This is the second appeal from a bench trial on an estate’s claim that its executor stole a truck from it. Defendant Shirley Meeks, the erstwhile executor, argues that the trial court erred when it granted the estate of Opal Mae Tapley partial summary judgment, when it denied Meeks’s request for a jury trial, and when it awarded the estate damages and attorney fees in the amount of $96,433.73. We hold that the trial court erred when it altered the award of compensatory damages after Meeks’s unsuccessful first appeal and when it awarded the estate fees expended in a previous will contest. We therefore affirm the judgment in part, reverse it in part, and remand for further proceedings as to fees. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Citations omitted. Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991. As to the bench trial on damages, however, we will not set aside the trial court’s findings unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52 a. The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them. Citation omitted. Chesser v. Chesser , 284 Ga. App. 381 643 SE2d 764 2007.
So viewed, the record shows that Opal Mae Tapley’s husband predeceased her, leaving her all his possessions, including a 2003 pickup truck. Tapley herself died in June 2006, after which Shirley Meeks submitted a will to probate in Carroll County under which she was both executor and sole beneficiary. In November 2007, the probate court set the will aside on the ground that Tapley had lacked the capacity to make it. The probate court also appointed Lawrence Shadix as temporary administrator of Tapley’s estate. After a jury trial, the Carroll County trial court also set aside the will.
