author: Andrews, Presiding Judge. Miller, Judge,

text:
    A01A0461, A01A0757.
    PARKSIDE CENTER, LTD. et al. v. CHICAGOLAND VENDING, INC.; and vice versa.
    (552 SE2d 557)
   Andrews, Presiding Judge.

Parkside Center, Ltd. leased space in its shopping center to Chicagoland Vending, Inc. under a lease which contained a covenant restricting Parkside from leasing other space in the shopping center to businesses competitive with Chicagoland’s business. Chicagoland sued Parkside and its general partner, D. Kimbrough King, claiming the value of its leasehold was destroyed when Parkside breached the covenant by leasing space in the shopping center to a competitive business. A jury awarded Chicagoland $787,400 for damages to its leasehold plus attorney fees.

The central issue on appeal is whether the covenant was enforceable as a reasonable restriction on competition. In Parkside’s appeal in Case No. A01A0461, we find that the covenant was correctly construed as a valid, reasonable restriction on competition, and that there was evidence to support the jury’s verdict that Parkland breached the covenant and caused $787,400 in damages to Chicago-land’s leasehold. In Chicagoland’s cross-appeal in Case No. A01A0757, we conclude that the trial court properly reduced the attorney fees awarded to Chicagoland under OCGA § 13-6-11 to $74,000 and correctly directed a verdict against Chicagoland’s additional claim that Parkside and King tortiously interfered with its lease rights.

Construed in favor of the verdict, evidence showed that in December 1989, Parkside, through its general partner, King, leased space in a shopping center to Chicagoland for the purpose of operating a game room containing coin-operated video and redemption amusement games. The five-year lease agreement (with two five-year renewal options) contained a covenant restricting competition which provided that:

Exclusive. [Parkside] agrees that it shall not install or operate amusement devices similar to those [which] are operated by [Chicagoland], in the Common Areas of the Shopping Center or other areas within the Shopping Center nor shall [Parkside] enter into a lease with a person or other entity other than [Chicagoland] for space within the Shopping Center which shall be utilized as an amusement center or other usage substantially similar to [Chicagoland’s] use hereunder, except with the prior written approval of [Chicagoland]. This provision is in effect only so long as [Chicago-land] is not in default and is doing business from the Premises.

Chicagoland set up fifty-five to sixty amusement games and operated profitably for the next three years without competition from similar businesses in the shopping center. In September 1993, without notice to Chicagoland, Parkside (through King) leased space in the shopping center to Q-Lanta for the purpose of operating about 25 coin-operated amusement games identical or similar to the games at Chicagoland, along with an amusement game known as laser tag. After Q-Lanta opened its business in November 1993, Chicagoland sales and profits immediately began dropping.

On November 12, 1993, Chicagoland sued to enjoin Parkside, King and Q-Lanta from leasing the space in violation of the covenant restricting competition, but injunctive relief was ultimately denied because Q-Lanta had no knowledge of the covenant when it signed its lease with Parkside. Chicagoland Vending v. Parkside Center, 265 Ga. 318 (454 SE2d 456) (1995). In the face of competition from QLanta, Chicagoland’s business continued to lose money until the losses finally forced it to close in February 1997. In the meantime, Chicagoland dismissed Q-Lanta from its suit and amended the action to seek damages against Parkside and King for violation of the covenant and the destruction of the value of its leasehold, and for tortious interference with its lease and attorney fees under OCGA § 13-6-11.

During a jury trial in 1999, the trial court entered a directed verdict against Chicagoland on the tortious interference claim. The jury awarded Chicagoland $787,400 for damages to its leasehold caused by violation of the covenant and $140,000 in attorney fees, which included fees paid by Chicagoland in its unsuccessful attempt to get injunctive relief. In entering judgment on the verdict, the trial court reduced the attorney fee award to $74,000 to eliminate fees paid for the attempt to get an injunction.

Case No. A01A0461

1. Parkside and King contend the trial court erred by instructing the jury to construe the covenant restricting competition and in failing to declare the covenant unreasonable and invalid as a matter of law.

Although we agree the trial court had a duty to construe the covenant, its failure to do so in this case was harmless error because the jury verdict was consistent with a proper application of the rules of contract construction to the covenant. Contract construction follows a three-step procedure. “The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction; if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.” (Footnote omitted.) Garrett v. Women’s Health Care &c., 243 Ga. App. 53, 56-57 (3) (532 SE2d 164) (2000). Thus, the jury does not become involved in the process, even if the contract is difficult to construe, until there appears an ambiguity in the contract which cannot be resolved by the trial court’s application of the rules of construction set forth in part in OCGA § 13-2-2. Kusuma v. Metametrix, 191 Ga. App. 255, 256 (381 SE2d 322) (1989).

The construction issue presented was whether the covenant restricted competition in a manner reasonably necessary to protect Chicagoland’s business, or whether it was so broad that it unreasonably restricted competition and amounted to an illegal restraint of trade.

[A]n agreement by a lessor ancillary to a leasing of a part of his property, designed to prevent the use of the remainder of his property in a manner competitive with the operation of the lessee’s business, is a valid and reasonable restraint of trade . . . subject to the overriding requirements that, as to territoriality and/or duration, [such agreements] be reasonably necessary to protect the interests of the covenantee, that they not impose greater restrictions upon the covenantor than are necessary for the covenantee’s protection, and that they not unduly prejudice the interests of the public.

Webster v. Star Distrib. Co., 241 Ga. 270, 272 (244 SE2d 826) (1978). Parkside contends the trial court should have concluded that the covenant was unambiguous and imposed unreasonable restrictions by attempting to broadly restrict competition from all “amusement centers,” which could include movie theaters, bowling alleys, billiards rooms, or other forms of amusement substantially different from Chicagoland’s business. Accordingly, Parkside argues that the trial court should have narrowly focused on the clause in the covenant containing the term “amusement center” and used a technical grammatical construction to find that nothing modified this term to limit its restrictive effect. Taking a broader view we conclude that, considering the entire restrictive covenant in the context of the lease agreement, one could easily conclude that the intent was to restrict competition only from “amusement centers” with “usage substantially similar to [Chicagoland’s] use.” Accordingly, applying the principles set forth in Webster along with the applicable rules of contract construction would have led to two possible conclusions in the trial court.

The first is that, construing the lease and the covenant as a whole (OCGA § 13-2-2 (4)), and disregarding the technical grammatical construction urged by Parkside (OCGA § 13-2-2 (6)), the clear and unambiguous intention of the covenant was to restrict competition from “amusement centers” only to the extent they operated amusement devices substantially similar to those operated by Chicagoland. Under this construction, the covenant would clearly be a valid restraint of trade under Webster, and it would have been the duty of the trial court to declare the covenant valid as a matter of law. OCGA § 13-2-1; Copy Systems of Savannah v. Page, 197 Ga. App. 435, 436 (398 SE2d 784) (1990).

The second possibility is that, even after applying the rules of contract construction, an ambiguity remained as to whether the covenant unreasonably restricted competition or was a valid restraint of trade. Under this construction, it would have been the duty of the trial judge to submit the ambiguity to the jury for resolution. Id. at 436.

We need not decide which of these two options would have been the correct course. The jury verdict validating the covenant was consistent with the first option, so any error in the trial court’s failure to construe the covenant and declare it valid was harmless. As to the second option, even if the trial court erroneously submitted the covenant to the jury without first construing it and determining there was an ambiguity, no harmful error is shown if the jury’s construction is supported by the evidence. Time Warner Entertainment v. Six Flags Over Ga., 245 Ga. App. 334, 344 (537 SE2d 397) (2000). In this case, the terms of the covenant and the evidence presented by the parties to explain any ambiguity provided evidence supporting the jury verdict in favor of Chicagoland — a verdict consistent with the conclusion that the covenant was a valid, reasonable restriction on competition, and that Parkside violated it by leasing to Q-Lanta.

2. King claims the trial court erred by refusing to dismiss him from the suit on the basis that an exculpatory clause in the lease released him from any liability.

The exculpatory clause referred to by King appears as the latter portion of paragraph 22.8 of the lease beginning with the phrase “provided, however” and continuing to the end of the paragraph. Paragraph 28 reads in its entirety as follows:

The terms, provisions and covenants contained in this lease shall apply to, inure to the benefit of, and be binding upon the parties hereto and their respective heirs, assigns, successors in interest and legal representatives except as otherwise herein expressly provided, provided, however, that all claims, demands, or causes of action which Tenant may at any time thereafter have against Landlord because of Landlord’s failure to comply with any provisions hereof, shall be enforceable solely against Landlord’s right, title and interest in Shopping Center and no other property of Landlord shall be subject to any such claim, demand or cause of action.

King, who was named as party to the suit as the general partner of the Parkside limited partnership, contends he should have been dismissed because the exculpatory clause limits any recovery to the limited partnership’s interest in the shopping center. Aside from the fact that a general partner is liable for the payment of all debts and obligations of the limited partnership (Prodigy Centers/Atlanta v. T-C Assoc., 269 Ga. 522-523, n. 1 (501 SE2d 209) (1998)), we find no error in the trial court’s refusal to dismiss King because the exculpatory clause fails to satisfy the requirement that it appear prominently in the lease agreement. Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 644-645 (490 SE2d 124) (1997).

Because exculpatory clauses waive substantial rights, could amount to an accord and satisfaction of future claims and require a meeting of the minds on the subject matter, they must be “ ‘explicit, prominent, clear and unambiguous.’ ” Dept. of Transp. v. Arapaho Constr., 180 Ga. App. 341, 343 (1) (349 SE2d 196) (1986). The exculpatory clause at issue appears in paragraph 22.8 of the lease, which has no separate paragraph heading and has typeface the same size as all of the surrounding numbered paragraphs from 22.1 through 22.14 that all appear on the last page of the form lease under the general heading of “Miscellaneous.” In fact, as set forth above, the exculpatory clause is not even set off in a separate paragraph, but appears only as the second clause of a sentence in paragraph 22.8. Lacking any indicia of prominence, the exculpatory clause is unenforceable. Compare Imaging Systems, 227 Ga. App. at 645; Grace v. Golden, 206 Ga. App. 416, 417 (425 SE2d 363) (1992). The trial court did not err by refusing to dismiss King pursuant to the exculpatory clause.

3. Parkside and King argue that Chicagoland was in default under the lease and therefore could not rely on the covenant restricting competition, which stated that it was effective only if the tenant is not in default.

Parkside points out that on November 2, 1993, when Chicago-land was one day late on the November rent payment under the lease terms, it notified Chicagoland that it was late and would be declared in default under the terms of § 17.3 (e) of the lease if it did not pay the rent due within three days of receiving the notice. The lease provided that notices be given at Chicagoland’s business premises in Atlanta or at the Chicagoland offices in Chicago. This notice was addressed to Chicagoland’s president, Les Silver, and hand-delivered on November 2 to the Atlanta business premises, even though Silver’s office was in Chicago. After Silver received the notice in Chicago on November 5, Chicagoland attempted to hand-deliver the November rent to Parkside on the evening of November 5 within the three-day period. Nevertheless, Parkside contends Chicagoland was in default because the attempted payment on November 5 came after more than seventy-two hours (three days) had passed from the time the notice was hand-delivered to Chicagoland on November 2.

We need not decide whether Chicagoland paid the November rent within three days after the hand-delivered notice. Other evidence shows that, over the course of the lease, Parkside accepted repeated late payments from Chicagoland, up to ten days past the due date. This created a factual issue as to whether a mutual departure from the payment terms of the lease created a quasi-new agreement to accept late rent payments under OCGA § 13-4-4. Ford v. Rollins Protective Svcs., 171 Ga. App. 882, 884-885 (322 SE2d 62) (1984). If there was a quasi-new agreement for late payment, then the payment terms of the lease were suspended, and Parkside could not require timely payment under the exact terms of § 17.3 of the lease until it first gave Chicagoland reasonable notice that it intended to rely on the lease terms. Id.

On these facts, the trial court properly allowed the jury to decide whether Chicagoland was in default under the lease terms or timely paid the rent under a quasi-new agreement adopted by the parties. There was no error in the trial court’s refusal to grant a directed verdict or a judgment notwithstanding the verdict on this ground.

4. Parkside and King claim the trial court should have directed a verdict in their favor because of lack of evidence establishing the measure of damages to Chicagoland’s leasehold.

The measure of damages recoverable for a lessor’s breach of covenant not to rent other stipulated premises for a competing business is the difference in value between the tenant’s leasehold with the covenant against competition unbroken and the same leasehold with the covenant broken. The value of said leasehold is not controlled by the stipulated rental therefor, nor the profits which the tenant could have realized from the operation of his business without the adjacent competing business. However, allegations and evidence of loss of profits are material to show the damage sustained by the lessee, in accordance with the rule herein stated. Evidence of loss of profits is admissible and pleadings in support thereof proper in order that the jury may properly estimate the value of the leasehold estate before and after the covenant is broken. Therefore, a recovery for loss of profits occasioned by a breach of contract where properly pleaded and proved may be indirectly had.

(Citations and punctuation omitted.) David Enterprises v. Kingston Atlanta Partners, 211 Ga. App. 108, 111 (2) (438 SE2d 90) (1993).

Chicagoland produced evidence that its lease had zero value with the covenant restricting competition broken by the lease to QLanta. There was also evidence that the stipulated rental payment in the lease was $52,668 per year, and that at the time the covenant was broken, the lease had two years remaining in its original term and two five-year renewal options, for a total of twelve remaining years. The jury was not, however, limited to concluding that the total damage to the value of the leasehold was $52,668 times the 12 remaining years of the lease. Carusos v. Briarcliff, Inc., 76 Ga. App. 346, 351-352 (45 SE2d 802) (1947). There was further evidence from which the jury could have determined that, at the time of the lease to Q-Lanta, Chicagoland was averaging over $40,000 per year in profits from 1990 through 1992, and that these profits were lost and replaced by operating losses until the business was forced to close in February 1997. Furthermore, there was evidence that Chicagoland invested in excess of $500,000 in the business, but could obtain only $71,000 when it liquidated the business upon closing. Although Chicagoland was not entitled to recover directly for lost profits and investments, this evidence was admissible for the purpose of allowing the jury to conclude that the value of the leasehold for the purpose it was being used was substantially in excess of the stipulated rental payments in the lease. Id. The evidence was sufficient to allow the jury to conclude that the difference between the válue of the leasehold with the covenant broken and unbroken over the full term of the lease was $787,400. The trial court did not err by refusing to direct a verdict for lack of evidence establishing damages.

5. There is no merit to the contention that Chicagoland was not entitled to show evidence of lost profits after it closed its business and vacated the premises in February 1997.

Chicagoland presented sufficient evidence of established profits prior to the broken covenant so that, in determining damages to the value of the leasehold, it was not unreasonable or speculative to allow the jury to consider what profits would have been with the covenant unbroken over the term of the lease. See Witty v. McNeal Agency, 239 Ga. App. 554, 562 (521 SE2d 619) (1999). Moreover, there was evidence that Parkside’s breach of the covenant restricting competition prevented Chicagoland from operating its business for the full term of the lease. Accordingly, the jury was entitled to conclude that Parkside was estopped from asserting as a defense that Chicagoland failed to operate for the full term of the lease. See Merritt v. State Farm &c. Ins. Co., 247 Ga. App. 442, 447 (544 SE2d 180) (2000).

6. Contrary to the claim of Parkside and King, the trial court did not err in refusing to give their request to charge no. 20 relating to the award of attorney fees under OCGA § 13-6-11. The charge was untimely submitted at the close of evidence on the last day of the trial on a point that was anticipated by the parties in the pre-trial order. Accordingly, under Uniform Superior Court Rule 10.3, the trial court did not err in refusing to give the charge. Smith v. State, 222 Ga. App. 366, 370-371 (474 SE2d 272) (1996).

7. Parkside and King claim the evidence did not support the amount of attorney fees awarded. The trial court reduced the jury’s award of attorney fees to eliminate amounts expended by Chicago-land in its unsuccessful pursuit of injunctive relief. However, in addition to those sums, Chicagoland produced evidence that it also incurred fees and expenses in the amount of $71,811.37 on its subsequent claim, plus additional fees for legal representation during the five-day trial at rates up to $150 per hour. This evidence supported the award (as reduced by the trial court) of $74,000 in fees and expenses.

8. Parkside and King contend the trial court should have set off from the jury verdict the sum of $11,503 which Chicagoland received as a settlement from the new owner of the shopping center when it closed its business in February 1997 and settled claims against the new owner. Instead, the judge instructed the jury to consider the set-off issue.

Although the settlement should have been set off from the verdiet by the judge (Allison v. Patel, 211 Ga. App. 376, 383 (438 SE2d 920) (1993)), Parkside and King presented evidence to the jury on this issue and requested that the trial court instruct the jury to decide the issue. Because any error was self-induced, Parkside and King cannot complain on appeal about the procedure they requested. Kodadek v. Lieberman, 247 Ga. App. 606, 608, n. 3 (545 SE2d 25) (2001).

Case No. A01A0757

9. Contrary to Chicagoland’s contention, the trial court properly directed a verdict against the claim that Parkside and King tortiously interfered with Chicagoland’s lease rights.

“In order to be liable for interference with a contract, a defendant must be both a stranger to the contract and the business relationship giving rise to and underpinning the contract.” Pruitt Corp. v. Strahley, 270 Ga. 430 (510 SE2d 821) (1999). Since neither Parkside nor King was a stranger to the lease agreement with Chicagoland, they cannot be liable for tortiously interfering with Chicagoland’s lease rights.

10. The trial court did nor err in reducing the attorney fees awarded by eliminating the sums expended by Chicagoland in its effort to obtain an injunction to prohibit the lease to Q-Lanta. Since the equitable injunctive relief sought was denied, Chicagoland was not entitled to attorney fees under OCGA § 13-6-11 related to this effort. Hunter v. George, 265 Ga. 573, 575-576 (458 SE2d 830) (1995).

Judgments affirmed.

Johnson, P. J., Smith, P. J., and Ruffin, J., concur. Eldridge, Miller and Phipps, JJ, concur in part and dissent in part. Ellington, J., disqualified.

Miller, Judge,

concurring in part and dissenting in part.

I concur in the majority’s opinion and affirmance in Case No. A01A0757, but I respectfully dissent as to the opinion and affirmance in Case No. A01A0461, in which I would reverse the judgment. I would hold that the language of the restrictive covenant is not ambiguous, and that under its plain meaning the covenant against amusement centers protects more than Chicagoland’s business interests as an arcade center and thus is unenforceably overbroad.

Parkside and King argue that the court erred in instructing and allowing the jury to construe the restrictive covenant and in failing to declare the covenant unenforceable as a matter of law. I agree that the court should have construed the covenant, and I would hold that this error was harmful in that a proper construction of the contract would have resulted in the conclusion that the covenant was unenforceable.

“The construction of a contract is a question of law for the court.” Contract construction follows three steps: “The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction; if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.” Thus, the jury does not become involved in the process, even if the contract is difficult to construe, until there appears an ambiguity in the contract which cannot be resolved by the court’s application of the rules of construction set forth in part in OCGA § 13-2-2.

I would hold that the contract provision here was not ambiguous but was plain on its face. Thus, the rules of construction need not be applied, and the matter should not have gone to the jury. The lease’s restrictive covenant prohibits Parkside from entering a lease with someone who would use the space as an amusement center or other usage substantially similar to Chicagoland’s use. “Amusement center” is a broad term that would include movie theaters, bowling alleys, billiards rooms, or other forms of amusement or entertainment. Nothing modifies “amusement center” so as to restrict its meaning to arcade or videogame centers.

The query would then become whether such a restriction is enforceable under Georgia law. The validity of covenants restricting the activities of lessors in commercial leases

is subject to the overriding requirements that, as to territoriality and/or duration, they be reasonably necessary to protect the interests of the covenantee, that they not impose greater restrictions upon the covenantor than are necessary for the covenantee’s protection, and that they not unduly prejudice the interests of the public.

Chicagoland did not narrowly define “amusement center” to restrict competition for its protection. Since the term includes activities not in competition with Chicagoland, it is overbroad and unreasonable as to the scope of the activity prohibited, i.e., it imposes greater restrictions upon Parkside than necessary to protect Chicago-land’s interests. Thus, I would hold that the court erred in not striking the provision as unenforceable and in not entering judgment in favor of Parkside and King on the breach of contract claim and on the derivative claim for attorney fees.

Decided July 16, 2001

Browning & Tanksley, Thomas J. Browning, for appellants.

Wimberly & Lawson, Paul Oliver, Rhonda L. Klein, for appellee.

I am authorized to state that Judge Eldridge and Judge Phipps join in this dissent.

       Redemption games are those in which the participant earns tickets that can be redeemed for prizes.

       OCGA § 13-2-1.

       (Footnote omitted.) Garrett v. Women’s Health Care &c., 243 Ga. App. 53, 56-57 (3) (532 SE2d 164) (2000); accord Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986).

        Kusuma v. Metametrix, 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989).

       (Citations omitted.) Webster v. Star Distrib. Co., 241 Ga. 270, 272 (a) (244 SE2d 826) (1978).


source: Caselaw Access Project

author: Blackburn, Chief Judge. Mikell, Judge,

license: Public Domain

text:
    A01A0642.
    JACKSON v. THE STATE.
    (552 SE2d 546)
   Blackburn, Chief Judge.

Pursuant to a plea agreement, Maurice Bruce Jackson pled guilty to three separate counts of entering an automobile, and he agreed to pay restitution on a number of additional counts with which the State consented not to charge him. Following a restitution hearing, the trial court ordered Jackson to pay six of his victims a total of $4,114.87. On appeal, Jackson contends that the State presented evidence regarding only the replacement cost of stolen items rather than their fair market value, as required by law. For the reasons discussed below, we agree and affirm in part, vacate in part, and remand the case for further consideration.

Under OCGA § 17-14-9, “(t)he amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages,” which are further defined in OCGA § 17-14-2 (2) as “all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .” “ThusQ the sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence.” Lawrenz v. State.

Anderson v. State.

Determination of the amount of damages must be based upon fair market value, which must be determined exactly. Lovell v. State (evidence insufficient when amount of restitution determined by approximation). The correct determination for the amount of restitution is the fair market value of the property rather than the replacement cost. See Sutton v. State (value assigned to the property for which restitution ordered based upon a consideration of the fair market value of a truck of comparable age and condition). See also Hoard v. Wiley (testimony regarding cost price must be coupled with evidence showing condition of item both at time of purchase and at time of loss).

Gaskin v. State; Cardwell v. State.

Six witnesses testified at the restitution hearing. James Aycock stated that Jackson stole a compact disc (CD) player, a CD case, and 75 CDs from his car. Aycock provided only the replacement value of these items, not their fair market value. Tammy Jester also testified that Jackson stole a CD player from her car. She also provided the court with the cost to replace the CD player, not its fair market value. Roger Pierce stated that Jackson took a CD player and a shotgun from his car. Again, Pierce provided only the replacement value of these items. In addition, Pierce requested restitution for his truck window which was broken during the robbery, and he provided a receipt reflecting the cost of performing the repairs.

David Garcia testified that Jackson stole an amplifier from his car; however, rather than fair market value, he provided only the replacement value for the item. Another victim, Corey Adams stated that Jackson took an entire stereo system from his car, and, like the others, he offered the replacement value of the items, not their fair market value. Finally, Jackson does not contest being ordered to pay restitution to Aycock, Garcia, and Paul Massey for the cost of repairing their car windows which were broken during the robbery.

At the conclusion of this testimony, Jackson challenged the sufficiency of the evidence, pointing out to the trial court that the testimony of the witnesses provided only the replacement cost of the stolen items, not the fair market value. The trial court then agreed with Jackson that discounted values were necessary and stated: “The [trial court] ... is the trier of fact and . . . can give some consideration to what the discount might be on a, for example, CD player which was either a month or two months old that was stolen after it was purchased and also whether or not it was purchased at a sale and the replacement cost would now be higher.” Afterward, the trial court, without explanation, set values for each of the stolen items.

With the exception of the noncontested items discussed directly above as well as Pierce’s car window for which sufficient evidence was given, no evidence was placed in front of the factfinder in this case regarding the fair market value of these items, the condition of the items, or an appropriate method of discounting the items from their replacement value to their fair market value. Without any such evidence on the record, we cannot say that the State has shouldered its burden of proving the fair market value of the stolen items upon which an order of restitution may be based. Gaskin, supra. As such, with the exception of the costs of repairing windows on the cars of Aycock, Pierce, Garcia, and Massey, we must vacate the order of restitution in this case and remand the case for further hearings to determine the fair market value of the stolen property.

The State’s argument that there is no way of calculating a fair market value for stolen stereo equipment is without merit and does not alter the law. In essence, the State argues that the only means to discover this value is to canvass pawnshop owners, who do not accept stereo equipment because it is often stolen. At the restitution hearing, the State called no pawnshop owners to support this proposition and failed to produce evidence having probative value of the victims’ losses. The value of stolen property can be established by one having knowledge of the age and condition of the subject property and some knowledge, experience, or familiarity of such property.

Here, the State could have produced such a witness, including the victim of the theft, who is familiar with the stolen items and has a fact-supported opinion as to their value. Such proof is routinely required in civil cases.

Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property ... or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.

Sisk v. Carney. Therefore, contrary to the State’s argument, it must prove the actual damages of the victims in order to justify restitution.

The special concurrence speculates that, in some cases, proof of restitution may not be possible and that the replacement value of stolen property may be the actual amount of a victim’s loss. The concurrence further proposes that, in cases such as this, “the trial court should be given the authority to reconsider the sentence and, if appropriate, to allow the defendant to withdraw his plea of guilty.” However, as the concurrence itself points out, the remedy provided for in this majority is the one established by case law and statute, and, without question, the amount of damages must be based on fair market value. See Cardwell, supra. To adopt the concurrence’s proposed remedy would require that this Court overrule a legion of cases and rewrite the statutory authority setting forth the parameters of restitution. In this case, such an action goes beyond the limits of judicial restraint and constitutes inappropriate judicial legislation.

Judgment affirmed in part, vacated in part and remanded with direction.

Pope, P. J., concurs. Mikell, J., concurs specially.

Mikell, Judge,

concurring specially.

I write separately to mention that one purpose of restitution, in addition to compensating the victim, is to impose punishment on the offender. It could be that, under the circumstances of the case at bar, an adequate and competent proof of the amount of restitution may not be possible. For example, the six citizens who testified at the sentencing hearing may not be willing to return. Moreover, with some kinds of property crimes, it may never be possible to present the required evidence of the fair market value of the damaged or stolen property. In such instances, the trial court may be faced with an affirmed sentence of probation but without restitution in an amount adequate to punish the offender. In such circumstances, the trial court should be given the authority to reconsider the sentence and, if appropriate, to allow the defendant to withdraw his plea of guilty. See Uniform Superior Court Rule 33.10.

The difficulty of proving the damages in restitution cases with the precision required by OCGA § 17-14-2 (2) and the case law is well illustrated by the case at bar. Damages are defined by the cited statute as “all damages which a victim could recover against an offender in a civil action . . . except punitive damages and damages for pain and suffering. . . .’’As any practitioner can testify, proof of damages in a civil lawsuit in Georgia can be a highly technical chore requiring careful trial preparation and evidence gathering. To achieve restitution in a criminal case involving property, the state must present competent evidence showing the “fair market value” of the stolen or damaged property at the time of the loss. But in the case at bar, the victims’ losses were the replacement value of the stolen items, not their fair market value after use, because, as is ever more common in our modem consumer society, used items cannot be purchased or can be located only after expenditure of more time and money than would be needed to obtain a new replacement item.

The current statutory scheme is especially inadequate when the items to be replaced are unique. For example, a victim testified on cross-examination as follows regarding the theft of an in-dash compact disc player and 75 CDs:

Q. It was not new anymore; correct?
A. No, sir.
Q. It had been used?
A. Yes.
Q. Have you priced what it would cost you to purchase a used CD player used roughly the same amount on the open market?
A. I’m not aware of any place that sells used car CD players.
Q. Have you priced that or not?
A. I’ve priced the new one, which is cheaper than the one I bought. The same CD player is cheaper now than it was when I bought it originally.
Q. Then you have not priced a used one then?
A. No, sir. I’m not aware of any place that sells used car CD players.
Q. Have you gone to any pawn shop and looked at their price of used CD players?
A. Yes, sir. I have gone to the pawn shops and they told me they do not deal in car CD players because most of them are stolen.
Q. The 75 CDs you priced at $13.88 each, is that the cost of purchasing them?
A. That’s a cost of a new one, yes.
Q. Have you priced what it would cost for 75 of the same CDs used?
A. Sir, I don’t think you will find these CDs. They were contemporary Christian CDs and the new Christian punk rock CDs and I’m not aware of anywhere that sells them at all. You get them mostly through the Internet and at concerts and places like this.
Q. So you have not priced what 75 used CDs would cost that are the same type?
A. No, I have not.

Under the current statutes, the state would have to present competent evidence of the fair market value of the victim’s Christian CDs. Since the CDs are not readily available for repurchasing, this burden would be extraordinarily difficult, if not impossible, to meet.

Decided July 16, 2001.

Grist & Brock, Joel M. Grist, Jr., for appellant.

Howard Z. Simms, District Attorney, Graham A. Thorpe, Myra H. Kline, Assistant District Attorneys, for appellee.

The law governing restitution to victims of crime needs to be uncoupled from the technical requirements of proving damages in civil lawsuits if the courts are to carry out the public policy declared by the legislature: OCGA § 17-14-1. “Declaration of Public Policy. It is declared to be the policy of this state that restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system.” Unless some means can be found to make the rules for proving restitution less hypertechnical, the “primary concern of the criminal justice system” may be frustrated. Indeed, the high difficulty of proof may incline trial courts to eschew ordering probation and restitution and instead to sentence offenders to straight confinement for nonviolent crimes.

The General Assembly should consider revising OCGA §§ 17-14-2 (2) and 17-14-9 to provide that in ordering restitution for damage to, or loss of, property, a court may consider the replacement value or the fair market value or the cost of repairs when determining the amount of a victim’s loss. This easing of the burden of proving a victim’s loss would not work an injustice to the offender because the amount of restitution to be ordered would still be restrained by the required consideration of the factors specified in OCGA § 17-14-10, including the financial condition of the offender and his dependents and the probable future earning capacity of the offender.

In summary, I agree with the majority that our present statutes and precedents require at least a partial reversal of the restitution order.

       Jackson has not questioned the State’s ability to enforce any such agreement, and, as such, we do not consider that issue in this appeal.

        Lawrenz v. State, 194 Ga. App. 724, 725 (391 SE2d 703) (1990).

        Anderson v. State, 226 Ga. App. 286 (486 SE2d 410) (1997).

        Lovell v. State, 189 Ga. App. 311, 313 (3) (375 SE2d 658) (1988).

        Sutton v. State, 190 Ga. App. 56, 57 (1) (378 SE2d 491) (1989).

        Hoard v. Wiley, 113 Ga. App. 328, 333-334 (2) (147 SE2d 782) (1966).

        Gaskin v. State, 221 Ga. App. 142, 145 (3) (b) (470 SE2d 531) (1996).

        Cardwell v. State, 225 Ga. App. 337 (484 SE2d 38) (1997).

        Sisk v. Carney, 121 Ga. App. 560, 563 (4) (174 SE2d 456) (1970).


author: Blackburn, Chief Judge.

text:
    A01A0712.
    NORTH et al. v. THE STATE.
    (552 SE2d 554)
   Blackburn, Chief Judge.

In this interlocutory appeal, Reico North and Travis North appeal the trial court’s order denying their motion to suppress incriminating cassette recordings obtained during a wiretap. The defendants contend that: (1) these tapes were not timely sealed as required by 18 USC § 2518 (8) (a); and (2) the information contained on the tapes was not properly safeguarded as required by OCGA § 16-11-64 (b) (8). For the reasons set forth below, we affirm.

In this case, the evidence relevant to the defendants’ motion to suppress is undisputed. “[W]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State.

The record shows that the Carrollton Police Department suspected that Officer Alex Houston and the defendants were trafficking illegal drugs. To facilitate an investigation, the West Georgia Drug Task Force requested and obtained a court order allowing them to use a wiretap from April 7, 1997, through April 21, 1997. After recording numerous cassette tapes of Officer Houston’s and the defendants’ conversations, the task force decided to end the wiretap on April 15, 1997, with no intention to resume further surveillance. And, although the task force sealed the tapes in evidence envelopes shortly after they were recorded, the tapes were not officially sealed by the trial court until April 21,1997, the day the order allowing surveillance expired.

1. The Norths contend that the tapes obtained from the wiretap were not properly sealed in accordance with 18 USC § 2518 (8) (a). We must disagree.

‘Wiretapping and surveillance are the subjects of federal and state law and both must be complied with where applicable.” Orkin v. State. Georgia law “must meet the minimum standards of [federal law] in protecting privacy but may impose more stringent requirements and any interception must conform to both the state and federal law.” Ellis v. State.

[F]or evidence obtained through state-authorized [wiretaps] to be admissible in a state criminal proceeding, it must have been obtained in a manner not inconsistent with the requirements of both the federal and state laws. On the other hand, such evidence must be excluded if it was obtained in a manner inconsistent with the mandate of either the federal or the state law.

(Emphasis in original.) Cox v. State.

18 USC § 2518 (8) (a) requires that

[t]he recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders.

Section 2518 (8) (a) provides further that “[t]he presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517.” Like the federal statute, Georgia law also requires the exclusion of evidence obtained in violation of the mandates for obtaining wiretap evidence. OCGA § 16-11-67.

This case presents the problematic question of whether a sealing delay must be calculated from the expiration date of the warrant or the date that the tap is actually terminated, where such date precedes the expiration date on the wiretap order. Although requiring the immediate judicial sealing of the recording upon the termination of the tap would seem to better serve the underlying purpose of 18 USC § 2518 (8) (a), the statute, on its face, requires immediate sealing only after “the expiration of the period of the order, or extensions thereof.” (Emphasis supplied.) As such, we must follow the plain language of the statute and find that the tapes in this case were admissible because they were sealed by the judge on the date that the wiretapping order terminated. See, e.g., United States v. Venuti; United States v. Santoro; United States v. Massino.

The wiretapping statutes would be more harmonious if they provided that judicial sealing is required at the expiration of the order or the surveillance, whichever occurs first.

The primary thrust of § 2518 (8) (a) is to ensure the reliability and integrity of evidence obtained by electronic surveillance. The presence or absence of a seal does not in itself establish the integrity of electronic surveillance tapes. Rather, the seal is a means of ensuring that subsequent to its placement on a tape, the Government has no opportunity to tamper with, alter, or edit the conversations that have been recorded. It is clear . . . that Congress viewed the sealing requirement as important precisely because it limits the Government’s opportunity to alter the recordings.

United States v. Rios.

2. The Norths contend that the State improperly made disclosures of the wiretap recordings in violation of OCGA § 16-11-64. Again, we disagree.

OCGA § 16-11-64 (b) (8) provides:

Any publication of the information or evidence obtained under a warrant issued [for the interception of wire or oral transmissions] other than that necessary and essential to the preparation of and actual prosecution for the crime specified in the warrant shall be an unlawful invasion of privacy . . . and shall cause such evidence and information to be inadmissible in any criminal prosecution.

Specifically, the Norths complain about two disclosures. The first allegedly occurred at a meeting on April 29, 1997, between Commander Wayne Smith and a number of city and police officials. The purpose of this meeting was to inform Carrollton officials about the status of the pending investigation of Officer Houston, and, although Commander Smith provided them with a synopsis of the investigation, he did not reveal any of the contents of the wiretap recordings. Because no disclosure was made of the wiretap contents, OCGA § 16-11-64 (b) (8) was not violated in this circumstance.

The second disclosure occurred when a portion of a duplicate surveillance tape was played for Charles B. Carroll, Jr., Chief of Police for the City of Carrollton. The excerpt played included a conversation between Officer Houston and another individual in which Officer Houston was attempting to purchase a urine sample to swap with his own for purposes of drug testing. Carroll listened to this tape in his capacities as Chief of Police, as Officer Houston’s supervisor, and as a member of the Control Board of the West Georgia Drug Task Force. Accordingly, we cannot say that the trial court abused its discretion in finding that this limited disclosure to Carroll required exclusion of all wiretap evidence pursuant to OCGA § 16-11-64 (b) (8).

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Decided July 16, 2001

Dennis T. Blackmon, for appellants.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Orkin v. State, 236 Ga. 176, 179 (2) (a) (223 SE2d 61) (1976).

        Ellis v. State, 256 Ga. 751, 754 (2) (353 SE2d 19) (1987).

         Cox v. State, 152 Ga. App. 453, 455-456 (263 SE2d 238) (1979).

        United States v. Venuti, 625 FSupp. 1460 (S.D. N.Y. 1986).

        United States v. Santoro, 647 FSupp. 153 (E.D. N.Y. 1986).

        United States v. Massino, 784 F2d 153, 156 (2nd Cir. 1986).

       (Citations omitted.) United States v. Rios, 495 U. S. 257, 263 (110 SC 1845, 109 LE2d 224) (1990).


author: Barnes, Judge.

text:
    A01A0940.
    BUTLER v. THE STATE.
    (552 SE2d 565)
   Barnes, Judge.

This case is before us again following the grant of Tony S. Butler’s motion for an out-of-time appeal after his earlier appeal was dismissed because the notice of appeal was untimely filed. Butler appeals his convictions for voluntary manslaughter and aggravated assault. He alleges that the verdict is contrary to the evidence, without evidence to support it, is decidedly and strongly against the evidence, and is contrary to law and principles of justice and equity. He also alleges that the trial court erred by omitting part of the jury charge on justification. Finding no error, we affirm.

1. Butler’s allegations that the verdict is contrary to and strongly against the evidence and contrary to law and principles of justice and equity do not fall within the jurisdiction of this court.

The denial of a motion for new trial on these grounds addresses itself to the discretion of the trial judge. On appeal, this Court only reviews the evidence to determine if it is sufficient to support the verdict. This is a question of law, not discretion. The evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt.

(Citation omitted.) Pettus v. State, 237 Ga. App. 143 (1) (514 SE2d 901) (1999). When determining whether the evidence is sufficient to support the verdict, we neither weigh the evidence nor judge witness credibility (Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990)), because those tasks are within the province of the jury. Tur ner v. State, 206 Ga. App. 683, 684 (426 SE2d 168) (1992).

Viewed most favorably to the verdict, the evidence shows that days after Michael Darrell Kitchens robbed Butler, Kitchens and a man were standing near a parking lot when a car in which Butler was a passenger pulled up. Kitchens appeared to put his hand in his back pocket for a gun, and then he approached the car. He asked Butler if Butler was the one he had robbed earlier. Saying that he wanted to pay Butler for what he had stolen, Kitchens appeared to be putting his hand in his pocket for money when he reached in the car trying to grab a pistol that was under Butler’s leg on the car seat. Kitchens and Butler struggled for the gun, and when he could not get the gun away from Butler, Kitchens ran away. Butler and the other man in the car chased after him. Butler had a gun in his hand and fired a shot. The men chased Kitchens behind a building, and more shots were fired.

Later, Butler and the other man returned to their car and drove off. Kitchens was found dead on the scene from a gunshot wound. Although Kitchens had a reputation for being a robber and was known to have been charged with murder, he was not seen with a gun that night.

After having reviewed the evidence discussed above in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Butler guilty of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Butler contends the trial court erred when it gave the prosecution’s requested jury charge on revenge. The charge requested and given advised the jury: “To deliberately kill in revenge for past injury, however, heinous, cannot be justifiable after reason has had time to resume its sway.” Butler’s complaint, however, is not that this charge is erroneous. Indeed, he could not make such a complaint because his counsel stated that she had no objection to the charge before it was given.

Instead, he contends the charge should have contained the information contained in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), § AA (7), pp. 48-49. Butler, however, did not make a written request for this charge, and, as this was not his sole defense, the trial judge did not commit reversible error by failing to give a charge that was not requested in writing. Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219) (1991).

Decided July 17, 2001.

Franklin & Hubbard, Brooks S. Franklin, William F. Holbert, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Peggy R. Katz, Assistant District Attorneys, for appellee.

While present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the failure to give instructions to the jury, this does not relieve him from the necessity of requesting instructions, except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.

(Citation and punctuation omitted.) Kitchen v. State, 263 Ga. 629, 630 (1) (436 SE2d 645) (1993). As the failure to give the charge Butler now believes should have been given was not clearly harmful and erroneous as a matter of law, we find no error.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

         The conviction for aggravated assault was merged with Butler’s conviction for voluntary manslaughter for sentencing purposes.

       Butler’s defense was justification because of self-defense, and his requested charges on this theory were given.


text:
    A01A1229.
    MAXWELL v. THE STATE.
    (552 SE2d 870)
   Barnes, Judge.

Amelia Ann Maxwell appeals from her possession of a destructive device and aggravated battery convictions, contending: (1) the weight of the evidence favored the defendant; (2) the trial court erred by admitting gruesome and cumulative photos of the victim’s injuries; (3) the trial court erred when it refused to allow the defense to impeach a State witness with previous misdemeanor convictions; (4) the trial court erred when it charged on a lesser included offense over defendant’s objection; and (5) the trial court erred in its recharge of the jury. For reasons that follow, we find no merit in any of these enumerations.

1. In her first enumeration of error, Maxwell contends the weight of the evidence was in her favor because she testified that she acted in self-defense and never intended to harm the victim.

As an appellate court, we do not weigh the evidence, judge the credibility of witnesses or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld.

(Citation, punctuation and footnotes omitted.) Brinson v. State, 245 Ga. App. 411, 412-413 (1) (537 SE2d 795) (2000).

Viewed in the light most favorable to the verdict, the record shows that the appellant and the female victim fought outside a club in the early morning hours. The appellant testified that this fight resulted from the victim throwing a drink in her face. Later that day, the appellant, who was accompanied by her sister, saw the victim standing beside a car at a gas station. Her sister approached the victim and swung at her with a baseball bat. When the victim caught the bat, the appellant’s sister told the appellant to “go ahead.” The appellant lit a Molotov cocktail and threw it directly at the victim. The bottle landed between the victim’s legs and caused extensive burn injuries to them. The appellant admitting making and throwing the Molotov cocktail, but claimed she threw it down to scare the victim away because the victim was threatening her with a knife. The victim denied having a weapon.

We find this evidence sufficient to support the appellant’s convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court did not err in admitting color photographs showing the victim’s injuries. These photographs depicted the victim’s injuries shortly after they were inflicted and shortly before trial to show the permanence of the victim’s injuries. Because appellant was indicted for aggravated battery, the State was required to prove that the appellant severely disfigured the victim. See OCGA § 16-5-24 (a).

Photographs which are relevant to any issue in the case are admissible although they will have an effect upon the jury which the defendant feels is damaging to him; jurors are generally deemed to have normal common sense, and in these cases, on these records, we do not well receive the suggestion that the jury will convict a defendant of a crime merely because they have seen the true extent of the victim’s injuries. Photographs showing a severely injured victim may, however gruesome, be relevant to the trial of her alleged assailant and they are not objectionable merely because there is other evidence of the severity of those injuries.

Decided July 17, 2001.

Orin L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

(Citations omitted.) Autry v. State, 230 Ga. App. 773, 774-775 (2) (498 SE2d 304) (1998).

3. Appellant asserts the trial court erred by refusing to allow her to impeach a State’s witness with her previous misdemeanor convictions of criminal trespass and criminal damage to property. We find no merit in this enumeration. Witnesses may be impeached with “evidence of a conviction for a crime involving moral turpitude.” Barker v. State, 211 Ga. App. 279, 280 (4) (438 SE2d 649) (1993). Because criminal trespass and criminal damage to property are not crimes of moral turpitude, the trial court did not err. Id.

4. Appellant contends the trial court erred when it charged the jury, over appellant’s objections, on the lesser included offenses of aggravated assault and simple battery. She further contends the jury convicted her of committing simple battery. We find no merit in this enumeration because the record shows she was indicted for committing aggravated battery and convicted of committing aggravated battery. The record further shows that the trial court did not charge the jury on simple battery.

5. In her remaining enumeration of error, appellant complains that the trial court failed to properly recharge the jury. The record shows that the trial court initially charged the jury on aggravated battery and the lesser included offense of aggravated assault. During its deliberation, the jury asked the trial court to charge again “in reference to the difference between battery and assault.” Appellant’s counsel objected to the trial court recharging the jury on aggravated battery and aggravated assault because the jury asked to be charged on only “battery” and “assault.” The trial court questioned the foreperson of the jury and determined that the jury wanted a recharge of aggravated battery and aggravated assault. We find no merit in this enumeration.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


author: Ruffin, Judge.

text:
    A01A0185, A01A0186.
    PAUL et al. v. DESTITO; and vice versa.
    (550 SE2d 739)
   Ruffin, Judge.

Ralph Destito sued Douglas Paul, Sharon Paul, Catspaw Productions, Inc. (“CPI”), Catspaw, Inc. (“Catspaw”), Atlanta Cateo, Inc. (“Cateo”), and Recording Studio, Inc. (“RSI”) for fraud, negligent misrepresentation, conspiracy to breach fiduciary duty, negligent breach of fiduciary duty,, alter ego liability, amounts due on a promissory note, attorney fees, costs, and punitive damages. CPI counterclaimed, asserting that Destito owed it in excess of $44,000.

A jury found for Destito on each count and against CPI on its counterclaim. With respect to punitive damages, the jury further concluded that defendants “acted, or failed to act, with a specific intent to harm Plaintiff Ralph Destito.” The trial court denied the majority of defendants’ motions for directed verdict and judgment notwithstanding the verdict (“j.n.o.v.”). As to Destito’s claim for litigation expenses, however, the trial judge granted defendants’ j.n.o.v. motion. The parties filed cross-appeals, challenging various aspects of the trial court’s decision on the motions for directed verdict and j.n.o.v. For reasons that follow, we affirm and remand for further proceedings.

On appeal from a trial court’s rulings on motions for directed verdict and j.n.o.v.,

we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom [,] demands a certain verdict. Thus, a judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. If the evidence is conflicting, or if insufficient evidence exists to make a “one-way” verdict proper, judgment n.o.v. should not be granted. Further, when considering these motions, trial and appellate courts must view the evidence in the light most favorable to the party securing the jury verdict.

Viewed in this light, the evidence shows that Douglas Paul provides “voice-over” services for television commercials, radio advertisements, and other broadcasts. In 1984, Paul created Catspaw to market his voice-over talent. Although he was the sole shareholder, his wife, Sharon Paul, was an officer and a director of the company. In April 1986, Douglas and Sharon Paul, along with Sarah Cotton, formed CPI to produce and sell radio and television commercials, audio-visual productions, and voice-overs for clients. Destito joined CPI as an employee in 1986, earning up to $100,000 per year as the company’s sales manager. The evidence showed that the Pauls were officers and directors of CPI.

Shortly after CPI began operations, the Pauls, Cotton, and Destito formed RSI. Although the parties originally intended RSI to be a state-of-the-art recording studio, in actuality, it simply leased recording equipment to CPI. Destito invested $750 into RSI and loaned it $2,375 in return for a promissory note from the company. Like Cotton, Destito became a 24.5 percent shareholder in RSI. The Pauls each received 25.5 percent of the stock. All four shareholders became directors of the corporation, and Destito was named vice president.

In 1987, the Pauls loaned RSI $130,000 for the purchase of recording equipment to lease to CPI. Under the lease arrangement, CPI paid RSI $25 per hour for use of the studio recording equipment. Destito agreed to that rental rate in 1987, finding it “reasonable” and “appropriate” at the time. He also understood that RSI would be paid the rental rate regardless of which company actually owned particular pieces of equipment in the studio.

In 1989, the Pauls formed Cateo, which they wholly owned, to purchase and hold title to real estate that became a production studio for CPI. At that time, RSI’s assets were pledged as collateral for the loan Cateo obtained to purchase the property, a fact Destito did not discover until after this litigation began. CPI eventually moved into the studio and paid rent to Cateo. CPI also bought new recording equipment for the studio in 1989. When he learned about this purchase, Destito became concerned:

When I ultimately discovered that we were purchasing that equipment through CPI versus RSI, I asked Sharon [Paul] about that because I was a little confused. We were making the move to the big building. There was a lot of excitement. We started to get some traction with the business; and I asked her, why aren’t we doing this through RSI? I was told RSI couldn’t qualify for the loan.

At that point, Destito began questioning the $25 rental rate and suggesting that RSI charge CPI more for using the recording equipment. In 1989, Destito raised this issue with Sharon Paul, who told him that “it wouldn’t make any difference to [raise the rate]. RSI wouldn’t make any money anyway; and ... as we build these companies up, everybody will be taken care of.” Destito also began questioning certain intercompany expenses allocated against RSI. Again, Sharon Paul told him, “[RSI] wouldn’t make any money. Don’t worry about it.” According to Destito, Sharon Paul referred to the various companies as “one big pie.”

In 1991, CPI and RSI experienced cash flow problems. RSI’s management — including Destito — agreed to suspend all payments from CPI to RSI so that CPI could pay vendors and employees, such as Destito. At the end of 1991, Cotton left the business, surrendering her RSI stock. Effective January 1,1992, her stock was redistributed and Destito, Sharon Paul, and Douglas Paul each became thirty-three and one-third percent shareholders in RSI. Destito testified that the companies “made it through” the financial crisis and CPI began making money. In 1993, he thought “the studio” was doing very well. Nevertheless, CPI did not pay RSI any of the money that it owed the company, and RSI continued to show business losses.

At the end of 1994, Destito was promoted from sales manager to Senior Vice President of New Business Development at CPI. The Pauls also changed Destito’s compensation package from a salary to straight commission. Douglas Paul told him, “we’re going to give you accounts. We’ll assign accounts to you so as to . . . not put you at a financial disadvantage.” Under the new compensation scheme, Destito received a $6,000 “draw” or advance each month, which he then “earned” by generating monthly sales commissions of at least $6,000. If he generated less than $6,000 in monthly commissions, he owed the difference to CPI.

According to Destito, his new position did not work out as planned. Despite the Pauls’ promises, accounts were not assigned to him, and he saw decreases in his pay. Although the Pauls told Destito to take the accounts he wanted from other salesmen, Destito believed that Douglas Paul, the new sales manager, should reassign accounts to him to avoid conflicts with the sales team. Eventually, Destito wrote to the Pauls, suggesting that he be compensated on a salary/ commission, rather than a draw/commission, basis, and that any deficit of unearned draw be erased. At a subsequent meeting about compensation, Sharon Paul stated, “we’ll keep it going.”

In early 1996, Destito learned that the Pauls had executed documents in 1995 merging RSI into CPI. Destito, who had not been informed of the merger, demanded to know how it could proceed without his knowledge or consent. The evidence showed that, before the merger, the Pauls told their attorneys that Destito had “abandoned” his stock, wanted nothing more to do with the company, and did not object to the merger. After Destito raised objections, a certificate of correction was filed with the Secretary of State purporting to “undo” the merger.

Relations between Destito and the Pauls continued to deteriorate, and CPI fired Destito on February 16, 1996. At that time, CPI demanded that Destito repay $44,107.77 in unearned draw that he had received from CPI. In April 1996, Destito was removed from RSI’s Board of Directors, and he was no longer an officer of the corporation.

Destito filed this lawsuit in May 1996 and proceeded to trial, claiming, among other things, that the defendants siphoned money from RSI, concealed improper financial dealings from him, and used recording equipment without paying RSI rental fees. The jury found against all defendants on Destito’s claims for fraud, negligent misrepresentation, conspiracy to breach fiduciary duty, negligent breach of fiduciary duty, suit on promissory note, alter ego liability, punitive damages, and litigation expenses. The jury also found for Destito on CPI’s counterclaim for the $44,107.77 Destito allegedly owed in unearned draw. It awarded Destito $489,727 in actual damages, $90,000 in litigation costs and expenses, and $450,000 in punitive damages.

The trial court upheld the jury’s verdict on all counts except Destito’s claim for litigation expenses. As to that claim, the trial judge concluded that Destito presented insufficient evidence to support the award.

In Case No. A01A0185, defendants appeal the trial court’s denial of their motions for directed verdict and j.n.o.v. on Destito’s claims for fraud, negligent misrepresentation, conspiracy to breach fiduciary duty, negligent breach of fiduciary duty, amounts due on a promissory note, alter ego liability, and punitive damages. In Case No. A01A0186, Destito appeals the trial court’s order granting defendants’ motion for j.n.o.v. on his litigation expense claim.

Case No. A01A0185

In their brief on appeal, defendants assert that Destito placed immaterial testimony and documents before the jury, portrayed the Pauls as greedy and inconsiderate, and “obtained a verdict shockingly disproportionate to any conceivable damages.” Defendants, however, do not raise as error the admissibility of any evidence or the size of the damages award, precluding us from addressing those issues. Instead, they focus on several issues that provide no basis for reversal.

1. Defendants first argue that the trial court erred in not granting their motions for directed verdict and j.n.o.v. on Destito’s fraud and negligent misrepresentation claims because, as a corporate insider, Destito could not reasonably rely on the alleged fraud or misrepresentations.

Fraud has five essential elements: (1) a false representation or omission of material fact; (2) scienter; (3) an intent to induce the party alleging fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages. Defendants’ argument rests solely on justifiable reliance. They do not contend that Destito’s fraud and misrepresentation claims failed to meet any of the other four essential elements.

According to defendants, Destito’s claims hinged on allegations that (1) RSI was intended to be the exclusive owner of recording equipment used by CPI and (2) the Pauls misallocated to CPI assets and revenues that properly belonged to RSI. They argue that Destito knew CPI purchased recording equipment in 1989 and thus could not rely on any belief that RSI would be the sole equipment provider. They further claim that Destito knew about, and participated in, other decisions affecting RSI, such as setting the equipment rental rate at $25 and suspending payments from CPI to RSI in 1991.

Destito also alleged, however, that the Pauls — both RSI directors — failed to disclose to him certain decisions regarding RSI to which he was not privy. For example, he testified that the Pauls failed to inform him that all of RSI’s assets had been pledged as collateral for a loan procured in 1989 by Cateo, the Pauls’ real estate holding company. Destito also presented evidence that the Pauls executed documents merging RSI into CPI without his knowledge. “It is well settled that corporate officers and directors have a fiduciary relationship to the corporation and its shareholders and must act in good faith.” According to Destito, because the Pauls had a fiduciary relationship to him, as an RSI shareholder, their failure to disclose amounted to actionable fraud.

Moreover, Destito testified that his fraud allegations stemmed in part from the Pauls’ representations about his draw/commission compensation plan with CPI. According to Destito, he accepted the new compensation plan based on the Pauls’ promise to assign him certain accounts and their assurances that he would not be “put ... at a financial disadvantage.” Destito further testified that, despite their promises, the Pauls never assigned him specific accounts and his pay decreased.

As noted above, defendants’ attack on appeal rests solely on justifiable reliance; they do not address the other essential elements of fraud and negligent misrepresentation. The record shows that Destito knew RSI was losing money and showed those losses on his tax returns. From Sharon Paul’s statements in 1989, Destito also knew that, in the Pauls’ view, RSI would never make money. Yet, defendants have pointed to no evidence that Destito knew about the RSI asset pledge or merger, and the evidence does not demand a finding that Destito could not justifiably rely on the Pauls to inform him of these management decisions. Similarly, nothing in the record indicates that, as a matter of law, Destito could not rely on the Pauls’ representations regarding his compensation scheme with CPI. Accordingly, the trial court did not err in denying defendants’ motions for directed verdict and j.n.o.v. on this ground.

2. Defendants also argue that Destito’s fraud and negligent misrepresentation claims were barred by the statute of limitation, entitling them to judgment. We disagree.

A four-year statute of limitation governs actions for fraud and negligent misrepresentation. As noted in Division 1, Destito claimed that the Pauls’ failure to disclose the RSI/CPI merger to him in 1995 constituted fraud. He also asserted at trial that representations made by the Pauls in 1994 regarding his CPI compensation package were fraudulent. Destito filed suit on May 6, 1996, placing those fraud and misrepresentation allegations clearly within the statute of limitation.

In addition, Destito indicated that he did not learn that RSI’s assets had been pledged as collateral for Catco’s loan until he began reviewing documents during this litigation. Although the asset pledge occurred in 1989, “where the actual fraud is the gravamen of the action . . . the statute of limitations is tolled until the fraud is discovered or by reasonable diligence should have been discovered.” Defendants do not argue that Destito should have discovered the asset pledge at some earlier time, outside the statute of limitation. Accordingly, the trial court did not err in refusing to find, as a matter of law, that the statute of limitation barred Destito’s fraud and negligent misrepresentation claims.

3. Defendants also argue that the four-year statute of limitation in OCGA § 9-3-31 precluded Destito’s conspiracy to breach fiduciary duty and negligent breach of fiduciary duty claims. Assuming, without deciding, that § 9-3-31 applies, we find that the trial court properly denied defendants’ motions for directed verdict or j.n.o.v. on this ground.

Defendants assert that Destito’s fiduciary duty claims revolve solely around the Pauls’ decision to purchase equipment in 1989 through CPI, rather than RSI, and the agreement in 1991 to suspend all payments to RSI. Destito argues, however, that the Pauls breached their fiduciary duty to him when they tried to merge RSI out of existence without informing him in late 1995. He farther argues, and presented evidence at trial, that the Pauls kept inaccurate financial information for RSI, requiring them to “reconstruct! ]” the company’s financials in 1996. In addition, Destito argues, and the record shows, that the Pauls, who were officers, directors, and the sole shareholders of CPI by 1992, did not cause CPI to pay RSI for equipment rentals, even when CPI had a profitable year in 1993.

These and other alleged breaches occurred within the four-year limitation period defendants advocate. Defendants do not claim, and we will not decide on appeal, that these activities do not constitute breaches of fiduciary duty. The trial court properly found that the statute of limitation did not bar these claims.

4. Defendants further argue that the fiduciary duty claims are barred by estoppel or waiver. They cite Smith v. Hanna Mfg. Co. for the proposition that

[i]f . . .a party having an interest to prevent an act being done has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license.

According to defendants, Destito knew about and acquiesced in CPI’s 1989 purchase of recording equipment and the 1991 decision to suspend payments to RSI.

As noted above, however, Destito’s breach of fiduciary duty allegations extend beyond these two incidents. On appeal, defendants point to no evidence that Destito acquiesced in all the alleged breaches of fiduciary duty, including the merger of RSI into CPI. “Where the facts relied on to establish the estoppel do not unequivocally show an estoppel in pais, the jury, and not the judge, should determine whether the facts constitute such an estoppel.”

The evidence did not demand a finding that Destito was estopped from bringing his breach of fiduciary duty claims. Accordingly, the trial court did not err in denying defendants’ motions for directed verdict and j.n.o.v. on this ground.

5. Defendants further argue that Destito was estopped from seeking recovery on his promissory note from RSI because he agreed that the note would not be paid. Destito never testified, however, that he forgave RSI’s promissory note. Instead, he indicated that he knew RSI would not have income to pay back the note during the period when management suspended payments to RSI. Defendants have pointed to no evidence conclusively establishing that Destito agreed not to seek payment. Accordingly, defendants were not entitled to a directed verdict or j.n.o.v. on this estoppel claim.

6. In their next enumeration of error, defendants assert that the trial court erred in failing to grant their motions for directed verdict and j.n.o.v. on Destito’s alter ego liability claim because “Georgia law does not allow a person who is a shareholder, director, and officer of a corporation to ‘pierce the veil’ of his own corporation.” We disagree with this broad statement.

Georgia courts pierce the corporate veil “to remedy injustices which arise where a party has overextended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or evade contractual or tort responsibility.” The theory applies when “ ‘ “there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist.” ’ ” Courts have used the concept in various situations. For example, in Cheney v. Moore, we found that a 50 percent shareholder and director of a corporation had presented sufficient evidence to pierce the corporation’s veil. We reject defendants’ sweeping assertion that, in all cases, Georgia law prohibits a director, officer, or shareholder from piercing the corporate veil. Thus, the trial court did not err in refusing to find Destito’s alter ego liability allegations legally insufficient on this ground.

7. Defendants further contend that they were entitled to a directed verdict and j.n.o.v. on Destito’s punitive damages claim. They argue that because the evidence demanded a defense verdict, no punitive damages should have been awarded. As we held above, however, the trial court did not err in denying defendants’ motions for directed verdict and jm.o.v. as to Destito’s fraud and breach of fiduciary duty claims. Defendants also argue that the jury improperly found that they specifically intended to harm Destito, a finding that removed the $250,000 cap on punitive damages imposed by OCGA § 51-12-5.1 (g).

The imposition of punitive damages is generally a question for the jury, and we will uphold that award if there is any evidence to support it. Under OCGA § 51-12-5.1 (b), punitive damages may be awarded in tort actions “in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

Destito presented evidence that, because the Pauls did not want business partners, they had been planning to shut RSI down since 1992. The evidence further indicated that the Pauls failed to keep accurate financial records for RSI and did not inform Destito of RSI’s asset pledge, which benefitted Cateo. In addition, CPI failed to make equipment rental payments to RSI, even when CPI made money. Destito also testified that the Pauls tried to merge RSI into CPI without consulting him, and the evidence showed that the Pauls told their attorney in 1995 that Destito had abandoned his RSI shares and no longer wanted to be part of the company.

Viewed favorably to the verdict, this and other evidence supports the award of punitive damages, as well as the jury’s conclusion that defendants specifically intended to harm Destito. The trial court properly denied defendants’ challenge to the punitive damages award.

8. In their final enumeration of error, defendants argue that the trial court erred in not granting them a directed verdict or j.n.o.v. on CPI’s counterclaim. According to defendants, the undisputed evidence showed that Destito received from CPI $44,107.77 in monthly advances or “draw” during 1995 and early 1996 that he never earned or repaid. Destito contends that, although CPI initially placed him on a draw/commission compensation scheme in 1995, the Pauls soon switched him back to a salaried employee. In his view, the “draw” CPI alleges he received every month was actually his earned salary.

The record reveals that Destito suggested to the Pauls that he be placed back on a salary compensation scheme and that the deficit in his “draw” account be eliminated. According to Destito, although Sharon Paul told him, “we’ll keep it going,” the Pauls decided “to pay [him] on a salary.” Destito noted that the W-2 forms he received from CPI for 1995 and 1996 indicated that he earned “wages.” Furthermore, balance sheets for CPI revealed only $199.14 in employee advances at the end of 1995.

Defendants presented evidence that Destito’s compensation remained on a draw/commission basis. On cross-examination, Destito admitted that his February 1996 termination letter demanded repayment of the $44,107.77 and that he received monthly account statements reporting the balance in his “draw” account. Defendants’ former financial consultant also testified that the Internal Revenue Service (“IRS”) asks employers to report income advances as “wages” on an employee’s W-2 form. In addition, the financial consultant explained that, since CPI reported employee draws to the IRS as wages, the company books reflected the amounts as salary, rather than as employee advances.

Defendants’ evidence, however, merely created a factual dispute that the jury resolved in Destito’s favor. At least some evidence supported Destito’s claim that the monthly $6,000 payments were salary, rather than an advance on commission. The trial court properly denied defendants’ motions for directed verdict and j.n.o.v.

Case No. A01A0186

9. In Case No. A01A0186, Destito challenges the trial court’s decision granting defendants a j.n.o.v. on his claim for litigation expenses. Under OCGA § 13-6-11, “[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” The jury determined that Destito was entitled to recover these expenses, awarding him $90,000.

In granting defendants’ motion for j.n.o.v., the trial court did not conclude that the jury improperly found Destito entitled to litigation expenses. Instead, the trial court determined that Destito presented insufficient evidence of the actual expenses:.

[Destito] introduced no detailed evidence from which the jury could ascertain what each of [Destito’s] attorneys did, [Destito] introduced no time records, billing records or records of any kind regarding the time spent or services rendered by the several attorneys who represented [Destito], and [Destito] introduced no evidence sufficient to show the function of the tasks performed by those attorneys with the particularity required to support an award of attorneys’ fees. Moreover, the testimony of [Destito’s] lead counsel regarding his generic activities and those of the other attorneys will not support such an award. Finally, [Destito] failed to introduce evidence of the amount of attorneys’ fees incurred pursuing [Destito’s] affirmative claims as opposed to defending the counterclaim of [CPI].

At trial, Destito’s counsel testified to the number of hours various attorneys spent on the case, the hourly rates charged by those attorneys, and other costs incurred. He further testified that the time spent and the amounts charged were reasonable and necessary. His testimony did not allocate the hours worked to any particular tasks or designate the amount of billable time spent defending against CPI’s counterclaim.

We agree with the trial court that Destito presented insufficient evidence from which a jury could reasonably calculate his litigation expenses. He offered no billing records or other evidence describing, with any particularity, how the attorneys spent their time. Furthermore, much of counsel’s knowledge and testimony about “work performed by others would be hearsay and would not support an award of attorney fees.” Destito also did not separate out expenses incurred defending against CPI’s counterclaim, which are not recoverable under OCGA § 13-6-11. The jury’s award of $90,000 in litigation expenses was improperly based on guesswork.

Destito argues that, even if the jury had no basis to reasonably calculate litigation expenses, defendants were not entitled to judgment on this claim. According to Destito, the proper remedy was for “the trial court to conduct a hearing on the issue of attorneys’ fees and expenses.” We agree. Accordingly, we affirm Jie trial court’s decision that Destito failed to present sufficient evidence of reasonable litigation expenses and remand this case for an evidentiary hearing on the amount of expenses to be awarded Destito.

Decided June 22, 2001

Reconsideration denied July 19, 2001

Smith, Gambrell & Russell, Rex M. Lamb III, Nations, Toman & Nutter, Michael T. Nations, David C. Nutter, for appellants.

Lawrence E. Newlin, Frank R. Olson, for appellee.

Judgment affirmed in Case No. AO 1 AO 185. Judgment affirmed in Case No. A01A0186 and case remanded with direction.

Johnson, P. J., and Ellington, J., concur.

       (Citations and punctuation omitted.) Dunaway v. Parker, 215 Ga. App. 841, 849 (4) (453 SE2d 43) (1994).

       See In the Interest of J. M., 237 Ga. App. 298, 300 (2), n. 1 (513 SE2d 742) (1999) (“[TJhis Court will consider an issue only if it has been properly enumerated as error on appeal.”).

        ReMax North Atlanta v. Clark, 244 Ga. App. 890, 893 (537 SE2d 138) (2000); see also Real Estate Intl. v. Buggay, 220 Ga. App. 449, 452 (3) (469 SE2d 242) (1996) (noting that “the same principles apply to both fraud and negligent misrepresentation”).

        GLW Intl. Corp. v. Yao, 243 Ga. App. 38, 42 (3) (c) (532 SE2d 151) (2000).

       See OCGA § 23-2-53 (“Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”); Tigner v. Shearson-Lehman Hutton, Inc., 201 Ga. App. 713, 715 (411 SE2d 800) (1991) (“Where one person sustains towards another a relation of trust and confidence, his silence when he should speak or his failure to disclose what he ought to disclose constitutes fraud in law just as do actual affirmative false representations.”).

       We note that proof of one or more of these other essential elements may be lacking. For example, it is unclear whether Destito suffered any damage from the alleged failures to disclose and misrepresentations discussed above.

       See Gen. Information Processing Systems v. Sweeney, 176 Ga. App. 315, 316 (335 SE2d 722) (1985) (“Due to the fiduciary relationship [between corporate officers and the corporation and shareholders, the corporation and shareholders] may rely implicitly, not only on what is said, but also on the supposition that nothing important will be left unsaid by the officer”) (punctuation omitted).

       See Riviera Finance v. McBride, 221 Ga. App. 321 (471 SE2d 233) (1996).

       See Dunaway, supra.

       OCGA § 9-3-31; Hardaway Co. v. Parsons, Brinckerhoff, Quade &c., 267 Ga. 424, 426 (1) (479 SE2d 727) (1997); McClung Surveying v. Worl, 247 Ga. App. 322, 324 (1) (541 SE2d 703) (2000).

        Shipman v. Horizon Corp., 245 Ga. 808-809 (267 SE2d 244) (1980).

       Defendants assert that RSI’s management agreed to “shut down” or “take RSI dormant” in 1991. In contrast, Destito testified that management agreed only to suspend payments to RSI “for a period of time until we saw things moving in a direction that would allow us to make things as they were before.” Construing the evidence favorably to the verdict, we cannot conclude that RSI was completely “shut down” in 1991.

       On appeal, defendants assert that all of Destito’s fiduciary duty and fraud claims fall outside the statute of limitation. They do not argue that the trial court erred in allowing the jury to consider particular allegations of fraud or fiduciary breaches that might be time-barred. Defendants also do not enumerate as error the size of the damages award or claim that specific allegations barred by the statute of limitation factored into that award.

       68 Ga. App. 475, 487-488 (23 SE2d 552) (1942). See also Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 511 (2) (376 SE2d 393) (1988).

       (Punctuation and emphasis omitted.) Smith, supra.

       (Punctuation omitted.) Marshall, supra at 512 (2).

       See Dunaway, supra.

       Defendants’ claim of error relating to alter ego liability is limited to this one assertion. They do not question Destito’s use of the alter ego theory to pierce the corporate veil in reverse by holding a corporation (such as Cateo) liable for its shareholders’ obligations. See Plaza Properties v. Prime Business Investments, 240 Ga. App. 639, 643 (2) (d) (524 SE2d 306) (1999), aff'd, 273 Ga. 97 (538 SE2d 51) (2000). Defendants also do not contend in their enumerations of error that Destito presented insufficient evidence to pierce the corporate veil in this case. Accordingly, we will not address these issues on appeal. See In the Interest of J. M., supra; Gunsby v. State, 248 Ga. App. 18, 22 (3) (545 SE2d 56) (2001) (“A party cannot use his brief to expand his enumerations of error to include issues or rulings not raised in the enumerations of error.”).

       (Punctuation omitted.) Cheney v. Moore, 193 Ga. App. 312-313 (1) (387 SE2d 575) (1989).

        Heyde v. Xtraman, Inc., 199 Ga. App. 303, 306 (2) (404 SE2d 607) (1991).

       Supra.

       We note that RSI was the only company in which Destito held an ownership interest. Furthermore, by the time Destito brought his claims in May 1996, he was no longer an officer or a director of RSI.

       OCGA § 51-12-5.1 (f).

        Crosby v. Kendall, 247 Ga. App. 843, 848 (2) (b) (545 SE2d 385) (2001); see also Home Ins. Co. v. Wynn, 229 Ga. App. 220, 223 (2) (493 SE2d 622) (1997) (“A breach of fiduciary duties is sufficient to support an award of punitive damages. Whether punitive damages should be awarded for a breach of fiduciary duties is ordinarily a question for the jury”) (punctuation omitted).

        Crosby, supra. Defendants argue that the evidence does not support a finding that Catspaw (and presumably Cateo) specifically intended to harm Destito. The jury, however, found for Destito on his alter ego theory and, when asked to “identify the individuals and corporations! ] whom you find should be treated as alter egos of each other,” responded: “Sharon Paul, Doug Paul, [CPI], [Catspaw], [Cateo], [RSI].” We must give the jury’s verdict a reasonable construction. OCGÁ § 9-12-4; American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 7-8 (4) (497 SE2d 616) (1998). Construing the verdict reasonably, the jury concluded that all corporate and individual defendants were alter egos of each other and should be treated as the same “personality.” Given the jury’s verdict and defendants’ failure to successfully attack the alter ego finding, we have no basis for separating any of the companies from the punitive damages award in this case.

       See Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 647 (522 SE2d 467) (1999) (“ Where there is any evidence upon which the verdict can be based, the jury is free to disbelieve whatever facts are inconsistent with their conclusion and the court cannot substitute its conclusion for that of the jury.’ ”).

       See Dunaway, supra.

        First Union Nat. Bank &c. v. Davies-Elliott, Inc., 215 Ga. App. 498, 503 (1) (b) (452 SE2d 132) (1994); see also Southern Co. v. Hamburg, 233 Ga. App. 135 (503 SE2d 383) (1998) (“ ‘[HJearsay, even when admitted into evidence without objection, lacks probative value to establish any fact.’ ”).

        Lineberger v. Williams, 195 Ga. App. 186, 188 (3) (393 SE2d 23) (1990). This case is distinguishable from Ins. Co. of North America v. Allgood Elec. Co., 229 Ga. App. 715 (494 SE2d 728) (1997), which Destito cites to support his claim for expenses relating to CPI’s counterclaim. In Allgood Elec., the plaintiff presented evidence that the defendant engaged in “wanton and excessive indulgence in litigation.” (Punctuation omitted.) Id. at 719 (3) (a). Destito presented no similar evidence, and, as noted in his brief, he clearly based his claim for litigation expenses on “bad faith in the form of fraud.” (Punctuation omitted.)

       See Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993).

       See First Union, supra at 503; Banks, supra.

       See First Union, supra. The record shows that defendants received summary judgment on certain claims originally brought in Destito’s complaint. On appeal, the parties argue at length about whether defendants were entitled to j.n.o.v. because Destito failed to allocate his litigation expenses between successful and unsuccessful claims. Destito argues that defendants must pay for all his expenses, including those relating to his unsuccessful claims. In support, he cites CSX Transp. v. West, 240 Ga. App. 209, 212 (3) (b) (523 SE2d 63) (1999), which indicates that “the award of attorney fees is not apportioned to only those attorney fees attributable to the claims on which the plaintiff! ) prevailed.” Defendants assert that West is not good law and must be overruled in light of United Cos. Lending Corp. v. Peacock, 267 Ga. 145 (475 SE2d 601) (1996). In Peacock, the Supreme Court reversed a lump sum attorney fee award because the plaintiffs “did not prove the amount of attorney fees attributable solely to the claim in which they prevailed.” Id. at 147 (2). The trial court did not address this issue, and we need not reach it for our decision. We note, however, the Supreme Court’s clear statement in Peacock that “[a] prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim.” Id.