Atlando Holdings, LLC f/k/a Mindis Acquisition Corporation MAC1 sued the accounting firm of BDO Seidman, LLP for negligent misrepresentation in connection with MAC’s 1993 purchase of Mindis Corporation. On appeal following a jury trial and a jury verdict for $44 million in favor of MAC, the 1999 trial the Georgia Supreme Court held that the trial court had used the wrong measure of damages. BDO Seidman, LLP v. Mindis Acquisition Corp. , 276 Ga. 311 578 SE2d 400 2003 Mindis II. The case was then retried on the issue of damages only the 2005 trial, and the jury awarded MAC zero damages. MAC now appeals. The underlying facts have been set forth by this Court in Mindis Acquisition Corp. v. BDO Seidman, LLP , 253 Ga. App. 360, 361 559 SE2d 111 2002 Mindis I, reversed in part by Mindis II, 276 Ga. at 311-312 1 and our Supreme Court in Mindis II and will be repeated here only as necessary for the disposition of the issues before us. BDO Seidman performed an inventory audit on Mindis Corporation, a scrap metal recycling business, prior to its purchase by MAC in 1993. BDO issued a final audit opinion estimating Mindis’ inventory to be worth approximately $86 million on July 31, 1993; on October 29, 1993, MAC paid $40 million and assumed $31 million in debt to purchase Mindis. However, subsequent audits by different accounting firms revealed that Mindis’ inventory was worth only $16 million, $70 million less than BDO Seidman certified in its audit. Mindis I , 253 Ga. App. at 361.
In the prior appeal, this Court upheld the verdict for Mindis, but our Supreme Court reversed on the issue of the measure of damages that should have been applied, holding that the proper measure of damages in a negligent misrepresentation case is the out-of-pocket standard rather than the benefit-of-the bargain calculation utilized in the 1999 trial. Mindis II , 276 Ga. at 311-312 1. Under that measure:The damages recoverable for a negligent misrepresentation are those necessary to compensate the plaintiff for the pecuniary loss to him of which the misrepresentation is a legal cause, including a The difference between the value of what he has received in the transaction and its purchase price or other value given for it; and b Pecuniary loss suffered otherwise as a consequence of the plaintiff’s reliance upon the representation. Mindis II , 276 Ga. at 312.
