text:
    A14A0967.
    SMITH v. RODILLO.
    (765 SE2d 432)
   Ray, Judge.

Glenn Smith sued Eugene S. Rodillo, M.D., a urologist, claiming that Rodillo was professionally negligent in failing to examine Smith after he presented at Elbert Memorial Hospital with symptoms which warranted examination by a urologist, and that he suffered damages as a result. Before trial, the trial court granted Rodillo’s motion to exclude certain testimony by Smith’s urology expert regarding the causation and permanence of Smith’s alleged erectile dysfunction. The trial court then bifurcated the proceedings into an initial trial on the issue of whether a physician-patient relationship existed between Smith and Rodillo, to be followed by a trial on the issue of damages. At the close of Smith’s case, Rodillo moved for a directed verdict on the issue of the physician-patient relationship. The trial court granted the motion and then entered judgment for Rodillo.

On appeal, Smith contends that because there was some evidence supporting the existence of a physician-patient relationship between Smith and Rodillo, the trial court erred in directing a verdict in Rodillo’s favor. Smith also claims that the trial court erred in excluding portions of his expert’s testimony. For the reasons that follow, we conclude that the trial court erred in directing a verdict for Rodillo, and that the trial court’s order excluding portions of Smith’s expert’s testimony must be vacated and the case remanded with direction. Accordingly, we reverse in part and vacate in part.

1. Smith claims that the trial court erred in granting Rodillo’s motion for directed verdict because there was some evidence of a physician-patient relationship between Rodillo and Smith. We agree.

A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the nonmovant, demands a particular verdict. OCGA § 9-11-50 (a). But where any evidence or some evidence exists to support a jury issue on the nonmovant’s claims, a directed verdict is improper. This Court conducts a de novo review on appeal from the grant of a directed verdict, and we will uphold a directed verdict only if all of the evidence demands it.

(Citations and punctuation omitted.) Sun Nurseries v. Lake Erma, LLC, 316 Ga. App. 832, 835 (730 SE2d 556) (2012).

The evidence adduced at trial shows that on January 10, 2006, Smith came to the Elbert Memorial Hospital (the “Hospital”) emergency room complaining of swelling to his penis and scrotum, difficulty urinating, and chest congestion. ER physician James Barton, M.D., attempted without success to insert a catheter so as to drain Smith’s bladder. Barton contacted urologist Rodillo, described Smith’s condition, including that Smith had difficulty voiding and was experiencing a fever and chills, and asked if Rodillo would be available to help with the insertion of the catheter. Rodillo recommended that Barton use a Coude catheter, but that if Barton was unable to “get that [in],” he would be available. Rodillo also suggested that Barton order a PSA test. Barton was able to successfully insert the Coude catheter shortly thereafter.

Later that evening, Barton called Smith’s family practice physician, Steven Durocher, M.D., and advised Durocher that, in light of Smith’s condition, Smith should be admitted to the hospital. Durocher then authorized Smith’s admission over the phone. Durocher went to the Hospital the next morning for rounds, and he examined Smith at that time. After concluding that Smith needed to be evaluated by a urologist, Durocher called Rodillo on either January 11 or January 12,2006. After Durocher presented Rodillo with his findings concerning Smith’s physical exam, vital signs, and lab work, Rodillo advised Durocher to order a 24-hour creatinine clearance, renal CT, and nuclear renal flow scan, and Durocher ordered the tests. Durocher testified that he expected Rodillo to come in to examine the patient, and no one informed him that Rodillo was going to be out of the country.

Smith was subsequently diagnosed with Fournier’s gangrene, a rapidly developing, tissue-killing disease, and he was treated with, among other things, two debridements to cut away dead tissue, as well as skin grafts to cover the areas where the skin had been destroyed. The Fournier’s gangrene diagnosis was made on January 15, 2006, and Dr. Arnold Melman, a urologist who the parties agreed was an expert in the field of urology, opined that if Smith had been seen by a urologist the diagnosis could have been made on January 10, 2006, when Smith came in to the emergency room, or at the latest the next day, and, if so, Smith would probably not have needed the extensive surgery he was later required to undergo. Melman opined that the information provided to Rodillo by Barton, particularly that Smith was also experiencing a fever, constituted a “red flag,” which should have prompted Rodillo to come to the Hospital and see Smith.

Rodillo testified that when he spoke with Barton on January 10, 2006, he was scheduled to fly to the Philippines the next day to visit his sick brother. Rodillo was normally on call “24-7” for urological services. According to Rodillo, on the day he spoke with Barton, “all the way through several weeks, the Athens Urology Group is covering for all my urology cases.” Rodillo testified that he had also contacted the Hospital and informed the secretary of administration that he would be out of town, and he understood that the Hospital would create a memorandum to that effect and distribute it to the departments of the Hospital and to the physicians practicing in the county. Rodillo could not confirm, however, that such a memorandum was actually distributed by the Hospital.

Although Rodillo had arranged for Athens Urology to take care of any urological problems regarding his patients, Rodillo saw the emergency call from the Hospital and, he explained, “since I’m still in town ... I answered it to help ... in case they cannot get hold immediately of . . . Athens Urology.” According to Rodillo, Barton asked for advice in inserting the catheter, and he told Barton to use Xylocaine jelly and a Coude catheter. Rodillo acknowledged that he may not have told Barton that he was going out of town. Rodillo did not recall having any conversations with Durocher.

Rodillo further testified that he had never seen Smith and that Smith was not his patient. Rodillo acknowledged, however, that he “had something to do with [Smith’s] treatment,” that he “had something to do with [Smith’s] diagnosis,” and that his “ordering those tests or suggesting that those tests be ordered had an impact on Mr. Smith’s care.”

It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of a physician-patient relationship. In such cases, called classic medical malpractice actions, doctor-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. The relationship is considered consensual where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient.

(Citation and punctuation omitted.) Crisp Regional Hosp. v. Oliver, 275 Ga. App. 578, 584 (5) (621 SE2d 554) (2005). See, e.g., Ussery v. Children’s Healthcare of Atlanta, 289 Ga. App. 255, 271 (6) (656 SE2d 882) (2008) (“Georgia law is clear that physician-patient privity is an absolute requirement for the maintenance of a professional malpractice action”) (citation, punctuation and footnote omitted). Aphysicianpatient relationship may be implied, Rindsberg v. Neacsu, 317 Ga. App. 269, 273 (730 SE2d 525) (2012), and it can also be established by circumstantial evidence. See Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 524 (3) (434 SE2d 63) (1993).

In this case, Smith, having presented himself “to the emergency-room may generally be assumed to have consented to treatment by any physician associated with the hospital who offers such treatment.” Anderson v. Houser, 240 Ga. App. 613, 619 (1) (523 SE2d 342) (1999). Accordingly, the key issue “in determining the existence of a doctor-patient relationship is whether the physician has knowingly accepted such individual as his patient.” Id. In this respect,

[mjerely listening to another physician’s description of a patient’s problem and offering a professional opinion regarding the proper course of treatment is not enough. Under those circumstances, a doctor is not agreeing to enter into a contract with the patient. Instead, [he] is simply offering informal assistance to a colleague. At the other end of the spectrum, a doctor who is on call and who, on the phone or in person, receives a description of a patient’s condition and then essentially directs the course of that patient’s treatment, has consented to a physician-patient relationship. The difficulty arises in determining where, between these two extremes, a physician-patient relationship (and thus a duty) arises.

(Punctuation omitted.) Id. at 618 (1). A doctor does not have to physically examine a patient in order for the doctor-patient relationship to arise. See Rindsberg, supra at 273 (where defendant was the on-call doctor for her practice who was responsible for treating the patient in the absence of the attending physician, and had called to check on the patient, but failed to take any action in response to receiving new information that the attending doctor would have wanted to know for purposes of treating the patient, an issue of fact remained as to the existence of an implied physician-patient relationship); Crisp Regional Hosp., supra at 585-586 (5) (finding that where the doctor reviewed the patient’s chart, agreed that an MRI was necessary, and ordered the test as an authorized panel physician, the facts were sufficient to support a reasonable inference that, although the doctor had not physically seen or examined patient, the doctor had knowingly accepted him as his patient). Rather, a physician may impliedly consent to a physician-patient relationship “where a physician has done something, such as participate in the patient’s diagnosis and treatment, that supports the implication that [he] consented to a physician-patient relationship.” (Citation and punctuation omitted.) Rindsberg, supra at 273.

Rodillo contends there is an absence of evidence that he consented to be Smith’s doctor because he did not play a major role in Smith’s treatment, did not enter orders on Smith’s chart, and did not see or promise to see Smith, but only offered advice to other physicians. Rodillo also maintains that he was not on call when he spoke with Barton and Durocher, and that although Barton and Durocher were unaware of his travel plans, no one could refute his testimony that he properly notified the Hospital that he would be out of town. We find, however, that a trier of fact could conclude that Rodillo’s involvement with Smith went beyond offering advice to other physicians, but that he also participated in Smith’s diagnosis and treatment.

The evidence showed that Rodillo was the only urologist offering services at the Hospital and that he “get[s] all the urology patients” who elect to stay in the Hospital. Thus, it would have been entirely consistent with Rodillo’s medical practice for him to have acted as Smith’s urologist given that Smith was a patient at the Hospital and required the assistance of a urologist. Although Rodillo disputes whether he was “on call” when he spoke with Barton, he acknowledged that on January 10, 2006, he was “still in town” and “still the urologist in Elberton.” Rodillo further testified that when he saw the emergency call from the Hospital that he answered it, consistent with, a jury might conclude, Rodillo’s practice of providing urological services to patients at the Hospital. Although Rodillo knew he was going out of town shortly after he spoke with Barton, he had also arranged for another practice to cover his patients. Thus, Rodillo’s travel plans would have not necessarily precluded him from acting as Smith’s urologist before he left town.

Notwithstanding that Rodillo answered the emergency call from the Hospital, Rodillo’s advice to Barton as to how to successfully insert a catheter into Smith may have been insufficient, standing alone, to constitute evidence that Rodillo had consented to be Smith’s doctor. See Minster v. Pohl, 206 Ga. App. 617, 618-620 (1) (426 SE2d 204) (1992) (finding that although an emergency room doctor, upon request of a nurse, viewed an x-ray in order to verify whether the nurse had properly replaced the patient’s feeding tube, there was no evidence that he did so as the patient’s doctor). However, Rodillo’s consultations with Barton went further than the insertion of the catheter; he also received a description of the patient’s condition and history, and then asked Barton to order a PSA test. A PSA test, according to Barton, is not performed at the hospital and “has to be sent off.” Barton testified that he did not ask Rodillo why he asked for the test because Rodillo “[is] the expert.” Rodillo acknowledged that in the course of his practice when he is consulted about a patient who he decides to see that he may order tests over the phone through another physician, just like, Rodillo acknowledged, when he talked to Barton.

Melman also testified that someone other than Barton would have had to interpret and act upon the result of the PSA test, which was relevant to diagnose whether Smith had prostate cancer, an infarct, or an infection. As Melman explained:

The ER doctors, they see the patients in the emergency room. They either send them home, or they send them into the hospital. They don’t follow them. So there’s no point in telling the ER doctor to get a test which is going to take twenty-four or forty-eight hours to get back if he’s not going to do anything with it. Someone, presumably the ordering doctor, has to act upon the results of that test.

Similarly, Durocher went over Smith’s condition with Rodillo in detail, including “the physical exam, vital signs, [and] lab work,” and Rodillo informed Durocher of “some tests that [he] should order.” Durocher testified that, in particular, the 24-hour creatinine clearance test that Rodillo suggested was not a test he would generally order as a family practice physician.

Viewing the evidence and all reasonable deductions therefrom in favor of Smith, a trier of fact could conclude that Rodillo did not simply offer informal assistance to his colleagues, but that, consistent with his medical practice, by answering the emergency call from the Hospital, conferring with Barton and Durocher as to the patient’s condition and history, and then ordering or suggesting specialized tests, he was acting as Smith’s urologist. In other words, the evidence is sufficient to show that Rodillo “participate [d] in [Smith’s] diagnosis and treatment, [thereby] support [ing] the implication that [he] consented to a physician-patient relationship.” (Citation and punctuation omitted.) Rindsberg, supra at 273. See, e.g., Crisp Regional Hosp., supra at 585 (5) (“Whether a consensual physician-patient relationship existed is generally a factual question for the trier of fact.”). It follows that the trial court erred in directing a verdict for Rodillo on the issue.

2. Smith also maintains that the trial court erred in granting Rodillo’s motion to exclude Melman’s testimony regarding the results of a “Semmes-Weinstein Monofilament Test” (the “Monofilament Test”) as they related to the causation and permanence of Smith’s erectile dysfunction. We disagree with Smith to the extent he contends that the trial court erred in finding the Monofilament Test unreliable, but we agree with Smith that Melman’s opinion as to the cause and permanence of Smith’s erectile dysfunction should not be excluded. Accordingly, we vacate the trial court’s order granting Rodillo’s motion to exclude and remand with direction.

Rodillo moved to exclude Melman’s testimony as it related to the causation and permanence of Smith’s erectile dysfunction because, he maintained, Melman’s conclusions were based on the results of the Monofilament Test, which was an unreliable methodology. Following a hearing, the trial court found that there was no evidence from Melman that the Monofilament Test was reliable, discounted the literature presented by Smith as failing to support Melman’s causation opinion, and concluded that Melman’s methodology failed to answer any of the reliability concerns voiced by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993). The trial court then ruled that Melman “will be prohibited from expressing an opinion regarding the results of the ‘monofilament’ test as they relate to the permanence of [Smith’s] erectile dysfunction.”

The evidence showed that Melman is a urologist with 40 years of experience who specializes in erectile dysfunction, and that he has treated many patients with numbness or decreased sensation in the penis. When Melman examined Smith he found that about half of the skin on Smith’s penis had been excised and replaced with a partial thickness skin graft. Melman then performed “quantitative neuro-sensory testing” and concluded “that [Smith] had absolutely no sensation, zero to touch using [the Monofilament Test] in the region of his partial thickness skin grafts____’’Accor ding to Melman, Smith’s ability to have intercourse would be impaired because of the absence of sensation on his penis and that the steps that might be taken so that Smith could have a sustained erection would not correct that problem. Melman also opined that Smith’s skin debridement and grafting led to scarring, loss of genital sensation, and his loss of sustained erection.

Melman explained that “testing for sensation ... is a subjective test” but that “some investigators have set up methods of using . . . devices to make a subjective test as objective as possible.” The Monofilament Test, according to Melman, employs “thin fiber[s] made out of plastic of varying diameters” which are placed on an area to be tested for “perceived sensation,” and that “you have a number... that’s related to a specific pressure that the monofilament gives and there are . . . standards of what is normal and what is abnormal.” When asked whether the Monofilament Test was generally accepted by urologists, Melman responded, “I don’t know the answer to that.” Melman acknowledged, however, that “not many urologists do this,” that the monofilaments are usually used by a neurologist, and that he was a “trailblazer.” He also indicated that he performed the test on Smith because “we published some papers of quantitative neurosen-sory testing” and, somewhat ambiguously, “I don’t know of anyone else who does that.”

OCGA § 24-7-702 (b) provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, an expert may testify thereto 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.” In this respect,

[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.

HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010). The trial court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid and . .. whether that reasoning or methodology properly can be applied to the facts in issue.” See Daubert, supra at 592-593 (II) (C). The burden of showing the reliability of the expert’s opinion rests with the proponent of that evidence. See Butler v. Union Carbide Corp., 310 Ga. App. 21, 26 (1) (712 SE2d 537) (2011). And the admission or exclusion of expert testimony is within the broad discretion of the trial court. See Meacham v. Franklin-Heard County Water Auth., 302 Ga. App. 69, 76 (3) (690 SE2d 186) (2009).

Turning to the nonexclusive factors relevant to reliability, Smith proffered an article from the Journal of Hand Surgery which shows that the Monofilament Test technique has been tested, and its reliability assessed, in the context of determining touch thresholds in the hand. Thus, it appears that the Monofilament Test is capable of being tested as a scientific technique. But Smith fails to show that it has been adequately tested in the context of diagnosing erectile dysfunction. In the article that Melman co-authored, the authors acknowledge that they are “the first group to utilize [the Monofilament Test] ... for assessing neuropathy of the penis” and that their study was limited by the sample. The other publications proffered by Smith do not show that the Monofilament Test has been more than minimally assessed in the context of erectile dysfunction. Nor does there appear to be any known or potential rate of error for the use of the test as employed by Melman.

Although the Monofilament Test is a known technique, it is not generally utilized by urologists. An assessment of reliability permits an “explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community” and “a known technique which has been able to attract only minimal support within the community may properly be viewed with skepticism.” (Citations and punctuation omitted.) Daubert, 509 U. S. at 594 (II) (C). The trial court found, and the evidence showed, that the use of the Monofilament Test is not generally accepted by the urological community and that the use of the test to diagnose erectile dysfunction was Melman’s own project. Further, although Smith shows Melman to be an eminently qualified urologist, Melman acknowledged that the Monofilament Test is a technique employed by neurologists. Given our review of the evidence, we find that the trial court did not abuse its discretion in ruling that Melman could not “express an opinion regarding the results of the [M]onfilament[ ] [T]est” as they related to the cause and permanence of Smith’s erectile dysfunction.

We agree with Smith, however, that even if the Monofilament Test was not shown to be reliable, Rodillo did not establish that Melman’s opinion as to the cause and permanence of Smith’s erectile dysfunction should be excluded to the extent that it was not based on the Monofilament Test. Much of the underlying data on which Melman relied was derived from his review of Smith’s medical records and his examination of Smith, during which he found not only that approximately half of the skin of Smith’s penis had been replaced with a skin graft but that the left side of Smith’s penis “had a thick fibrotic scarred cord .. . which prevented his penis from elevating in a cephalad position.” Although Melman determined through the use of the Monofilament Test that Smith felt nothing where the skin on his penis had been grafted, we cannot conclude that the use of the test rendered Melman’s conclusions based on Smith’s reported lack of sensation to be without any foundation, notwithstanding that'they may lack the imprimatur of objectiveness that the Monofilament Test, if shown to be reliable, might have provided. Melman personally determined through Smith’s responses to touches to various parts of Smith’s anatomy (asking “do you feel it now?”) that Smith reported no sensation. The subjectiveness of the underlying data in that respect, particularly whether Smith provided accurate responses, is not markedly different from aspects of a traditional examination of a patient by a physician and is capable of being challenged through cross-examination of Melman and Smith. See, e.g., Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 861 (2) (a) (686 SE2d 455) (2009) (“If it be developed that the opinion is based on inadequate knowledge, this goes to the credibility of the witness rather than to the admissibility of the evidence”). Thus, we cannot conclude that Melman, an experienced urologist, may be precluded from opining to the cause and permanence of Smith’s erectile dysfunction based on his personal examination of Smith and his review of Smith’s medical records. As we have said, “Dauberfs role of ensuring that the courtroom door remains closed to junk science is not served by excluding testimony such as [Melman’s] that is supported by extensive relevant experience, and such exclusion is rarely justified in cases involving medical experts.” (Punctuation and footnote omitted.) Cartledge v. Montano, 325 Ga. App. 322, 328 (1) (750 SE2d 772) (2013). See Kumho Tire Co., supra at 156 (“no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience”); compare HNTB Ga., supra at 645 (2) (“experience, standing alone, does not render reliable all opinions an expert may express”).

The trial court’s order bars Melman from “express [ing] an opinion regarding the results of the [M]onofilament[ ] [T]est” as they relate to Smith’s erectile dysfunction, and in that respect the order is not inconsistent with our analysis as it does not otherwise preclude Melman from expressing an opinion as to the cause and permanence of Smith’s erectile dysfunction. On the other hand, Smith’s underlying motion, which the trial court granted, suggests that Melman’s opinion as to the cause and permanence of Smith’s erectile dysfunction be entirely excluded, and the trial court’s order might be interpreted as requiring such exclusion. Accordingly, the trial court’s order granting Rodillo’s motion to exclude is vacated, and on remand the trial court is directed to enter an order on the motion not inconsistent with this opinion.

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

Andrews, P. J., concurs in judgment only. McFadden, J., concurs fully in Division 1 and specially in Division 2.

McFadden, Judge,

concurring specially.

I concur fully in Division 1 of the majority opinion. I do not agree with all that is written in Division 2, but I concur in that division because I understand it to admit the testimony of appellant’s expert, a preeminent urologist, “that in effect more than half of [appellant’s] penis was totally numb” and to admit his conclusions founded upon that observation.

Asked about his examination, appellant’s expert first described appellant’s injury then continued:

I did something that we call quantitative neurosensory testing. It’s kind of a sophisticated way of measuring sensation and a few other things, but sensation and vibratory sensation.

Decided November 13, 2014

Reconsideration denied December 15, 2014

JohnM. Clark, Frails & Wilson, Edwin A. Wilson, for appellant.

McClure, Ramsay, Dickerson & Escoe, John A. Dickerson, for appellee.

What I found was that he had absolutely no sensation, zero to touch using [the Monofilament Test] in the region of his partial thickness skin grafts of the penis. So that in effect more than half of his penis was totally numb.

Later, as detailed in the majority opinion, the expert explained that “testing for sensation ... is a subjective test. . . . [I]t’s what the patient tells you he does feel or doesn’t feel... so some investigators have set up methods of using several types of devices to make a subjective test as objective as possible.” The test at issue, as he went on to explain, is one such test. It simply applies pressure in precise amounts at precise locations. The patient then reports the resulting sensation or lack of sensation, and his report is recorded. The test, therefore, is merely a refinement of some of the most fundamental methods of medical diagnosis. Because testimony founded on it “rests upon good grounds, [that testimony] should be tested by the adversary process — competing expert testimony and active cross-examination ■— rather than excluded from jurors’ scrutiny for fear that they will not grasp its complexities or satisfactorily] weigh its inadequacies.” Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F3d 1333, 1345 (II) (C) (11th Cir. 2003) (citations and punctuation omitted).

Although the Monofilament Test is apparently capable of drawing fine distinctions, the expert’s opinions rest on his observation that appellant “had absolutely no sensation” in the regions of the skin grafts. But even if the expert’s opinions did rest on such fine distinctions, arguments that his measurements were “methodologically flawed” would “go to the weight, not the admissibility, of the evidence he offered.” Quiet Technology DC-8, 326 F3d at 1345 (II) (C).

       Rodillo also contends that it cannot he refuted that the Hospital issued a memorandum notifying the doctors in the county where he practiced that he was going to be out of town, hut he failed to show that he had personal knowledge that such a memorandum was ever issued, or that he, Barton, or Durocher ever saw the memorandum, and no copy of the memorandum was introduced into evidence. But even if we were to assume that such a memorandum existed, it would not change our analysis.

       Rodillo’s motion to exclude Melman’s testimony was filed on July 18, 2013, and our new Evidence Code applies to “any motion made or hearing or trial commenced on or after” January 1, 2013. See Ga. L. 2011, p. 99, § 101. Accordingly, OCGA §§ 24-7-702 and 24-7-703 governed the motion, notwithstanding that the parties and the trial court relied on former OCGA § 24-9-67.1. We cannot conclude, however, that the differences between the prior law and the current law were material for purposes of the trial court’s consideration of the motion.

       OCGA § 24-7-702 (f) provides:
      It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [(113 SCt 2786, 125 LE2d 469)] (1993); General Electric Co. v. Joiner, 522 U.S. 136 [(118 SCt 512, 139 LE2d 508)] (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 [(119 SCt 1167, 143 LE2d 238)] (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

       Given the trial court’s analysis, the underlying motion, and the arguments presented at the Daubert hearing, it appears that the trial court intended to exclude Melman’s opinion regarding the results of the Monofilament Test as they related to causation as well as to permanence.

       See Jerosch-Herold, Assessment of Sensibility after Nerve Injury and Repair: A Systematic Review of Evidence for Validity, Reliability, and Responsiveness of Tests, Journal of Hand Surgery (British and European Volume 2005). The author also observes, however, that, as to the reviewed studies, “none provides unequivocal evidence that touch threshold is predictive of function.”

       See Bleustein, Arezzo, Eckhold, and Melman, The neuropathy of erectile dysfunction, International Journal of Impotence Research (2002).

       In his appellate brief, Smith interprets the trial court’s order as excluding Melman’s entire opinion on the cause of Smith’s erectile dysfunction, and Rodillo does not expressly disagree with that assessment.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A1015, A14A1017.
    KAHN et al. v. BRITT et al.; and vice versa. NEIMARK v. KAHN et al.
    A14A1016.
    (765 SE2d 446)
   Miller, Judge.

These consolidated appeals arise out of the transfer of assets from Roger F. Kahn to RK Trust, of which Kahn is the lifetime beneficiary. Kahn’s judgment creditors filed suit against Kahn and RK Trust, alleging, in part, that the assets transfer constituted a fraudulent transfer. RK Trust settled the suit and sold a cattle ranch to fund the settlement. Thereafter, Kahn, in his individual capacity, and RK Trust’s trustees (collectively, the “Kahn Plaintiffs”) sued Daniel Lamar Britt, Jr., Britt & Associates, Cort A. Neimark, and Myles Eastwood, the attorneys who represented RK Trust in the settlement, and William W. Gwaltney, another attorney and a former co-trustee, claiming professional negligence, breach of fiduciary duty, simple negligence, conversion, trespass, wrongful eviction, and aiding and abetting.

The parties filed cross-motions for summary judgment. The trial court granted summary judgment to the defendants in part and denied it in part, ruling that there were genuine issues of material fact as to the negligence and breach of fiduciary duty claims against Britt and Neimark and the conversion claim against Britt & Associates. These cross-appeals ensued.

In Case No. A14A1015, the Kahn Plaintiffs contend that the trial court erred in granting summary judgment to the defendants on their negligence claims against Britt and Neimark regarding the appointment of Gwaltney as a temporary co-trustee; the breach of fiduciary duty and negligence claims against Eastwood; the breach of fiduciary duty claims against Gwaltney; and Kahn’s individual claims against Neimark; the claims regarding conversion, trespass and wrongful eviction, and aiding and abetting; and the claims for punitive damages and attorney fees. The Kahn Plaintiffs further contend that the trial court erred in denying their partial motion for summary judgment on claims that Gwaltney breached his fiduciary duty to RK Trust and that Britt and Neimark committed legal malpractice and breached their fiduciary duties to the trust.

In Case No. A14A1016, Neimark contends that the trial court erred in denying his motion for summary judgment on claims of professional and simple negligence and breach of fiduciary duty arising out of his role in the assets transfer.

In Case No. A14A1017, Britt and Britt & Associates contend that the trial court erred in denying their motion for summary judgment on negligence and breach of fiduciary duty claims against Britt and the conversion claim against Britt & Associates.

For the reasons that follow, we affirm in part and reverse in part the trial court’s judgment in Case No. A14A1015. We affirm the trial court’s denial of Neimark’s motion for summary judgment in Case No. A14A1016 and affirm the trial court’s denial of the motion for summary judgment filed by Britt and Britt & Associates in Case No. A14A1017.

The evidence shows that Kahn’s mother set up RK Trust in 1979, designating Kahn as the primary lifetime beneficiary and as one of the two trustees. The RK Trust contained a spendthrift provision that protected the income and corpus of the trust from the claims of creditors, but provided the trustees with the discretion to make payments to the beneficiaries’ creditors.

From 1998 to 2002, Kahn received approximately $36 million from RK Trust. Of that amount, only about $4.8 million constituted required beneficiary distributions, while the rest of the distributions were, according to Kahn, loans authorized by him and co-trustee Elliot Cohen. Kahn used these loans to purchase a cattle ranch in Bartow County (the “Cattle Ranch”) and to twice run for political office. The Cattle Ranch was held by Kahn Cattle Company, LLC, of which Kahn was the sole member.

Around 2002, Cohen informed Kahn that the lack of documentation for the loans would subject Kahn to significant estate tax liability. Upon Cohen’s suggestion, Kahn executed approximately 20 unsecured and backdated promissory notes in favor of RK Trust. The promissory notes either had one-year terms or were payable on demand.

By 2004, the promissory notes had not been paid off, and Cohen devised a plan to transfer all of Kahn’s personal assets to RK Trust to partially satisfy Kahn’s debts to RK Trust. Kahn did not approve the plan, and no transfer was made at this time.

In June 2005, Kahn’s niece, Cathy McSweeney, and her children (the “McSweeney Children”) filed suit against Kahn for fraud, civil conspiracy, breach of fiduciary duty, unjust enrichment, and conversion in connection with his acquisition of McSweeney’s interest in a land investment. See McSweeney v. Kahn, 347 Fed. Appx. 437, 439 (11th Cir. 2009) (‘McSweeney”). By September 2006, Cohen had resigned as co-trustee of RK Trust, and James Union was appointed to succeed him.

In December 2006, Kahn contacted Britt seeking legal representation for RK Trust because the McSweeney plaintiffs were investigating Kahn’s debt to RK Trust. Britt understood that Kahn wanted to protect the trust’s assets and Kahn’s assets from the McSweeney plaintiffs. Britt proposed several options to Kahn and Union, and Kahn ultimately agreed that the trust should call the promissory notes due and demand the transfer of his assets to satisfy his indebtedness.

Thereafter, to avoid the appearance of self-dealing, Kahn appointed Gwaltney co-trustee in his place on an interim basis while McSweeney was pending. Around this time, Neimark was also hired to represent RK Trust. Union and Gwaltney, as co-trustees, then informed Kahn that RK Trust was calling his loans due and asked that he make arrangements to satisfy his debt by payment or by transferring his assets.

On April 4, 2007, Kahn and the co-trustees executed a repayment agreement, which acknowledged that Kahn owed RK Trust $36,800,560 and listed some of Kahn’s assets that were to be conveyed to RK Trust in satisfaction of the promissory notes. Among the assets that would be transferred was the Kahn Cattle Company. The parties stipulated that the cattle company had land holdings worth $18.8 million; however, there is no evidence that anyone had the land appraised. To effectuate the assets transfer, Neimark prepared a blanket assignment dated April 4, 2007, and Kahn assigned his interest in Kahn Cattle Company to RK Trust.

In August 2008, the jury returned a verdict in McSweeney, finding Kahn liable to the McSweeney Children in the amount of $3,527,605. See McSweeney, supra, 347 Fed.Appx. at 439-440. When the judgment remained unpaid, the McSweeney Children filed an action in federal court (“Slechta”) against Kahn, the Kahn Cattle Company, and Gwaltney and Union, as co-trustees of RK Trust, claiming that they fraudulently transferred assets into the trust in order to prevent the plaintiffs from collecting on their judgment. Gwaltney and Union hired Eastwood as additional counsel to assist Britt in the defense of RK Trust, and Neimark, although not counsel of record in Slechta, was apprised of the proceedings in that case.

In August 2010, the Slechta parties participated in a court-ordered mediation, resulting in a proposed settlement. In exchange for a release of all claims against RK Trust and the trustees, as well as Kahn and Kahn’s children and grandchildren, RK Trust agreed to pay the Slechta plaintiffs $4 million plus potential late payment fees, with the settlement payment to be funded by the auction of part or all of the Cattle Ranch.

Following a hearing on the settlement agreement and after receiving testimony as to the value of the Cattle Ranch and the proposed auction, the federal district court approved the settlement over Kahn’s objections in October 2010. Because of his objections to the manner in which the sale of the Cattle Ranch was to be conducted, Kahn was not a signatory to the agreement, although all claims against him were releasedby the Slechta plaintiffs. The auction of the Cattle Ranch took place on October 27, 2010. The Cattle Ranch and Kahn Cattle Company’s personal property located on the ranch, including fixtures, farm equipment, vehicles, and farm inventory, were sold for $6.5 million. Thereafter, RK Trust paid the Slechta plaintiffs and netted $1,219 million from the sale of the ranch. Gwaltney and Union subsequently resigned as trustees and filed a final accounting of the trust. Shortly thereafter, Kahn and the new trustees of RK Trust initiated this suit.

Case No. Al 4A1015

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.

(Citation omitted.) Golden Atlanta Site Dev. v. Nahai, 299 Ga. App. 646, 649 (2) (683 SE2d 166) (2009). With these principles in mind, we turn to the Kahn Plaintiffs’ contentions.

1. The Kahn Plaintiffs contend that the trial court erred in granting summary judgment to Britt and Neimark on professional and simple negligence claims relating to Gwaltney’s initial appointment as temporary co-trustee, because the trust instrument did not allow such appointments. We disagree.

“In construing trusts as well as other instruments the appellate courts must interpret the language to effectuate the intent of the settlor within the guidelines of the law.” (Citation and punctuation omitted.) Ferst v. Ferst, 208 Ga. App. 846, 847 (432 SE2d 227) (1993). Here, Section 2.1 of the RK Trust instrument provides that each co-trustee shall, while serving as trustee, “have the power to designate successor Trustees (other than the Grantor) with respect to his trusteeship.” Consequently, the trust instrument allowed Kahn, as a co-trustee, to designate Gwaltney as his successor trustee, and nothing precluded Kahn from doing so on a temporary basis. Therefore, the trial court did not err in granting summary judgment to Britt and Neimark as to the Kahn Plaintiffs’ claims related to Gwaltney’s temporary appointment.

2. The Kahn Plaintiffs also contend that Eastwood breached his fiduciary duty to Kahn and RK Trust and committed professional negligence by failing to inquire into Gwaltney’s authority to act as co-trustee, failing to notify Kahn of the terms of the Slechta settlement agreement or the terms of the sale, and authorizing the sale of the Cattle Ranch below fair market value. We disagree.

(a) Since we conclude below in Division 3 (c) that Kahn ratified Gwaltney’s authority to act as co-trustee in his place following McSweeney, there was no harm in Eastwood’s purported failure to inquire into Gwaltney’s authority. Accordingly, these claims based on Eastwood’s omissions fail.

(b) As for Eastwood’s failure to notify Kahn of the terms of the settlement agreement, the evidence belies this claim. The undisputed evidence shows that Kahn’s personal attorney was involved in the settlement negotiations and was aware of the settlement terms. It is well settled that notice to an attorney is notice to the client employing him, and that knowledge of an attorney is knowledge of his client. See Roylston v. Bank of America, N.A., 290 Ga. App. 556, 560 (1) (b) (660 SE2d 412) (2008). Moreover, Kahn made specific objections to the settlement agreement before the same was approved by the federal district court. Consequently, Kahn was aware of the settlement terms, and Eastwood was entitled to summary judgment on this claim.

(c) With respect to the sale of the Cattle Ranch, the undisputed evidence shows that Kahn did not object to the sale of the Cattle Ranch as part of the Slechta settlement. Instead, Kahn objected only to the manner in which the ranch was sold.

Gwaltney hired the company that marketed the property and conducted the auction. At the auction, a bid of $5.5 million was received, but the trustees — Gwaltney and Union — did not feel comfortable accepting this amount. When neither Kahn nor Eastwood could be reached for further direction, the trustees negotiated with the bidder to sell the Cattle Ranch and Kahn Cattle Company’s personal property for $6.5 million. Eastwood testified that he was not present at the auction, and there is no evidence to show that he otherwise participated in negotiating the sale of the Cattle Ranch. Consequently, Eastwood was entitled to summary judgment on claims that he breached a fiduciary duty or committed professional negligence in the sale of the ranch.

3. The Kahn Plaintiffs also contend that the trial court erred in granting summary judgment to Gwaltney on the claims that Gwalt-ney breached his fiduciary duty to Kahn and RK Trust. We agree in part.

“A violation by the trustee of any duty that the trustee owes the beneficiary shall be a breach of trust.” OCGA § 53-12-300. Establishing a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach. Nalley v. Langdale, 319 Ga. App. 354, 364 (2) (734 SE2d 908) (2012).

(a) Verifying Promissory Notes.

The Kahn Plaintiffs assert that Gwaltney breached his duty to RK Trust because he failed to investigate the legitimacy of the promissory notes executed by Kahn. There was no dispute that Kahn executed the notes, that he did so in order to document the $36 million in loans that he received from the trust, and that these notes remained outstanding at the time of Gwaltney’s appointment. Since there was no dispute that Kahn owed money to RK Trust, it cannot be said that Gwaltney breached his fiduciary duty to the trust by failing to determine the legitimacy of the notes.

(b) Assets Transfer.

The Kahn Plaintiffs also assert that Gwaltney breached his fiduciary duty because he “rubber-stamped” Britt’s and Neimark’s decision to transfer Kahn’s assets to RK Trust to satisfy his indebtedness during the pendency of McSweeney. The Kahn Plaintiffs also contend that the trial court erred in concluding that Gwaltney was shielded from liability for his participation in the assets transfer by virtue of the trust instrument.

In granting summary judgment to Gwaltney on the fiduciary duty claim, the trial court ruled that Gwaltney was entitled to rely on Section 8.5 of the trust instrument, which limited a trustee’s liability to instances of “wilfull default, wrongdoing, or gross negligence, but not for honest errors of judgment,” because there was “no evidence giving rise to even an inference that Gwaltney acted in anything other than good faith[.]”

“[G]ross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of the diligence that even careless men are accustomed to exercise.” (Citations and punctuation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 294 (1) (701 SE2d 915) (2010). Generally, it is for the jury to decide whether the evidence supports a finding of gross negligence. Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 709 (2) (a) (618 SE2d 621) (2005).

In this case, the evidence shows that, prior to assuming the trustee appointment, Gwaltney reviewed the trust instrument and the balance sheets for RK Trust and Kahn, but he did not independently verify whether the balance sheets were correct. When Kahn transferred his assets to RK Trust, Gwaltney did not substantiate the value of Kahn’s assets prior to the assets transfer, and the assets transfer was poorly documented. Since an expert witness testified that Gwaltney had an independent duty as a trustee to verify, document, and substantiate the transfer being made, including appraising the value of the property, there is a question of fact as to whether Gwaltney exercised even a slight degree of care in conducting the assets transfer, and the trial court erred in concluding that Gwaltney was entitled to protection under Section 8.5 of the trust instrument.

Nevertheless, we may affirm the trial court’s grant of summary judgment if it is right for any reason, whether stated or unstated, so long as the legal basis was fairly presented in the court below. See Ga.-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013); Bailey v. Hall, 267 Ga. App. 222, 223, n. 1 (599 SE2d 226) (2004). In this case, Gwaltney argued below that the document appointing him as interim trustee also shielded him from liability. That document provides, in pertinent part, that RK Trust and its beneficiaries, including Kahn, waived and released Gwaltney from “any claim or other liability... from any act or failure to act with regard to payment, collection, satisfaction, or security for those notes or obligations payable to the RK Trust previously approved by prior trustees.” (Emphasis supplied.) Pursuant to the delegation instrument, Kahn waived any claim against Gwaltney for acts relating to the assets transfer to RK Trust. See Heiman v. Mayfield, 300 Ga. App. 879, 881-882 (1) (686 SE2d 284) (2009). Accordingly, the trial court did not err in granting summary judgment to Gwaltney on claims related to the assets transfer.

(c) Remaining as co-trustee beyond term of appointment.

The Kahn Plaintiffs next argue that Gwaltney breached his fiduciary duty by remaining as co-trustee beyond the term of his interim appointment, which was to last through the pendency of McSweeney. Gwaltney responds that Kahn accepted the benefits of Gwaltney’s service through the receipt of trust distributions and represented that Gwaltney was a trustee in court documents, thus ratifying Gwaltney remaining as a co-trustee past his interim term.

It is undisputed that Kahn temporarily delegated his authority to Gwaltney to serve as trustee and that the term of the delegation was for the pendency of McSweeney. It is also undisputed that a document making Gwaltney a permanent trustee was prepared but never signed by Kahn. Nevertheless, there is uncontroverted evidence that Kahn asked Gwaltney to remain as co-trustee and Kahn continued to treat Gwaltney as a co-trustee thereafter. Additionally, following McSweeney, and during the pendency of Slechta, Kahn specifically requested and accepted distributions from RK Trust that were authorized by Gwaltney. Although Kahn objected to the terms of the Slechta settlement reached by Gwaltney and asked that Gwaltney resign as co-trustee, Kahn never claimed that Gwaltney was acting without authority. Moreover, even after the sale of the Cattle Ranch, Kahn requested that Gwaltney distribute some of the sale proceeds for his benefit. In sum, there is no evidence that Kahn ever repudiated Gwaltney’s authority to act as co-trustee following McSweeney.

If, after knowledge of what the agent has done, the principal makes no objection within a reasonable time, a ratification results by operation of law. A & S Group v. Murray, 291 Ga. App. 331, 334 (1) (661 SE2d 701) (2008). Likewise, a beneficiary may also ratify a trustee’s unauthorized act constituting a breach of trust, and such ratification bars the beneficiary from subsequently repudiating the breach and attempting to hold the trustee liable. See Nalley, supra, 319 Ga. App. at 366 (2). Although the question of whether an unreasonable period of time has passed so as to result in ratification is usually an issue for the jury, where there is no evidence showing that a party’s actions did not constitute ratification, such a determination can be made as a matter of law. See Hendrix v. First Nat. Bank of Savannah, 195 Ga. App. 510, 512 (394 SE2d 134) (1990). In this case, since Kahn continued to represent Gwaltney as a co-trustee and accepted the benefits of Gwaltney’s role as co-trustee, Kahn ratified any breach by Gwaltney when he remained as co-trustee beyond the designated term. Consequently, Gwaltney was entitled to summary judgment on this issue.

(d) Retaining and failing to supervise Britt and Eastwood during the Slechta litigation.

The Kahn Plaintiffs also argue that the trial court erred in concluding that Gwaltney did not breach his fiduciary duty by hiring Britt and Eastwood to represent RK Trust in the Slechta action. We agree.

As a preliminary matter, the Kahn Plaintiffs argued below only that Gwaltney breached his fiduciary duty by hiring Britt. Consequently, they may not now argue that Gwaltney breached his fiduciary duty by hiring Eastwood. See Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 828 (2) (a) (648 SE2d 156) (2007) (“An argument not raised in the trial court is waived and cannot be raised for the first time on appeal.”) (footnote omitted).

As to the hiring of Britt, there is evidence that Kahn transferred his assets to RK Trust pursuant to Britt’s advice, and this assets transfer gave rise to the Slechta suit, as the Slechta plaintiffs alleged that the assets transfer constituted a fraudulent transfer. Contrary to the trial court’s holding that the Kahn Plaintiffs could not establish proximate cause because Eastwood also served as counsel in Slechta, the evidence shows that Britt was actively involved in developing the defense strategy. In light of this evidence, there is a question of fact as to whether Gwaltney’s hiring of Britt to represent RK Trust in Slechta was a breach of his fiduciary duty and whether any breach caused RK Trust to suffer damages. Accordingly, the trial court erred in granting summary judgment to Gwaltney on this claim.

(e) Auction of the Cattle Ranch.

The Kahn Plaintiffs next argue that there are questions of fact regarding whether Gwaltney breached his fiduciary duty by selling the property in the manner he did. Again, we agree.

Atrustee has a duty to sell a trust’s property for the highest price possible. See Bloodworth v. Bloodworth, 260 Ga. App. 466, 471 (1) (579 SE2d 858) (2003). The issue is whether Gwaltney proximately caused the cattle ranch to be sold for less than the highest price possible. As a general rule, a determination as to proximate cause is a jury issue, but in plain and undisputed cases the issue is one of law for the court. McAuley v. Wills, 251 Ga. 3, 7 (5) (303 SE2d 258) (1983). This is not a plain and undisputed case.

Although Kahn ratified Gwaltney remaining as co-trustee, he objected to the manner in which the Cattle Ranch was sold, and there is evidence that Gwaltney may have breached his duty in this respect. Notably, Gwaltney believed that a quick sale would force the trust to sell at a lower price, but nonetheless authorized the auction, which was advertised for only seven weeks. Additionally, Gwaltney failed to appraise the property prior to the sale. Although Gwaltney rejected a prior offer because he believed the property was worth more than $6.45 million, and the property’s fair market value was at least $8 million, the property sold at auction for only $6.5 million. Moreover, as discussed below, the price received at auction, after paying two commissions, was actually lower than the price RK Trust would have received had it accepted a pre-auction offer to sell the Cattle Ranch for $6.45 million.

Under these circumstances, there is a question of fact as to whether Gwaltney breached his fiduciary duty in authorizing the sale of the Cattle Ranch in the manner in which he did, resulting in the ranch being sold for less than fair market value. Cf. Cartersville Developers v. Ga. Bank & Trust, 292 Ga. App. 375, 377 (664 SE2d 783) (2008) (“True market value is the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so.”) (citation and punctuation omitted). Consequently, the trial court erred in granting summary judgment to Gwaltney on fiduciary duty claims related to the sale of the Cattle Ranch.

(f) Brock commission.

The evidence shows that prior to June 2010, agent Gary Brock had approached the Rollins family about purchasing the Cattle Ranch. In June 2010, Brock approached Gwaltney with an offer to buy the ranch on behalf of the Rollins family, operating through LOR, Inc. Around this time, Gwaltney discovered that the Rollins family had been looking at the property for several years. When the parties were unable to reach an agreement on the sale price, Gwaltney decided to proceed with the auction instead and invited Brock to participate. At auction, the Rollins family, operating as LOR Apple Valley, LLC and represented by Thorne Winter, bought the Cattle Ranch.

After the auction, but prior to closing, Gwaltney became aware that Brock was claiming that he was entitled to a commission on the sale of the Cattle Ranch. Gwaltney testified that he had not previously considered whether Brock would be entitled to a commission. Gwaltney proceeded with the closing of the sale after Britt advised him that Brock was not entitled to a commission; Gwaltney placed the disputed funds into the court’s registry; and Gwaltney eventually settled Brock’s claim of $320,000 for $270,000.

In this case, although a different entity (LOR Apple Valley, LLC) bought the Cattle Ranch than the entity that previously submitted an offer through Brock (LOR, Inc.), both entities were controlled by the Rollins family. Kahn testified that Brock had an exclusive contract to sell the property to the Rollins family and Gwaltney proceeded to the auction without ensuring that Brock’s exclusive contract was can-celled. Additionally, Gwaltney admitted that he did not investigate whether Brock would be entitled to a commission prior to proceeding with the auction. Since a trustee has a duty to act in the utmost good faith in protecting and maximizing the assets of the estate, see Jonas v. Jonas, 280 Ga. App. 155, 160 (3) (b) (633 SE2d 544) (2006) and RK Trust had to pay commissions to both the auction company and to Brock, there is a question of fact as to whether Gwaltney breached his fiduciary duty with respect to his handling of Brock’s commission. See Lee v. SunTrust Bank, 314 Ga. App. 63 (722 SE2d 884) (2012) (to defeat a summary judgment motion, the nonmoving party need not present conclusive proof but must only produce or point to specific evidence, even slight, giving rise to a triable issue of material fact). Therefore, the trial court erred in granting summary judgment to Gwaltney on the issue of Brock’s commission.

4. The Kahn Plaintiffs next contend that the trial court erred in granting summary judgment to Neimark on all claims brought by Kahn individually, because there is a genuine issue of fact as to whether Neimark represented Kahn personally in connection with the assets transfer. We agree.

Generally, a plaintiff must demonstrate the existence of an attorney-client relationship before he may recover in a legal malpractice suit. This is essential in establishing the element of duty that is necessary to every lawsuit based upon a theory of negligence. The basic question in regard to the formation of the attorney-client relationship is whether the evidence sufficiently established that advice or assistance of the attorney is both sought and received in matters pertinent to his profession.

(Citations and punctuation omitted; emphasis supplied.) Rhone v. Bolden, 270 Ga. App. 712, 716 (4) (a) (608 SE2d 22) (2004).

Here, the undisputed evidence shows that Neimark was hired to represent RK Trust and assist with the transfer of assets from Kahn to the trust. Kahn testified that Neimark advised him that the assets transfer was for Kahn’s own protection as well as the protection of RK Trust. Consequently, there is an issue of fact as to the existence of an individual attorney-client relationship between Kahn and Neimark.

Moreover, even if no express attorney-client relationship existed, “an attorney may be liable for negligence under the theory of voluntary agent when the attorney gratuitously undertakes to perform a legal service (or, in this case, give legal advice) to another with the other’s approval.” (Citation omitted.) Rogers v. Hurt, Richardson, Garner, Todd & Cadenhead, 203 Ga. App. 412, 415 (2) (417 SE2d 29) (1992). Thus,

liability for professional acts extends not only to the actual client but also to third parties who rely upon the professional’s advice in situations where the professional was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly.

(Citation and punctuation omitted.) Id. at 416 (2). In this case, given Neimark’s role in the assets transfer from Kahn to RK Trust, it can hardly be said that Kahn was not a foreseeable person who would rely upon Neimark’s advice. Id. (holding that the plaintiffs had standing to sue for damages allegedly sustained as a result of corporate attorney’s advice to transfer assets from the corporation to the plaintiffs).

Neimark argues that Kahn cannot establish damages because the Slechta plaintiffs would have been able to force the sale of the Cattle Ranch even absent the transfer of the property to RK Trust. The evidence, however, shows that Slechta was filed by the victorious McSweeney plaintiffs not only to recover the unpaid judgment of approximately $3.5 million owed by Kahn, but also to challenge the alleged fraudulent transfer of assets from Kahn to RK Trust. If Kahn can show, as he alleges, that he was sued as a result of following Neimark’s legal advice, then the cost of defending the fraud claims brought by the Slechta plaintiffs would be an element of Kahn’s damages. See Rogers, supra, 203 Ga. App. at 416 (2). Consequently, Neimark was not entitled to summary judgment on claims brought by Kahn individually.

5. The Kahn Plaintiffs also contend that the trial court erred in granting summary judgment to the defendants on their claims that the defendants aided and abetted each other in their respective breaches of duty to RK Trust when proceeding with the Slechta settlement and selling the Cattle Ranch at auction. We disagree.

In Georgia, the tort of aiding and abetting a breach of fiduciary duty requires proof of the following elements: (1) through improper action or wrongful conduct and without privilege, the defendant acted to procure a breach of the primary wrongdoer’s fiduciary duty to the plaintiff; (2) with knowledge that the primary wrongdoer owed the plaintiff a fiduciary duty, the defendant acted purposely and with malice and the intent to injure; (3) the defendant’s wrongful conduct procured a breach of the primary wrongdoer’s fiduciary duty; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff.

(Footnote omitted; emphasis supplied.) White v. Shamrock Bldg. Systems, 294 Ga. App. 340, 343 (1) (669 SE2d 168) (2008). An act is done with “malice” if it is an unauthorized interference or an interference without legal justification or excuse. See Insight Technology v. FreightCheck, LLC, 280 Ga. App. 19, 25 (1) (a), n. 13 (633 SE2d 373) (2006).

The tort of aiding and abetting requires proof of virtually the same elements as the tort of tortious interference with business relations. See White, supra, 294 Ga. App. at 345 (3).

[I]n order to be liable for tortious interference, one must be a stranger to both the contract at issue and the business relationship giving rise to and underpinning the contract. In other words, all parties to an interwoven contractual arrangement are not liable for tortious interference with any of the contracts or business relationships.

(Citations omitted) Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 610 (2) (503 SE2d 278) (1998). Moreover, a person has acted “without privilege” with regard to tortious interference when he is a stranger to the business relationship at issue. See Cox v. City of Atlanta, 266 Ga. App. 329, 332 (1) (596 SE2d 785) (2004).

Here, during the relevant period, Neimark, Britt, and Eastwood served as RK Trust’s attorneys and Gwaltney served as a co-trustee. As discussed above in Division 3 (c), Kahn ratified Gwaltney’s service as co-trustee beyond his designated term. During the course of Slechta, Neimark, Britt, and Eastwood all took direction from Gwalt-ney and Union. Consequently, regardless of whether the individual defendants committed any tort with respect to the trust when proceeding with the Slechta settlement or in selling the Cattle Ranch, the defendants cannot be said to have acted “without privilege” because they were not strangers to RK Trust. See Cox, supra, 266 Ga. App. at 333 (1) (since the defendants were not strangers to the business relationship at issue, they were entitled to summary judgment on tortious interference claim); Atlanta Market Center Mgmt., supra, 269 Ga. at 610 (2) (affirming grant of summary judgment on tortious interference claim against person involved in ‘business relationship giving rise to and underpinning the contract”). Since the tort of aiding and abetting requires that a defendant act “without privilege,” and this was not the case here, the trial court properly granted summary judgment to the defendants on this count.

6. Kahn contends that the trial court erred in granting summary judgment to Gwaltney, Britt, Eastwood, and Britt & Associates on his claim for conversion. We agree, in part.

[Conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.

(Citations and punctuation omitted.) Williams v. Nat. Auto Sales, 287 Ga. App. 283, 285 (1) (651 SE2d 194) (2007). Where a defendant comes into possession of property lawfully, the plaintiff can establish conversion by showing that the defendant refused to return the plaintiff’s property after the plaintiff demanded its return. Id. Where a defendant comes into the possession of the property unlawfully, the plaintiff can establish conversion by showing that the defendant disposed of the property without authority and retained the proceeds. Id. at 286 (1).

(a) Kahn’s personal property.

Viewing the evidence in Kahn’s favor, the evidence shows that after the auction, Kahn’s assistant attempted to remove some of Kahn’s property, but Eastwood prevented her from taking all of it. Gwaltney testified that he and Union subsequently placed personal items they believed belonged to Kahn in a storage unit and gave the keys to the unit to Kahn’s attorney. Kahn submitted evidence that, after visiting the storage unit, it was determined that some of his personal items from the Cattle Ranch were still missing.

Given that Eastwood exercised control over Kahn’s property by preventing Kahn’s assistant from removing it and Gwaltney admitted to packing up Kahn’s items, there is a genuine issue of material fact as to whether Gwaltney and Eastwood possessed Kahn’s personal items that are missing. Consequently, Gwaltney and Eastwood were not entitled to summary judgment on Kalin’s conversion claim with regard to Kahn’s personal property.

As to Britt, there is no evidence that Britt possessed or exercised control over Kahn’s personal property, and thus he was entitled to summary judgment on the conversion claim.

(b) The Cattle Ranch.

The Kahn Plaintiffs assert that, since Gwaltney was no longer a valid trustee at the time, the sale of the Cattle Ranch was unauthorized and amounted to conversion. To the extent the Kahn Plaintiffs seek the recovery of real property, that claim must fail because an action for conversion will not lie to recover real property. See Levenson v. Word, 294 Ga. App. 104, 105 (1), n. 2 (668 SE2d 763) (2008).

As for the personal property on the Cattle Ranch belonging to Kahn Cattle Company, such as farm equipment, vehicles, and farm inventory, the Kahn Plaintiffs did not raise this claim below. Therefore, they are precluded from raising this claim on appeal. See Locke’s Graphic & Vinyl Signs, supra, 285 Ga. App. at 828 (2) (a).

7. Kahn contends that the trial court erred in granting summary judgment to Gwaltney, Britt, and Eastwood on his claim for trespass and wrongful eviction for entering the Cattle Ranch and excluding him from the property. Specifically, Kahn argues that the trial court erred in concluding the evidence did not support a landlord-tenant relationship even though RK Trust allowed Kahn to stay at the Cattle Ranch, because Kahn stayed at the property for no more than ten days in 2010, he maintained a separate residence, and he did not have a lease agreement. We agree that factual questions remain as to this issue.

Under OCGA § 44-7-1 (a), a landlord-tenant relationship is created when “the owner of real estate grants to another person, who accepts such grant, the right simply to possess and enjoy the use of such real estate either for a fixed time or at the will of the grantor.” (Emphasis supplied.) There is no dispute that Kahn had been allowed to stay at the Cattle Ranch periodically without having to pay rent and without a formal lease agreement and kept personal property there. Although the defendants argue that Kahn’s failure to pay rent precluded the existence of a landlord-tenant relationship, “neither a written lease agreement nor the payment of rent is required for a landlord-tenant relationship to exist.” (Footnote omitted.) McCullough v. Reyes, 287 Ga. App. 483, 486 (1) (651 SE2d 810) (2007); see also May v. May, 165 Ga. App. 461, 462 (1) (300 SE2d 215) (1983) (“The payment of rent is not essential to the creation of a tenancy at will.”) (citation and punctuation omitted). Therefore, a genuine issue of material fact remains as to whether Kahn was a tenant at will of RK Trust and, as a result, whether the defendants were liable for not following the dispossessory procedures. See Ikomoni v. Executive Asset Mgmt., 309 Ga. App. 81, 84 (2) (709 SE2d 282) (2011) (“If the landlord evicts a tenant without filing a dispossessory action and obtaining a writ of possession, or without following the dispossessory procedures for handling the tenant’s personal property, the landlord can be held liable for wrongful eviction and trespass.”). Consequently, the trial court erred in granting summary judgment to Gwaltney, Britt, and Eastwood on Kahn’s wrongful eviction and trespass claim.

8. The Kahn Plaintiffs next contend that the trial court erred in granting summary judgment to the defendants on their claims for punitive damages and attorney fees. We agree in part.

OCGA § 13-6-11 authorizes a jury to award plaintiffs the expenses of litigation “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff[s] unnecessary trouble and expense [.]” Ordinarily, it is for the jury to determine the existence of bad faith or stubborn litigiousness, and “only in the rare case where there was absolutely no evidence to support the award of expenses of litigation would the trial court be authorized to grant summary adjudication on such issues.” (Punctuation and footnote omitted.) Brito v. Gomez Law Group, 289 Ga. App. 625, 628 (2) (658 SE2d 178) (2008).

To support an award of punitive damages, there must be clear and convincing evidence that the defendant’s actions showed “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). “A breach of fiduciary duties is sufficient to support an award of punitive damages. Whether punitive damages should be awarded for a breach of fiduciary duties is ordinarily a question for the jury.” (Citation omitted.) Home Ins. Co. v. Wynn, 229 Ga. App. 220, 223 (2) (493 SE2d 622) (1997). Conversion and wrongful eviction and trespass can also support an award of punitive damages. See Felker v. Chipley, 246 Ga. App. 296, 298 (2) (540 SE2d 285) (2000) (conversion); Swift Loan & Finance Co. v. Duncan, 195 Ga. App. 556, 557-558 (2), (5) (394 SE2d 356) (1990) (trespass based on wrongful eviction); Real Estate Loan Co. v. Pugh, 47 Ga. App. 443 (1) (170 SE 698) (1933) (wrongful eviction).

As set forth above, we have held that genuine issues of material fact remain as to some of the breach of fiduciary duty claims made against Gwaltney; the conversion claims asserted against Gwaltney, Eastwood, and Britt & Associates; and the wrongful eviction and trespass claims against Gwaltney, Britt, and Eastwood. Since the trial court erred in granting summary judgment on several of the Kahn Plaintiffs’ substantive claims, the trial court likewise erred in granting summary judgment on their derivative claims for attorney fees and punitive damages. See Racette v. Bank of America, 318 Ga. App. 171, 181 (6) (733 SE2d 457) (2012).

9. The Kahn Plaintiffs also contend that the trial court erred in failing to grant their motion for partial summary judgment because the undisputed facts show that Gwaltney breached a fiduciary duty by remaining as co-trustee following the conclusion of McSweeney, Britt and Neimark were negligent for taking direction from Gwaltney after his trustee term expired; and Britt, Neimark, and Eastwood breached their fiduciary duties to RK Trust by taking direction from Gwaltney. We disagree.

As noted above in Division 3 (c), Gwaltney was entitled to summary judgment on the Kahn Plaintiffs’ claim that he breached his fiduciary duty by remaining as co-trustee because such actions were ratified. For similar reasons, Britt and Neimark are entitled to summary judgment on claims that they were negligent for taking direction from Gwaltney. Accordingly, the Kahn Plaintiffs were not entitled to summary judgment on these claims.

Likewise, the Kahn Plaintiffs were not entitled to summary judgment on claims against Gwaltney for hiring Britt to handle the Slechta suit, the auction of the Cattle Ranch, and the handling of Brock’s commission because, as discussed above in Division 3, genuine issues of material fact remain. Moreover, for the reasons stated below, there are questions of fact as to whether Britt and Neimark committed legal malpractice or breached their fiduciary duties to RK Trust. Therefore, we affirm the trial court’s denial of summary judgment to the Kahn Plaintiffs.

Case No. A14A1016

10. Neimark contends that the trial court erred in denying his motion for summary judgment on the Kahn Plaintiffs’ claims for negligence, professional negligence, and breach of fiduciary duty relating to Neimark’s role in the transfer of Kahn’s assets to RK Trust. Specifically, Neimark argues that RK Trust failed to establish proximate cause because the RK Trust’s spendthrift provision was subject to attack based on improper distributions to Kahn predating Neimark’s involvement with RK Trust. We disagree.

To prevail on a legal malpractice claim, a client must prove that (1) he employed the defendant attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) this failure was the proximate cause of damages to the client. To establish proximate cause, the client must show that but for the attorney’s error, the outcome would have been different.... The defendant attorney is entitled to summary judgment if he shows that there is an absence of proof adduced by the client on the issue of proximate cause.

(Footnote omitted.) Millsaps v. Kaufold, 288 Ga. App. 44, 44-45 (653 SE2d 344) (2007). It is well settled that proximate cause is generally an issue for the jury, and there may be more than one proximate cause of an injury. Keith v. Beard, 219 Ga. App. 190, 193 (2) (464 SE2d 633) (1995).

The evidence shows that from 1998 to 2002, Kahn made more than $31 million in unauthorized trust distributions to himself. Neimark argues that, regardless of any action on his part, the McSweeney plaintiffs would have been able to defeat the spendthrift provision of RK Trust because of the improper distributions to Kahn. In support of his argument, Neimark relies upon Restatement (Third) of Trusts § 58, cmt. b (1) (2003), which pertinently provides:

An intended spendthrift restraint is also invalid with respect to a nonsettlor’s interests in trust property over which the beneficiary has the equivalent of ownership, entitling the beneficiary to demand immediate distribution of the property. Thus, if an income beneficiary also holds a presently exercisable general power of appointment (that is, a power currently to compel distribution of trust property to the power holder), a spendthrift restraint will not prevent the beneficiary’s creditors or transferees from reaching the property that is subject to the power.

(Emphasis supplied.)

In this case, however, by the time Slechta was filed, Kahn no longer had the power to compel distribution of the trust property since he had delegated his appointment to Gwaltney. Therefore, Neimark’s reliance upon the Restatement is unavailing. Moreover, although Slechta was filed primarily to recover the unpaid McSweeney judgment of approximately $3.5 million owed by Kahn, the Slechta plaintiffs also sought treble damages for the fraudulent transfer of assets and RICO violations based on such transfers. Neimark helped execute the assets transfer, which experts testified was done poorly. Since the Slechta settlement was approximately $4 million, more than Kahn’s personal obligation under McSweeney, and RK Trust incurred damages by having to litigate Slechta, there is a genuine issue of material fact as to whether Neimark’s actions proximately caused injuries to RK Trust. Therefore, the trial court properly denied Neimark’s motion for summary judgment on RK Trust’s claims for negligence, professional negligence, and breach of fiduciary duty. Since these claims survived summary judgment, the trial court also erred in granting Neimark summary judgment on the Kahn Plaintiffs’ related claims for attorney fees and punitive damages. See Racette, supra, 318 Ga. App. at 181 (6).

Case No. A14A1017

11. Britt and his law firm, Britt & Associates, contend that the trial court erred in denying their motion for summary judgment on the Kahn Plaintiffs’ negligence and breach of fiduciary duty claims for not properly advising Kahn and RK Trust about the risks of the assets transfer and poorly managing the transfer. We disagree.

There is conflicting evidence as to whether Britt properly advised Kahn, as co-trustee, regarding the risks associated with assets transfer. Britt testified that, upon being hired to represent RK Trust, Kahn and Union rejected his advice to either file a declaratory judgment and have a court place the assets from the loan proceeds into a constructive trust or, alternatively, execute deeds to secure debt so that RK Trust had a security interest in the properties Kahn purchased with RK Trust money. Kahn did not deny having received Britt’s proposals, but testified that he only agreed to the assets transfer because Britt threatened to sue Kahn on behalf of the trust if he did not proceed with this option. Contrary to Britt’s arguments, the above conflicts in the evidence preclude summary judgment on the issue of whether Britt was negligent in advising RK Trust and Kahn regarding the assets transfer. See Rogers, supra, 203 Ga. App. at 416 (2) (attorney’s liability extended to persons who would fore-seeably rely on attorney’s advice regarding assets transfer).

Like Neimark, Britt argues that RK Trust cannot establish proximate cause, but we have rejected these arguments above. In light of these conflicts in the evidence, along with the evidence showing that the assets transfer was poorly executed, Britt was not entitled to summary judgment on the Kahn Plaintiffs’ claims that he was negligent and breached a fiduciary duty.

12. Britt contends that the trial court erred in failing to grant summary judgment to Britt & Associates on Kahn’s conversion claim. We disagree because there is some evidence showing that an employee of Britt’s law firm may have removed identified boxes of Kahn’s personal files from the Cattle Ranch. Therefore, the trial court correctly denied summary judgment to Britt & Associates on the conversion claim with respect to Kahn’s personal property.

In sum, in Case No. A14A1015, we affirm the trial court’s rulings that: Britt and Neimark were entitled to summary judgment on the claim that they were negligent in allowing Gwaltney to become a temporary co-trustee; Eastwood was entitled to summary judgment as to negligence and breach of fiduciary duty claims; Gwaltney was entitled to summary judgment on negligence and breach of fiduciary duty claims related to verifying Kahn’s promissory notes, his role in the assets transfer, and his actions in remaining as co-trustee beyond the designated term; all of the defendants were entitled to summary judgment on the aiding and abetting claims; and Britt was entitled to summary judgment on the conversion claim. We also affirm the denial of the Kahn Plaintiffs’ motion for summary judgment. We reverse the trial court’s grant of summary judgment to Gwaltney on negligence and breach of fiduciary duty claims relating to the hiring of Britt to represent RK Trust in Slechta, selling the Cattle Ranch at auction, and handling Brock’s commission; Neimark on claims brought by Kahn individually; Gwaltney and Eastwood regarding the conversion of Kahn’s personal property; and Gwaltney, Eastwood, and Britt on Kahn’s claims for trespass and wrongful eviction. Additionally, we reverse the trial court’s rulings on the Kahn Plaintiffs’ request for attorney fees and punitive damages to the extent the substantive claims on which they are based survive.

In Case No. A14A1016, we affirm the denial of summary judgment to Neimark on claims that he was negligent and breached his fiduciary duty to RK Trust with respect to the asset transfer. In Case No. A14A1017, we affirm the denial of summary judgment to Britt on negligence and breach of fiduciary duty claims regarding the assets transfer, and affirm the denial of summary judgment to Britt & Associates on the conversion claim.

Judgment affirmed in part and reversed in part in Case No. A14A1015. Judgments affirmed in Case Nos. A14A1016 and A14A1017.

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

Decided November 17, 2014

Reconsideration denied December 15, 2014

Robbins Ross Alloy Belinfante Littlefield, Richard L. Robbins, Jeremy U. Littlefield, Kimberly K. Anderson, for Kahn et al.

Downey & Cleveland, W. Curtis Anderson, Blair J. Cash, Hawkins Parnell Thackston & Young, Kim M. Jackson, Bryan M. Grant-ham, Thomas R. Mock, Sutherland Asbill & Brennan, Thomas W. Curvin, Valerie S. Sanders, Tracey K. Ledbetter, Katherine M. Small-wood, Hall Booth Smith, Rush S. Smith, Jr., Crystal D. Filiberto, for Britt et al.

       James Union was also named as a defendant in the suit, hut the claim against him was stayed because he filed for bankruptcy. Union is not a party to these appeals.

       Kahn appealed this decision to the Eleventh Circuit Court of Appeals, which affirmed the jury’s verdict. Id. at 440.

       Kahn objected to certain terms of the Slechta settlement agreement, including terms regarding late payment fees, the period of time in which to sell the property, RK Trust’s obligation to accept increasingly low offers for the property, and the requirement that RK Trust deed the property to the Slechta plaintiffs in the event the property could not be sold. Kahn argued that these terms were unfavorable to him and the remainder beneficiaries because the value of the property was at least $8 million.

       While former OCGA § 53-12-194 (a) provided that “[n]o provision in a trust instrument is effective to relieve the trustee of liability for breach of trust committed in bad faith or intentionally or with reckless indifference to the interest of the beneficiary[,]” the document delegating Gwaltney as co-trustee is not a trust instrument. See Heiman v. Mayfield, 300 Ga. App. 879, 881-882 (1) (686 SE2d 284) (2009) (release and indemnification agreement between former trustee and beneficiary was not a trust instrument because it was executed long after creation of trust and reflected only the intentions of the beneficiaries and former trustee).

       Kahn asked Gwaltney to resign when Gwaltney refused to dismiss Britt as counsel for RK Trust.

       Neimark provides no argument nor citation to authority as to whether his actions were negligent, and therefore he has abandoned such argument for purposes of this appeal. See Court of Appeals Rule 25 (c) (2). Neimark’s arguments with respect to duties owed to Kahn personally have been decided in Kahn’s favor in Division 4 above.