                                 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 27, 2018




In the Court of Appeals of Georgia
 A18A0596. WOODRUM et al. v. GEORGIA FARM BUREAU
     MUTUAL INSURANCE COMPANY.

      MCFADDEN, Presiding Judge.

      The dispositive issues in this appeal are whether the trial court abused its

discretion in excluding a witness’ opinion testimony as to diminution in value of

certain property and in then granting summary judgment based on an absence of any

evidence of diminution in value. While the court did not abuse its discretion in

finding that the witness could not offer expert opinion testimony, the court did abuse

its discretion in finding that the witness could not offer his opinion of value as a lay

witness. So we reverse both the order excluding such lay witness opinion testimony

and the grant of summary judgment.
      “On appeal from the grant of summary judgment, the appellate court conducts

a de novo review of the evidence to determine whether there is a genuine issue of

material fact and whether the undisputed facts, viewed in the light most favorable to

the nonmoving party, warrant judgment as a matter of law.” Bank of America, N. A.

v. Cuneo, 332 Ga. App. 73, 74 (770 SE2d 48) (2015) (citation and punctuation

omitted). So viewed, the evidence shows that during a thunderstorm on July 5, 2012,

a large tree fell onto the roof of William and Kathy Woodrum’s house, causing

significant damage to the house. The next day, the Woodrums reported the damage

to their insurer, Georgia Farm Bureau Mutual Insurance Company. On November 7,

2012, after the Woodrums and Georgia Farm Bureau were unable to agree upon the

amount of the loss, the Woodrums invoked the appraisal clause of the insurance

policy. That clause provided:

      If you[, the Woodrums,] and we[, Georgia Farm Bureau,] fail to agree
      on the amount of loss, either may demand in writing an appraisal of the
      loss. In this event, each party will choose a competent appraiser within
      20 days after receiving a written request from the other. The two
      appraisers will choose an umpire. If they cannot agree upon an umpire
      within 15 days, you or we may request that the choice be made by a
      judge of a court of record in the state where the residence premises is
      located. The appraisers will separately set the amount of the loss. If the
      appraisers submit a written report of an agreement to us, the amount
      agreed upon will be the amount of loss. If they fail to agree, they will


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      submit their differences to the umpire. A decision agreed to by any two
      will set the amount of loss.

On February 5, 2013, pursuant to the appraisal process, an award was issued and

agreed to by the Woodrums’ appraiser and the appointed umpire. Georgia Farm

Bureau made payment of the award to the Woodrums.

      The Woodrums subsequently brought suit against Georgia Farm Bureau,

seeking compensation for diminution in value. The complaint included counts for

breach of contract and breach of an implied duty of good faith and fair dealing. The

breach of contract claim was based on allegations that the fallen tree had caused a

crack in the slab foundation of the house, that the value of the house was diminished

by the cracked foundation, that such diminished value was a covered loss under the

policy that was not included in the appraisal award, and that Georgia Farm Bureau

had failed to pay for that diminished value. In support of the claim, the Woodrums

filed the affidavit of George Hall, the contractor who had repaired the Woodrums’

house and who opined that the value of the house was diminished by the foundation

being cracked. During a subsequent deposition, Hall gave his opinion that the house

had lost 25 percent of its value due to the cracked foundation.




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      Georgia Farm Bureau filed a motion to exclude Hall as an expert witness and

a motion for summary judgment. On March 24, 2017, the trial court entered an order

granting the motion to exclude Hall’s testimony as an expert regarding the diminution

in value of the Woodrums’ property. In that same order, the trial court also excluded

Hall’s testimony as a lay witness giving an opinion as to value. On that same date, the

trial court issued a separate order granting the insurance company’s motion for

summary judgment on both of the Woodrums’ claims. As to the breach of contract

claim, the court found that without Hall’s excluded testimony, there was no other

evidence that the diminution in value of the property was not included in the amount

of loss determined under the appraisal clause. As to the claim for breach of implied

duty of good faith and fair dealing, the court found that it could not be maintained

because there is no such independent cause of action apart from the breach of contract

claim, which had already been disposed of on summary judgment. The Woodrums

appeal.

      1. Exclusion of Hall’s testimony.

      The Woodrums challenge the trial court’s exclusion of Hall’s expert testimony

as to value and his lay witness opinion testimony on that issue. While the court did



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not err in excluding his testimony as an expert, the court did err in excluding his

testimony as a lay witness.

      At the outset, we note that the Woodrums were not required to present expert

testimony as to value. As we have explained in a different context involving property

valuation – confirmation of a nonjudicial foreclosure sale – the party seeking such

confirmation

      is under no obligation to present an expert appraisal of the property.
      Direct testimony as to market value is in the nature of opinion evidence.
      One need not be an expert or dealer but may testify as to its value if he
      has had an opportunity for forming an opinion. Of course, the opinions
      of experts as to the true market value of property are admissible, and
      provide sufficient evidence of value to support a trial court’s order of
      confirmation.

Harper v. Ameris Bank, 326 Ga. App. 67, 69-70 (2) (755 SE2d 872) (2014) (citation

and punctuation omitted; emphasis supplied).

      (a) Expert testimony.

      OCGA § 24-7-702 (b) provides:

      If scientific, technical, or other specialized knowledge will assist the
      trier of fact to understand the evidence or to determine a fact in issue, a
      witness qualified as an expert by knowledge, skill, experience, training,
      or education may testify thereto in the form of an opinion or otherwise,
      if: (1) The testimony is based upon sufficient facts or data; (2) The
      testimony is the product of reliable principles and methods; and (3) The
      witness has applied the principles and methods reliably to the facts of

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      the case which have been or will be admitted into evidence before the
      trier of fact.

In determining the admissibility of proposed expert testimony, “the trial court must

consider whether the methodology by which the expert reaches his conclusions is

sufficiently reliable.” Scapa Dryer Fabrics v. Knight, 299 Ga. 286, 289 (788 SE2d

421) (2016) (citation and punctuation omitted).

      In this case, the trial court found that Hall’s estimation of the diminution in

value of the subject property was “not based on any market comparisons or related

methodology” and that the Woodrums had “failed to establish that the methodology

by which Hall reached his conclusions was sufficiently reliable” to qualify him as an

expert witness. See Vineyard Indus. v. Bailey, 343 Ga. App. 517, 522 (2) (b) (806

SE2d 898) (2017) (the party seeking to rely on the expert bears the burden of

establishing that his testimony is reliable within the meaning of the statute). Hall’s

affidavit did not describe a methodology by which he reached his conclusions and at

his deposition, when asked to explain how he determined the amount of the value

diminution, he said that he had made the determination based on his experience.

Under these circumstances, we find that the trial court has not “abused its discretion




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in excluding [Hall from giving expert] testimony on this issue.” Id. at 523 (2) (b). So

that portion of the trial court’s order is affirmed.

      (b) Lay witness opinion testimony.

      OCGA § 24-7-701, which governs lay witness opinion testimony, provides:

      (a) If the witness is not testifying as an expert, the witness’s testimony
      in the form of opinions or inferences shall be limited to those opinions
      or inferences which are: (1) Rationally based on the perception of the
      witness; (2) Helpful to a clear understanding of the witness’s testimony
      or the determination of a fact in issue; and (3) Not based on scientific,
      technical, or other specialized knowledge within the scope of Code
      Section 24-7-702.

      (b) Direct testimony as to market value is in the nature of opinion
      evidence. A witness need not be an expert or dealer in an article or
      property to testify as to its value if he or she has had an opportunity to
      form a reasoned opinion.

      Thus, in this case, “the issue [is] whether the record demonstrate[s] that [Hall]

had an opportunity to form a [reasoned] opinion as to the amount [the Woodrums’]

house diminished in value[.]” Vitello v. Stott, 222 Ga. App. 134, 136 (1) (473 SE2d

504) (1996). See also Hirsch v. Joint City County Board of Tax Assessors, 218 Ga.

App. 881, 882 (1) (463 SE2d 703) (1995) (opinion evidence as to the value of an item

must be based upon a foundation that the witness has some knowledge, experience,

or familiarity with the value of the property in question). Contrary to the trial court’s


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ruling, the record amply demonstrates that Hall had such an opportunity to form a

reasoned opinion as to the value of the house.

      In his affidavit, Hall averred that he is a licensed contractor; that he is

experienced in home building and remodeling, and has constructed and repaired many

homes during his career; that he is familiar with the costs of construction and the

valuation of homes based on his professional experience; that he performed the repair

of the Woodrums’ house; that the house suffered massive structural damage due to

the fallen tree; that he witnessed the damage to the slab foundation, which had a crack

running from one edge to the other where the tree had fallen; that the crack affected

structural integrity of the home because the slab foundation will never be as strong

as it was before the crack; that he remains concerned about the crack reopening due

to future expanding and contracting of repairs made to the crack; that such structural

damage to a house’s foundation causes the loss of value; that a purchaser would

expect to pay less for a home with a cracked slab foundation; and that the ability to

use certain materials on top of the compromised foundation is limited, which causes

further loss of value.

      Similarly, at his deposition, Hall testified that he has experience inspecting

houses for structural integrity and giving opinions as to value; that he has the

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knowledge and experience to know what a house is worth by inspecting it; that he had

helped build an addition on to the Woodrums’ house in 2004; that the tree which fell

on the house was massive and basically cut the house in half; that the cracked

foundation was shown in certain photographs; that he performed repairs to the house;

and that his opinion as to the diminished value was based on his experience.

      “This evidence demonstrated that [Hall] was qualified to give an opinion [as

a lay witness] as to the amount the [foundation] damage diminished the value of the

property.” Vitello, supra (citation omitted) (lay witness opinion as to diminished value

appropriate where witness testified that she had personally viewed termite damage to

house, that she met with two contractors who inspected the house, and that the

contractors described to her the extent of the damage and the cost of repairs). “The

admission or exclusion of lay [witness] opinion evidence is committed to the sound

discretion of the trial court, and appellate courts will not interfere with such a ruling

absent an abuse of discretion.” Dagne v. Schroeder, 336 Ga. App. 36, 38 (2) (783

SE2d 426) (2016) (citation and punctuation omitted). Here, because the record shows

that Hall had an opportunity to form a reasoned opinion as to the value of the house,

the trial “court erred in excluding [his lay witness] opinion testimony as to the value

of [the] property and damages thereto.” Schoolcraft v. DeKalb County, 126 Ga. App.

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101, 103 (2) (189 SE2d 915) (1972). See also Long v. Marion, 182 Ga. App. 361,

364-365 (4) (355 SE2d 711) (1987) (lay witness opinion as to value proper where

witness related his knowledge and familiarity with the item, described its condition,

and introduced photographs of the damage to it). Accordingly, the trial court’s order

excluding Hall’s lay witness opinion testimony is reversed.

      2. Summary judgment.

      Given our holding above allowing Hall’s lay witness testimony, it follows that

the trial court erred in granting summary judgment on the Woodrums’ claims.

             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). Thus, to prevail on a motion for summary
      judgment, the moving party must demonstrate that there is no genuine
      issue of material fact, so that the party is entitled to judgment as a matter
      of law. A defendant may do this by either presenting evidence negating
      an essential element of the plaintiff’s claims or establishing from the
      record an absence of evidence to support such claims.

Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and

punctuation omitted).

      (a) Breach of contract claim.




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      The trial court granted summary judgment to Georgia Farm Bureau on the

Woodrums’ breach of contract claim on the basis that without Hall’s excluded

testimony, there was no evidence of the diminished value of the house. But because

of our holding above reversing the exclusion of Hall’s lay witness opinion testimony,

there is, contrary to the trial court’s finding, some evidence creating a genuine issue

of material fact as to the diminished value of the house. The trial court’s summary

judgment ruling as to the breach of contract claim was erroneous and therefore must

be reversed.

      (b) Breach of implied duty claim.

      As to the claim for breach of an implied duty of good faith and fair dealing, the

trial court’s grant of summary judgment on that claim was premised on its grant of

summary judgment on the breach of contract claim. The trial court reasoned:

      Georgia law does not recognize an independent cause of action based on
      the covenant of good faith and fair dealing apart from the breach of
      contract claim. [Cit.] Since the [c]ourt has determined that summary
      judgment is warranted as to Plaintiffs’ breach of contract claim,
      Plaintiffs’ claim for breach of the implied duty of good faith and fair
      dealing cannot be maintained. Therefore, the [c]ourt is compelled to find
      that summary judgment is proper as a matter of law on this claim.

      However, as explained above, the trial court erred in granting summary

judgment on the breach of contract claim and that ruling has been reversed.

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Consequently, its grant of summary judgment as to the breach of implied duty claim,

premised on its erroneous grant of summary judgment on the breach of contract

claim, must also be reversed.

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

concurs in the judgment only.*

            THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF

APPEALS RULE 33.2.




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