City of Fairburn v. Cook

393 S.E.2d 70, 195 Ga. App. 265, 1990 Ga. App. LEXIS 446
CourtCourt of Appeals of Georgia
DecidedMarch 16, 1990
DocketA89A1987
StatusPublished
Cited by2 cases

This text of 393 S.E.2d 70 (City of Fairburn v. Cook) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Fairburn v. Cook, 393 S.E.2d 70, 195 Ga. App. 265, 1990 Ga. App. LEXIS 446 (Ga. Ct. App. 1990).

Opinions

Pope, Judge.

The City of Fairburn appeals from the December 1988 order of the Superior Court of Fulton County in which the trial court found that James Cook was entitled to recover the prejudgment interest previously awarded him in September 1986 and that all the City’s arguments why it was not responsible for the prejudgment interest award were adversely controlled by the doctrine of res judicata.

A partial review of the procedural history of the case sub judice is necessary in order to understand the nature of this appeal. Cook brought suit against the City and Atlanta & West Point Railroad (“Railroad”). In September 1986 the jury returned a verdict in Cook’s favor against the defendants for $2.5 million “to share equally.” In its [266]*266judgment on the verdict, the trial court held the City and the Railroad jointly liable for the full amount, and because the $2.5 million verdict exceeded the amount of unliquidated damages ($1.95 million) claimed by Cook in his written notice made pursuant to OCGA § 51-12-14 (a), the trial court awarded Cook prejudgment interest in the amount of $1,089,221.94.

The City challenged the prejudgment interest award in its motion to set aside the verdict and the judgment, specifically asserting that it was not liable for prejudgment interest because the verdict against the City did not equal or exceed the amount of unliquidated damages claimed by Cook, as required by OCGA § 51-12-14. The basis for this claim was the City’s argument that the verdict was several, rather than joint (as the trial court had found), and thus the actual verdict against the City was for only $1.25 million (half the $2.5 million). Accordingly, the City asserted that because the verdict against it was $700,000 less than the unliquidated damages claimed by Cook, the award of prejudgment interest could not be supported as a matter of law.

On appeal to this court (City of Fairburn v. Cook, 188 Ga. App. 58 (372 SE2d 245) (1988)), however, the City presented only the argument that it was jointly liable with the Railroad, asserting that the jury verdict “to share equally” was illegally apportioned and thus a new trial on all issues was mandated. This court disagreed and upheld the verdict returned by the jury against the City. The court found, however, that the trial court had erred in entering judgment against the City for the full amount of the verdict, inasmuch as the jury had legally apportioned the verdict between the defendants by inserting the language “to share equally” after the verdict amount. The court also reversed the judgment as to the Railroad, finding the evidence was insufficient to support it.

Upon remittiturs being entered, the judgment and postjudgment interest amounts were paid, but the award of prejudgment interest was reserved by the trial court pursuant to a consent order which clearly reflected the parties’ intent not to resolve or otherwise waive issues involving the prejudgment interest award. Subsequently the trial court in its December 9, 1988, order found that the issues the City was raising in 1988 regarding its liability for the. prejudgment interest award had already been raised by the City in 1986, but that the City had failed to enumerate the alleged errors in its appeal to this court. Because the alleged errors involving the award of prejudgment interest in the September 1986 judgment were unappealed, the trial court found the City’s arguments were controlled by the doctrine of res judicata, and accordingly entered the award from which the City now appeals.

1. Initially, we must address Cook’s motion to dismiss the City’s [267]*267appeal. Cook argues that pursuant to OCGA § 5-6-38, the prejudgment interest award was appealable within 30 days after the September 26, 1986, judgment was entered. Asserting that the December 9, 1988, order was not a “new” final judgment but merely a judgment on this court’s remittitur, Cook argues that the City’s appeal from the December 1988 order was untimely and must be dismissed under the mandate of OCGA § 5-6-48 (b).

In City of Fairburn, supra, this court vacated the judgment which had disregarded the verdict returned by the jury and directed the trial court to enter judgment against the City for the correct sum of $1.25 million. Upon remittitur, the trial court properly followed this court’s direction and entered judgment in Cook’s favor for the modified amount. The trial court then took under consideration the other aspects of the judgment, including the prejudgment interest award. The merits of the City’s argument concerning the prejudgment interest award are obvious: The jury returned a verdict which rendered the City liable for $1.25 million; that sum did not equal or exceed the $1.95 million in unliquidated damages claimed by Cook; thus, under OCGA § 51-12-14 (a), the verdict was insufficient to support the prejudgment interest awarded Cook by the trial court in September 1986. However, the trial court in its December 1988 order determined it was not necessary to reach the merits of the City’s arguments, finding that the issue was res judicata and ruling accordingly.

It is therefore apparent that the December 1988 judgment, based on the doctrine of res judicata, was premised on an issue different from any issue addressed by the trial court in the September 1986 judgment. Insofar as the application of the doctrine of res judicata to the prejudgment interest is concerned, the trial court’s December 1988 judgment “contained at l[e]ast something to appeal by either party, if there was any error in it. [Cit.]” West v. Dorsey, 167 Ga. App. 233, 235 (1) (305 SE2d 840) (1983), rev’d on other grounds, Dorsey v. West, 252 Ga. 92 (311 SE2d 816) (1984). We therefore find that the City timely filed its appeal from the December 1988 judgment pursuant to OCGA § 5-6-38, and Cook’s motion to dismiss this appeal is denied.

2. The remaining issue before this court is whether the trial court correctly concluded that the doctrine of res judicata should act as a bar to the consideration of all issues surrounding the award of prejudgment interest in this case. We find that it does not, and reverse.

Simply stated “ ‘(t)he doctrine of res judicata makes a prior judgment conclusive between the parties and their privies as to all matters put in issue or that might have been put in issue.’ [Cits].” Tandy Computer Leasing v. Bennett’s Svc. Co., 188 Ga. App. 594, 594-595 (373 SE2d 647) (1988). See also OCGA § 9-12-40. Thus, the trial court [268]*268concluded that because the City “raised the question of its liability for the prejudgment interest in its motion for judgment notwithstanding the verdict [but] failed to enumerate [the trial] court’s denial of this particular ground of error to the appellate court, . . . that issue is now res judicata and is closed to further challenges.”

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Bluebook (online)
393 S.E.2d 70, 195 Ga. App. 265, 1990 Ga. App. LEXIS 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-fairburn-v-cook-gactapp-1990.