On appeal from a jury verdict for defendant Gowen Timber Company Gowen Timber in this action for timber conversion, plaintiff AgSouth Farm Credit, ACA AgSouth argues that the trial court erred when it denied AgSouth’s motion for judgment notwithstanding the verdict because no evidence showed that Gowen Timber received written consent to cut the timber at issue. AgSouth also argues that the trial court erred when it denied its motions in limine to exclude parol evidence concerning AgSouth’s alleged consent to Gowen Timber’s cutting and other topics. We agree that the trial court erred when it admitted parol evidence as to AgSouth’s alleged consent, which the jury apparently considered in reaching a verdict for Gowen Timber. We therefore reverse the trial court’s denials of AgSouth’s motions in limine and for judgment notwithstanding the verdict as to liability, but we order a new trial as to damages, interest, and attorney fees.
The jury is the final arbiter of the facts, and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding that verdict. Wilmock, Inc. v. French, 185 Ga. App. 259, 261 1 363 SE2d 789 1987 citation and punctuation omitted. So viewed, the record shows that in November 2012, AgSouth sued Gowen Timber for timber conversion pursuant to OCGA § 51-12-51 a, which provides that a holder of legal title to an interest in land as security for debt may recover the unpaid portion of the secured indebtedness, interest thereon, and a reasonable attorney’s fee from any person who converts trees growing or grown on such land to his own uses without the written consent of the secured party. The unpaid portion of the secured indebtedness at issue in this case arose after George Gowen and Shirley Bluff, LLC defaulted on the residue of a $2 million loan first extended by AgSouth on July 29, 2009. In exchange for the loan, George Gowen and Shirley Bluff provided AgSouth with a promissory note, a deed to secure the debt in favor of AgSouth, and a security agreement. By means of the deed to secure debt, which was signed by the members of Shirley Bluff, LLC and George Gowen individually, Shirley Bluff, LLC conveyed a 1,057-acre parcel of land in Charlton County, known as the Shirley Bluff tract, as collateral for the loan. The deed provided in relevant part that the borrowers will not, except with the written consent of AgSouth, cut, use or remove, or permit the cutting, use or removal of, any timber or trees on the parcel for sawmill, turpentine or other purposes, except for firewood and other ordinary farm purposes. Emphasis supplied. The deed also contained a so-called dragnet1 provision to secure AgSouth’s lien as to all renewals, . . . extensions, refinances, modifications, or other rearrangements thereof; that any agreement by the lender to such modifications shall not discharge the lien of this security deed, which is to remain in full force and effect until the total indebtedness secured hereby has been paid in full; and that in the event of default, the borrowers agreed to pay reasonable attorney fees of not less than 10 of the amount secured, as well as costs. The security agreement, which was also signed by the members of Shirley Bluff, LLC and George Gowen individually, identified the collateral securing the loan as all merchantable or pre-merchantable standing, felled and harvested pine, hardwood, or other timber growing or to be planted on the property. Also on July 29, 2009, Gowen Oil Company, Inc., executed a promissory note in favor of Shirley Bluff, which Shirley Bluff assigned to AgSouth with the understanding that Gowen Oil would make the payments on the loan from AgSouth based on the recovery Gowen Oil anticipated in certain lawsuits.
