This case first came before this Court in 1989 (Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41 (390 SE2d 61)
), and then again in 1990 (Navistar Intl. Transp. Corp. v. Ogletree, 199 Ga. App. 699 (405 SE2d 884)
). Judgment was thereafter entered on a jury verdict for Ogletree but she moved for new trial on the issue of damages. Navistar moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied Ogletree's motion and granted Navistar's j.n.o.v. motion. Ogletree appealed both rulings.
Navistar then brought to the trial Court's attention OCGA 9-11-50
(C) (1) and case law interpreting it. The statute provides: "If the motion for judgment notwithstanding the verdict provided for in subsection (b) of this Code section is granted, the Court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for the new trial." Navistar requested the trial court to correct this procedural oversight, but Ogletree vigorously opposed the request and the trial court took no action.
Ogletree has now moved this court to remand the case for a conditional determination of Navistar's motion for new trial. Navistar argues that equitable considerations should prevent Ogletree from advocating the position she opposed before the trial court, but the law, and the sound administration of it, counsel otherwise. Where the trial court has not made the conditional ruling, the case must be remanded with direction that it be done, as we do here. OCGA 9-11-50
(c) (1); Melton v. Elbert Sales Co., 181 Ga. App. 61 (351 SE2d 261) (1986)
, and cases cited therein.
In Jackson v. Williams, 209 Ga. App. 640
, 643 (3) (434 SE2d 98
) (1993), this Court reviewed the ruling on the j.n.o.v. motion, even though in granting the motion the trial Court had concluded that the motion for new trial was rendered moot and did not rule on it. In deciding the appeal, this Court held that the grant of j.n.o.v. was not error so there was, as we pointed out, "no harm." We decline to take that approach. Not only does it ignore the dictates of OCGA 9-11-50
(c) (1), but it increases costs, delay and fragmentation of appeals and requires the court to address the merits of the trial courts j.n.o.v. ruling and only give final resolution to the Case if the decision is to affirm. If the decision on the merits is to reverse the j.n.o.v., then it is necessary to remand for reinstatement of the verdict and a trial Court do substantial justice and discourage races to the courthouse for the purpose of playing legal slapjack with notices and motions." Id.
On the other hand, when a motion for new trial is made in Conjunction with a motion j.n.o.v. pursuant to OCGA 9-11-50
, and the trial court grants j.n.o.v. but fails to rule on the motion for new trial, the trial court loses jurisdiction when the notice of appeal is filed.
As this case must be remanded, it is not necessary to consider appellant's enumerations of error.
Nelson, Mullins, Riley & Scarborough, Richard B. North, JR., Jeffrey S. Burton, for appellee.