text:
    15141.
    Williams v. Chambers.
   Bell, J.

A judgment granting or refusing a motion to open a default is not a final judgment, nor is a judgment sustaining or overruling a demurrer to such a motion. Bell v. Stewart, 116 Ga. 714 (43 S. E. 70); Farmers & Merchants Bank v. Pirkle, 9 Ga. App. 583 (1) (71 S. E. 946); Civil Code (1910), § 6138. The bill of exceptions contains no assignment of error upon any final judgment, and does not even show that any trial was ever had after the entry of default was opened. It is prematurely brought and this court is jurisdietionally unable to entertain it. The motion to dismiss is therefore sustained.

Decided March 13, 1924.

Motion to set aside default entry; from city court of Decatur— Judge Daley. September 29, 1923.

Jaclcson & Moore, for .plaintiff.

Chambers, Dickey •& Ciiambers, for defendant.

Writ of error dismissed.

Jenkins, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15156.
    BOWDON CONSTRUCTION COMPANY et al. v. BANK OF BOWDON.
    The only question for decision by this court being whether the evidence authorized a finding against the defendant’s affirmative plea, and there being evidence to support the finding against it as made by the trial judge, to whom the case was submitted for Trial without a jury, this court is without authority to set aside his judgment.
    Decided March 13, 1924.
    Complaint; from city court of1 Carrollton—Judge Hood. October 15, 1923.

      S. J. Boykin, Boykin & Boykin, for plaintiffs in error.

      B. Eolderness, contra.
   Bell, J.

This was an action upon a promissory note. Judgment by default was entered for the plaintiff in June, 1923. On September 12 the defendant filed a motion to open the default, and tendered a plea that because of an agreement between the parties that the “due date-of this note'was to be extended to December 15, 1923, . . the suit should not proceed, and judgment should not be had against . . defendant at this term of the court, said suit having been prematurely brought.” The issues made by the motion and the proffered plea were submitted for trial together before the judge, “without the intervention of a jury.” On hearing the evidence the court granted the motion to open the default, but found against the plea, and again entered judgment for the plaintiff for the amount sued for. As the only exception is to this judgment, the nature of the motion to open the default is immaterial; likewise as to the evidence, except in so far. as it was also pertinent to the plea which was heard and passed upon at the same time. The bill of exceptions recites that at this trial the “defendants admitted a prima facie case in behalf of plaintiff and required no proof.” The assignment of error is that the judgment was error because “contrary to law, contrary to evidence, and . . the same is not a legal termination of said case.”

1. The suit was for principal, interest, and attorney’s fees, and a further sum which the plaintiff alleged it had expended for insurance upon property conveyed to secure the debt, under an agreement that the expense so incurred would be added as principal to the note. The recital in the bill of exceptions that the “defendant admitted a prima facie case in behalf of the plaintiff and required no proof,” fairly construed, would imply that a prima facie case was admitted as to each item sued for, and the judgment, therefore, as to no item was unsupported by evidence because of a failure of the plaintiff to bring proof of its allegations; The sole question is whether the evidence authorized a finding against the defendants’ affirmative plea. Indeed the court does not understand that the plaintiffs’ in error contend otherwise.

2. The evidence of the defendants would have warranted a finding that the plaintiff had agreed that upon the payment of $5000 by November 1, 1923, upon two notes, including the one sued upon, it would extend the maturity of the latter as the defendants alleged; but assuming that the agreement, if made, was supported by a consideration, the defendants’ evidence thereof was directly contradicted by the testimony of witnesses (the persons with whom the defendants contended the agreement was made) introduced by the plaintiff, and the finding of the trial court upon such conflicting testimony forecloses this issue of fact.

3.. The plaintiffs in error insist further that the judgment is erroneous for the reason that the evidence showed that defendants, in pursuance of the extension agreement, delivered to the plaintiff certain corporate stocks of the value of $2800, which were tendered and accepted as cash, and which should be credited. "Upon this question also the plaintiff took issue, and submitted proof to the effect that the stocks were delivered and accepted only as collateral security, with the understanding that it might sell the same and apply tlie proceeds upon the note, and that it had not made a sale thereof at the time of the trial. Thus the evidence did not demand a finding upon this issue in favor of the defendants. If the plaintiff’s contention was true, it was not required to credit the value of the stocks before it sold them, even if not until after judgment. Besides, there was no plea of partial payment.

4. The plaintiff in error is concluded by the rule that this court is without power to set aside the finding of a jury or trial judge upon a question of fact where there is any evidence to support it.

Judgment affirmed.

JenJcins, P. J., and Stephens, J., concur.


text:
    15209.
    Louisville & Nashville Railroad Co. v. Ernest.
   Bell, J.

1. Ordinarily tlie presumption of negligence which arises against a railroad, company on proof of injury to personal property by the running of its train is a presumption only of the negligence alleged in the plaintiff’s petition, but where the suit was instituted in a justice’s court, and was based upon a summons, according to the practice in such courts, and there was no petition alleging any specific acts of negligence, the presumption will apply to, and therefore authorize a finding upon, any theoi-y of negligence deducible from the facts appearing from the evidence upon the trial (even upon appeal to the superior court, the case being tried therein upon the original summons), and the plaintiff will be entitled to all legitimate inferences consistent with the facts that will authorize a finding that the defendant was negligent. Such inferences in behalf of the plaintiff, when taken in connection with the rebuttal testimony of the defendant, may or may not constitute an issue of fact as to negligence, according to the character and sufficiency of the rebuttal testimony. Ga. So. & Fla. Ry. Co. v. Converse, 29 Ga. App. 411 (1) (116 S. E. 20).

2. Even assuming that the testimony of the engineer and the fireman demanded a finding that they exercised all necessary diligence in keeping a lookout, and that in the exercise of ordinary care they could not have discovered the plaintiff’s dog any earlier than they did,—when the train was within 200 feet of it,—and that the dog’s presence was discovered too late to bring the train, which was running at 20 or 25 miles per hour, to a stop before reaching the point upon the track where the dog was about to cross it, the jury were authorized to find from the evidence, aided by the presumption, that the engineer was negligent both in failing to cheek the speed of the train and in failing to sound an alarm after the dog was discovered approaching the track, and that such negligence was the cause of the dog’s death. The evidence did not demand the conclusion that the presumption of negligence was rebutted. Seaboard Air-Line Ry. v. McDonald, 19 Ga. App. 627 (2) (91 S. E. 1053); Seaboard Air-Line Ry. v. Moore, 20 Ga. App. 33 (92 S. E. 388); Southern Ry. Co. v. Sims, 22 Ga. App. 673 (2) (97 S. E. 108); Georgia Northern Ry. Co. v. Battle, 25 Ga. App. 308 (103 S. E. 714); Davis v. Carter, 27 Ga. App. 494 (108 S. E. 837); Western & Atlantic R. Co. v. Jones, 30 Ga. App. 488 (118 S. E. 500).

Decided March 13, 1924.

Appeal) from Gordon superior court—Judge Tarver. November 3, 1923.

Ttje, Peeples & Tye, J. G. B. Erwin, for plaintiff in error.

J. jS'. Paschall, contra.

3. The court did not err in overruling the motion for a continuance on account of the absence of a witness, where, even if the motion was otherwise sufficient, it was not shown either that the motion was not made for the purpose of delay or that the movant expected to be able to procure the testimony of the witness at the next term of the court. Civil Code (1910), § 5715; Simmons v. Mathis, 17 Ga. App. 588 (1) (87 S. E. 845).

4. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


author: Smith, Presiding Judge.

text:
    A11A0142.
    BENSON v. ASSET ACCEPTANCE, LLC.
    (712 SE2d 83)
   Smith, Presiding Judge.

This appeal results from our grant of Sandra Benson’s application for interlocutory review of the trial court’s denial of her summary judgment motion in a suit on open account brought against her by Asset Acceptance, LLC (“Asset Acceptance”), as assignee of Citibank, U.S.A., N.A. (“Citibank USA”). Benson contends that she was entitled to summary judgment in her favor because Asset Acceptance failed to present evidence showing that it was a real party in interest entitled to bring this suit against her. We agree and therefore reverse.

The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee. Further, the writing must identify the assignor and assignee.

(Citations and punctuation omitted.) Wirth v. Cach, LLC, 300 Ga. App. 488, 489 (685 SE2d 433) (2009). In this case, the record shows that Citibank (South Dakota), N.A. (“Citibank South Dakota”) issued a Diner’s Club credit card to Benson. It also shows that Citibank USA assigned its rights under certain accounts to Asset Acceptance. It fails to demonstrate, however, that Citibank South Dakota assigned its rights in Benson’s account to Citibank USA or that Citibank USA otherwise acquired the rights to Benson’s account with Citibank South Dakota. Accordingly, the trial court erred by denying Benson’s motion for summary judgment grounded upon a lack of evidence that Asset Acceptance was the real party in interest. Hutto v. CACV of Colorado, 308 Ga. App. 469 (1) (707 SE2d 872) (2011); Green v. Cavalry Portfolio Svcs., 305 Ga. App. 843, 844 (700 SE2d 741) (2010); Wirth, supra, 300 Ga. App. at 489-491.

Decided June 15, 2011.

Cohen, Pollock, Merlin & Small, Anna M. Humnicky, Kevin T. O’Sullivan, for appellant.

Michael S. Peskin, James T. Freaney, for appellee.

Judgment reversed.

Mikell and Dillard, JJ., concur.

       Asset Acceptance submitted an affidavit from one of its lawyers stating that he found a public record during “research” titled “Community Reinvestment Act Performance Evaluation.” A portion of this 11-page document states, “Then, Citibank USA acquired all of the . . . Diner’s Club activities of affiliate Citibank (South Dakota), N.A.” We cannot rely on the hearsay within this unauthenticated document to establish that Citibank USA acquired an interest in Benson’s Diner’s Club account held by Citibank South Dakota. See McKinley v. State, 303 Ga. App. 203, 208 (2) (692 SE2d 787) (2010). “Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment.” (Citation, punctuation and footnote omitted.) Latimore v. City of Atlanta, 289 Ga. App. 85, 86 (2) (656 SE2d 222) (2008).


text:
    A11A0215.
    GODDARD v. THE STATE.
    (712 SE2d 528)
   Smith, Presiding Judge.

Allen Goddard appeals from the trial court’s denial of his plea in bar on statutory and constitutional speedy trial grounds. Because the trial court erred in part by denying Goddard’s plea in bar on statutory grounds and failed to make the requisite findings pursuant to Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), on the constitutional grounds, we affirm in part, reverse in part, vacate the judgment in part, and remand this case for the trial court to make the appropriate findings.

The record reveals that Goddard was arrested for snatching a cash box from an employee of a tanning business, and subsequently indicted for robbery in Newton County on February 19, 1993. On April 12, 1993, the State received a letter from Goddard to the “Newton County Court” stating that he was incarcerated in Fulton County under an alias and that he thought it would be best to “let Newton County know where I’m at before my court date comes up.” On December 28, 1993, Goddard was charged by accusation with reckless driving and fleeing and attempting to elude in connection with the robbery. Less than a month later, on January 20, 1994, Goddard filed a demand for speedy trial pursuant to OCGA § 17-7-170 seeking an acquittal on all three charges filed in Newton County.

Goddard was released from jail in Fulton County on an unrelated offense on February 1, 1994. On February 11, 1994, the clerk of court mailed Goddard’s notice of trial on the Newton County charges to the wrong address, and when his case was called for trial on February 28, 1994, Goddard failed to appear. The trial court issued a bench warrant for his arrest, but the case was subsequently dead-docketed. Goddard claims, and the State does not dispute, that from March 14, 1994 until he was finally arrested and transported to Newton County on March 25, 2010, Goddard was in and out of jail in at least two other counties.

Goddard filed a plea in bar on both constitutional and statutory speedy trial grounds on May 19, 2010. The trial court summarily denied Goddard’s plea in bar on both grounds.

1. Plea in bar on statutory speedy trial grounds. Goddard was charged by accusation with reckless driving and fleeing and attempting to elude on December 28, 1993, during the October term of court. On January 20, 1994, during the January term of court, he filed his demand for trial pursuant to OCGA § 17-7-170. His demand was therefore timely as it was filed in the term following the term in which he was indicted. See OCGA § 17-7-170 (a) (defendant may enter a demand for speedy trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter).

If the defendant is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter, provided that at both court terms there were juries impaneled and qualified to try the defendant, the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

OCGA § 17-7-170 (b). The State was therefore required to try Goddard, at the latest, by the end of the April 1994 term of court. But

[i]f the failure to try the defendant results from a voluntary act of the defendant or the defense counsel which results in a continuance of the case to a time outside the period of the demand, however, discharge and acquittal are not required. In such cases, the defendant will be found to have waived his demand for a speedy trial. The burden of showing such waiver is on the State.

(Citations omitted.) Sykes v. State, 236 Ga. App. 518, 520 (2) (511 SE2d 566) (1999). The State presented evidence that Goddard failed to appear on January 28, 1994, the date set for trial. But Goddard presented evidence that the notice of trial was sent to the wrong address. Under these circumstances, we cannot say that the State met its burden of showing that Goddard waived his statutory right to a speedy trial by a voluntary act. See, e.g., State v. Bell, 274 Ga. 719, 720 (2) (559 SE2d 477) (2002); Gifford v. State, 301 Ga. App. 50, 51 (686 SE2d 831) (2009).

As Goddard did not waive his statutory right to a speedy trial on the accusations charging him with fleeing and attempting to elude and reckless driving, and the State failed to try him during the term in which the demand was filed or the next succeeding regular term of court, Goddard is entitled to an acquittal on those charges. See Bond v. State, 212 Ga. App. 608, 609-610 (442 SE2d 482) (1994).

Goddard’s statutory demand for speedy trial was ineffective, however, with regard to his robbery charge. The demand, filed in January 1994, was filed four terms after he was indicted for robbery in February 1993. Goddard therefore waived his statutory speedy trial demand to the robbery indictment. See OCGA § 17-7-170; Parks v. State, 239 Ga. App. 333, 334-335 (521 SE2d 370) (1999). The trial court therefore did not err in denying Goddard’s plea in bar on statutory speedy trial grounds with regard to the robbery charge.

2. Plea in bar on constitutional speedy trial grounds.

When presented with a motion and evidence on the issue of whether a defendant’s constitutional right to a speedy trial has been denied, the trial court must balance [the] four [Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972)] factors: (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) prejudice to the defendant. These factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.

(Citation, punctuation and footnotes omitted.) Bryant v. State, 265 Ga. App. 234, 235 (593 SE2d 705) (2004). We review the trial court’s denial of a plea in bar on speedy trial grounds for an abuse of discretion. Lynch v. State, 300 Ga. App. 723, 724 (1) (686 SE2d 268) (2009).

Decided June 15, 2011.

Anthony S. Carter, for appellant.

W. Kendall Wynne, Jr., District Attorney, Clint C. Malcolm, Assistant District Attorney, for appellee.

Here, the trial court denied Goddard’s plea in bar in a three-sentence order which states in part: “Based on the reasons placed on the record at the hearing, this court hereby DENIES defendant’s above captioned motions.” The hearing transcript reveals that although the court asked trial counsel questions concerning the Barker factors, it made no findings of fact with regard to those factors, making findings only with regard to the statutory speedy trial grounds.

In other circumstances, a summary order entered by a trial court generally is sufficient to enable the appellate court to determine whether the broad discretion vested in the trial court has been abused. However, in a case implicating the defendant’s right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and applicable to the states by the Due Process Clause of the Fourteenth Amendment, it is essential for the trial court to enter findings of fact and conclusions of law consistent with the Barker v. Wingo factors outlined herein.

(Citations, punctuation and footnote omitted.) Bryant, supra, 265 Ga. App. at 236.

We therefore vacate the trial court’s order as it concerns Goddard’s plea in bar on constitutional speedy trial grounds and remand this case for the entry of a proper order pursuant to Barker. See id.; see also Higgenbottom v. State, 288 Ga. 429, 431 (704 SE2d 786) (2011).

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded.

Mikell and Dillard, JJ., concur.

       The terms of the Superior Court of Newton County commence on the second and third Mondays in January, April, July, and October. OCGA § 15-6-3 (2) (A).


text:
    A11A0240.
    RIDGEWAY v. THE STATE.
    (712 SE2d 84)
   Smith, Presiding Judge.

Nathaniel Ridgeway appeals from his conviction of theft by receiving stolen property, asserting that insufficient evidence supports his conviction. We disagree and affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that the victim reported to the police that a yellow motorcycle had been stolen from his garage. The “49cc dirt bike” stood only “a couple of feet from the ground,’’was brand new at the time it was stolen, and had been purchased by the victim for his young children.

The next day, the officer who responded to the theft report received a dispatch about “individuals riding a motorbike” two to three miles away from where the dirt bike had been stolen. When the officer arrived, he saw Ridgeway riding a yellow dirt bike that matched the description of the one that had been stolen the day before. Upon request, Ridgeway verbally gave the officer his personal information and explained that he had received the dirt bike from someone named “Joe.”

The officer asked the victim to come look at the dirt bike and released it to the victim after the victim identified it as the one that had been stolen the day before. The victim testified the dirt bike “was almost demolished ... it was just in pieces, plastic was broken on it, the muffler was pulled off of it, the kickstand was broken, [and] the brakes were broken.” After the victim claimed the dirt bike, the officer arrested Ridgeway. Ridgeway was 19 years old at the time of his arrest.

Ridgeway testified that he saw someone riding the yellow dirt bike for the first time the night before he was arrested. He testified that he woke up around 11:00 a.m. the next morning and smoked a cigarette on his front porch with Sean and Marcus Jackson. When a person Ridgeway referred to as “Moe” pulled up approximately 15 minutes later on the yellow dirt bike, the Jacksons and Ridgeway asked if they could ride it. Ridgeway rode first and saw his friend, Jahmal Woodley, after he had been riding for a couple of minutes. Woodley “was walking down the street coming from Alika’s . . . house,” and Ridgeway talked with him for about 20 seconds about how Woodley had just ridden the dirt bike. About 30 seconds after Ridgeway resumed riding the dirt bike, he was stopped by the police. Ridgeway asked Woodley to tell his parents he was “in trouble” while he was sitting in the back of the police car. He also asked him to “find Moe or something, because we was in [an] emergency situation.”

Ridgeway testified that he told the police officer about Moe because he “didn’t want to get arrested for something that I didn’t know really anything about.” He testified that he did not notice anything about the dirt bike that made him think it might have been stolen. And, he had seen Moe “on more than three to four dirt bikes” in the neighborhood. He “never knew if any of them were stolen. . . . We never, I mean, asked him, because we wouldn’t think that it was stolen or anything like that.” Although he had known his “good friend” Moe for “about two years,” he did not know his last name or his phone number. He did know the last name of the three other friends who were with him that morning.

Although Ridgeway knew the specific house in which Moe lived and told the officer he could lead them to Moe’s house, he never gave information about Moe’s address to the police or attempted to locate Moe after his arrest. He claimed that he “heard from all the kids in the neighborhood that they haven’t seen him since the arrest. So really we was thinking that he just ran, cause we — he don’t — he probably didn’t know he stole it so he didn’t want to get in trouble.” Ridgeway testified that he never saw Moe again after the day he was arrested.

Marcus Jackson testified that he and his cousin Sean Jackson were at Ridgeway’s house around 12:00 p.m. when Moe “came around the corner on a little mo-ped, the motor scooter.” He identified Moe as “[a] friend in the neighborhood who stay right around the street from me.” Marcus Jackson and Ridgeway asked to ride the dirt bike, and Ridgeway took his turn first. Three minutes after Ridgeway started riding, Jahmal Woodley “came from around the corner where [Ridgeway] was,” and told them that Ridgeway had been arrested. After hearing this information, Moe walked away and Marcus Jackson never saw him again. Jackson testified that Moe was approximately 20 years old.

Sean Jackson testified that when he and Marcus Jackson were at Ridgeway’s house, Moe drove up, “and he was asking us, did we want to ride it, because it was good looking, new. So Jahmal hops on the bike first and brings it back down. Nathaniel hops on the bike. In less than three minutes, the police all up — all up at the top of the street. ...” He learned that Ridgeway had been arrested from Woodley, saw Moe walk away, and never saw him again. Ridgeway denied that Woodley was at his house the morning of his arrest as related by Sean Jackson.

Jahmal Woodley testified that he first saw the dirt bike when Moe brought it to his house around 9:00 or 10:00 a.m. He testified that he knew Moe from the neighborhood for two years. He asked if he could ride the dirt bike and rode it for approximately 15 or 20 minutes going “around the neighborhood like a good two or three times.” After taking his ride, he gave the dirt bike back to Moe at Alika’s house. Immediately afterward, he saw Ridgeway riding the bike and then saw Ridgeway with two or three police officers. After Ridgeway was arrested, Woodley went to Moe’s house, but “[n]obody came to the door” and he never saw Moe again.

Ridgeway asserts this evidence is insufficient to support his conviction because the State failed to prove that he knew or should have known that the dirt bike had been stolen. We disagree.

A person commits the offense of theft by receiving stolen property when he receives . . . stolen property which he knows or should know was stolen unless the property is received . . . with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

OCGA § 16-8-7 (a).

In a theft by receiving case, guilty knowledge is not shown by mere possession of the goods. However, possession coupled with other circumstances and evidence may be used to infer the knowledge required by statute. Knowledge may be inferred from circumstances which would excite the suspicions of an ordinarily prudent man. Whether the explanation of the possession offered by the defendant in his statement alone is a satisfactory explanation, is a question for the jury.

Beadles v. State, 151 Ga. App. 710 (1) (261 SE2d 447) (1979).

In this case, the State did not rely solely upon mere possession to support its case against Ridgeway. It also presented additional evidence from which the jury could infer that Ridgeway knew or should have known that the dirt bike was stolen. Specifically, evidence that the “brand new” dirt bike had been physically abused in a manner inconsistent with ownership in a 24-hour period and that it had been borrowed from an alleged “good friend” with an unknown last name who disappeared after Ridgeway’s arrest. See Turntime v. State, 206 Ga. App. 226, 227 (1) (424 SE2d 877) (1992) (affirming theft by taking conviction based in part upon poor state of repair of stolen late model car upon recovery and defendant’s “testimony that he had borrowed the car from a person he barely knew whose last name he did not know”). The jury could have inferred that Ridgeway was not being truthful from the inconsistencies in the testimony of Ridgeway, Woodley, and the Jacksons about what transpired that morning, their lack of knowledge of Moe’s last name but knowledge of one another’s last names, and Moe’s alleged immediate disappearance after living in the neighborhood for two years. See Battle v. State, 244 Ga. App. 599, 602-603 (1) (536 SE2d 273) (2000) (jury could conclude only reasonable hypothesis was defendant’s guilt based upon inconsistencies and implausibility of defendant ’ s testimony).

Decided June 15, 2011.

W. Kendall Wynne, Jr., District Attorney, Anne M. Kurtz, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       The officer’s incident report identified “Joe” as the name of the person from whom Ridgeway obtained the dirt bike.

       The police officer acknowledged during cross-examination that “Joe and Moe sound a lot alike,” and also agreed with defense counsel’s statement that maybe Ridgeway “mumbled or misspoke and meant Moe, he could have . . . said Joe or you could have misheard Joe, when he actually said Moe.”


author: Mikell, Judge.

text:
    A11A0252, A11A0253.
    JIMENEZ et al. v. CHICAGO TITLE INSURANCE COMPANY; and vice versa.
    (712 SE2d 531)
   Mikell, Judge.

Jose Jimenez and Feliberto Jimenez sued Chicago Title Insurance Company for failing to honor its agreement to insure the Jimenezes’ title to certain DeKalb County real property. Chicago Title did not answer the complaint but appeared to contest damages. After a bench trial, the trial court (i) awarded the Jimenezes $90,000 to account for their loss of title to .93 acres of real property (Parcel 1), (ii) found no liability and no damages associated with the Jimenezes’ claim that they did not receive marketable title to an additional two-acre tract of real property (Parcel 2), and (iii) declined to award attorney fees or penalties. In Case No. A11A0252, the Jimenezes contend that the trial court erred in failing to award damages for the loss of Parcel 2 and in failing to award attorney fees and penalties for bad faith under OCGA § 33-4-6. In Case No. A11A0253, Chicago Title claims that the trial court erred in failing to grant its motions for involuntary dismissal and that the judgment is not supported by the evidence. For the reasons set forth below, we find no merit in the claims of error asserted by either the Jimenezes or Chicago Title, and we affirm in both cases.

The complaint shows the Jimenezes purchased certain DeKalb County real property in May 2006. At the closing, the Jimenezes paid for a title insurance policy to be issued by Chicago Title. The real property purportedly conveyed by the seller included Parcel 1, but Parcel 1 had been previously deeded by the seller to a third party, Richard Gullett. After the closing, Gullett pursued a successful action to quiet title to Parcel 1. The Jimenezes also thought they were buying Parcel 2, but Parcel 2 was erroneously omitted from the legal description drafted by the closing attorney. The Jimenezes incurred attorney fees in defending Gullett’s quiet title action and in seeking compensation under the title policy. Despite numerous requests, the Jimenezes never received the actual title insurance policy from Chicago Title. They alleged that Chicago Title failed to honor the claims submitted under the title insurance policy.

Case No. A11A0252

1. The trial court held that Chicago Title was not liable for Parcel 2 because Parcel 2 was not included in the deed from the seller, and that the Jimenezes also failed to carry their burden of proving damages. The Jimenezes contend that Chicago Title admitted by its default that marketable title to Parcel 2 was not vested with the Jimenezes and that they were therefore only required to prove the value of Parcel 2 to recover damages. We disagree.

The Jimenezes’ complaint sets forth a title insurance claim. The parties stipulated below that an “ALTA” form policy was applicable to the dispute. In their closing argument brief, the Jimenezes argued that they were entitled to damages because their title to Parcel 2 is unmarketable under the terms of the ALTA policy. The Jimenezes further contend on appeal that Chicago Title’s “default admitted that the terms of the ALTA policy would be controlling as to the responsibility for damages of Chicago Title.”

A default “operates as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the” complaint. Chicago Title’s failure to answer the complaint did not, however, lead to the admission of conclusions of law, forced inferences, and facts not well pled. Relevant to Parcel 2, the complaint alleges that “[t]he plaintiffs were to have received title to the property that was described in a plat and legal description drafted by the closing attorney who was acting as Defendant’s agent.” Further, “[d]ue to errors on the part of the closing attorney, the Plaintiffs did not receive certain portions of the real property. The error was an incorrect legal description used.” According to the complaint, the Jimenezes paid for a title insurance policy at closing, although they never received the actual policy. The complaint does not specify what the parties agreed that the title insurance policy would insure.

At trial, Chicago Title did not contest its agreement to insure title to the property described in the deed the Jimenezes received from the seller. This included Parcel 1, the property that had been previously sold by the seller to Gullett. Chicago Title took the position, however, that considering the facts alleged in the complaint it had no liability for Parcel 2, which was omitted from the legal description. This argument appears well-founded because “[tjitle insurance insures only the warranty of title contained in the deed.” Pretermitting whether the complaint could support a claim in tort arising out of a breach of duty of Chicago Title’s agent in preparing the legal description, the complaint does not establish by well-pled facts, nor the fair inferences to be drawn therefrom, that Chicago Title agreed to insure marketable title to property which was not conveyed to the Jimenezes by deed. It follows that the trial court did not err in refusing to award damages for breach of an agreement to insure title to Parcel 2.

2. The Jimenezes claim that the trial court incorrectly applied OCGA § 33-4-6 in finding that Chicago Title did not act in bad faith and was not liable for attorney fees and penalties thereunder. We disagree.

To establish liability for penalties and attorney fees under OCGA § 33-4-6, “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.” Since it imposes a penalty, the statute’s requirements are strictly construed.

In their complaint, the Jimenezes contended that they were entitled to attorney fees “allowed under the policy and allowed under Georgia law,” and they argue that Chicago Title’s liability is admitted by its default. “[W]hile a default operates as an admission of the well-pled factual allegations in a complaint, it does not admit the legal conclusions contained therein.” The well-pled factual allegation set forth in the complaint does not establish Chicago Title’s liability for attorney fees and penalties under OCGA § 33-4-6.

The Jimenezes also argue that the evidence showed that they demanded that Chicago Title pay their claim under the policy and that Chicago Title acted in bad faith in delaying payment. Bad faith may be shown by demonstrating that under the policy “and under the facts surrounding the response to that demand, the insurer had no ‘good cause’ for resisting and delaying payment.” The determination of bad faith is for the trier of fact. Although the Jimenezes argue that Chicago Title failed to present evidence from a claims adjuster or an expert witness as to its process in evaluating the claim, “the insured bears the burden of proving that the refusal to pay the claim was in bad faith.”

The evidence shedding light on the Jimenezes’ title insurance claims and Chicago Title’s response thereto was generally limited to a series of letters exchanged between the Jimenezes’ attorney and representatives of Chicago Title. The letters show that after notifying Chicago Title in February 2008 of Gullet’s action to quiet title to Parcel 1, the Jimenezes’ attorney threatened in a May 12, 2008 correspondence to sue Chicago Title in view of “the failure of your company to honor the coverage issued.” Chicago Title did not attempt to settle the claim until October 2008. The letters also show, however, that Chicago Title did not deny coverage, but responded to the claim by stating its intent to investigate; that it hired an appraiser to evaluate the Jimenezes’ loss; and that Chicago Title tendered a check for $64,610 in light of that evaluation. The tender was rejected by the Jimenezes because they disagreed with the appraiser’s valuation. Setting aside the issue of whether the dispute as to the valuation of the loss precluded a bad faith award, the trial court could conclude that Chicago Title did not, without good cause, resist or delay payment of a claim covered by the policy, but delayed its response to the Jimenezes’ demand for performance under the policy because it had not completed its investigation into the amount of the loss. As the trier of fact, the trial court was entitled to find that Chicago Title’s actions were not motivated by bad faith, and we find no error.

Case No. A11A0253

3. Chicago Title contends that the evidence was insufficient to support the trial court’s award of damages for the loss of title to Parcel 1, and that the trial court erred in denying its motions for involuntary dismissal at the close of the Jimenezes’ case and at the close of evidence. We disagree.

(a) Where the trial court is sitting as the trier of fact, we will not disturb its ruling on a motion for involuntary dismissal under OCGA § 9-11-41 (b) if there is any evidence to support the trial court’s findings. The trial court denied Chicago Title’s motions for involuntary dismissal because it concluded, in light of all of the evidence, “including circumstantial evidence and the reasonable inferences that flow from the evidence,” that the Jimenezes offered evidence of the diminishment in value of their property. Chicago Title contends that the Jimenezes did not produce any such evidence. We agree with the trial court.

Here, the seller purported to sell 10.5 acres of property to the Jimenezes but did not effectively convey title to an approximately one-acre portion of the property included in the deed, Parcel 1, because it was owned by Gullett. “If the property involved is described by boundaries and if a portion of the property within those boundaries was owned by someone other than the grantor in the warranty deed, this amounts to a defect in title.”

Under the ALTA policy, Chicago Title is liable for “[t]he difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy.” As aptly described by Chicago Title in its post-trial brief, “the measure of damages ... is the difference between the value of. . . the 10.5 acre purchased parcel and . . . the remaining 9.5-acre parcel.”

At trial, the Jimenezes’ appraiser opined as to the value as of the time of closing of the remaining 9.5-acre parcel (“Parcel 3”), thus providing direct evidence of one of the two variables for calculating damages. The Jimenezes’ appraiser also testified to the value of Parcel 1. Parcel 1 and Parcel 3, together, constituted the insured estate, and so the trial court had evidence that was at least probative as to the value of the entire purchased property. For example, Chicago Title’s appraiser, who was explicitly tasked with estimating the “difference in value of the whole . . . and the remainder,” proceeded to value “the 9’/⅛ acre parcel currently owned by the Jimenezes” (Parcel 3) and then “the one acre parcel owned by the Gulletts” (Parcel l). There was also extensive testimony as to the character of the properties at issue, comparable sales, and valuation methodologies, among other evidence, which the trial court could consider in inferring that the plaintiff had demonstrated a diminishment in value of the purchased property. The trial court was not required to conclude that the Jimenezes had “shown no right to relief.”

(b) Chicago Title also contends that there was no evidence to support the amount of damages awarded. “On appellate review of a bench trial, we must affirm the court’s award of damages if there is any evidence showing with reasonable certainty the amount of damages. So long as the award is within the range of the evidence adduced, we will affirm the trial court’s judgment.”

The trial court awarded the Jimenezes $90,000 to account the loss of title to Parcel 1. The trial court was thoroughly informed as to the condition, location, and possible and actual uses of the properties. The opinion testimony as to the value of Parcel 1 ranged from $64,100 to $120,000, the value of Parcel 3 was opined to be $560,000, and the trial court had sufficient information to determine with reasonable certainty the diminishment in value of the property purchased by the Jimenezes due to the loss of Parcel 1. The trial court’s award “was within the range of evidence presented, and it must be affirmed.”

Decided June 15, 2011.

Douglas R. Daum, for appellant.

Balch & Bingham, David J. Marmins, Elizabeth R. Johnson, for appellee.

Judgments affirmed.

Smith, P. J., and Dillard, J., concur.

       Excluding Parcel 1 and Parcel 2, the Jimenezes received approximately 9.5 acres of property from the seller. The Jimenezes’ title to this property is not at issue.

       The trial court awarded the Jimenezes damages associated with the loss of Parcel 1. Accordingly, the Jimenezes’ arguments as to Parcel 1, to the extent set forth in their appellate brief in Case No. A11A0252, are only indirectly relevant to that appeal. The Jimenezes also contend that the trial court relied on incompetent evidence in finding that the seller had agreed to correct the mistake in the legal description as to Parcel 2, leaving the Jimenezes’ undamaged by the omission. We do not reach this issue because we agree with the trial court’s conclusions as to liability.

       Only a form policy was entered into evidence, and it does not appear that an actual policy was issued. As argued by the Jimenezes’ attorney at trial, “[t]he basis of the lawsuit is we paid for a policy, we didn’t get it, [and] ... we sued on . . . what we should have gotten.”

       (Citations and punctuation omitted.) Stroud v. Elias, 247 Ga. 191, 193 (1) (275 SE2d 46) (1981).

       See id.

       (Citation and punctuation omitted.) Anderson v. Commonwealth Land Title Ins. Co., 284 Ga. App. 572, 575 (644 SE2d 414) (2007). Accord Lynburn Enterprises v. Lawyers Title Ins. Corp., 191 Ga. App. 710, 711 (382 SE2d 599) (1989).

       See Crawford v. Dammann, 277 Ga. App. 442, 453 (4) (c) (626 SE2d 632) (2006) (“[A] default does not preclude a defendant from showing that under the facts deemed admitted, no claim existed which would allow a plaintiff to recover.”) (footnote omitted).

       OCGA § 33-4-6 (a) provides in pertinent part:
      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. . . .

       (Citation omitted.) BayRock Mtg. Corp. v. Chicago Title Ins. Co., 286 Ga. App. 18, 19 (648 SE2d 433) (2007).

       Id.

       (Footnote and emphasis omitted.) Bridges v. Wooten, 305 Ga. App. 682, 683 (1) (700 SE2d 678) (2010).

       See Stroud, supra (admitted facts did not give rise to a conclusion of law that punitive damages were authorized).

       (Citation omitted.) Ga. Intl. Life Ins. Co. v. Harden, 158 Ga. App. 450, 454 (2) (280 SE2d 863) (1981).

        St. Paul Fire &c. Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (2) (358 SE2d 925) (1987).

       (Citation and punctuation omitted.) Progressive American Ins. Co. v. Horde, 259 Ga. App. 769, 770 (2) (577 SE2d 835) (2003).

       Under the ALTA policy, the insurer’s payment obligation arises when the “extent of loss or damage has been definitely fixed.”

       See, e.g., B. S. S. B., Inc. v. Owners Ins. Co., 2010 U.S. Dist. LEXIS 4106 (III) (C) (M.D. Ga. Jan. 20, 2010) (As insurer pointed to evidence showing that the reason for delay in payment was a dispute over how much was owed under the policy and there was a lack of evidence as to its bad faith, insurer was entitled to summary judgment on insured’s bad faith claim.).

       See, e.g., BayRock Mtg. Corp., supra, 286 Ga. App. at 19 (demand for immediate payment under policy did not support bad faith claim when the insurer had additional time to investigate the loss) (citation and punctuation omitted). The Jimenezes also assert that Chicago Title’s tender in settlement of their claim was not only untimely but was insufficient because it did not purport to cover their attorney fees in defending the quiet title action. This argument does not show error by the trial court in denying their bad faith claim. Under the ALTA policy Chicago Title was required to defend the insured in litigation against adverse claims, if requested, but the Jimenezes did not make such a request. Chicago Title was also authorized to pay the insured the loss or damage provided for under the policy as an alternative to defending third-party litigation. Although the ALTA policy also contemplates reimbursement to the insured of costs, attorney fees, and expenses “which were authorized by [Chicago Title],” the Jimenezes do not show that any such fees were authorized. Compare Atlantic Title Ins. Co. v. Aegis Funding Corp., 287 Ga. App. 392, 396 (1) (651 SE2d 507) (2007) (Rather than paying insured’s claims, insurer sued the insured, “relying on fanciful allegations of factual conflict to delay or avoid legitimate claims payment.”) (punctuation and footnote omitted).

       Although Chicago Title moved for directed verdict, in a nonjury case such motions are treated as motions for an involuntary dismissal under OCGA § 9-11-41 (b). See Rice v. Lost Mt. Homeowners Assn., 269 Ga. App. 351, 358 (8) (604 SE2d 215) (2004). Here, the trial court, as permitted by OCGA § 9-11-41 (b), also declined to render judgment before the close of evidence.

        Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 161 (1) (390 SE2d 52) (1990).

       (Citation and punctuation omitted) Wilkinson Homes, Inc. v. Stewart Title Guaranty Co., 271 Ga. App. 577, 580 (1) (a) (610 SE2d 187) (2005).

       This is consistent with the general method of computing damages for breach of a title insurance policy:
      [T)he measure of damage for a breach by an insurer under a policy insuring the title against encumbrances or encroachments is the difference between the value of the property when purchased with the encumbrance or encroachment thereon, and the value of the property as it would have been if there had been no such encumbrance or encroachment.
      (Citation omitted.) U. S. Life Title Ins. Co. v. Hutsell, 164 Ga. App. 443, 446 (1) (296 SE2d 760) (1982).

       See id. at 447 (1). (“Evidence was given of the appraised value of the property at the time of the purchase, considering the diminished quantity of the land.”). Compare Dept. of Transp. v. Morris, 263 Ga. App. 606, 608-609 (1) (588 SE2d 773) (2003) (In condemnation action, trial court erred in failing to direct verdict for Department of Transportation as there was an absence of evidence of consequential damages.).

       It is also apparent from the record that Chicago Title’s tender for the loss suffered by the Jimenezes was exactly the amount that its appraiser valued Parcel 1, which weakens its argument that the value of Parcel 1 is not relevant to the amount of damages suffered by the Jimenezes.

       See generally Rafferzeder v. Zellner, 272 Ga. App. 728, 729 (1) (613 SE2d 229) (2005) (“Questions of value are peculiarly for the determination of the factfinder, where there is any data in the evidence upon which the factfinder may legitimately exercise its own knowledge and ideas.”) (citation, punctuation and footnote omitted).

       OCGA § 9-11-41 (b). See also Smith v. Gen. Finance Corp., 143 Ga. App. 390, 391 (1) (238 SE2d 694) (1977) (“[I]n order to sustain [grant of directed verdict for failure to prove damages], there must be a complete absence of any competent evidence on this issue.”) (citation omitted).

       (Footnotes omitted.) Cannon Air Transp. Svcs. v. Stevens Aviation, 249 Ga. App. 514, 518 (5) (548 SE2d 485) (2001).

       See Freedman v. Housing Auth. of Atlanta, 108 Ga. App. 418, 422 (6) (136 SE2d 544) (1963).

        Freightliner Chattanooga, LLC v. Whitmire, 262 Ga. App. 157, 163 (1) (584 SE2d 724) (2003). See Freedman, supra (where opinion testimony as to value ranged from $37,500 to $56,000, “[t]he evidence would have warranted a finding of any amount between these sums”).


author: Andrews, Judge.

text:
    A11A0273, A11A0274.
    WHITESIDE v. DECKER, HALLMAN, BARBER & BRIGGS, P.C. et al.; and vice versa.
    (712 SE2d 87)
   Andrews, Judge.

Fife M. Whiteside, as Trustee in Bankruptcy for the Chapter 7 bankruptcy estate of Zeferino Lucio-Anaya, sued Lucio-Anaya’s former attorneys, Decker, Hallman, Barber & Briggs, EC. and W. Winston Briggs, individually, (collectively, Decker Hallman) claiming that Decker Hallman is liable for damages resulting from a judgment in excess of insurance coverage rendered against Lucio-Anaya in an automobile accident case. The Trustee claimed that Decker Hallman, which was hired by the liability insurer to represent Lucio-Anaya in the accident case, breached fiduciary duties owed to Lucio-Anaya by failing to inform him that he had a potential claim against the insurer for bad-faith or negligent failure to settle, and that this was a proximate cause of the excess judgment. Because we find that any alleged breach of fiduciary duty was not a proximate cause of the claimed damages, we affirm the trial court’s grant of summary judgment in favor of Decker Hallman in Case No. A11A0273. Decker Hallman’s cross-claim in Case No. A11A0274 is dismissed as moot.

1. In July 2000 Lucio-Anaya caused a fatal automobile accident by driving a car across the center line and colliding with another vehicle. The collision killed one occupant of the other vehicle, injured another occupant, and caused Bicente Moreno, a passenger in the car with Lucio-Anaya, to suffer severe coma-inducing head injuries requiring appointment of a guardian to manage his affairs. The car Lucio-Anaya was driving, but did not own, was insured by a liability insurance policy issued to a third person by Atlanta Casualty Company, now known as Infinity Casualty Insurance Company (ICIC), which provided limits for bodily injury of $15,000 per claim and $30,000 per occurrence. Despite questions over whether the policy provided coverage, ICIC elected to defend the claims arising from the accident and settled claims made by the victims in the other vehicle for the policy limits. After ICIC allegedly missed pre-suit opportunities to settle with Moreno’s appointed guardian for the $15,000 policy limit (see Anaya v. Coello, 279 Ga. App. 578 (632 SE2d 425) (2006)), Moreno (by his guardian) sued Lucio-Anaya on the accident claim on June 12, 2002. On June 27, 2002, an attorney hired by the guardian sent a letter to ICIC which referred to ICIC’s failure to timely respond to pre-suit offers to settle for the $15,000 policy limit and demanded $2,000,000 to settle the suit. On July 12, 2002, ICIC hired Decker Hallman to represent Lucio-Anaya in defense of the suit. After ICIC rejected the $2,000,000 settlement demand and a later $10,000,000 demand, the case was eventually tried, and a jury returned a verdict for Moreno in June 2005 for $8,000,000 plus interest which was made the judgment of the court.

At the request of Moreno’s guardian, Lucio-Anaya was placed into involuntary Chapter 7 bankruptcy in September 2006, and Whiteside was appointed Trustee in the bankruptcy case. In April 2007 the Trustee sued ICIC claiming it was liable for the judgment against Lucio-Anaya in excess of the ICIC policy limits because of bad-faith or negligent failure to settle for policy limits. ICIC settled this suit for payment of $8,000,000 to Lucio-Anaya’s bankruptcy estate. After deduction of attorney fees, about $4,500,000 of the settlement was paid to the estate’s creditor, Moreno, in partial satisfaction of Moreno’s judgment against Lucio-Anaya. The Trustee then filed the present suit against Decker Hallman seeking to recover the difference between the amount paid to Moreno and the value of Moreno’s $8,000,000 judgment with interest, plus attorney fees, costs, and punitive damages.

The Trustee’s theory of recovery was that, while representing Lucio-Anaya in Moreno’s accident claim, Decker Hallman breached fiduciary duties owed to Lucio-Anaya, and that these breaches were a proximate cause of the judgment rendered against Lucio-Anaya in excess of the ICIC policy limits. The Trustee alleged that Decker Hallman breached fiduciary duties by failing to inform Lucio-Anaya that he had a potential bad-faith claim against ICIC for its failure to accept the pre-suit offers by Moreno’s guardian to settle the case for the $15,000 policy limits. The Trustee also complained that Decker Hallman, while representing Lucio-Anaya, took the position that Moreno was bound by a prior agreement with ICIC to settle the case for the $15,000 policy limit; advised ICIC that it was not at risk for a bad-faith claim; and took action prior to trial attempting to enforce the alleged settlement and to advance these positions for the benefit of ICIC. The record shows that these efforts by Decker Hallman were unsuccessful, and that the case was tried to an $8,000,000 judgment entered in favor of Moreno. After the judgment was affirmed on appeal, Decker Hallman informed Lucio-Anaya that he had a bad-faith claim against ICIC. When Lucio-Anaya was subsequently placed into involuntary bankruptcy at Moreno’s request, the Trustee settled the bad-faith claim against ICIC for $8,000,000 and used the settlement proceeds to partially pay the debt owed on Moreno’s $8,000,000 judgment plus accumulating interest. The Trustee contends that, if Decker Hallman had properly advised Lucio-Anaya prior to trial about his potential bad-faith claim, he could have hired an independent attorney to represent him on the potential claim, and this attorney could have taken pre-trial action to protect him from the excess judgment. According to the Trustee, the attorney could have convinced ICIC: (1) that given the serious injury to Moreno, there was a likelihood of a multi-million-dollar judgment in excess of the policy limits and a bad-faith claim against it for failure to accept Moreno’s initial $15,000 settlement offers, and (2) that, given this risk, it should accept Moreno’s pre-trial offer to settle the case for $2,000,000 or some other amount in excess of the policy limits. In sum, the Trustee claims that Decker Hallman is liable to Lucio-Anaya’s bankruptcy estate for the unpaid portion of Moreno’s judgment because the alleged breach of fiduciary duties caused Lucio-Anaya to incur the $8,000,000 judgment with interest, which resulted in the involuntary bankruptcy and the subsequent settlement of the bad-faith claim against ICIC for an amount that was inadequate to pay the full amount owed to Moreno on the judgment.

In granting summary judgment in favor of Decker Hallman, the trial court concluded that, assuming (without deciding) that Decker Hallman violated fiduciary duties owed to Lucio-Anaya, the Trustee’s claim that these violations were a proximate cause of the excess judgment and resulting damages was pure speculation. Accordingly, the trial court found as a matter of law that there was an absence of evidence in the record sufficient to show that the alleged violation of fiduciary duties was a proximate cause of the damages sought. We agree. An essential element of a claim for damage caused by breach of a fiduciary duty is that the damage was proximately caused by the breach. Graivier v. Dreger & McClelland, 280 Ga. App. 74, 81 (633 SE2d 406) (2006).

To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

Grinold v. Farist, 284 Ga. App. 120, 121-122 (643 SE2d 253) (2007) (citations and punctuation omitted). Although the nonmoving party on a motion for summary judgment “is entitled to the benefit of all reasonable inferences to be drawn from the evidence, such inferences cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative.” Hoffman v. AC&S, Inc., 248 Ga. App. 608, 610 (548 SE2d 379) (2001) (citation and punctuation omitted).

Only by speculation or conjecture could a trier of fact conclude that, if Decker Hallman had informed Lucio-Anaya prior to trial that he had a potential bad-faith claim against ICIC in the event of a judgment in excess of policy limits, Lucio-Anaya would have hired an independent attorney, who would have prevented the excess judgment by persuading ICIC to settle the case for the $2,000,000 demanded by Moreno before Decker Hallman was hired. To buttress this claim, the Trustee produced an affidavit from an insurance expert (the former Georgia Commissioner of Insurance) who stated that, in his opinion, if Decker Hallman had advised Lucio-Anaya that he had a potential bad-faith claim, refrained from advising ICIC to the contrary, and withdrawn from representing ICIC and Lucio-Anaya due to a conflict of interest, then Lucio-Anaya would have had the opportunity to obtain an independent attorney to inform ICIC about the potential bad-faith claim, and more likely than not ICIC would have recognized the potential for a bad-faith claim on an excess judgment of over $10,000,000 and settled Moreno’s suit for an amount in excess of the policy limits. The trial court did not err by disregarding the expert opinion as wholly speculative that Decker Hallman’s alleged breach of fiduciary duty caused the excess verdict and resulting damages. An expert opinion that is wholly speculative or conjectural is without foundation, has no probative value, and creates no factual issue. Bankers Health & Life Ins. Co. v. Fryhofer, 114 Ga. App. 107, 111 (150 SE2d 365) (1966). “Speculation and conjecture by an expert is still speculation and conjecture, and will not support a verdict.” Id. Moreover, it is undisputed that, after the excess judgment, Lucio-Anaya successfully asserted and settled his bad-faith claim against ICIC for less than the amount owed on the judgment. Although the Trustee claims that Decker Hallman caused the excess judgment and the interest that accumulated on the judgment during appeal, the Trustee does not claim that Decker Hallman’s alleged breach of fiduciary duty impaired the bad-faith claim, and only by speculation could a trier of fact find that the alleged breach caused the bad-faith claim to settle for an amount that only partially paid the judgment.

2. The trial court did not err by granting summary judgment to Decker Hallman on claims for general or nominal damages, punitive damages, and attorney fees. In the absence of specific proof of the amount of damages flowing from a tortious act, general or nominal damages may be inferred, but the defendant’s liability for the damages must be established, including proof that the tortious act was the proximate cause of some actual loss. Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 254, 257 (329 SE2d 918) (1985), rev’d in part on other grounds, 254 Ga. 734 (334 SE2d 308) (1985). Because only speculation and conjecture supported the Trustee’s claims that Decker Hallman’s alleged breach of fiduciary duties damaged Lucio-Anaya, there was an absence of evidence to establish proximate cause. Without proof of compensatory damages proximately caused by Decker Hallman, there was no basis for ancillary claims for punitive damages and attorney fees. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 269 (416 SE2d 274) (1992); Fine v. Communication Trends, 305 Ga. App. 298, 305 (699 SE2d 623) (2010).

3. Finally, we conclude that the Trustee was not entitled to jury consideration of “remote damages” under OCGA § 51-12-10, which provides that: “When a tort is committed, a contract is broken, or a duty is omitted with knowledge and for the purpose of depriving the plaintiff of certain contemplated benefits, the remote damages occasioned thereby become a proper subject for the consideration of the jury.” The Trustee’s claim is that Decker Hallman’s violation of fiduciary duties owed to Lucio-Anaya caused the excess judgment and the amount still owed on the judgment. Even assuming Decker Hallman knowingly violated fiduciary duties, as alleged, there is no evidence that any violation was for the purpose of imposing an excess verdict on Lucio-Anaya. Maryland Cas. Ins. Co. v. Welchel, 181 Ga. App. 224, 225 (351 SE2d 645) (1986), rev’d in part on other grounds, 257 Ga. 259 (356 SE2d 877) (1987). To the contrary, the evidence shows that Decker Hallman attempted to obtain a court order to enforce settlement of the case within policy limits and to show the absence of a bad-faith claim against ICIC. These were unsuccessful attempts to avoid an excess judgment by either obtaining a court-ordered end to the litigation, or by convincing Moreno to settle within policy limits because there was no possibility that ICIC would be liable for any excess judgment. Accordingly, the trial court correctly granted summary judgment in favor of Decker Hallman.

Decided June 15, 2011

Beltran & Chandler, Frank J. Beltran, Douglas V Chandler, Charles A. Gower, Teresa T. Abell, B. T. Edmonds, Jr., for appellant.

Hawkins, Parnell, Thackston & Young, H. Lane Young II, M. Elizabeth O’Neill, for appellees.

4. Based on our ruling in Case No. A11A0273, as set forth above, Decker Hallman’s cross-appeal in Case No. A11A0274 is dismissed as moot.

Judgment affirmed in Case No. A11A0273. Cross-appeal dismissed in Case No. A11A0274.

Phipps, P. J., and McFadden, J., concur.