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Old Republic National Title Insurance Co. v. RM Kids, LLC

Court of Appeals of Georgia, Fourth Division

October 17, 2019


          DOYLE, P. J., COOMER and MARKLE, JJ.

          MARKLE, JUDGE.

         In the second appearance of this case before this Court, Old Republic National Title Insurance Company ("Old Republic") appeals from the denial of its motion for directed verdict in a trial for breach of contract, in which the jury found in favor of RM Kids and awarded damages in the amount of $4.2 million. See Old Republic Nat. Title Ins. Co. v. RM Kids, LLC., 337 Ga.App. 638 (788 S.E.2d 542) (2016). On appeal, Old Republic argues that there was no defect in title that would trigger coverage under the title insurance policy, and that, in any event, RM Kids suffered no damages. After a thorough review of the evidence, and with the benefit of oral argument, we conclude that the trial court properly denied the motion for directed verdict because there was a defect in the title that triggered coverage, and RM Kids proffered some evidence from which the jury could determine damages.

[O]n appeal from the denial of a motion for a directed verdict or a motion for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury's verdict. And because jurors are the sole and exclusive judges of the weight and credit given to the evidence, we must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. Nevertheless, we review questions of law de novo.

(Citations and punctuation omitted.) Old Republic Nat. Title Ins. Co., 337 Ga.App. at 648 (5). Moreover,

[t]he direction of a verdict is proper only where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. When there is opinion evidence, circumstantial evidence, presumptions of fact, or evidence subject to more than one reasonable construction, the appellate courts shall carefully scrutinize the grant of a directed verdict, because such evidence may be construed as providing the "any evidence" creating a jury question.

(Citation omitted.) Canton Plaza, Inc. v. Regions Bank, Inc., 315 Ga.App. 303, 303-304 (732 S.E.2d 449) (2012); see also OCGA § 9-11-50 (a).

         The underlying facts are undisputed and are set out in our prior opinion. See Old Republic Nat. Title Ins. Co., 337 Ga.App. at 638-641. In summary, in the early 1990's, one of Colonial Pipeline Company's ("Colonial") pumping stations leaked petroleum into the ground water on an area of land known as "Black Hawk Ranch" near Dacula, Georgia. Pursuant to a consent order between Colonial and the Georgia Environmental Protection Division, Colonial acquired the Black Hawk Ranch property and began remediation and monitoring.

         In 2005, after reducing the contamination, Colonial sold the property to Black Hawk Ranch, LLC, pursuant to a limited warranty deed. Attached to the deed was "Exhibit C," which provided the following:

In connection with the conveyance of the Property pursuant to this Limited Warranty Deed, Grantor hereby notifies Grantee and its successors and assigns that petroleum contamination, including groundwater and surface water contamination, emanating from Grantor's pipeline facility located adjacent to the Property was discovered in the early 1990s. Grantor has been assessing and remediating such contamination as required by the State of Georgia Environmental Protection Division ("EPD") and has assumed and maintains full responsibility for performing the investigation, remediation and monitoring of such petroleum contamination in accordance with applicable law and the requirements of the EPD; provided, however, groundwater contamination in the deep aquifer remains and will continue to be monitored by Grantor as required by the EPD.

         Exhibit C also placed the following four limitations on the use of the property: (1) no use of the groundwater for any purpose whatsoever; (2) an easement reserved by Colonial for access and maintenance of the monitoring well on the property; (3) a right of first refusal for Colonial to reacquire the property in the event the grantee received an offer on the property; and (4) reservation of a 25-foot riparian buffer easement as to Hopkins Creek and the Alcovy River.[1] The certificate of title included reference to the easement and restrictions as identified in Exhibit C.

         The property was later rezoned for residential development, and Black Hawk Ranch sold the property to BBC Partners, LLC ("BBC Partners"). Exhibit C was omitted from the chain of title for this sale. Old Republic issued the title insurance policy, which covered loss or damage sustained or incurred by reason of, inter alia, "[a]ny defect in or lien or encumbrance on the title" or "[u]nmarketability of the title." The policy also listed numerous exclusions, including for defects "resulting in no loss or damage to the insured claimant." Old Republic Nat. Title Ins. Co., 337 Ga.App. at 640.

         In 2006, BBC Partners purchased the adjacent property, and, again, Exhibit C was not included in the chain of title at closing. Id. Old Republic also issued a policy insuring title in connection with the loan for this purchase. Id.

         In 2008, RM Kids purchased the BBC Partners's loan from a lender, and learned of Exhibit C shortly thereafter. When BBC Partners subsequently defaulted on the loan in 2012, RM Kids purchased the property in foreclosure. Following unsuccessful attempts to have Old Republic address whether the omission of Exhibit C was a title defect triggering coverage under the title ...

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