                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                             RAY and RICKMAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules




                                                                     June 28, 2018




In the Court of Appeals of Georgia
 A18A0167. JORDAN v. MARRIOTT INTERNATIONAL, INC.
 A18A0199. MARRIOTT INTERNATIONAL, INC. v. JORDAN.

      RICKMAN, Judge.

      After she checked out of an Atlanta hotel operated by Marriott International,

Inc. and returned to her home in North Carolina, Wendy Jordan discovered that she

accidentally had left valuable jewelry locked in her hotel room safe. At Jordan’s

request, hotel staff recovered the jewelry, but some of the jewelry later went missing

from a secure area at the hotel. After Jordan sued Marriott, the trial court granted

partial summary judgment in favor of Marriott, essentially holding that under the

Georgia innkeeper statutes, Jordan could recover at most $1,000, well below the

value of the lost jewelry, plus possible damages for bad faith. Jordan appeals and
Marriott cross appeals, each from certain aspects of the trial court’s ruling. For the

reasons below, we affirm the trial court’s rulings with one exception.

      Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal, we construe the

evidence in the light most favorable to the party opposing the motion for summary

judgment, giving that party the benefit of all reasonable inferences. Cooper Tire &

Rubber Co. v. Koch, __ Ga. __ (812 SE2d 256) (2018). Our review is de novo. Toyo

Tire N. Am. Mfg., Inc. v. Davis, 299 Ga. 155, 161 (2) (787 SE2d 171) (2016).

      So construed, the record shows that Jordan had been a regular guest at the

Buckhead Marriott for at least 10 years prior to 2015. When Jordan stayed there from

January 28 to January 30, 2015, she locked a bag of valuable jewelry in the safe

located in her room. After departing the hotel at approximately 8:00 or 9:00 a.m. on

Friday, January 301 and returning to her home in North Carolina, Jordan realized that

she had forgotten her jewelry, and, via text message that same day, she contacted a

      1
        Jordan did not check out at the front desk. Her invoice had been placed under
the door, and she simply left the room with the intent of checking out and not
returning until some subsequent visit.

                                           2
Marriott bartender with whom she had become friends through the years. At about

6:30 p.m., Jordan texted, “Thomas!!! I left 30K worth of jewelry in our safe!!! Help

me!! What do I do?!!” In response, the bartender spoke to the front desk manager,

who said she would speak to the chief of loss prevention at the hotel. Shortly

thereafter, the bartender learned that the jewelry had been found, and he texted to

Jordan: “We have it.”

      The chief of loss prevention and another employee had retrieved the bag of

jewelry from the room safe, and the chief logged the items electronically and took a

photograph of the jewelry itself. In accordance with written hotel policy,2 he stored

the bag of jewelry in the hotel’s Loss Prevention Office, which is a “secure area”

accessible only by Loss Prevention officers. Loss Prevention officers were also

authorized to store items in a safe deposit box located in the front office area of the

hotel. The decision as to where to place an item turned on several factors, including

the type of the item and whether the owner would return to retrieve it. The

approximately thirteen Loss Prevention officers were the only employees who had



      2
         A Marriott interrogatory response, however, stated that items with a value
greater than $50 were to be “placed in the safety deposit box upstairs behind the front
desk.”

                                          3
access to the Loss Prevention Office and the safe deposit boxes. Marriott hotel guests

leave things at the hotel after they checkout on an almost daily basis.

        Shortly after the jewelry was found, Jordan spoke via telephone to a Marriott

security employee and described the jewelry that she left in the room safe; the

employee confirmed that all of the jewelry had been found. Jordan declined

Marriott’s offered to mail the jewelry, instead stating that she would prefer to have

her brother, who lives in Macon, retrieve it. The Marriott employee stated that the bag

of jewelry would be kept in the “hotel safe” until that time. Jordan avers generally

that she informed each Marriott employee with whom she spoke about the value of

the property. In her deposition, however, Jordan admitted that in the conversation

during which Marriott agreed to hold the jewelry for her, she did not inform Marriott

about the value of each item or the overall value of the jewelry, nor did she provide

a written list of the items. Marriott denies that it was aware of the value at the time

it agreed to store the jewelry. Jordan also admits that she did not offer any specific

consideration to Marriott in exchange for the offer to store the jewelry in the hotel

safe.

        The bag of jewelry stayed in the Loss Prevention Office until the following

Monday, when it was locked in a safe deposit box. At some point thereafter, Jordan

                                           4
arranged for the bartender to retrieve the jewelry and take it halfway to Macon to

meet her brother and give him the jewelry. That event was scheduled for February 6,

2015, the first day that the bartender and Jordan’s brother could meet. On Thursday,

February 5, 2015, the bartender spoke to a Loss Prevention supervisor about the plan

and was advised to have Jordan provide her permission for the bartender to retrieve

the jewelry. On that occasion, which appears to be the first time that the bartender

spoke to the supervisor about the jewelry, the bartender explained that Jordan had

texted that the jewelry had a value of $30,000. The supervisor and Jordan then had

a telephone conversation in which Jordan gave her permission to give the jewelry to

the bartender.

      The bartender returned to the Loss Prevention office on Friday February 6 and

accompanied the supervisor to the safe deposit box, where he saw what appeared to

be an insignificant amount and value of jewelry in the bag. The bartender then called

Jordan who confirmed that some jewelry was missing, and at some point, the

bartender, the supervisor, and perhaps other employees, compared the jewelry to the

photograph of what Marriott had found in the safe in Jordan’s room and saw that

much was missing. The supervisor called Jordan to obtain a full inventory of the

items that should have been in the safe deposit box, and Jordan gave an approximate

                                         5
value of the jewelry. Although Marriott promised to send the photograph to Jordan,

she never received it. The supervisor later called Jordan back and explained that

Marriott would investigate what happened and report back.

      A subsequent investigation showed that prior to the jewelry being moved to the

safe deposit box, a Loss Prevention officer was seen on hotel security video handling

the jewelry in the Loss Prevention Office, and he was suspected of having removed

some of it. During later questioning, the suspect admitted that in the video he can be

seen cleaning Jordan’s jewelry. The suspect refused to answer further questions, and

Jordan’s jewelry was never recovered. The suspect was terminated when he admitted

removing towels from the hotel. Whether the jewelry was in fact stolen by the suspect

has not been established. On or about February 19, Jordan returned to Atlanta and

made a police report.

      Jordan eventually filed suit against Marriott and asserted claims of negligence

per se under Georgia’s innkeeper statutes, bailment, breach of contract, and attorney

fees.3 Following discovery, Marriott moved for summary judgment on all claims.




      3
         Jordan also asserted a claim of intentional infliction of emotional distress but
later withdrew that claim.

                                           6
      The trial court held that Jordan’s claim of negligence per se under the

innkeeper statutes could proceed against Marriott but that her claim was limited by

those statutes to $1,000. For that claim, there remained an issue of fact as to whether

Marriott exercised extraordinary diligence in storing the jewelry. The court granted

summary judgment in favor of Marriott on Jordan’s claims of bailment and breach of

contract. And the court granted partial summary judgment on the attorney fee claim,

holding that there were disputed issues of material fact as to whether Marriott acted

in bad faith in its pre-litigation dealings with Jordan. Jordan appeals the rulings

against her, and Marriott cross appeals from the court’s failure to grant complete

summary judgment in its favor on the innkeeper statute and attorney fee claims.

      1. Jordan contends the trial court erred by limiting her claim of negligence per

se to $1,000 under the Georgia innkeeper statutes. On cross appeal, Marriott contends

the trial court erroneously applied the innkeeper statutes to the case because Jordan

was not a guest of the hotel at the time Marriott agreed to hold the jewelry for Jordan;

rather, Marriott argues that, at best, it gratuitously agreed to store the jewelry. This

case requires us to determine the meaning of the various innkeeper statutes and their

applicability to the facts at hand. In so doing, we construe the statutes according to



                                           7
their plain meaning except as further noted below. See Georgia Dept. of Juvenile

Justice v. Eller, 338 Ga. App. 247, 248 (789 SE2d 412) (2016).

      (a) We first address Marriott’s argument that the innkeeper statutes govern only

the relationship between the inn and a “guest,” which is defined as “a person who

pays a fee to the keeper of an inn for the purpose of entertainment at that inn,” OCGA

§ 43-21-1 (1), and that Jordan was not a guest at the time that Marriott agreed to hold

the jewelry for her to retrieve it. The trial court ruled on Jordan’s innkeeper claim

while pretermitting whether Jordan still could be considered a guest for purposes of

the innkeeper statutes at the time her jewelry was entrusted to Marriott; for purposes

of Jordan’s bailment claim, the court held that Jordan was not a guest at that time. We

hold that there is an issue of fact as to whether Jordan was a guest at the time and

therefore whether the innkeeper statutes apply.

      The innkeeper statutes apply only so long as the person retains his or her guest

status at the inn. See Summer v. Hyatt Corp., 153 Ga. App. 684, 685 (266 SE2d 333)

(1980) (hotel guest retained guest status while eating at hotel restaurant located on

the premises and therefore hotel owed innkeeper duties); cf. State v. Delvechio, 301

Ga. App. 560, 563 (687 SE2d 845) (2009) (a person who obtains a hotel room with

a fraudulent credit card is not a “guest” within the meaning of OCGA § 43-2-1 (1));

                                          8
OCGA § 43-21-7 (innkeeper cannot charge for checking or keeping baggage “while

the owner remains a guest of the house”).

      Under the innkeeper statutes, a person’s status as a guest at the hotel terminates

at the expiration of the time period agreed to by the parties and “signed or initialed

by the guest.” See OCGA § 43-21-3.2.4 At that time, the innkeeper is authorized to

remove a departed guest’s property “to a secure place where the guest may recover

his or her property without liability to the innkeeper, except for damages to or loss of

such property attributable to its removal.” Id. Our Supreme Court has held also that

when a departing guest has left baggage with an innkeeper with the innkeeper’s

consent, the innkeeper is still liable for it as an innkeeper “for a reasonable time, to




      4
       OCGA § 43-21-3.2 provides in pertinent part as follows:
      A written statement prominently setting forth in bold type the time
      period during which a guest may occupy an assigned room, when
      separately signed or initialed by the guest, is a valid nonassignable
      contract. At the expiration of such time period, the guest may be
      restrained from entering such room and any property of the guest may
      be removed by the innkeeper to a secure place where the guest may
      recover his or her property without liability to the innkeeper, except for
      damages to or loss of such property attributable to its removal.

                                           9
be estimated according to the circumstances of the case.” Adams v. Clem, 41 Ga. 65,

67 (1870).5

      Here, there is an issue of fact as to whether Jordan could still be considered a

guest of the hotel for the purposes of the innkeeper statutes at the time that she

entrusted the jewelry to Marriott. First, Marriott failed to meet its burden of showing

as a matter of undisputed fact exactly when Jordan ceased to be a guest of the hotel.

There are no check-in documents “signed or initialed by the guest” in the record.

Second, a jury could find that under the circumstances it is reasonable to conclude

that Jordan should still have been considered a guest for the purposes of the innkeeper

statutes at the time that she entrusted the jewelry to Marriott. Thus, the trial court

correctly refused to find as a matter of law that Jordan was no longer a guest for the

purposes of the innkeeper statutes; Marriott’s relevant enumeration of error is

therefore without merit. But, for the same reason, the trial court erred when it

determined as a matter of law that Jordan was not a guest for purposes of addressing

Jordan’s bailment claim.



      5
        We find no support, however, for the proposition that, for the purposes of the
innkeeper statutes, Jordan maintained her guest status beyond that described herein
by the mere fact that Jordan was a repeat guest of the Marriott.

                                          10
      (b) We nevertheless agree with the trial court’s determination that if Jordan was

a guest as that term is defined in the innkeeper statutes at the time she asked Marriott

to keep her jewelry, her claim under the innkeeper statutes is limited to $1,000.

      “At common law an innkeeper was an insurer of the goods of his guest.” Jones

v. Savannah Hotel Co., 141 Ga. 530 (81 SE 874) (1914). The innkeeper statutes,

OCGA § 43-21-1 et seq., slightly altered this duty with a requirement that an

innkeeper “exercise extraordinary diligence in preserving the property entrusted to

his care by his guests.” OCGA § 43-21-8; see Murchison v. Sergent, 69 Ga. 206, 210

(1883) (“It may be well to say, however, that at common law the rule was perhaps

more stringent, yet substantially is very much the same.”); OCGA § 43-21-4 (“An

innkeeper is a depository for hire[6]; however, given the nature of his business, his

liability is governed by more stringent rules, as are set out in [the innkeeper

statutes].”). Thus, under the current innkeeper statutes, as stated in the two statutes

upon which Jordan relies, “if the loss of such entrusted property occurs through theft

and if the guest has complied with all reasonable rules of the inn, the innkeeper shall

be liable as an insurer of the stolen property,” OCGA § 43-21-8, and “it will be


      6
         A depository for hire means “a depository who receives or expects a reward
or hire for undertaking to keep chattels for another.” OCGA § 44-12-90.

                                          11
presumed that the innkeeper failed to exercise extraordinary diligence with regard to

[loss of property entrusted by a guest to an innkeeper].” OCGA § 43-21-12.

      The innkeeper statutes also provide, however, that “an innkeeper may relieve

himself from responsibility for valuable articles belonging to his guest” under various

circumstances. Jones, 141 Ga. at 530; see OCGA §§ 43-21-10 through 43-21-12.7 The

liability-limiting aspects of these three statutes provide that (1) “[n]o guest shall

recover from the innkeeper more than $750.00 for loss of valuable articles deposited

with the innkeeper for safekeeping” without a receipt for the articles from the

innkeeper, see OCGA § 43-21-10; (2) no innkeeper shall be responsible in excess of

$1,000 for the loss or theft of “any valuables, including cash, jewelry, etc., which are

contained in a package, box, bag, or other container left with the hotel proprietor or

innkeeper to be placed in the safe or other depository of the hotel or inn” without a

“written contract” for a greater liability, see OCGA § 43-21-11 (a); and (3) other than

for “valuable articles which must be delivered to the innkeeper to be deposited in a

safe or other place of deposit,” no innkeeper shall be responsible in excess of $1,000

for the “loss of or injury to” a guest’s personal property entrusted to the innkeeper

      7
        Because the innkeeper statutes that limit an innkeeper’s duty are in derogation
of the common law, they must be strictly construed against the innkeeper. See Kates
v. Brunswick Motel Enterprises, 187 Ga. App. 875, 876 (371 SE2d 686) (1988).

                                          12
unless the guest shall “notify the innkeeper in writing” that the value of the property

exceeds $ 1,000.00 and “upon demand of the innkeeper, furnish the innkeeper a list

or schedule of the same, with the value thereof,” OCGA § 43-21-12. These three

statutes must be read in pari materia, which “means simply that they must be

harmonized, and may not be read in a vacuum.” Kates v. Brunswick Motel

Enterprises, 187 Ga. App. 875, 876 (371 SE2d 686) (1988).

      Of these statutes, OCGA § 43-21-118 is the most specific and most applicable

to the facts of this case in that it expressly pertains to theft of jewelry, contained in

a bag, that is left with the innkeeper, and placed in a safe or other hotel depository.

That statute therefore controls Jordan’s innkeeper claim. See Kates, 187 Ga. App. at



      8
          In full, OCGA § 43-21-11 (a) provides as follows:

      No hotel, apartment hotel, or innkeeper shall be responsible in an
      amount in excess of $1,000.00 for the loss or theft of any valuables,
      including cash, jewelry, etc., which are contained in a package, box, bag,
      or other container left with the hotel proprietor or innkeeper to be placed
      in the safe or other depository of the hotel or inn, provided that the
      liability of the hotel or innkeeper may be increased to an amount in
      excess of $1,000.00 by a written contract entered into between the
      parties providing a greater liability; provided, further, that the contract
      shall not call for any additional cost to the guest.

                                           13
876 (OCGA § 43-21-11 governs the limitation on the liability of an innkeeper for

valuables which are deposited in the safe or other depository of the hotel); see also

Vines v. State, 269 Ga. 438, 440 (499 SE2d 630) (1998) (“For purposes of statutory

interpretation, a specific statute will prevail over a general statute, absent any

indication of a contrary legislative intent.”). That the limiting provision of OCGA §

43-21-12 is not applicable to the present facts is shown also by language therein

stating that it applies to “other than valuable articles which must be delivered to the

innkeeper to be deposited in a safe or other place of deposit,” which clearly

references the type of valuables governed by OCGA § 43-21-11.9

      Under OCGA § 43-21-11 (a), the innkeeper is liable for amounts greater than

$1,000 for the loss or theft of any valuables only if the parties enter into “a written

contract . . . providing a greater liability,” OCGA § 43-21-11 (a), which Jordan and

Marriott simply did not do. In short, when Jordan declined to have Marriott mail the

jewelry to her and requested that Marriott hold the bag of jewelry for her without

entering into a written contract providing a greater liability, Marriott’s potential

      9
         Accordingly, the factual issues regarding whether Jordan successfully notified
Marriott in writing via her initial text to the bartender that her jewelry was worth
$30,000 and whether the bartender could be considered Marriott’s agent for purposes
of receiving such notice are not relevant in that those issues pertain only to the
limitation on liability found in OCGA § 43-21-12.

                                          14
liability under the innkeeper statutes for the theft of Jordan’s jewelry was limited to

$1,000, as the trial court correctly held. The trial court also correctly held that there

is an issue of fact as to whether Marriott exercised extraordinary diligence10 in

safeguarding Jordan’s jewelry.

      2. With regard to Jordan’s bailment11 claim, “[a]ll bailees are required to

exercise care and diligence to protect the thing bailed and to keep it safe.” OCGA §

44-12-43. But “[d]ifferent degrees of diligence are required according to the nature

of the bailments.” Id. More specifically,

      If the bailment is for the benefit exclusively of the bailee [here,
      Marriott], he must use extraordinary care; if for the mutual benefit of the


      10
        OCGA § 51-1-3 provides that
      In general, extraordinary diligence is that extreme care and caution
      which very prudent and thoughtful persons exercise under the same or
      similar circumstances. As applied to the preservation of property, the
      term “extraordinary diligence” means that extreme care and caution
      which very prudent and thoughtful persons use in securing and
      preserving their own property. The absence of such extraordinary
      diligence is termed slight negligence.
      11
         “A bailment is a delivery of goods or property upon a contract, express or
implied, to carry out the execution of a special object beneficial either to the bailor
or bailee or both and to dispose of the property in conformity with the purpose of the
trust.” OCGA § 44-12-40.

                                            15
      parties, ordinary care; and if for the exclusive benefit of the bailor [here,
      Jordan], slight care will suffice.


Merchants’ Nat. Bank v. Guilmartin, 88 Ga. 797, 799 (15 SE 831) (1892); see also

Gooden v. Day’s Inn, 196 Ga. App. 324, 326 (2) (395 SE2d 876) (1990) (same)

(physical precedent only). Thus, in the event that the innkeeper statutes do not apply,

Marriott could be required to show either ordinary diligence or only slight diligence

in safeguarding Jordan’s jewelry, depending on whether the bailment was for the

mutual benefit of the parties or merely for Jordan’s benefit. This question is normally

one for the court. See Atlanta Limousine Airport Servs. v. Rinker, 160 Ga. App. 494,

495 (287 SE2d 395) (1981).

      Jordan argues that Marriott received some consideration or benefit for

safeguarding her jewelry in that it had an interest in accommodating a regular

customer, such as she, or that it benefitted from accommodating all similar customers

who accidentally leave their belongings at a hotel after departing. Our Supreme Court

long ago held that “the character of a particular bailment, whether gratuitous or not,

is to be determined by the contract between the parties to it,” and “the possibility of

some undisclosed benefit is not enough to render the bailment one for hire; there must

be an understanding or arrangement, express or implied, between the parties, whereby

                                           16
the bailee has received, or has a right to expect and demand, something for his

benefit.” Guilmartin, 88 Ga. at 804-805 (2); see also OCGA § 44-12-90 (compare

“depository for hire,” which means “a depository who receives or expects a reward

or hire for undertaking to keep chattels for another” with “naked deposit” which

means “an undertaking whereby a depository keeps chattels for another

gratuitously”). Further, “[t]here must be a compensation of some sort actually

contemplated in the contract and bargained away by the bailor. The fact that the

special depositor is also a [regular customer] is hardly sufficient, unless the retention

of the [regular business] was stipulated for.” Guilmartin, 88 Ga. at 805 (2).

      Here, there is no evidence of a disclosed benefit flowing to Marriott in

connection with its agreement to safeguard Jordan’s jewelry until her brother could

retrieve it. And Jordan admitted that at the time she declined to have Marriott mail the

jewelry to her, she did not offer any specific consideration to Marriott in exchange

for the offer to store the jewelry in the hotel safe.

      We therefore agree with the trial court that “Marriott gratuitously agreed to

store her jewelry when Jordan refused to allow [Marriott] to mail it to her[.]”

Accordingly, Marriott was required to show only slight diligence for the purposes of

Jordan’s bailment claim. We also agree with the trial court that Marriott showed

                                            17
slight diligence12 as a matter of law, given that the bag of jewelry was locked in the

Loss Prevention Office, and that there is no indication Marriott was aware that the

theft suspect could not be trusted. Cf. Gooden, 196 Ga. App. at 326 (2) (hotel

employees acted with ordinary care and diligence as a matter of law where when they

took a bag of money from guest’s room for safekeeping and turned it over to a trusted

supervisor, who ultimately absconded with the money). The trial court therefore did

not err in granting summary judgment on Jordan’s claim of bailment.

      3. Jordan also asserted a claim for breach of contract. She alleged that after the

jewelry was recovered from her hotel room safe, Marriott entered into a contract with

her when it promised that it would keep her jewelry securely locked in the hotel safe.

But for essentially the same reasons stated in Division 2, we affirm the trial court’s

ruling granting partial summary judgment on that claim. See OCGA § 13-3-42 (a)


      12
        Slight diligence is defined, in general, as
      that degree of care which every man of common sense, however
      inattentive he may be, exercises under the same or similar
      circumstances. As applied to the preservation of property, the term
      “slight diligence” means that care which every man of common sense,
      however inattentive he may be, takes of his own property.


OCGA § 51-1-4.

                                          18
(“(a) To constitute consideration, a performance or a return promise must be

bargained for by the parties to a contract. (b) A performance or return promise is

bargained for if it is sought by the promisor in exchange for his promise and is given

by the promisee in exchange for that promise.”). Here, there is no evidence that the

parties bargained for Marriott’s agreement to safeguard Jordan’s jewelry, i.e., no

evidence that Marriott sought or received consideration in exchange for the promise

to hold Jordan’s jewelry, and therefore no contract. The trial court therefore correctly

granted summary judgment in favor of Marriott on Jordan’s breach of contract claim.

      4. Finally, Marriott contends the trial court erred in ruling that there was an

issue of fact as to whether Marriott acted in bad faith in its pre-litigation dealings

with Jordan.

      In her complaint, Jordan sought attorney fees under OCGA § 13-6-11 for bad

faith,13 which requires proof of bad faith in the transaction out of which the lawsuit

arose. See Merlino v. City of Atlanta, 283 Ga. 186, 191 (4) (657 SE2d 859) (2008).

“Questions as to whether the defendant has acted in bad faith are generally for the

jury to decide.” Id. Here, evidence was presented to show that Marriott made little or


      13
        Jordan also sought fees for stubborn litigiousness, which the trial court
dismissed on summary judgment. Jordan has not appealed that ruling.

                                          19
no attempt to contact law enforcement after discovering a possible theft for almost

two weeks thereafter and required Jordan to file her own police report; that Marriott

refused to return Jordan’s remaining jewelry when she came to Atlanta on or about

February 19, 2015, and only later mailed it to her; and that Marriott management

refused to meet with her when she visited on February 19. Thus there was some

evidence of bad faith in Marriott’s dealings with Jordan, and the trial court correctly

denied summary judgment on this count.

      In conclusion, although we disagree with the trial court’s findings regarding

whether Jordan remained a guest for some period of time after she departed Atlanta

on January 30, 2015, the trial court correctly limited any claim under the innkeeper

statutes to $1,000, correctly found an issue of fact as to whether Marriott had

exercised extraordinary care if it was still in an innkeeper-guest relation with Jordan,

correctly granted summary judgment in favor of Marriott on Jordan’s claims of

bailment and breach of contract, and correctly found an issue of fact remaining on bad




                                          20
faith. We therefore affirm the trial court’s ruling with the exception that we hold that

there remains an issue of fact for the jury on Jordan’s status as a guest under the

innkeeper statutes.

      Judgment affirmed in part and reversed in part. Ray, J., concurs in the

judgment only. McFadden, P. J., concurs fully in Division 4, in the judgment only in

Division 1 (a), and dissents in Divisions 1(b), 2, and 3.*



*THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS

RULE 33.2(a).
In the Court of Appeals of Georgia
 A18A0167, A18A0199. JORDAN v .                       MARRIOTT
     INTERNATIONAL, INC.; and vice versa.


      MCFADDEN, Presiding Judge, concurring in part and dissenting in part.

      Wendy Jordan asserted three alternative claims against Marriott to recover

the value of the stolen jewelry she had entrusted to Marriott: a claim under two

provisions of the innkeeper statutes, OCGA §§ 42-21-8 and 42-21-12; a claim for

breach of bailment; and a claim for breach of contract. She also sought attorney

fees for, among other things, bad faith. I would hold the evidence sufficient to go




                                          2
to a jury on all three of those claims and that the applicability of a $1,000 liability

limit under the innkeeper statutes is likewise a jury question.

      The trial court denied Marriott’s motion for summary judgment on the

innkeeper-statutes claim, but limited Marriott’s liability on that claim to $1,000.

He granted summary judgment to Marriott on the claims for breach of bailment,

breach of contract, and attorney fees based on stubborn litigiousness. And he

denied summary judgment to Marriott on the bad faith attorney fee claim.

      The majority would affirm the denial of summary judgment on the

innkeeper statutes and bad faith attorney fee claims and the grant of summary

judgment on the breach of bailment and breach of contract claims. I agree with the

majority in two respects: that Marriott is not entitled to summary judgment on the

negligence per se claim or the claim for attorney fees based on bad faith. But I

disagree with the majority’s holding that the negligence per se claim must be

capped at $1,000. And I disagree with the majority that Marriott is entitled to

summary judgment on the breach of bailment and breach of contract claims. So I

respectfully dissent in part.

      1. Innkeeper statues.



                                            3
      “At common law an innkeeper was an insurer of the goods of his guest.”

Jones v. Savannah Hotel Co., 141 Ga. 530 (81 SE 874) (1914). The innkeeper

statutes were enacted “to relax the stringent rule of the common law, so as to

permit the innkeeper to protect himself against liability under certain

circumstances.” Id. I would hold that it is for a jury to decide whether those

circumstances obtain here.

      So I agree with the majority that Jordan’s claim under the innkeeper statutes

should proceed to a jury (although I concur in judgment only in Division 1 (a)

because I do not agree with the emphasis the majority places on the evidence of a

lack of a formal check-out). I disagree, however, that Jordan’s potential recovery

on that claim should be capped at $1,000, so I dissent to Division 1 (b).

      Jordan brought her innkeeper statutes claim under two provisions of

Georgia’s innkeeper statutes, OCGA §§ 42-21-8 and 42-21-12. Those Code

sections concern the liability of a hotel1 for property entrusted to it by a guest.

OCGA § 42-21-8 provides: “An innkeeper shall exercise extraordinary diligence

in preserving the property entrusted to his care by his guests, provided that, if the


      1
        A hotel such as Marriott falls within the definition of an “inn.” OCGA § 43-
21-1 (2).

                                            4
loss of such entrusted property occurs through theft and if the guest has complied

with all reasonable rules of the inn, the innkeeper shall be liable as an insurer of

the stolen property.” And OCGA § 43-21-12 sets out the circumstances when that

liability is limited to $1,000:

       In case of loss of property entrusted by a guest to an innkeeper, it will
       be presumed that the innkeeper failed to exercise extraordinary
       diligence with regard to such property. . . . The liability of the
       innkeeper for loss or or injury to personal property placed by any
       guest under the innkeeper’s care, other than valuable articles which
       must be delivered to the innkeeper to be deposited in a safe or other
       place of deposit, shall not exceed the sum of $1,000.00, provided that
       any guest may, at any time before loss, damage or destruction of the
       guest’s property, notify the innkeeper in writing that the guest’s
       property exceeds in value the sum of $1,000.00 and shall, upon
       demand of the innkeeper, furnish the innkeeper with a list or schedule
       of the same, with the value thereof, in which case the innkeeper shall
       be liable for the full value of such property in case of loss, damage, or
       destruction because of negligence on the innkeeper’s part[.]


       So the plain language of OCGA § 43-21-12 provides that an innkeeper

which fails to exercise extraordinary diligence with regard to property entrusted to

its care, as required by OCGA § 43-21-8, may be liable to a guest for the loss of

that property in an amount exceeding $1,000 if: (1) the property did not fall within


                                            5
the exception pertaining to valuables that must be delivered to the innkeeper; (2)

the guest notified the innkeeper in writing, before the loss, that the property was

worth more than $1,000; and (3) the guest, if asked, provided the innkeeper with a

list or schedule of the property and its value. As detailed below, the facts viewed

in the light most favorable to Jordan show that these three prerequisites for

liability exceeding $1,000 were met. I address each of these prerequisites in turn.

      (a) Exception for valuables that must be deposited with innkeeper.

      OCGA § 43-21-12 excepts from its provisions situations in which the

property at issue was a “valuable article[ ] which must be delivered to the

innkeeper to be deposited in a safe or other place of deposit[.]” (Emphasis

supplied.) The majority finds that Jordan’s jewelry fell within this exception. I

disagree.

      Reading the innkeeper liability statutes in pari materia, and construing them

to give meaning to all the terms therein, see Arby’s Restaurant Group v. McRae,

292 Ga. 243, 245 (1) (734 SE2d 55) (2012), the exception in OCGA § 43-21-12

refers to other Code sections authorizing an innkeeper to require valuables to be

deposited in a safe or other place of deposit provided by the innkeeper and



                                          6
establishing limits to the innkeeper’s liability for them. OCGA § 43-21-10

provides:

      The innkeeper may provide a safe or other place of deposit for
      valuable articles and, by posting a notice thereof, may require guests
      of the innkeeper to place such valuable articles therein or the
      innkeeper shall be relieved from responsibility for those articles. For
      all valuable articles placed by a guest with an innkeeper for
      safekeeping, the innkeeper shall give a receipt therefore to evidence
      the face of such deposit.


If the guest does not possess the receipt for articles claimed to have been lost, the

innkeeper’s liability is limited to $750. Id. And OCGA § 43-21-11 provides that if

the valuables deposited with the innkeeper are in a container, the innkeeper’s

liability is limited to $1,000 unless the guest and the innkeeper contract in writing

for a higher amount. Here, instead of providing a common safe or other place of

deposit so that guests could deliver valuables to the innkeeper for safekeeping,

Marriot provided an individual safe for each room; and Jordan put her jewelry in

the safe provided to her.

      While OCGA § 43-21-11 is not expressly limited to valuables that must be

delivered to the innkeeper pursuant to OCGA § 43-21-10, our rules of statutory

interpretation require that it be construed to be so limited. Otherwise, OCGA § 43-

                                           7
21-11 would be an additional exception to OCGA § 43-21-12 not contained in that

Code section’s language. Reading an additional exception into OCGA § 43-21-12

goes against our obligation to strictly construe that Code section, as it is a statute

in derogation of common law. See generally Couch v. Red Roof Inns, 291 Ga. 359,

364 (724 SE2d 378) (2012) (statutes in derogation of common law must be strictly

construed).

      So the exception to OCGA § 43-21-12 for “valuable articles which must be

delivered to the innkeeper to be deposited in a safe or other place of deposit” does

not apply to the facts of this case, viewed in the light most favorable to Jordan.

Jordan initially placed her jewelry in her hotel room safe, consistent with the

requirement of OCGA § 43-21-10. Employees of Marriott removed the jewelry

from that safe before its loss. Marriott employees also removed the jewelry from

its bag and inventoried the jewelry before its loss, meaning that Marriott knew

what was in the bag. After inventorying the jewelry, Marriott did not immediately

place it in a safe, as Marriott had told Jordon it would do. Instead, for several days

Marriott left the jewelry in a locked office that was accessible to a number of

Marriott employees. In other words, Marriott did not treat the jewelry as a deposit

of valuables under OCGA § 43-21-10 or OCGA § 43-21-11. Moreover, at the time

                                            8
of the loss, Jordan was under no obligation to deliver the jewelry to Marriott

pursuant to OCGA § 43-21-10. She could have made another arrangement for the

jewelry.

      Given these facts, the first prerequisite for liability exceeding $1,000 under

OCGA § 43-21-12 was met: the jewelry did not fall within the exception

pertaining to valuables that must be delivered to the innkeeper.

      (b) Notification in writing.

      Viewed most favorably to Jordan, the evidence showed that she sent a text

message to a Marriott employee stating that the jewelry she had left in her room

safe had a value exceeding $1000. The Marriott employee immediately shared this

information with a Marriott manager, and Marriott acted on the information. This

occurred before the jewelry was lost. A jury could find from these facts that Jordan

met the written notification requirement of OCGA § 43-21-12. See generally

Pierce v. State, 302 Ga. 389, 397-398 (2) (b) (807 SE2d 425) (2017) (treating text

messages as writings in analyzing application of best evidence rule).

      (c) List or schedule of property and value.

      Finally, from the evidence, a jury could conclude that Marriott did not

demand that Jordan furnish it with a list or schedule of the jewelry and its value.

                                          9
Consequently, Jordan was not required to provide that information to recover more

than $1,000 under OCGA § 43-21-12.

      2. Bailment.

      I would reverse the trial court’s grant of summary judgment as to Jordan’s

claim for bailment, so I dissent to Division 2. Because it is undisputed that some

of Jordan’s jewelry was lost, Marriott as the bailee bears the burden of proving

that it satisfied its duty of care. OCGA § 44-12-44. That duty, for purposes of a

defense motion for summary judgment, was one of ordinary care because the

evidence, viewed most favorably to Jordan, supports a finding that the bailment

benefitted both parties. And there was evidence from which a jury could find that

Marriott breached its duty of care.

      (a) Evidence of mutual benefit supporting duty of ordinary care.

      As the majority notes, our Code provides that “[d]ifferent degrees of

diligence are required [of a bailee] according to the nature of the bailments[,]”

OCGA § 44-12-43, and if the bailment is for the mutual benefit of the parties, the

bailee must use ordinary care. See Merchants’ Nat. Bank of Savannah v.

Guilmartin, 88 Ga. 797, 799 (15 SE 831) (1892). While the “degree of negligence

required to impose liability upon a bailee is generally a question of law to be

                                          10
determined by the court[,]” Atlanta Limousine Airport Servs. v. Rinker, 160 Ga.

App. 494, 495 (1) (287 SE2d 395) (1981) (citation omitted), the evidence in this

case, viewed most favorably to Jordan, gives rise to a question of fact as to

whether Marriott received a benefit from agreeing to take Jordan’s jewelry into

safekeeping. There is evidence that Marriott benefitted from the bailment in the

form of good will, both in its frequent guest, Jordan, and in the broader universe of

its other guests and potential guests. See Electro-Medical Devices v. Urban

Medical Servs., 140 Ga. App. 776, 777-778 (1) (232 SE2d 106) (1976) (evidence

of good will flowing to bailee can support finding of mutual benefit in bailment).

Certainly, a jury could conclude that Marriott would not have been willing to enter

into the bailment with Jordan concerning her jewelry if she had been a stranger

who walked in from the street, rather than a hotel guest.

      (b) Evidence of breach of duty of ordinary care.

      There is evidence that for several days Marriott left the jewelry in an office

to which a number of employees had access, and that this act violated Marriott’s

policy of placing items left by guests in a safe deposit box if the items had a value

greater than $50. This evidence created a genuine issue of material fact regarding

whether Marriott breached its duty of ordinary care to Jordan.

                                          11
      3. Breach of contract.

      Finally, I would reverse the trial court’s grant of summary judgment to

Marriott on Jordan’s contract claim, so I dissent to Division 3. Any benefit

accruing to the promisor constitutes consideration. See Pepsi Cola Bottling Co. v.

First Nat. Bank, 248 Ga. 114, 116 (2) (281 SE2d 579) (1981). The good will

Marriott maintained by agreeing to keep the jewelry safe, discussed above, was

consideration for that agreement. See Speir v. Nicholson, 202 Ga. App. 405, 408

(2) (414 SE2d 533) (1992) (rejecting party’s claim of failure of consideration

because party received good will, among other things). And “[a] promise which

the promisor should reasonably expect to induce action or forbearance on the part

of the promisee or a third person and which does induce such action or

forbearance is binding if injustice can be avoided only by enforcement of the

promise.” O.C.G.A. § 13-3-44 (a).




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