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AmSouth Bank v. Gupta11/21/2002
unt and upon completely different collateral, simply is irrelevant to the case.
. No evidence was presented to show AmSouth's breach of any duty of commercial reasonableness, or even that such a legal duty even existed on the authority supplied to this Court. It was therefore reversible error to submit this issue to the jury.
VII. WHETHER THE JURY'S AWARD OF ACTUAL DAMAGES WAS SPECULATIVE AND SHOULD THUS BE REVERSED.
VIII. WHETHER THE TESTIMONY OF GUPTA'S EXPERT WITNESS WAS WRONGLY ADMITTED.
. Because AmSouth did not assign error on the negligent misrepresentation count, we now proceed to the issues relating to damages. The two issues listed above are logically intertwined: if Gupta's expert's testimony was wrongly admitted, that testimony cannot be considered as an adequate basis for the jury award. Thus we consider the propriety of admitting the expert's supplemented report before turning to the validity of the award.
A. Was Wingfield's testimony admissible?
. AmSouth argues that the supplemented testimony of Gupta's expert, Randall Wingfield (an independent real estate appraiser), should have been excluded on two grounds: first, that there was a discovery violation regarding disclosure of the supplemented report to AmSouth; and second, that Wingfield's testimony was defective in that it "was inadequate and served only to confuse the jury as to the proper measure of damages." However, in both its initial and reply briefs, AmSouth fails to supply argument or authority regarding the latter assignment of error. As already stated, AmSouth must conform to this Court's established practice and actively pursue its assignments of error if it wishes them to be considered on appeal. Therefore, we review only the allegation of a discovery violation by Gupta.
. AmSouth complains that Wingfield's report was provided to it only on "the eve of trial." This appears to mean the Friday before the Tuesday, May 30, 2000, on which the parties filed their pretrial motions. The trial itself began June 26, 2000. On May 30, the trial judge acknowledged his concern regarding the short notice to AmSouth and offered twice to let AmSouth depose Wingfield. Both times, AmSouth's counsel declined: (1) "No, Your Honor, I'm not prepared. We've got a trial we're starting today and I'm ready to go to trial. . . . I'm sure I could take his deposition and get it but then I'm going to have to hire an expert which will delay us to try to talk about this"; (2) "Judge, I don't plan to take his deposition because I don't see where I have the time to do it and effectively try the case." AmSouth did not request a continuance. Indeed, it had opposed an unrelated one.
. According to AmSouth's May 30, 2000, motion in limine seeking to exclude Wingfield's testimony, he was designated as an expert witness in October 1999, and apparently a timely report of his, evaluating Gupta's damages in terms of a 13.73-acre parcel, was duly provided to AmSouth. The supplementation which AmSouth claims to be untimely and prejudicial appears, on AmSouth's own account, to differ only in changing the report to fit the 15.25-acre figure that Gupta's counsel had lately realized was accurate.
. The alleged prejudice surrounding this supplementation was that AmSouth had built "its entire defense" around the 13.73-acre figure, as addressed under Issue I, above. As a separate category of supposed prejudice, AmSouth cites the substance of Wingfield's testimony on investment value, but it appears from the record that no previously-unanticipated testimony on this topic was offered at trial (see the discussion in subsection B of this issue).
. The g
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