concurring in part and dissenting in part.
Case No. A01A2451
1. I fully concur in, and welcome, the majority’s acknowledgment, although late in the tortured appellate history of this case, that “the Clarks clearly lost their [Racketeer Influenced & Corrupt Organizations Act (‘RICO’)] judgment and the directed verdict holding that Security wrongfully interfered with their property rights by wrongfully rescinding their insurance coverage.”
I concur in Division 5 (a), which concludes that the issues of the amount of attorney fees and liability for and amount of punitive damages “must be retried because the award was based on all three claims, not just fraud.” I must dissent to the portion of Division 5 (a) which concludes that liability for attorney fees was established and only the amount is subject to retrial because, as explained below, I believe Security Life is entitled to a new trial on the Clarks’ remaining causes of action, including attorney fees. I concur in Division 5 (b) which concludes, among other things, that the Clarks’ argument that payment of any punitive damages would be made by reinsurers, not Security, was linked to the “insurance fraud scheme, i.e., the RICO scheme” and that “that justification for the evidence may not be used on retrial.” I concur in Division 5 (c) which found that the trial court erred in imposing only partial costs on the Clarks on the original appeal.
2. I must vigorously dissent, however, from the remaining Divisions of the majority opinion. In them, the majority somehow concludes, even in light of Security Life Ins. Co. v. Clark, 229 Ga. App. 593 (494 SE2d 388) (1998) (“Security I); Clark v. Security Life Ins. Co., 270 Ga. 165 (509 SE2d 602) (1998) (“Security II’); Security Life Ins. Co. v. Clark, 273 Ga. 44 (535 SE2d 234) (2000) (“Security IV”); and Security Life Ins. Co. v. Clark, 249 Ga. App. 18 (547 SE2d 691) (2001) (“Security V”), that the Clarks, both Mr. Clark, who did testify at trial, and Mrs. Clark, who did not testify or otherwise show dam*35ages incurred by her on any of her claims, were entitled, based upon the special interrogatory verdict form used in this case, to have a modified judgment for over $6,000,000 entered in their favor upon the remand of this case to the trial court.
(a) As noted by, tut then ignored by, the majority, the judgment entered by the trial court following the trial stated that the Clarks “have elected to have judgment entered in their favor and against Defendants on their claims asserted under the Georgia [RICO] Act. . . .” Of the 15 special interrogatories used on the verdict form, upon which so much emphasis is placed by the majority, Numbers 6 through 13 specifically refer to the RICO claim. Following Number 13, in which the jury answered “yes” to the question of whether the Clarks were damaged by “reason of such violation of Section 4 (c) of the RICO Law,” Number 14 asked, “[w]hat amount do you find . . . to be the full, just, and reasonable compensation for the plaintiffs’ injuries caused by the wrongful conduct of the defendant?” In response, the jury answered the full face value of both Mr. and Mrs. Clarks’ insurance policies, plus damages for mental suffering, and expenses of litigation.12 Even in the event of a default and, thereby, resolution of the issue of liability, a plaintiff is still required “to present evidence establishing those damages. See Agnew v. Great A & P Tea Co., 232 Ga. App. 708, 710 (1) (502 SE2d 735) (1998).” Conseco Finance Servicing Corp. v. Hill, 252 Ga. App. 774, 777 (2) (556 SE2d 468) (2001). Obviously, it follows that the Clarks were required to prove their actual damages, even in order to recover against Fipps.
Interrogatories 1 and 2 refer to the wrongful rescission claim, upon which, as acknowledged by the majority, the trial court improperly directed a verdict as to liability in favor of the Clarks. Only Interrogatories 3 and 4 relate to the Clarks’ fraud claim. They ask if the jury found “that the defendant [singular and otherwise unidentified, even though the issue of damages was still unresolved as to Fipps] committed a fraud upon the plaintiffs”; and if plaintiffs “were injured or damaged as a result of this fraud, if any.” It is upon the slender reed of Interrogatories 3 and 4 that the majority bases its conclusion that the Clarks, without more, are entitled to a judgment of the full face value of their medical and life insurance policies and other damages, although the majority acknowledges that the jury imposed compensatory damages in the amount of $4,073,000 “without distinguishing among the three claims (fraud, wrongfiil interference, and RICO).” This also would appear to be in direct conflict with *36the majority’s conclusion that it is unable to discern upon which claim punitive damages were imposed, and, therefore, a retrial is required.
The majority also makes the following revealing statements regarding the fraud claim, based on Security I, Security II, Security IV, and Security V:
[T]he fraud claim is still available in the sense that it is not precluded by the doctrine of election of remedies.
The Supreme Court... in Security IV made clear that there was a possible ground to support a common law fraud verdict.
Finally, elimination of the RICO claim by the appellate courts did not eliminate the possibility of a fraud verdict.
(Emphasis supplied.)
I do not disagree that, upon a retrial on the remaining claims of wrongful rescission and fraud, there is a possibility of a fraud verdict. See Security V, supra at 19 (3) (Andrews, R J., concurring specially). This, however, is light years removed from the majority’s agreement with the trial court’s modified judgment entered without a retrial and in the complete absence of evidence of legally recoverable actual damages. See Conseco Finance Servicing Corp. v. Hill, supra.
(b) In Division 2 (c) the majority concludes that Security IV “reopened the possibility that the remaining enumerations of error not addressed in Security I regarding fraud were not moot.” (Emphasis supplied.) First, it is noted that the possibility of remaining enumerations regarding fraud is only alluded to by the dissent in Security IV and is, therefore, dispositive of nothing. The majority, citing Roulain v. Martin, 266 Ga. 353 (466 SE2d 837) (1996),13 nonetheless concludes, based solely on Security’s failure to file a motion for reconsideration or writ of certiorari following Security V, that there is a “question about whether Security may have waived the issues represented by the remaining enumerations related to fraud.” It is unclear, however, since Security V reversed the judgment entered on the RICO verdict and required that a verdict in Security’s favor be directed on that claim, why Security would file either a motion for reconsideration or a writ of certiorari in an appeal it appears to have won.14 The majority, nonetheless, then addresses the “remaining enumerations relevant to the fraud verdict.”
*37The actual enumerations of error in Security I were that the trial court erred:
(i) “in directing a verdict in favor of the Clarks on their claim for wrongful interference with property rights.” The trial court did so err. Security I, supra at 603 (2), left untouched by Security II. Security IV, supra at 44.
(ii) “in denying Security’s motion for directed verdict on the RICO claim.” The trial court, as acknowledged in Security I, Security II, Security IV, and now by the majority, did so err.
(iii) “in directing a verdict that Fipps was not the Clarks’ agent.” The trial court did not err. Security II, supra at 167 (2), reversing Security I, supra at 602 (1) (d). Fipps is, therefore, for purposes of any retrial, the agent of Security.
(iv) “in permitting introduction of evidence of disputes between Security and other insureds.” This ruling was mooted because that evidence dealt only with the insurance scheme to defraud, i.e., the RICO claim.
(v) “in its pre-trial sanctions orders and in permitting Plaintiffs to argue pre-trial orders at trial.” The original judgment in Security I provided that some of these pre-trial orders were moot and the amounts assessed on others were “subsumed in the amount awarded in this final judgment as the Plaintiffs’ overall expenses of investigation and litigation, including attorney’s fees.” This matter is moot because a directed verdict is to be entered in Security’s favor on the RICO claim and because Division 5 (a) of the majority requires retrial of punitive damages and attorney fees. These items now relate, of course, only to any possible verdict in the Clarks’ favor on the retrial of their claims for wrongful rescission and fraud.
(vi) “in giving the jury contradictory instructions.” The instructions at issue dealt with Georgia Insurance Commission provisions governing insurance and related, therefore, only to the RICO claim.
(vii) “committed numerous errors related to damages.” Because, pursuant to Security I, affirmed by Security II and Security IV, the Clarks were entitled to no damages on their RICO claim, the only claim upon which the judgment appealed from was entered, that issue is moot as to the RICO claim. To the extent it can be argued that Security should have divined that, upon remand from its successful appeal, the trial court would impose a judgment on the possible fraud claim represented by two interrogatories on the verdict form and Security should have anticipated this and prospectively argued the illegality of any such damages, Security may argue this now, or following retrial. One does not waive “any valid exception to a verdict arguably in excess of that authorized by law by failing to object to the court’s proposed verdict form or to the verdict itself *38immediately upon its return.” Scott v. Battle, 249 Ga. App. 618, 622 (4) (a) (548 SE2d 124) (2001).
The majority finds that, regarding the possible fraud verdict, Security’s objection to the testimony of former Insurance Commissioner Ryles was not valid. The transcript reflects that Ryles testified extensively regarding numerous failures by Security to comply with insurance regulations, the heart and soul of the Clarks’ RICO claim which was also premised on fraud.15 Ryles’ testimony represents over 260 pages of transcript. As held in Security I, supra at 599 (1) (b) and affirmed by Security II, supra at 168 (3), violations of the insurance code cannot serve as predicate acts for RICO.
The only statement by Ryles, made in the context of his testimony concerning these regulatory violations, regarding the Clarks’ damages was that the maximum value of the coverage promised by the Insight Answer plan to the Clarks was the limits of their lifetime coverage. I believe Security’s objection to this evidence should have been sustained and the allowance of the evidence was a clear abuse of discretion. It is unclear how, in a retrial, such an opinion from an expert regarding regulation of insurance would be probative of any damages suffered by the Clarks as a result of fraud alone or wrongful interference with property rights.
Regarding proof of damages, I note again that Mrs. Clark did not testify at the trial regarding any damages and no damages were otherwise proven regarding her. Mr. Clark testified that he had incurred medical expenses of $62,330.41 which Security had not paid.
Therefore, I believe that Security had a valid objection to the evidence regarding damages to the extent that evidence might or might not be relevant upon the retrial of the wrongful interference and fraud claims alone.
(viii) “committed numerous errors relating to punitive damages.” The trial court did so err, as stated by the majority in Division 5 (a).
(c) Although the majority has striven mightily to indicate that the only issues remaining on remand are issues of “law,” thereby requiring no new trial, a new trial is required because the Clarks must prove all the elements of fraud, including that their actual damages flowed from such fraud, even as to Fipps. See, e.g., Bacote v. Wyckoff, 251 Ga. 862, 865 (1) (310 SE2d 520) (1984).
Further, the authority relied upon by the majority recognizes that, even prior to both the Civil Practice Act and the Appellate Practice Act, a new trial was required when a judgment is reversed without specific direction to do otherwise.
*39As a general rule, where the writ of error is founded upon a trial below in which both law and fact were involved, and where the complaint is that the plaintiff in error [here Security] lost his case when he was entitled to gain it, and where this court is of opinion that he was entitled to gain it, and where, for that reason, the judgment of the court below is reversed, a new trial follows unless this court, by way of direction, dictates something else.
Schley v. Schofield & Son, 61 Ga. 528, 530 (1878), cited in Stafford Enterprises v. American Cyanamid Co., 164 Ga. App. 646, 649 (297 SE2d 307) (1982). See also Worley v. Travelers Indem. Co., 121 Ga. App. 179, 181 (173 SE2d 248) (1970).
In Clark v. Jefferson Pilot Life Ins. Co., 209 Ga. App. 93, 94 (2) (432 SE2d 815) (1993), even when a verdict form using special interrogatories was used during the initial trial, this Court concluded that, upon the reversal of that judgment, a new trial was required.
So it is here. Upon receipt of the remittitur from this Court in Security V, the trial court was authorized to conduct a new trial, nothing more, nothing less.
Case No. A01A2450
3. Since a new trial is required upon remand, St. Paul Fire & Marine Insurance Company was entitled to have the supersedeas bond posted on behalf of Security declared void because, as stated in that bond, “if the judgment is overturned, vacated, reversed in any way by any court exercising appellate jurisdiction over this matter, then this obligation shall become void to the extent the judgment is overturned, vacated, reversed, or modified. . . .”
Even the majority must concede that, at a minimum, the judgment has been modified, as reflected in the modified judgment which is the subject of these two appeals.
Interrogatory 15 dealt with punitive damages, which the majority concludes must be retried because “the award was based on all three claims, not just fraud.”
That case appears to stand for the proposition that, once an appellate court has affirmed a conviction in a criminal case, the defendant is bound by that ruling in a subsequent civil habeas corpus proceeding.
That Security did not file either a petition for certiorari or motion for reconsideration following Security V is in no way determinative of its right to argue these errors now or following retrial. Todd v. Dekle, 240 Ga. 842 (242 SE2d 613) (1978).
Both mail and wire fraud, alleged as predicate acts, require proof of a “scheme [or artifice] to defraud.” Security I, supra at 598.