. I
think with the issues in front of me, I would like some guidance from the
appellate courts. I really would. Because what we . . . don’t want to do
is keep trying the case over and over. I want to get it right. So I think
there’s some validity in [RMNANDCO’s] request [to reinstate the
17
In this appeal, the parties disagree as to whether Martin is sufficiently
distinguishable from the facts and circumstances of this case such that reinstatement
of the verdict was unauthorized. But we need not decide that issue. Indeed, even if
the facts and circumstances of this case were exactly like those in Martin (which they
are not) and the holding in Martin renders our decision to grant a new trial in I. A.
Group I incorrect, we are still bound by our prior decision in this case between these
parties to grant a new trial on damages because it is law of the case.43
The only circumstance in which we are not bound by any previous ruling in the
same case is when the evidentiary posture changes in the trial court.44 Here, although
RMNANDCO argues at length that we should not follow I. A. Group I and affirm the
judgment]. So what I will do is this: I will deny the motion for summary
judgment. I will reinstate the judgment[,] and I will grant your
reinstatement and immediate review and take both issues up [to the
Court of Appeals]. And whatever issues that, quite frankly, . . . stay here
I’m going to have to come back and retry whatever I have to retry, then
I’ll have a road map.
43
See supra notes 36-38 & accompanying text.
44
See Maree v. Phillips, 274 Ga. 369, 371 (3) (552 SE2d 837) (2001) (“Under
the ‘law of the case rule,’ that decision is binding in all subsequent proceedings in the
trial court and in our appellate courts, absent a change in the evidentiary posture of
a case.”); supra note 37 & accompanying text.
18
trial court’s reinstatement of the judgment, it also argues that, upon remand, I. A.
Group I is law of the case to the extent that this Court, in its view, held that the
damages may only be apportioned to “the original four defendants.”45 In support,
RMNANDCO agrees that the procedural posture of the case has not changed since
I. A. Group I. But if I. A. Group I is binding on the trial court in any ancillary respect
because it is law of the case, we fail to see how its ultimate holding to reverse the
judgment and grant a new trial is not. In any event, both parties agree that the
procedural posture of this case has not changed because, upon remand, no pleadings
45
In I. A. Group I, we did not consider or expressly rule on whether the
apportionment of damages must be limited to the original four defendants at the
second trial. See generally I. A. Group I, 336 Ga. App. at 462-64 (1). RMNANDCO
now argues that, because I. A. Group I is law of the case, the appellants are barred
from requesting that the jury consider apportioning fault to anyone else besides the
original four defendants. But at the first trial, the court erroneously rejected the
appellants’ argument that there should be any apportionment of fault, so they had no
opportunity to argue that fault should be apportioned to anyone other than the
defendants. As a result, that issue was also not before this Court on appeal.
Nevertheless, in contending that this Court has already ruled on this issue,
RMNANDCO relies heavily on one sentence in I. A. Group I, which held that
apportionment of damages “between the defendants” was not prohibited merely
because there was a default judgment, rather than a jury verdict on liability. See id at
463-64 (1). We disagree that this one reference to “the defendants” constituted a
holding one way or the other regarding whether apportionment of fault to other
parties or nonparties was permissible. And we have held that the law-of-the-case rule
“applies only to actual decisions, not to issues raised by the parties but never ruled
upon.” Parks v. State Farm Gen. Ins. Co., 238 Ga. App. 814, 815 (1) (520 SE2d 494)
(1999).
19
were amended and no additional evidence was submitted.46 Thus, regardless of
whether Martin rendered our grant of a new trial in I. A. Group I incorrect, our
decision to do so is binding in this case between these parties, and the court erred in
reinstating the judgment.47
46
See Rymer, 335 Ga. App. at 170 (1) (a) (“The posture of [a] case can be
changed by an amendment to the complaint or by the submission of additional
evidence.”); Choate Const. Co. v. Auto-Owners Ins. Co., 335 Ga. App. 331, 337 (1)
(779 SE2d 465) (2015) (“[T]he evidentiary posture of a case changes so as to bar
application of the law-of-the-case rule in two different situations. First, the
evidentiary posture of a case changes when a new issue that the appellate court has
not addressed is raised by amended pleadings or otherwise. Second, the evidentiary
posture of a case changes when the original evidence submitted is found to be
insufficient, and the deficient evidence is later supplemented” (punctuation and
footnotes omitted)); Martell v. Atlanta Biltmore Hotel Corp., 120 Ga. App. 880, 882-
83 (172 SE2d 842) (1969) (“While the holding in this case on its previous appearance
before this [C]ourt may be reviewed and overruled in another case, as between these
parties it must stand.”).
47
See First Born Church of Living God, Inc. v. Bank of Am., N.A., 248 Ga.
App. 500, 504 (546 SE2d 1) (2001) (holding that, even if a decision by our Supreme
Court changed the law and implicitly overruled a prior decision of this Court, this
Court’s decision was nevertheless binding as to any subsequent proceedings in that
same case); Walker, 216 Ga. App. at 787-88 (1) (holding that, despite a recent
decision of the Supreme Court of Georgia, which reached a different holding, the
prior decision of this Court, although now incorrect, was still binding on this Court
and the trial court in subsequent proceedings in the same case).
20
For all these reasons, we affirm the trial court’s denial of the appellants’ motion
for summary judgment, reverse its order reinstating the damages award, and remand
for a new trial on damages in compliance with the instructions given in I. A. Group
I.
Judgment affirmed in part, reversed in part, and case remanded with direction.
Doyle, P. J. and Mercier, J., concur.
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