Opinion
A01A1774, A01A1775.
DECIDED: SEPTEMBER 18, 2003
Negligent misrepresentation. Fulton Superior Court. Before Judge Bonner.
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.
In BDO Seidman, L.L.P. v. Mindis Acquisition Corp., 276 Ga. 311 ( 578 S.E.2d 400) (2003), the Supreme Court reversed Division 4 of our decision in Mindis Acquisition Corp. v. BDO Seidman, LLP., 253 Ga. App. 360 ( 559 S.E.2d 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.
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 S.E.2d 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Supreme Court's decision, and thus remain in effect, except that the instruction to the trial court in Division 1 is withdrawn.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.