author: Miller, Judge.

text:
    A14A0784.
    DeKALB COUNTY v. KIRKLAND et al.
    (764 SE2d 867)
   Miller, Judge.

Timothy W. Kirkland and Steven L. Pruitt (“the Plaintiffs”) sued DeKalb County (“the County”) for, inter alia, breach of contract based on the County’s refusal to allow the Plaintiffs to use their accrued compensatory time or compensate them for that time. The County filed a motion for summary judgment, asserting that the Plaintiffs’ claims were barred by sovereign immunity and the statute of limitation. The trial court denied the County’s motion for summary judgment, and the County appeals. For the reasons that follow, we reverse.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of appellate review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Footnote omitted.) Community Marketplace Properties v. SunTrust Bank, 303 Ga. App. 403, 404 (693 SE2d 602) (2010).

So viewed, the evidence shows that Kirkland began working for DeKalb County Fire Rescue Department (“DCFR”) in 1988. Pruitt began working for DCFR in February 1989. Neither had a written contract of employment.

DCFR created a volunteer K-9 Search and Rescue Team and provided team members with food and veterinary care for the dogs. Volunteer K-9 handlers were responsible for housing and training their dogs, in addition to their regular DCFR duties. On or about May 7, 2003, DCFR began awarding 24 hours of compensatory time per month (firefighters normally work 24-hour shifts) to K-9 handlers to compensate them for the hours they spent training, housing and caring for their dogs. Prior to that time, K-9 handlers received additional compensation rather than compensatory time.

In 2000, Kirkland volunteered to join the K-9 team and in 2004, Kirkland was promoted to the position of captain. Pruitt was promoted to captain in 2003 and became a volunteer K-9 handler in 2008. Fire captains in the County are overtime-exempt employees, and upon promotion to captain, Kirkland and Pruitt understood that they were no longer eligible to receive overtime wages, but remained eligible to receive compensatory time. Overtime-exempt employees were not eligible to receive cash compensation for compensatory time and had to use accrued compensatory time within one year. Code of DeKalb County, § 20-161 (c).

Effective July 31, 2010, DCFR discontinued the monthly award of 24 hours of compensatory time to K-9 handlers. The K-9 team was disbanded in October 2010.

DCFR employees below the rank of captain who had more than 480 hours of accrued compensatory time were able to receive compensation for accrued hours in excess of 480 hours prior to being promoted to captain. In March 2004, at the time of his promotion, Kirkland had only approximately 100 hours of accrued compensatory time. Also, at that time, Kirkland was informed (incorrectly) that his previously accrued compensatory time would not be affected by his promotion.

On or about October 25, 2005, DCFR issued a memorandum to employees regarding the accrual and use of compensatory time. The memo stated that employees, including Plaintiffs, could not accrue more than 480 hours of compensatory time, and overtime-exempt employees were to track their own accrued hours.

The County’s personnel policies require that a firefighter’s request for time off, whether using compensatory time or annual leave, be made to a battalion chief, in writing, and each battalion chief has to consider DCFR staffing needs when reviewing an employee’s request for time off. CodeofDeKalb County, §§ 20-161 (b); 20-165 (d). According to Kirkland’s own records, he used some accrued compensatory time in 24-hour increments each year from 2003 through 2010. Although Kirkland was able to use some of his compensatory time, other requests to use compensatory time were denied because of DCFR’s staffing needs.

On or about September 11, 2009, the County’s chief executive officer issued a memo to department heads indicating that for overtime-exempt employees, compensatory time had to be used within one calendar year of the date that it was accrued and no cash payment would be given for unused compensatory time. Kirkland deposed that until receipt of this memo he understood that there were no time limits on the use of compensatory time.

That same month, Kirkland was notified that he had zero hours of accrued compensatory time. Kirkland sent a memo to the chief operating officer seeking clarification of the compensatory time policies that applied to him. In July 2010, Kirkland sent a letter to his supervisors, indicating that his records showed that he had 1,450 hours of compensatory time accrued since 2003, entitling him to cash payment for his accrued hours in excess of 480 hours. The County payroll supervisor advised Kirkland that fire captains were not paid for their accrued compensatory time and that he would have to use his accrued compensatory time in lieu of vacation.

In October 2010, Kirkland asked the County to acknowledge that he had 1,450 hours of accrued compensatory time “available to use at [his] leisure.” That month, the acting fire chief informed Kirkland that under DCFR’s policy requiring that leave be used within one year of accrual, Kirkland had 168 hours of accrued compensatory time that had to be used by the end of the year. Kirkland used his accrued time accordingly. Kirkland did not accrue any compensatory time in 2011, and he retired effective January 6, 2012.

Pruitt began accruing compensatory time when he joined the K-9 team in 2008. Pruitt does not recall any time limit on the use of his accrued compensatory time and, until the September 2009 memo stating otherwise, he understood the County’s policies to allow him to accrue and maintain compensatory time indefinitely. On October 16, 2010, Pruitt requested to use compensatory time, and his request was denied because his supervisor’s records reflected that Pruitt had no accrued compensatory time. Pruitt instead used annual leave to take time off. Pruitt alleges that he accrued 744 hours of unused compensatorytime through November 2010. Pruitt is still currently employed with DCFR as a captain.

In June 2012, the Plaintiffs filed suit seeking compensation for their unused compensatory time, leading to the instant appeal.

The County contends that the trial court erred in denying its motion for summary judgment on the Plaintiffs’ claims for breach of contract. We agree.

As provided in Georgia’s Constitution, sovereign immunity extends to the counties, and a county’s sovereign immunity can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue.

(Citations and punctuation omitted.) Bd. of Commrs. of Glynn County v. Johnson, 311 Ga. App. 867, 869 (1) (717 SE2d 272) (2011). Whether sovereign immunity has been waived is a matter of law, which we review de novo. Savage v. E.R. Snell Contractor, Inc., 295 Ga. App. 319, 323 (3) (672 SE2d 1) (2008).

Counties have waived sovereign immunity for any action ex contractu for the breach of a written contract. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (c); Merk v. DeKalb County, 226 Ga. App. 191 (1) (486 SE2d 66) (1997). As the party seeking to benefit from the waiver, the Plaintiffs have the burden of establishing that the County has waived its sovereign immunity. Johnson, supra, 311 Ga. App. at 869 (1).

“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate. Each of these essential terms must be certain.” (Citations and punctuation omitted.) Kennedy v. Ga. Dept. of Human Resources Child Support Enforcement, 286 Ga. App. 222, 224 (1) (648 SE2d 727) (2007); see also OCGA § 13-3-1.

In Georgia, the construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.

(Citation omitted.) Immel v. Immel, 298 Ga. App. 424, 426 (680 SE2d 505) (2009).

(a) It is undisputed that neither Kirkland nor Pruitt had a written employment contract with DCFR. Moreover, the Plaintiffs have not identified any written contract promising overtime-exempt employees the use of compensatory time more than one year after accrual and cash payment for unused compensatory time. Nevertheless, the Plaintiffs argue that the County Code constitutes a written contract, defeating the County’s claim for sovereign immunity. The County Code, however, does not support the Plaintiffs’ argument. The County Code pertinently provides:

Employees exempt from overtime compensation may be granted compensatory time at an hour-for-hour rate at the discretion of the department head. If granted, such compensatory time must be used within one (1) calendar year of the date granted in accordance with procedures as apply to annual leave as set forth in section 20-165, subsection [(d)]. Overtime exempt employees are not eligible to receive cash compensation for unused balances.

(Emphasis supplied.) Code of DeKalb County, § 20-161 (c).

At the relevant times, the Plaintiffs were classified as overtime-exempt fire captains. Based on the clear language of the County Code, the Plaintiffs had to use any compensatory time within one year and were not entitled to cash compensation for any unused time. Code of DeKalb County, § 20-161 (c). The Plaintiffs have not pointed to any alternate written contract that allows them, as overtime-exempt employees, to accrue and use compensatory time indefinitely nor receive compensation for unused compensatory time.

(b) Nevertheless, in response to the County’s argument that the County Code prohibits cash payment for compensatory time and use of compensatory time after one year for overtime-exempt employees, the Plaintiffs respond that as captains, they were not, in fact, overtime-exempt employees under the Fair Labor Standards Act (29 CFR § 541.3 (b) (1)). The Plaintiffs argue that as overtime-eligible employees they were entitled under the County Code to accrue up to 480 hours of compensatory time and entitled to cash payment for any hours accrued over the 480-hour limit.

The Plaintiffs first raised the argument that they were not overtime-exempt employees in an untimely response to the County’s motion for summary judgment, and the trial court found that the Plaintiffs were overtime-exempt.

When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial.

OCGA § 9-11-56 (e); see Cowart v. Widener, 287 Ga. 622, 623-624 (1) (a) (697 SE2d 779) (2010).

Whether a captain in a particular fire department is overtime-exempt requires a fact-sensitive inquiry, focusing on whether the employees at issue spend the majority of their time on management functions, including supervising other employees. See, e.g., Dept. of Labor v. City of Sapulpa, 30 F3d 1285, 1288 (II) (10th Cir. 1994). Fire captains in the County supervise the activities of the fire company and subordinate personnel. Although the Plaintiffs argue that they were misclassified under the Fair Labor Standards Act, they have not set forth any specific facts in support of this claim. There is no evidence showing that the Plaintiffs did not spend the majority of their time on supervisory or management duties. See id. Therefore, the Plaintiffs have failed to demonstrate that there is a genuine issue of material fact regarding whether they were misclassified as overtime-exempt employees.

Under the clear and unambiguous terms of the County Code, the Plaintiffs, after being promoted to the rank of captain, were not entitled to use compensatory time accrued more than a year earlier, and they are not entitled to receive payment for their unused compensatory time. Accordingly, there is no written contract that promised the Plaintiffs compensation for accrued time, and the trial court erred in denying the County’s motion for summary judgment.

Decided October 15, 2014.

Laura K. Johnson, Bennett D. Bryan, Sam L. Brannen, Jr., for appellant.

Schulten Ward & Turner, Dean R. Fuchs, for appellees.

Judgment reversed.

Andrews, P. J., and Ray, J., concur.

       The Plaintiffs also sued the County for unjust enrichment, promissory estoppel, and attorney fees. The trial court dismissed the Plaintiffs’ claims for unjust enrichment and promissory estoppel, finding that the County had not waived sovereign immunity as to those claims, and granted the County’s motion for summary judgment as to the Plaintiffs’ claims for attorney fees under OCGA § 13-6-11. The Plaintiffs did not file a cross-appeal challenging these rulings.

       The County Code provides:
      (a) ... Time worked in excess of the standard workweek, which is approved by the department head in advance or in cases of emergency as determined by the department head, shall be credited as overtime____Compensatory time at the rate of one and one-half (IV2) hours for every hour worked in excess of the applicable standard workweek may be given to employees eligible for overtime compensation in lieu of cash compensation.
      (b) Eligible law enforcement, emergency medical, fire and seasonal employees may accrue up to four hundred eighty (480) hours of compensatory time before overtime compensation must be paid in cash. . . .
      Code of DeKalb County, § 20-161.

       Prior to being promoted to captains, the Plaintiffs would have been eligible to receive cash payment for their unused compensatory time if they had more than 480 hours accrued. Code of DeKalb County, § 20-161 (b). At the time of his promotion to captain, Kirkland had only 100 hours of accrued compensatory time. Pruitt did not accrue any compensatory time until after his promotion to captain.

       In denying the County’s motion for summary judgment, the trial court relied on Fulton County v. Lord, 323 Ga. App. 384, 385, 389 (1) (746 SE2d 188) (2013), in which this Court held that sovereign immunity did not bar county employees’ claims for back pay which were based on written policies promising “equal pay for equal work.” However, the holding in Lord, was based, on the premise that “payment of salary to government employees is... not barred by any statutory immunity.” (Footnote omitted; emphasis supplied.) Id. at 389 (1). The Plaintiffs here are not seeking back pay, but compensation for compensatory time. Moreover, unlike this case, in Lord, the county’s written policies promised the relief the plaintiffs sought. Id. at 385.

       Based on our conclusion above, we need not address the County’s alternate contention that the trial court erred in not granting its motion for summary judgment based on the statute of limitation as to the Plaintiffs’ claims that are more than four years old.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A14A0792.
    GRANGER et al. v. MST TRANSPORTATION, LLC et al.
    (764 SE2d 872)
   ANDREWS, Presiding Judge.

Melanie Granger and Roderick Cody, individually and on behalf of their son, filed an action against MST Transportation, LLC (“MST”) and Eric A. Skrine, asserting claims of negligence and negligence per se arising out of injuries they and their son suffered in a collision between a vehicle Granger was driving and a tractor Skrine left on the roadway when it ran out of fuel. The trial court granted summary judgment in favor of MST and Skrine, concluding that Granger and Cody could not establish the proximate causation element of their claims. Granger and Cody now appeal, arguing that the trial court misapplied the intervening act doctrine and failed to consider that there may be more than one proximate cause of an injury. We conclude that proximate cause is an issue for the jury in this case and therefore reverse.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. As it determines whether a genuine issue of material fact remains, a court is bound to view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Hayes v. Crawford, 317 Ga. App. 75, 76 (730 SE2d 26) (2012). So viewed, the evidence shows that Skrine was an interstate truck driver for MST. On February 23,2010, Skrine returned from a trip to Florida and dropped his trailer at the MST depot in McDonough, Georgia and then drove his Century Class ST tractor toward the truck stop in Atlanta where he stored it. Skrine was driving down Moreland Avenue in DeKalb County when his tractor ran out of fuel at approximately 5:30 p.m. Skrine testified that he had probably last refueled in Florida. He stated that he knew he was low on fuel but that he thought he had enough to make it home. The tractor stopped in the right-hand lane along a portion of Moreland Avenue with three lanes of traffic moving in the direction in which Skrine had been traveling. The tractor blocked the lane to within approximately two feet of the line between the right lane and middle lane. Skrine testified that when his vehicle stopped, he put on his flashers and put out three reflective warning triangles.

After running out of gas, Skrine called MST and informed the daughter of MST’s owner about the situation. Skrine decided to walk to a small truck stop he had passed about 200 yards before he ran out of fuel, where he filled up a five-gallon fuel cannister. When he returned to his vehicle, he poured the fuel into the fuel tank, but the tractor would not start. Skrine returned to the truck stop, refilled the cannister, and added five more gallons of fuel to the tractor’s fuel tank, but he was still unable to start the tractor. Skrine then returned to the truck stop for a third time.

Granger’s mother had been babysitting Granger and Cody’s ten-month-old son that day, and Granger and Cody went to pick him up in the afternoon. According to Granger, they left Granger’s mother’s house that evening at approximately 7:20 p.m. Granger was driving, Cody was in the front passenger seat, and their son was in a child seat in the back. Granger was driving on Moreland Avenue in the left lane in the same direction Skrine had been traveling. After she crossed over Interstate 285, Granger changed lanes from the left lane to the middle lane. As soon as Granger moved into the middle lane, another car struck her vehicle from behind, hitting the back driver’s side of her car. The impact pushed Granger’s vehicle from the middle lane into the right lane, where she collided “head on” with the rear of Skrine’s tractor. Granger stated that she was about 30 or 40 feet from Skrine’s tractor when her vehicle was pushed over and that by the time she saw the tractor, “it was too late.” She applied the brakes but could not stop in time to avoid the collision. She stated that she did not notice any triangles or flashers. By the time of the collision, it was dark outside. Granger, Cody, and their son were injured in the collision.

1. “Before any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon.” (Citation and punctuation omitted.) Grinold v. Farist, 284 Ga. App. 120, 121 (1) (643 SE2d 253) (2007). “In the tort context, proximate causation includes all of the natural and probable consequences of the tortfeasor’s negligence, unless there is a sufficient and independent intervening cause.” Cowart v. Widener, 287 Ga. 622, 627-628 (2) (b) (697 SE2d 779) (2010). In this regard,

the general rule is that if, subsequently to an original wrongful act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act. . . was such that its probable or natural consequences could reasonably have been . . . foreseen by the original wrong-doer, the causal connection is not broken.

(Citation and punctuation omitted.) Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002). This principle applies even with respect to a third party’s intervening illegal act or act of negligence. Williams v. Grier, 196 Ga. 327, 338 (2) (26 SE2d 698) (1943); Stern v. Wyatt, 140 Ga. App. 704, 705 (1) (231 SE2d 519) (1976). It is also well settled under Georgia law that “the proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently’ and that “[t] he mere fact that the plaintiff’s injuries would not have been sustained had only one of the acts of negligence occurred will not of itself operate to limit the other act as constituting the proximate cause.” (Citation and punctuation omitted.) Hayes, supra, 317 Ga. App. at 78.

MST and Skrine argue that they were entitled to summary judgment because the intervening criminal act of the third party who was driving the vehicle that struck Granger’s vehicle and forced it into the right lane was unforeseeable. In addressing this issue, our decision in Gen. Motors Corp. v. Davis, 141 Ga. App. 495 (233 SE2d 825) (1977), is instructive. Davis involved a wrongful death action arising out of the death of the plaintiff’s husband in a collision that occurred after a General Motors truck with a defective alternator stalled on an interstate. The record contained evidence that the plaintiff’s husband was driving behind a large panel truck as he approached the stalled truck and was unable to see it until the panel truck swerved into another lane some 200 to 300 feet from the motionless truck, leaving the plaintiff’s husband with little time to respond. Id. at 496, 498 (4). The plaintiff’s husband collided with the stalled truck, which caused his death. Id. In affirming the denial of General Motors’ motion for summary judgment, we rejected its argument that an intervening agency was responsible for the collision as a matter of law. Id. at 497-498 (3). We held that “[a] jury could reasonably conclude that the occurrences subsequent to General Motors’ alleged negligence were natural and foreseeable results of its negligence that did not so preponderate as to insulate the manufacturer from liability.” Id. at 498 (3).

The facts in this case share similarities with those in Davis. The record includes evidence that Skrine’s tractor was standing in an active lane of traffic and that Granger, because of another driver’s conduct, found herself in a position where she had little or no chance of avoiding a collision with the stopped vehicle. Consistent with our decision in Davis, we conclude that it was not unforeseeable as a matter of law that another motorist on the road, for reasons beyond his or her control (including the negligent or unlawful actions of another driver), might be placed in a position in which it was all but impossible to avoid striking Skrine’s stationary tractor. Granger and Cody need not prove that MST or Skrine could foresee the precise manner in which the collision occurred. “[T]he foreseeability analysis is not that specific: the relevant inquiry is not whether the exact intervening negligent act was foreseeable, but whether, as a general matter, the original negligent actor should have anticipated that this general type of harm might result.” Smith v. Commercial Transp., 220 Ga. App. 866, 867 (1) (470 SE2d 446) (1996).

We disagree with the trial court’s conclusion that summary judgment for MST and Skrine was warranted under CSX Transp. v. Deen, 269 Ga. App. 641 (605 SE2d 50) (2004). The plaintiff in Deen filed an action against a railroad for negligently maintaining a crossing after she was injured when a car in which she was sitting at night at the crossing was struck from behind by a drunk driver and propelled into a train occupying the crossing. Id. at 641-642. We held that the third-party driver’s conduct was an intervening cause of the injury and that it was neither “normal” nor foreseeable that a subsequent driver would miss seeing a car stopped in the road with properly functioning brake lights, headlights, and tail lights and a train sitting in a known railroad crossing. Id. at 643-644 (1).

Unlike in Deen, the foreseeability issue in this case does not relate to the visibility of a roadway obstruction to a third-party driver. In addition, this case involves a car left sitting in an active lane of traffic as opposed to one stopped at a known railroad crossing, and

both the Supreme Court and this court have held in a plethora of cases that one who is negligent in blocking or obstructing a roadway, whether by turning, stopping, braking, backing, overturning, colliding, etc., is not relieved of the injurious consequences inflicted by the negligence of another motorist encountering the obstruction.

(Citations and punctuation omitted.) Smith, supra, 220 Ga. App. at 867.

“[Questions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff’s injuries are, except in plain, palpable and indisputable cases, solely for the jury.” (Citations and punctuation omitted.) Hayes, supra, 317 Ga. App. at 79. Under the circumstances of this case, the jury must determine whether the conduct of the third-party driver constitutes a sole or concurring proximate cause of the collision between Granger’s vehicle and Skrine’s tractor and the ensuing injuries.

2. In addressing MST and Skrine’s motion for summary judgment based on lack of proximate cause, the trial court concluded that OCGA § 40-6-202, a statute upon which Granger and Cody’s claim of negligence per se is based, is inapplicable under the circumstances of this case. We agree.

Granger and Cody argued below that Deen, supra, was distinguishable because, in that case, the train with which the plaintiff’s car collided “was traveling in the train tracks where it was supposed to be.” In response to this argument, the trial court found that, contrary to Granger and Cody’s allegations, Skrine did not violate OCGA § 40-6-202. OCGA § 40-6-202 states:

Outside of a business or residential district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park, or so leave such vehicle off the roadway; but in every event, an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicle shall be available from a distance of 200 feet in each direction upon the highway.

The record established the presence of various businesses in the vicinity of the collision between Granger’s vehicle and Skrine’s tractor, and Granger and Cody do not dispute that the collision occurred in a business district. Rather, relying on White v. Scott, 284 Ga. App. 87 (643 SE2d 356) (2007), they maintain that OCGA § 40-6-202 applies only within business and residential districts instead of outside of them. In White, which is physical precedent, the Court held that the trial court erred in giving the jury a charge based on OCGA § 40-6-202 because the evidence did not support a finding that the stretch of highway where the appellant’s truck had stalled was in a business or residential district. Id. at 92 (3).

The opinion in White does not explain the basis for concluding that the restrictions in OCGA § 40-6-202 apply within business and residential districts, and we have reached a contrary conclusion in other cases. See Darwicki v. State, 291 Ga. App. 239, 240-241 (2) (661 SE2d 859) (2008) (physical precedent); Southern Intermodal Logistics v. Coleman, 175 Ga. App. 853, 854 (2) (334 SE2d 888) (1985). “When we consider the meaning of a statutory provision, we do not read it in isolation, but rather, we read it in the context of the other statutory provisions of which it is a part.” Hendry v. Hendry, 292 Ga. 1, 3 (734 SE2d 46) (2012). Reading OCGA § 40-6-202 together with the statutory definition of “business district,” we conclude that the parking restrictions in OCGA § 40-6-202 do not apply within a business district and that, as the trial court found, the statute is inapplicable here. A business district is defined as “the territory contiguous to and including a highway when within any 600 feet along such highway there are buildings in use for business or industrial purposes, ... which occupy at least 300 feet of frontage on one side or 300 feet collectively on both sides of the highway.” OCGA § 40-1-1 (8). Because a business district is comprised of “the territory contiguous to and including a highway,” the parking restrictions in OCGA § 40-6-202 cannot be read to apply to roadways within areas meeting the criteria in OCGA § 40-1-1 (8). Our conclusion in this regard, however, is not dispositive of whether Skrine committed an act or acts of ordinary negligence in allowing his tractor to run out of gas in the roadway and obstruct traffic. See Sinclair Disposal Service v. Ochoa, 265 Ga. App. 172, 173 (593 SE2d 358) (2004) (“Compliance with the rules [of the road] does not necessarily demonstrate that a defendant exercised ordinary care”) (footnote omitted). That issue is not before us now.

Decided October 15, 2014.

Howell & Johnson, Evan H. Howell, for appellants.

Hall Booth Smith, Steven D. Prelutsky, Robert J. McCune, for appellees.

Judgment reversed.

McFadden and Ray, JJ., concur.

       The complaint also named Gramercy Insurance Company as a defendant and alleged that Gramercy provided insurance coverage for MST.

       Apart from the question of whether Skrine violated OCGA § 40-6-202, see Division 2 infra, the issue of whether Granger and Cody can establish that MST or Skrine was negligent is not before us. While Granger and Cody moved for summary judgment in their favor on the issue of negligence, the trial court did not address that motion. MST and Skrine did not move for summary judgment in their favor on the basis that Granger and Cody could not prove negligence.

       We acknowledged but did not resolve the conflict in our cases in State v. Stafford, 288 Ga. App. 309, 313 (1) (653 SE2d 750) (2007). The Supreme Court of Georgia also declined to resolve this issue in its opinion affirming our decision in Stafford. See Stafford v. State, 284 Ga. 773, 774 (671 SE2d 484) (2008).

       The definition of “residence district” includes the same “contiguous to and including” language. See OCGA § 40-1-1 (51).


text:
    A14A0962.
    HILL v. VNS CORPORATION et al.
    (764 SE2d 876)
   Miller, Judge.

VNS Corporation d/b/a Choo Choo Lake Oconee (“VNS”) sued Craig Hill to enforce a materialman’s lien on Hill’s real property. Hill appeals from the trial court’s order granting summary judgment to VNS, contending that factual questions remain regarding the amount of the materialman’s lien. For the following reasons, we agree. Therefore, we reverse and remand.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Vulcan Constr. Materials v. Franklin Builders Properties, 298 Ga. App. 120, 121 (679 SE2d 356) (2009).

So viewed, the evidence shows that Hill is the owner of real property (the “Property”) located in Greene County. Hill contracted with Bonacori Custom Homes of Georgia, LLC (“BCH”) for the construction of a home on the Property. Between June 26 and August 30, 2012, BCH purchased materials from VNS for use in the construction of Hill’s home.

Hill paid BCH a total of $254,336.25, including $89,836.25 for building materials supplied by VNS. Hill also paid $57,653.10 directly to VNS for custom-made materials which were ordered for, but not delivered to, the Property.

On October 25, 2012, after BCH failed to pay for all of the materials supplied by VNS for the construction of Hill’s home, VNS filed a materialman’s lien against the Property in the amount of $44,175.99. The next day, VNS filed suit for breach of contract and other claims against BCH and Richard L. Buonocore, Jr. (hereinafter, the “Buonocore defendants”). VNS also sued Hill contending that VNS was entitled to a materialman’s lien against the Property.

VNS moved for a default judgment against the Buonocore defendants based on their failure to respond to the complaint. The trial court granted VNS’s motion, resulting in a default judgment against the Buonocore defendants in the amount of $43,408.30, plus interest and attorney fees.

The Buonocore defendants subsequently made a payment to VNS in the amount of $27,000. According to VNS, only $18,797.63 of that payment was applied to the outstanding balance owed for the materials used to construct Hill’s residence. The remaining $8,202.37 was applied to prejudgment interest and attorney fees allegedly owed pursuant to the terms of a June 2011 credit application and personal guarantee signed by Richard Buonocore.

VNS subsequently amended its claim against Hill to state that VNS was entitled to a reduced materialman’s lien against Hill’s property in the amount of $27,644.69. VNS then moved for summary judgment, and the trial court granted VNS’s motion, finding that VNS was entitled to a materialman’s lien in the amount of $27,644.69 plus $1,450.52 in prejudgment interest.

Hill contends that the trial court erred in granting summary judgment to VNS, because factual questions remain regarding the amount of the materialman’s lien VNS sought. For the reasons that follow, we agree.

“The Georgia General Assembly has enacted a detailed statutory scheme for creating special liens on real property, including liens of materialmen who furnish materials for the building, repairing, or improving of the property.” (Footnote omitted.) Few v. Capitol Materials, 274 Ga. 784 (1) (559 SE2d 429) (2002); OCGA § 44-14-361 et seq.

A materialman’s lien effectively permits the transfer of liability from the person who actually contracted with the materialman for materials to be used in improving real estate to the owner of the improved property, even though that property owner usually will have no relationship with the materialman, contractual or otherwise.

(Citation omitted.) Palmer v. Duncan Wholesale, 262 Ga. 28, 29-30 (1) (413 SE2d 437) (1992). “[B]ecause materialman’s liens are in derogation of the common law, statutes involving such liens must be strictly construed in favor of the property owner and against the materialman.” (Citations omitted.) Browning v. Gaster Lumber Co., 267 Ga. 72, 73 (475 SE2d 576) (1996).

The right to a materialman’s lien is based upon “the theory that the work and material... for which the lien is sought have increased the value of the realty by becoming a part thereof.” (Citation and punctuation omitted.) 182 Tenth, LLC v. Manhattan Constr. Co., 316 Ga. App. 776, 780 (3) (730 SE2d 495) (2012). Accordingly, lien statutes allow a materialman to secure a lien only for the materials and work which actually went into the structure. Id. Moreover, VNS had the burden of proving the lien amount, if any, to which it was entitled by producing evidence of lienable items included in the default judgment against BCH. Id. at 779 (2).

(a) A question of fact remains regarding the lien amount to which VNS is entitled.

In a suit to enforce a materialman’s lien directly against the improved property, the property owner “who has paid the agreed price or any part of same, may set up the payment in any lien action brought and prove by competent and relevant evidence that the payments were applied as provided by law, and no judgment shall be rendered against the property improved.” OCGA § 44-14-361.1 (a) (4). Payments are properly applied when the money paid to the contractor is in fact used for payment of labor and materials. See Mayer Elec. Supply Co. v. Fed. Ins. Co., 195 Ga. App. 191, 192 (393 SE2d 270) (1990).

Here, VNS presented affidavit evidence showing that BCH failed to pay for more than $29,000 in materials used for the construction of Hill’s home. Hill responded by presenting his own affidavit showing the payments that he made to BCH for the materials used in the construction of his home. Hill stated in his affidavit that he made payments to BCH totaling $254,336.25 and these payments included $89,836.25, which was supposed to be paid to VNS for building supplies. Additionally, the evidence shows that BCH made a $27,000 payment to VNS less than one month after the trial court entered a default judgment against BCH. As set forth above, VNS had the burden of proving the lien amount, if any, to which it was entitled, and it failed to do so at this stage of the proceedings. The conflicting affidavits and other record evidence present material issues of fact regarding the lien amount which must be determined at trial. See Durham v. Marchman, 246 Ga. 645, 647 (2) (272 SE2d 343) (1980). Consequently, the trial court erred in granting summary judgment to VNS.

Decided October 15, 2014.

Martin L. Fierman, for appellant.

Robinson & Blazer, Scott B. Fields, for appellees.

(b) Hill is entitled to full credit for the Buonocore defendants’ $27,000 payment against the amount of any materialman’s lien awarded to VNS.

Here, the evidence shows that the Buonocore defendants paid $27,000 to VNS after the trial court entered a default judgment against BCH. Rather than applying the full amount of that payment to the outstanding balance owed for the materials used to construct Hill’s residence, VNS applied $8,202.37 to prejudgment interest and attorney fees allegedly owed by BCH. VNS then sought a reduced materialman’s lien in the amount of $27,644.69, in addition to $1,450.52 in prejudgment interest, which the trial court granted.

The attorney fees and interest allegedly owed by the Buonocore defendants are not lienable items under the Georgia lien statutes. See Bush v. Northside Trucking, 252 Ga. App. 729, 731 (2) (556 SE2d 909) (2001) (attorney fees are not lienable); 182 Tenth, supra, 316 Ga. App. at 781 (3) (interest due on unpaid payment applications was not a lienable item). Accordingly, the trial court erred in failing to credit the full amount of the $27,000 payment against VNS’s claim for a materialman’s lien.

(c) VNS was not entitled to prejudgment interest.

Prejudgment interest on a lien may not be claimed where, as here, there is no agreement fixing the amount of the lien. Bush, supra, 252 Ga. App. at 731 (1). Accordingly, the trial court erred in awarding prejudgment interest to VNS.

In sum, we hold that VNS is not entitled to summary judgment at this stage of the proceedings because it failed to prove the lien amount, if any, to which it was entitled; VNS is not entitled to a lien for the attorney fees and interest allegedly owed by the Buonocore defendants; VNS is not entitled to recover prejudgment interest; and Hill is entitled to full credit for the $27,000 payment. Accordingly, we reverse the trial court’s judgment and remand this case for further proceedings not inconsistent with this opinion.

Judgment reversed and case remanded.

Doyle, P. J., and Dillard, J., concur.

       In June 2013, Richard Buonocore filed for Chapter 7 bankruptcy protection.

       OCGA § 44-14-361.1 (a) sets out the provisions for perfecting a lien. Hill does not challenge the validity of the lien on appeal. Hill argues only that the trial court erred in calculating the amount of the materialman’s lien requested by VNS.


author: McFadden, Judge.

text:
    A14A1085.
    YORK v. THE STATE.
    (764 SE2d 866)
   McFadden, Judge.

After a jury trial, Abdurraashiyd York was convicted of two counts of burglary of gas station convenience stores. York appeals, claiming that the trial court erred in denying his motion for a mistrial after one of his accomplices testified that she had been threatened by members of York’s gang. But because York opened the door to such testimony, the trial court did not err in denying a mistrial.

At trial, Christina Craig, who had previously pled guilty to the two burglaries, testified for the prosecution that she drove York and another accomplice in her car to the burglarized stores, and that as they were fleeing from the scene of the second burglary they were pulled over by officers and arrested. On cross-examination, York’s attorney questioned Craig about her role in the crimes and her plea bargain with the state, and she testified that she had not driven York and his accomplice willingly. Defense counsel then asked her if a gun had been put to her head or if she had been threatened. She testified that a gun had not been pointed at her, but that she, her children and her mother had all been threatened. York’s attorney asked if York had threatened her, and she testified, “I didn’t necessarily say it was him, but I know it’s people that he’s connected to.”

On redirect examination, the state asked Craig about where the threats had come from, and she testified that York is in a gang and the threats had been made by members of that gang. York’s counsel moved for a mistrial. The trial court denied the motion, noting that the defense had questioned the witness’ motives for testifying “and has brought up the threats, and I think the door has been opened.”

“Whether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” Gorman v. State, 318 Ga. App. 535, 539 (3) (734 SE2d 263) (2012) (citations and punctuation omitted). Here, it is not apparent that a mistrial was essential to the preservation of the right to a fair trial.

As the trial court correctly noted, York’s attorney attempted to undermine the witness’ credibility by questioning her about her plea bargain and her role in the crimes, and thereby elicited the testimony that she had been threatened by people connected to York. This testimony elicited by the defense allowed the state to inquire further about the threats because “a defendant may not seek to exclude further details concerning the same area of inquiry he introduced.” Cantera v. State, 304 Ga. App. 289, 292 (2) (696 SE2d 354) (2010) (citations and punctuation omitted). Indeed, “where, as here, a defendant opens the door to [a] line of questioning..., the prosecution has every right to pursue a thorough and sifting examination[.]” Doyle v. State, 291 Ga. 729, 733 (3) (733 SE2d 290) (2012) (citation omitted). Accordingly, because York “opened the door to the inquiry about the existence [and details] of the threats [,]” McWhorter v. State, 271 Ga. 461, 463 (4) (519 SE2d 903) (1999), the trial court did not abuse its discretion in denying a mistrial. See Allison v. State, 296 Ga. App. 379, 381 (674 SE2d 639) (2009) (defense opened door to witness explaining on redirect examination that defendant had previously threatened her).

Decided October 15, 2014.

Mary Erickson, for appellant.

Penny A. Penn, District Attorney, James A. Dunn, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


text:
    A14A1308.
    PHILLIPS v. THE STATE.
    (764 SE2d 879)
   McFadden, Judge.

Billy Phillips appeals from the trial court’s denial of his motion to withdraw his guilty pleas. Because the trial court did not abuse its discretion in denying the motion, we affirm.

The record shows that Phillips was indicted for multiple offenses, including aggravated assault, terroristic threats and stalking. On August 29, 2013, the trial court held a calendar call at which Phillips’ retained counsel announced that they were ready for trial. The case came on for a jury trial on September 16, 2013. But before the start of jury selection, Phillips informed his attorney that he wanted to enter a guilty plea.

After Phillips had the opportunity to discuss the matter with counsel, a plea hearing was held. The state indicated that it had agreed to drop various counts of the indictment in exchange for Phillips’ guilty plea to the remaining counts as a three-time recidivist. The state did not offer a sentence recommendation, although it did inform the court that during earlier plea negotiations its final offer to Phillips had been for a total sentence of 35 years, with 15 years to serve in prison. Phillips acknowledged, among other things, that he had been advised of his rights, the charges against him, the maximum possible punishment and that he was knowingly and voluntarily pleading guilty. The court accepted the pleas to multiple counts of aggravated assault, terroristic threats and family violence, and one count of stalking. The court then entered a total sentence of 45 years, with 25 of those years to be served in confinement. Approximately a week after the sentence had been entered, Phillips filed a pro se motion to withdraw his guilty pleas. Appellate counsel was appointed and later filed an amended motion to withdraw the pleas. The trial court denied the motion, and this appeal followed.

Phillips claims actual and constructive denial of counsel. Because he was represented by counsel who subjected the state’s case to meaningful adversarial testing, his denial of counsel claims are without merit. And because he has failed to show either deficient performance or prejudice, his ineffective assistance of counsel claims are likewise without merit.

1. Denial of counsel at critical stages of criminal process.

Phillips claims that the trial court erred in denying his motion to withdraw his guilty pleas because he was actually and constructively denied the benefit of counsel at the calendar call and at the guilty plea hearing, critical stages of the criminal process, resulting in a manifest injustice. Phillips’ claim of actual denial of counsel is specious as the record plainly shows that Phillips hired an attorney who represented him at all stages of the criminal process.

The further claim of constructive denial of counsel at those specific points is likewise without merit. When there exists a complete failure of representation by counsel, prejudice to the defendant maybe presumed. Charleston v. State, 292 Ga. 678, 682 (4) (a) (743 SE2d 1) (2013). But such a “constructive denial of counsel is not present unless counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing. The attorney’s failure must be complete and must occur throughout the proceeding and not merely at specific points.” Dulcio v. State, 292 Ga. 645, 650 (3) (a) (740 SE2d 574) (2013) (citation and punctuation omitted; emphasis supplied).

Phillips has made no showing that his retained counsel entirely failed to subject the prosecution’s case to meaningful adversarial testing throughout the criminal process. On the contrary, the record shows that Phillips was actively represented by counsel who met with him to discuss the case on multiple occasions, investigated the state’s evidence, interviewed witnesses, negotiated a plea agreement, filed various defense motions, and participated in the plea hearing. Accordingly, Phillips’ claims “that his trial counsel failed to act as an advocate on several occasions does not meet this stringent standard [for constructive denial of counsel].” Charleston, supra at 683 (4) (a) (punctuation omitted).

2. Ineffective assistance of counsel.

Phillips contends that the trial court should have allowed him to withdraw his guilty pleas because his trial counsel was ineffective in failing to request a continuance to have more opportunities to meet with Phillips, in failing to object to irrelevant statements made by the state at sentencing, and by failing to challenge the use of his prior out-of-state and nolo contendere pleas for recidivist sentencing. The contentions are without merit.

Once a sentence has been entered, a guilty plea may be withdrawn only to correct a manifest injustice. Where, as here, the defendant bases his motion to withdraw on an ineffective assistance of counsel claim, he bears the burden of showing that his attorney’s performance was deficient and that, but for counsel’s errors, a reasonable probability exists that he would have insisted on a trial.

Williams v. State, 307 Ga. App. 780 (706 SE2d 82) (2011) (citations and punctuation omitted).

(a) Deficient performance.

Although counsel did testify that in hindsight he would have preferred to have had more visits with Phillips, he also testified that they had multiple meetings during which he was able to adequately discuss the case with Phillips. “[T]here exists no magic amount of time which counsel must spend in actual conference with his client.” Harris v. State, 279 Ga. 304, 307 (3) (b) (612 SE2d 789) (2005) (citations and punctuation omitted). Thus, the lack of a motion for continuance based on counsel’s hindsight wish for more conferences with Phillips does not amount to deficient performance. Indeed,

hindsight has no place in an assessment of the performance of trial counsel, and when evaluating deficient performance, the proper inquiry is focused on what the lawyer did or did not do, not what he thought or did not think. The proper assessment is an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.

Hartsfield v. State, 294 Ga. 883, 888 (3) (b) (757 SE2d 90) (2014) (citations and punctuation omitted).

As for the claim that counsel should have objected to irrelevant statements at the sentencing hearing, Phillips has not identified any specific statements that should have been challenged by counsel. “Accordingly, he has failed to carry his burden [of showing deficient performance] on this ground.” Minor v. State, 328 Ga. App. 128, 141 (8) (a) (761 SE2d 538) (2014).

Decided October 15, 2014.

Jennifer Walker Seifert, for appellant.

Leigh E. Patterson, District Attorney, F. Kevin Salmon, Assistant District Attorney, for appellee.

Likewise, he has not identified any specific prior guilty pleas that his counsel should have objected to as improper considerations for recidivist sentencing. Even if he had identified specific prior convictions, Phillips’ arguments concerning the use of out-of-state and nolo contendere pleas are without merit. The recidivism statute expressly provides that convictions under the laws of any other state may be considered, see OCGA § 17-10-7 (c), and “with respect to conviction under recidivist statutes, the law does recognize that a nolo plea can constitute proof of a prior conviction.” Spinner v. State, 263 Ga. App. 802, 804 (589 SE2d 344) (2003) (citation omitted). Accordingly, Phillips has not shown that his trial attorney performed deficiently.

(b) Prejudice.

Even if Phillips had shown deficient performance, he has not established prejudice. Phillips “did not produce any affirmative evidence at the motion to withdraw the guilty plea hearing that but for his counsel’s [purportedly] ineffective assistance, he would have insisted on going to trial.” Gower v. State, 313 Ga. App. 635, 637 (722 SE2d 383) (2012) (citation omitted). On the contrary, there was ample evidence in the record showing that immediately before jury selection, Phillips himself made the decision to plead guilty rather than go to trial. Absent a showing of any prejudice, “the trial court did not abuse its discretion in denying [Phillips’] motion to withdraw his guilty plea.” Id.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: MCMILLIAN, Judge.

text:
    A14A0875, A14A0876.
    MAREE et al. v. ROMAR JOINT VENTURE; and vice versa.
    (763 SE2d 899)
   MCMILLIAN, Judge.

ROMAR Joint Venture (“ROMAR”), by and through Bank of America, N.A. (“BOA”) as the managing joint venturer of ROMAR, filed a petition in 2010 seeking to dissolve ROMAR on the grounds that management was deadlocked. One of the joint venturers, Margaret Brewster Maree, and her co-trustee J. Clifton Barlow, Jr., objected to dissolution and asserted various counterclaims against BOA. In Case No. A14A0875, the Maree Parties appeal the trial court’s grant of dissolution, the dismissal of their counterclaim for conversion, and denial of summary judgment on their claim that BOA breached the contract by using ROMAR funds to pay its litigation expenses. In Case No. A14A0876, BOA cross-appeals the trial court’s denial of its motion for summary judgment on the Maree Parties’ remaining counterclaims and its request that ROMAR pay its litigation fees. For the reasons set forth below, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To prevail on a motion for summary judgment,

the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial, the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. And if the defendant does so, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citation and punctuation omitted.) Beale v. O’Shea, 319 Ga. App. 1, 2 (735 SE2d 29) (2012). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Gwinnett Community Bank v. Arlington Capital, LLC, 326 Ga. App. 710, 710 (757 SE2d 239) (2014). Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate.

With these principles in mind, the record shows that ROMAR was established in 1971 through a joint venture agreement (the “Agreement”) by two friends who purchased property where 1-75 was to be built. Over the intervening years, their 50/50 ownership of ROMAR passed to their various relatives and their trusts. ROMAR currently consists of seven joint venturers: the Owenby Trust (40.448% interest); Margaret Brewster Maree, individually (10% interest); the Maree Trust (16.515% interest); George LaVance Maree, Jr. (‘Vance”), individually (10% interest); the Vance Trust (Vance Trust”) (16.515% interest); Mary Ansley Southerland (3.261% interest); and Robert Frank Meaders, Jr. (3.261% interest).

BOA itself is not a joint venturer. Rather, in its capacity as trustee of the Owenby Trust — the joint venturer with the largest interest in ROMAR — BOA is the managing joint venturer of ROMAR (the “Manager”). The Agreement, which requires unanimous consent to amend, governs the responsibilities and duties of BOA as the Manager. Specifically, the Agreement provides:

[BOA is appointed to] carry on the business of the Joint Venture and to manage and control the business and to maintain the books and records of the Joint Venture. . . . [BOA] shall have full and complete authority to make any and all ordinary or routine decision regarding the business of the Joint Venture and to implement such decisions. [] [BOA] is hereby expressly authorized to take title to the Property or any interest of the Joint Venture in the Property in [its] own name as nominee and to convey, sell, transfer, mortgage, lease, rent, assign or otherwise encumber and convey the interest of the Joint Venture in the Property upon the written consent of a majority in interest and not in numbers ofthe Joint Venturers. [BOA] is authorized, expressly but without limitation, to execute warranty and quitclaim deeds, contracts, leases, assignments, deeds to secure debt, notes, settlement statements, agreements, certificates and any other writing which shall be necessary to hold, manage or convey the Property.

ROMAR currently holds two pieces of real property. The first is located in DeKalb County, consisting of an 8,960 square-foot retail building currently leased to a retail store with three consecutive, five-year renewal options (the “DeKalb Property”). The second is located in Gwinnett County, consisting of a 9,468 square-foot office building that is currently leased to a company with an annually renewable lease for ten years (the “Gwinnett Property”).

Under the current structure of the Agreement, BOA cannot withdraw as the Manager without unanimous, written consent to amend the Agreement. In December 2010, BOA filed its petition seeking dissolution of ROMAR on the ground that ROMAR was in deadlock. According to BOA, the deadlock, which began over ten years ago, was caused primarily by Vance Maree’s lack of engagement and Margaret Maree’s intentional hostility and has resulted in lost business opportunities, increased costs, decreased revenues, and lower enterprise value. In support of its arguments, BOA sets forth a long history of the parties’ interactions, which we will summarize.

Maree admits that she has been “hostile” toward BOA since at least 2001, arising out of her belief that BOA failed to adequately manage her mother’s estate and that it failed to properly manage ROMAR. In 2001, Maree demanded that BOA resign from its role as the Manager of ROMAR. In response, BOA sought agreement from the remaining joint venturers to hire Max Holstein to serve as the new manager. All of the joint venturers agreed to this plan and gave their written consent to BOA to retain counsel to prepare an amended Agreement accordingly. A draft copy of the amended Agreement was circulated to the joint venturers in September 2001. Maree did not respond for several months, at which point she stated that she would not sign the amended Agreement because she believed that the amendment benefitted the Owenby Trust. BOA further alleges that Vance Maree had not even opened the package containing the amended Agreement when it contacted him in June 2002, although he indicated at that time that he would sign and return it to BOA. By February 2003, BOAhad received approval from one joint venturer in 2001 and a second in late 2002. In April 2004, at the request of Faryl Moss, Maree’s then co-trustee, BOA faxed a copy of the amended Agreement to Moss. Ultimately, Maree refused to sign it because she wanted to sell the properties and dissolve ROMAR.

Thereafter, in lieu of resigning, BOA sought approval from the other joint venturers to dissolve ROMAR and liquidate its assets. By October 2005, BOAhad the consent of all the joint venturers except Maree, who did not provide her written consent until January 2006. BOA then sought updated appraisals for the properties, and ROMAR received a cash offer for the DeKalb County Property higher than the joint venturers’ agreed-upon price. Although Maree had previously consented, she objected to the sale, and it could not go forward. Only one of the three pieces of property owned by ROMAR at that time (the “8000 Miller Court Property”) was sold pursuant to the liquidation plan, which sale took place in June 2007. Then, in 2007, Maree and her co-trustee changed their minds and no longer wished to pursue dissolution and liquidation. Instead, they again demanded that BOA be replaced as the Manager.

In September 2007, a meeting was held, and the joint venturers unanimously agreed that the current Agreement and structure of ROMAR with BOA as the Manager was no longer optimal and that a new, restated Agreement should be prepared to allow for the installation of a new manager. The joint venturers again agreed that Max Holstein should serve as the new manager and that he should present a fee proposal. BOA alleges that the joint venturers also agreed at the meeting that BOA could retain counsel and pay attorney fees out of ROMAR’s funds in order to prepare a new amended Agreement.

The following month, BOA circulated a proposed amended Agreement; however, by December 2007, BOA did not receive a response from any joint venturer other than the Owenby Trust and Moss (as the co-trustee of the Maree Trust). In February 2008, Moss passed away, and a new co-trustee for the Maree Trust was not in place until September 2008. In October, Maree’s counsel responded to BOA with a completely new version of a proposed amended Agreement. In November, BOA provided suggested changes to Maree’s proposed amended Agreement but received no substantive response from her counsel for several months, despite BOA’s repeated attempts. In March 2009, BOA learned that Maree’s new co-trustee had resigned and she was seeking a replacement.

BOA called for a meeting in April 2009, but neither Margaret nor Vance Maree attended, nor did they respond indicating they would not attend, despite several communications from BOA. Because action was needed with respect to the two remaining properties’ leases, at least one of their votes was necessary to reach a majority. Given Margaret and Vance Maree’s absence, the leases could not be voted on. Finally, in July 2009, Maree’s counsel responded to BOA by circulating copies of another version of the amended Agreement signed by Maree, her co-trustee, and Holstein. None of the other joint venturers had agreed to this version. BOA and Maree’s counsel exchanged several more revisions throughout July and August. Following several prompts from BOA, Maree’s counsel finally responded in October 2009 that there were delays due to a change to the co-trustee of the Maree Trust and Maree’s concerns regarding certain changes to the Agreement. By November, all but one provision of the amended Agreement was agreed upon. BOA and Maree’s counsel continued to discuss changes up to January 11, 2010. However, despite several additional follow up inquiries from BOA, Maree’s counsel never responded prior to BOA’s filing of the petition in December 2010.

In addition to the foregoing, BOA also alleges that Maree was hostile in her communications regarding BOA’s role as Manager. Maree admits that in March 2007 she responded to BOA’s request for a meeting with an e-mail stating:

Well, is the purpose of the meeting to apologize profusely for breaching its duty on ROMAR and doing nothing over the past seven years but hold a joint venture hostage to incompetent donkeys, ruining what was a perfectly good investment for the partners?

In the same e-mail, Maree asked whether the purpose of the meeting was to “announce the wholesale removal of the list of corporate butterfingers who repeatedly] dropped the ball on ROMAR despite numerous warnings and calls for such action to cease?” Maree also acknowledges that in July 2007 she sent a letter to U.S. Trust Management accusing BOA of mismanagement and stating that it had “stolen hundreds of thousands of dollars over the past nine years from my family.” Maree further admits to referring to a BOA employee as a “meathead clerk.”

After BOA petitioned for dissolution, and the Maree defendants counterclaimed, the parties filed cross-motions for summary judgment, which were heard by the trial court on October 12, 2012. On May 6, 2013, the trial court issued an order granting BOA’s petition for dissolution and final accounting as well as BOA’s motion for summary judgment as to Maree’s counterclaim for conversion. The trial court denied BOA’s motion for summary judgment as to the Maree Parties’ counterclaims for breach of contract, breach of the duty of good faith and fair dealing, and breach of fiduciary duty. The trial court did not reach BOA’s request for an order for the payment of its litigation fees out of ROMAR’s funds or BOA’s motion as to the Maree Parties’ counterclaim for punitive damages.

In granting dissolution, the trial court relied on partnership law, first noting:

The Court may order dissolution under certain circumstances, such as where a party (1) “has been guilty of such conduct as tends to affect prejudicially the carrying on of the business”; (2) willfully or persistently breaches the agreement or otherwise acts in such a way “that it is not reasonably practicable to carry on the business”; or (3) under other such circumstances as would render dissolution equitable. OCGA § 14-8-32 (a) (3-5).

The court further noted that, although the parties disputed whether management deadlock existed, they each alleged that the other had breached the joint venture agreement and their duties to the joint venture. Therefore, the court concluded that “dissolution of the joint venture is an appropriate equitable remedy under the circumstances.” These appeals followed.

Case No. A14A0875

1. The Maree Parties first contend that the trial court erred by applying partnership law to determine whether ROMAR should be dissolved. We find that they have waived this argument by failing to assert it in the trial court. In its petition, BOA specifically alleged that ROMAR is a partnership governed by Georgia partnership law. Not only did the Maree Parties admit this allegation in their answer, we find no indication in the record that they later argued otherwise. Therefore, this enumeration of error is without merit. E.g., Silver Pigeon Properties, LLC v. Fickling & Co., 316 Ga. App. 167, 170 (1) (b), n. 10 (728 SE2d 801) (2012) (argument not raised in the trial court is waived and cannot be raised for the first time on appeal).

2. The Maree Parties also assert that the trial court erred in granting dissolution because there was no deadlock in the management of ROMAR. Despite agreeing with the vast majority of BOA’s recitation of the lengthy history of contention and stalemate between the parties, they nonetheless argue that there was no deadlock because ROMAR continued to lease the properties and distribute profits to the joint venturers. However, a court may order dissolution of a partnership under various circumstances addressed in OCGA § 14-8-32 (a). Here, after reviewing the parties’ extensive evidence and considering their arguments, the trial court found that dissolution was an appropriate equitable remedy under the circumstances. See OCGA § 14-8-32 (a) (5). “Equitable relief is generally a matter within the sound discretion of the trial court. The action of the trial court should be sustained on review where such discretion has not been abused.” (Citation and punctuation omitted.) Trotman v. Velociteach Project Mgmt., LLC, 311 Ga. App. 208, 210 (2) (715 SE2d 449) (2011). Based on the record before us, we find no abuse of discretion in the trial court’s grant of dissolution.

Moreover, we are also persuaded by BOA’s argument that dissolution is proper under the terms of the Agreement. Paragraph 13 (a) of the Agreement provides:

The occurrence of any one of the following events shall cause the dissolution of the Joint Venture:
(1) The expiration of the term of this agreement;
(2) The agreement of two-thirds in interest and not in numbers of the Joint Venturers to dissolve the Joint Venture;
(3) The management of the Joint Venture shall be deadlocked and no action can be approved nor taken for lack of the agreement of a number of the Joint Venturers entitled to vote upon the action sufficient to approve any of the proposed courses of action.

Even viewed in the light most favorable to the Maree Parties, the record clearly supports a finding that ROMAR has been deadlocked. Although the joint venturers, including Maree, have at times sought either dissolution and liquidation or the appointment of a new manager, the parties have not been able to effectuate either alternating course of action. Accordingly, this enumeration of error fails.

3. In their third and fourth enumerations of error, the Maree Parties argue that the trial court erred in granting summary judgment to BOA as to their claim of conversion arising from BOA’s payment of approximately $190,000 in attorney fees for the litigation up through September 2011 out of ROMAR’s cash reserves. BOA admits that it did so, but maintains that the payment of the attorney fees was for the benefit of ROMAR and not for its own benefit. In granting summary judgment to BOA on this counterclaim, the trial court found that a conversion claim does not exist because the Maree Parties did not plead for the recovery of a specific fund of money. We agree.

It is well settled that

[wjhile money constitutes personal property, money is intangible personalty that is fungible, because it belongs to a class of property which cannot be differentiated by specific identification unless there has been created a specific fund that has been set aside from other money. Thus, there can be no conversion action for money damages for money, because generally, money is not subject to a civil action for conversion.

(Citations omitted.) Taylor v. Powertel, Inc., 250 Ga. App. 356, 359 (2) (551 SE2d 765) (2001).

The Maree Parties correctly argue that there are exceptions to this general rule where the money is a “specific, separate, identifiable fund” to which the plaintiff “had an immediate right of possession.” Taylor, 250 Ga. App. at 359 (2). However, they have failed to showthat the money at issue falls within such an exception. The money was withdrawn from a joint fund that belonged to all joint venturers according to their respective ownership percentages and which was used for a variety of business purposes. Cf. Adler v. Hertling, 215 Ga. App. 769, 773-774 (2) (451 SE2d 91) (1994) (proceeds from a real estate refinancing held in escrow for sole use of one party were specific and identifiable). The trial court did not err in granting summary judgment to BOA as to the Maree Parties’ counterclaim for conversion.

4. In their fifth enumeration of error, the Maree Parties assert that the trial court erred in denying summary judgment on their counterclaim that BOA’s use of the ROMAR funds for its attorney fees was a breach of the Agreement. In its cross-appeal, BOA likewise argues that the trial court should have decided this breach of contract claim as a matter of law. The parties are correct that “[a]t least initially, [contract] construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.” (Citation omitted.) Mapei Corp. v. Prosser, 328 Ga. App. 81, 86 (761 SE2d 500) (2014). Because the construction of contracts is a matter of law, the trial court’s application is reviewed de novo. See McKinley v. Coliseum Health Group, LLC, 308 Ga. App. 768, 770 (1) (708 SE2d 682) (2011).

Turning first to the language of the Agreement, BOA asserts that Paragraph 14 (b) allowed it to use ROMAR funds to pursue dissolution of the joint venture. Paragraph 14 (b) of the Agreement provides:

In the event the Joint Venturers cannot agree upon the shares and manner of distribution within sixty (60) days of the event bringing about dissolution, any Joint Venturer may apply to the senior judge of the Cobb Judicial Circuit, Marietta, Cobb County, Georgia, for the appointment of an appraiser to appraise the assets and to divide the assets between the Joint Venturers and Assignees.
The cost of this procedure, including the filing of and proceedings in regard to the application, shall be paid from the assets of the Joint Venture.
The appraisal and division shall be final and binding upon all Joint Venturers and Assignees.

The Maree Parties argue, however, that this Paragraph only applies to the liquidation of assets following dissolution of ROMAR if the parties are unable to agree upon the manner of distribution. We agree that the plain language of this Paragraph, particularly when read and considered within the proper context of the entire Agreement, is unambiguous and does not permit BOA to recover its attorney fees associated with the filing of its petition for dissolution. Nor does Paragraph 14 (b) allow BOA to recover attorney fees incurred as a result of a claim made by a joint venturer against it. BOA has pointed to no other portion of the Agreement that would permit it to utilize ROMAR’s funds for the payment of its attorney fees, and we find none. Thereforé, we find that BOA breached the Agreement when it unilaterally expended ROMAR’s funds to do so.

BOA attempts to justify its actions by arguing that it had the authority to “declare deadlock under the ... Agreement and to begin dissolution automatically,” but, “due to the historical difficulties and out of an abundance of caution, [it] sought court-approved dissolution.” Thus, in order to extricate itself as definitively as possible, BOA made a strategic decision to utilize the court system to effect dissolution. This may well have been a good business decision that will allow the parties to finally part ways; however, BOA’s desire for finality does not change the plain language of the Agreement with respect to the payment of attorney fees, and that price must be borne by BOA.

Accordingly, the trial court erred by failing to find as a matter of law that BOA breached the Agreement with respect to its payment of attorney fees with ROMAR funds to the extent those fees were incurred either in conjunction with the filing of the petition for dissolution or in defending against the Maree Parties’ counterclaims. See Fidelity Nat. Title Ins. Co. of N.Y. v. OHIC Ins. Co., 275 Ga. App. 55 (619 SE2d 704) (2005) (trial court erred in failing to decide the parties’ cross-motions for summary judgment as a matter of law where the contract language was unambiguous). However, to the extent BOA incurred legal fees that would be covered under Paragraph 14 (b), i.e., those associated with the appointment of an appraiser to assist in the appraisal and division of ROMAR’s assets, BOA will be permitted on remand to present evidence as to any such attorney fees that were reasonable and necessary.

5. In their final enumeration of error, the Maree Parties allege that the trial court erred by not giving any direction or instruction to the manager now in charge of the dissolution. In its order, the trial court found that BOA had requested that Colliers International Management-Atlanta, LLC (“Colliers”) be appointed to manage the dissolution and gave the Maree Parties 20 days to object to Colliers’ appointment and to submit an alternate manager if necessary. After 20 days passed without objection, BOA filed a motion for entry of an order appointing Colliers along with a proposal detailing the dissolution procedures. It was only at this point that the Maree Parties filed an opposition, arguing for a number of restrictions that should be placed on Colliers. Before the trial court could rule, the Maree Parties filed this appeal, thereby depriving the trial court of jurisdiction to rule on the motion. Because the trial court has not yet ruled on the pending motion for entry of an order appointing Collier, there is no error for this Court to review, and this enumeration of error is without merit. See Mercer v. Washington Mut. Home Loans, Inc., 287 Ga. App. 388, 388 (651 SE2d 499) (2007).

Case No. A14A0876

In its cross-appeal, BOA alleges that the trial court should have granted its motion for summary judgment on each of the Maree Parties’ counterclaims.

6. In its first two enumerations of error, BOAargues that the trial court should have granted its motion for summary judgment on the Maree Parties’ various breach of contract counterclaims and, therefore, their breach of the duty of good faith and fair dealing counterclaim as well. These claims stem from their allegations that BOA (a) failed to properly market the 8000 Miller Court Property, (b) improperly used ROMÁR funds to pay its attorney fees in connection with this action, and (c) improperly used ROMAR funds to pay its attorney fees in connection with the preparation of an amended Agreement.

(a) The Maree Parties claim that BOA breached the Agreement and the duty of good faith and fair dealing in its handling of the 8000 Miller Court Property. Specifically, they claim that in 2002, the 8000 Miller Court Property was not leased and BOA failed for months to take action to effectively market the property, allowing it to remain vacant for approximately one year until a new lease was finally executed. They also claim that a similar situation occurred in 2005. Although the tenant’s lease did not expire until August 31, 2005, the tenant left the property in November 2004. However, BOA did not list the 8000 Miller Court Property for lease until September 2005, and it remained unleased until it was eventually sold in 2007 as part of the joint venturers’ liquidation attempts.

The Agreement defines ROMAR’s business as “acquiring, holding, maintaining, leasing, exchanging, and disposing of” the properties owned by ROMAR, but is silent as to the precise manner in which BOA is “to manage and control” that business. However, “absent an express contractual provision to the contrary, a duty of good faith and fair dealing is implied into all nonleasehold contract provisions granting discretion to one of the parties.” Hunting Aircraft, Inc. v. Peachtree City Airport Authority, 281 Ga. App. 450, 450 (636 SE2d 139) (2006). Thus, where, as here, “the manner of performance is left more or less to the discretion of one of the parties to the contract, he is bound to the exercise of good faith.” (Citations and punctuation omitted.) Id. at 453-454 (2). “Good faith and reasonableness do not comprehend arbitrary or capricious reasons, or considerations based on pecuniary gain, or merely personal preferences; rather, they refer to the considerations of fairness and commercial reasonableness.” (Citations and punctuation omitted.) Id. at 452 (1).

BOA does not dispute that the 8000 Miller Court Property remained vacant for periods of time. Rather, it first argues that the Maree Parties’ claims related to it are time barred by the six-year statute of limitation under OCGA § 9-3-24. However, as the Maree Parties point out, the statute of limitation for a contract under seal, as is the Agreement, is 20 years. OCGA § 9-3-23. See also Georgia Receivables, Inc. v. Maddox, 216 Ga. App. 164, 164 (1) (454 SE2d 541) (1995).

BOA also argues that the Maree Parties are unable to prove damages. “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2. And,

[t]o avoid summary judgment, a party is not required to present evidence of a specific dollar amount of damages. Rather, he must only present evidence sufficient to serve as the basis for a factfinder to calculate the amount of damages due should liability be established. And in cases such as this one, where the damages relate to the value of real or personal property, the question of value is normally regarded as peculiarly for the determination of the jury. Thus, a claim for damages related to value will be submitted to the jury where there is any data in the evidence upon which the jury may legitimately exercise their own knowledge and ideas. After a witness has given his basis for opinion evidence as to value, it is up to the jury to determine its weight.

(Citations and punctuation omitted.) Beale, 319 Ga. App. at 6 (1).

For the periods of time that the 8000 Miller Court Property remained vacant, ROMAR would have naturally suffered damages in the form of lost rent. And as evidence of the amount of lost rent, Maree submitted an affidavit that ROMAR lost approximately $88,000 in rent each year that the property was not leased. With respect to damages calculated on the value of property,

testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion. The opportunity for forming an opinion as to value may be established by showing the witness’s experience and familiarity with the item being valued.

(Citations and punctuation omitted.) Beale, 319 Ga. App. at 6 (l). Here, Maree based her estimate on “rental rates in the area, information from appraisals, and [her] knowledge of the commercial real estate market in the area.” This is sufficient to create a foundation for the jury to consider her opinion as to the property’s rental value. See id. at 7 (1) (“For a witness to give his opinion as to value, he must give his reasons for forming that opinion by showing that he had some knowledge, experience, or familiarity as to the value of the item.”) (punctuation omitted). See also In re Estate of Hubert, 325 Ga. App. 276, 286-287 (6) (750 SE2d 511) (2013) (finding sufficient foundation where witness’s testimony established he was familiar with the properties at issue, in which he had an ownership interest, and that he also was familiar with comparable properties, which he had considered in reaching his opinion).

Viewing the evidence in the light most favorable to the Maree Parties as the nonmovants, we find that they have set forth sufficient evidence to create a genuine issue of material fact regarding whether BOA failed to meet its contractual obligations to manage and control ROMAR’s business, including “acquiring, holding, maintaining, leasing, exchanging, and disposing of” the properties owned by ROMAR and the corresponding duty of good faith and fair dealing with respect to these provisions. See Hunting Aircraft, Inc., 281 Ga. App. at 452 (1) (what constitutes good faith is a question for the finder of fact). Accordingly, the trial court did not err in denying BOA’s motion for summary judgment as to the Maree Parties’ counterclaims for breach of contract and breach of the duty of good faith and fair dealing regarding its management of the 8000 Miller Court Property. See, e.g., Racette v. Bank of America, 318 Ga. App. 171, 181 (5) (733 SE2d 457) (2012).

(b) For the reasons discussed in Division 4, BOA’s argument that it did not breach the Agreement when it paid its attorney fees with ROMAR’s funds fails as a matter of law to the extent those fees were incurred for any reason outside those specifically delineated in Paragraph 14 (b) of the Agreement. For the same reasons, the trial court correctly denied summary judgment on the corresponding counterclaim for breach of the duty of good faith and fair dealing.

(c) The Maree Parties also asserted a breach of contract counterclaim based on BOA’s use of ROMAR funds to pay its attorney fees arising from the preparation of an amendment to the Agreement. They argue that the amendment was undertaken for the purpose of replacing BOA as the Manager, which is outside the scope of the authority vested in the Manager. However, the Maree Parties have admitted that in 2007, Maree again demanded that BOAbe replaced as Manager. They have also admitted that, at a September 2007 meeting, the joint venturers unanimously agreed that the Agreement and structure of ROMAR with BOA as the Manager was no longer optimal, that a new, restated Agreement should be prepared to allow for the installation of a new manager, and that BOA could retain counsel to effectuate the amendments. The authority to retain counsel necessarily carries with it the right to pay counsel from ROMAR funds. Accordingly, the trial court erred in denying summary judgment to BOA on the Maree Parties’ breach of contract and breach of the duty of good faith and fair dealing counterclaims with respect to the payment of attorney fees for preparing an amended Agreement.

(d) In their amended answer and counterclaim, the Maree Parties sought attorney fees pursuant to OCGA § 13-6-11 in conjunction with their breach of contract claims, and BOA moved for summary judgment on their request for those attorney fees. In its order, the trial court did not specifically address this issue, but rather denied BOA’s motion for summary judgment as to the Maree Parties’ counterclaim for breach of contract as a whole.

BOA contends that because there was no breach of contract, the Maree Parties are, therefore, not entitled to attorney fees under OCGA § 13-6-11. BOAfurther contends that even if it did breach the Agreement, the Maree Parties have presented no evidence that it committed a breach due to a sinister motive or self interest. We first note that certain of the Maree Parties’ breach of contract counterclaims have survived summary judgment. And there is some evidence to support their contention that BOA paid its attorney fees out of ROMAN funds to enrich itself. Therefore, the trial court did not err in denying BOA’s motion for summary judgment on the Maree Parties’ counterclaim for attorney fees pursuant to OCGA § 13-6-11 on this basis.

7. BOA next asserts that the trial court erred in denying it summary judgment on the Maree Parties’ breach of fiduciary duty counterclaim. The Maree Parties allege that BOA breached its fiduciary duty when it abused its position as Manager to divert funds from ROMAN to finance its litigation, which in turn caused a suspension of the distributions to the joint venturers.

It is well settled that a claim for breach of fiduciary duty requires proof of three elements: (T) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach. OCGA § 23-2-58 provides that a fiduciary duty exists “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal, and agent, etc.” The existence of a confidential or fiduciary relationship is a question for the jury. Such relationship may be created by law, contract, or the facts of a particular case. Moreover, because a confidential relationship may be found whenever one party is justified in reposing confidence in another, the existence of this relationship is generally a factual matter for the jury to resolve.

(Citation and punctuation omitted.) Bedsole v. Action Outdoor Advertising JV, LLC, 325 Ga. App. 194, 201 (4) (750 SE2d 445) (2013).

BOA does not dispute that a fiduciary relationship arises from its role as trustee of a partner to the ROMAR partnership. BOA instead argues that there was no breach of fiduciary duty because the suspension of the joint venturers’ distributions was authorized by the joint venturers’ agreement to replenish ROMAR’s reserves andbecause its payment of attorney fees did not breach the Agreement.

While it is true that in this State, a tort action cannot be based on the breach of a contractual duty only, it can be based on conduct which, in addition to breaching a duty imposed by contract, also breaches a duty imposed by law. Where private duties arise from relations created by the contract, express or implied, one may pursue a tort action for damages flowing from the exercise or failure to exercise that duty.

(Citations and punctuation omitted.) Spears v. Mack & Bernstein, P.C., 227 Ga. App. 743, 745 (2) (490 SE2d 463) (1997) (finding partners had some fiduciary duty to treat other partners fairly and in good faith). Here, the Maree Parties have successfully shown that BOA breached the Agreement through its payment of attorney fees incurred in filing the petition for dissolution. Moreover, Maree presented evidence that the joint venturers only agreed to suspend distributions in order to replenish the reserves as a result of BOA’s warnings that bankruptcy might result if BOA prevailed in this lawsuit and ROMAR did not have sufficient funds to pay BOA’s attorney fees. Because questions of fact exist regarding whether BOA exercised good faith by depleting ROMAR funds and suspending distributions, the trial court did not err in denying BOA’s motion for summary judgment as to the Maree Parties’ counterclaim for breach of fiduciary duty.

8. BOA also argues that the trial court should have granted its motion for summary judgment as to the Maree Parties’ counterclaim for punitive damages.

Punitive damages may be awarded only in such 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.

OCGA § 51-12-5.1 (b). BOA is correct, of course, that punitive damages are generally not available in an action for breach of contract. See Trust Co. Bank v. C & S Trust Co., 260 Ga. 124, 126 (1) (390 SE2d 589) (1990); Layer v. Clipper Petroleum, Inc., 319 Ga. App. 410, 420 (8) (735 SE2d 65) (2012). However, a breach of fiduciary duty will support an award of punitive damages. See Bunch v. Byington, 292 Ga. App. 497, 504 (4) (664 SE2d 842) (2008). Because we found in Division 7 that the Maree Parties’ counterclaim for breach of fiduciary duty survives, and because they have presented evidence from which a jury could properly conclude that an award of punitive damages is warranted, this enumeration of error fails. See Fernandez v. WebSingularity, Inc., 299 Ga. App. 11, 20 (7) (681 SE2d 717) (2009).

9. Lastly, BOA maintains that the trial court should have granted its request for an order permitting the payment of attorney fees out of ROMAR’s joint funds. As discussed in Division 4, ROMAR is only permitted the payment of any reasonable attorney fees it may have incurred that would be authorized under Paragraph 14 (b) of the Agreement, i.e., those associated with the appointment of an appraiser to assist in the appraisal and division of ROMAR’s assets.

In sum, we affirm the trial court’s order granting dissolution and summary judgment to BOA as to the Maree Parties’ conversion claim. We affirm the trial court’s order denying summary judgment to BOA as to the Maree Parties’ counterclaims for breach of contract and breach of the duty of good faith and fair dealing as to BOA’s management of the 8000 Miller Court Property, breach of fiduciary duty, and for attorney fees pursuant to OCGA § 13-6-11. We reverse the trial court’s denial of summary judgment to BOA as to the Maree Parties’ counterclaims for breach of contract and breach of the duty of good faith and fair dealing with respect to BOA’s payment of attorney fees associated with the preparation of an amended Agreement. We further find that the Maree Parties’ counterclaim for punitive damages survives summary judgment. And finally, we reverse the trial court’s denial of summary judgment on the Maree Parties’ counterclaim for breach of contract with respect to BOA’s payment of certain attorney fees using ROMAEt funds and therefore remand for further proceedings consistent with this opinion.

Decided September 29, 2014

Reconsiderations denied October 16, 2014

Chamberlain, Hrdlicka, White, Williams & Aughtry, Richard N. Hubert, Nicholas S. Papleacos, Jill R. Johnson, for appellants.

Bryan Cave, Jennifer D. Odom, Danielle C. Parrington, Ann W. Ferebee, Stacy G. Evans, for appellee.

Judgments affirmed in part and reversed in part, and cases remanded.

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

       We will hereinafter refer to Margaret Brewster Maree individually as “Maree” and Maree and J. Clifton Barlow, Jr., collectively as the “Maree Parties.”

       The trust created under Par. 8 (d) of the G. LaVance Maree Trust u/a 1/5/73 benefitting Margaret Brewster is referred to as the “Maree Trust.” J. Clifton Barlow and Margaret Maree are co-trustees of the Maree Trust.

       Margaret and Vance Maree are brother and sister.

       The trust created under Par. 8 (d) of the G. LaVance Maree Trust u/a 1/5/73 benefitting Vance Maree is referred to as the ‘Vance Trust.” BOA and G. LaVance Maree, Jr. are co-trustees of the Vance Trust. Vance did not respond to the Petition and is not a party to this appeal.

       Although Southerland and Meaders responded to the Petition filed by BOA, they filed no counterclaims and did not respond to the summary judgment motions. Neither is a party to this appeal.

       However, most other decisions relating to the joint venture, including the sale of property, are required to be made by a majority of the joint venturers in accordance with the percentage of their respective interests in ROMAR.

       The Agreement further provides that BOA is to be compensated for such managerial services out of the ROMAR funds.

       At that time, BOA was also a co-trustee of the Maree Trust, which owned a separate piece of real estate. After nearly two years of discord, BOA was eventually replaced as the co-trustee of her trust.

       Maree denied that the joint venturers approved the payment of attorney fees in her response to BOA’s Statement of Material Facts in Support of Summary Judgment. But in her affidavit, Maree admits that the joint venturers agreed that the Bank could retain counsel to amend the Agreement.

       Maree ultimately refused to sign the amended Agreement because BOA “might” he seeking a release and indemnification but was unable to point to any such language within the proposed Agreement. Maree deposed that she “assumed” there would bean indemnification hut did not actually know if BOA ever circulated a version with such language.

       Although the Maree Parties assert that they argued that corporate law should apply to ROMAR during the summary judgment hearing, the record belies their assertion. First, they repeatedly refer to ROMAR as a “partnership” and the individual joint venturers as “partners.” And although the Maree Parties point out that they relied on a case applying corporate law to define deadlock, the context shows that it was only because they were unable to locate a case specific to partnerships: “Now, in order for there to be deadlock, Georgia law in the case of a corporation — we can’t find one specifically in Georgia on a partnership — talks about four concepts.”

       We will affirm a grant of summary judgment if it is “right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” Anderson v. Jones, 323 Ga. App. 311, 312, n. 2 (745 SE2d 787) (2013).

       No attorney fees were paid after September 2011 following the entry of a TRO to preserve the status quo during litigation.

       For example, Paragraph 14 (a) of the Agreement sets out the grounds for dissolution and makes no provision for the payment of litigation costs or attorney fees.

       We likewise find BOA’s reliance on Buttrill v. Buttrill, 179 Ga. 759 (177 SE 576) (1934), unavailing. In Buttrill, although the attorney fees accrued from bringing the dissolution petition were ordered to be paid from the partnership estate, both partners had jointly sought dissolution, and our Supreme Court held that the trial court should have awarded fees expended to pursue their common claims. Id at 762. Here, although dissolution was ultimately granted, one of the parties sharply disputed BOA’s petition.

       In so holding, we do not reach the issue of whether BOA may be entitled to the recovery of attorney fees under any alternate theory of recovery that it may have asserted below and that was not addressed by the trial court in its order on the parties’ cross-motions for summary judgment.

       Because the summary judgment hearing was conducted before January 1,2013, former OCGA § 24-9-66 applies. See Ga. L. 2011, p. 99, § 101. Compare OCGA § 24-7-701 (b) under our new Evidence Code, which provides that “[djirect testimony as to market value is in the nature of opinion evidence. A witness need not be an expert or dealer in an article or property to testify as to its value if he or she has had an opportunity to form a reasoned opinion.”

       We note, however, that because the Maree Parties’ breach of contract counterclaims appear to arise from the same Agreement that forms the basis for BOA’s petition for dissolution and accounting, they may be compulsory counterclaims and, thus, outside the scope of OCGA § 13-6-11. See, e.g., Singh v. Sterling United, Inc., 326 Ga. App. 504, 513 (4) (756 SE2d 728) (2014) (plaintiff-in-counterclaim cannot recover attorney fees under OCGA § 13-6-11 for fees associated with compulsory counterclaim). However, because BOA did not raise this argument in the trial court or on appeal, we decline to consider it. Nebo Ventures, LLC v. Novapro Risk Solutions, L.P., 324 Ga. App. 836, 848 (4) (752 SE2d 18) (2013) (“we do not think an appellate court properly ought to consider whether the trial court was wrong for any reason”) (citation and punctuation omitted).

       We reject BOA’s initial argument that the Maree Parties waived their claim for punitive damages by not addressing it in their summary judgment briefing below. Through an independent review of the record, we find that they did in fact address punitive damages in their June 8, 2012 opposition brief and also at the hearing on the cross-motions.