The facts of this case are set forth in the opinion of the Court of Appeals that is the subject of this Court’s review upon grant of a petition for a writ of certiorari. See Reliance Trust Co. v. Candler, 315 Ga. App. 495 (726 SE2d 636) (2012). In summary, the remainder beneficiaries of the revocable marital trust created by the wife of
1. (a) Reliance claims that, pursuant to OCGA § 53-12-260,
[A] court will interfere whenever the exercise of discretion by the trustee is infected with fraud or bad faith, misbehavior, or misconduct, arbitrariness, abuse of authority or perversion of the trust, oppression of the beneficiary, or want of ordinary skill or judgment. The courts will not ordinarily interpose to restrain the execution of a power, except where abuse of discretion, bad faith, or fraud is shown, or where the power is attempted to be exercised in a manner different from that authorized by the donor.
This charge is, essentially, a quote from Citizens & Southern Nat. Bank v. Orkin, supra, and the standard of review for, and duty owed by, a trustee set forth in this instruction has been widely applied by Georgia courts. See, e.g., Ludwig v. Ludwig, 281 Ga. 724 (2) (642 SE2d 638) (2007) (involving a claim for failure to exercise discretion); Citizens & Southern Nat. Bank v. Haskins, 254 Ga. 131, 141-142 (9) (327 SE2d 192) (1985) (seeking damages as well as removal of trustee for its failure to act). Reliance may not now assert that this was not the appropriate standard of review of its discretionary acts but that, instead, it could be held liable only if it failed to act in good faith. Reliance points out that the trial court also instructed the jury on what Reliance considers to be the proper standard of care for trustees with “absolute discretion,” which is that “the court will not permit the trustee to act in bad faith.” Assuming, without deciding, that the verdict reflects the jury applied an improper standard of care in this case and that this permitted the jury to find breach of trust even though it found Reliance did not act in bad faith, the error, if any, was created by Reliance. Reliance consented to the instructions given and failed to request a charge that clearly set forth what it asserts to be the proper standard for review of acts performed with alleged absolute discretion. By failing to raise it below, Reliance waived its argument that, prior to enactment of OCGA § 53-12-260, Georgia’s courts had improperly conflated the standard of care imposed on trustees subject to “regular” discretion clauses with the standard imposed on trustees subject to “absolute discretion” clauses. Instead, Reliance requested a jury instruction that permitted a finding of liability for misconduct other than bad faith alone. The Court of Appeals affirmed the verdict by finding the evidence was sufficient to support a finding “that Reliance’s exercise of discretion was ‘infected with . . . arbitrariness,’ as well as ‘oppression of the [remainder
(b) Further, Reliance argues that, regardless of the standard of care applied to the breach of trust claim, the Court of Appeals erred in affirming the jury verdict because there was insufficient evidence to support a finding that Reliance breached its duties as trustee with respect to each and every one of the nineteen challenged distributions to Mr. Candler. Reliance asserts that because the undisputed evidence shows Mr. Candler’s annual expenses regularly exceeded his income but that the distributions it made did not fully satisfy each of the annual shortfalls, then there was insufficient evidence to support the jury’s general finding of abuse of discretion. But the jury returned a general verdict as to liability for breach of trust and damages in a form to which Reliance consented. In the case of a general verdict, “it is presumed that every material allegation of the petition was by the jury found to be proved.” Owen v. S. P. Richards Paper Co., 188 Ga. 258, 261 (2) (3 SE2d 660) (1939). Moreover, Reliance consented to submit a general verdict to the jury and thus waived its right to have a special finding on the issue of breach and damages as to each distribution. Compare Livingston v. Taylor, 132 Ga. 1, 9 (6) (63 SE 694) (1908) (a party’s passive acquiescence to the entry of a general verdict is the equivalent to a waiver of her right to have a special verdict upon questions she submitted to the jury). “Issues never raised at trial will not be considered for the first time on appeal.” Amerireach.com, LLC v. Walker, 290 Ga. 261, 263 (1) (719 SE2d 489) (2011) (citation and punctuation omitted). “In addition, it does not appear that the issue was squarely raised in the Court of Appeals, and it unquestionably was not addressed in that court’s opinion.” Brookfield Country Club, Inc. v. St. James-Brookfield, LLC, 287 Ga. 408, 413-414 (3) (696 SE2d 663) (2010). See also Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002). Accordingly, this issue is not properly before this Court.
2. In its final judgment, the trial court awarded prejudgment interest at the statutory rate measured from the date of each encroachment upon the corpus, and the Court of Appeals affirmed the award. Reliance, 315 Ga. App. 504-505. Reliance asserts the remainder beneficiaries are entitled to interest on the damages awarded only from the date of the life beneficiary’s death. We agree. Pursuant to
Judgment affirmed in part and reversed in part with direction.
After the date this ease was tried but before Reliance filed its motion for new trial, the Revised Georgia Trust Code of 2010, OCGA § 53-12-1 et seq., became effective. Ga. L. 2010, p. 579, § 1. OCGA § 53-12-260 states: “Notwithstanding the breadth of discretion granted to a trustee in the trust instrument, including the use of such terms as ‘absolute,’ ‘sole,’ or ‘uncontrolled,’the trustee shall exercise a discretionary power in good faith.” The parties do not appear to dispute that, pursuant to OCGA § 53-12-1 (b), this Code section applies to the trust in this case.
We note that even these cases, while referencing the term “bona fide” or good faith, also recite the same broader general standard of care set forth in the jury instructions given in this case.
This new Code section is materially identical to formerOCGA § 53-12-193, in effect at the time of the trial.