Georgia Appellate Practice Handbook - Alston & Bird LLP

CHAPTER 3: POST-TRIAL MOTIONS AS PART OF THE APPEALS PROCESS
general grounds can be used to challenge not only a fi nding of guilt or liability, but also, pursuant
to O.C.G.A. § 51-12-12, a fi nding of inadequate 32 or excessive damage. 33
Whether to grant or deny a motion for new trial based on the general grounds is left to
the trial court’s discretion. 34 The fi rst grant of a new trial based upon general grounds will not
be disturbed by an appellate court unless the appellant shows that: (i) the trial court abused its
discretion in granting the new trial; and (ii) the law and facts demand the verdict notwithstanding
the judgment of the presiding judge. 35 If the grant of a new trial in a civil case is based on the
discretion of the judge, the judge must set forth by written order the reason(s) for the exercise of his
discretion, though the order need not conform to the provisions of O.C.G.A. § 9-11-52. 36
A motion for new trial also may be granted on more particularized special grounds, among
which include:
• A juror’s failure to answer, or to answer honestly, a material question posed in voir
dire, but only if the movant can show that a correct response would have provided a
valid basis to challenge the juror for cause; 37
• Improper and prejudicial arguments by counsel, such as arguments using facts not in
evidence; 38
• The trial judge’s expression of an opinion to the jury, whether during the charge or the
progress of the case, as to what has or has not been proved; 39
32 See, e.g., Brooks v. Williams, 127 Ga. App. 311, 313-14, 193 S.E.2d 231, 233 (1972). The rule in Georgia
used to be that “‘[w]hen the rule concerning comparative negligence is involved in a case, the verdict of
the jury cannot be set aside on the ground that the amount of the damages awarded is inadequate.’” Beal
v. Braunecker, 185 Ga. App. 429, 432, 364 S.E.2d 308, 312 (1987) (citations omitted). This holding was
overruled by Robinson v. Star Gas of Hawkinsville, Inc., 269 Ga. 102, 103-04, 498 S.E.2d 524, 525-26
(1998). “Robinson makes it clear that a jury verdict in a comparative negligence case may be reviewed
by the trial court and that a new trial may be awarded under O.C.G.A. § 51-12-12(b)” if the jury award
of damages is suffi ciently inadequate or excessive. Dawson v. Fulton-DeKalb Hosp. Auth., 236 Ga. App.
96, 97, 511 S.E.2d 199, 200 (1999).
33 See, e.g., Baxter v. Weiner, 246 Ga. 28, 29, 268 S.E.2d 619, 620 (1980).
34 Kitchin v. Kitchin, 219 Ga. 417, 419, 133 S.E.2d 880, 882 (1963); Blanchard v. Westview Cemetery, Inc.,
133 Ga. App. 262, 263-64, 211 S.E.2d 135, 137-38 (1974), aff’d, 234 Ga. 540, 216 S.E.2d 776 (1975).
35 O.C.G.A. § 5-5-50; see also Thomas v. Wiley, 240 Ga. App. 135, 136, 522 S.E.2d 714, 716 (1999).
36 O.C.G.A. § 5-5-51.
37 Gainesville Radiology Grp. v. Hummel, 263 Ga. 91, 93, 428 S.E.2d 786, 789 (1993).
38 Locklear v. Morgan, 129 Ga. App. 763, 767, 201 S.E.2d 163, 167 (1973).
39 O.C.G.A. § 9-10-7.
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