text:
    A11A1807.
    RELIANCE TRUST COMPANY v. CANDLER et al.
    (726 SE2d 636)
   Miller, Judge.

Reliance Trust Company (“Reliance”) was a co-trustee, along with Charles Howard (“Buddy”) Candler III, of a revocable marital trust created by Buddy’s late wife. Pursuant to the provisions of the marital trust, Buddy was to receive the income generated by the trust; under certain circumstances, and in the discretion of the trustee, Buddy was also entitled to receive distributions from the corpus of the trust. Before his death, Buddy exercised his limited power of appointment pursuant to the trust and appointed any remaining corpus to his eight grandchildren, who are the plaintiffs/appellees in this case. Buddy subsequently died in 2005. The grandchildren filed suit against Reliance for making improper distributions from the trust corpus. Reliance moved for summary judgment, asserting in part that the grandchildren’s claims were barred because there was no evidence that Reliance abused its discretion in making the distributions. The trial court denied Reliance’s motion for summary judgment. The grandchildren’s claims proceeded to a jury trial, following which a verdict and judgment were entered in favor of the grandchildren. Reliance filed a motion for new trial, which the trial court denied. Reliance appealed, contending that the trial court erred in (1) denying Reliance’s motion for summary judgment; (2) entering judgment on the verdict and denying Reliance’s motion for new trial because there was no evidence to support the verdict and the damages award; (3) excluding certain testimony concerning the details about prior litigation between Buddy and his children; (4) instructing the jury that it was not bound to use the former statutory definition of “income” and denying Reliance’s request to charge the jury on the former statutory definition of “principal”; and (5) calculating interest awarded to the grandchildren.

Where a jury returns a verdict, the same must be affirmed on appeal if there is any evidence to support it, and the evidence is to be construed in a light most favorable to the prevailing party with every presumption and inference in favor of sustaining the verdict. We review a denial of a motion for a new trial according to this same standard. Thus, a jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law.

(Citations and punctuation omitted.) Green v. Key Custom Homes, 302 Ga. App. 800, 802-803 (1) (692 SE2d 56) (2010).

So viewed, the evidence shows that Buddy Candler and Claire Clement Candler were married in 1951. They had four children together and eight grandchildren. In 1996, the year before Claire’s death, she established a marital trust identifying Buddy as the lifetime beneficiary of any income generated by the trust. With respect to the corpus of the marital trust, the trust instrument set forth the following encroachment provision:

Whenever in the sole judgment of the [tjrustee the income being paid to [Buddy], together with any other income or periodic payments known to the [t]rustee that are being received by [Buddy] shall be insufficient for his proper support, maintenance, or to enable him to meet any difficulty produced by sickness, accident, or similar cause, such portion of the corpus of this trust estate as in the discretion of the [t]rustee is deemed appropriate shall be paid to him or for his benefit.

The trust instrument also gave Buddy limited power of appointment to designate who, as between his children and grandchildren, would receive the remaining trust corpus upon his death. The marital trust was funded upon Claire’s death in 1997, at which time Buddy succeeded Claire as co-trustee along with Jack Sawyer. Wachovia Bank succeeded Sawyer as co-trustee in May 2000, and Reliance succeeded Wachovia Bank as co-trustee in June 2001. At the time Reliance became co-trustee, the corpus of the marital trust contained $2.1 million. Pursuant to the encroachment provision of the marital trust, Reliance authorized over $1 million worth of Buddy’s distribution requests before his death in December 2005. At the time of Buddy’s death, the corpus of the marital trust contained only $838,762. Pursuant to Buddy’s will, his eight grandchildren were appointed as the remainder beneficiaries of the marital trust. In 2007, Buddy’s grandchildren filed suit against Reliance, alleging that Reliance improperly invaded the corpus of the marital trust and raising claims against Reliance for breach of trust, waste of trust assets, and attorney fees.

1. Reliance first contends that the trial court erred in denying Reliance’s motion for summary judgment because there was no evidence that Reliance abused its discretion in making distributions to Buddy from the corpus of the marital trust. “When the case has proceeded to trial and the verdict and judgment is before us for review, if the evidence supports the verdict, the issue of an earlier denial of summary judgment is moot.” (Citations omitted.) Schirmer v. Amoroso, 209 Ga. App. 682, 683 (2) (434 SE2d 80) (1993). Here, Reliance sought summary judgment on the same issue considered and decided by the jury. Cf. Malcom v. Morgan County Bd. of Tax Assessors, 308 Ga. App. 61, 62 (706 SE2d 583) (2011). As addressed in Division 2 below, we affirm the trial court’s denial of Reliance’s motion for new trial, because there was evidence to support the jury’s verdict. Thus, the propriety of Reliance’s summary judgment is a moot issue. Contra Schirmer, supra, 209 Ga. App. at 683-684 (2) (‘We reverse the denial of appellants’ motion for new trial as there is no evidence to support the verdict, so the issue of summary judgment is not moot.”). “Because the denial of [Reliance’s] motion for summary judgment presents nothing for us to review, this enumeration of error lacks merit.” (Citation and punctuation omitted.) Blazi v. Rich, 306 Ga. App. 529, 530 (1) (702 SE2d 768) (2010).

2. Reliance next contends that the trial court erred in denying Reliance’s motion for new trial because there was no evidence to support the verdict and the damages award. We disagree.

Reliance moved for a new trial under both OCGA §§ 5-5-20 and 51-12-12 (b). OCGA § 5-5-20 authorizes a trial court to grant a new' trial “[i]n any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity[.]” OCGA § 51-12-12 (b) also authorizes a trial court to grant a new trial “[i]f the jury’s award of damages is clearly so inadequate or so excessive as to any party as to be inconsistent with the preponderance of the evidence^]” Under either ground, “[t]he grant or denial of a motion for new trial is a matter within the sound discretion of the trial court and will not be disturbed if there is any evidence to authorize it.” (Punctuation and footnote omitted.) Beckett v. Monroe, 249 Ga. App. 615, 616 (2) (548 SE2d 131) (2001); see also Green, supra, 302 Ga. App. at 803 (2); ARA Health Svcs. v. Stitt, 250 Ga. App. 420, 424 (2) (551 SE2d 793) (2001) (“[T]he trial court’s decision on a motion for a new trial will be upheld on appeal unless it was an abuse of discretion.”) (citation and punctuation omitted).

Here, we cannot say that the trial court abused its discretion in denying Reliance’s motion for new trial since the evidence, when viewed in the light most favorable to the grandchildren, supported a finding that Reliance breached its fiduciary duties as co-trustee and was liable to the grandchildren for resulting damages in the amount of $1,140,924.41.

“The trustee shall be accountable to the beneficiary for the trust property. A violation by the trustee of any duty that the trustee owes the beneficiary shall be a breach of trust.” OCGA § 53-12-300. In order to recover for a trustee’s breach of trust, a beneficiary must show proof of damages proximately caused by the breach. See Sun-Trust Bank v. Merritt, 272 Ga. App. 485, 489 (2) (612 SE2d 818) (2005) (“Establishing a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.”) (punctuation and footnote omitted).

First, there was evidence that Reliance owed a fiduciary duty to the grandchildren, who were the remainder beneficiaries of the marital trust.

In trusts like the present one with successive beneficiaries, that is[,] income to a beneficiary for life and the principal later to other beneficiaries, the interests of the two beneficiaries are to a certain extent antagonistic, and the trustee is under a duty so to administer the trust as to preserve a fair balance between them.

(Citation, punctuation and footnote omitted.) Sun Trust Bank, supra, 272 Ga. App. at 488 (1). Here, the trust language made clear that Buddy was entitled to the income, and that the remainder beneficiaries — later designated as the grandchildren — were entitled to the corpus. “Under these circumstances, the duty owed to the remainder beneficiaries [was] to preserve and protect... the corpus of the trust.” (Punctuation and footnote omitted.) Id.

Second, there was evidence that Reliance violated the fiduciary duty owed to the grandchildren by abusing its discretionary powers under the encroachment provision of the marital trust.

(1) A discretionary power conferred upon the trustee to determine the benefits of a trust beneficiary is subject to judicial control only to prevent misinterpretation or abuse of the discretion by the trustee.
(2) The benefits to which a beneficiary of a discretionary interest is entitled, and what may constitute an abuse of discretion by the trustee, depend on the terms of the discretion, including the proper construction of any accompanying standards, and on the settlor’s purposes in granting the discretionary power and in creating the trust.

McPherson v. McPherson, 307 Ga. App. 548, 551 (1) (b) (705 SE2d 314) (2011) (citing Restatement (Third) of Trusts § 50 (2003)). Thus,

[a]s the Revised Trust Code and the common law agree,.. . a court may interfere with an exercise of discretion by a trustee only if that discretion is infected with fraud or bad faith, misbehavior, or misconduct, arbitrariness, abuse of authority or perversion of the trust, oppression of the beneficiary, or want of ordinary skill or judgment.

(Citations and punctuation omitted.) Id. at 552 (1) (b). As stated previously, the encroachment provision of the trust instrument clearly gave the trustee sole discretion to make distributions to Buddy from the corpus of the marital trust. There was evidence, however, that Reliance’s exercise of discretion was “infected with... arbitrariness,” as well as “oppression of the beneficiary” grandchildren. Id. For instance, Reliance inconsistently treated Buddy’s various encroachment requests. Reliance sometimes required Buddy to submit bills and invoices before it would approve his encroachment requests; other times it did not. Reliance sometimes required Buddy to submit a budget to support his encroachment requests; sometimes it did not. Reliance denied some encroachment requests for reimbursement of Buddy’s attorney fees; however, other encroachment requests for reimbursement of attorney fees were paid. Reliance sometimes approved payment of mortgage and upkeep expenses for Buddy’s North Carolina vacation property; but, at later times, Reliance denied payment of mortgage expenses on this same property. Reliance offered no consistent explanations for these disparities.

Moreover, in April 2003, Reliance began limiting its approval of Buddy’s encroachment requests to certain specific expenses set forth in a yearly, budgeted encroachment amount. Reliance determined that such limitation was necessary because Buddy’s frequent and routine requests, which were difficult for Reliance to track, combined with the amount of money previously distributed, were rapidly depleting the trust corpus; Reliance recognized that it needed to preserve the corpus for the remainder beneficiaries. Even then, Reliance still approved encroachment requests to pay additional expenses beyond Buddy’s yearly allotted budget. Thus, there was at least some evidence to authorize the jury’s finding that Reliance’s distributions from the corpus were an abuse of its discretionary powers under the encroachment provision of the marital trust.

Finally, contrary to Reliance’s contentions otherwise, there was evidence that the grandchildren were damaged by Reliance’s abuse of discretion. Contra Ludwig v. Ludwig, 281 Ga. 724, 726 (4) (642 SE2d 638) (2007). Damages resulting from a breach of trust include “[a]ny loss or depreciation in value of the trust property as a result of such breach of trust, with interest,” as well as “[a]ny amount that would reasonably have accrued to the trust or beneficiary if there had been no breach of trust, with interest.” OCGA § 53-12-302 (a) (1), (3). Here, Reliance’s encroachments reduced the corpus of the marital trust by $1,140,924.41, thereby diminishing the value of the corpus to be distributed among the grandchildren as the remainder beneficiaries.

In sum, there was evidence authorizing the jury’s verdict in favor of the grandchildren in the amount of $1,140,924.41. Therefore, the trial court did not abuse its discretion in denying Reliance’s motion for new trial.

3. Reliance contends that the trial court erred in excluding certain testimony about the nature of prior litigation between Buddy and his children. This argument presents no basis for reversal.

Although Georgia law favors the admission of relevant evidence, evidence that does not bear directly or indirectly on the questions being tried should be excluded as irrelevant. The determination of whether evidence is relevant lies within the discretion of the trial court, whose decision will not be disturbed on appeal absent an abuse of discretion.

(Punctuation and footnotes omitted.) Smith v. Saulsbury, 286 Ga. App. 322, 325 (2) (649 SE2d 344) (2007).

Here, the issue before the jury was whether Reliance violated a fiduciary duty when it made discretionary distributions to Buddy under the encroachment provision of the marital trust. During trial, Reliance specifically sought to introduce testimony regarding the details about the prior litigation between Buddy and his children over Buddy’s competency and right to control certain of his assets (not including the marital trust). In excluding Reliance’s proffered testimony, the trial court found that the competency litigation between Buddy and his children was not pertinent to the marital trust at issue, and that it would be more prejudicial than probative to have the jury aware that there was prior litigation between Buddy and his children.

We agree with the trial court that the details regarding the competency litigation between Buddy and his children were not relevant to the question of whether Reliance abused its discretion under the encroachment provision of the marital trust. Moreover, “even if relevant, the trial court was authorized to conclude that the substantially prejudicial impact of the evidence far outweighed any probative value.” (Punctuation and footnote omitted.) Smith, supra, 286 Ga. App. at 325 (2). Accordingly, the trial court did not abuse its discretion in excluding the testimony at issue. See id.

4. Reliance argues that the trial court erred (a) in instructing the jury that it was not bound to use the definition of “income” as set forth in the former Georgia Trust Code; and (b) in refusing to charge the jury on the definition of “principal” as set forth in the former Georgia Trust Code. Reliance argues that the foregoing errors were harmful because the definitions of “income” and “principal” were central to whether Reliance breached its fiduciary duty under the encroachment provision of the marital trust. We discern no error.

(a) Definition of “Income”

“We apply the ‘plain legal error’ standard of review in evaluating an allegedly erroneous jury instruction. The party asserting error must establish that a legally erroneous charge was given and that it was harmful.” (Citations and punctuation omitted.) Those Certain Underwriters at Lloyds, London v. DTI Logistics, 300 Ga. App. 715, 720 (2) (686 SE2d 333) (2009).

Pursuant to Reliance’s request to charge, the trial court charged the jury on the definition of “income” as set forth in the former Georgia Trust Code. Immediately thereafter, the trial court further charged the jury:

The definition I have just given you has been provided for whatever significance you find it to hold ... as to Claire Clement Candler’s intent as evidenced by the language of the trust at issue. You are not, however, bound by the definition that I have given you.
In determining the meaning of income as used in the encroachment provision of [the] marital trust [ ], you must determine from the evidence the meaning intended by Claire Clement Candler at the time of creation of the trust at issue whether you find that the definition, which I have given you, reflects the meaning intended by Claire Clement Candler is a matter solely for your determination based upon the evidence before you.

Notwithstanding Reliance’s argument otherwise, we cannot say that the foregoing j ury instruction was legally erroneous. “In trust law, the cardinal rule is that the trustor-settlor’s intention be followed.” (Citation and punctuation omitted.) McPherson, supra, 307 Ga. App. at 552 (1) (b); see also Smith v. Hallum, 286 Ga. 834 (691 SE2d 848) (2010) (“The cardinal rule in construing a trust instrument is to discern the intent of the settlor and to effectuate that intent within the language used and within what the law will permit.”) (citation and punctuation omitted). The trial court’s jury instruction was consistent with this cardinal rule and therefore was not erroneous,

(b) Definition of “Principal”

“[A] trial court does not err in refusing to give a requested charge which is confusing, misleading, inapt, not precisely tailored or adjusted to the evidence, or not authorized by the evidence.” (Punctuation and footnote omitted.) Trotman v. Velociteach Project Mgmt., 311 Ga. App. 208, 215 (7) (b) (715 SE2d 449) (2011).

Here, Reliance challenges the trial court’s failure to give Reliance’s request to charge the jury on the definition of “principal” as set forth in the former Georgia Trust Code. Citing OCGA § 53-12-212 (b) (2009) of the former Georgia Trust Code, Reliance’s request to charge specifically sought the following definition:

Principal is the property which has been set aside by the owner or the person legally empowered so that it is held in trust eventually to be delivered to a remainder beneficiary while the return or use of the principal is in the meantime taken or received by or held for accumulation for an income beneficiary. Principal includes, but is not limited to:
(1) Consideration received by the trustee on the sale or other transfer of principal or on repayment of a loan or as a refund or replacement or change in the form of principal;
(2) Proceeds of property taken on eminent domain proceedings;
(3) Proceeds of insurance upon property forming part of the principal except proceeds of insurance upon a separate interest of an income beneficiary;
(4) Stock dividends, receipts on liquidation of a corporation, and other corporate distributions as provided by law;
(5) Receipts from the disposition of corporate securities as provided by law;
(6) Receipts from property subject to depletion and timber as provided by law;
(7) Any profit resulting from any change in the form of principal;
(8) Any allowances for depreciation established by law.

We do not discern any reversible error in the trial court’s failure to give the requested charge. Notably, Claire Candler did not use the term “principal” in the encroachment provision of the marital trust; rather, she used only the term “corpus”:

Whenever in the sole judgment of the [t]rustee the income being paid to [Buddy], together with any other income or periodic payments known to the [t]rustee that are being received by [Buddy] shall be insufficient for his proper support, maintenance, or to enable him to meet any difficulty produced by sickness, accident, or similar cause, such portion of the corpus of this trust estate as in the discretion of the [t]rustee is deemed appropriate shall be paid to him or for his benefit.

(Emphasis supplied.) Moreover, the trust instrument itself provided its own definition of both “principal” and “corpus,” defining either term to “mean the property conveyed by [Claire Candler] as a gift upon the creation of this [t]rust, any addition thereto by me or any other person, and any net income accumulated under the terms of the trust.” Thus, Reliance’s request to charge on the former statutory definition of “principal” was not adjusted to the evidence in this case. See Trotman, supra, 311 Ga. App. at 215 (7) (b). Therefore, the trial court did not err in failing to give the requested instruction.

5. In its final enumeration of error, Reliance contends that the trial court erred in awarding the grandchildren interest from the date of each encroachment by Reliance, as compared to the date of Buddy’s death. Reliance’s argument is meritless. The Revised Trust Code pertinently provides that a trustee who commits a breach of trust is liable for damages that include “[a]ny loss or depreciation in value of the trust property as a result of such breach of trust, with interest”; as well as “[a]ny amount that would reasonably have accrued to the trust or beneficiary if there had been no breach of trust, with interest.” OCGA § 53-12-302 (a) (1), (3). Moreover, “[i]f the trustee is liable for interest, then the amount of the liability for interest shall be the greater of: (1) [t]he amount of interest that accrues at the legal rate on judgments; or (2) [t]he amount of interest actually received.” OCGA § 53-12-302 (b). Significantly, in considering the date from which interest begins to run, the Supreme Court of Georgia has held that “the trustee is chargeable with the legal rate of interest from the date of the breach of the trust.” Allen v. Allen, 198 Ga. 269, 280, 282 (4) (31 SE2d 483) (1944). Therefore, the trial court did not err in charging Reliance with the legal rate of interest from the dates of Reliance’s encroachments.

Decided March 26, 2012

Reconsideration denied April 12, 2012

Bryan, Cave, Powell & Goldstein, William V. Custer IV, Nicole J. Wade, Luke A. Lantta, for appellant.

Gaslowitz Frankel, Craig M. Frankel, Brian M. Deutsch, Kathy R. Bess, Robert P. Marcovitch, for appellees.

Judgment affirmed.

Ellington, C. J., and Doyle, P. J., concur.

       The plaintiffs/appellees specifically include Paxton H. Candler; Rebecca L. Candler; Claire Clement Lucile Candler, by and through her natural parent, Charles H. Candler IV; Katherine R. Candler, by and through her natural parent Walker T. Candler; Carolyn R. Candler, by and through her natural parent Walker T. Candler; Walker T. Candler, Jr., by and through his natural parent Walker T. Candler; Wade C. Carruth III; and Katherine C. Carruth, by and through her natural parent Claire C. Carruth.

       Although the Revised Georgia Trust Code became effective July 1, 2010, after the trial in this case, it applies to any trust regardless of the date such trust was created, with two exceptions: “to the extent it would impair vested rights” and “except as otherwise provided hy law.” OCGA § 53-12-1 (b); see also McPherson v. McPherson, 307 Ga. App. 548, 550 (1) (a) (705 SE2d 314) (2011). As Reliance has not shown that either exception applies in this case, we proceed under the Revised Trust Code as supplemented by the common law. See McPherson, supra, 307 Ga. App. at 550-551 (1) (a).

       Relying on McPherson, Reliance claims that the grandchildren were required to prove “bad faith” on the part of Reliance. However, as McPherson clearly sets out, “bad faith” is just one way in which a trustee can abuse its discretion. See McPherson, supra, 307 Ga. App. at 552 (1) (b). An abuse of discretion can also arise where the trustee’s discretion is infected with fraud, misbehavior, misconduct, arbitrariness, abuse of authority, perversion of the trust, oppression of the beneficiary, or want of ordinary skill or judgment. See id.; see also Ludwig v. Ludwig, 281 Ga. 724, 725-726 (2) (642 SE2d 638) (2007).

       In a stipulation read to the jury, the trial court nevertheless provided them with the following information about the prior competency litigation: from late 1999 through May 2000, Buddy “was involved in a lawsuit regarding his right to control certain of his trust assets”; in May 2000, “control of those assets was returned to him”; and the suit did not involve the marital trust.

       The parties stipulated that the trial court would determine the issues regarding the award of any interest.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A11A1817.
    BENEFIELD v. VANCE et al.
    (726 SE2d 531)
   DOYLE, Presiding Judge.

This appeal arises from a premises liability claim filed by Michael Harold Vance against Johnny Benefield after Vance sustained injuries when he fell at Benefield’s home. Benefield filed a motion for summary judgment arguing that the undisputed facts established that Vance was aware of the alleged hazardous condition before the fall, but the trial court denied the motion based on the distraction doctrine. This Court granted Benefield’s petition for interlocutory review, and for the reasons that follow, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.

So viewed, the record reveals that Benefield hosted an annual Fourth of July party at his lakefront home, and in 2008, Benefield asked Vance and his band, The Honky Tonk Rangers, to perform at the party. Vance deposed that he arrived at Benefield’s home at 5:00 p.m. in order to set up his equipment, and at that time, he noticed concrete steps leading down from a patio to the pool area. Vance deposed that the steps looked unsafe because they were wet, irregular, and lacked a skid-resistant surface and handrail. At the time, Vance thought to himself, “[Y]ou know, [d]ude, I ain’t going down them steps.” Vance deposed that his wife, Brenda, also noticed the allegedly hazardous condition of the steps, and the two discussed the need to avoid using them during the evening.

While packing up his equipment at the end of the evening around midnight, Vance heard his niece and Benefield’s employee engaged in an altercation pool-side. When Vance looked up, he observed the employee drawing back his arm as if to strike Vance’s niece. Vance testified he yelled “hey” and with the intent of breaking up the fight, proceeded to walk down the steps toward the pool, lost his footing, and fell, injuring himself.

Benefield filed a motion for summary judgment, arguing that the undisputed facts established that Vance had equal or superior knowledge of the allegedly hazardous condition of the steps. In response, Vance argued that his prior knowledge of the steps did not preclude him from recovering because the fight between Benefield’s employee and Vance’s niece distracted his attention from the condition of the steps. The trial court agreed with Vance and denied summary judgment on the basis that the distraction doctrine created a question of fact as to whether Vance exercised ordinary care for his own safety. Pursuant to OCGA § 51-3-1,

[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

To prevail on a “trip and fall” claim,

the plaintiff must prove that (1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite h[is] exercise of ordinary care, due to actions or conditions within the owner’s control. However, the plaintiff’s evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. With respect to the second prong, we determine whether the record shows plainly, palpably [,] and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety.

When the claim

involves allegations of a static, dangerous condition, the rule is well established that the basis of the [owner] ’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.

“If nothing obstructs the invitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks.”

It is undisputed that before his trip and fall Vance saw and recognized the risk associated with the allegedly defective steps. Nevertheless, relying on cases decided prior to Robinson v. Kroger Co., Vance argued and the trial court agreed that the altercation constituted an emergency situation such that a question of fact exists about whether he exercised a reasonable degree of care while traversing the steps under the circumstances. Vance principally relies upon City of Rome v. Phillips, a 1927 case in which a female pedestrian fell over an exposed pipe, which she previously saw, while responding to the sudden and unexpected cry of a mother located across the street, seeking assistance for her injured young child. This Court held that because of the plaintiff’s “excitement and the other circumstances . . . she was rendered oblivious of the dangerous condition of the street, [and therefore,] it could not be said, as a matter of law, that [her injury] should be attributed to her own negligence.” This Court also noted that it was immaterial that the emergency was caused by something other than the defendant.

In Robinson, however, the Supreme Court of Georgia, while re-evaluating the parties’ respective burdens at summary judgment in a slip and fall case, further explained that

[s]tated succinctly, the distraction doctrine holds that one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted. Application of the doctrine has the effect of excusing an invitee from exercising the otherwise required degree of care because of the circumstances created by the purported distraction.

Subsequent to Robinson, this Court has consistently held that if a plaintiff has knowledge of an alleged hazard, he or she is barred from recovering for an injury resulting in part from a distraction at the time of the plaintiff’s fall. After Robinson, the bell of knowledge simply cannot be un-rung.

Here, the trial court found that the post-Robinson line of distraction doctrine cases did not control and that instead, City of Rome supported Vance’s claim that more emergent situations fall outside Robinson’s holding. Robinson, however, overruled sub silentio those cases in which the plaintiff was not barred from recovery even though the undisputed facts establish he or she had at least equal knowledge of a hazard. This is because, as clarified in Robinson, the distraction doctrine focuses on the degree of care required of a plaintiff “in discovering or apprehending danger.” Thus, whether by distraction or emergency, the doctrine addresses a plaintiff’s knowledge and appreciation (not avoidance) of the danger, which is the touchstone of premises liability — the “proprietor may be liable only if he had superior knowledge of a condition that exposed an invitee to an unreasonable risk of harm.”

Here, the undisputed testimony presented by Vance established that he noticed, thought about, discussed, and was aware of any alleged hazard posed by the steps. Therefore, this case falls within that line of cases in which this Court has held that a mere distraction cannot overcome summary judgment when the plaintiff had actual, prior knowledge of the hazard. Accordingly, even if Benefield had knowledge of the allegedly hazardous condition of the steps, Vance cannot recover because he indisputably had equal knowledge of the steps, and the trial court erred by denying Benefield’s motion for summary judgment. “The decisions of the Supreme Court shall bind all other courts as precedents,” and we are not persuaded to deviate from this precedent.

Accordingly, the trial court erred by denying Benefield’s motion for summary judgment.

2. For the reasons stated above, Brenda’s loss of consortium claim fails because it is derivative of Vance’s personal injury claim.

Judgment reversed.

Miller, J., concurs. Ellington, C. J., concurs in judgment only.

Decided March 21, 2012

Reconsideration denied April 12, 2012

Downey & Cleveland, Jonathan C. Jones, for appellant.

Jerry M. Pilgrim, for appellees.

       Vance’s wife, Brenda, also filed a claim for loss of consortium.

       (Footnote omitted.) Pirkle v. Robson Crossing, LLC, 272 Ga. App. 259 (612 SE2d 83) (2005).

       (Punctuation and footnote omitted.) Id. at 260-261.

       (Punctuation omitted.) Perkins v. Val D’Aosta Co., 305 Ga. App. 126, 128 (699 SE2d 380) (2010).

       (Punctuation omitted.) Becton v. Tire King of North Columbus, 246 Ga. App. 57, 59 (539 SE2d 551) (2000).

       268 Ga. 735 (493 SE2d 403) (1997).

       37 Ga. App. 299 (139 SE 828) (1927).

       See id. at 300.

       Id.

       See id.

       (Citations and punctuation omitted; emphasis supplied.) Robinson, 268 Ga. at 744 (2) (a).

       See Yasinac v. Colonial Oil Properties, 246 Ga. App. 484, 486 (2) (541 SE2d 109) (2000) (“the distraction doctrine does not apply where the plaintiff had actual knowledge of the hazard before the alleged distraction occurred”); Means v. Marshalls of Ma., 243 Ga. App. 419, 420, 421 (2) (532 SE2d 740) (2000) (physical precedent only) (the plaintiff’s actual knowledge of the debris on the floor barred her recovery for her fall even though she claimed to have been distracted by attempting to prevent a dressing room door from hitting a child); McCoy v. West Bldg. Materials of Ga., 232 Ga. App. 620, 622 (502 SE2d559) (1998) (holding that the plaintiff’s claim of being startled by a child on a slide did not prevent summary judgment in her case because “ [t] he simple fact [wa] s that the plaintiff... had actual knowledge of the hazard which caused her fall prior to encountering it”).

       For example, the type of distractions given by the Supreme Court in Robinson include “the conduct of a store employee, the premises construction or configuration, or a merchandise display of such a nature that its presence would not have been anticipated by the invitee.” 268 Ga. at 746 (2) (a).

       See, e.g., Jackson Atlantic, Inc. v. Wright, 129 Ga. App. 857 (201 SE2d 634) (1973); Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681 (178 SE2d 543) (1970); City of Rome, 37 Ga. App. 299.

       (Emphasis supplied.) Robinson, 268 Ga. at 744 (2) (a).

       (Punctuation omitted.) Dickerson v. Guest Svcs. Co., 282 Ga. 771, 772 (653 SE2d 699) (2007).

       Compare with Rutherford v. Revco Discount Drug Centers, 301 Ga. App. 702 (689 SE2d 59) (2009) (question of fact existed as to whether the plaintiff’s walk up the ramp constituted equal knowledge of the hazard walking down the same ramp); Hamilton v. Ky. Fried Chicken of Valdosta, 248 Ga. App. 245 (545 SE2d 375) (2001) (question of fact existed as to whether plaintiff had equal knowledge of a curb in a dark parking lot after traversing the curb during daylight hours).

       See, e.g., Yasinac, 246 Ga. App. at 486 (2); Means, 243 Ga. App. at 421 (2); McCoy, 232 Ga. App. at 622.

       Benefield conceded for purposes of summary judgment that the stairs constituted a hazard.

       See Ga. Const., Art. VI, Sec. VI, Par. VI (1983).

       See Briddle v. Cornerstone Lodge of America, 288 Ga. App. 353, 355 (654 SE2d 188) (2007).


author: MlKELL, Presiding Judge.

text:
    A11A1844.
    A11A1845.
    COASTAL MARSHLANDS PROTECTION COMMITTEE v. ALTAMAHA RIVERKEEPER, INC. FIRST SOUTHERN NATIONAL BANK et al. v. ALTAMAHA RIVERKEEPER, INC.
    (726 SE2d 539)
   MlKELL, Presiding Judge.

Appellants Coastal Marshlands Protection Committee (“Committee”), First Southern National Bank, Montgomery Bank and Trust, Citizens Bank of Swainsboro, and Bank of Soperton appeal from the superior court’s order vacating an administrative law judge’s (“ALJ”) decision to affirm the Committee’s decision to issue a permit for a moveable floating dock over a marshland. In their sole enumeration of error, the appellants contend the superior court applied the wrong standard of review to the ALJ’s decision. Specifically, the appellants assert that the superior court erred by changing the ALJ’s role to one of appellate review for sufficiency of the evidence before the Committee where the permit applicant bore the burden of proof. They maintain that well-established law requires an ALJ to conduct a de novo review with a shift in the burden of proof to the permit challenger. For the reasons explained below, we agree and reverse.

This case involves a permit issued by the Committee allowing MID-ROC, LLC, to construct and maintain a community dock over marshlands along the South Newport River in McIntosh County for a proposed subdivision. The permit was issued after three meetings with MID-ROC and the Committee over a ten-month period of time, and only after MID-ROC submitted an entirely new dock design in response to the Committee’s denial of a permit after the second meeting.

Following the Committee’s grant of a permit with the new dock design, Altamaha Riverkeeper, Inc. and two landowners with property near the proposed subdivision (collectively “Riverkeeper”) sought review of the Committee’s decision by an ALJ. The ALJ conducted hearings for three days over a three-month period and held the record open for almost two months to allow the parties to submit proposed findings of fact and conclusions of law. The ALJ then issued a detailed 17-page de novo decision affirming the Committee’s decision to issue a dock permit based upon the evidence and arguments submitted by the parties. She also rejected Riverkeeper’s assertion that it could satisfy its “burden of proof by showing that the Committee lacked sufficient information upon which to make an informed decision.”

Dissatisfied with the ALJ’s decision, Riverkeeper filed a petition for judicial review in Fulton County Superior Court. The superior court issued a four-page order in which it concluded “that the factual determinations made by the administrative law judge are supported by some evidence in the record.” It disagreed, however, with the ALJ’s refusal to consider whether the Committee’s decision to issue a permit was supported by sufficient evidence. The superior court reversed based upon the following reasoning:

[T]he [ALJ’s] decision allows no grounds for challenging a permit other than a violation of the authorizing statute [.] [T]he net affect of the standard set in [In re: Coffee County Solid Waste Handling Permit, No. DNR-EPD-SW-AH 4-86, 1987 Ga. ENV LEXIS 21, March 9, 1987], is to create an irrebuttable presumption that all permits have been issued pursuant to a proper exercise of discretion and a valid process. Such a standard is contrary to Georgia Law. The burden on one seeking to challenge issuance of a permit is to show that the permit was wrongfully issued. Hughey v. Gwinnett County, 278 Ga. 740 [(609 SE2d 324)] (2004). A permit may be wrongfully issued even though once issued it does not violate its authorizing statute or related regulations.

Following the superior court’s issuance of a final order, this court granted the Committee’s application for discretionary review.

Appellants contend in their sole enumeration of error in this court that the superior court erred by concluding that the ALJ committed a legal error by failing to consider whether the Committee abused its discretion in issuing the permit. We conduct a de novo review of claimed errors of law in the superior court’s appellate review of an ALJ’s decision. Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518, 521 (2) (649 SE2d 619) (2007).

The Coastal Marshlands Protection Act of 1970, OCGA § 12-5-280 et seq., provides that a party seeking to build a structure over any marshland in Georgia must first obtain a permit from the Committee. OCGA § 12-5-286 (a). Applicants seeking a permit must “demonstrate to the [C]ommittee that the proposed alteration is not contrary to the public interest and that no feasible alternative sites exist.” OCGA § 12-5-286 (h). Factors relevant to the “public interest” include whether the structure will: (1) create an unreasonably harmful obstruction to or alteration of the natural flow of navigational water; (2) create unreasonably harmful or increased erosion, shoaling of channels, or stagnant areas of water; and (3) unreasonably interfere with the conservation of marine wildlife or wildlife resources including water and oxygen supply. OCGA § 12-5-286 (g).

The Act also provides:

Any person who is aggrieved or adversely affected by any order or action of the committee shall... have a right to a hearing before an administrative law judge appointed by the [B]oard [of Natural Resources]. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” and the rules and regulations adopted by the board pursuant thereto. The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the committee, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50.

OCGA § 12-5-283 (b).

The Office of State Administrative Hearings (“OSAH”) adjudicates contested cases on behalf of the Department of Natural Resources. OCGA§§ 50-13-40 (a) (creation of OSAH); 50-13-41 (a) (1) (contested cases heard by OSAH); Ga. Comp. R. & Regs. r. 391-1-2-.02 (2) (b) (ALJ hears all contested cases arising under Coastal Marshlands Protection Act). The Rules of Administrative Procedure enacted by OSAH provide that a party challenging the grant of a license by a state agency bears the burden of proof, and this approach has been endorsed by the Supreme Court of Georgia. Ga. Comp. R. & Regs. r. 616-1-2-.07; Hughey, supra at 741 (2). See also OCGA § 50-13-2 (3) (license defined to include permit). Additionally, the administrative procedure rules provide that an ALJ “shall make an independent determination on the basis of the competent evidence presented at the hearing.” Ga. Comp. R. & Regs. r. 616-1-2-.21 (1). Hearings conducted by the ALJ “shall be de novo in nature, and the evidence on the issues in a hearing shall not be limited to the evidence presented to or considered by the Referring Agency prior to its decision.” Ga. Comp. R. & Regs. r. 616-1-2-.21 (3). Finally, the ALJ “may make any disposition of the matter available to the Referring Agency.” Ga. Comp. R. & Regs. r. 616-1-2-.21 (1). Under this scheme, an ALJ does not provide “judicial review,” but instead issues the final decision of the Committee. Cf. Longleaf Energy Assoc. v. Friends of the Chattahoochee, 298 Ga. App. 753, 769 (7) (681 SE2d 203) (2009) (decision of ALJ final decision of referring agency).

The Supreme Court of Georgia has held that if a challenger’s petition before an ALJ seeks to overturn the issuance of a permit, “the burden shift [s] to the challenger to show that the permit was wrongfully issued.” Hughey, supra at 741 (2). See also Longleaf, supra at 768 (7). The parties in this case disagree about how a permit challenger shows that the permit was wrongfully issued in the context of a de novo hearing before an ALJ.

Appellants contend that a “permit challenger must affirmatively demonstrate by a preponderance of the evidence that the permit, or the operation of the permitted activity pursuant to the terms and conditions of the permit, violates or will violate provisions of the applicable statute or the regulations adopted thereunder.” Appellants argue that permit challengers must affirmatively prove that a permit was “wrongfully issued” under the Coastal Marshlands Protection Act by showing by a preponderance of the evidence that the proposed structure would be contrary to public interest or that a feasible alternative exists. See OCGA § 12-5-286 (h).

Riverkeeper does not dispute that it bears the burden of proof before the ALJ or that the ALJ conducts a de novo hearing. Instead, it asserts that it can fulfill its burden of showing the permit was “wrongfully issued” by pointing out that the Committee lacked “the information needed to make a valid public interest determination.” According to Riverkeeper, the Committee lacked “information necessary to make a valid public interest determination” as demonstrated by its special condition for the permit to require MID-ROC to gather data after the permit was issued. It contends that it can meet its burden “by showing that the permit was wrongfully issued because the applicant and the agency did not meet the standards of the Marsh Act, which require a demonstration by the applicant and findings by the agency before the permit can issue.” In essence, Riverkeeper asserts that an ALJ should deny a permit if there was insufficient evidence before the Committee showing that a particular structure will not be contrary to the public interest.

We find no merit in Riverkeeper’s argument. Under the Administrative Procedure Act, the ALJ was required to make an “independent determination” based upon the evidence presented and was authorized to make any disposition available to the Committee when it reviewed the permit application. See Longleaf, supra. Requiring an ALJ to determine whether a permit applicant met its burden of proof before the Committee would vitiate the long-standing rule that an ALJ must make an independent determination of whether the permit would violate the provisions of the applicable statute or regulations. See Gwinnett County v. Lake Lanier Assn., 265 Ga. App. 214, 221 (2) (593 SE2d 678) (2004) (holding trial court erred by shifting burden of proof to agency to demonstrate compliance with statute when permit challenger “had the burden to demonstrate noncompliance”), affirmed in part, reversed in part, Hughey, supra; In re Coffee County Solid Waste Handling Permit, supra (concluding permit challenger’s argument that evidence before agency was insufficient will not sustain its burden of proof before ALJ).

In this case, the ALJ’s order reveals that it carefully considered and analyzed all of the available evidence and independently determined that there was “no credible evidence that the proposed dock” would be contrary to the public interest or that a feasible alternative site existed. The superior court reviewed these findings and concluded they were supported by some evidence, i.e., some evidence in the hearing before the Committee. But what evidence was presented to the Committee is irrelevant to this case. The proper issue for the superior court was whether there was enough evidence at the hearing before the ALJ. There was some evidence before the ALJ, and therefore its decision should have been affirmed.

Although our Supreme Court has said that the burden (i.e., the burden on one opposed to the permit) must show that the permit was “wrongfully issued,” that decision must be reconciled with other authorities, including the OSAH regulations and case law following Hughey. We conclude that “wrongfully issued” means that the facts and discretionary decision of the ALJ are contrary to those made by the Committee. The ALJ hearing is, in reality, not an appellate procedure but a trial de novo in which additional evidence may be introduced. Thus the issues before the superior court are whether the permit was wrongfully issued by the ALJ, i.e., by the Department of Natural Resources, and not whether the permit was wrongfully issued by the Committee.

The superior court’s involvement is an appellate proceeding and not a de novo trial. The standard of review for the superior court, as for us, is partly “any evidence,” and partly “abuse of discretion.” The ALJ’s findings of fact must have been based on some evidence. As with any bench trial, the findings of fact are overturned even when supported by strong evidence, when they were “found” while the judge was operating under an erroneous view of the law. That part of an appellate decision is always, really, de novo. An “abuse of discretion” standard applies when the superior court, or our court, reviews the ALJ’s finding that the project is in the public interest. The superior court erred by focusing on whether the Committee’s decision was right or wrong. Instead it should have focused on whether the ALJ’s decision was right or wrong. As mentioned above, the ALJ’s factual findings are right if they were based on any evidence. But the requirement in the Marsh Act that the proposed project was in the public interest injects equity into the necessary decisions.

Decided March 21, 2012

Reconsideration denied April 12, 2012

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, James D. Coots, John E. Hennelly, Senior Assistant Attorneys General, James A. Chamberlin, Jr., for Coastal Marshlands Protection Committee.

Franklin, Taulbee, Rushing, Snipes & Marsh, James B. Franklin, Lehman & Heard, Lawton C. Heard, Jr., for First Southern National Bank et al.

Donald D. J. Stack, for Altamaha Riverkeeper, Inc.

The appellees argue that the special condition of the permit that additional data be gathered after construction of the dock “demonstrates” that insufficient data was available prior to the permits being issued. We disagree. Our adopting the appellees’ view would discourage the ALJ or the Committee from adding such special conditions despite the evident desirability of monitoring changes to the marsh environment in the future. The fact that additional data might be useful does not prove whether the decision maker had scant data, overwhelming data, or no data at all, when it made its decision.

We reverse the decision of the superior court and remand with instruction to affirm the decision of the ALJ, i.e., the decision of the Board of Natural Resources.

Judgments reversed and cases remanded.

Adams and Dillard, JJ., concur.

       Appellants First Southern National Bank, Montgomery Bank and Trust, Citizens Bank of Swainsboro, and Bank of Soperton are MID-ROC’s successors in interest following foreclosure.


text:
    A11A1869.
    STANDARD BUILDING COMPANY, INC. et al. v. SCHOFIELD INTERIOR CONTRACTORS, INC. et al.
    (726 SE2d 760)
   DOYLE, Presiding Judge.

Following a jury verdict and judgment in favor of Schofield Interior Contractors, Inc., and Ron Marshall (collectively, “the plaintiffs”), Standard Building Company, Inc., Rob Morel, and Valentin Ciuperca (collectively, “the defendants”) filed a post-judgment motion, which the trial court referred to a special master. The special master issued proposed findings of fact and conclusions of law recommending that the trial court dismiss the post-trial motion based on the defendants’ failure to file a trial transcript pursuant to Uniform Superior Court Rule (“USCR”) 46 (G) (2). In several enumerations of error, the defendants appeal the trial court’s subsequent order finding that the special master’s proposal was final. For the reasons that follow, we affirm.

The record shows that the plaintiffs filed suit against the defendants asserting claims for breach of contract, negligence, and fraud, seeking compensatory and punitive damages and attorney fees pursuant to OCGA § 13-6-11. Following a jury verdict in favor of the plaintiffs in the principal sum of $294,458.66 and the entry of judgment on March 11, 2009, the defendants filed a motion for new trial or JNOV on April 10, 2009. On May 22, 2009, the defendants wrote a letter to the trial court requesting that the court consider the motion without requiring the defendants to secure a copy of the trial transcript, noting “the [c]ourt’s great familiarity with both the evidence and issues presented during the trial” and maintaining that resolution of the questions of law presented in the motion “may well render a transcript unnecessary.”

Thereafter, the trial court referred the defendants’ motion for new trial or JNOV to a special master on December 17, 2009. After a review of the pleadings, the special master entered a detailed “Proposed Findings of Fact and Conclusions of Law” on March 18, 2010, recommending dismissal of the post-trial motion based on the defendants’ failure to file a trial transcript in the year following the verdict and concluding that the transcript was essential to a determination of the issues raised in the motion.

In a letter dated April 1,2010, the defendants advised the special master and the trial court that they had ordered the trial transcript from the court reporter and requested that the court “consider the full transcript prior to entry” of the special master’s proposed findings of fact and conclusions of law.

On April 13, 2010, the trial court entered a second order appointing the special master, presumably to address the transcript issue. On April 20, 2010, the plaintiffs filed a motion to dismiss or, in the alternative, motion to enter an order adopting the special master’s recommendation, explaining therein that the special master had notified the parties that once the transcript was prepared, the parties would have 30 days to recast their briefs. The plaintiffs argued, in part, that the defendants had failed to make reasonable efforts to obtain the transcript.

On May 24,2010, the plaintiffs filed a “Notice of Finality of Order and Judgment... and Notice of Objection to Further Proceedings in the Trial Court,” arguing that the special master’s recommendation was final 20 days after it was served based on the defendants’ failure to file an objection thereto pursuant to USCR 46 (G) (2).

On August 10, 2010, the special master issued a second proposed findings of fact and conclusions of law, recommending that the trial court strike the plaintiffs’ notice of finality and deny the plaintiffs’ motion to dismiss or motion to adopt the special master’s recommendation on the ground that that first recommendation was not final because the defendants’ April 1 letter regarding the trial transcript operated as an objection to the initial recommendation under USCR 46 (G) (2). The special master suggested that the trial court should thereafter decide whether to enter the March 18, 2010 recommendation and then refer the matter back to the special master “to reconsider” the motion for new trial or JNOV once the parties provided transcript citations to support their positions; the special master did rule on the merits of the post-trial motion.

On August 27, 2010, the plaintiffs filed a motion to reject the special master’s August 11 recommendations, arguing again that the defendants’ failure to file a motion to reject or modify the initial order within 20 days vested it with the full effect of an order on April 7, 2010, under USCR 46 (G) (2). The trial court granted the plaintiffs’ motion on October 19, 2010, finding that

[h]aving dismissed [defendants’ [p]ost-[t]rial [m]otion[ ] effective April 7, 2010, the [s]pecial [m]aster’s [f]irst [r]uling constitutes a final order in this case, given that it left the parties with no further recourse in the trial court. ... It is further [ordered, adjudged, and decreed] that the [s]pecial [m] aster’s [proposed findings of fact and conclusions of law] served upon this Court on March 18,2010 constituted a final order in this case, effective at the close of business on April 7, 2010.

This appeal followed.

1. As an initial matter, we will address the plaintiffs’ argument that the appeal must be dismissed because the defendants failed to file an application for discretionary appeal pursuant to OCGA § 5-6-34 (b).

Pursuant to OCGA § 5-6-34 (a) (1), a party may directly appeal “[a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35.” The underlying subject of this appeal is not one of those listed in OCGA § 5-6-35 requiring an application, and the October 19, 2010 order is final because there is nothing pending in the trial court below. Thus, the defendants were not required to file an application for discretionary appeal pursuant to OCGA § 5-6-34 (b). The plaintiffs’ motion to dismiss this appeal is denied.

2. The defendants contend that the trial court erred by finding that the special master’s initial recommendation constituted a final order on April 7, 2010, 20 days after the March 18, 2010 service thereof on the parties and the trial court. Specifically, the defendants argue that the special master’s March 18, 2010 report was never filed with the trial court as required by USCR 46 (F) (4), which provides that the special master “must file the report and promptly serve a copy of the report on each party, unless the court directs otherwise.” Here, the special master did not actually file its March 18, 2010 proposal. The defendants, however, have raised this argument for the first time on appeal. Therefore, we cannot consider it, and it provides no basis for reversal.

3. The defendants contend that the trial court abused its discretion by referring their motion for new trial or JNOV to a special master. Specifically, they argue that the appointment was improper, relying on Alston & Bird LLP v. Mellon Ventures II, L.P., and that the trial court failed to “give the parties notice and an opportunity to be heard before appointing a master,” as required by USCR 46 (B) (1).

USCR 46 provides:

Unless a statute provides otherwise, upon the motion of any party or upon the court’s own motion, the court of record may appoint a [special] master: (a) to perform duties consented to by the parties; (b) to address pretrial and post-trial matters that the court cannot efficiently, effectively or promptly address', (c) to provide guidance, advice and information to the court on complex or specialized subjects, including, but not limited to, technology issues related to the discovery process; (d) to monitor implementation of and compliance with orders of the court or, in appropriate cases, monitoring implementation of settlement agreements; (e) to investigate and report to the court on matters identified by the court; (f) to conduct an accounting as instructed by the court and to report upon the results of the same; (g) upon a showing of good cause, to attend and supervise depositions conducted outside of the jurisdiction; and (h) to hold trial proceedings and make or recommend findings of fact on issues to be decided by the court without a jury if appointment is warranted by (i) some exceptional condition, or (ii) the need to perform an accounting, to resolve a difficult computation of damages or if the matter involves issues for which a special substantive competence would be beneficial.

In Alston & Bird, the defendants appealed from the grant of partial summary judgment, arguing in part that the trial court abused its discretion by referring the motion and other matters to a special master over the defendants’ objection. This Court affirmed the referral, noting that “a judge’s exercise of discretion in referring a matter to ... a special master, will not be interfered with, absent abuse” and that “[t]he adoption of USCR 46, as approved by our Supreme Court, without any legislative authority affirms the existence of the inherent judicial power of Georgia’s courts, or at least the inherent power of her courts of record, to refer the matters complained of herein to a special master.” This Court

caution [ed] the bench and bar, however, that there are limits to the power of a trial court to turn over allegedly complex litigation to special masters or auditors. Doing so too frequently infringes on the constitutional authority of the General Assembly and the Governor, advised by the Judicial Council, to decide how many judicial circuits Georgia should have and how many judges should staff those circuits.

Here, the trial judge presided over the lengthy trial, which began on February 9, 2009, and culminated in a verdict on February 24, 2009. The defendants filed a post-trial motion in April 2009, and in May 2009, urged the trial court to hear the motion without requiring them to file a transcript, noting the court’s familiarity with the evidence and the issues. Nevertheless, in December 2009 — ten months after the verdict and eight months after the post-trial motion was filed — the court referred the defendants’ motion for new trial or JNOV to a special master, without first providing notice to the parties before the appointment. The trial court’s failure to provide notice to the parties and an opportunity to be heard before the special master appointment violated USCR 46 (B) (l). The defendants, however, have not demonstrated that they objected to the order appointing the special master. Thus, we cannot consider the defendants’ challenge to the appointment of the special master.

4. In their remaining enumerations, the defendants argue that they were entitled to a new trial or JNOV on various grounds. Because the trial court did not make a substantive ruling on the post-trial motion, these enumerations present nothing for review.

Decided March 29, 2012

Reconsideration denied April 12, 2012

M. Katherine Durant, for appellants.

Davis, Matthews & Quigley, Ron L. Quigley, Matthew R. Thiry, Mina A. Elmankabady, Parker, Hudson, Rainer & Dobbs, Vincent J. Arpey, for appellees.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       The jury awarded the plaintiffs damages for negligence and attorney fees, but declined to award punitive damages, and it found in favor of the defendants as to the plaintiffs’ claims for breach of contract and fraud.

       In the letter, the defendants asserted that the trial transcript would cost approximately $11,500.

       The trial court received an electronic copy of the special master’s proposal on March 18, 2010.

       The special master explained in detail why the transcript was necessary to resolve each of the issues raised in the motion for new trial or JNOV.

       The trial transcript was filed on March 30, 2011.

       The order stated that the special master was appointed “for purposes of discovery and pretrial management.”

       We note that the defendants argued before the trial court that their April 1, 2010 letter to the trial court constituted a “motion to reject or modify the special master’s proposed findings” under USCR 46 (G) (2). The defendants have, however, abandoned this argument on appeal.

       (Emphasis supplied.)

       See Batesville Casket Co. v. Watkins Mortuary, Inc., 293 Ga. App. 854, 855 (1) (668 SE2d 476) (2008) (“[T]his Court will not consider matters argued for the first time on appeal and not raised and ruled upon in the trial court. ‘We are limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.’ ”).

       307 Ga. App. 640 (706 SE2d 652) (2010).

       (Emphasis supplied.) USCR 46 (A) (1).

       See Alston & Bird, 307 Ga. App. at 646-648 (6) (a).

       Id. at 647-648 (6) (a).

       (Emphasis supplied.) Id. at 648 (6) (a).

        See E.I. DuPont de Nemours & Co. v. Waters, 287 Ga. 235, 237-238 (695 SE2d 265) (2010).

       See Batesville Casket Co., 293 Ga. App. at 855 (1).

       See, e.g., Williams v. United Community Bank, 313 Ga. App. 706, 708 (722 SE2d 440) (2012) (“An error of law has as its basis a specific ruling made by the trial court. There having been no rulings by the trial court on the issues raised on appeal, there are no rulings to review for legal error.”) (citation and punctuation omitted); State Farm Mut. Auto. Ins. Co. v. Cox, 233 Ga. App. 296, 298 (2) (502 SE2d 778) (1998).