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 Charles Howard Candler III sued Reliance Trust Company “Reliance”, co-trustee of the trust, for breach of trust. They alleged that after the death of the settlor, Reliance made improper distributions from the corpus of the trust to Mr. Candler, who was the life beneficiary. The remainder beneficiaries alleged these improper distributions significantly diminished the value of the trust and thereby damaged them in an amount equal to the improper distributions, plus interest. The case was tried and the jury returned a verdict finding that Reliance did not act in bad faith but otherwise finding in favor of the remainder beneficiaries in the amount of $1,140,924.41. The trial court entered final judgment on the verdict and also awarded the remainder beneficiaries $535,558.15 in pre-judgment interest, which was affirmed by the Court of Appeals. Id. We granted Reliance’s petition for a writ of certiorari, directing the parties to address only these points: Did the Court of Appeals err when it upheld the jury’s verdict in favor of Respondents/Appellees and when it affirmed the trial court’s award of interest.
1 a. Reliance claims that, pursuant to OCGA § 53-12-260,1 the language used in this trust instrument must be construed as granting the trustee absolute discretion to make distributions to Mr. Candler from the corpus of the trust. Citing Citizens & Southern Nat’l Bank v. Orkin, 223 Ga. 385, 388 1 156 SE2d 86 1967 affirming the trial court’s findings that the trustee had acted arbitrarily and was liable for breach of its duties and Springer v. Cox, 221 Ga. 673, 676 1 146 SE2d 753 1966 finding that, pursuant to the terms of the instrument in question, the trustee could have no liability so long as the trustee “acted bona fide to accomplish the purposes of the trust and in conformity with a reasonable discretion”, Reliance asserts it has long been the law of Georgia that a trustee cloaked with absolute discretion is required only to act in good faith.2 Assuming without deciding that this is a correct statement of the law and that the trust instrument in this case granted absolute discretion to Reliance with respect to distributions from the corpus of the trust, we hold that Reliance waived this ground for appeal.
