Pool Markets South, Inc. v. Moore

Beasley, Judge. Plaintiff Pool Markets South, Inc., sought recovery of damages for breach of a contract to construct a swimming pool for defendant Moore. After a jury trial resulting in a verdict for Moore, Pool Markets appeals from the judgment entered on the verdict. On appeal Pool Markets contends that the trial court erred: 1) in charging the jury on the definition of consideration; 2) in failing to charge the jury on the parol evidence rule; 3) in charging the jury on the measure of damages and failing to give instructions on prejudgment interest and attorney fees. 1. The written requests to charge by Pool Markets were not timely under USCR 10.3 and it made no objections to the portions of the charge which it now enumerates as error on grounds 1 and 2. Where a party does not comply with OCGA § 5-5-24 (a) by objecting before verdict, error claimed on appeal will not be reviewed unless it is deemed to be substantial and harmful as a matter of law as provided by subsection (c). Bailey v. Todd, 126 Ga. App. 731, 733 (2) (191 SE2d 547) (1972). The exception under subsection (c) applies only when there has been a substantial error which was blatantly apparent and prejudicial and which resulted in a gross miscarriage of justice. Hunter v. Batton, 160 Ga. App. 849 (1) (288 SE2d 244) (1982). The errors here asserted do not rise to that level. 2. The third enumeration of error is without merit for the reason that where there is a verdict for defendant any error in the instruc [49] tions as to damages is harmless. Greenway v. Griffith, 225 Ga. 632 (2) (170 SE2d 423) (1969); Jackson v. Miles, 126 Ga. App. 320, 322 (3) (190 SE2d 565) (1972). Decided October 27, 1988. Joseph Pelt III, David L. Miller, for appellant. Joe W. Cook, for appellee. Judgment affirmed. Birdsong, C. J., and Banke, P. J., concur.