In support of the motion, Legacy claimed that it had a copy of the circular and agreement on which Reymond had made handwritten notes, thus proving that she had thoroughly reviewed the documents before signing them. See Hopper v. M & B Builders, 261 Ga.App. 702, 705(1)(b), 583 S.E.2d 533 (2003) (“When a trial judge decides not to grant a new trial, he becomes the trier of fact, and his discretion in refusing the motion will not be disturbed unless manifestly abused.”) (footnote omitted). Under OCGA § 5–5–23, the trial court is authorized to grant a new trial “in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.”

In support of the motion, Legacy claimed that it had a copy of the circular and agreement on which Reymond had made handwritten notes, thus proving that she had thoroughly reviewed the documents before signing them. See Hopper v. M & B Builders, 261 Ga.App. 702, 705(1)(b), 583 S.E.2d 533 (2003) ("When a trial judge decides not to grant a new trial, he becomes the trier of fact, and his discretion in refusing the motion will not be disturbed unless manifestly abused.") (footnote omitted).Under OCGA § 5–5–23, the trial court is authorized to grant a new trial "in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial."

In support of the motion, Legacy claimed that it had a copy of the circular and agreement on which Reymond had made handwritten notes, thus proving that she had thoroughly reviewed the documents before signing them. See Hopper v. M&B Builders, 261 Ga. App. 702, 705 (1) (b) (583 SE2d 533) (2003) ("When a trial judge decides not to grant a new trial, he becomes the trier of fact, and his discretion in refusing the motion will not be disturbed unless manifestly abused.") (footnote omitted). Under OCGA § 5-5-23, the trial court is authorized to grant a new trial "in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial."

Whether the conduct of the parties results in a mutual departure from and waiver of a contract provision is generally a question of fact. Hopper v. M & B Builders, Inc., 261 Ga.App. 702, 705, 583 S.E.2d 533, 537 (Ga.Ct.App.2003). Although Debtor may have unilaterally interpreted Canpartners' behavior as a waiver of the necessity to strictly comply with the specified development schedule contained in the Agreement, there is no evidence that that was Canpartners' intention.

All six criteria must be satisfied for a new trial to be warranted.Hopper v. M & B Builders, 261 Ga.App. 702, 704(1)(b), 583 S.E.2d 533 (2003) (Footnotes omitted.) Mother notes that, in its final order, the trial court cited the concerns of the psychologist who prepared the July 15, 2011 report about the effect of the stress on Mother of another child in her home, and that in the updated July 12, 2012 psychological evaluation, the same psychologist stated that Mother “certainly appears to be capable of parenting three children”; she also cites her averment that Father had been on military deployment for six months beginning in December 2012 as new evidence warranting a new trial.

Further, the plain language of OCGA § 13–6–9 provides that, in order to support a claim for consequential damages under that statute, a party must prove that he or she only incurred the expenses at issue because they were, in fact, necessary in order for him or her to comply with the contract. See Price v. Burns, 43 Ga.App. 821, 160 S.E. 531 (1931) (“[E]vidence that the plaintiff had incurred expenses in making trips and telephone calls in preparing to improve the premises pursuant to an option to do so which the plaintiff had in the lease, did not show the necessity for such expenses, where it did not appear how and why it was necessary to the performance of the contract by the plaintiff that such trips and telephone calls be made.”) (citations omitted); see also, generally, Hopper v. M & B Builders, 261 Ga.App. 702, 706(3), 583 S.E.2d 533 (2003). See also OCGA § 13–6–2 (“Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.”).

This is so even if the contract has a time-is-of-the-essence provision. See Hopper v. M B Builders, Inc., 261 Ga. App. 702, 706 (4) ( 583 SE2d 533) (2003) (without a specified date, no charge on time of the essence was warranted even though there was such a provision in the agreement). Furthermore, an attempt to impose a time limitation where none existed before or where one has been waived must also be reasonable.

Ga. Code Ann., § 13-4-4.Hopper v. M B Builders, Inc., 583 S.E.2d 533 (Ga.App. 2003). Here, the evidence showed that Bush was aware of the actions by OCA, actions that he now complains of, for years before he decided to terminate the contract.