Mindis Acquisition Corp. v. BDO Seidman, LLP

Court of Appeals of Georgia

Mindis Acquisition Corp. v. BDO Seidman, LLP

587 S.E.2d 414, 263 Ga. App. 269, 2003 Fulton County D. Rep. 2930, 2003 Ga. App. LEXIS 1176

CourtCourt of Appeals of Georgia

DecidedSeptember 18, 2003

DocketA01A1774; A01A1775

StatusPublished

This text of 587 S.E.2d 414 (Mindis Acquisition Corp. v. BDO Seidman, LLP) 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.

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Mindis Acquisition Corp. v. BDO Seidman, LLP, 587 S.E.2d 414, 263 Ga. App. 269, 2003 Fulton County D. Rep. 2930, 2003 Ga. App. LEXIS 1176 (Ga. Ct. App. 2003).

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Opinion

Barnes, Judge.

In BDO Seidman, LLP v. Mindis Acquisition Corp., 276 Ga. 311 (578 SE2d 400) (2003), the Supreme Court reversed Division 4 of our decision in Mindis Acquisition Corp. v. BDO Seidman, LLP, 253 Ga. App. 360 (559 SE2d 111) (2002), in which we affirmed the trial court’s rulings denying BDO Seidman’s motion in limine and refusing to give its requested charge on the proper measure of damages, and held that “a new trial utilizing the proper measure of damages is required.” BDO Seidman, supra, 276 Ga. at 313.

[270]*270Decided September 18, 2003. Alston & Bird, Oscar N. Persons, Theodore J. Sawicki, John H. Goselin II, Womble, Carlyle, Sandridge & Rice, Nisbet S. Kendrick III, Caroline B. Keller, for Mindis Acquisition Corporation et al. Sutherland, Asbill & Brennan, Peter J. Anderson, Kristen J. Indermark, Rebecca L. Burnaugh, for BDO Seidman, LLP.

Because the Supreme Court’s decision in this appeal addressed only one of the Divisions in our opinion, and the Court specifically refused to grant certiorari on Division 1 of our opinion, we are required

(1) to read [the Supreme] Court’s opinion within the context of the opinion being reversed; (2) to determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court; and (3) enter an appropriate disposition with regard to those portions that is consistent with the issues addressed and considered by this Court.

Shadix v. Carroll County, 274 Ga. 560, 563-564 (554 SE2d 465) (2001). After so doing, we find that Divisions 1, 2, and 3 of our opinion are consistent with and were not affected by the Supreme Court’s decision, and thus remain in effect, except that the instruction to the trial court in Division 1 is withdrawn. Division 4 of our opinion, however, was reversed by the Supreme Court.

Accordingly, Division 4 of our opinion is vacated, the judgment of the Supreme Court is made the judgment of this court for Division 4, and the judgment of the trial court granting judgment notwithstanding the verdict to BDO Seidman is reversed. The case is remanded for a new trial using the proper measure of damages in accordance with the opinion of the Supreme Court. BDO Seidman, supra, 276 Ga. at 313.

Judgments reversed and case remanded with directions.

Smith, C. J, and Phipps, J., concur.

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Barnes, Judge.

In BDO Seidman, LLP v. Mindis Acquisition Corp., 276 Ga. 311 (578 SE2d 400) (2003), the Supreme Court reversed Division 4 of our decision in Mindis Acquisition Corp. v. BDO Seidman, LLP, 253 Ga. App. 360 (559 SE2d 111) (2002), in which we affirmed the trial court’s rulings denying BDO Seidman’s motion in limine and refusing to give its requested charge on the proper measure of damages, and held that “a new trial utilizing the proper measure of damages is required.” BDO Seidman, supra, 276 Ga. at 313.

[270]*270Decided September 18, 2003. Alston & Bird, Oscar N. Persons, Theodore J. Sawicki, John H. Goselin II, Womble, Carlyle, Sandridge & Rice, Nisbet S. Kendrick III, Caroline B. Keller, for Mindis Acquisition Corporation et al. Sutherland, Asbill & Brennan, Peter J. Anderson, Kristen J. Indermark, Rebecca L. Burnaugh, for BDO Seidman, LLP.

Because the Supreme Court’s decision in this appeal addressed only one of the Divisions in our opinion, and the Court specifically refused to grant certiorari on Division 1 of our opinion, we are required

(1) to read [the Supreme] Court’s opinion within the context of the opinion being reversed; (2) to determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court; and (3) enter an appropriate disposition with regard to those portions that is consistent with the issues addressed and considered by this Court.

Shadix v. Carroll County, 274 Ga. 560, 563-564 (554 SE2d 465) (2001). After so doing, we find that Divisions 1, 2, and 3 of our opinion are consistent with and were not affected by the Supreme Court’s decision, and thus remain in effect, except that the instruction to the trial court in Division 1 is withdrawn. Division 4 of our opinion, however, was reversed by the Supreme Court.

Accordingly, Division 4 of our opinion is vacated, the judgment of the Supreme Court is made the judgment of this court for Division 4, and the judgment of the trial court granting judgment notwithstanding the verdict to BDO Seidman is reversed. The case is remanded for a new trial using the proper measure of damages in accordance with the opinion of the Supreme Court. BDO Seidman, supra, 276 Ga. at 313.

Judgments reversed and case remanded with directions.

Smith, C. J, and Phipps, J., concur.

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587 S.E.2d 414, 263 Ga. App. 269, 2003 Fulton County D. Rep. 2930, 2003 Ga. App. LEXIS 1176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mindis-acquisition-corp-v-bdo-seidman-llp-gactapp-2003.

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