In Case No. A96A1332, First Union National Bank of Georgia appeals from a judgment for $350,000, based upon a jury verdict, on Howell T. Cook’s claims that First Union wrongfully foreclosed on his property and breached its contract with him by wrongfully foreclosing after the security deed had been marked paid.
In 1988 Cook borrowed $50,000 from First Union, signed a note promising repayment of the loan in 90 dаys, and also executed a security deed giving First Union a power of sale over property on which Cook was constructing a house. The security deed also included a drag-net clause extending the deed as security for any future indebtedness Cook might incur to First Union. Cook did not pay this note as required by its terms, and First Union extended the note several times.
First Union and Cоok decided in 1989 that Cook would pay off the 90-day note with the proceeds of a loan payable in ten years. First Union describes the process as essentially one transaction with one note replacing the other, but Cook contends there were two loans with the second paying off the first. Cook also maintains that the second loan was intended to be an unsecured loan. In any event, Cook executed a second note and did not execute a security deed for the second note. Some days later, Cook received from First Union the first note and the security deed both stamped paid.
When Cook fell behind on his payments on the first mortgage on the property and the holder of the first mоrtgage instituted foreclosure proceedings, First Union also instituted foreclosure proceedings because Cook was also behind on his payments on First Union’s loan. Although Cook borrowed funds sufficient to make the payments current on the first mortgage, he did not do so with the First Union payments, and First Union continued with its foreclosure proceedings because its security position had been placed in jeopardy.
After learning that First Union intended to foreclose, Cook advised First Union on more than one occasion that it could not foreclose because the bank no longer had a security interest in the property as he had the paid security deed. Nevertheless, First Union foreclosed on the proрerty, purchased the property for $35,000, and later sold the property to a third party for $78,500. Cook then instituted this action which led to the verdict and judgment in his favor.
First Union contends the trial court erred by admitting the testimony of Cook’s expert witness regarding non-payment on intangible tax as a bar to foreclosure, by excluding First Union’s expert witness during the testimony of Cook’s exрert witness, by failing to take ade *375 quate curative measures after improper remarks by Cook’s counsel during closing argument, by entering judgment on an excessive verdict, by refusing to direct a verdict on the wrongful foreclosure and breach of contract claims, by granting certain of Cook’s requests to charge, and by refusing to give certain of First Union’s requests to charge.
In Case No. A96A1333, Cook appeals the trial court’s grant of a directed verdict on his claim for punitive damages, by granting summary judgment to First Union on his claim for attorney fees and expenses of litigation, by excluding evidence on whether the property foreclosed upon sold for its fair market value at the foreclosure sale and excluding evidence of First Union’s bid analysis, and by excluding evidence of First Union’s draft foreclosure manuals. Held:
Case No. A96A1332
1. First Union contends the trial court erred by allowing testimony of Cook’s expert witness regarding non-payment of intangible tax as a bar to foreclosing on the property securing the debt because the witness and the issue were not identified in the pretrial order. First Union also contends the trial court erred by not granting a mistrial or a continuance on the basis of this testimony and also erred by refusing to grant a new trial.
Although First Union complains that a witness not listed on the pretrial order was allowed to testify, Cook’s witness was allowed to testify because First Union requested to call an expert witness on matters concerning recording documents, who also was not listed in the pretrial order, and the trial court thus allowed Cook to call his witness, who also was an expert on recording documents. Additionally, it is not correct to say that this issue was not reflected in the pretrial order. This evidence was relevant to the issue of wrongful foreclosure which was identified in the pretrial order. Further, First Union did not makе a contemporaneous objection to this testimony, but instead allowed the witness to testify about this matter both on direct and cross-examination without objection. Under these circumstances, we find that First Union has waived any objection regarding this testimony.
Sharpe v. Dept. of Transp.,
2. First Union further contends the trial court erred by excluding its appraiser from the courtroom while Cook’s appraiser testified. Pretermitting whether the trial court misapplied “thе rule” is whether First Union has demonstrated any harm from the error asserted. As First Union has not done so, we find no reversible error. A party seeking a reversal must show not only error, but injury arising from the error alleged.
Ga. Power Co. v. Bishop,
3. First Union also contends the trial сourt erred by refusing to grant a mistrial after Cook’s attorney in closing argument commented on the report of Cook’s appraiser that was excluded from the evidence because the expert had testified about the substance of the report. In passing on motions for mistrial, a trial judge has broad discretion that will not be disturbed unless manifestly abused. Thus, unless it is aрparent that a mistrial is essential to preservation of the right of fair trial, appellate courts will not interfere with the exercise of discretion by the trial judge.
American Assn. of Cab Cos. v. Egeh,
4. First Union further contends the trial court erred by denying its motion for dirеcted verdict and judgment n.o.v. on Cook’s claims for breach of contract and wrongful foreclosure. “In determining whether the trial court erred by denying [First Union’s] motion[ ] for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom
demands
a certain verdict.” (Citations and punctuation omitted; emphasis in original.)
Southern Store &c. Co. v. Maddox,
195 Ga.
*377
App. 2, 3 (
Further, First Union’s arguments on this issue arе based upon accepting only its view of the evidence. Although First Union may point to evidence supporting its position that the security deed was mistakenly marked paid and the dragnet clause in the security deed was intended to apply to the second loan, this evidence is not conclusive; Cook can point to the same and other evidenсe as support for his position that the deed was marked paid because it was not intended as security for the second loan. Under our law, it was the jury’s obligation to decide this factual dispute, and it did so in Cook’s favor.
5. First Union contends the trial court erred by giving several charges Cook requested because the charges were not raised by the evidenсe, unduly emphasized an issue, or were based on a theory that First Union felt was not legitimately before the jury. Neither the objections stated in the trial court nor the argument in First Union’s appellate brief fully discusses the basis for the objections. Nevertheless, we have considered the jury instructions given as a whole
(Hambrick v. State,
6. First Union alleges the trial court erred by refusing to give certain of its requested charges, and the transcript shows that First Union’s objections to the trial court’s refusal to give these charges generally consisted of stating that First Union objected to the failure
*378
to give a numbered charge. Such objections, however, are insufficient to preserve the issue on appeal.
Lissmore v. Kincade,
7. We find no merit to First Union’s contention that the trial court entered judgment on an excessive verdict. The amount of damages authorized for the wrongful foreclosure claim is a matter committed to the jury, and the jury is not bound even by the opinions of the experts. Verdicts on such claims will not be set aside absent evidence the verdict was the result of prejudice, gross mistake, or bias.
Curl v. First Fed. Sav. &c.,
Case No. A96A1333
8. Cook contends the trial court erred by granting First Union’s motion for a directed verdict on his claim for punitive damages. We agree.
“Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantоnness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b);
Cullen v. Novak,
This evidence, if believed by the jury, could authorize the award of punitive damages; evidence of a conscious and deliberate disregard of the interests of others that may be called wilful or wanton will support punitive damages.
Cullen v. Novak,
supra at 460. Whether Cook’s evidence of conscious indifference to the consequences, i.e., the intentional, knowing or wilful disregard of the rights of another, was sufficient to warrant imposition of punitive damages was a question for the jury.
Read v. Benedict,
9. We also agree that the trial court erred by granting First Union’s motion for summary judgment on Cook’s claim for attorney-fees and expenses of litigation. The trial court grаnted summary judgment on Cook’s claims under OCGA §§ 9-15-14 and 51-7-83 because the motions were premature. As summary judgment would constitute ¿ ruling on the merits of these claims, however, the trial court grant of summary judgment would prevent a decision on these *380 motions when these claims would be ripe for adjudication. Therefore the grant of summary judgment on this basis cannot stand. Further, the trial court erred by concluding that the motion seeking fees under OCGA § 9-15-14 was premature; OCGA § 9-15-14 (e) authorizes the filing of such a motion at any time during the action up to 45 days after judgment.
Although the trial court may have correctly concluded that there was a bona fide controversy, the existence of such a controversy will not defeat a claim for attorney fees and expеnses of litigation under OCGA § 13-6-11 when bad faith is an issue. See
Fuel South v. Metz,
Therefore, the grant of summary judgment on Cook’s claims under OCGA §§ 9-15-14 and 51-7-83 is vacated pending a ruling when such claims are ripe for adjudication, and the grant of summary judgment in Cook’s claim under OCGA § 13-6-11 is reversed. The claim under OCGA § 13-6-11 may be presented when the jury considers First Union’s liability for punitive damages.
10. The trial court did not err by excluding evidence of drafts of First Union’s foreclosure manuals. A trial judge may exercise his discretiоn to exclude relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of misleading the jury.
Friedman v. Friedman,
11. Conversely, we find that the trial court erred by excluding the evidence concerning First Union’s instructions to the agent who was to make the foreclosure sale and its bid schedules. “[T]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be аdmitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citation and punctuation omitted.)
Dept. of Transp. v. Swanson,
should be admitted when the hearing on those damages is conducted.
Judgment affirmed in Case No. A96A1332. Judgment reversed with direction in Case No. A96A1333.