1 We wi ll hereina fter re fer to Ma rgaret Brewster

Maree individually as “Ma ree” and Maree and J. Clifton Barlow, Jr. collectively as the “Maree Pa

rties.” FIRST DIVISION PHIPPS , C. J., ELLINGTON, P. J., and MCMILLIA N, J. N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ September 29, 20 14



## In the Court of Appeals of Georgia A14A0875; A14A08 76. MAREE et al. v. ROMAR J OINT VENTURE; a

nd vice versa. M C M ILL IAN , Judge. ROMAR Joint Vent

ure (“ROMAR

”), by and through Ban

kof America, N.A. (“BOA” ) as the m anaging j oint venturer of ROM AR, fi led a petit

ion in 2010 seeking to dissolve ROMAR on the grounds that managem ent was de adlocked. One of the joint vent urers, M argaret

Brewst er Mare e, and he r co-trus tee J. Clifton Barlow, Jr. 1 objected to dissolution

and asser ted various counterc laims against BOA. In Case N o. A14A0875, the Maree Parties appeal the trial court’s gran t of dissolution, the dismissal of their c ounterclaim fo r convers ion, and denial of s ummary j udgmen t on their cl aim th at BO A bre ach ed t he c ont ract by us ing ROMA R fun ds t o pa y it s2

litigation expen ses. In Case No . A14A0 876, B OA cros s-app eals t he tri al cou rt’s denial of its motion for summ ary judgm ent on the Maree Par ties ’ rema

ining

cou nt erc lai ms and its request that ROMAR pay its litigation fees. For the re asons set forth below, w e affir

m in pa rt, rev erse in pa

rt and r eman d for

further proceedin gs consist ent with th is opini on. Summ ary judgm ent is proper wh en there is no genuine issue of material fact and the m ovant is entitled to judgm ent as a m atter of law. O CGA § 9- 11-56 (c). To prevail on a moti on for sum mary judgm ent, the moving party

must sh ow that there is no gen ui ne dispute as to a specific materialfact and that this spe cific fa ct is enough, regardle ss of any other facts in the case, to entitle the mo ving party to judgment as a matter of law. When

a defendant moves for sum mary judgment as to an elem ent of the case for which the plaintiff, and not the defe ndant, w ill bear the burden of proof attr ial, the defendant may show that h e is e n titled to summar

y judgment either by affirmatively disproving that elem ent of the case or by pointing to an absence of ev idenc e in the record by which the plaintiff might carry the b urd en to prove that elem ent. And if the def

endant do es so, the

plaintiff cannot re st on his p lea dings, but rather

must po int to speci fic evide nce giving r ise to a triable is sue.2 The trust created under Para. 8 (d) of th e G. L aVance Maree T rust u/a 1/5 /73 benefitting Margaret

Brewster is refe rred to as th e “Maree Trust.” J. Clift on Barlow and Margaret Maree are co-tru stees of th e Maree Trust.

3 Margaret and Vance Maree are bro ther and si ster. 3 (Citation and p unctuation omitted.) Beale v. O’Shea , 319 Ga. App. 1, 2 (735 SE2 d 29) (2012). We revie w agrant or denial of sum mary judgm ent de novo a

nd construe the evidencein the light m ost favorabl e to the nonm

ovant. Gwinnett

Communi ty Bank

v. Arlington Capital, LLC , 326 Ga. App. 710, 710 (75 7 SE2d 239) (2014). B ecause this opinion addres ses cro ss-mo tions for su mm ary j udgmen

t, we w ill constru e the facts in favor of the non-moving party as appropriate. With these principles in mind, the record shows that ROMAR was established in 1971 through a joint vent ure agre emen

t (the “ Agreem ent”) by two friends who purchasedproperty

where I -75 was to be built. O ver the int ervening years, t heir 50/50 ownership of ROMA

R passed to their var

ious rela tives and their trus ts. ROMAR currentl y con sis ts o f sev en jo int ven tur ers: the Owen by Trus t (40.448% interest); Margaret Brewst er Mare e, individu ally ( 10 % i nterest) ; the Mare e Trust 2 (16.515% interest); George LaVance Mar ee, Jr. ( “Vance”), 3 individually (10% inte rest); th e4 The trust create d under Pa

ra. 8 (d ) of the G. LaVance Mare e Trust u/a 1/5/73 benefitting Vance Maree is referred to as the “ Vance Trust.” BOA and G. LaV ance Maree, Jr. are

co-truste es of the V ance Tr ust. Van ce did not

respond to t

he Petitio n and is no t a party to thi s appeal.

5 Although So utherland a nd Meader s responded

to the Petition filedby BOA, they filed no counterc laims and did not respond to the summ ary j udgmen

t motion s. Neither is a p arty to this ap peal.

6 However, most other decisions relating to the joint venture, including the sale of property, are required

to be m ade by

a ma jority of the joint venturers in accordance with the pe rcentage of

their respe ctive int erests in ROM AR.

4 Vance Trust

4 (“V ance Tr

ust”) (16. 515% interest); Mar y Ansl ey Sou

therland (3.261%); and Robert Frank Meaders, Jr. (3. 261% interest). 5 B OA itse lf is not a j oint venturer. Rather, in its c apacity as trustee

of the Owenby Trust – the join t venturer with the largest interest in ROMAR – BOA is the

mana ging joint vent

urer of ROMAR (the “Manager”). The Agr eement, which requires unanim ous consent to a

mend, governs the respon sibilities a nd duties of BOA as the Manager. Specifi cally , the Agr eement provides t

hat [BOA is appointed to] carry on the busine ss of the Joint Venture and to mana ge and control

the business and to m aintain the books and re cords of the Joint Venture . . . [ BOA] shall have full and compl ete author

ity to make any a nd all ordinary

or routine de cision reg arding the business of the Joint Vent

ure and to implem

ent such dec isions. 6 [BOA] is hereby expressly authorized to take title to the Pro perty or any inte rest of the7 The Agreement further provides that BOA is to be compensated for such

managerial serv ices out o f the ROMAR fund s. 5 Joint Venture in the Pro per ty in [ its] ow n name as nom inee and to con vey, sell, trans fer, mortgage, lease , ren t, assign o r otherw ise encumber and convey

the intere st of the Joi

nt Venture in the Proper ty upon the writ

ten consent

of a m ajority

in interest and not in numbers of the Joint Vent

urers. [ BOA] is authoriz ed, expressly b ut without limit ation, to execute

warra nt y and quitclaim dee ds, contracts, le ases, assignm ents, deeds to se cure debt , n otes, set tlement statem

ents, agreem ents, certificates and any other writing which shall be necessary to h old , mana ge o r con vey t he Pr ope rty. 7
ROMAR currently holds two pieces of real property . The firs t is loc ated in DeKalb County , consisting of an 8,960 squ are-foo t retail b uilding curr ently l eased to

a retail st ore with t

hree conse cutive, f

ive-y ear renewal options (the “ DeKalb Property”). The sec ond is locat ed in Gwinnet t County , consisting of a 9,4 68 squarefoot office b uilding that i s currently lea sed to a com pany w ith an annually renewable lease for ten years (the “Gwinnett Pro perty”). Und er the current structure of the Agreem ent, BOA cannot withdraw as th e Manager without unanimous, written consent to a

mend t he Agreement. I

n December 2010, BOA filed its petition seek ing di ssolution of ROMAR on the ground that ROMAR w as in deadlock. According to BOA, the deadlock, which began over ten8 Atthat time, BOA was also a co- trustee of

the Mare e Trust, which ow ned a separate piece of real estate. After n early two y ears of di scord, BOA w as eventually replaced as the co-tru stee of her t rust. 6 years ago, was caus ed prim arily by Vance Maree’ s lack of engagement and Margaret Maree’s intentional

hostility and h as r esulted in lost business opportunities, increased costs, d ecrease d revenues , and low er enter prise valu e. In supp ort of its a rguments , BOA sets forth a long history of the parties’ interactions, which we will summ

arize. Maree admits that she has been “hostile” toward BOA since at le ast 2001, arising out of her belief tha

t BOA f ailed to ad equately

manage her m

other’ s estate 8 and that it failed

to properly manage R

OMAR. In 2001, Maree demanded that BOA resign from its role as the Manager of ROM AR. In response, BOA soug ht agreem ent from the remaining joint venturers to hire Max Holstein to serve as the new manager. All of the joint vent

urers agr eed to this p lan and gave

their written con sent to BOA to retain counsel to prepare an amended Agreem ent accordingly. A copy

of the draft amended Agreement wa s circulated to the joint venturers in September 2001. Maree did not respond for several months, at which point she stated tha

t she would

not sign the ame nde d Agreem

ent becaus e she belie ved that the ame ndment

benefitte d the Owenby Trust. BOA fu

rther al leges that

Vanc e Mar ee had not e ven opened t he package containing t

he am ended Agreement when it c ontacted him in Jun e 2002,7

although he indicat ed at that time that he wo uld si gn and return it to BOA. By February 20 03, BOA had

receive d approval f

rom on e joint venturer in 2 001 and a second in late 2002 . In A

pril 20 04, at the

request of

Fary l Moss, Ma

ree’s then cotrustee, BOA fa

xed a copy

of the am

ended Agre ement to Moss. Ultim ately, Maree refused to sign it b ecause she wan ted to sel l the prop erties and dissolv e ROMAR. Thereafter, in lieu of res igning, BO A sought app roval fro m the other jo int venturers to disso lve ROMAR and l iquidat e its asset s. B y October 2005, BOA had the consent of

all the j oint

venturers except Maree, who did not provide her written consent until Janua

ry 2006 . BOA

then sought

updated app raisals f

or the proper

ties, and ROMA

R recei ved a cash

offer f or the DeK alb County

Property higher tha

n the joint venturer s’ agre ed-upon p rice. A lthough Maree had pre viously consented, she objected to the sale, and it co uld not go forwa

rd. Only one of the t

hree piec es of property owned by

ROMAR at that tim

e (the “ 8000 Miller

Court Property ”) was s old pursuant to the liquidation plan, which sale took pl ace in June 2007. Then, in 2007, Maree and her co -trustee changed the ir minds and no longer wi shed to pursu e dissolution

and liquidat

ion. Inste ad, they

again dema nded that BOA be replaced as the Manage r.9 Maree denied that th e joint venturers a pproved thepaym

ent of attorney fees in he r response to BOA’s Statement of Material Facts in Support of Summ ar y Judgme nt. But in her affidavi t, Mare e adm its that the joint venturers agreed th at the Bank coul d retain co unsel to amend the Agreement. 8 In September 200 7, a meeting was held, and the joint venturer s unanim ously agreed that the curr ent Agre emen t and struc ture of RO MAR wit h BOA as the Manager was n o longer optimal a nd that a ne w, res tated Agr eement should be prepared to allow for the installation of a new manag er. The joint vent urers aga in agreed that Max Holstein

should serve

as the new

manager and tha

t he should present

a fee propos al. BOA alleges t hat the jo in t venturers also agreed at the meeting that BOA could retain counsel and pay attorney fees out of ROMAR’ s funds in orderto prepare a new am

ended Agreement. 9 The following

month, BOA circulated a proposed amen ded Agre emen t; however, by De cemb er 2007, B OA did not receive a response

from any j oint venturer othe r than the Owenby Trust and Moss (as the co-trustee of the Ma ree Trust). In February 2008, Moss passed away, and a new co-trustee for the Maree Trust w as not in place until Septem

ber 2008. I

n October , Maree ’s counse l responded to BOA with

a compl etely

new vers ion of a pro posed am ended Agreement. In N ove mber, BOA provided suggested c hanges to Maree’s proposed amended Agreement but received9

no substantive

response f

rom her counsel for several months, despite BOA’ s repeated attem pts. In March 2009, BOA learned that Maree’ s new co-trustee had resigned and she was seek ing a repla cement. BOA called f

or a m eeting in A

pril 2009, but

neither Margaret nor Vance Maree attended, nor did th ey respond in dicating they would no t attend, desp ite several

comm unications from

BOA . Because acti on was neede d with resp ect to the t wo
rema ining propertie s’ leas es, at le ast one of t heir vot es w as necess ary t o reach a major ity. Given Ma

rgaret a ndVance M aree’ s absence , the lea ses could not be voted

on. Finally , in July

2009, Maree’s co unsel resp onded to BOA by circulating copies of another version of the amended Agreem ent signed by Mar

ee, her co-truste e, and Hols tein. Non e of the oth er joint venturer s had agre ed to this ve rsion. BO A and Maree’s counsel exc hanged several m ore revis ions throughou t Jul y and Au gust. Following

several promp ts from

BOA, Maree’ s counsel f

inally responded in October 2009 that there were delay s due to a ch ange to theco-truste e of the Ma ree Tr ust and Maree’s concerns regardin g certain changes to the Agre emen t. By Novem ber, all but

one provision of

the am ended Agreement was agreed upon . BOA and Maree’s counsel continued to discuss cha nges up to Jan

uary 1 1, 2010. H ow e ver, des pite1 0 Maree ultimat ely refused to s ign the am ended Agreeme

nt be cause BO A “m ight” be seeking

a relea se and indem

nificatio n but was unable to point to any such language w ithin

the proposed Agreement. Maree deposed that she “assumed” there would be an indem

nificatio n but did not actual lyknow if BO A ever c irculate d a version wi th such l anguage. 10 several additional follow up inquiries from BOA, Maree’s counsel never responded prior to BO A’s fi ling of the p etition in D ecem ber 2010. 10 In addition to t

he foregoi

ng, BOA al so a lleges that Maree was hostile in her

comm unications regard ing B OA’s role as Ma nager. M aree adm

its that in M arch 2007 she respo nded to BOA’s req uest for a meetin g with an e-mail st ating, Well, is the purpo se of the mee ting to apolog ize profu sely for brea ching its duty on ROMAR and doing nothing over the past seven year s but hold a joint venture hostage to incompetent donkeys, ruining what was a per fectly g ood inv estment f or the part ners?
In the sa me e -mai l, Mare e asked w hether the

purpose of the me eting was to “anno unc e the wholes ale removal of th e list of co rporate bu tterfinge rs wh o rep eate d[l y] dropped the

ball on RO MAR despi te nume rous war nings and calls for such action to c ease?” Ma ree also acknowle dges that in July 200 7 she sent a letter to U S Trust Management accusing BOA of mism anagement and stating that it had11

“stolen hundreds of thousands of dollars over the p ast nine years from my fam ily.” Maree further admits to ref erring to a BOA em

ployee as a “meathead clerk.” After BOA petitioned for dissolution, and the Mar ee defendant s countercl aime d, the parties filed cross-motions for summ ary judgm ent, which were heard by the trial court on October 12, 2012. On May 6, 2013, the trial court issued

an order gra

nting B OA’s pet ition for dissolution and final accounting as well as BOA’s motion

for sum mary judgm ent as to Ma

ree’s count erclaim fo r convers ion. The trial court deni ed BOA’ s motio n for sum mary judgm ent as to the Maree Part ies’

cou nt erc lai ms for brea ch of contr act, bre ach of the

duty of good faith a

nd fair de aling, and breach of fiduciary duty. The trial court did not reachBOA’s request for an order for the payment of its litigation fees out of ROMAR’s funds or BOA’ s motion as to the Maree Parti es’ countercl aim for puniti ve damages. In grantin g dissolution, the trial court re lied on par

tnership la

w, fir st noting: The C ourt may order

dissolution under certain circumstances, such as where a party

(1) “has been gui lty of

such conduc t as tends to affec t pre judic ially the carr

ying on of

the business ”; (2) w illfully or persistent ly breaches the agreement or otherw ise acts in such a way “ that itis not reasonably practicable to carry on the business”; or (3) under other such circu mstances as woul d render di ssoluti on equit able. OCGA § 14-8-32 (a) (3-5).11 Although the Mare e Partie s assert t hat they argued tha

t corpora te law sho uld apply to ROMA

R during the

summ ary j udg ment hearing, the recor d belies the ir assertion. First, t

hey re peatedly refer to ROMAR

as a “ partn er ship” and the individual joint venturer s as “

partners .” And although the Maree Parties point out that they relied on a case applying corporate l aw to define d eadlock, th e context shows that it was only be cause the y we re unableto locate a case spe cific to pa rtnerships : “N ow , in order for

there to be

deadlock, Georgia

law in the

case of a co rpora tion – we can ’t find one specifically in Georgia on a partnership – talks about four concepts.” 12 The court fur

ther noted that, alt

hough the par

tie s d isputed whe ther m anagem ent deadlockexisted, th ey eac h alleged that the other had breached the joint venture agreem ent and their d

uties to the

joint vent

ure. T herefore , the court concluded that “disso lution of the j oint venture is an appro priate eq

uitable re medy

under the circum stances. ” These appeals f ollowed. Case No. A14A0875 1. The Maree Parties first contend tha

t t he trial cour

t erred b y apply

ing partners hip law to de termine wheth er ROMA R should be di ssolved. W e find that they have waived th is argument by f ailing to as sert it in

the trial court. In its peti tion, BOA specific ally alleged tha

t ROMAR

is a partners hip governed by Georgia partners hip law. Not only

did the Mar

ee Parties adm

it this alle gation in the ir answe r, we f ind no indication

in the rec ord that they later argued otherw ise. 11 Theref ore, thisenumeration of error is with out merit. E.g., Silver Pigeon P roperties, LLC v. Ficklin

g & Co. , 31613

Ga. App. 167, 17 0, n. 10 (728 SE2d 801) (2012) (argument not raised in the trial court is wai ved and can not be rais ed for the fi rst time on app eal). 2. The Maree Parties also assert tha t the tria l court er

red in gra nting dissolution because there w as no deadlock in the m anagem ent of ROMA

R. Desp ite agree ing with the vas t majo rit y of BO A’s re cit ati on o f th e len gth y h istory of content

ion and stalem ate between

t he parties, they nonetheless argue that there was no deadlock because ROMAR

continued to lease the

propertie s and distri

bute profits to the joint venture rs. Howeve r, a cour t may order diss olution of a

partners hip under va

rious circumstances addressed in OCGA § 14-8-32 (a). Here, after reviewing the partie s’ extensiveevidence and co nsidering their arguments, the trial court found that dissolution

was an a ppropriate

equitablerem edy under th e c ircumstances. See OCGA § 14-8-32 (a

) (5). “ Equitable relief i s gen eral ly a matt er within the sound dis cretion of the trial court. The action of the trial court should be sustained on review where such discretio n has not bee n abused.”

(Citation and punctua

tion om it ted. ) Trotman

v. Velociteach Project Mgmt., LLC , 311 Ga. Ap p. 208, 210 (2) (715 S E2d 449) (2011). Based on th e record before us , we find no abuse of di scr etion in the trial court’s gran t of disso lution.12 We will affirm a grant of summ ary judgm ent if it is “right for any re ason , whether statedor unstate d in the tri al court’ s order, so long as the movan t raised t he issue in the trial court and the nonmovant

had a fair oppo rtunity to res pond.” Anderson v. Jones , 323 Ga. App. 31 1, 312, n. 2 (7 45 SE2d 78 7) (2013)

. 14 Moreover, we are

also persuade d by BO A’s ar gument that dissolut

ion is proper underthe term s of the A greem ent. 12 Paragraph 13 (a) of the Agre emen

t provides that [t]heoccurre nce of any

one of the f

ollowing ev ents shall c ause the dissolution of the Joint Venture: (1) The expiration

of the ter m of t his agree ment; (2) The agr eeme nt of two-th irds in inte rest and no t in num bers of the Joint Venturers to dissolve the Joint Venture; (3) The managem

en t o f the Joint V enture shall be deadl ocked and no action can be approvednor taken f or lack of the agreement of a num

ber of the Joint V enturers entit led t o vote upon the action suf

ficient t o approve an y of the propo sed cours es of actio n. Even viewed in the light most favorable to the Maree Parties, the record clearly supports a finding th at ROMA R has been

deadlocke d. Althoug

h the joint

venturer s, including Maree, have at ti mes so ught eith e r dissolution and liquidat

ion or the appointm ent

of a new manager , the part ies have not been able to effectuate either alternati ng course of action. Acco rdingly, this enumeration of error fails.13 No attorn ey fe es were paid afte r Septem

ber 20 11 followi ng the entry of a TRO to preserv e the statu s quo du ring liti gation. 15 3. In their t

hird and fo urth enumerations of error, the Maree Parties argue that the trial c ourt err ed in grant ing sum mary judgm ent to BOA

as to their

claim of conversion

arisi ng fro m BOA’s paym ent of appr

oxima tely $1 90,000 in attorney fees for the litigat

ion up through Septem

ber 2011 out

of ROMA

R’s ca sh reserv es. 13 BOA admits that

it did so, but maintains that the paym ent of the attorney fees wa s for the benefit of ROMAR and not for its own benefit. In gran ting sum mary judgm ent to BOA on this counterclaim, the trial court foun d that a conv ersion cla im doe s not exist because the Maree Parties did not ple ad fo r th e rec ove ry of a spe cifi c fun d of money. We agree. It is wel l settled t

hat [w]hi le money

constitute s personal property , mon ey is intangi b le persona lty

that is fung ible, bec ause it bel ongs to a cla ss of prope rt y which cannot

be diffe rentiate d by spe cific ide ntificati on unless there has bee n c reat ed a spe cifi c fun d th at h as b een set asi de fr om ot her money. Thus, there ca

n be no conversion action for money damag es fo r mone y, because generall

y, m oney is not subjec t to a civil ac tion for co nversion.16

(Citation s omitted.) Taylor v. Powertel, Inc. , 250 Ga. App. 356, 359 (2) (55 1 SE2d 765) (200 1). The Maree Parties correct ly ar gue that there are e xceptions to this general rule where the m oney is a “sp ecific, separate , identif iable fund”

to which th e plaintiff “had an imm ediate right of possession.” Taylor , 250 Ga. App. at 359 (2). However, they have failed to show that t

he mon ey at

issue fall s within suc h an except ion. The money

was withdraw

n from a joint f und that belonge d to all jo int

venturer s according to their respecti ve ownership percentages and which was used for a vari ety o f business purposes. Cf. Adler v. Hertling , 215 Ga. App. 769, 773-77 4 (2) (451 S E2d 91) (1 994) (procee ds from

a real e state re financing h eld in escr ow for sol e use of one party were specific and identifiable). The trial court did not err

in granting

summ ary j udgmen

t to BOA a s to the Mar

ee Parties’ co unterclaim fo r convers ion. 4. In their f

ifth enum eration of error, the Maree Parties assert that the trial court erred in den ying sum

mary judgm ent on their

counterc laim that BOA ’s use of the ROMAR funds for i ts attorne y fee s was a br each of th e Agree ment. In its cro ssappeal, BOA likewise argues that the trial court should have decided this breach of contractclaim

as a m atter of

law. T he partie s are cor

rect th at “[ a]t l eas t in iti all y, [contrac t] construction is a matter of law for the court. Firs t, th e trial c ourt m ust17

decide wh ether the languag e is clea r and unam

biguous. If

it is, the court sim

ply enforces the contract

accordin g to its cle ar term s; the contra ct alone is looked to fo r its meaning.” (Citation omitted.) Mapei Corp. v. Prosser , __ Ga. App. __ ( 4) (Case No. A14A0368, decided Jul y 9, 20 14). Bec ause the c onstruction of cont racts is a matter of law, the tr ial co urt’s applicati o n is reviewed de novo. See McKinley v. Coliseum Health Group, LLC , 308 Ga. App. 76 8, 770 (70 8 SE2d 682 ) (2011). Turning first to the langu age of the Agr eement, BOA

asserts t hat Paragraph 14 (b) allowed i t to use RO MAR funds to pursue di ssolution of t he joint ven ture. Paragra ph 14 (b) of

the Agre emen

t provides: In the event t

he Joint Venturers cannot agree upon the shares an d manner of distribu

tion within

sixty ( 60) day s of the event bringing a bout dissolution, any Joint Venturer m ay app l y to the senior j udge of the Cobb Judici al Circuit, Marietta , Cobb Coun ty, G eorgia, for the appointm ent

of an appraiser to a

ppraise th e assets a

nd to divi de the assets bet ween the Joint Vent

urers and Assignee s. The cost of this procedure, including the filing of a nd proceed

ings in regard to the application, shall be pai d fr om the assets of the Joint Venture. The appraisa l and d ivisionshall be f inal and bind

ing upon all Joint Ven turers and Assignees

.14 For exam ple, Par agraph 14 ( a) of theAgreem ent sets out

the grounds f

or dissolution

and makes no provision for the payment of l itig ation costs or attorney fees.
15 We likewise find BOA’ s relianc e on But trill v. Bu ttrill , 179 Ga. 759 (177 S E2d 576) (1934) , unavail ing. In Buttrill , although the attorney fees accr ued fro m bringingthe dissoluti on petition were ordered to be paid from the partnership estate, both par tn ers had joi nt ly s ou gh t d is so lu ti on , an d o ur S up reme Courtheld that the trial court should

have awa

rded fee s expended t o pursue the ir com mon cl aims. Id. Here, although dissolution w as ultim ately gr anted, on e of the parties sharply disputed BOA’s petition

. 18 The Maree P arties a

rgue, how ever, th at this Pa ragraph on ly appl ies to the liquidation

of asset s following

dissolution of

ROMAR if the par

ties areunable to agree upon the manner of distr ibution. W e agree that the pla in language

of this P ara graph, particula

rly w hen read a

nd considered within t

he proper context of the entire Agreem

ent, 14 is unambiguous and does not perm itBOA to recover its attorney fees associatedwith

the filing of its petit

ion for diss olution. 15 Nor does P aragrap h 14 (b) allow BOA to recover attorney fees incurred

as a result of a cla

im m ade by a joint venturer against it. BOA has pointed to no o ther porti on of the Agreement that

would perm itit to utilize ROMAR ’s funds for the pay ment o f its attor

ney fe es, and w e find

none . Therefore, we find that BOA breached the Agreement w hen it unilat erall y expended ROMAR’s funds to do so.19

BOA attem

pts to justify it s action s by arguing that it had the authori ty to “declare deadlock un der the [] Agreement and to be gin diss olution automatically,” but, “dueto the histori cal diff iculties a nd out of an a

bundance of

caution, [it] so ught court-approved dissolution. ” Thus, in order to e xtric ate it self as definitively as possible, BOA made a strategic decision to utilize the court system to effect dissolution. This m ay w ell have be en a good business decisi on t hat will al low the parties to finally part

way s; however , BOA ’s desir e for fin ality does not

change the plain language of

the Agre emen

t with re spect to the

paym ent of atto rney f

ees, and that price must be borne b y BOA. Accordingly, the trial

court er red by failing to find as a

matter of law that BOA breached the Agre emen

t with respect to its payment of atto rney fees with ROMAR funds to the exte nt those fe es were incurred either in conjunction with the filing of the petition fo r

dissolution or

in defending against t

he Maree Parties ’ counterc laims

. See Fidelity

Nat. Tit le Ins. Co. of

N.Y. v. OHIC I

ns. Co. , 275 Ga. App. 55 ( 619 SE2d 704) (2005) (tr

ial court erred in

fa iling to dec ide the par ties’ c ross-motions for

summar y jud gmen t as a ma tter of law where the contract language was unambiguous). Howeve r, to the extent BOA incurred legal fees that would be covered underParagraph 14 (b), i .e., those associate d with the a ppointm ent of an a

ppraiser to20

assist in the app raisal a

nd division of

ROMAR ’s asse ts, BOA

will be permit

ted on

rema ndto present

evidence as to any

such a tto rne y fees that

were reasonable

and

nec ess ary. 5. In their f

inal enumeration of

error, the Mare e Partie s all ege t hat the trial court err ed by no t giving any

direction or instruc tion to the manager now in charge of the dissoluti on. In its o rder, t he trial c ourt found th at BOA had reque sted that Colliers Internat

io nal Manage ment- Atlanta, LLC (“ Collie rs”) be appointed to manag e the dissolution a

nd gave theMaree P arties 20 d ays to object t o Colliers ’ appoint ment and to submit an alternate m anag er if nec essary . Afte r 20 day s passed w ithout objectio n, BOA fil ed a mo tion for entry of order appointing C olliers al ong with a proposal detailing

the dissoluti on procedur

es. It w as only

at this point that the Maree Parties filed an opposition, arguing for a number of restrictions that should be placed

on Colliers. Before the t rial court could

rule, th e Maree

Parties filed this appeal, thereby depriving t

he trial c ourt of

jurisdic tion to rule

on the motion. Because the trial court has not yet

ruled on the pending motion for entry of an order appointing Collier, there i s no er ror for t

his Court to review, and this enu mera tion of err

or is witho ut meri t. See Mercer v . Washi ngton Mut. Home L oans, Inc ., 287 G a. App. 388, 388 (65 1 SE2d 499) (2 007).21 Case No. A14A0876 In its cross- appeal, BOA al leges th a t the tria l court shoul d have gra

nted its motion for su mmary judgment on each of the Maree Par ties’ count erclaims. 6. In its fir sttwo enumerations of error, B OA argues that the tr ial court s hould have grantedits motion for summ ary judgment on the Maree Parties’ various breach of contract counterc laims and, ther

efor e, their

br each of th e duty o f good fait h and fair dealing counterc laim as well. These c laims stem from their allegatio ns that BOA (a) failed to properly

mar ket the 8000 M ille r Court Pro perty, (b) im properly used R OMAR fund s to pay its attorney fees in connection with this action, and (c) impro perly

used ROMAR fun ds t o pay it s attorney fees in c onnection w ith the preparatio n of an amended Ag reement. (a) The Maree P arties c laim that BOA breache d the Agreem

ent and theduty of good faith and f

air deali ng in its handl ing of the 80 00 Mille r C our t Pro per ty. Spe cifi call y, they claim

that in 2002, the

8000 Miller

Court Property

was not leased and BOA fa iled for m onths to take

action to e ffective ly market the pro per ty, allowing itto rem ain vacan

t for appr oxima tely on e yea

r until a ne w lease was finally exe cuted. They also claim th at a si milar si tuat ion o ccurr ed in 2005 . Altho ugh t he ten ant’s lease did not expire

until August

31, 2005, the tenant leftthe proper ty in N ovember 2004.22

However, BOA did not list the 8000 MillerCourt Pr operty for lease until September 2005, and it rem

ained unlea sed until it w as eventually sold in 2007 as part

of the j oint venturers ’ liquidati on attempts. The Agreem

ent defi nes ROMA

R’s busin ess as “ acquiring, holding, maint aining, leasing, exchanging , and dispos ing of” the propertie s owned by ROMAR, but is s ilent as to the precise manner in w hich BOA

is “to manage and control” that busine ss. How ever, “ absent an e xpress cont ractual p rovision to th e contrary, a d uty of good faith a nd fair de aling is im

plied into a ll nonlease hold contractprovisions gr

anting discr

etion to one of

the parties.” Hunting

Aircraft, Inc.

v. Peachtre e City A irport Authority , 281 Ga. App. 450, 450 (636 SE2d 139) (2006). Thus, where, as here, “themanner of perform ance is le ft mo re or les s to the discretio n of one of the parties to the co ntract, he is bou nd to the exercise of g ood faith .” ( Cita tions and punctua tion om itted.) Id. at 453 -454 (2). “Go od faith an d reasonabl eness do not com prehend arbitra ry or capricio us reasons, or conside rations based on pecuniary gain, or m erel y personal prefer ences; ra ther, they ref

er to the considera tions of fairnes s an d comm ercial r easonable ness.” ( Citations a nd punctuation omitted.) Id. at 452 (1).23

BOA does not dispute that the 8000 Miller Court Property rem ained vac ant for periods of time. Rather, it first a rgues that the Maree Parties’ claim s related to it are ti me barred by

the six-y ear stat

ute of lim itations under OCGA § 9-3-24. However, as the Maree Parties point out, t he statute of limitations fo r a contract under seal, a s is the Agreem

ent, is 20 y

ears. O CGA § 9- 3-23. Se e also Georgia Receivables, Inc. v. Maddox , 216 Ga. App. 164, 164 (1) (454 SE2d 541) (1995). BOA also argue s that the M aree Pa rtie s are unabl e to prove d amag es. “Dam ages recoverable for a breach of contra ct are su ch as ari s e natural lyand according to the usual course of things from such breach and such as the parties

con temp lated, when the contract was made, as the probable result of its bre ach. ” OCGA § 13-6-2. An d, [t]o avoid sum

mary judgm ent, a party

is not required to present evidence o f a speci fic dollar

amoun t of damages. Ra

ther, he must on ly pre sent evidence sufficient to serve as the basis f or a fac tfinder to calculat e the amount of dam ages due sho uld l iabil ity be established. And in cases such as this one, where t he dama ges relat e to the val ue of real or personal pro per ty, th e qu est ion of v alu e is nor mally re garded as peculiarly for the determ

ination of the jury. Thus, a c laim for damages related to value w ill be submitted to the jury w here there is a

ny data in the evidence upon which the jury may legitimately exercise their own24

knowl edge and ideas. After a witness ha s given his ba sis for opin ion evidence as to value, it is up to t he jury to determine it s weight. (Citation s and punctuation omitted.) Beale v. O’Shea , 319 Ga. A pp. 1, 6 ( 1) (735 SE2d 29) (20 12). For the pe riods of tim

e that the 8000 Miller

Court Property

rem ained vac ant, R OMAR wou ld have naturally suffered dam ages in the form of lost rent. And as evidence of the amoun

t of lost rent, Maree su

bmitte d an affi davit that R OMAR lo st app rox imate ly

$88,000 in rent each y

ear that the proper

ty wa s not lease d. Wit

h respect to damages calcula ted on th e value of p roperty, testim ony as to m arket val

ue is in the nature of

opinion evidence. On e neednot be an expert or

dealer in the article in question but may testify as to its value if he has had an opportunity for forming a corre ctopinion. The opportunity

for form ing an opinion as to value may be established by showing the

witness’ s experie nce and fa milia rity with the item

being valued.16 Because the sum mary judgm ent hearing w a s conducted before Ja

nuary 1, 2013, former

OCGA § 24-9-66 applies. See Ga. L. 2011, p. 99, § 101. Com pare OCGA § 24-7-701 (b) under our new Evidence Code, which provides that “[d]irect testim ony as to m arket val

ue is in the nature of

opinion evidence. A witness ne ed not be an expert

or dealer in an arti cle or

property to testify as to its va lue if he or

she has had an opportunity to form a reasoned opinion.” 25 (Citation s and

punctuation

omitted.) Beale , 319 Ga. App. at 6. 16 Here, Maree based her estimate on “ren t al rates in the area, inform ation from appraisals, and [her] knowledgeof the comm erci al rea l estate m arket in th e area. ” This is s ufficien t to createa foundation for the jury to consider her opinion as to the property’ s rental value. See id. at 7 (“ For a wi tness to give his opinion as to value, the m ust give his

reasons for

forming that

opinion by showing that he has some knowledge, experience,

or fam iliarity

as to the value of the i tem. ”) (punct uation om

itted). See also In re Estate of Hubert , 325 Ga. App. 276, 286-287 (6) (750 SE2d 511) (2013) (finding sufficie ntfoundation w

here wit ness’s t estim ony est ablished he was fam iliar wi th the proper ties at issue, in which he had an own ership interest, a nd that he a ls o wa s familiar with com

pa rable pro perties, which he h ad consider ed in reac hing his opinio n). Viewing the eviden ce in the l ight most f avo rable to th e Maree

Parties as the

nonmova nts, we find t

hat they have set f

orth suffi cient evid ence to cr eate a ge nuine26

issue of ma

terial f act rega rding w hether BOA failed to mee t its contractual obligations to mana

ge and control ROMAR’s business, including “ acquiring, holdi ng , maint aining, leasing, exchanging , and dispos ing of” the propertie s owned by ROMAR and the cor

responding du

ty of g ood faith a

nd fair de ali ng with r espect to these provisions. See Hunting Aircraft, Inc. , 281 Ga. App. at 452 (1) (what constitutes good faith is a question for the finder of fact). Accordingly, the trial courtdid not err in denyin g BOA’ s m otion for su mm ary j udgmen

t as to the M aree Pa

rties’

c ountercla ims for brea ch of contr act and breach of th e duty o f good fait h and fair dealingregarding its managem ent of the 8000 Miller Court Property . See, e.g., Racette v. Bank of America , 318 Ga. App. 171, 181 (5) (733 SE2d 457) (2012). (b) F or the re asons discus sed in Divi sion 4, BO A’s ar gument that it did no t breach the Agreement when it paid its a

ttorney fees wi th ROMAR’s fun ds fails as a matter of law to the extent those fee s were incurred for any reason out side those specific ally

delineatedin Par agr aph 14 (b) of t he A gre emen t. F or t he s ame reasons, the trial courtcorrectly denied sum mary judgm ent on the c orresponding counterc laim for breach o f the duty of go od faith an d fair deali ng. (c) The Maree Parties also asserted a breach of contract

counterc laim based on BOA’s use of RO MAR funds to pay its attorney fees arising fr om the prepara tion of27

an ame ndment

to the Agreement. T

hey argue that the am endment was undertaken for the purpose of re placing BO A as the M anager, which is ou tside the sc ope of the authority vested in the Manager. However, the Maree Parties ha ve admitted that i n 2007, Maree again demanded that BOA be r eplaced a s Manager . The y hav e also admitted that, at a Septem ber 2007 meeting, t

he joint vent

urers una nimousl y agreed that the Agreement and stru cture of ROMA R with BO A as the M anager w as no longeroptima

l, that a new, restated A greem ent should be prepare d to allow f

or the i n stallation

of a new manager, and

that BOA

could reta

in counsel t o effect

uate the

amen dment s. The autho rit y to re tain counse l necessa rily c arries w ith it the r

ight to pay counsel from ROMAR f u nds. Acc ordingly , the tri al court e rred in de nying

summar y judgm ent to BOA

on the Maree Parties’ breach of c on tract and breach of the duty of

good faith and f

air deali ng counterc laims with res pect to the paym ent of attorney fees fo r preparing an amended Agreement. (d) In their a

mende d answer

and counter

claim , the Mar

ee Parti es sou ght attorney fees pursu ant to OCGA § 13 -6-11 in co nju nction with their breach of contractclaims, and BOA moved for s ummary j udgmen t on their request for

those attorney fees. In its o rder, t he t rial cour t did not spec ifically

address th is issue, b ut17 We note , howeve r, that b ecause th e Maree Parties ’ brea ch of con

tra ct cou nt erc lai ms appear to arise fr om th e sam e Agreement t hat form s the basis f

or BOA’s petition fo r dissolution and accoun

ting, they

may be com

pu l sory cou nt erc lai ms and, thus , outside the scope o f OCGA § 13-6-11 . See, e.g., Singh v. Sterling United, Inc. , 326 Ga. App. 504, 513 (4) (75 6 SE2d 728) (2014) (pl aintiff- incountercl aim

cannot re covery

attor ney fe es under OCGA § 13-6-11 for fees associatedwith compulsory counterclaim ). Howeve r, beca

use BOA did not raise this argum ent in the trial court or on ap peal, we decli ne to cons ider it. Nebo Ven tures, LLC v. Novapro Ri sk Solut ions, L.P. , 324 Ga. App. 836, 84 8 (4) (752 SE2d 18) (2013) (“w e do not think a n appellat e court pr

op er ly ought to consider

whether the trial cour t was wrong fo r any reason”) (cit ation and punctuat ion omitted)

. 28 rather denied BO A’s m

otion for su

mm ary j udgmen

t as to the M aree Pa

rties’ countercl aim for breach of co ntract as a wh ole. BOA contends that because there was no bre ach of con tract, the Maree Parties are, therefore, not entitled to attorney fees under OCG A § 13-6-11. BOA further contends that even if it did breach the Agreement, the Maree Parties have presented

no evidence that it com

mitte d a breac h due to a sin iste r motive or sel f inte rest. We first note that certain o f the Maree Parties’ breach of c ontract c ounterclaims ha ve survived summa

ry judgm ent. And there is some evidence to support thei r contenti on that BOA pai d its attorn ey fe es out of RO MAR funds to enrich i tself. T herefore, the trial courtdid not err

in denying BOA’s m

otion for summary

judgment on the Maree Parties’ counterc laim for attor ney fe es pursuant

to OCGA

§ 13-6-11 on t

his basis. 1729

7. BOA nex

t asserts t hat the tri al court e rred in de nying it sum mary judgm ent

on the Mare e Partie s’ brea ch of fiduc iary duty co unterclaim. The Maree Parties allege that BOA breache d its fiduci ary du ty when it abused its position as Manager to divert funds from ROMA

R to finance its litigation, which in turn caused a s uspension of the distrib utions t o the joint venturers
. Itis well se ttled that a

claim for brea ch of fiduc iary duty re quires proo f of three elements: (1) the existence of a f iduciary duty; (2) breac h of that dut y; and (3) damage proxim ately caused by the breach. OCGA

§ 23-2- 58 provides t

hat a fiduc iary duty ex ists “ where on e party is so situated as to exerci se a contr

olling influence over t

he will, c onduct, and intere st of another or where, from

a similar rel ationshi p of mutual confidence, the law requires the utmost good faith, such as the relationship between partners , principal , and age nt, etc. ” The exi stence of a conf i dential or fiduciary relations hip is a question for the jury. Such relationship may be create d by law , contra ct, or the facts of a

particular case. Moreover, because a confidential relations hip ma y be f ound whene ver one pa

rty is justified in reposing c onfidenc e in anothe r, the e xistence of this relations hip is ge nerally a factual matter for the jury to res olve. (Citation and punctuation omitted.) Bedsole v. Action Outdoor Advertising JV, LLC , 325 Ga. App. 19 4, 201 (4) (7 50 SE2d 44 5) (2013)

.30

BOA does not dispute that a fiduciary relationship arises from its role as trustee of a partner to the ROMAR partnersh ip. BOA instead argues that there was no breach of fiduciar y duty because the suspension of the joint venturers’ distributions was authorized by

th e joint venturers’ agreem ent to repl enish ROM

AR’s r eserves a nd because it s payment of attorn ey fees did not breach the Ag reement. While it is true t

hat in this S tate, a

tort acti on cannot b e based on t h e breach of a contrac tual duty

only, it can be b ased on cond uct which , in addition to breaching a duty imposed by contract, also breaches a duty imposed by law . Whe re privat e duties ar ise from relations create d by the contract , express or im

plied, one may pursue a to rt action

for damages flowing fro m the exercise or fa ilure to ex ercise that duty. (Citation s and

punctuation omitted.) Spears v. Mack & Bernstein, P.C. , 227 Ga. A pp. 743, 745 (490 SE2d 463) (1997) (finding part ners ha d some fiduciary duty to treat other partners fai rly and in goo d faith). Here, the Maree P arties ha ve success fully shown that BOA brea ched the Agreement through its paym ent of attorney fees incurred in filing the petition for dissolution. Moreover, Maree presented evidence that the joint venturers only agreed to suspend distributions in order to repleni sh the

reserves as a res ult o f BOA’s warnings that bankruptcy might result if BOA prevailed in this lawsuit and ROMAR did not have sufficient funds to pay BOA’ s attorney

fees.18 We reject BOA’s initial argument that the Maree Parties waived th eir clai m

for punitive dam

ages by not addres sing it in the ir

summary judgment briefing bel ow. Th rough an independ ent revie w of the r ecord, w e find that

they di d in fact addres s punitive damages in

their June 8, 2012 opposition br ief and al so at the he aring on the cross-motion s. 31 Becausequestions of

fact exi st regard

ing whethe r BOA e xercised good faith by depleting ROMAR funds and suspending distributions, the trial court did not err in denying BOA’s motion

for sum mary judgm ent as to the Mare e Partie s’ counterclaim for b reac h of

fid uci ary du ty. 8. BOA al so argues t

hat the tri al court s hould have g ranted its motion for

summar y judgmen t as to the Ma

ree Par ties’ c ounterclaim fo r punitive d amag es. 18 “Puni tive damages ma

y be a warded o nly in su ch tort ac tions in whi ch it is proven by clear and convinc ing evidenc e that the defendant ’s acti ons showed willful misco nduct, mali ce, fraud, wa ntonness, o ppression, or thatentire want of care which would raise the pre sum

ption of consciou s indiffer ence to con sequences .” OCGA § 51-12-5.1 (b). BO A is corr ect, of course, that punitive damages are generally

not available in an acti on for

breach of contract. See Trust Co. Bank v. C & S Trust Co. , 260 Ga. 124, 126 (1) (39 0 SE2d 589) (1990); Layer v. Clipper Petroleu m, Inc ., 319 Ga. App. 410, 420 (8) (73 5 SE2d 65) (2012). H owever, a breac h of fiduci ary du ty will support an a

ward of punitive damages. See Bunch v. Byington , 292 Ga. App. 497,32

504 (4) (664 SE2d

842) (2008). Because we found in Division 7 that the Maree Parties’ cou nte rcla im for brea ch o f fid uci ary du ty su rvi ves , and bec aus e th ey h a ve p resente d evidence from which a j ury co uld properl y conc lude that a

n award o f punitive damages is warrant ed, this enumeration of error fails. See Fernandez v. WebSingu larity, I

nc ., 299 Ga. App. 11 , 20 (7) (681 SE2d 717) (2 009). 9. Lastly, BOA maint ains that th e trial cour t should have

granted it s request f

or
an ord er p ermi tting the payment of attorney fees o ut of ROMAR’s join t funds. As discussed in Division

4, ROMA

R is only permitted the pa

ym ent of any

reasonabl e attorney fees it m ay have incurred that would

be authori zed under Paragra ph 14 (b) of the Agre emen

t, i.e., those assoc iated wit h the appointm

ent of an a ppraiser to assist in the appraisal and d

ivision of R

OMAR’ s assets. In sum, we aff

irm the t rial c ourt ’s o rder granting dissolution and summary judgm ent to BOA a s to t he Mar ee Part ies’ co nvers ion c laim. We affi rm the trial

c ourt ’s order denying summ ary judgm ent to BOA as to the Maree Parties ’

cou nt erc lai ms for brea ch of contr act and b reach of

the duty of good fai th and fair dealingas to B OA’s m anagem ent of the 8 000 Miller Court Pro perty , breac h of fiduc iary duty, and for at

torney fees purs uant to OC GA § 13-6 -11. W e reve rse th e tri al c ourt’s d enial of su mm ary j udgmen

t to BOA

as to the Ma

ree Par ties’33

cou nt erc lai ms for breach of contract and breach of the dut y of good fai th and fair dealingwith respect to BOA’s pay ment of attorney

fees ass ociated w ith the prepara tionof an amended Agreement. We fur ther find t

hat the Ma

ree Par ties’ countercl aim

for punit ive damages su rvives su mmary judgment. And fin ally, we

reverse th e tr ial cou rt’ s d eni al o f su mma ry j udgm ent on the M aree Pa rties’ countercl aim

fo r brea ch of contr

act with respect t o BOA’ s paym ent of cer

tain attorney fees using ROMAR funds and therefore remand for furt h er proce edings consist ent with th is opini on. Judgments

affirmed i

n part, reversed in part

and cases remanded. Phipps, C. J., and E llington, P

. J., concur .