The form of a verdict and the submission of a special verdict are within the discretion of the trial court, and, absent an abuse of that discretion, the court's choice will not be overturned. R. C. Acres, Inc. v. Cambridge Faire Properties, LLC, 331 Ga. App. 762, 764 (1), 771 S.E.2d 444 (2015); see OCGA § 9-11-49. As a general rule, “in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” OCGA § 5-5-24 (a). However, a court “shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law[.]” OCGA § 5-5-24 (c).
A party must voice his “objection to a verdict form at the time of its rendition or otherwise such technicality is waived. This is so because a verdict may be reformed or remodeled in the presence of the jury before they have retired from the box.” Torres v. Tandy Corp., 264 Ga. App. 686, 690 (3), 592 S.E.2d 111 (2003).
Recently, the Court of Appeals held that the claim of error on the submission of a jury charge is waived where a party objected at the charge conference to the verdict form as "confusing" and "drawing a finger" at him because it did not distinguish between breach of contract claims against him and against a distinct corporate entity but did not make an objection when the jury returned the verdict. Choi v. Sierra Construction Company, Inc., A22A1057, 2022 WL 12242332, *2 (Ga. Ct. App. Oct. 21, 2022).
However, the Court of Appeals did not stop at this inquiry. Instead, the Court examined the appeal under a different substantial error standard, which allowed for a reversal and a new trial in this case despite the failure of the second objection at the return of the jury verdict. Id. at *5.
It is the duty of the trial court, whether requested or not, to give the jury appropriate instructions on every substantial and vital issue presented by the evidence, and on every theory of the case. There need be only slight evidence supporting the theory of the charge to authorize a requested jury instruction. Game Truck Ga. v. Quezada, 360 Ga. App. 519, 520 (1), 859 S.E.2d 125 (2021) (citations and punctuation omitted). When a court decided whether a jury instruction should have been given, the court does not allocate inferences and presumptions but merely examines the record to see if evidence was presented which created a substantial, material, and controlling issue in the case. Golden Peanut Co. v. Bass, 249 Ga. App. 224, 227 (1), 547 S.E.2d 637 (2001) (citation omitted), aff'd, 275 Ga. 145, 563 S.E.2d 116 (2002). The test for whether such an issue was created is whether the evidence, if believed by a jury in accordance with the disputed jury instruction, would have affected the outcome. Id.
Importantly, “[t]he failure to charge on a properly asserted and legally cognizable theory of recovery or defense, whether requested or not, or attention be called to it or not, is harmful as a matter of law.” Game Truck Ga., 360 Ga. App. at 520 (1), 859 S.E.2d 125 (citation and punctuation omitted). Accordingly, the Court reviewed the charge for substantial error pursuant to OCGA 5-5-24(c):
A charge constituting substantial error is one that is harmful as a matter of law — i.e., blatantly apparent and prejudicial to the extent it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it, or a gross injustice is about to result or has resulted directly attributable to the alleged errors.
Given this high bar, instances of reversal under OCGA § 5-5-24 (c) are “very, very rare.” Maki v. Real Estate Expert Advisors, 358 Ga. App. 337, 340-41 (1), 855 S.E.2d 72 (2021) (punctuation and footnote omitted).
As a result of this inquiry, the Court found that the charge did not distinguish that joint venture liability rests upon conduct in furtherance of the joint venture and an individual and entity cannot be liable without such a finding. Choi, 2022 WL 12242332 at *5. Ultimately, the failure to object at the return of the verdict did not matter here because the charge constituted a substantial error, however, this heightened standard only applied because of the failure to object a second time.
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