author: PHIPPS, Presiding Judge.

text:
    A16A0110.
    JOHNSON v. THE STATE.
    (788 SE2d 559)
   PHIPPS, Presiding Judge.

Joe Johnson appeals his convictions for felony fleeing or attempting to elude a police officer and leaving the scene of an accident, arising from an offense that took place on October 22, 2011. He contends that the evidence was insufficient, that the trial court plainly erred in instructing the jury on felony fleeing or attempting to elude a police officer, and that his trial counsel was ineffective in failing to object to the jury charge. We find the evidence sufficient to support the guilty verdict as to fleeing or attempting to elude a police officer and leaving the scene of an accident; however, because there was insufficient evidence showing that Johnson was attempting to escape arrest for a non-traffic offense, we vacate Johnson’s felony fleeing or attempting to elude sentence and remand the case with direction that a conviction and sentence be entered for a misdemeanor offense of fleeing or attempting to elude a police officer.

1. Johnson complains that the evidence was insufficient to authorize his convictions for felony fleeing and leaving the scene of an accident because neither the accident victim nor the officer identified in the indictment was able to identify him and there was no evidence that Johnson fled police to escape arrest for any offense.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Evidence of a defendant’s conduct before and after the crime may give rise to an inference that he participated in the crime. Whether a defendant is guilty based solely on circumstantial evidence is a question for the factfinder.

So viewed, the evidence showed that two uniformed DeKalb County police officers (Deputy Rhone and Detective Watts) were patrolling an area of Flat Shoals Road in DeKalb County in a marked police vehicle at around 7:00 p.m. on October 21, 2011. The officers approached a Food Mart convenience store, in a parking lot that generated regular complaints to the police of loitering and drug activity The officers noticed a gold or champagne Chevrolet Cavalier backed into a parking space in front of an abandoned building in the parking lot. A man sat in the driver’s seat with the window rolled down, and several other men stood nearby with open containers of alcohol.

When the officers pulled in, the driver of the Cavalier started to slowly drive away Deputy Rhone got out of the patrol car and approached the vehicle, gesturing for the driver to stop the car. Rhone testified that he repeatedly instructed the driver to stop the car. Instead, the driver, whom Rhone recognized as Johnson, looked directly at Rhone through the open window as he drove slowly by him. Rhone testified that it was not yet dark, he got a good look at the driver and he was “sure” it was Johnson, having seen him around the neighborhood and at the Food Mart during the previous month. Detective Watts testified that Rhone was “pretty close” to the driver and the open car window. After ignoring Rhone’s orders to stop, Johnson “punched it” and “zoomed out” of the parking lot and onto Flat Shoals Road, in excess of the speed limit.

As Johnson was leaving the Food Mart parking lot, Officer Tillery, uniformed and riding in a separate marked patrol car with another officer, pulled into the lot. At the request of Rhone and Watts, Tillery turned around and followed the Cavalier, which he described as dark beige in color, out of the parking lot. Tillery activated his patrol car’s lights and siren in an attempt to get the Cavalier to stop. Tillery observed the car driving erratically and at a high rate of speed, “so wildly that it went through the yards in between two residences.” At that point, Tillery and his partner lost sight of the Cavalier.

Meanwhile, a woman was driving at the speed limit on the same section of Flat Shoals Road when she saw a gold or champagne-colored Chevrolet Cavalier zooming past her so fast that it seemed her car was standing still. The Cavalier circled through a subdivision, ran a stop sign, and then struck the woman’s vehicle from the rear. The Cavalier did not slow down or stop and, still speeding, crossed the centerline into oncoming traffic.

As Officer Tillery pulled out of the subdivision where he had lost sight of the Cavalier, he saw the victim of the collision in her damaged vehicle. According to the woman, Tillery pulled up “right after” the accident happened, before she had a chance to call for police assistance. Tillery observed the damage to her rear bumper, and his partner took her statement. Then, within 20 or 30 minutes of Tillery’s initial contact with the Cavalier, he received a call about an abandoned car approximately a mile from the Food Mart. He responded to the call and recognized the abandoned vehicle as the Cavalier he had been chasing.

The Cavalier was in a drainage ditch and had no damage to the ignition or steering column, indicating to the officers that a key had been used to drive the vehicle. The officers found traffic citations in the Cavalier containing Johnson’s name, date of birth, and driver’s license number, and the tag was registered to Johnson. The following morning, after Johnson reported his car stolen, officers arrested him at the tag’s registration address, one block away from the Food Mart.

An alibi witness testified that Johnson hadbeen with her and her fiancé at her apartment from approximately 4:00 p.m. until 9:00 p.m. on the evening in question, smoking crack cocaine, drinking vodka and beer, and playing cards. The witness added that two drug dealers, named Keon and “Big Rob,” came in and out during the evening and that Johnson discovered his car had been stolen when he got ready to leave.

(a) We agree with Johnson’s argument that the evidence was insufficient to convict him of felony, rather than misdemeanor, fleeing or attempting to elude. The indictment charged Johnson with the felony offense of fleeing or attempting to elude a police officer, in that he

on or about the 22nd day of October 2011, being the driver of a vehicle, did willfully fail to bring his vehicle to a stop after having been given an audible signal to bring his vehicle to a stop by Officer J. Tillery, an officer who at the time of giving such signal was in a uniform prominently displaying the officer’s badge of police and the officer’s vehicle was appropriately marked showing it to be an official police vehicle, and while fleeing and attempting to elude said officer, did collide with another vehicle.

Felony fleeing or attempting to elude a police officer is defined in OCGA § 40-6-395 (a) and (b) (5) (A). Pursuant to OCGA § 40-6-395 (a), a driver commits the offense of fleeing or attempting to elude a police officer when he willfully fails or refuses to bring his vehicle to a stop or otherwise attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop. Under the version of OCGA § 40-6-395 (b) (5) (A) in effect at the time of Johnson’s trial:

Any person violating the provisions of subsection (a) of this Code section who, while fleeing or attempting to elude a pursuing police vehicle or police officer in an attempt to escape arrest for any offense other than a [traffic offense]:. . . (ii) [s]trikes or collides with another vehicle or a pedestrian . . . shall be guilty of a felony[.]

The factfinder may consider the surrounding circumstances to determine whether the defendant acted with the requisite intent.

Prior to the collision, Deputy Rhone clearly identified Johnson at the Food Mart. He testified that Officer Tillery followed Johnson out of the parking lot when Johnson refused to stop. Tillery activated his lights and siren but lost sight of the speeding Cavalier moments before a Chevy Cavalier of the same color struck another vehicle just ahead. Although Tillery was unable to identify the driver of the Cavalier he was following, the circumstantial evidence presented was sufficient for a rational jury to find beyond a reasonable doubt the essential elements of fleeing or attempting to elude a police officer and to exclude every other reasonable hypothesis.

However, the indictment did not allege, and no evidence was presented at trial, that Johnson was attempting to elude arrest for a non-traffic violation when he struck the other vehicle. Under the version of OCGA § 40-6-395 in effect at the time of the offense, in order for his crime to constitute a felony, Johnson must have been attempting to escape arrest for an offense other than a traffic offense. Thus, we must vacate Johnson’s felony sentence. Because the evidence does support a misdemeanor conviction, we remand the case with direction that a conviction and sentence be entered for the misdemeanor offense of fleeing or attempting to elude a police officer.

(b) The evidence was sufficient to support Johnson’s conviction for leaving the scene of an accident which caused damage to the victim’s vehicle, as he did not stop at the scene and provide his name and registration information, as required by OCGA § 40-6-270 (a).

2. As a result of our determination in Division 1 (a), supra, we need not address Johnson’s arguments that the trial court plainly erred in instructing the jury on felony fleeing or attempting to elude a police officer and that trial counsel was ineffective for failing to object to the jury charge as to that count.

Decided June 29, 2016.

Frances C. Kuo, for appellant.

Robert D. James, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

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

Dillard and Peterson, JJ., concur.

       OCGA § 40-6-395 (b) (5) (A). As we discuss in Division 1 (a), infra, we review Johnson’s case under the prior version of the statute in effect at the time of the offense. See Ga. L. 2010, p. 256, § 2, effective July 1, 2010.

       OCGA § 40-6-270 (a).

       Johnson does not challenge his conviction for reckless driving under OCGA § 40-6-390.

        Odle v. State, 331 Ga. App. 146, 147 (1) (770 SE2d 256) (2015) (footnote omitted). See also Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).

       OCGA § 24-14-6.

        McNeely v. State, 296 Ga. 422, 424 (1) (768 SE2d 751) (2015).

        Bates v. State, 293 Ga. 855, 856 (1) (750 SE2d 323) (2013).

       OCGA § 40-6-395 was amended effective July 1, 2012. See Ga. L. 2012, p. 729, § 1. We review Johnson’s case under the prior version of the statute in effect at the time of the offense . See Ga. L. 2010, p. 256, § 2, effective July 1, 2010.

       Ga. L. 2010, p. 256, § 2 (emphasis supplied). See also Hicks v. State, 321 Ga. App. 773, 774 (1) (743 SE2d 458) (2013).

        Fairwell v. State, 311 Ga. App. 834, 836 (1) (a) (717 SE2d 332) (2011).

       See Minor v. State, 328 Ga. App. 128, 130-131 (1) (761 SE2d 538) (2014) (“[A]lthough neither victim could identify [the defendant] as a perpetrator of the crimes, circumstantial evidence of identity may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt.”). See also Payne v. State, 206 Ga. App. 189, 190 (1) (424 SE2d 868) (1992) (finding evidence sufficient to support conviction for fleeing and attempting to elude a police officer, despite alleged inconsistencies in the evidence as to the identity of the defendant as the driver of a stolen car).

       Ga. L. 2010, p. 256, § 2.

       See Adams v. State, 293 Ga. App. 377, 380-381 (2) (667 SE2d 186) (2008) (evidence sufficient to support felony conviction based on aggravated assault where the defendant continued to flee after driving toward and nearly striking sheriff’s deputy with his vehicle).

       See Hicks, supra at 775 (1).

       See Fairwell, supra at 837 (1) (c) (damage to attended vehicle and circumstances surrounding how the damage occurred were sufficient for a jury to find the defendant knew she had struck and caused damage to the vehicle).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A16A0158.
    KEMP v. KEMP et al.
    (788 SE2d 517)
   Dillard, Judge.

Sandra Kemp (“Sandra”) appeals the trial court’s interim award of attorney fees to her son, Charles Alexander Kemp II, and his minor children (collectively, “Alexander”) in their action against her for breach of trust and other related claims. On appeal, Sandra argues that the trial court erred in awarding attorney fees to Alexander under OCGA § 53-12-302 (a) (4) prior to the conclusion of the case because (1) such an award is not authorized by the statute, and (2) it is impossible to know at this time whether and to what extent Alexander will prevail on his claims. As to the amount of the award, Sandra maintains that the trial court erred in awarding fees for claims other than breach of trust, including claims that Alexander later abandoned. Because we agree that an award of attorney fees and costs of litigation to Alexander prior to the adjudication of his breach-of-trust claim is not authorized by OCGA § 53-12-302 (a) (4), we vacate the fee award and remand the case for further proceedings consistent with this opinion.

Relevant to this appeal, the record shows that Charles Alexander Kemp (“Alex”), who was Sandra’s late husband and Alexander’s father, was a successful businessman who founded companies that provide dialysis-management services. In February 2004, Alex executed his last will and testament, in which Sandra was named the sole executrix and trustee of a marital trust and a residual trust, both of which were created by the will. Alexander, who was 19 years old at the time, was named the first successor trustee of both trusts. Also in February 2004, Alex created the Green Tree Trust, which was the sole owner of his business that managed contracts for the operation of Wake Forest University’s dialysis clinics.

Alex died on May 24, 2004, and under his will, he left substantially all of his estate to the marital trust. The remainder of the estate was left to the residual trust. Both the marital and residual trusts (like the Green Tree Trust) provided that all income derived from those trusts be paid to Sandra during her lifetime, and if such income was not sufficient, the trustee of the marital trust could draw from the principal as necessary The will further provided that, after Sandra’s death, the marital and residual trusts would be combined, with Alexander as the sole trustee and beneficiary of the income and principal. Thereafter, all trust property would eventually pass outright, free of trust, to Alexander incrementally over his lifetime.

Shortly after Alex’s death, his life insurance policy paid $4,781,235.07 to Sandra, as trustee of the so-called 1990 Life Insurance Trust that Alex had created prior to his death. Under this trust, Sandra was entitled to income, but no principal absent a showing of a need for the funds. Following her death, Alexander would be the sole beneficiary of all trust property. But notwithstanding the terms of the 1990 Life Insurance Trust, Sandra distributed all of the life insurance proceeds to herself, individually And later, when the insurance company paid $80,000 from a lawsuit settlement to Sandra, as trustee of the 1990 Life Insurance Trust, she again deposited the funds to an account in her individual name.

On October 12, 2005, Sandra’s attorneys created the SS Kemp Trust to replace the Green Tree Trust. Despite being named as a trustee of the SS Kemp Trust, Alexander had no knowledge that the trust was created, never signed the trust agreement, and only discovered the trust’s existence after initiating this litigation. The SS Kemp Trust was different, from the Green Tree Trust in several material respects, including that Sandra reserved the right to unilaterally designate all of the trust property to pass to her future spouse or siblings, among others. In 2007, Sandra entered a new management contract for the operation of Wake Forest University’s dialysis clinics, referenced supra, but she did so via a company owned by the SS Kemp Trust, instead of the one owned by the Green Tree Trust, which had been created by her late husband. The business model was identical to that created by Alex in 2004, except for the different terms set forth in the SS Kemp Trust. Subsequently, Sandra, as managing member of a new dialysis-management company owned by the SS Kemp Trust, contracted with Emory University to manage its dialysis clinics. While the marital trust and Alexander had an interest and a reasonable expectancy in the profits from this new business opportunity, the profits derived from this business were distributed solely to Sandra, outside of trust.

On October 11, 2013, Sandra created yet another irrevocable trust, the SSK Kemp Trust, to replace the SS Kemp Trust and to own 99 percent of the dialysis-management business. Under this trust’s terms, Sandra was the trustee and several other individuals were her co-successors, but Alexander was neither a trustee nor a successor trustee. Indeed, prior to filing this lawsuit, Alexander had never even seen the SSK Kemp Trust. Sandra was the lifetime beneficiary of the trust, and after her death, all trust property was to be distributed to her grandchildren. Thus, the SSK Kemp Trust, unlike the Green Tree Trust from which it originated, excluded Alexander as a beneficiary

On June 9, 2014, Alexander, individually and on behalf of his minor children, filed a complaint against Sandra, personally and as trustee of the above-referenced trusts, as well as various businesses that were owned by those trusts. The complaint asserted, inter alia, claims for “breach of trust, misappropriation of corporate opportunity, self-dealing, conspiracy to commit breach of trust, and aiding and abetting in breach of trust.” In relevant part, Alexander contended that, as trustee of the marital trust, Sandra had “pursued and misappropriated opportunities belonging to the [m]arital [t]rust” and “entered into various businesses that compete directly with the [m]arital [t]rust.” In addition, Alexander sought preliminary and permanent injunctive relief, requesting that Sandra be immediately removed as trustee of the marital trust and Alexander be appointed as successor trustee.

Shortly after the complaint was filed, the trial court issued a temporary restraining order, providing that all defendants in the case were

restrained and enjoined from diverting, transferring, selling, secreting, encumbering, trading, pledging as collateral, contracting to sell, concealing, or otherwise disposing of or removing from the jurisdiction of [the court] any of the assets, property, contracts, equipment, accounts, corporate opportunities, or the like of any of the [defendant entities, [defendants, the [m]arital [t]rust, and [a “new trust” referenced in a letter by Sandra’s attorney]—except as is customary and in the ordinary course of business and is necessary to maintain ongoing operations.

In addition, the trial court prohibited the parties from “destroying or secreting” certain records relevant to the litigation and granted Alexander access to various records and documents in the defendants’ custody and control. The order also provided that all documents exchanged in discovery must remain confidential and that the complaint and any further pleadings would remain sealed as long as the temporary restraining order was in effect.

Subsequently, after the defendants filed their answers to the complaint, the trial court issued a consent order, extending the temporary restraining order until September 11, 2014, and ordering Sandra to take several actions with respect to the trusts at issue. But notwithstanding the restraining order, Sandra, intentionally and in violation of the order, transferred approximately $4,800,000 in assets held in her individual name to a new trust that was intended to replicate the 1990 Life Insurance Trust. Additionally, she purchased a new home with personal funds.

On September 3, 2014, Alexander filed an application for a contempt order against Sandra for alleged violations of the temporary restraining order. Specifically, Alexander requested an order holding Sandra in civil contempt of court, ordering her to pay a $1,000 fine for each “disobedient act,” ordering her to comply with the trial court’s orders at all times, and awarding Alexander reasonable attorney fees for filing the application. According to Alexander, Sandra had breached at least two provisions of the trial court’s temporary restraining order by spending $250,000 in personal funds to purchase real estate, transferring approximately $4,800,000 in securities to a new life insurance trust, listing her personal residence for sale, and disclosing the contents of the complaint and the allegations contained therein to third parties.

On October 14, 2014, the trial court granted Alexander’s petition for preliminary injunctive relief. After setting forth its detailed findings, the court ordered, inter alia, that Sandra be temporarily removed as trustee of the “Kemp Trusts” and that Alexander be appointed as temporary trustee of those trusts. A few days later, the trial court issued another order, holding Sandra in civil contempt of its temporary restraining orders and awarding Alexander attorney fees incurred in pursuing his contempt petition. In that order, the court noted that Sandra admitted disposing of approximately $250,000 of her assets by purchasing certain real estate, she impermissibly transferred approximately $4,800,000 in securities to a life insurance trust, and she admitted making certain disclosures that violated “the spirit and the terms” of the orders’ confidentiality provisions.

In late October 2014, Alexander filed the motion giving rise to this appeal, which sought attorney fees and costs of litigation under OCGA § 53-12-302 (a) (4) and OCGA § 9-15-14 that he incurred in pursuing the temporary removal of Sandra as trustee of the Kemp Trusts and his appointment as temporary trustee. Alexander contended that, over the course of a four-day hearing, Sandra, in her capacity as trustee, admitted to the misconduct set forth in the trial court’s order granting injunctive relief and that her attempts to defend these acts of breach were frivolous and without merit. In addition, he contended that Sandra had ignored his pretrial requests for documentation and rebuffed his repeated attempts to avoid this litigation. Sandra responded to the motion, arguing that OCGA § 53-12-302 (a) (4) does not authorize an interim award of attorney fees and that the defendants had not engaged in any conduct that would authorize an award offees under OCGA § 9-15-14 (a) or (b). Following a hearing on the matter, the trial court granted Alexander’s motion, finding that a fee award was appropriate under OCGA § 53-12-302 (a) (4). Specifically, the trial court awarded Alexander $270,789.75 in attorney fees and $24,736.34 in costs of litigation, which represented the amounts that he incurred from the first relevant time entry through October 15, 2014, the date of the trial court’s order granting injunctive relief. The court declined to reach the issue of whether attorney fees were also authorized under OCGA § 9-15-14. This appeal follows.

We begin by noting that the interpretation of a statute is a question of law, which is “reviewed de novo on appeal.” Indeed, when only a question of law is at issue, as here, we “owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” With these guiding principles in mind, we turn now to Sandra’s specific claims of error.

As noted supra, Sandra argues that the trial court erred in awarding attorney fees for breach of trust because an interim award of attorney fees prior to the final disposition of the case is not authorized by OCGA § 53-12-302 (a) (4) and because it is not possible to know whether and to what extent Alexander will prevail on his breach-of-trust claim. She also maintains that the trial court erred in awarding fees for claims other than breach of trust. Because we agree that OCGA § 53-12-302 (a) (4) does not authorize an award of attorney fees before the final adjudication of Alexander’s breach-of-trust claim, we need not address Sandra’s remaining claims of error.

When we interpret any statute, we necessarily begin our analysis with “familiar and binding canons of construction.” In considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” And when the language of a statute is “plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.” Finally, because any statute that “provides for the award of attorney fees is in derogation of common law, it must be strictly construed against the award of such damages.”

As recognized by the Supreme Court of Georgia, “[generally an award of attorney fees is not available unless supported by statute or contract.” And when a fee award is entered under a statute, the award must meet the requirements of that statute. Turning to the case sub judice, the trial court awarded attorney fees under OCGA § 53-12-302 (a) (4), which provides, in relevant part:

(a) A trustee who commits a breach of trust shall be personally chargeable with any damages resulting from such breach of trust, including, but not limited to:
(4) In the discretion of the court, expenses of litigation, including reasonable attorney’s fees incurred in bringing an action on such breach or threat to commit such breach.

Under the plain language of the foregoing statute, Alexander may only be awarded costs of litigation, including attorney fees, that result from Sandra’s breach of trust or threat to commit such breach. But here, the trial court awarded attorney fees and costs of litigation under OCGA § 53-12-302 before Alexander’s breach-of-trust claim had been resolved. Indeed, although the trial court awarded fees after granting Alexander’s request for injunctive relief based on its finding that Sandra admitted to certain breaches of her duties as trustee, his breach-of-trust claim itself has not yet been adjudicated on the merits or resulted in damages.

And while no Georgia case specifically addresses whether OCGA § 53-12-302 (a) (4) authorizes an “interim-fee award” (such as the one in this case), the plain language of the statute provides that attorney fees and costs of litigation may be included in an award of damages resulting from a trustee’s breach of trust or threat of such breach. And because this litigation is still pending, no damages have been awarded for Alexander’s breach-of-trust claim. As a result, the instant fee award could not have been included in any such damages. To the contrary, Alexander was awarded fees incurred in pursuing his successful request for injunctive relief and it is worth noting that even the trial court’s grant of injunctive relief, including its removal of Sandra as trustee of the Kemp Trusts, is only temporary.

Furthermore, in addressing a former, nearly identical, version of OCGA § 53-12-302 (a) (4), we explained that “there can be no recovery of any kind under this statute, including attorney fees, without a finding of a breach of trust.” Specifically, we held that, in the case of a jury trial, the trial court erred in awarding fees under this prior statute when there was no verdict form presenting the jury with the question of whether the defendants breached a fiduciary duty. But here, at this stage in the proceedings, we are not at liberty to presume that a judge or jury will enter a judgment or verdict answering that question.

In its order granting attorney fees, the trial court noted that it was necessary for Alexander to file the instant action and seek Sandra’s temporary removal as trustee because of the “established breaches of her fiduciary duty” and evidence that there were real and realistic threats of continued and additional breaches of such duties. Nevertheless, even if it was necessary for Alexander to seek temporary injunctive relief, there has been no official adjudication of Alexander’s breach-of-trust claim on the merits, either through the grant of summary judgment or by a jury verdict.

Nevertheless, Alexander—relying primarily on federal case law— argues that he may be considered the “prevailing party” for purposes of the attorney-fee award because he succeeded on his claim for injunctive relief, which constituted “some degree of success on the merits.” However, the issue before us is not whether attorney fees, in general, may be awarded upon the grant of injunctive relief. Instead, we must decide whether attorney fees may be awarded for breach of trust under the plain meaning of OCGA § 53-12-302 while the breach-of-trust claim itself is still pending.

Notwithstanding OCGA § 53-12-302 (a) (4)’s provision that attorney fees for breach of trust may be included in an award of damages, Alexander contends that an interim attorney-fee award is authorized by the statute because it has no language expressly prohibiting the award of interim fees. But significantly, although the trial court declined to consider the issue, Alexander also sought attorney fees under OCGA § 9-15-14, which does expressly provide for a fee award prior to the disposition of a case. Indeed, unlike OCGA § 53-12-302 (a) (4), OCGA § 9-15-14 explicitly provides that “[a]ttorney[ ] fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.” Thus, we must presume that if the General Assembly had wished to allow beneficiaries to seek attorney fees under OCGA § 53-12-302 (a) (4) at any time during the litigation, it would have expressly authorized them to do so. As a result, we must also presume that the General Assembly’s “failure to do so was a matter of considered choice.” Finally, to the extent that OCGA § 53-12-302 (a) (4) is ambiguous regarding whether attorney fees and litigation costs may be awarded based on the trial court’s factual findings in a temporary order that does not adjudicate any breach-of-trust claims, we must strictly construe the statute against the award of fees.

Decided June 29, 2016.

Powell & Erwin, William A. Erwin, for appellant.

James Bates Brannan Groover, LLP, John F. Kennedy, Jeffrey M. Rutledge, Scott E. Anderson, for appellees.

In sum, even assuming that, as Alexander and the trial court maintain, Sandra admitted to multiple breaches of her fiduciary duties as trustee of the Kemp Trusts during an evidentiary hearing and an interim award of attorney fees is an equitable sanction for her misconduct, such fees may not be awarded under OCGA § 53-12-302 (a) (4) unless the requirements of that statute are satisfied. And here, because there has not been a judgment in Alexander’s favor on the merits of his breach-of-trust claim, he has not satisfied the requirement of OCGA § 53-12-302 (a) (4) that an award of attorney fees and costs of litigation be included as damages resulting from a breach of trust or threat of such breach.

For all the foregoing reasons, we vacate the trial court’s award of attorney fees under OCGA § 53-12-302 and remand the case for the trial court to consider whether such fees are warranted at the time when damages, if any, are awarded after the disposition of Alexander’s breach-of-trust claim, or, alternatively, whether an award of attorney fees is authorized prior to the disposition of the breach-of-trust claim under OCGA § 9-15-14 (a) or (b).

Judgment vacated and case remanded.

Phipps, P. J., and Rick-man, J., concur.

       Although this litigation is still pending, the trial court entered its interim-fee award as a final appealable order under OCGA § 9-11-54 (b).

       The factual background underlying this appeal is gleaned from the trial court’s October 14, 2014 order, granting Alexander’s request for preliminary injunctive.relief, which, inter alia, temporarily removed Sandra as trustee of certain family trusts. In its order, the trial court appears to have relied upon testimony and other evidence presented at an evidentiary hearing, but the transcript of that hearing is not included in the appellate record because, in her notice of appeal, Sandra only requested that transcripts of two subsequent hearings be transmitted to this Court. It is not, then, possible for this Court to determine whether the trial court’s factual findings in the October 14, 2014 order were supported by the evidence. However, because this appeal involves a purely legal question of statutory interpretation, we rely on the trial court’s factual findings solely to provide context for the instant dispute between the parties. But to the extent that the omitted transcript is necessary to the resolution of this appeal, we presume that the findings of the trial court are correct. See Cox v. Bank of Am., N.A., 321 Ga. App. 806, 807 (2)(742 SE2d 147)(2013)(“ [W] e will not presume the trial court committed error where that fact does not affirmatively appear in the record.” (citation and punctuation omitted)); see also Curry v. Miller, 328 Ga. App. 564, 565 (763 SE2d 489) (2014) (“Georgia’s appellate courts have made clear that [when] the record is incomplete as the result of an appellant’s failure to comply with the requirements of OCGA § 5-6-37, the order of the trial court will be affirmed.”).

       The court defined the Kemp Trusts as including the marital trust, the residual trust, the 1990 Life Insurance Trust, and the “2014 Green Tree II Trust.” The 2014 Green Tree II Trust was established during this litigation to comply with the court’s order that the management contracts owned by trusts that Sandra created to replace the original Green Tree Trust be transferred into a new trust, with an estate-planning model that followed Alex’s intentions.

        See OCGA § 53-12-302 (a) (4) (authorizing a trial court, in its discretion, to award expenses of litigation, including reasonable attorney fees, incurred in bringing an action for breach of trust or threat to commit such breach).

        See OCGA § 9-15-14 (a), (b) (authorizing an award of attorney fees against a party who asserts “a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position!,]” or against a party (or attorney) who “brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if [the court] finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures . . . .”).

        Brantley Land & Timber, LLC v. W & D Investments, Inc., 316 Ga. App. 277, 279 (729 SE2d 458) (2012) (punctuation omitted); see also Lue v. Eady, 297 Ga. 321, 326 (2) (a) (773 SE2d 679) (2015) (“The interpretation of statutes . . . presents a question of law for the court.”).

        Coker v. Moemeka, 311 Ga. App. 105, 107 (1) (714 SE2d 642) (2011) (citation and punctuation omitted); accord Artson, LLC v. Hudson, 322 Ga. App. 859, 860 (747 SE2d 68) (2013).

        Holcomb v. Long, 329 Ga. App. 515, 517 (1) (765 SE2d 687) (2014); accord In the In terest of L. T, 325 Ga. App. 590, 591 (754 SE2d 380) (2014).

        Holcomb, 329 Ga. App. at 517 (1) (punctuation omitted); accord Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013).

        Holcomb, 329 Ga. App. at 517 (1); accord Deal, 294 Ga. at 172 (1) (a); see also State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies) . . . .”).

        Holcomb, 329 Ga. App. at 517 (1); see also Arizona v. Inter Tribal Council of Arizona, Inc., _ U.S. _(II) (B) (133 SCt 2247, 2254, 186 LE2d 239) (2013) (Scalia, J.) (“Words that can have more than one meaning are given content, however, by their surroundings.” (citation and punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears [.] ”).

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Deal, 294 Ga. at 172-73 (1) (a).

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord In the Interest of L. T, 325 Ga. App. at 592.

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013); see also Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

        Horton v. Dennis, 325 Ga. App. 212, 216 (750 SE2d 493) (2013) (punctuation omitted); accord Joyner v. Raymond James Fin. Servs., Inc., 268 Ga. App. 835, 838 (2) (602 SE2d 871) (2004).

        Cason v. Cason, 281 Ga. 296, 299 (3) (637 SE2d 716) (2006).

        See, e.g., Lockwood v. Fed. Deposit Ins. Corp., 330 Ga.App. 513, 515-16(1) (767 SE2d 829) (2014) (holding that an award of attorney fees was authorized by OCGA § 13-1-11 (a) (3) when the requirements of that statute were satisfied); Nelson v. Nelson, 176 Ga.App. 107, 109 (2) (335 SE2d 411) (1985) (finding that the plaintiff was entitled to attorney fees under OCGA § 13-1-11 when all the conditions specified in that statute had been met). Cf. Ga. Dep’t of Corr. v. Couch, 295 Ga. 469, 485 (3) (b) (759 SE2d 804) (2014) (reversing a portion of attorney fees awarded under OCGA § 9-11-68 (b) (2) because, inter alia, the trial court awarded the plaintiffs all of their attorney fees in the case when that statute only provides for reasonable attorney fees and expenses of litigation incurred “from the date of the rejection of [a settlement] offer through the entry of judgment" (punctuation omitted)).

        See OCGA § 53-12-302 (a) (4).

        See infra footnote 23.

        See former OCGA § 53-12-193 (a) (4) (2006) (“[A] trustee who commits a breach of trust is personally chargeable with any damages resulting from the breach of trust including but not limited to: . . . In the discretion of the court, expenses of litigation, including reasonable attorney [ ] fees incurred by the beneficiary in bringing an action on the breach or threat to commit a breach.”); see also Reliance Trust Co. v. Candler, 294 Ga. 15, 19 (2) n.3 (751 SE2d 47) (2013) (noting that the new Code section (OCGA § 53-12-302) is “materially identical” to former OCGA § 53-12-193).

        Bloodworth v. Bloodworth, 277 Ga. App. 387, 390 (2) (626 SE2d 589) (2006).

        See id. at 390 (2).

       In support of his argument that we should affirm the trial court’s award of interim attorney fees because he prevailed on his request for injunctive relief, Alexander relies primarily on the Supreme Court of the United States’s decision in Lefemine v. Wideman, _ U.S. _(133 SCt 9, 184 LE2d 313) (2012), which held that, for purposes of the prevailing-party requirement for receiving an award of attorney fees under 42 U.S.C. § 1988 (b) in a civil-rights action, a plaintiff, who is granted perman«n.i-injunctive relief (but no nominal damages) as the final resolution of a civil-rights claim, qualifies as a prevailing party. See id. at_, 133 SCt at 11. The Court reasoned that the grant of an injunction or declaratory relief, like a damages award, will usually satisfy the “test” that “[a] plaintiff‘prevails’. . . when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Id. But here, unlike in Lefem ine, Alexander’s claims have not been resolved on the merits either by the grant of permanent injunctive relief or an award of monetary damages, and even the injunctive relief he has been granted is only temporary. And regardless, unlike 42 U.S.C. § 1988, OCGA § 53-12-302 (a) (4) expressly provides that attorney fees and costs of litigation may be included in the calculation of damages resulting from a trustee’s breach of trust or threat of such breach.

       OCGA § 9-15-14 (e) (emphasis supplied).

        See, e.g., Fair v. State, 284 Ga. 165, 168 (2) (b) (664 SE2d 227) (2008) (“If the General Assembly had intended to require knowledge of the victim’s status as a peace officer in order for the [statute] to apply, the statutory history shows that it knew how to do so. We must presume that its failure to do so was a matter of considered choice.” (citation and punctuation omitted)); Bauerband v. Jackson Cty., 278 Ga. 222, 225-26 (3) (598 SE2d 444) (2004) (notingthat the use of the language “sums payable in the individual calendar year renewal term” and “annual payments” elsewhere in a statute showed that, “had the General Assembly wished to require that future obligations be set forth asa sum certain [in the instant provision], it knew how to accomplish that”); Avila v. State, 333 Ga. App. 66, 69-70 (775 SE2d 552) (2015) (noting that the General Assembly’s use of the phrase “during the commission of the offense” in certain subsections of a criminal statute made clear that it knew how to specify that a disqualifying event must occur while the crime was in process, and that the subsection at issue did not include such a limitation); Inland Paperboard & Packaging, Inc. v. Ga. Dep’t of Revenue, 274 Ga. App. 101, 104 (616 SE2d 873) (2005) (noting that, if the General Assembly intended to include a particular exemption in a tax statute, the statutory history showed that it knew how to do so).

        Inland Paperboard & Packaging, Inc, 274 Ga. App. at 104 (punctuation omitted), quoting Hollowell v. Jove, 247 Ga. 678, 683 (279 SE2d 430) (1981); see also Transp. Ins. Co. v. El Chico Restaurants, Inc., 271 Ga. 774, 776 (524 SE2d 486) (1999) (“We must presume that the legislature’s failure to include the limiting language was a matter of considered choice.”); Citibank (S. Dakota), N.A. v. Graham, 315 Ga. App. 120, 122 (1) (726 SE2d 617) (2012) (noting that, when the General Assembly provided for a tax refund in a different statutory provision, “we must presume that the legislature’s failure to provide a refund under [the statute at issue] was a matter of considered choice” (punctuation omitted)).

        See Horton, 325 Ga. App. at 216; Joyner, 268 Ga. App. at 838 (2).

        See supra footnote 17. Cf. OCGA § 9-15-14.

       we express no opinion regarding whether an award of attorney fees and costs of litigation is warranted inthiscaseunder OCGA § 9-15-14.As previously noted, OCGA § 9-15-14 is not limited solely to breach-of-trust claims and expressly provides that such an award may be requested at any time during the course of the litigation, but not later than 45 days after the final disposition ofthe.case. See OCGA § 9-15-14 (e). Thus, unlike under OCGA § 53-12-302, the trial court is not precluded from considering whether to award fees and costs under OCGA § 9-15-14 (a) or (b) before the final disposition of this case. In fact, if the requirements of OCGA § 9-15-14 (a) are satisfied, an award of attorney fees and costs of litigation is mandatory. See Fulton Cty. v. Lord, 323 Ga. App. 384, 393 (4) (746 SE2d 188) (2013).


text:
    A16A0257, A16A0258.
    OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY v. RM KIDS, LLC; and vice versa.
    (788 SE2d 542)
   Dillard, Judge.

RM Kids, LLC, filed suit against Old Republic National Title Insurance Company (“Old Republic”), alleging, inter alia, breach of contract and bad faith refusal to pay a claim under a policy of lender’s title insurance issued by Old Republic. Following a lengthy trial, a jury rendered a verdict in favor of RM Kids and awarded $7,100,000 in damages. Shortly thereafter, the trial court issued a judgment affirming the jury’s verdict, and both parties filed cross-appeals.

In Case No. A16A0257, Old Republic contends that the trial court erred in ruling that the date of RM Kids’s loss was the date its predecessor-in-interest closed on the loan for the subject property rather than the date RM Kids foreclosed on the property Moreover, Old Republic argues that even if the date of the loss was, in fact, the closing date, the trial court, nevertheless, erred in ruling that RM Kids had standing to assert a claim for a loss that its predecessor actually incurred. Old Republic also maintains that the trial court erred in (1) affirming the jury’s verdict that “environmental stigma” was a title defect covered by the policy; (2) admitting unreliable expert testimony; and (3) denying its motion for directed verdict to preclude any consideration of diminution of value to an adjoining tract of property that was purchased separately from the tract for which the title insurance policy was initially issued. In Case No. A16A0258, RM Kids contends that the trial court erred in denying its claims for bad-faith damages and prejudgment interest as a matter of law.

For the reasons set forth infra, we reverse the trial court’s ruling that the date of RM Kids’s loss was the date its predecessor-in-interest closed on the subject loan, and, thus, we remand the case for retrial. As to the remaining issues not rendered moot by the remand for retrial, we affirm for the reasons noted infra.

Construed in favor of the jury’s verdict, the evidence shows that the property at the center of this litigation is a 114-acre tract, through which both Hopkins Creek and the Alcovy River run, that is located in Gwinnett County near the City of Dacula and referred to as “Black Hawk Ranch.” In the early 1990s, a pumping station near the Black Hawk Ranch, which was owned and operated by Colonial Pipeline Company (“Colonial”), leaked petroleum into the groundwater. Subsequently, some of the petroleum migrated to the groundwater under Black Hawk Ranch. Colonial reported the leak to the Georgia Environmental Protection Division (“EPD”), which then, under a consent order, conducted an environmental assessment and developed a corrective-action plan. Not long thereafter, Colonial acquired Black Hawk Ranch, and, as part of a corrective-action plan, it set up three small wells on the property to monitor the groundwater. In addition, because any pumping of the groundwater could potentially have caused more petroleum to migrate from the subject property, Colonial arranged for the property to be serviced by public water from the county

After Colonial fully implemented its corrective-action plan, testing of the groundwater indicated reduced contamination such that the EPD allowed Colonial to lower the number of monitoring wells on the property to one, and by 2003, Colonial believed that the property was suitable for sale and development. Indeed, in January 2005, Colonial sold the property to Black Hawk Ranch, LLC. And as part of that sale, Colonial attached “Exhibit C” to the deed, which provided the following:

In connection with the conveyance of the Property pursuant to this Limited Warranty Deed, Grantor hereby notifies Grantee and its successors and assigns that petroleum contamination, including groundwater and surface water contamination, emanating from Grantor’s pipeline facility located adjacent to the Property was discovered in the early 1990s. Grantor has been assessing and remediating such contamination as required by the State of Georgia Environmental Protection Division (“EPD”) and has assumed and maintains full responsibility for performing the investigation, remediation and monitoring of such petroleum contamination in accordance with applicable law and the requirements of the EPD; provided, however, groundwater contamination in the deep aquifer remains and will continue to be monitored by Grantor as required by the EPD.

Exhibit C also placed the following four limitations on the use of the property: (1) no use of the groundwater for any purpose whatsoever; (2) an easement reserved by Colonial for access and maintenance of the monitoring well on the property; (3) a right of first refusal for Colonial to reacquire the property in the event the grantee received an offer on the property; and (4) reservation of a 25-foot riparian buffer easement as to Hopkins Creek and the Alcovy River.

Following its purchase of the property, Black Hawk Ranch, LLC successfully petitioned the City of Dacula to annex the parcel and rezone it for high density single-family development. One year later, in 2006, Black Hawk Ranch, LLC sold the property to BBC Partners, LLC. To fund the purchase, BBC entered into a $7,300,000 loan agreement with Peachtree Bank, with the property as security And although there was some indication that Peachtree Bank was aware of the property’s environmental issues, Exhibit C was not included in the chain of title following this conveyance and was not noted in the exceptions to Peachtree Bank’s lender’s title-insurance policy issued by Old Republic. Under that policy, Old Republic insured Peachtree Bank against loss or damage sustained or incurred by reason of, inter alia, “[a]ny defect in or lien or encumbrance on the title”; “[ujnmar-ketability of the title”; and “[l]ack of a right of access to and from the land[.]” The policy also provided numerous exclusions, including “[djefects, liens, encumbrances, adverse claims or other matters: [cjreated, suffered, assumed or agreed to by the insured claimant” or such “resulting in no loss or damage to the insured claimant.” Additionally, in defining the extent of Old Republic’s liability, the policy provided: “This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described.”

In December 2006, BBC purchased a 37-acre parcel on the western side of the Black Hawk Ranch property, known as the Wages Tract, for $1,300,000, and Exhibit C was not included in that chain of title. Shortly thereafter, in April 2007, BBC and Peachtree Bank entered into a new loan for $11,400,000, which was secured by the Wages Tract and Black Hawk Ranch, and which was used to pay off the acquisition loans for both of those parcels of property. In connection with that loan, Old Republic issued the subject lender’s title-insurance policy to Peachtree Bank, which, once again, made no mention of the environmental issues or restrictions on the property as outlined in Exhibit C.

In April 2008, RM Kids acquired the $11,400,000 BBC loan from RBC Bank, which was the successor by merger to Peachtree Bank, by means of an allonge and assignment of the security deed. A few months later, while engaging in discussions with BBC about a possible forbearance agreement, RM Kids learned about Exhibit C and the restrictions it imposed upon the property. And believing that title to the property was defective, RM Kids contacted Old Republic in January 2010 and demanded that it address these defects. Old Republic did not respond, and in November 2010, after subsequent demands also went unanswered, RM Kids filed suit against Old Republic, alleging, inter alia, breach of contract and bad faith. Later, in December 2012 (and while discovery in the case was still ongoing), RM Kids foreclosed on the property and purchased it at the foreclosure sale for $750,000.

Prior to trial, Old Republic filed a motion for summary judgment, arguing, inter alia, that RM Kids’s bad-faith claim failed as a matter of law because it had reasonable grounds for denying RM Kids’s claim under the policy. Later, Old Republic also filed a motion to exclude RM Kids’s expert witness from testifying regarding diminution in value of the property, arguing that the expert’s testimony was not based on any reliable methodology. Additionally, Old Republic filed a motion arguing that the trial court should, as a matter of law, rule that the date of RM Kids’s loss was the date that it foreclosed on the subject property rather than the date that its predecessor-in-interest, Peach-tree Bank, closed on the loan. RM Kids filed responses, and ultimately, in three separate orders, the trial court (1) granted Old Republic’s motion for summary judgment as to RM Kids’s bad-faith claim, (2) denied Old Republic’s motion to exclude the testimony of RM Kids’s expert, and (3) denied Old Republic’s motion to set the date of RM Kids’s loss at the time of the foreclosure, ruling instead that, as a matter of law, the date of RM Kids’s loss for the purpose of measuring damages was the date Peachtree Bank closed on the $11,400,000 loan.

The case then proceeded to trial, and after both parties presented their evidence, Old Republic moved for a directed verdict on several grounds, arguing that if the date of loss was the loan closing date, RM Kids lacked standing; damages, if any, were not liquidated and, thus, not subject to prejudgment interest; the Wages Tract should not be considered with regard to damages because the policy did not apply to that parcel of property; and RM Kids failed to prove that it suffered an actual monetary loss. The trial court granted Old Republic’s motion for directed verdict as to whether damages were subject to prejudgment interest, but denied it in all other respects.

At the trial’s conclusion, the jury rendered a verdict in favor of RM Kids on its breach-of-contract claim and awarded $7,130,370 in damages. One week later, the trial court issued a judgment affirming the jury’s verdict. These cross-appeals follow.

Case No. A16A0257

1. Old Republic first contends that the trial court erred in ruling that the date of RM Kids’s loss was the date that its predecessor-in-interest, Peachtree Bank, closed on the subject loan rather than the date RM Kids foreclosed on the subject property. We agree and, thus, reverse the trial court’s ruling.

In Georgia, insurance contracts are “governed by the rules of construction applicable to other contracts, and words in the policy must be given their usual and common signification and customary meaning.” It is, of course, well established that the hallmark of contract construction is to “ascertain the intention of the parties.” And obviously, when the language of an insurance policy defining the extent of an insurer’s liability is “unambiguous and capable of but one reasonable construction, the courts must expound the contract as made by the parties.” Importantly, the proper construction of a contract, and whether the contract is ambiguous, are “questions of law for the court to decide.” With these guiding principles in mind, we turn now to Old Republic’s specific claims of error.

As previously noted, the title insurance policy issued by Old Republic to Peachtree Bank at the time the subject property was acquired by BBC insured the bank against loss or damage sustained or incurred by reason of, inter alia, “[a]ny defect in or hen or encumbrance on the title”; “ [u] nmarketability ofthe title”; and“[l]ack of a right of access to and from the land[.]” Additionally, the policy provided that it “is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described.” In determining “actual” loss or damage, it is generally held that “for purposes of title insurance, a mortgagee’s loss is measured by the extent to which the insured debt is not repaid because the value of the security property is diminished or impaired by outstanding hen encumbrances or title defects covered by title insurance.” And although Georgia’s appellate courts do not appear to have specifically addressed when such loss to a mortgagee or lender actually occurs, “a majority of courts from other jurisdictions have held that, in the absence of specific policy language, a title insurer’s liability to a mortgagee should be measured using the foreclosure date,” reasoning that the foreclosure date is “appropriate because the foreclosure is when the insured actually incurs a covered loss.”

Upon consideration of this authority, we find the majority view to be persuasive and applicable here in Georgia. Indeed, while not explicitly adopted, this Court has previously acknowledged that “[consideration of the amount obtained by a mortgagee through foreclosure of collateral is a recognized method for determining whether the mortgagee has suffered an actual monetary loss covered by the policy.” Furthermore, as noted supra, the policy issued by Old Republic in this matter is one of indemnity, and as a result, it “provides for indemnity only to the extent that the insured’s security is impaired and to the extent of the resulting loss that it sustains.” It does not, however, “guarantee either that the mortgaged premises are worth the amount of the mortgage or that the mortgage debt will be paid.”

Nevertheless, citing U. S. Life Title Ins. Co. of Dallas v. Hutsell, RM Kids argues that Georgia law has established that a loss under a title-insurance policy is measured as of the closing date. But as RM Kids concedes in its appellate brief, this case involved determining the date of loss under an owner’s title-insurance policy rather than a lender’s policy. Critically, defining and measuring actual loss “under a title insurance policy is not the same for the owner who has title to property, and a mortgagee who holds only a security interest in the borrower’s title.” This is because “[t]he fee interest of an owner is immediately diminished by the presence of lien since resale value will always reflect the cost of removing the lien[,]” but, as noted supra, “[a] mortgagee’s loss cannot be measured unless the underlying debt is not repaid and the security for the mortgage proves inadequate.” RM Kids attempts to blur this distinction by asserting that, under Georgia law, a deed to secure debt conveys outright legal title to a lender until the secured debt is repaid, and, thus, a lender and an owner’s interests are identical. But belying this conflation, our Supreme Court has held “[a] security deed, although conveying the legal title, does so for the purpose of security only, and, upon the satisfaction of the obligation which it is given to secure, is automatically extinguished in effect . . . .” Consequently, we do not find RM Kids’s argument persuasive, and given the particular circumstances before us, we hold that RM Kids’s loss in this matter occurred at the time it foreclosed on the subject property Accordingly, we reverse the trial court’s ruling in this regard, and remand the case for retrial.

2. In its second enumeration of error, Old Republic contends that if the date of the loss was, in fact, the closing date, then the trial court erred in ruling that RM Kids had standing to assert a claim for a loss that Peachtree Bank, and not RM Kids, actually incurred. But given our holding in Division 1, supra, this issue is moot and we need not address it.

3. Old Republic also maintains that the trial court erred in affirming the jury’s verdict that “environmental stigma” was a title defect covered by the title insurance policy Specifically, Old Republic argues that although the environmental stigma associated with petroleum leakage into the property’s groundwater is certainly a physical condition that may diminish the property’s value, it does not constitute unmarketability of title or an encumbrance and, thus, is not a defect covered by the policy Old Republic then further argues that RM Kids failed to present evidence as to how any lien or encumbrance caused damages, but instead only presented evidence as to how the environmental stigma damaged the property and, therefore, it failed to show that it sustained any damages covered by the policy

However, as RM Kids notes in its appellate brief and as Old Republic concedes, Old Republic did not move for a directed verdict on this specific ground. Consequently, Old Republic is barred from contending on appeal that it is entitled to an adjudication as a matter of law on this issue. Nevertheless, OCGA § 5-6-36 (a) provides that “[t]he entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.” And our Supreme Court has held that this statute “should be interpreted to permit a party to obtain only a new trial on appeal if [it] prevails on a claim that the evidence was insufficient to sustain the verdict, but failed to move for a directed verdict on that ground at trial.” But given our holding in Division 1, supra, ordering a retrial of this case, we need not further address this issue at this time.

4. Old Republic further argues that the trial court erred in admitting testimony offered by RM Kids’s expert witness regarding the diminution of the subject property’s value that was unreliable. We disagree.

OCGA § 24-7-702 (b) provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if . . . [t]he testimony is based upon sufficient facts or data; . . . [t]he testimony is the product of reliable principles and methods; and... [t]he witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

Of course, the proffering party bears the burden of “presenting evidence of reliability in order to meet the standar ds of [OCGA § 24-7-702 (b)] ” gu£ importantly, the determination of whether a witness is “qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.”

At trial, RM Kids proffered a commercial real estate appraiser, Jeffrey Miller—who has performed thousands of commercial real estate appraisals and has testified as an expert on numerous occasions—to testify as to the diminution of the subject property’s value caused by the environmental stigma associated with the petroleum leak and groundwater contamination. Relying on his inspection of the subject property, experience in the field of appraising property slated for residential development, knowledge of the relevant real estate market, and a modest survey of market participants, Miller opined that potential buyers of homes in a dense residential subdivision— such as the one BBC planned to develop on the subject property— would be “scared off” by the environmental stigma. Miller further opined that the subject property could be developed for large-acreage estate parcels because potential buyers would be less likely to view the environmental issues as a deterrent. Miller did note, however, that developing the property in such a manner would result in a significantly diminished value.

In its pretrial motion and on appeal, Old Republic argues that Miller’s expert testimony should have been excluded because it was not based on any reliable data or recognized methodology But we do not agree that the trial court abused its discretion in admitting Miller’s testimony. It is well established that in determining the admissibility of expert testimony, the trial court “acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” And generally,

[reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training.

Suffice it to say, there are many different kinds of experts and many different kinds of expertise, and, as a result, the test of reliability is “a flexible one, the specific factors neither necessarily nor exclusively applying to all experts in every case.” Indeed, it is the possession of “special knowledge derived either from experience, study, or both in a field of expertise that makes one an expert.”

In this matter, as previously noted, Miller had extensive experience as a commercial real estate appraiser and had inspected the subject property and relied upon both, as well as his knowledge of the market, in opining that the environmental stigma implied by Exhibit C diminished the value of the property by making it less viable for development as a high-density residential subdivision. And while Old Republic claims that Miller’s methodology in support of this opinion could not be tested, “the relevant reliability concerns may focus upon personal knowledge or experience.” Thus, so long as an expert witness is “properly qualified in the field in which he offers testimony, and the facts relied upon are within the bounds of the evidence, whether there is sufficient knowledge upon which to base an opinion goes to the weight and credibility of the testimony, not its admissibility.” Furthermore, it is worth noting that

Dauber?s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. In some cases (even cases involving non-scientific expert testimony), the factors may be pertinent, while in other cases the relevant reliability concerns may focus upon personal knowledge or experience. Whether Dauber?s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.

Given these particular circumstances, we simply cannot conclude that the trial court abused its discretion in finding Miller’s testimony admissible.

5. Finally, Old Republic contends that the trial court erred in denying its motion for directed verdict to preclude any consideration of diminution of value to the Wages Tract in light of the fact that it was purchased separately from the Black Hawk Ranch property, for which the title-insurance policy actually issued. Again, we disagree.

It is axiomatic that on appeal from the denial of a motion for a directed verdict or a motion for j.n.o.v., we construe the evidence “in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” And because jurors are the sole and exclusive judges of the weight and credit given to the evidence, we must “construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.” Nevertheless, we review questions of law de novo. With these guiding principles in mind, we will now consider this claim of error.

At trial, RM Kids presented evidence that BBC intended to develop the Black Hawk Ranch and Wages properties as a single high-density residential subdivision and, consequently, both properties were pledged as security for the $11,400,000 development loan. RM Kids presented additional evidence indicating that the City of Dacula approved development of the combined 151 acres as a single subdivision. Furthermore, RM Kids presented evidence that in connection with the $11,400,000 development loan, which as previously noted was used to pay off the separate acquisition loans for both of those parcels of property, Old Republic issued one lender’s title-insurance policy covering the combined 151 acres. In addition, RM Kids’s expert testified that the value of the entire development, including the Wages Tract, was diminished by the restrictions and encumbrances outlined in Exhibit C. And while Old Republic presented evidence disputing the claim that the Wages Tract suffered any damage related to the alleged title defects, there was, nevertheless, some evidence to support the jury’s verdict in this regard. Accordingly, the trial court did not err in denying Old Republic’s motion for directed verdict as to this issue.

Case No. A16A0258

6. In its cross-appeal, RM Kids first contends that the trial court erred in granting Old Republic’s motion for summary judgment as to RM Kids’s allegation of bad faith refusal to pay under OCGA § 33-4-6. We disagree.

It is well established that summary judgment is proper only when “no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Thus, when ruling upon a motion for summary judgment, the opposing party “must be given the benefit of all reasonable doubt, and the evidence and all inferences and conclusions therefrom must be construed most favorably toward the party opposing the motion.” Accordingly, when we review the grant or denial of summary judgment, we “conduct a de novo review of the law and evidence.”

OCGA § 33-4-6 (a), in relevant part, provides:

In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 50 percent of the liability of the insurer for the loss or $5,000.00, whichever is greater, and all reasonable attorney’s fees for the prosecution of the action against the insurer. . . .

Importantly, because OCGA § 33-4-6 (a) provides for a penalty, “it must be strictly construed.” Generally, the question of good or bad faith is for the jury, but “when there is no evidence of unfounded reason for the nonpayment, or if the issue of liability is close, the court should disallow imposition of bad faith penalties.”

As noted in OCGA § 33-4-6 (a), in order to prevail on a claim for an insurer’s bad faith, the insured must prove: “(1) that the claim is covered under the policy, (2) that a demand for payment was made against the insurer within 60 days prior to filing suit, and (3) that the insurer’s failure to pay was motivated by bad faith.” Bad-faith penalties are not authorized, however, when “the insurance company has any reasonable ground to contest the claim and [when] there is a disputed question of fact.” Moreover, the mere fact of nonpayment is “not evidence of bad faith, nor is any burden thereby cast on the insurer to prove good faith.” Rather, bad faith is shown by “evidence that under the terms of the policy upon which the demand is made and under the facts surrounding the response to that demand, the insurer had no ‘good cause’ for resisting and delaying payment.”

Here, genuine issues of material fact exist as to whether Peachtree Bank was aware of Exhibit C prior to closing and, thus, whether RM Kids’s claim was excluded under the insurance policy as an “assumed” title defect. Additionally, Old Republic contends that RM Kids’s claim was excluded because it suffered “no loss or damage.” Furthermore, as discussed at length in Division 1, supra, Old Republic contends that even if RM Kids has a valid title defect claim, a bona fide dispute exists as to whether the date of any loss, for the purpose of measuring damages, was the date that Peachtree Bank closed on the subject loan rather than the date RM Kids foreclosed on the subject property And indeed, as we held in Division 1, supra, Old Republic’s contention in this regard was perfectly reasonable. In fact, it proved to be correct. Given these particular circumstances, Old Republic had a reasonable basis to refuse RM Kids’s demand. And as a result, the trial court did not err in granting Old Republic’s motion for summary judgment on this issue.

7. RM Kids further contends that the trial court erred in granting Old Republic’s motion for directed verdict as to RM Kids’s claim for prejudgment interest under OCGA § 7-4-15, arguing that whether or not damages were liquidated was an issue for the jury. Again, we disagree.

OCGA § 7-4-15 provi des, in relevant part: “All liqui dated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they shall bear interest from the time of the demand.” Under this Code section, “prejudgment interest—which flows automatically from a liquidated demand—is to be awarded upon a judgment for a liquidated amount.” But importantly, a demand is liquidated when “the sum owed is fixed and certain, meaning there is no bona fide controversy over the amount.”

Here, even after the trial court’s erroneous ruling establishing the closing on the loan as the date that Peachtree Bank—and RM Kids’s as the bank’s successor-in-interest—suffered a loss under the title insurance policy, the parties vigorously disputed at trial the amount of damages, if any, that RM Kids sustained due to the title defect. Indeed, the primary focus of the trial, because of its implications as to both liability and damages, was the dispute as to whether and to what extent the alleged title defects, indicated by Exhibit C, diminished the subject property’s market value. And both this Court and the Supreme Court of Georgia have taken the position that “when on entering upon trial the insurer disputes the amount of loss claimed by the insured, interest on the amount recovered begins only after entry of judgment.” Accordingly, the trial court did not err in granting Old Republic’s motion for directed verdict as to RM Kids’s claim for prejudgment interest.

Decided June 29, 2016

Smith, Gambrell & Russell, Edward D. Burch, Jr., Edward H. Wasmuth, Jr., John R. Autry; Hey man & Sizemore, William B. Brown, for appellant.

In summary, and for the foregoing reasons, in Case No. A16A0257, we conclude that the date for the purpose of measuring any loss by RM Kids was the date it foreclosed on the subject property, and we reverse the trial court’s ruling that the date of the loss was the date that Peachtree Bank closed on the subject loan. And because that erroneous ruling entirely governed the manner in which the case was tried, we must remand the case for retrial. Based on our ruling, Old Republic’s contention that RM Kids lacked standing is moot, and we need not address its contention that the evidence was insufficient to support the jury’s verdict that the “environmental stigma” constituted a title defect covered by the insurance policy. However, we affirm the trial court’s admission of RM Kids’s expert’s testimony and its denial of Old Republic’s motion for directed verdict regarding consideration of any diminution of value to the Wages Tract. Additionally, in Case No. A16A0258, we affirm the trial court’s grant of summary judgment in favor of Old Republic as to RM Kids’s bad-faith claim and its grant of a directed verdict in favor of Old Republic as to RM Kids’s prejudgment interest claim.

Judgment affirmed in part and reversed in part, and case remanded in Case No. A16A0257. Judgment affirmed in Case No. A16A0258.

Phipps, P. J., and Peterson, J., concur.

Schiff Hardin, LLP, Leah Ward Sears, John C. Amabile, Nicholas F. McDaniel; Knight Johnson, LLC, Bryan M. Knight, Sherri G. Buda, for appellee.

Gilroy Bailey Trumble, LLC, MonicaK Gilroy, Tania T. Trumble, amici curiae.

        See Horton v. Hendrix, 291 Ga. App. 416, 416 (662 SE2d 227) (2008).

        Roberson v. Leone, 315 Ga. App. 459, 462 (726 SE2d 565) (2012) (punctuation omitted); accord Turner v. Gateway Ins. Co., 290 Ga. App. 737, 739 (660 SE2d 484) (2008).

        Roberson, 315 Ga. App. at 462 (punctuation omitted); accord Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 500 (2) (707 SE2d 885) (2011).

        Roberson, 315 Ga. App. at 462 (punctuation omitted); accord Litton, 308 Ga. App. at 500 (2).

        Roberson, 315 Ga. App. at 462 (punctuation omitted); accord Clayton v. S. Gen. Ins. Co., 306 Ga. App. 394, 396 (702 SE2d 446) (2010).

       Couch on Insurance, § 185:87 (3d ed. 2012).

        First Am. Bank v. First Am. Transp. Title Ins. Co., 759 F3d 427, 432 (III) (5th Cir. 2014); see also Falmouth Nat. Bank v. Ticor Title Ins. Co., 920 F2d 1058, 1063 (II) (1st Cir. 1990) (holding that “a mortgagee-insured’s loss cannot be determined unless the note is not repaid and the security for the mortgage proves inadequate”); Associated Bank, N.A. v. Stewart Title Guar. Co., 881 FSupp.2d 1058, 1066 (III) (C) (D. Minn. 2012) (holding that an insured mortgagee’s loss under a title insurance policy “cannot be measured until the note has not been repaid and the security for the mortgage is shown to be inadequate”); Marble Bank v. Commonwealth Land Title Ins. Co., 914 FSupp. 1252, 1254 (E.D. N.C. 1996) (finding that “[s]ince a lender suffers loss only if the note is not repaid, the discovery of an insured-against lien does not trigger recognition of that loss,” rather “[o]nly the completion of foreclosure signifies that a lender will not collect on its note”); Karl v. Commonwealth Land Title Ins. Co., 20 CalApp4th 972, 983-84 (IV) (Cal. App. 1993) (holding that ‘the earliest a loss can be claimed on a lender’s [title insurance] policy is at the time of completion of foreclosure”); Blackhawk Prod. Credit Assoc. v. Chicago Title Ins. Co., 423 NW2d 521, 525 (Wis. 1988) (holding that “[a] mortgagee’s loss cannot be measured unless the underlying debt is not repaid and the security for the mortgage proves inadequate”); Green v. Evesham Corp., 430 A2d 944, 946 (N.J. App. 1981) (same); Joyce D. Palomar, 1 Title Ins. Law § 10:16 (2013-14 ed.); Christopher B. Frantze, Equity Income Partners LP v. Chicago Title Insurance Co. and Recovery Under a Lender’s Title Insurance Policy in a Falling Real Estate Market, 48 Real Prop. Tr. & Est. L.J. 391, 396 (2013).

        First Am. Bank, 759 F3d at 432 (III); see also Marble Bank, 914 FSupp. at 1254 (“In the court’s view, plaintiff did not suffer a loss until it foreclosed on the project. Since a lender suffers loss only if the note is not repaid, the discovery of an insured-against lien does not trigger recognition of that loss. Only the completion of foreclosure signifies that a lender will not collect on its note.” (citation omitted)).

        Doss & Assoc. v. First Am. Title Ins. Co., Inc., 325 Ga. App. 448, 463 (4) n.15 (754 SE2d 85) (2013).

        First Am. Bank, 759 F3d at 433 (III) (punctuation omitted); see also Gibraltar Sav. v. Commonwealth Land Title Ins. Co., 905 F2d 1203, 1205 (8th Cir. 1990); Diversified Mortg. Inv. v. U. S. Life Title Ins. Co. of N.Y., 544 F2d 571, 574 n.2 (2d Cir. 1976).

        First Am. Bank, 759 F3d at 433 (III) (punctuation omitted); see also Blackhawk Prod. Credit, 423 NW2d at 525.

       164 Ga. App. 443 (296 SE2d 760) (1982).

        See id, at 443-44 (noting that owner insisted on a title-insurance policy and sued for breach of same).

        Blackhawk Prod. Credit, 423 NW2d at 525 (punctuation omitted).

         Id. (emphasis added).

        See OCGA § 44-14-60.

        Nw. Carpets, Inc. v. First Nat. Bank of Chatsworth, 280 Ga. 535, 537 (1) (630 SE2d 407) (2006) (punctuation omitted); accord Trail v. Saunders, 296 Ga. App. 594, 595 (675 SE2d 514) (2009).

        See Chicago Title Ins. Co. v. Investguard, Ltd,, 215 Ga. App. 121, 122-23 (1) (449 SE2d 681) (1994) (holding that for purposes of title-insurance policy, difference exists between economic lack of marketability, which relates to physical conditions affecting use of property, and title marketability, which relates to defects affecting legally recognized rights and incidents of ownership).

        See Aldworth Co., Inc. v. England, 281 Ga. 197, 198 (2) (637 SE2d 198) (2006) (noting that under OCGA § 9-11-50, a party is barred from contending on appeal that it was entitled to a directed verdict based on the sufficiency of the evidence to support a claim if the party failed to move for a directed verdict as to that claim at trial).

        Id. at 199 (2).

       Old Republic filed its motion to exclude RM Kids’s expert’s testimony in July 2013; thus Georgia’s new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101. Regardless, because OCGA § 24-7-702 is “substantively identical” to “its predecessor statute, former OCGA § 24-9-67.1, cases decided under the former statute offer useful guidance when analyzing the current version of the statute.” Dempsey v. Gwinnett Hosp. Sys., 330 Ga. App. 469, 471 (1) (a) n.3 (765 SE2d 525) (2014) (punctuation omitted).

        HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 646 (2) (697 SE2d 770) (2010) (punctuation omitted).

        Id. at 642 (1) (punctuation omitted); accord Moore v. Cottrell, Inc., 334 Ga. App. 791, 793 (1) (780 SE2d 442) (2015); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U. S. 137, 152 (II) (119 SCt 1167, 143 LE2d 238) (1999).

        HNTB Ga., Inc., 287 Ga. at 642 (1) (punctuation omitted); accord Moore, 334 Ga. App. at 793 (1). See generally Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579, 597 (IV) (113 SCt 2786, 125 LE2d 469) (1993) (holding that the trial judge is assigned the task of “ensuring that an expert’s testimony both rests on reliable foundation and is relevant to the task at hand”).

         HNTB Ga., Inc., 287 Ga. at 642 (1) (punctuation omitted); accord Moore, 334 Ga. App. at 793 (1).

        HNTB Ga., Inc., 287 Ga. at 643 (1) (punctuation omitted); accord Toler v. Ga. Dep’t of Transp., 328 Ga. App. 144, 152 (4) (761 SE2d 550) (2014).

        Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 306 (1) (653 SE2d 59) (2007) (punctuation omitted).

        Id. at 307 (punctuation omitted).

        Id. (punctuation omitted).

        Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 278 (4) (b) (740 SE2d 672) (2013) (punctuation omitted).

        See Brady, 287 Ga. App. at 306-07 (1) (holding that trial court did not abuse its discretion in admitting expert’s opinion, which was based primarily on his own experience in the field).

        Atlanta Emergency Serv., LLC v. Clark, 328 Ga. App. 9, 11 (1) (761 SE2d 437) (2014) (punctuation omitted).

        Id. (punctuation omitted).

        See id.

         See id. at 11-12 (1) (holding that some evidence was presented to support the jury’s verdict that defendant breached contract, and, therefore, trial court did not err in denying defendant’s motion for directed verdict or j.n.o.v.); Certain Underwriters at Lloyd’s of London v. Rucker Constr., Inc., 285 Ga. App. 844, 848-50 (2) (648 SE2d 170) (2007) (same). Cf. Hutsell, 164 Ga. App. at 446 (1) (holding that whether title policy covered damages of diminished value caused by survey defect was jury issue, and, thus, trial court did not err in denying insurer’s motion for directed verdict).

        Hall v. Prosero, Inc., 333 Ga. App. 454, 454 (774 SE2d 216) (2015) (punctuation omitted).

        Id. at 454-55 (punctuation omitted).

        Id. at 455.

        Doss & Assoc., 325 Ga. App. at 461 (4).

        Int’l Indem. Co. v. Collins, 258 Ga. 236, 238 (2) (367 SE2d 786) (1988).

        Lawyers Title Ins. Corp. v. Griffin, 302 Ga. App. 726, 730 (2) (b) (691 SE2d 633) (2010) (punctuation omitted).

        Id. at 731 (2) (b) (punctuation omitted).

        Fla. Int’l Indem. Co. v. Osgood, 233 Ga. App. 111, 115 (3) (503 SE2d 371) (1998) (punctuation omitted).

        Griffin, 302 Ga. App. at 731 (2) (b) (punctuation omitted).

        See Roland v. Ga. Farm Bureau Mut. Ins. Co., 265 Ga. 776, 778 (2) (462 SE2d 623) (1995) (affirming trial court’s directed verdict in favor of insured on coverage claim but, nonetheless, also affirming court’s directed verdict in favor of insurer on insured’s bad-faith claim in light of the fact that insured’s coverage, despite ultimately succeeding, was based on a doubtful question of law); Griffin, 302 Ga. App. at 731 (2) (b) (holdingthat because insurer’s nonpayment was based on contention that insured did not have a covered loss under the policy because the value of the property was the same regardless of whether it was serviced by an easement, nonpayment was reasonable and not subject to a bad-faith claim); Assurance Co. of Am. v. BBB Serv. Co., Inc., 259 Ga. App. 54, 58 (2) (576 SE2d 38) (2002) (holding that trial court did not err in granting summary judgment in favor of insurer on bad-faith claim because reasonable dispute existed as to whether policy covered insured’s claim).

        Estate of Callaway v. Garner, 297 Ga. 52, 54 (2) (772 SE2d 668) (2015) (punctuation omitted).

        Id. (punctuation omitted); accord Those Certain Underwriters at Lloyds, London v. DTI Logistics, Inc., 300 Ga. App. 715, 722 (4) (686 SE2d 333) (2009); Int’l Indem. Co. v. Terrell, 178 Ga. App. 570, 570 (2) (344 SE2d 239) (1986).

        Pacific Ins. Co. of N.Y. v. R.L. Kimsey Cotton Co., 114 Ga. App. 411, 416-17 (4) (151 SE2d 541) (1966) (emphasis added); see Braner v. S. Trust Ins. Co., 255 Ga. 117, 119 (1) (335 SE2d 547) (1985) (holding that in a suit on a property damage insurance policy in which liability is not disputed but in which the amount of damage is disputed, the amount is unliquidated); Firemen’s Ins. Co. v. Oliver, 182 Ga. 212, 213 (184 SE 858) (1936) (holding that in a dispute between insurer and insured, in which the insurer admitted liability but disputed the amount of damages, “[i]t was only after entry of a judgment upon that verdict that the claim became liquidated”). Cf. DTI Logistics, Inc., 300 Ga. App. at 722-23 (4) (holding that insured’s demand to insurer was liquidated when insurer did not point to any evidence at trial in support of its contention that damages were disputed).


author: McMlLLIAN, Judge.

text:
    A16A0424.
    IN THE INTEREST OF L. J., a child.
    (788 SE2d 531)
   McMlLLIAN, Judge.

The juvenile court of Monroe County adjudicated L. J. delinquent for acts which, if committed by an adult, would have constituted criminal trespass and aggravated assault. L. J. appeals following the denial of his motion for new trial, as twice amended, arguing in his sole enumeration of error that the evidence was insufficient to support the adjudication of delinquency. As more fully set forth below, we now affirm in part and reverse in part.

On appeal of an adjudication of delinquency, the appellate court determines whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the acts charged beyond a reasonable doubt. In the Interest of B. B., 298 Ga. App. 432, 433 (680 SE2d 497) (2009); In the Interest of R. J. S., 277 Ga. App. 74, 74 (625 SE2d 485) (2005); see also Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that on April 21, 2015, the victim, who is L. J.’s father, drove to the home where L. J. lived with his mother to retrieve guns that were registered to the victim but had been given to L. J. The victim stated that he came to retrieve the guns “because of attitudes” he had noticed in his son. Upon arriving at the house, the victim picked up two guns from inside the house and walked to the door. L. J. placed himself between the victim and the door, telling the victim that he was not going to take the guns. L. J. finally moved, and the victim placed the guns in the back of his truck.

The victim went back in to get a bow, which was in a case, and walked back out with the bow case and set it outside at the door. The victim walked back in to get something else out of the house, and when he did, L. J. took the bow out of the case. The victim told L. J. not to “nock” an arrow, but L. J. ignored the victim and did so anyway. The victim said at that point he “didn’t really know where this was going to go from there” so he went to his truck and opened the driver’s side door to stand behind it. The victim explained that he stood behind the vehicle door because he perceived L. J.’s actions in aiming the arrow in his general direction as a threat, even though L. J. never aimed the arrow directly at the victim.

After he nocked the arrow, L. J. moved around the passenger side of the truck and oriented the arrow toward the rear passenger-side tire, telling the victim that he was not going to leave with his guns. The victim got into the driver’s side of the truck and started to drive away, but L. J. shot an arrow into the rear passenger tire after the truck had only moved, at most, “a couple of inches.” The victim stopped the truck and got out, and L. J. turned and ran away from him. The victim gave chase and was able to catch L. J. and take the bow away from him. The victim walked back to the truck with L. J. following and talking angrily behind him, and on the way back the victim broke or bent the bow on a tree so it could no longer be used as a weapon. L. J. continued to be argumentative and hostile so the victim told him he was going to call the police. L. J. ran off toward the woods, shouting “if you call the cops . . . I’ll kill you and I’ll kill them too.” The victim called the police and, with the assistance of L. J.’s mother, L. J. was subsequently apprehended during a traffic stop.

The juvenile court adjudicated L. J. delinquent for aggravated assault based on the act of shooting the arrow at the tire, criminal trespass based on the act of shooting and damaging the tire, and aggravated assault based on the act of “nocking” the arrow back in the bow and pointing it in the general direction of the victim so that the victim had to take refuge behind the door of his truck. On appeal, L. J. contends that the evidence was insufficient to support the adjudications of delinquency for aggravated assault because the State failed to prove that the victim was in reasonable apprehension of receiving a violent injury and because the evidence showed that he did not shoot at the tire with the intent to injure the victim. We consider these contentions in turn.

1. L. J. argues that the evidence was insufficient to show that the victim was in reasonable apprehension of receiving a violent injury when he “nocked” the arrow in the bow so as to authorize his adjudication for delinquency for aggravated assault based on the acts alleged in petition 2015JR54. In support of this contention, L. J. points to the victim’s failure to state he was in reasonable apprehension of receiving an injury from L. J., the victim’s testimony that he called police just to prove a point to L. J., and his testimony that he did not think L. J. would shoot at him with the bow and arrow. But contrary to L. J.’s assertion, the victim need not say he was afraid, nor in fact be afraid, in order to experience a reasonable apprehension of receiving a violent injury Howard v. State, 288 Ga. 741, 742-43 (1) (707 SE2d 80) (2011) (reasonable apprehension when victim was sitting on the ground, could have been shot, and would have been shot if he had stood up, even though he testified he was not afraid). The victim demonstrated he had a reasonable apprehension of an immediate injury when he moved behind the door of his truck after L. J. placed an arrow on the bow string although he told him not to do so. Furthermore, the victim testified that he perceived a threat when L. J. removed the bow from the case and pointed the arrow in his general direction, and that he assumed there was a possibility that L. J. might shoot the arrow in his direction. Based on this evidence, a rational trier of fact could have made an adjudication of delinquency on the charge of aggravated assault by taking the bow and arrow and nocking the arrow. Id. at 742 (1) (“Proof that the victim has been placed in apprehension of immediately receiving a violent injury . . . may be inferred from the conduct of the victim such as when he retreats to secure his safety”) (citations and punctuation omitted); see Watson v. State, 301 Ga. App. 824, 826 (689 SE2d 104) (2009) (victim “raising her hand protectively” showed reasonable apprehension of violent injury).

2. L. J. also argues that the evidence was insufficient to show that he intended to injure the victim by shooting an arrow at the victim’s truck while he sat inside or that the victim was in reasonable apprehension of receiving a violent injury, as alleged in petition 2015JR50.

To prove an assault under OCGA § 16-5-20 (a) (1), the State must show that the defendant acted with specific intent to violently injure the victim. Guyse v. State, 286 Ga. 574, 577 (2) (690 SE2d 406) (2010) (noting that this method of assault is “a specific intent crime requiring proof that the defendant intended to violently injure someone”); Dunagan v. State, 269 Ga. 590, 592 (2) (a) (502 SE2d 726) (1998) (aggravated assault under OCGA § 16-5-20 (a) (1) proscribes conduct which is the result of the actor’s criminal intent); Montford v. State, 254 Ga. App. 524, 526 (1) (564 SE2d 216) (2002) (“the attempted or completed injury to the victim must be the intended consequence of the defendant’s act”); see Klicka v. State, 315 Ga. App. 635, 637 (1) (b) (727 SE2d 248) (2012) (same).

L. J. asserts that the evidence in this case shows only that he intended to shoot at the tire of the victim’s truck and therefore the evidence was not sufficient to show an intent to inflict a violent injury to the victim. We agree that the evidence was insufficient under the facts of this case. The evidence showed that L. J. shot the arrow at the passenger-side rear tire of the vehicle, away from the driver’s side where the victim was located. Moreover, the victim testified that, at most, the vehicle had only moved about two inches when L. J. shot the tire, and thus there is no evidence that L. J. intended to injure the victim by causing a vehicular accident by shooting the tire of a moving vehicle. Thus, the evidence, even construed to support the adjudication of delinquency, shows only that L. J. intended to stop his father from leaving with his weapons by shooting his tire and disabling his vehicle, not that he intended to commit a violent injury to the victim.

Further, the evidence was also insufficient to show that the victim was in reasonable apprehension of receiving a violent injury when L. J. shot the arrow at the tire of the truck so as to warrant his adjudication for delinquency based on OCGA § 16-5-20 (a) (2). As stated above, L. J. shot the tire on the rear-passenger side, on the opposite side from where the victim was sitting inside the truck. Moreover, the victim testified that he no longer perceived a threat from L. J. shooting him with the bow and arrow after L. J. moved to the passenger side of the truck and was no longer pointing the bow in his general direction. Accordingly, the adjudication of delinquency for aggravated assault based on acts alleged in petition in 2015JR50 must be reversed.

Decided June 29, 2016.

Clare Nolan, for appellant.

Richard G. Milam, District Attorney, Anita R. Howard, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Miller, P. J., and McFadden, J., concur.

       L. J. was designated a felon and committed to the Department of Juvenile Justice for 36 months, to serve 18 months in restrictive custody.

       The victim explained that to “nock” an arrow means to place an arrow on the bow string.

       L. J. does not make any specific argument concerning his adjudication for criminal trespass, and thus his adjudication of delinquency for that offense is affirmed.

       Pursuant to OCGA § 16-5-21 (b), aggravated assault is shown by proof of certain aggravating circumstances and an assault. Simple assault is shown by either proof that the defendant attempted to injure someone, OCGA § 16-5-20 (a) (1), or that the victim was in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2).

       Unlike an assault under OCGA § 16-5-20 (a) (1), our appellate courts have previously held that assault under OCGA § 16-5-20 (a) (2) is a general intent crime. E.g., Guyse, 286 Ga. at 577 (2) (OCGA § 16-5-20 (a) (2) “is a general intent crime, meaning the State need only prove that the defendant intended to do the act that placed another in reasonable apprehension of immediate violent injury[.]”); Patterson v. State, 332 Ga. App. 221, 224-25 (2) (770 SE2d 62) (2015). However, our Supreme Court has granted a writ of certiorari in Patterson to consider whether this Court erred “when it concluded that simple assault under OCGA § 16-5-20 (a) (2) requires no specific intent to cause injury or apprehension of injury.” Patterson v. State, Case No. S15G1303, 2015 Ga. LEXIS 825 (November 2, 2015).

       Because we reverse based on insufficient evidence, it is unnecessary for us to consider whether the aggravated assault offenses, which appear to us to be based on the continuous act of placing an arrow on a bow string and shooting, merged. See Regent v. State, 299 Ga. 172 (787 SE2d 217) (2016).