CALDWELL et al.
BARNES, P. J., MERCIER and BROWN, JJ.
BARNES, PRESIDING JUDGE
and Joanne Caldwell appeal from the trial court's denial
of Virginia Church's motion for judgment notwithstanding
the verdict ("JNOV") or in the alternative, motion
for new trial. This is the second appearance of this case
before this Court. In Caldwell v. Church, 341
Ga.App. 852 (802 S.E.2d 835) (2017), we affirmed the trial
court's grant of summary judgment and judgment on the
pleadings in favor of Church on her breach of contract,
trespass to personal property, and conversion claims against
Emil and Joanne Caldwell. While finding liability on the
substantive claims, this Court reversed the trial court's
grant of judgment on the pleadings on Church's claims for
bad faith attorney fees and punitive damages. Id. at
859-860 (2) (c) (d).
a jury trial on damages, the trial court entered judgment for
Church in the amount of $200, 000 against Emil Caldwell and
$160, 675 against Joanne Caldwell for actual damages and
attorney fees. The Caldwells filed a motion for JNOV or
alternatively, motion for new trial in which they asserted,
among other things, that the evidence of actual damages was
insufficient as a matter of law, that there were no damages
to support the award of attorney fees, and that the damages
award was excessive. They also asserted that the trial court
erred in refusing to allow the issue of proximate cause to go
to the jury, giving a jury charge that was not adjusted to
the facts, and refusing to give several requested charges.
The Caldwells also filed a separate motion to set aside the
award of attorneys fees incurred in the appellate court.
trial court denied their motions, and the Caldwells appeal.
They contend that the trial erred in denying their motion for
directed verdict because Church failed to submit sufficient
proof of damages, erred in denying their motion to modify the
pretrial order to allow the issue of proximate cause to go to
the jury, erred in denying their request to charge the jury
on proximate cause, abused its discretion in granting
Church's motion in limine to excluding certain evidence
related to showing the Caldwell's lack of bad faith,
erred in denying their motion to set aside the judgment for
attorney fees incurred in the appellate court, and abused its
discretion in denying their motion to amend the judgment to
reflect joint and several liability and a setoff for the
unpaid purchase price. Following our review, we affirm the
trial court's denial of the Caldwell's JNOV or,
alternatively, motion for new trial, but reverse the trial
court's order denying the motion to set aside the
attorney fees incurred in this Court in the earlier appeal.
We further remand the case for proceedings consistent with
When reviewing a trial court's denial of a motion for
[JNOV] or new trial, this Court determines if there is any
evidence to support the jury's verdict. Where a jury
returns a verdict and it has the approval of the trial judge,
the same must be affirmed on appeal if there is any evidence
to support it as the jurors are the sole and exclusive judges
of the weight and credit given the evidence. The appellate
court must construe the evidence with every inference and
presumption in favor of upholding the verdict, and after
judgment, the evidence must be construed to uphold the
verdict even where the evidence is in conflict. As long as
there is some evidence to support the verdict, the denial of
defendant's motions for new trial and [JNOV] will not be
(Citations omitted.) Henry v. Jones, 237 Ga.App.
385, 385-386 (1) (515 S.E.2d 199) (1999).
The underlying facts as set forth in Caldwell
demonstrate that Church and Emil Caldwell entered into a
written agreement for Church to purchase from Caldwell all of
the assets of a business known as Sugar Daddy's Bar and
Grill in McDonough, Georgia. The contract provided for a
$100, 000 purchase price, set forth a payment schedule,
established that the closing date was September 15, 2014, and
stated that on that closing date all of the "inventory,
equipment, and fixtures to be transferred will be located at
[the business address] and will not be removed without the
written consent of the Buyer." The contract also
included a merger clause entitled "Entire
Agreement," which provided:
This Agreement constitutes the sole and only agreement
between Buyer and Seller respecting the Business or the sale
and purchase of it. This Agreement correctly sets forth the
obligations of Buyer and Seller to each other as of its date.
Any additional agreements or representations respecting the
Business or its sale to Buyer not expressly set forth in this
Agreement are null and void, unless otherwise required by
Pursuant to the agreement, Church made payments, and Caldwell
transferred the business to her on September 15, 2014. Church
operated the bar and grill from that date until January 2015.
During that time, she did not have a liquor license in her
name but operated the business with the liquor license in
Joanne Caldwell's name. On January 10, 2015, the
Caldwells went to the bar and grill, ordered the patrons to
leave, ejected Church from the premises, and changed the door
locks. Thereafter, the Caldwells denied Church access to the
business, prohibited her from operating the business, and
began operating the business as their own. The Caldwells
operated the bar and grill until May 23, 2015, when they
closed the business. The Caldwells subsequently removed
inventory and equipment from the business premises and placed
the items in their private storage facility.
Caldwell, 341 Ga.App. at 853-854 (1).
then brought the underlying action against Emil Caldwell for
breach of contract and fraud, and against the couple for
trespass, conversion, attorney fees and punitive damages, and
the Caldwells counterclaimed for breach of contract.
Id. at 852. The trial court granted Church summary
judgment on her breach of contract claim, and entered a
judgment on the pleadings on the trespass, conversion,
attorney fees, and punitive damages claims. Id. It
also dismissed the Caldwell's counterclaim for breach of
contract. Id. In the first appeal, the Caldwells
challenged those rulings, and we held the following:
The trial court correctly found that the Caldwells' claim
of a breach of the alleged contemporaneous oral agreement was
meritless. So he properly granted summary judgment in favor
of Church on her breach of contract claim. The trial court
also correctly ruled that the pleadings established that
Church was entitled to judgment on her trespass and
conversion claims. But the trial court erred in entering
judgment on the pleadings as to Church's attorney fees
and punitive damages claims because those are matters for a
trier of fact to decide. The trial court correctly dismissed
the counterclaim because it rested on the Caldwells'
meritless breach-of-the-alleged-oral-agreement argument and
therefore failed to state a claim for which relief could be
Caldwell, 341 Ga.App. at 852.
a subsequent jury trial on damages, the jury returned the
unanimous verdict as reflected by the verdict form:
(a) What is the amount, if any, of damages that Virginia
Church suffered as a result of Emil Caldwell's