The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.
(Orig. Code 1863, § 2883; Code 1868, § 2891; Code 1873, § 2942; Code 1882, § 2942; Civil Code 1895, § 3796; Civil Code 1910, § 4392; Code 1933, § 20-1404; Ga. L. 1984, p. 22, § 13.)
Cross references.- Recovery of costs in contract actions, see § 9-15-9.
Law reviews.- For article advocating that payment of attorneys fees be assigned to the losing party, see 18 Ga. B.J. 439 (1956). For article discussing available remedies in this state for deceptive trade practices, in light of the model Unfair Trade Practices and Consumer Protection Law proposed in Georgia in 1973, see 10 Ga. St. B.J. 281 (1973). For article surveying developments in Georgia contracts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 67 (1981). For article surveying developments in the Georgia torts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 247 (1981). For survey article on torts, see 34 Mercer L. Rev. 271 (1982). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For survey article on wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For article discussing damages in an excess liability action, "The Liability Insurance Policy - Above and Beyond Coverage: Extra-Contractual Rights and Duties," see 22 Ga. State Bar J. 137 (1986). For annual survey of law of contracts, see 38 Mercer L. Rev. 107 (1986). For annual survey on trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For article, "Nonjudicial Foreclosures in Georgia Revisited," see 24 Ga. St. B.J. 43 (1987). For article, "Battling the Many-Headed Hydra: Abusive Litigation Law in Georgia," see 25 Ga. St. B.J. 65 (1988). For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B.J. 98 (1990). For annual survey of construction law, see 43 Mercer L. Rev. 141 (1991). For annual survey on law of torts, see 43 Mercer L. Rev. 395 (1991). For article, "Appeals, Interlocutory and Discretionary Applications, and Post-Judgment Motions in the Georgia Courts: The Current Practice and the Need for Reform Legislation," see 44 Mercer L. Rev. 17 (1992). For article, "Construction Law," see 53 Mercer L. Rev. 173 (2001). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005). For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005). For survey article on insurance law, see 59 Mercer L. Rev. 195 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on legal ethics, see 60 Mercer L. Rev. 237 (2008). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey on appellate practice and procedure, see 61 Mercer L. Rev. 31 (2009). For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For article, "Practice Point: Right of Publicity: A Practitioner's Enigma," see 17 J. Intell. Prop. L. 351 (2010). For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014). For annual survey on local government law, see 68 Mercer L. Rev. 199 (2016). For article, "What Duty of Care Does a Homeowner Association Owe Its Members?," see 22 Ga. St. Bar J. 19 (Dec. 2016). For article, "Construction Law," see 70 Mercer L. Rev. 51 (2018). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018). For article, "A Constitutional Counterpunch to Georgia's Anti-SLAPP Statute," see 69 Mercer L. Rev. 407 (2019). For comment on White v. Lamar, 165 Ga. 306, 140 S.E. 875 (1927), see 1 Ga. L. Rev. No. 3 P. 52 (1927). For case comments, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).
JUDICIAL DECISIONSANALYSIS
Statute is codified from the common law. Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 242 (1971) (but see Monumental Properties v. Frontier, 159 Ga. App. 35, 282 S.E.2d 660 (1981)) (see O.C.G.A. § 13-6-11).
Attorney fees were not allowable at common law. Money v. Thompson & Green Mach. Co., 155 Ga. App. 566, 271 S.E.2d 699 (1980).
No constitutional mandate that attorney's fees be awarded only pursuant to O.C.G.A. § 9-15-14 or O.C.G.A. § 13-6-11. - Trial court erred in finding that the Tort Reform Act of 2005, O.C.G.A. § 9-11-68, violated Ga. Const. 1983, Art. I, Sec. I, Para. XII, since it permitted the recovery of attorney's fees absent the prerequisite showings of either O.C.G.A. § 9-15-14 or O.C.G.A. § 13-6-11, because there was no constitutional requirement that attorney's fees be awarded only pursuant to § 9-15-14 or § 13-6-11; in Georgia, attorney's fees are recoverable when authorized by some statutory provision or by contract, and § 9-11-68, is such a statutory provision authorizing the recovery of attorney's fees under specific circumstances. Smith v. Baptiste, 287 Ga. 23, 694 S.E.2d 83 (2010).
Only fees attributable to prevailing claim recoverable.
- In an action for damages based on multiple counts, the plaintiff was entitled to attorney fees attributable solely to the prevailing claim. R.T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 451 S.E.2d 812 (1994).
Success on claim required.
- Trial court properly granted summary judgment to appellees on the appellants' claim for attorney fees and expenses under O.C.G.A. § 13-6-11 because the appellants did not prevail on their only remaining claim; thus, the perquisite to recovery under the statute were not met. Rigby v. Flue-Cured Tobacco Coop. Stabilization Corp., 339 Ga. App. 558, 794 S.E.2d 413 (2016).
After the plaintiff was arrested outside the police department where the plaintiff's spouse worked, the district court dismissed all of the plaintiff's state law claims for malicious arrest, malicious prosecution, and false imprisonment; therefore, the plaintiff's Georgia law claims for punitive damages and attorney's fees failed as a matter of law. Perkins v. Thrasher, 701 Fed. Appx. 887 (11th Cir. 2017)(Unpublished).
As the debtor's substantive claims for damages failed, the debtor had no independent claims for attorneys' fees or punitive damages under Georgia law. McCallum v. Bank of Am., N.A. (In re McCallum), Bankr. (Bankr. M.D. Ga. Mar. 22, 2018).
Fees considered part of underlying case.
- Georgia Court of Appeals, Third Division held that while an attorney fees award pursuant to O.C.G.A. § 9-15-14 may be considered ancillary and post-judgment, an award of attorney fees under O.C.G.A. § 13-6-11 is considered part of the underlying case. Miller v. Miller, Ga. App. , 846 S.E.2d 429 (2020).
Showing of reasonableness required.
- Trial court erred in awarding attorney fees to the assignee because there was no evidence regarding the reasonableness of those fees. Hagan v. Keyes, 329 Ga. App. 178, 764 S.E.2d 423 (2014).
Necessary to present discernable legal argument when challenging award on appeal.
- Jury's award of $83,146.20 in attorney fees to the plaintiff was upheld based on the defendant acting in bad faith since, other than an unsupported version of the facts, the defendant made no discernable legal argument challenging the propriety of the attorney-fee award for the appellate court to address. Yash Solutions, LLC v. New York Global Consultants Corp., 352 Ga. App. 127, 834 S.E.2d 126 (2019).
Failure to prove amount of fees attributable to successful claim.
- Because the evidence of attorney fees was in a lump sum and the plaintiff did not prove the amount of attorney fees attributable to the plaintiff's successful quantum meruit claim, the attorney fees award was reversed and remanded to allow the plaintiff to establish the amount of attorney fees attributable to the claim on which the plaintiff prevailed. Terrell v. Pippart, 314 Ga. App. 483, 724 S.E.2d 802 (2012).
Evidence presented was insufficient to permit a trier of fact to determine what portion of the total amount of attorney time and litigation expenses incurred in the litigation was attributable to only the computer theft/computer trespass claim against the appellants; thus, because the software design company did not prove the amount of attorney fees attributable solely to the claim on which the company prevailed, the award of attorney fees was reversed. Delphi Communs. v. Advanced Computing Techs., 336 Ga. App. 435, 784 S.E.2d 802 (2016).
Section not applicable when penalties in another section are exclusive remedy.
- Trial court erred in denying the insurer's motion for summary judgment on the insured's claim for attorney fees under O.C.G.A. § 13-6-11 because the penalties contained in O.C.G.A. § 33-4-6 were the exclusive remedies for a bad faith claim. Thompson v. Homesite Insurance Company of Ga., 345 Ga. App. 183, 812 S.E.2d 541 (2018), cert. denied, No. S18C1044, 2018 Ga. LEXIS 738 (Ga. 2018).
Attorney's fees are not recoverable against a defendant in a suit based upon a "statutory liability." First Union Nat'l Bank v. Big John's Auto Sales, Inc., 203 Ga. App. 797, 417 S.E.2d 416 (1992).
Dischargeability in bankruptcy.- Since the defendant's actions did not rise to the level of willful and malicious conduct, the award of attorney's fees was dischargeable in bankruptcy. Fincher v. Holt, 173 Bankr. 806 (Bankr. M.D. Ga. 1994).
New trial required on award of attorney fees.
- Bad faith attorney fee award against a university was vacated because the record showed that the professors submitted an itemized bill for their work on the entire case and that none of the testimony about the amount of the attorney fees nor the bill itself provided an adequate basis for the jury to determine the amounts which should be deducted for the unsuccessful conversion claim. Wilson v. Clark Atlanta University, Inc., 339 Ga. App. 814, 794 S.E.2d 422 (2016).
Debt for attorney's fees awarded to creditor in prior state court judgment for defamation was nondischargeable under 11 U.S.C. § 523(a)(b) because under Georgia law, it constituted additional, special damages flowing from the underlying tort. Mills v. Ellerbee, 177 Bankr. 731 (Bankr. N.D. Ga. 1995).
Debt to a creditor awarded in a state court judgment for malicious and willful trespass that damaged the creditor's property, which included attorney's fees, was nondischargeable under federal bankruptcy law because under Georgia law, the award for attorney's fees constituted additional and needless costs for damages that were the consequences of the underlying tort. Stinson v. Morris (In re Morris), Bankr. (Bankr. N.D. Ga. Dec. 1, 2005).
Dischargeability in bankruptcy.- Although bankruptcy court found debtor civilly liable to a corporation for conversion and breach of fiduciary duty and to a shareholder for fraud, the court declined to award punitive damages under Georgia law, as finding the debt non-dischargeable was a significant deterrent in and of itself. The shareholder was entitled to an award of attorney's fees because the debtor acted in bad faith with respect to the debtor and caused the debtor unnecessary trouble and expenses, but the corporation was not awarded fees, as it failed on a substantial amount of its damage claims, and its claims were significantly overstated, which extended the litigation and thwarted any efforts at resolution that the debtor attempted. Hot Shot Kids Inc. v. Pervis (In re Pervis), 512 Bankr. 348 (Bankr. N.D. Ga. 2014).
Section not limited to "attorney's fees and costs".
- O.C.G.A. § 13-6-11 does not confine itself to "attorney's fees and costs," but instead incorporates the broader term "expenses of litigation." Salsbury Labs., Inc. v. Merieux Labs., Inc., 735 F. Supp. 1555 (M.D. Ga. 1989), aff'd, 908 F.2d 706 (11th Cir. 1990).
Section provides for damages to plaintiffs but not to defendants.
- O.C.G.A. § 13-6-11 provides for bad faith damages to plaintiffs for having to resort to litigation, but not to defendants. Vogtle v. Coleman, 259 Ga. 115, 376 S.E.2d 861 (1989).
Generally, only plaintiffs may recover under O.C.G.A. § 13-6-11, and such recovery is available only upon a showing that the defendant's bad faith conduct forced the plaintiff into prosecuting the suit. Salsbury Labs., Inc. v. Merieux Labs., Inc., 735 F. Supp. 1555 (M.D. Ga. 1989), aff'd, 908 F.2d 706 (11th Cir. 1990).
True focus of O.C.G.A.
§ 13-6-11 is to punish party that has acted in bad faith. - Relationship between a party's bad faith and amount of damages awarded versus amount sought is generally purely coincidental. Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980), cert. denied, 156 Ga. App. 425, 274 S.E.2d 786 (1981).
Purpose of O.C.G.A. § 13-6-11 is to punish a party that has acted in bad faith. Salsbury Labs., Inc. v. Merieux Labs., Inc., 735 F. Supp. 1555 (M.D. Ga. 1989), aff'd, 908 F.2d 706 (11th Cir. 1990).
Jury charges on attorney's fees under both O.C.G.A.
§§ 13-6-11 and51-7-81 improper. - Trial court erred in charging a jury on attorney's fees under O.C.G.A. § 51-7-81 because a claim under § 51-7-81 could not be brought as a counterclaim and was premature. The jury awarded fees against both the buyers and buyers' counsel, which was only permitted under § 51-7-81 and not under O.C.G.A. § 13-6-11; because the jury may have based the jury's award on an improper theory, a new trial on attorney's fees was required. Goldsmith v. Peterson, 307 Ga. App. 26, 703 S.E.2d 694 (2010).
Establishment of prevailing party required.
- When equitable relief consisted of an order that corrective work be done and it could not be determined if plaintiffs would be required to pay more, less than, or the same amount as defendants, plaintiffs were not established as the prevailing parties. Ellis v. Gallof, 220 Ga. App. 518, 469 S.E.2d 288 (1996).
Underlying tort case must be successful.
- When a plaintiff's tort claim for fraud fails, a derivative claim for attorney's fees also fails. Johnson v. Johnson, 323 Ga. App. 836, 747 S.E.2d 518 (2013).
Award granted via summary judgment was inappropriate.
- Trial court erred by awarding attorney fees pursuant to O.C.G.A. § 13-6-11 on summary judgment because the trial court was without authority to award attorney fees on summary judgment since the issue of fees was for the trier of fact. Sherman v. Dickey, 322 Ga. App. 228, 744 S.E.2d 408 (2013).
Trial court erred in awarding attorney fees under O.C.G.A. § 13-6-11 at the summary judgment stage because attorney fees under that section were a question for the jury. Ga. Lottery Corp. v. Vasaya, 353 Ga. App. 52, 836 S.E.2d 107 (2019).
Choice of law.
- Award under O.C.G.A. § 13-6-11 did not further a Georgia public policy to punish or penalize and, thus, a choice of law provision in the parties' contract electing Illinois substantive law governed the parties' dispute, and under Illinois' substantive law, O.C.G.A. § 13-6-11 was inapplicable. Elberta Crate & Box Co. v. Cox Automation Sys., LLC, F. Supp. 2d (M.D. Ga. Aug. 10, 2005).
Erie analysis.
- O.C.G.A. § 13-6-11 is substantive under an Erie analysis; however, an award under § 13-6-11 did not further a Georgia public policy to punish or penalize, and, therefore, the choice of law provision electing Illinois substantive law governed the availability of attorney's fees. Elberta Crate & Box Co. v. Cox Automation Sys., LLC, F. Supp. 2d (M.D. Ga. Aug. 10, 2005).
Preservation of issue.
- Plaintiff preserved the issue of litigation expenses by including in the proposed verdict form (which was part of the pretrial order) a finding of attorneys' fees based on stubborn litigiousness. Parks v. Breedlove, 241 Ga. App. 72, 526 S.E.2d 137 (1999).
Ruling on bad faith could not be made at motion to dismiss stage.- Mortgage loan servicer's argument that the borrowers' claim for attorney fees should be dismissed, given that there was no evidence that the servicer's acted in bad faith, lacked merit because regardless of whether the servicer acted in bad faith, the court could not at a motion to dismiss stage rule as a matter of law that the servicer had not been stubbornly litigious or caused the borrowers unnecessary trouble and expense. Kerfoot v. FNF Servicing, Inc., F. Supp. 2d (M.D. Ga. Oct. 25, 2013).
Attorney fee issue not preserved for review.
- Restaurant patron's claim for attorney fees under O.C.G.A. § 13-6-11 was not reviewable on appeal as the patron failed to raise the issue of stubborn litigiousness in the trial court; instead, the patron alleged that the restaurant exhibited bad faith in the trial court and, accordingly, the patron's argument was not preserved for review. Wilson v. J & L Melton, Inc., 270 Ga. App. 1, 606 S.E.2d 47 (2004).
No creation of an independent cause of action.
- O.C.G.A. § 13-6-11 merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of plaintiff's damages. Brown v. Baker, 197 Ga. App. 466, 398 S.E.2d 797 (1990); Lamb v. Salvage Disposal Co., 244 Ga. App. 193, 535 S.E.2d 258 (2000).
Other elements of damages must be recoverable.
- Expenses of litigation are not recoverable pursuant to O.C.G.A. § 13-6-11 unless other elements of damages are recoverable. Connell v. Houser, 189 Ga. App. 158, 375 S.E.2d 136 (1988); Lincoln Nat'l Life Ins. Co. v. Davenport, 201 Ga. App. 175, 410 S.E.2d 370 (1991); Trulove v. Woodmen of World Life Ins. Soc'y, 204 Ga. App. 362, 419 S.E.2d 324 (1992); Steele v. Russell, 262 Ga. 651, 424 S.E.2d 272 (1993).
Attorney fees are not awardable pursuant to O.C.G.A. § 13-6-11 unless other damages are recoverable. Wheat v. First Union Nat'l Bank, 196 Ga. App. 26, 395 S.E.2d 351 (1990).
Expenses of litigation are ancillary and recoverable only in cases where other elements of damages are recoverable. Barnett v. Morrow, 196 Ga. App. 201, 396 S.E.2d 11 (1990).
In an action by the insureds against the insurer related to the handling of the insureds' claim against their homeowners' insurance policy, the trial court did not err in granting the insurer's motion for judgment on the insured's claim for attorney fees because the expenses of litigation were not recoverable unless other elements of damages were recoverable; the insurer had prevailed on each of the substantive counts of the insureds' complaint; and it necessarily followed that the insurer was entitled to summary judgment on the insured's claim for attorney fees. Clary v. Allstate Fire & Cas. Ins. Co., 340 Ga. App. 351, 795 S.E.2d 757 (2017).
When the plaintiff requested findings of nondischargeability of debt and findings that a Chapter 7 debtor was not entitled to a discharge but did not ask the court to determine any entitlement to damages under Georgia law, then it appeared that the plaintiff was not entitled to an award of attorney's fees based upon the debtor's alleged bad faith conduct as Georgia law required that an award of fees under the statute be in addition to an underlying award of other damages. In re Knight, 574 Bankr. 800 (Bankr. N.D. Ga. 2017).
Lost profit damages supported by evidence.
- In an action by the seller of a gas station against the buyer, alleging failure to make payments on a note, the trial court did not err in finding that the seller breached the parties' agreement by failing to install gas pumps; an award of lost profits due to the delayed installation was authorized. The seller failed to object to the buyer's evidence of unnecessary trouble and expense and failed to cross-examine the attorney regarding fees, failing to preserve an objection to the award of fees. Spirits, Inc. v. Patel, 350 Ga. App. 153, 828 S.E.2d 381 (2019).
Only expenses of action at hand are recoverable.
- Recovery of expenses of litigation pursuant to O.C.G.A. § 13-6-11 may not be had when the expenses do not arise out of the action at hand. Alston v. Stubbs, 170 Ga. App. 417, 317 S.E.2d 272 (1984).
No expenses of litigation incurred in other lawsuits can be awarded pursuant to O.C.G.A. § 13-6-11. Only expenses of litigation incurred in the present lawsuit can be awarded under § 13-6-11. Eways v. Georgia R.R. Bank, 806 F.2d 991 (11th Cir. 1986).
Defendant bank could not recover under O.C.G.A. § 13-6-11 for the costs of defending against plaintiff's complaint; rather, the bank could recover only the expenses incurred in prosecuting the bank's independent counterclaims. Eways v. Georgia R.R. Bank, 806 F.2d 991 (11th Cir. 1986).
Section inapplicable to case where attorney's fees sought arise out of separate legal proceeding. Randolph v. Merchants & Mechanics Banking & Loan Co., 58 Ga. App. 566, 199 S.E. 549 (1938).
Fees must arise from present litigation.
- Law is not applicable to a case wherein attorney's fees sought did not grow out of this suit, but were part of another legal proceeding. Atlantic C.L.R.R. v. Nellwood Lumber Co., 21 Ga. App. 209, 94 S.E. 86 (1917).
Post judgment interest proper.
- Trial court properly excluded an award of pre-judgment interest in calculating the amount of post-judgment interest and properly applied post-judgment interest to the award of attorney fees under O.C.G.A. § 13-6-11. Davis v. Whitford Props., 282 Ga. App. 143, 637 S.E.2d 849 (2006).
Only fees allocable to efforts to establish liability recoverable.
- Counsel may recover under O.C.G.A. § 13-6-11 only that portion of counsel's fees which the court finds are allocable to counsel's efforts to establish liability. Fuller v. Moister, 248 Ga. 287, 282 S.E.2d 889 (1981).
Trial court's grant of a default judgment to the appellee on the issue of the appellant's liability on a promissory note was upheld but the trial court's award of damages, interest, and attorney fees to the appellee was vacated because material conflicts in the pleadings existed that had to be resolved before the trial court could calculate the value of the stock on the day the appellee submitted the June Conversion Notice and could award that amount as damages. Pure Hospitality Solutions, Inc. v. Canouse, 347 Ga. App. 592, 820 S.E.2d 434 (2018).
Ordinarily, services of an attorney must be paid for by client who employs the attorney. Hill v. Bush, 206 Ga. 543, 57 S.E.2d 670 (1950); Arrington v. Thompson, 211 Ga. 734, 88 S.E.2d 402 (1955).
Fraud not established by award of attorney fees.
- An award of attorneys fees was not evidence that a default judgment was based on fraud since O.C.G.A. § 13-6-11 on its face provides alternative grounds for awarding of attorney fees. Wilcox v. Hritz, 197 Bankr. 702 (Bankr. N.D. Ga. 1996).
Attorney fees are recoverable only when authorized by some statutory provision or by contract. Money v. Thompson & Green Mach. Co., 155 Ga. App. 566, 271 S.E.2d 699 (1980); Spivey v. Rogers, 173 Ga. App. 233, 326 S.E.2d 227 (1984).
Unless expressly authorized by special statute, attorney's fees are recoverable only under this statute. Bankers Fid. Life Ins. Co. v. Oliver, 106 Ga. App. 305, 126 S.E.2d 887 (1962) (see O.C.G.A. § 13-6-11).
Generally, a party cannot recover attorney fees absent statutory provision providing for such recovery. Solomon Refrigeration, Inc. v. Osburn, 148 Ga. App. 772, 252 S.E.2d 686 (1979).
Recovery for expenses of litigation can be had only by virtue of this statute, and then only under certain conditions and circumstances, and provision is made for recovery by plaintiff against defendant. Wallace v. Jones, 101 Ga. App. 563, 114 S.E.2d 436 (1960) (see O.C.G.A. § 13-6-11).
Appellate attorney fees and expenses not recoverable.
- O.C.G.A. § 13-6-11 does not authorize a trial court to award attorney fees and expenses of litigation incurred as a result of defending an appeal after a jury verdict has been rendered. Kent v. David G. Brown, PE, Inc., 248 Ga. App. 447, 545 S.E.2d 598 (2001).
In an action by the buyer of a restaurant against the sellers, alleging trespass, conversion, and breach of contract when the sellers re-entered the premises after the sale, changed the locks, and began operating the restaurant, there was some evidence supporting the jury's award of damages to the buyer. However, it was error to allow attorney's fees for the prosecution of a prior appeal under O.C.G.A. § 13-6-11 because appellate attorney's fees were not recoverable under § 13-6-11. Caldwell v. Church, 353 Ga. App. 141, 836 S.E.2d 594 (2019).
Time lost not recoverable as expense.
- Since plaintiff was not entitled to any actual damages, plaintiff was not entitled to recover for time lost as an expense of litigation. Ayers v. Mobley, 163 Ga. App. 239, 293 S.E.2d 470 (1982).
Pro se litigant, who was not an attorney, was not entitled to recover attorney's fees. Demido v. Wilson, 261 Ga. App. 165, 582 S.E.2d 151 (2003).
Damages allowed under this statute are compensatory, not punitive or vindictive. Bankers Fid. Life Ins. Co. v. Oliver, 106 Ga. App. 305, 126 S.E.2d 887 (1962); Rogers v. Georgia Ports Auth., 183 Ga. App. 325, 358 S.E.2d 855, cert. denied, 183 Ga. App. 906, 358 S.E.2d 855 (1987) (see O.C.G.A. § 13-6-11).
Expenses of litigation, including attorney fees, are not punitive or exemplary damages. Busbee v. Sellers, 71 Ga. App. 26, 29 S.E.2d 710 (1944); F.N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257, 208 S.E.2d 13 (1974).
Attorney fees and expenses of litigation are not punitive or vindictive damages, but are recoverable only in cases when other elements of damages are recoverable. Cleary v. Southern Motors of Savannah, Inc., 142 Ga. App. 163, 235 S.E.2d 623 (1977).
Attorney's fees are distinct from punitive damages. Fratelli Gardino v. Caribbean Lumber Co., 447 F. Supp. 1337 (S.D. Ga. 1978), aff'd in part and rev'd in part, Fratelli Gardino v. Caribbean Lumber Co., 587 F.2d 204 (5th Cir. 1979).
Attorney's fees as expenses of litigation are not punitive or vindictive damages. Mosely v. Sanders, 76 Ga. 293 (1886); B-X Corp. v. Jeter, 210 Ga. 250, 78 S.E.2d 790 (1953); Scott v. Dudley, 214 Ga. 565, 105 S.E.2d 752 (1958); Moon v. Georgia Power Co., 127 Ga. App. 524, 194 S.E.2d 348 (1972); Standard Oil Co. v. Mount Bethel United Methodist Church, 230 Ga. 341, 196 S.E.2d 869 (1973); Ford Motor Credit Co. v. Milline, 137 Ga. App. 585, 224 S.E.2d 437 (1976).
Recovery of this character of damages presupposes right on part of plaintiff to bring action, and deals with question of measure of damages recoverable. King v. Pate, 215 Ga. 593, 112 S.E.2d 589 (1960).
Recovery under federal law.
- Because a cable television subscriber would automatically recover attorney fees if the subscriber prevailed on the subscriber's claim against cable television providers under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-399(d), and was highly likely to recover fees under O.C.G.A. § 13-6-11 if the subscriber prevailed on intentional tort claims for fraud and trespass, an attorney would have an incentive to represent the subscriber during arbitration. Therefore, a class action waiver contained in an arbitration clause in the parties' subscription contract was not unconscionable under Georgia law, and the arbitration clause was enforceable under the Federal Arbitration Act, 9 U.S.C. § 2. Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277 (N.D. Ga. 2008).
Award can be part of federal claim for damages and no state law claim need exist.
- There is no requirement that a viable state law claim exist in order for the jury to award litigation expenses pursuant to O.C.G.A. § 13-6-11. Rather, § 13-6-11 constitutes a vehicle for the collection of attorney fees even when only a federal law claim for damages is submitted to the finder of fact. Thus, the jury could award a developer attorney fees as an element of the damages the jury awarded on the developer's federal equal protection claim, regardless of whether the developer could prevail on any state law claim for damages. Fulton County v. Legacy Inv. Group, LLC, 296 Ga. App. 822, 676 S.E.2d 388 (2009).
Preclusive effect of bankruptcy.- Consent judgment that awarded attorneys' fees did not establish malice for purposes of bankruptcy non-dischargeability because fees could have been awarded for several reasons that were not related to malice or bad faith. Pioneer Constr., Inc. v. May (In re May), 518 Bankr. 99 (Bankr. S.D. Ga. 2014).
Remand required.
- Trial court erred in granting summary judgment on the tobacco farmers' claim for attorney fees and expenses of litigation under O.C.G.A. § 13-6-11 on a breach of fiduciary claim because the appellate court remanded that claim to the trial court for consideration; thus, any attendant claim for fees and expenses required such a remand. Rigby v. Flue-Cured Tobacco Coop. Stabilization Corp., 327 Ga. App. 29, 755 S.E.2d 915 (2014).
Sovereign immunity.
- O.C.G.A. § 13-6-11 does not state a cause of action, but merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of plaintiff's damages, and, therefore, no separate statutory waiver of sovereign immunity is required to allow the recovery of such damages against a governmental entity. Waters v. Glynn County, 237 Ga. App. 438, 514 S.E.2d 680 (1999).
Public entity liability.
- Governmental entity may be subject to an award of litigation expenses and attorney fees under O.C.G.A. § 13-6-11. Forsyth County v. Martin, 279 Ga. 215, 610 S.E.2d 512 (2005).
Liability of municipality.
- While governmental entities are not subject to awards intended to penalize or punish, the award of attorney fees and litigation expenses is designed to compensate an injured party, and may be imposed against municipalities. Even when a bona fide controversy exists, a party may be liable for attorney fees if the party sought to be charged has acted in bad faith. City of Warner Robins v. Holt, 220 Ga. App. 794, 470 S.E.2d 238 (1996).
Liability of counties.
- Counties are not protected from claims for attorney fees as expenses of litigation by the doctrine of sovereign immunity. Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 360 S.E.2d 425, cert. denied, 183 Ga. App. 906, 360 S.E.2d 425 (1987).
Abusive litigation claim asserted as compulsory counterclaim.
- Under Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), a defendant's claim for abusive litigation is an independent claim for damages, but it must be asserted as a compulsory counterclaim without regard to whether the claimant is the plaintiff or the defendant in the original suit. Vogtle v. Coleman, 259 Ga. 115, 376 S.E.2d 861 (1989).
Error to admit parol evidence.
- In an action involving the sale of land, because no adequate description of the property sought to be sold could be found within the four corners of the parties' final agreement, no exhibits were attached, and the words used in the contract did not provide a sufficient description of the land, the trial court erred in admitting parol evidence to provide a legally sufficient description of the property at issue; hence, an award of attorney's fees for the alleged bad faith to the buyer, pursuant to O.C.G.A. § 13-6-11, was also reversed. McClung v. Atlanta Real Estate Acquisitions, LLC, 282 Ga. App. 759, 639 S.E.2d 331 (2006).
Attorney fee award under
§ 13-1-11 held excessive. - In an action to recover on a promissory note with past due interest, and upon entering summary judgment in favor of the lender, the trial court erred in awarding the lender $10,195.40 in attorney fees in a judgment in which the principal and interest amounted to only $6,259.12; under the formula delineated under O.C.G.A. § 13-1-11, such amount was limited to $650.91. Long v. Hogan, 289 Ga. App. 347, 656 S.E.2d 868 (2008), cert. denied, 2008 Ga. LEXIS 516 (Ga. 2008).
Requirement that losing party pay full cost.
- O.C.G.A. § 9-15-14 applies to conduct occurring during the litigation and permits an attorney fees award for frivolous claims, and O.C.G.A. § 13-6-11 permits an award of attorney fees if the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense and applies to conduct arising from the underlying transaction; O.C.G.A. § 13-6-11 has been held to require that a party acting in bad faith pay the full price for losing. Trotter v. Summerour, 273 Ga. App. 263, 614 S.E.2d 887 (2005).
Attorney fees not apportioned.
- Award of attorney fees is not apportioned to only those attorney fees attributable to the claims on which the plaintiffs prevailed. "In our view, a party acting in bad faith should pay the full price for losing." Crocker v. Stevens, 210 Ga. App. 231, 435 S.E.2d 690 (1993), cert. denied, 511 U.S. 1053, 114 S. Ct. 1613, 128 L. Ed. 2d 340 (1994), overruled on other grounds, Kim v. Lim, 254 Ga. App. 627, 563 S.E.2d 485 (2002).
Appellee was properly entitled to an award of fees under O.C.G.A. § 13-6-11 for successful claim of tortious interference with business operations; however, the district court did not delineate which hours and entries were excluded or reduced as relating to (1) the unsuccessful claims, (2) the defense of counterclaims, and (3) the numerous hours that appellee alleges were excessive for the tasks performed. A blanket twenty-five percent reduction, without explanation as to why such reduction was appropriate, is insufficient. Maid of the Mist Corp. v. Alcatraz Media, LLC, F.3d (11th Cir. Sept. 19, 2008)(Unpublished).
Award of attorneys' fees under O.C.G.A. § 13-6-11 to a broker in the broker's quantum meruit suit against a buyer was appropriate after the district court found that the buyer acted in bad faith, and an apportionment of the fees to account for the broker's unsuccessful claims was not appropriate because the district court made an explicit finding of bad faith. Litsky v. G.I. Apparel, Inc., F.3d (11th Cir. Oct. 12, 2005)(Unpublished).
Attorney fees apportioned.
- When the court found that a Chapter 7 debtor, as owner of an insured, submitted fraudulent and non-fraudulent claims to the insurer, the insurer was entitled to attorney fees pursuant to O.C.G.A. § 13-6-11 in an amount that the court deemed reasonable for the prosecution only of the successful portion of the insurer's claim against the debtor; it was deemed appropriate to apportion the fees between successful and unsuccessful claims based on the ratio of the amount the insurer was entitled to recover to the total amount claimed by the insurer. Cincinnati Ins. Co. v. Porter (In re Porter), Bankr. (Bankr. N.D. Ga. May 23, 2007).
Award based on O.C.G.A.
§ 19-6-2 allowed when award under O.C.G.A. § 13-6-11 unauthorized. - Although an award of attorney fees to a wife in a declaratory judgment action brought by a husband seeking a determination of the husband's obligations under a divorce decree was not authorized by either O.C.G.A. § 9-4-9 or O.C.G.A. § 13-6-11, the award was allowed by O.C.G.A. § 19-6-2(a)(1) because the wife's separate contempt action based on the husband's failure to comply with the divorce decree was consolidated for disposition with the husband's declaratory judgment action, and the trial court found in favor of the wife in that declaratory judgment action. Waits v. Waits, 280 Ga. App. 734, 634 S.E.2d 799 (2006).
Pending motion when final judgment entered does not extend time for appeal.
- Hospital's motion to dismiss an appeal was granted because the order granting summary judgment was a final judgment since the order concluded the case and the fact that the ancillary issue of the cost award under O.C.G.A. § 9-11-4(d) remained pending did not prevent the judgment from being final for purposes of O.C.G.A. §§ 5-6-34(a)(1) and5-6-38(a); thus, the appeal was untimely since the appeal was brought outside of the 30-day time frame from the trial court's entry of judgment. Edokpolor v. Grady Mem. Hosp. Corp., 338 Ga. App. 704, 791 S.E.2d 589 (2016).
Cited in Mayor of Savannah v. Waldner, 49 Ga. 316 (1873); Guernsey, Bartram & Hendrix v. Shellman, 59 Ga. 797 (1877); Juchter v. Boehm, Bendheim & Co., 67 Ga. 534 (1881); Butler v. Moore, 68 Ga. 780, 45 Am. R. 508 (1882); Chambers & Co. v. Harper, 83 Ga. 382, 9 S.E. 717 (1889); Farrar v. Brackett, 86 Ga. 463, 12 S.E. 686 (1891); Carhart v. Wainman, 114 Ga. 632, 40 S.E. 781, 88 Am. St. R. 45 (1902); Georgia R.R. & Banking Co. v. Gardner, 118 Ga. 723, 45 S.E. 600 (1903); Mendel v. Leader, 136 Ga. 442, 71 S.E. 753 (1911); Twin City Lumber Co. v. Daniels, 22 Ga. App. 578, 96 S.E. 437 (1918); Chance v. Commercial Credit Co., 30 Ga. App. 543, 118 S.E. 465 (1923); Felder v. Paulk, 165 Ga. 135, 139 S.E. 873 (1927); O'Neal v. Spivey, 167 Ga. 176, 145 S.E. 71 (1928); Herndon v. Sheats, 176 Ga. 199, 167 S.E. 506 (1933); Pone v. Barbre, 57 Ga. App. 684, 196 S.E. 287 (1938); Walker v. Grand Int'l Bhd. of Locomotive Eng'rs, 186 Ga. 811, 199 S.E. 146 (1938); West v. Haas, 191 Ga. 569, 13 S.E.2d 376 (1941); Savannah & A. Ry. v. De Busk, 68 Ga. App. 529, 23 S.E.2d 529 (1942); Dye v. Alexander, 195 Ga. 676, 25 S.E.2d 419 (1943); Thompson v. Thompson, 202 Ga. 683, 44 S.E.2d 260 (1947); Sapp v. Howe, 79 Ga. App. 1, 52 S.E.2d 571 (1949); Murphey v. Brock, 206 Ga. 9, 55 S.E.2d 564 (1949); Graham v. Lynch, 206 Ga. 301, 57 S.E.2d 86 (1950); Copeland v. Carpenter, 206 Ga. 822, 59 S.E.2d 245 (1950); Stelling v. Richmond County, 81 Ga. App. 571, 59 S.E.2d 414 (1950); Williams v. Harris, 207 Ga. 576, 63 S.E.2d 386 (1951); Harrison v. Harrison, 208 Ga. 70, 65 S.E.2d 173 (1951); Camp v. Anderson, 84 Ga. App. 228, 66 S.E.2d 103 (1951); Story v. Howell, 85 Ga. App. 661, 70 S.E.2d 29 (1952); Fireman's Fund Ins. Co. v. McConnell, 198 F.2d 401 (5th Cir. 1952); Milwaukee Mechanics Ins. Co. v. Davis, 198 F.2d 441 (5th Cir. 1952); Whiteway Neon-Ad, Inc. v. Maddox, 211 Ga. 27, 83 S.E.2d 676 (1954); Nichols v. Williams Pontiac, Inc., 95 Ga. App. 752, 98 S.E.2d 659 (1957); Pickett v. Georgia, F. & A.R.R., 98 Ga. App. 709, 106 S.E.2d 285 (1958); Public Nat'l Ins. Co. v. Wheat, 100 Ga. App. 695, 112 S.E.2d 194 (1959); Broyles v. Johnson, 103 Ga. App. 102, 118 S.E.2d 734 (1961); United States ex rel. Dixie Plumbing Supply Co. v. Taylor, 293 F.2d 717 (5th Cir. 1961); Spielberg v. McEntire, 105 Ga. App. 545, 125 S.E.2d 134 (1962); Hopkins v. West Publishing Co., 106 Ga. App. 596, 127 S.E.2d 849 (1962); U.S. Fid. & Guar. Co. v. Luttrell, 108 Ga. App. 606, 134 S.E.2d 77 (1963); Anderson v. Cheely, 109 Ga. App. 680, 137 S.E.2d 382 (1964); Smith v. Maples, 114 Ga. App. 529, 151 S.E.2d 815 (1966); Jackson v. Hatch, 115 Ga. App. 623, 155 S.E.2d 676 (1967); Southern Ry. v. Overnite Transp. Co., 223 Ga. 825, 158 S.E.2d 387 (1967); Klag v. Home Ins. Co., 116 Ga. App. 678, 158 S.E.2d 444 (1967); Townsend & Ghegan Enters. v. W.R. Bean & Son, 117 Ga. App. 109, 159 S.E.2d 776 (1968); Greenway v. Griffith, 225 Ga. 632, 170 S.E.2d 423 (1969); Terry v. Wonder Seal Co., 120 Ga. App. 423, 170 S.E.2d 745 (1969); Roberts v. J.L. Todd Auction Co., 120 Ga. App. 444, 170 S.E.2d 862 (1969); Padgett v. Bryant, 121 Ga. App. 807, 175 S.E.2d 884 (1970); Howard Stores Corp. v. Howard Clothing, Inc., 311 F. Supp. 704 (N.D. Ga. 1970); Sam Finley, Inc. v. Pilcher, Livingston & Wallace, Inc., 314 F. Supp. 654 (S.D. Ga. 1970); Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971); Harvey v. Travelers Ins. Co., 339 F. Supp. 262 (N.D. Ga. 1971); Colbert Co. v. Newsom, 125 Ga. App. 571, 188 S.E.2d 266 (1972); Hinton v. Georgia Power Co., 126 Ga. App. 416, 190 S.E.2d 811 (1972); City Council v. Hydrick, 126 Ga. App. 611, 191 S.E.2d 563 (1972); Small Equip. Co. v. Walker, 129 Ga. App. 710, 200 S.E.2d 904 (1973); Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (5th Cir. 1973); Liberty Mut. Ins. Co. v. Coburn, 132 Ga. App. 859, 209 S.E.2d 655 (1974); Shearer v. Griffin, 233 Ga. 47, 210 S.E.2d 5 (1974); City of Jesup v. Spivey, 133 Ga. App. 403, 210 S.E.2d 859 (1974); Allstate Ins. Co. v. Harris, 133 Ga. App. 567, 211 S.E.2d 783 (1974); Sheet Metal Workers Int'l Ass'n v. Carter, 133 Ga. App. 872, 212 S.E.2d 645 (1975); Strickland v. Williams, 234 Ga. 752, 218 S.E.2d 8 (1975); Wilson v. Strange, 235 Ga. 156, 219 S.E.2d 88 (1975); Vineyard Village-Georgia, Inc. v. Crum, 136 Ga. App. 335, 221 S.E.2d 208 (1975); Davis v. Griffin-Spalding County Bd. of Educ., 445 F. Supp. 1048 (N.D. Ga. 1975); Ford Motor Credit Co. v. Moulder, 137 Ga. App. 527, 224 S.E.2d 435 (1976); Biltmore Constr. Co. v. Tri-State Elec. Contractors, 137 Ga. App. 504, 224 S.E.2d 487 (1976); Midtown Properties, Inc. v. George F. Richardson, Inc., 139 Ga. App. 182, 228 S.E.2d 303 (1976); Guest v. Riddle, 237 Ga. 535, 228 S.E.2d 910 (1976); Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188, 232 S.E.2d 62 (1977); Tam v. Newsome, 141 Ga. App. 76, 232 S.E.2d 613 (1977); U.S.A., Inc. v. Kirland, 142 Ga. App. 484, 236 S.E.2d 130 (1977); Strother Ford, Inc. v. Bullock, 142 Ga. App. 843, 237 S.E.2d 208 (1977); Sturdivant v. Allstate Ins. Co., 143 Ga. App. 19, 237 S.E.2d 408 (1977); Hood v. Hallman, 143 Ga. App. 507, 239 S.E.2d 194 (1977); Burnette v. Southern Consol. Inns, Inc., 240 Ga. 98, 239 S.E.2d 513 (1977); Atlanta Army & Navy Store, Inc. v. Stuckman, 143 Ga. App. 850, 240 S.E.2d 220 (1977); Department of Human Resources v. Bagley, 240 Ga. 306, 240 S.E.2d 867 (1977); Woodson v. Burton, 241 Ga. 130, 243 S.E.2d 885 (1978); Chambers v. Citizens & S. Nat'l Bank, 242 Ga. 498, 249 S.E.2d 214 (1978); Corrosion Control, Inc. v. William Armstrong Smith Co., 148 Ga. App. 75, 251 S.E.2d 49 (1978); International Ass'n of Bridge Ironworkers, Local 387 v. Moore, 149 Ga. App. 431, 254 S.E.2d 438 (1979); Bowen v. Ken-Mar Constr. Co., 152 Ga. App. 568, 263 S.E.2d 463 (1979); Citizens & S. Nat'l Bank v. Bougas, 245 Ga. 412, 265 S.E.2d 562 (1980); Columbus Dodge, Inc. v. Garlock, 153 Ga. App. 652, 266 S.E.2d 311 (1980); Davis v. Hospital Auth., 154 Ga. App. 654, 269 S.E.2d 867 (1980); City of Columbus v. Myszka, 246 Ga. 571, 272 S.E.2d 302 (1980); Sterling Motor Freight Co. v. Wendt, 156 Ga. App. 516, 275 S.E.2d 101 (1980); Taylor v. Greiner, 156 Ga. App. 663, 275 S.E.2d 737 (1980); Alewine v. City Council, 505 F. Supp. 880 (S.D. Ga. 1981); Hospital Auth. v. Bryant, 157 Ga. App. 330, 277 S.E.2d 322 (1981); Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981); Willett Lincoln-Mercury, Inc. v. Larson, 158 Ga. App. 540, 281 S.E.2d 297 (1981); Pleasant Hill Acres, Inc. v. Todd, 158 Ga. App. 730, 282 S.E.2d 148 (1981); Rae v. Griffin, 160 Ga. App. 96, 286 S.E.2d 64 (1981); Fountain v. Burke, 160 Ga. App. 262, 287 S.E.2d 39 (1981); Jordan v. Goff, 160 Ga. App. 636, 287 S.E.2d 640 (1981); Sherrer v. Hale, 248 Ga. 793, 285 S.E.2d 714 (1982); Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982); Hayes v. Irwin, 541 F. Supp. 397 (N.D. Ga. 1982); Management Assistance, Inc. v. Computer Dimensions, Inc., 546 F. Supp. 666 (N.D. Ga. 1982); Raymar, Inc. v. Peachtree Golf Club, Inc., 161 Ga. App. 336, 287 S.E.2d 768 (1982); Williams v. Struble, 162 Ga. App. 196, 290 S.E.2d 538 (1982); Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 291 S.E.2d 238 (1982); Jordan Bridge Co. v. I.S. Bailey, Jr., Inc., 164 Ga. App. 124, 296 S.E.2d 107 (1982); Mansell v. Benson Chevrolet Co., 165 Ga. App. 568, 302 S.E.2d 114 (1983); Fritts v. Mid-Coast Trading Corp., 166 Ga. App. 31, 303 S.E.2d 148 (1983); Tedoff v. Moncrief Unique Indoor Comfort, Inc., 166 Ga. App. 426, 304 S.E.2d 529 (1983); Alterman Foods, Inc. v. G.C.C. Beverages, Inc., 168 Ga. App. 921, 310 S.E.2d 755 (1983); McCall v. Allstate Ins. Co., 251 Ga. 869, 310 S.E.2d 513 (1984); City of Marietta v. Holland, 252 Ga. 299, 314 S.E.2d 97 (1984); Joseph Camacho Assocs. v. Millard, 169 Ga. App. 937, 315 S.E.2d 478 (1984); Sun v. Langston, 170 Ga. App. 60, 316 S.E.2d 172 (1984); Sepulvado v. Daniels Lincoln-Mercury, Inc., 170 Ga. App. 109, 316 S.E.2d 554 (1984); Starling, Inc. v. Housing Auth., 170 Ga. App. 858, 318 S.E.2d 728 (1984); White Repair & Contracting Co. v. Daniel, 171 Ga. App. 501, 320 S.E.2d 205 (1984)
Parsells v. Orkin Exterminating Co., 172 Ga. App. 74, 322 S.E.2d 91 (1984); Gluckin v. Ross (In re Specialty Prods., Inc.), 37 Bankr. 880 (Bankr. N.D. Ga. 1984); Khoury v. Skidaway Island Eng'g, Inc., 172 Ga. App. 503, 323 S.E.2d 692 (1984); Johnston v. Lyon, 173 Ga. App. 524, 327 S.E.2d 519 (1985); Omni Express, Inc. v. Cleveland Express, Inc., 178 Ga. App. 42, 341 S.E.2d 911 (1986); Towery v. Massey, 179 Ga. App. 61, 345 S.E.2d 90 (1986); Olden Camera & Lens Co. v. White, 179 Ga. App. 728, 347 S.E.2d 696 (1986); Munna v. Lewis, 181 Ga. App. 860, 354 S.E.2d 181 (1987); Perry & Co. v. New S. Ins. Brokers of Ga., Inc., 182 Ga. App. 84, 354 S.E.2d 852 (1987); Esquire Mobile Homes, Inc. v. Arrendale, 182 Ga. App. 528, 356 S.E.2d 250 (1987); Brunswick Mfg. Co. v. Sizemore, 183 Ga. App. 482, 359 S.E.2d 180 (1987); Meyer v. Citizens & S. Nat'l Bank, 117 F.R.D. 180 (M.D. Ga. 1987); Hayes Constr. Co. v. Thompson, 184 Ga. App. 482, 361 S.E.2d 865 (1987); Carpet Transp., Inc. v. Dixie Truck Tire Co., 185 Ga. App. 181, 363 S.E.2d 840 (1987); Brunswick Floors, Inc. v. Shuman, 185 Ga. App. 362, 364 S.E.2d 96 (1987); California Fed. Sav. & Loan Ass'n v. Hudson, 185 Ga. App. 384, 364 S.E.2d 582 (1987); Ostrom v. Kapetanakos, 185 Ga. App. 728, 365 S.E.2d 849 (1988); Ferguson v. City of Doraville, 186 Ga. App. 430, 367 S.E.2d 551 (1988); IMC Motor Express, Inc. v. Cochran, 186 Ga. App. 873, 368 S.E.2d 817 (1988); S & W Mechanical Co. v. City of Homerville, 682 F. Supp. 546 (M.D. Ga. 1988); Typo-Repro Servs., Inc. v. Bishop, 188 Ga. App. 576, 373 S.E.2d 758 (1988); Peachtree Purchasing Co. v. Carver, 189 Ga. App. 73, 374 S.E.2d 834 (1988); Weprin v. Peterson, 736 F. Supp. 1131 (N.D. Ga. 1988); Easley v. Clement, 259 Ga. 107, 376 S.E.2d 860 (1989); Doughty v. Simpson, 190 Ga. App. 718, 380 S.E.2d 57 (1989); Bulldog Trucking, Inc. v. Adams, 259 Ga. 382, 380 S.E.2d 702 (1989); Perfect Image, Inc. v. M & M Elec. Constructors, Inc., 191 Ga. App. 605, 382 S.E.2d 405 (1989); Borg-Warner Acceptance Corp. v. Valentine Assocs., 192 Ga. App. 123, 384 S.E.2d 223 (1989); Market Ins. Corp. v. IHM, Inc., 192 Ga. App. 441, 385 S.E.2d 307 (1989); Home Ins. Co. v. North River Ins. Co., 192 Ga. App. 551, 385 S.E.2d 736 (1989); Beall v. F.H.H. Constr., Inc., 193 Ga. App. 544, 388 S.E.2d 342 (1989); Johnson v. Waddell, 193 Ga. App. 692, 388 S.E.2d 723 (1989); Borg-Warner Acceptance Corp. v. Boat Trading, Inc., 194 Ga. App. 63, 389 S.E.2d 555 (1989); Davidson Mineral Properties, Inc. v. Baird, 260 Ga. 75, 390 S.E.2d 33 (1990); Trust Co. Bank v. Citizens & S. Trust Co., 260 Ga. 124, 390 S.E.2d 589 (1990); Lineberger v. Williams, 195 Ga. App. 186, 393 S.E.2d 23 (1990); Colquitt v. Network Rental, Inc., 195 Ga. App. 244, 393 S.E.2d 28 (1990); Madden v. Bellew, 195 Ga. App. 131, 393 S.E.2d 31 (1990); Marcoux v. Fields, 195 Ga. App. 573, 394 S.E.2d 361 (1990); Backus Cadillac-Pontiac, Inc. v. Ernest, 195 Ga. App. 579, 394 S.E.2d 367 (1990); Callahan v. Panfel, 195 Ga. App. 891, 395 S.E.2d 80 (1990); Hirsh v. Goodlett, 196 Ga. App. 127, 395 S.E.2d 626 (1990); Clark v. West, 196 Ga. App. 456, 395 S.E.2d 884 (1990); N.D.T., Inc. v. Connor, 196 Ga. App. 314, 395 S.E.2d 901 (1990); Stone v. King, 196 Ga. App. 251, 396 S.E.2d 45 (1990); Cora v. Wagner, 196 Ga. App. 774, 397 S.E.2d 46 (1990); Famiglietti v. Brevard Medical Investors, Ltd., 197 Ga. App. 164, 397 S.E.2d 720 (1990); Hester Enters., Inc. v. Narvais, 198 Ga. App. 580, 402 S.E.2d 333 (1991); Rivergate Corp. v. BCCP Enters., Inc., 198 Ga. App. 761, 403 S.E.2d 65 (1991); Baxley Veneer & Clete Co. v. Maddox, 261 Ga. 309, 404 S.E.2d 554 (1991); Pirkle v. Hawley, 199 Ga. App. 371, 405 S.E.2d 71 (1991); Polma, Inc. v. Coastal Canvas Prods. Co., 199 Ga. App. 616, 405 S.E.2d 531 (1991); Read v. Benedict, 200 Ga. App. 4, 406 S.E.2d 488 (1991); Karlan, Inc. v. King, 202 Ga. App. 713, 415 S.E.2d 319 (1992), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019); Tom Barrow Co. v. St. Paul Fire & Marine Ins. Co., 205 Ga. App. 10, 421 S.E.2d 85 (1992); Re-Max Executives, Inc. v. Wallace, 205 Ga. App. 170, 421 S.E.2d 540 (1992); Ralston v. Etowah Bank, 207 Ga. App. 775, 429 S.E.2d 102 (1993); Leventhal v. Seiter, 208 Ga. App. 158, 430 S.E.2d 378 (1993); Roswell Properties, Inc. v. Salle, 208 Ga. App. 202, 430 S.E.2d 404 (1993); Russell Corp. v. BancBoston Fin. Co., 209 Ga. App. 660, 434 S.E.2d 716 (1993); Ayers Enters., Ltd. v. Exterior Designing, Inc., 829 F. Supp. 1330 (N.D. Ga. 1993); Aetna Cas. & Sur. Co. v. Empire Fire & Marine Ins. Co., 212 Ga. App. 642, 442 S.E.2d 778 (1994); Armstrong Transf. & Storage Co. v. Mann Constr., Inc., 217 Ga. App. 538, 458 S.E.2d 481 (1995); Baker v. Miller, 265 Ga. 486, 458 S.E.2d 621 (1995); Toncee, Inc. v. Thomas, 219 Ga. App. 539, 466 S.E.2d 27 (1995); Southern Co. v. Hamburg, 220 Ga. App. 834, 470 S.E.2d 467 (1996); Duffy Street S.R.O., Inc. v. Mobley, 266 Ga. 849, 471 S.E.2d 507 (1996); Hendricks v. Blake & Pendleton, Inc., 221 Ga. App. 651, 472 S.E.2d 482 (1996); Boardman Petro., Inc. v. Federated Mut. Ins. Co., 926 F. Supp. 1566 (S.D. Ga. 1995); First Union Nat'l Bank v. Cook, 223 Ga. App. 374, 477 S.E.2d 649 (1996); Jennings Enters., Inc. v. Carte, 224 Ga. App. 538, 481 S.E.2d 541 (1997); King Indus. Realty, Inc. v. Rich, 224 Ga. App. 629, 481 S.E.2d 861 (1997); T.O.H. Assocs. v. 2B Enters., Inc., 224 Ga. App. 730, 482 S.E.2d 393 (1997); Pulte Home Corp. v. Woodland Nursery & Landscapes, Inc., 230 Ga. App. 455, 496 S.E.2d 546 (1998); Fried Group, Inc. v. Sundance Tractor & Mower, 218 Bankr. 247 (Bankr. M.D. Ga. 1998); Smith v. Stuckey, 233 Ga. App. 79, 503 S.E.2d 284 (1998); Great W. Bank v. Southeastern Bank, 234 Ga. App. 420, 507 S.E.2d 191 (1998); M & H Constr. Co. v. North Fulton Dev. Corp., 238 Ga. App. 713, 519 S.E.2d 287 (1999); Parker v. Kennon, 242 Ga. App. 627, 530 S.E.2d 527 (2000); Glynn-Brunswick Mem. Hosp. Auth. v. Gibbons, 243 Ga. App. 341, 530 S.E.2d 736 (2000); Glisson v. Freeman, 243 Ga. App. 92, 532 S.E.2d 442 (2000); Garrett v. Women's Health Care of Gwinnett, P.C., 243 Ga. App. 53, 532 S.E.2d 164 (2000); Perimeter Realty v. GAPI, Inc., 243 Ga. App. 584, 533 S.E.2d 136 (2000); Physician Specialists in Anesthesia, P.C. v. MacNeill, 246 Ga. App. 398, 539 S.E.2d 216 (2000); Felker v. Chipley, 246 Ga. App. 296, 540 S.E.2d 285 (2000); Buckley v. Turner Heritage Homes, Inc., 248 Ga. App. 793, 547 S.E.2d 373 (2001); Ctr. Pointe Invs. v. Frank M. Darby Co., 249 Ga. App. 782, 549 S.E.2d 435 (2001); Kent v. A.O. White, Jr., Consulting Eng'rs, P.C., 249 Ga. App. 893, 553 S.E.2d 1 (2001); Vernon Library Supplies, Inc. v. Ard, 249 Ga. App. 853, 550 S.E.2d 108 (2001); Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 556 S.E.2d 554 (2001); In re Estate of Garmon, 254 Ga. App. 84, 561 S.E.2d 216 (2002); St. Paul Fire & Marine Ins. Co. v. Clark, 255 Ga. App. 14, 566 S.E.2d 2 (2002); Scott v. Wells Fargo Home Mortg., Inc. (In re Scott), 281 Bankr. 404 (Bankr. M.D. Ga. 2002); Parker v. Clary Lakes Rec. Ass'n, 265 Ga. App. 93, 592 S.E.2d 880 (2004); Action Marine, Inc. v. Cont'l Carbon, Inc., 481 F.3d 1302 (11th Cir. 2007); Clay v. Oxendine, 285 Ga. App. 50, 645 S.E.2d 553 (2007); King v. Brock, 282 Ga. 56, 646 S.E.2d 206 (2007); Strickland v. CADD Ctrs. of Fla., Inc. (In re Strickland), Bankr. (Bankr. N.D. Ga. May 23, 2007); Dale v. Comcast Corp., 498 F.3d 1216 (11th Cir. 2007); Rice v. Lost Mt. Homeowners Ass'n, 288 Ga. App. 714, 655 S.E.2d 214 (2007); Cooney v. Burnham, 283 Ga. 134, 657 S.E.2d 239 (2008); Reebaa Constr. Co. v. Chong, 283 Ga. 222, 657 S.E.2d 826 (2008); Hicks v. Khoury, 283 Ga. 407, 658 S.E.2d 616 (2008); Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 658 S.E.2d 909 (2008); Green v. Raw Deal, Inc., 290 Ga. App. 464, 659 S.E.2d 856 (2008); Clarendon Nat'l Ins. Co. v. Johnson, 293 Ga. App. 103, 666 S.E.2d 567 (2008); Morrill v. Cotton States Mut. Ins. Co., 293 Ga. App. 259, 666 S.E.2d 582 (2008); Southeastern Stud & Components, Inc. v. Am. Eagle Design Build Studios, LLC, F. Supp. 2d (M.D. Ga. July 30, 2008)
Perry Golf Course Dev., LLC v. Hous. Auth., 294 Ga. App. 387, 670 S.E.2d 171 (2008); Hanson Staple Co. v. Eckelberry, 297 Ga. App. 356, 677 S.E.2d 321 (2009); Bd. of Regents of the Univ. Sys. of Ga. v. Ambati, 299 Ga. App. 804, 685 S.E.2d 719 (2009); Tyler v. Thompson, 308 Ga. App. 221, 707 S.E.2d 137 (2011); Ga. Dep't of Corr. v. Couch, 322 Ga. App. 234, 744 S.E.2d 432 (2013); Stoddard v. Greenberg, Ga. App. , S.E.2d (Apr. 25, 2012); Benchmark Builders, Inc. v. Schultz, 294 Ga. 12, 751 S.E.2d 45 (2013); Carroll v. Bd. of Regents of the Univ. Sys. of Ga., 324 Ga. App. 598, 751 S.E.2d 421 (2013); DeKalb County v. Kirkland, 329 Ga. App. 262, 764 S.E.2d 867 (2014); Effingham County v. Roach, 329 Ga. App. 805, 764 S.E.2d 600 (2014); Tucker v. Rogers, 334 Ga. App. 58, 778 S.E.2d 795 (2015); Williams v. Deliverance Temple Church of God In Christ of Atlanta, 338 Ga. App. 123, 789 S.E.2d 372 (2016); Examination Mgmt. Servs. v. Steed, 340 Ga. App. 51, 794 S.E.2d 687 (2016); Ga. Dermatologic Surgery Ctrs., P.C. v. Pharis, 341 Ga. App. 305, 800 S.E.2d 376 (2017); RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713, 798 S.E.2d 315 (2017); Kammerer Real Estate Holdings, LLC v. Forsyth County Bd. of Comm'rs, 302 Ga. 284, 806 S.E.2d 561 (2017); Ga. Ass'n of Prof'l Process Servers v. Jackson, 302 Ga. 309, 806 S.E.2d 550 (2017); Cmty. & S. Bank v. Lovell, 302 Ga. 375, 807 S.E.2d 444 (2017); Everson v. DeKalb County Sch. Dist., 344 Ga. App. 665, 811 S.E.2d 9 (2018); Gilbert v. Canterbury Farms, LLC, 346 Ga. App. 804, 815 S.E.2d 303 (2018); Eagle Jets, LLC v. Atlanta Jet, Inc., 347 Ga. App. 567, 820 S.E.2d 197 (2018); Reid v. Reid, 348 Ga. App. 550, 823 S.E.2d 860 (2019), cert. denied, No. S19C0832, 2019 Ga. LEXIS 689 (Ga. 2019); Nugent v. Myles, 350 Ga. App. 442, 829 S.E.2d 623 (2019); MARTA v. Buho, 353 Ga. App. 466, 838 S.E.2d 130 (2020); Rouse v. City of Atlanta, 353 Ga. App. 542, 839 S.E.2d 8 (2020); Atlanta Metro Leasing, Inc. v. City of Atlanta, 353 Ga. App. 785, 839 S.E.2d 278 (2020); Lyle v. Fulcrum Loan Holdings, 354 Ga. App. 742, 841 S.E.2d 182 (2020); Davis v. Rockdale Art Farm, Inc., 354 Ga. App. 82, 840 S.E.2d 160 (2020); Tyner v. Edge, 355 Ga. App. 196, 843 S.E.2d 632 (2020); Zahler v. Nat'l Collegiate Student Loan Trust 2006-1, 355 Ga. App. 458, 844 S.E.2d 530 (2020); Holman v. Glen Abbey Homeowners Ass'n, Ga. App. , S.E.2d (July 28, 2020).
Availability of Section to Defendants
Authority given by this statute is to plaintiff against defendant. Wallace v. Jones, 101 Ga. App. 563, 114 S.E.2d 436 (1960); but see Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980) (see O.C.G.A. § 13-6-11).
Section is generally restricted to plaintiffs.
- The very purpose of O.C.G.A. § 13-6-11 is to prevent the recovery of attorney fees when the recovery would amount to a successful counterclaim against the plaintiff merely for filing suit. Ravenwood Church v. Starbright, Inc., 168 Ga. App. 870, 310 S.E.2d 582 (1983).
Defendant cannot avail oneself of provisions of this statute. King v. Pate, 215 Ga. 593, 112 S.E.2d 589 (1960); Pitman v. Dixie Ornamental Iron Co., 122 Ga. App. 404, 177 S.E.2d 167 (1970); G.E.C. Corp. v. Levy, 126 Ga. App. 604, 191 S.E.2d 461 (1972); Hickman v. Frazier, 128 Ga. App. 552, 197 S.E.2d 441 (1973). But see Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980) (see O.C.G.A. § 13-6-11).
Statute does not apply to defendants. Watson v. Planters & Citizens Bank, 110 Ga. App. 725, 140 S.E.2d 30 (1964); Metropolitan Tractor, Inc. v. Samples Grading Co., 167 Ga. App. 102, 306 S.E.2d 68 (1983) (see O.C.G.A. § 13-6-11).
Statute is not applicable to defense of an action. McDonald v. Rogers, 229 Ga. 369, 191 S.E.2d 844 (1972), disapproved on other grounds, 235 Ga. 348, 219 S.E.2d 447 (1975) (see O.C.G.A. § 13-6-11).
Statute applies only to plaintiffs when defendant acts in bad faith. A defendant cannot avail oneself of the law's provisions, including a condemnee in a condemnation proceeding. Taylor v. Georgia Power Co., 137 Ga. App. 44, 222 S.E.2d 869 (1975) (see O.C.G.A. § 13-6-11).
Defendants cannot recover attorney fees against plaintiffs. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980).
O.C.G.A. § 13-6-11 did not permit the recovery of expenses incurred in defending a lawsuit when the buyers in a contract dispute failed to show the absence of a genuine dispute on the issues in the counterclaim, the award of attorney fees to the buyers was improper. Dennis-Smith v. Freeman, 277 Ga. App. 822, 627 S.E.2d 872 (2006).
An award of attorney fees to the purchaser of building supplies in a supplier's action to recover sums allegedly due for the supplies was in error as the purchaser was the defendant in the case. Cox Interior, Inc. v. Bayland Props., LLC, 293 Ga. App. 612, 667 S.E.2d 452 (2008).
In a dispute between four registered representatives (RRs) and their former firm after the representatives left the firm and went to a competing firm, the trial court erred in denying the firm's motion for summary judgment on the RRs' counterclaims for attorney's fees under O.C.G.A. § 13-6-11 because the counterclaims were compulsory counterclaims arising out of the RRs' employment for which fees were not permitted. HA&W Capital Partners, LLC v. Bhandari, 346 Ga. App. 598, 816 S.E.2d 804 (2018).
Underlying policy of this statute barring defendant from transforming plaintiff's case into defendant's damage suit for having been sued in no manner relates to cases wherein defendant has asserted a viable, independent claim against plaintiff. Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980), cert. denied, 156 Ga. App. 425, 274 S.E.2d 786 (1981) (see O.C.G.A. § 13-6-11).
Plaintiff's litigiousness as defense.
- Defendant may defend against claim for attorney fees which alleges stubborn litigiousness by showing that it was plaintiff rather than defendant who was stubbornly litigious. Ryle v. Sliz, 162 Ga. App. 868, 293 S.E.2d 451 (1982).
O.C.G.A.
§ 13-6-11 does not automatically bar recovery by defendant of litigation expenses incurred in prosecuting independent claim. - When a defendant asserts a claim for relief independent of a claim for litigation expenses incurred in defending against plaintiff's case-in-chief, this statute does not automatically operate to bar any recovery by defendant of litigation expenses incurred in prosecuting such independent claim. Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980), cert. denied, 156 Ga. App. 425, 274 S.E.2d 786 (1981) (see O.C.G.A. § 13-6-11).
Even though a defendant may not avail oneself of O.C.G.A. § 13-6-11 in order to recover one's attorney's fees by way of counterclaim, that section should be read to permit the defendant to prosecute a viable, independent claim to recover attorney fees whenever the enumerated statutory criteria are met. Homac, Inc. v. Fort Wayne Mtg. Co., 577 F. Supp. 1065 (N.D. Ga. 1983).
Although O.C.G.A. § 13-6-11 creates a cause of action for bad faith damages to a plaintiff for having to resort to litigation, no such provision is available to a defendant in the absence of a viable independent counterclaim asserting a claim for relief independent of the assertion of the plaintiff's harassment, litigiousness, and bad faith in bringing plaintiff's suit. Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 406 S.E.2d 121 (1991); Steele v. Russell, 262 Ga. 651, 424 S.E.2d 272 (1993).
Existence of one statutory condition sufficient.
- It is only necessary to show the existence of one of the statutory conditions of O.C.G.A. § 13-6-11 in order to authorize an award of damages for expenses of litigation. Fine & Block v. Evans, 201 Ga. App. 294, 411 S.E.2d 73 (1991).
O.C.G.A.
§ 13-6-11 should be available to any party prosecuting viable, independent claim for attorney fees. - Statute should be read to permit any party prosecuting a viable, independent claim to recover attorney fees whenever enumerated statutory criteria for such award are met. Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980), cert. denied, 156 Ga. App. 425, 274 S.E.2d 786 (1981) (see O.C.G.A. § 13-6-11).
Defendant's counterclaim not viable.
- When defendant does not contend that defendant's independent counterclaim against plaintiff was viable, it follows that the trial court correctly refused to submit to the jury the issue of defendant's entitlement to a recovery. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 417 S.E.2d 383, cert. denied, 203 Ga. App. 908, 417 S.E.2d 383 (1992).
Trial court erred in awarding a tenant attorney fees under O.C.G.A. § 13-6-11 because the tenant's counterclaim was not independent or viable since as a compulsory counterclaim that arose out of the same facts as the complaint, the counterclaim was not independent and could not support an award of attorney fees under § 13-6-11; at the first trial, the tenant admitted and the evidence showed that it deducted a mistakenly-paid utility charges from a rent check and was due nothing under the counterclaim, and the tenant repeated those facts to the trial court during the second trial and explained that it was seeking recovery of attorney fees only. Sugarloaf Mills Ltd. P'ship v. Record Town, Inc., 306 Ga. App. 263, 701 S.E.2d 881 (2010).
Defendant may claim attorney's fees in prosecuting independent claim.
- Defendant, who is in effect, a plaintiff in an independent counterclaim, may assert a claim for attorney fees incurred in prosecuting defendant's independent claim. Glenn v. Fourteen W. Realty, Inc., 169 Ga. App. 549, 313 S.E.2d 730 (1984).
Defendant asserting independent claims for relief by way of counterclaim may recover expenses under O.C.G.A. § 13-6-11 upon a showing that plaintiff acted in bad faith, or has been stubbornly litigious, or has caused defendant unnecessary trouble and expense. Wood v. National Benefit Life Ins. Co., 631 F. Supp. 6 (N.D. Ga. 1984).
When a defendant asserts a claim for relief independent of a claim for litigation expenses incurred in defending against a plaintiff's case-in-chief, defendant may recover litigation expenses incurred in prosecuting such an independent claim in accordance with O.C.G.A. § 13-6-11. Gardner v. Kinney, 230 Ga. App. 771, 498 S.E.2d 312 (1998).
Defendant's right to recover litigation expenses in connection with an independent counterclaim is limited to recovering only the portion of the defendant's attorney fees allocable to the prosecution of the defendant's counterclaim. Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 542 S.E.2d 151 (2000).
Reasons for making section available to defendants in appropriate cases.
- See Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980), cert. denied, 156 Ga. App. 425, 274 S.E.2d 786 (1981).
Defendant acting in good faith can recover.
- Defendant was not chargeable with the expenses of litigation unless defendant acted in bad faith because the constitutional right to be heard in the courts was granted to defendants as well as plaintiffs. Bush v. Northside Trucking, Inc., 252 Ga. App. 729, 556 S.E.2d 909 (2001).
Requirement of independent counterclaims aside from plaintiff's alleged bad faith.
- When defendant did not have viable independent counterclaims asserting claims for relief independent of an assertion of plaintiffs' harassment, litigiousness, and bad faith in bringing their suits, the defendant was not a true plaintiff in a counterclaim so as to claim litigation expenses under O.C.G.A. § 13-6-11. Florida Rock Indus., Inc. v. Smith, 163 Ga. App. 361, 294 S.E.2d 553 (1982).
Counterclaim not specifically pled.
- Since the record demonstrates on the record's face that the corporate defendant did not specifically plead a viable independent counterclaim for plaintiff's breach of contract such as would otherwise authorize a recovery of attorney's fees, the instant award of attorney's fees cannot be upheld as authorized. First Union Nat'l Bank v. Big John's Auto Sales, Inc., 203 Ga. App. 797, 417 S.E.2d 416 (1992).
Counterclaim found not to be "viable" claim.
- Counterclaim, while entirely independent of any simple assertion that plaintiff acted in bad faith in filing suit, found not to be "viable" claim. See Spoon v. Herndon, 167 Ga. App. 794, 307 S.E.2d 693 (1983).
When there were no viable independent counterclaims remaining in a construction company's claims against a labor supplier, the company could no longer assert a claim for attorney fees and litigation costs under O.C.G.A. § 13-6-11 and, accordingly, summary judgment under O.C.G.A. § 9-11-56 to the supplier was proper. Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003).
Trial court erred in not granting a plaintiff's motion for a directed verdict as to the defendant's counterclaim, the defendant was not entitled to fees under O.C.G.A. § 13-6-11 for prosecuting a successful counterclaim. Caincare, Inc. v. Ellison, 272 Ga. App. 190, 612 S.E.2d 47 (2005).
Application: In General
When a plaintiff is caused unnecessary trouble and expense above the normal trouble and expense associated with litigation, fees and expenses may be awarded under O.C.G.A. § 13-6-11. MDC Blackshear, L.L.C. v. Littell, 273 Ga. 169, 537 S.E.2d 356 (2000).
O.C.G.A. § 13-6-11 authorizes an attorney fee award even when nominal damages are recovered. See Tyler v. Lincoln, 272 Ga. 118, 527 S.E.2d 180 (2000).
Substantially related to the ultimate prosecution.
- Attorney fees and expenses were recoverable under O.C.G.A. § 13-6-11 since the time spent by plaintiff's counsel successfully defending the motion to compel arbitration, whether under the federal act or under a warranty program, was substantially related to the ultimate prosecution of the claims raised in the state court. Magnus Homes, L.L.C. v. DeRosa, 248 Ga. App. 31, 545 S.E.2d 166 (2001).
Trial court erred by failing to grant the plaintiff's motion for directed verdict and/or denying the plaintiff's motion for JNOV regarding the plaintiffin-counterclaim's claim for attorney fees under O.C.G.A. § 13-6-11 because the plaintiff-in-counterclaim's trespass counterclaim arose from the same transaction and occurrence as the plaintiff's claims against the plaintiff-in-counterclaim, and only a plaintiff was entitled to attorney's fees under § 13-6-11. Vickery Falls, LLC v. Asih, LLC, 354 Ga. App. 385, 841 S.E.2d 25 (2020).
Law can apply to suits in both contract and tort. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969).
Although this statute appears under contracts title of Code, it is, in appropriate situations, applied in principle to tort actions. Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 242 (1971) (see O.C.G.A. § 13-6-11).
O.C.G.A. § 13-6-11 specifically refers to actions in contract and may apply to suits when recovery as to a contract lies in both contract and tort, that is, when the contract was procured or transacted in bad faith or was induced by fraud and deceit. Country Pride Homes, Inc. v. DuBois, 201 Ga. App. 740, 412 S.E.2d 282 (1991); Evans Toyota, Inc. v. Cronic, 233 Ga. App. 318, 503 S.E.2d 358 (1998).
Statute applies to torts. Parks v. Parks, 89 Ga. App. 725, 80 S.E.2d 837 (1954); Dodd v. Slater, 101 Ga. App. 358, 114 S.E.2d 167 (1960) (see O.C.G.A. § 13-6-11).
Attorney fees are generally limited to ex delicto actions. State Mut. Ins. Co. v. McJenkin Ins. & Realty Co., 86 Ga. App. 442, 71 S.E.2d 670 (1952); Raybestos-Manhattan, Inc. v. Friedman, 156 Ga. App. 880, 275 S.E.2d 817 (1981).
Minority view as to application of this law is that tendency is to limit recovery of attorney fees to ex delicto actions, but that fees are recoverable when there is bad faith in transaction out of which cause of action arises. Palmer v. Howse, 133 Ga. App. 619, 212 S.E.2d 2 (1974).
Law is generally applied to ex delicto actions. Brooks v. Steele, 139 Ga. App. 496, 229 S.E.2d 3 (1976).
Law may be applied to equity cases. Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977); Redfearn v. Huntcliff Homes Ass'n, 243 Ga. App. 222, 531 S.E.2d 376 (2000).
Attorney fees in equity cases.
- When plaintiffs have only set out a complaint in equity, plaintiffs are not entitled to an award of attorney fees under O.C.G.A. § 13-6-11 or O.C.G.A. § 51-12-7. Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 348 S.E.2d 628 (1986).
When a party has to resort to litigation to enforce an agreement such circumstances may authorize an award of litigation expenses under O.C.G.A. § 13-6-11. Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998).
Proof of bad faith is not required if a contract clause provides that if one party must use an attorney to enforce the agreement, then the defaulting party shall pay attorney fees. Sylar v. Hodges, 250 Ga. App. 42, 550 S.E.2d 438 (2001).
Motion to dismiss a claim for attorney's fees pursuant to O.C.G.A. § 13-6-11 against an insurer was granted because, since an administrator's only viable claim for damages was predicated on the insurer's failure to pay benefits under the policy, there was no claim for damages that supported an award under O.C.G.A. § 13-6-11. Estate of Thornton v. Unum Life Ins. Co. of Am., 445 F. Supp. 2d 1379 (N.D. Ga. 2006).
Bona fide controversy on contract prohibited recovery of fees.
- Plaintiff was not entitled to attorneys' fees because the plaintiff's request was not supported by the facts as pled in the complaint or by additional evidence at the summary judgment stage. The defendant's failure to make payments under the parties' contract did not constitute bad faith as contemplated by O.C.G.A. § 13-6-11 and attorneys' fees could not be recovered on the basis of stubborn litigiousness or on the basis of the plaintiff having incurred unnecessary expense because a bona fide controversy remained as to contractual liability. Silverpop Sys. v. Leading Mkt. Techs., Inc., F.3d (11th Cir. Jan. 5, 2016)(Unpublished).
Requirements for award of punitive or exemplary damages.
- To authorize the imposition of punitive or exemplary damages, there must be evidence of willful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Speir Ins. Agency, Inc. v. Lee, 158 Ga. App. 512, 281 S.E.2d 279 (1981).
Plaintiff may recover attorney's fees if the defendant acted in bad faith in the transaction out of which the cause of action arose, or was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. National Serv. Indus., Inc. v. Hartford Accident & Indem. Co., 661 F.2d 458 (5th Cir. 1981).
Generally, the expenses of litigation are not allowed as part of the damages in a suit for breach of contract but the jury may allow expenses if the plaintiff can show that one of the three conditions required by O.C.G.A. § 13-6-11 exists. Franchise Enters., Inc. v. Ridgeway, 157 Ga. App. 458, 278 S.E.2d 33 (1981).
Expenses of litigation are not generally allowed as a part of the damages, but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow those expenses. Speir Ins. Agency, Inc. v. Lee, 158 Ga. App. 512, 281 S.E.2d 279 (1981).
Expenses of litigation are not generally allowed unless it be shown that the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, all of which must arise out of the transaction from which the cause of action arose. Bayliner Marine Corp. v. Prance, 159 Ga. App. 456, 283 S.E.2d 676 (1981).
One element is sufficient for award of fees.
- All three elements need not be present; it is sufficient if there is one of the elements. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).
It is only necessary to show that any one of the three conditions in this statute exists in order to recover attorneys' fees. D.H. Overmyer Co. v. Nelson-Brantley Glass Co., 119 Ga. App. 599, 168 S.E.2d 176 (1969) (see O.C.G.A. § 13-6-11).
It is only necessary to plaintiff's recovery that the plaintiff show any one of the three conditions in this statute exists. Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976) (see O.C.G.A. § 13-6-11).
Plaintiff only needs to show that any one of three conditions exists to be awarded litigation expenses. Marler v. River Creek Assocs., 138 Ga. App. 471, 226 S.E.2d 311 (1976).
It is necessary to show existence of only one of the three statutory conditions of this statute in order to authorize an award of damages for expenses of litigation. Gordon v. Ogden, 154 Ga. App. 641, 269 S.E.2d 499 (1980) (see O.C.G.A. § 13-6-11).
Plaintiff need only establish existence of one of three conditions to recover attorney's fees. Vacca v. Meetze, 499 F. Supp. 1089 (S.D. Ga. 1980); Blank v. Preventive Health Programs, Inc., 504 F. Supp. 416 (S.D. Ga. 1980).
Any one of these three species of bad conduct may authorize recovery of attorney's fees. Acting in bad faith, or being stubbornly litigious, or causing plaintiff unnecessary trouble or expense might in a particular case suffice to authorize a finding for attorney's fees. Thomas v. Dumas, 207 Ga. 161, 60 S.E.2d 356 (1950); Employers Liab. Assurance Corp. v. Sheftall, 97 Ga. App. 398, 103 S.E.2d 143 (1958).
Plaintiff need demonstrate existence of only one of three enumerated grounds in order to obtain attorney's fees. National Serv. Indus., Inc. v. Hartford Accident & Indem. Co., 661 F.2d 458 (5th Cir. 1981).
When expenses of litigation are recoverable in actions ex contractu.
- Right to recover expenses of litigation for breach of contract requires fraud, deceit, breach of trust, wilful misappropriation of funds, or fraud in securing contract, or property thereunder. Lovell v. Frankum, 145 Ga. 106, 88 S.E. 569 (1916).
In action ex contractu expenses of litigation are recoverable when it appears that a contract was entered into in bad faith or was procured by fraud, or that defendant had been stubbornly litigious. Bankers Health & Life Ins. Co. v. Plumer, 67 Ga. App. 720, 21 S.E.2d 515 (1942).
Georgia does not normally allow attorney's fees in contractual matters and thus, attorney's fees are not recoverable unless it appears that such contract was entered into by defendant in bad faith or procured by the defendant through fraud or deceit. Kuniansky v. D.H. Overmyer Whse. Co., 406 F.2d 818 (5th Cir. 1968), cert. denied, 398 U.S. 905, 90 S. Ct. 1697, 26 L. Ed. 2d 64 (1970).
In actions on contracts, attorney fees may only be awarded when contract was entered into in bad faith by defendant in first instance, or was procured by fraud and deceit. Canal Ins. Co. v. Lawson, 123 Ga. App. 376, 181 S.E.2d 91 (1971).
When recovery of expenses of litigation is allowed in an action for mere breach of contract because of bad faith, those expenses are not allowed for bad faith in refusing to pay, but only when defendant has acted in bad faith in transaction and dealings out of which cause of action arose. Brooks v. Steele, 139 Ga. App. 496, 229 S.E.2d 3 (1976).
Bona fide controversy negates possibility of award.
- When bad faith is not an issue and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not "any evidence" to support an award if a bona fide controversy clearly exists between the parties. Dimambro Northend Assocs. v. Williams, 169 Ga. App. 219, 312 S.E.2d 386 (1983); Backus Cadillac-Pontiac, Inc. v. Brown, 185 Ga. App. 746, 365 S.E.2d 540 (1988); Candler v. Wickes Lumber Co., 195 Ga. App. 239, 393 S.E.2d 99 (1990); Tower Fin. Servs., Inc. v. Smith, 204 Ga. App. 910, 423 S.E.2d 257, cert. denied, 204 Ga. App. 922, 423 S.E.2d 257 (1992); Fuel S., Inc. v. Metz, 217 Ga. App. 731, 458 S.E.2d 904 (1995); Lamb v. State Farm Mut. Auto. Ins. Cos., 240 Ga. App. 363, 522 S.E.2d 573 (1999).
When the evidence showed a dispute as to the terms of the oral contract between the parties and when reasonable persons could differ as to whether the evidence showed abandonment of the contract, it could not be said that there was no "bona fide controversy" as contemplated by Buffalo Cab. Co. v. Williams, 126 Ga. App. 522, 191 S.E.2d 317 (1972). Glen Restaurant, Inc. v. West, 173 Ga. App. 204, 325 S.E.2d 781 (1984).
In a case where bad faith is not at issue, attorney fees are not authorized under O.C.G.A. § 13-6-11 if the evidence shows that a genuine dispute exists. Steele v. Gold Kist, Inc., 186 Ga. App. 569, 368 S.E.2d 196, cert. denied, 186 Ga. App. 919, 368 S.E.2d 196 (1988).
It was error to deny an adjacent lot owner's motions for a directed verdict and judgment notwithstanding the verdict under O.C.G.A. § 9-11-50 in an action by property owners, alleging property damage and requesting an award of attorney fees under O.C.G.A. § 13-6-11, as there was a bona fide controversy regarding the adjacent lot owner's liability in the circumstances; further, there was no showing that the adjacent lot owner acted with bad faith. Lowery v. Roper, 293 Ga. App. 243, 666 S.E.2d 710 (2008).
When a bona fide dispute exists and defendant has a reasonable defense at trial, the defendant should not be burdened with the plaintiff's attorney fees. Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 308 S.E.2d 564 (1983).
When the record showed that a justiciable controversy existed as to defendants liability under the agreement at issue, which prevented the recovery of bad faith expenses under O.C.G.A. § 13-6-11, the trial court did not abuse the court's discretion in denying plaintiff's request for assessed attorney fees. Rivergate Corp. v. Atlanta Indoor Adv. Concepts, Inc., 210 Ga. App. 501, 436 S.E.2d 697 (1993); Auto-Owners Ins. Co. v. Crawford, 240 Ga. App. 748, 525 S.E.2d 118 (1999).
Absence of bona fide controversy.
- Jury award of attorney fees and costs under O.C.G.A. § 13-6-11 will be affirmed if there is any evidence from which the jury could have concluded that there is no bona fide controversy. WMI Urban Servs., Inc. v. Erwin, 215 Ga. App. 357, 450 S.E.2d 830 (1994).
Award of attorney fees is permissible even though no compensatory damages are awarded. See Sheppard v. Tribble Heating & Air Conditioning, Inc., 163 Ga. App. 732, 294 S.E.2d 572 (1982).
Defendant fails to answer.
- Trial court erred in refusing to grant attorney's fees to plaintiff when defendant did not file an action to the suit. Hartford Ins. Co. v. Mobley, 164 Ga. App. 363, 297 S.E.2d 312 (1982).
Generally, attorney fees are not included in terms "cost" or "expenses" absent some statutory provision, rule of court, or contract provision. Money v. Thompson & Green Mach. Co., 155 Ga. App. 566, 271 S.E.2d 699 (1980).
Attorney's fees have been authorized in breach of contract actions when no fraud or misrepresentation is alleged. Fratelli Gardino v. Caribbean Lumber Co., 447 F. Supp. 1337 (S.D. Ga. 1978), aff'd in part and rev'd in part, Fratelli Gardino v. Caribbean Lumber Co., 587 F.2d 204 (5th Cir. 1979).
Attorney's fees may be recovered although only injunctive relief is granted in action.
- In action for injunctive relief and damages, when injunctive relief is granted, failure of jury to find damages would not prevent the jury from finding attorney's fees, when evidence authorizes a determination that defendants have acted in bad faith, been stubbornly litigious, or caused petitioners unnecessary trouble and expense. Adams v. Cowart, 224 Ga. 210, 160 S.E.2d 805 (1968).
Election of specific performance does not bar award of attorney fees.
- Election of specific performance as a remedy does not act as a waiver to bar an award of attorney fees. Golden v. Frazier, 244 Ga. 685, 261 S.E.2d 703 (1979).
Attorney's fees recoverable in suit to enjoin interference with rights of successful party to a judgment.
- In suit to enjoin further interference with rights of successful party to a judgment, attorney's fees may be recovered. However, counsel fees incurred in procuring original judgment are not to be included. Stovall v. Caverly, 139 Ga. 243, 77 S.E. 29 (1913).
Trial court cannot summarily award attorney fees to a litigant for merely opposing a motion. Kyle v. King, 138 Ga. App. 612, 226 S.E.2d 767 (1976).
When claim abandoned.
- Because a corporation was entitled to judgment notwithstanding the verdict on the only substantive claim remaining in the litigation, breach of the duty of good faith, due to the fact that a broker had abandoned that claim, the corporation was also entitled to judgment on the broker's attorney fee claim. Quantum Trading Corp. v. Forum Realty Corp., 278 Ga. App. 485, 629 S.E.2d 420 (2006).
Attorney's fees recoverable must be reasonable, whether computed in gross or as percentage.
- Reasonable fee is exactly what the term implies, regardless of whether the fee's computation begins in gross or from percentages, taking into consideration all legitimate aspects of the case. State Farm Mut. Auto. Ins. Co. v. Smoot, 381 F.2d 331 (5th Cir. 1967), cert. denied, 390 U.S. 1005, 88 S. Ct. 1248, 20 L. Ed. 2d 105 (1968).
Attorney fees are recoverable only as the fees relate to claims against defendant chargeable with the claims. Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976).
Allowance for litigation expenses cannot be based on guesswork. Davis v. Fomon, 144 Ga. App. 14, 240 S.E.2d 581 (1977).
Attorney fees paid out in previous litigation are not generally recoverable in a later suit. State Mut. Ins. Co. v. McJenkin Ins. & Realty Co., 86 Ga. App. 442, 71 S.E.2d 670 (1952).
Time spent by nonattorney personnel recoverable.
- Plaintiff's "in-house" costs for the time that plaintiff's nonattorney personnel spent in preparing for litigation were "expenses of litigation" as contemplated under O.C.G.A. § 13-6-11. Salsbury Labs., Inc. v. Merieux Labs., Inc., 735 F. Supp. 1555 (M.D. Ga. 1989), aff'd, 908 F.2d 706 (11th Cir. 1990).
Time spent by plaintiff's in-house nonattorney personnel solely because of the litigation was an "expense of litigation." Salsbury Labs., Inc. v. Merieux Labs., Inc., 908 F.2d 706 (11th Cir. 1990).
Party entitled only to fees attributable to prevailing claims.
- As awards to a lessor of rent and the costs of maintenance and repair of the premises were reversed on appeal, and attorney fees awarded under O.C.G.A. § 13-6-11 had to be apportioned to fees attributable to claims on which the lessor prevailed, the case was remanded for a determination of what, if any, remaining claims would authorize an award of fees to the lessor under § 13-6-11. Savannah Yacht Corp. v. Thunderbolt Marine, Inc., 297 Ga. App. 104, 676 S.E.2d 728 (2009).
Failure to prevail on common-law theories of liability meant no recovery.
- After a professional basketball player was held not liable to inexperienced businessmen who invested and lost money by hosting sports event-related parties with two men claiming to act as the player's agents, attorney fees were unwarranted under O.C.G.A. § 13-6-11 because the businessmen failed to prevail on their various state common-law theories of liability. J'Carpc, LLC v. Wilkins, 545 F. Supp. 2d 1330 (N.D. Ga. 2008).
Attorney's fees not supportable without award of relief on underlying claim.
- In an attorney negligence case, the district court's interlocutory ruling excluding the clients' expert was case-dispositive as the crux of the clients' unjust enrichment and breach of fiduciary duty claims was the law firm's failure to meet the standard of care imposed by the attorney-client relationship; both the breach of fiduciary duty and unjust enrichment counts incorporated the allegations of legal malpractice without adding any independent factual allegations, and the latter count expressly alleged that the law firm was unjustly enriched by receiving compensation for defective, unskillful, and harmful legal advice. Additionally, the clients' O.C.G.A. § 13-6-11 attorney's fee claim and O.C.G.A. § 51-12-5.1 punitive damages claim were not supportable without an award of relief on an underlying claim; thus, the clients' claims, as pled, all required proof of attorney malpractice, and the interlocutory ruling excluding the clients' expert's testimony was case-dispositive. OFS Fitel, LLC v. Epstein, 549 F.3d 1344 (11th Cir. 2008).
Because daughters were not awarded any damages in the year's support action, the daughters could not recover attorney fees pursuant to O.C.G.A. § 13-6-11. Cabrel v. Lum, 289 Ga. 233, 710 S.E.2d 810 (2011).
School district employee who had been terminated from a position as a paraprofessional but had been reinstated during the pendency of the employee's suit alleging due process violations was not entitled to attorney's fees because the trial court properly determined that the employee's action was not an ex dilecto action entitling the employee to monetary damages, and without an award of monetary damages or other affirmative relief, there could be no award of attorney's fees. Boatright v. Glynn County Sch. Dist., 315 Ga. App. 468, 726 S.E.2d 591 (2012).
Computer contractor that failed to prevail on the contractor's contract claim against a state agency based on sovereign immunity was not entitled to recover attorney's fees. Ga. Dep't of Cmty. Health v. Data Inquiry, LLC, 313 Ga. App. 683, 722 S.E.2d 403 (2012).
Because the borrower failed to state a claim upon which relief could be granted with respect to the borrower's substantive claims for relief, the borrower was not entitled to attorney fees. Sparra v. Deutsche Bank National Trust Company, 336 Ga. App. 418, 785 S.E.2d 78 (2016).
Because the former employee did not prevail on the claim for damages, the trial court correctly concluded that the former employee was not entitled to attorney's fees. O'Connor v. Fulton County, 302 Ga. 70, 805 S.E.2d 56 (2017).
Award vacated when underlying judgment reversed.
- In a suit challenging a county board of commissioners' decision to abandon a road, since the decision in favor of the challengers setting aside the abandonment decision was reversed, the challengers were no longer the prevailing party and, therefore, the award of attorney fees in the challengers' favor under O.C.G.A. § 13-6-11 was vacated. Scarborough v. Hunter, 293 Ga. 431, 746 S.E.2d 119 (2013).
Dismissal of attorney's fees claim was proper because all substantive claims had been dismissed.
- Trial court erred in dismissing all of an employee's substantive counterclaims against the employer except a counterclaim for attorney's fees under O.C.G.A. § 13-6-11, because the attorney's fee claim could not stand in the absence of the recovery of damages or other relief on an underlying claim. Prof'l Energy Mgmt. v. Necaise, 300 Ga. App. 223, 684 S.E.2d 374 (2009).
Fee award proper.- Counsel's evidence of the hours worked, the costs incurred, and a reasonable hourly fee sufficiently supported a fee award since no evidence was presented that the hourly rate was unreasonable or that the hours claimed were inflated, nor was counsel's testimony effectively impeached. Malphurs v. Cooling Towers Sys., F.3d (11th Cir. Sept. 18, 2017)(Unpublished).
There was ample evidence to support the award of attorney fees as counsel testified as to counsel's experience and hourly rate, that of an associate, and defense counsel neither objected to nor controverted the testimony offered. Whitaker Farms, LLC v. Fitzgerald Fruit Farms, LLC, 347 Ga. App. 381, 819 S.E.2d 666 (2018), cert. denied, No. S19C0294, 2019 Ga. LEXIS 429 (Ga. 2019), cert. denied, No. S19C0293, 2019 Ga. LEXIS 411 (Ga. 2019).
Question under O.C.G.A.
§ 13-6-11 is not how case is being defended, but how contract was breached. - If breach of a contract, which is the cause of action, is colored or poisoned by bad faith, expenses of litigation may be allowed. It is not a question of how case is being defended, instead, it is how contract was breached. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 115 S.E.2d 852 (1960).
Application: Specific Examples
Section inapplicable to mere motion to set aside judgment rendered in case between parties. American Liberty Ins. Co. v. Sanders, 122 Ga. App. 407, 177 S.E.2d 176 (1970).
Requirements of O.C.G.A.
§ 13-6-11 inapplicable to suit on bond of public officer for official misconduct. - In suit on bond of public officer for official misconduct, in order to collect attorney's fees, it is unnecessary to show bad faith or the like as a condition to such recovery. Glens Falls Indem. Co. v. Dempsey, 68 Ga. App. 607, 23 S.E.2d 493 (1942).
Not presumed trial court relied on statute.
- Inasmuch as the trial court repeatedly cited O.C.G.A. § 9-15-14 and did not invoke or cite O.C.G.A. § 13-6-11, it was not presumed the trial court relied on that statute to deny fees under O.C.G.A. § 9-15-14. O'Leary v. Whitehall Constr., 288 Ga. 790, 708 S.E.2d 353 (2011).
Nuisance actions against municipalities.
- Attorney fees are not recoverable in nuisance actions against municipalities absent proof of bad faith or other grounds delineated in O.C.G.A. § 13-6-11. City of Lawrenceville v. Heard, 194 Ga. App. 580, 391 S.E.2d 441 (1990).
When the owners' evidence of repeated flooding established an abatable nuisance, an award of both personal and property damages as well as attorney's fees against a city were adequate; the trial court's jury charge was proper and the court did not abuse the court's discretion in denying a directed verdict or a judgment notwithstanding the verdict. City of Gainesville v. Waters, 258 Ga. App. 555, 574 S.E.2d 638 (2002).
County liability when ownership of dam previously decided.
- County's motion for a directed verdict as to the homeowners' claim for costs and attorney fees under O.C.G.A. § 13-6-11 was properly denied because there was no viable issue of the county's ownership interest in a dam under the Georgia Safe Dams Act, O.C.G.A. § 12-5-370 et seq., because that issue was resolved in a prior administrative action; however, the evidence did not distinguish attorney fees and costs incurred on claims on which the homeowners prevailed from those that were decided adversely to the homeowners, and the award was limited to the issues on which the homeowners were successful. Forsyth County v. Martin, 279 Ga. 215, 610 S.E.2d 512 (2005).
Attorney's fees recoverable in contractual actions against the state.
- Constitutional waiver of sovereign immunity in contract actions against the state is not limited to a waiver of only certain elements of recoverable compensatory damages. DOT v. Fru-Con Constr. Corp., 206 Ga. App. 821, 426 S.E.2d 905 (1992).
Attorney fees not recoverable in sale of company's assets.
- When a company sought attorney fees, under O.C.G.A. § 13-6-11, and punitive damages from the company's attorneys regarding their participation in a sale of the company's assets, summary judgment should have been granted in favor of the attorneys because no claims as to which such relief might have been awarded were found to be proper. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004).
Summary judgment dismissing claims of corporate investor improper.
- Because corporate defendants did not demonstrate that they were entitled to judgment as a matter of law on an investor's claims for money had and received and for conversion, summary judgment dismissing the investor's claims for punitive damages and litigation expenses based on those causes of action was improper. Fernandez v. WebSingularity, Inc., 299 Ga. App. 11, 681 S.E.2d 717 (2009).
Attorney's fees in breach of contract suit.
- In a breach of contract suit, a bank was entitled to attorney fees because the bank was the prevailing party and had adequately pled a claim for such fees under O.C.G.A. § 13-6-11. Keybank Nat'l Ass'n v. Fairpoint, LLC, F. Supp. 2d (N.D. Ga. Oct. 14, 2008).
Trial court did not err in directing a verdict against a bank on the bank's counterclaims for attorney fees because the counterclaims were based on having to defend against a complaint for breach of contract and wrongful foreclosure; since success on the bank's counterclaims would amount to a recovery of damages for merely having been sued by a corporation and the corporate owner, O.C.G.A. § 13-6-11 precluded the bank from recovering attorney fees. Canton Plaza, Inc. v. Regions Bank, Inc., 315 Ga. App. 303, 732 S.E.2d 449 (2012).
Trial court properly awarded attorney fees in the amount of $55,000 in a breach of contract case pursuant to O.C.G.A. § 13-6-11 in favor of plaintiff because the trial court had substantial evidence, including affidavits, testimony, and billing statements, concerning the proportion of fees expended on the breach of contract and rescission claims, and made an award within the range of the evidence before it. Fowler's Holdings, LLLP v. CLP Family Invs., L.P., 318 Ga. App. 73, 732 S.E.2d 777 (2012).
After an employer's breach of contract and tort claims against a temporary staffing company failed, a claim for attorneys' fees was derivative and could only survive to the extent that the underlying claims survived. Triad Constr. Co. v. Robert Half Int'l, F.3d (11th Cir. Feb. 7, 2017)(Unpublished).
Attorney's fees when defendant failed to pay admitted debt.
- Based on a default, a corporation admitted that the corporation incurred the debt, did not dispute the validity of the debt, refused to pay despite numerous demands, caused a staffing company unnecessary trouble and expense by refusing to pay the debt, and acted in bad faith; by failing to respond to the allegations, the corporation admitted the facts alleged in the complaint and waived any defenses thereto, and the trial court did not err in awarding the staffing company attorney fees under O.C.G.A. § 13-6-11. Hope Elec. Enters. v. Proforce Staffing, Inc., 268 Ga. App. 302, 601 S.E.2d 723 (2004).
Attorney's fee award in contract for roof repair.
- Award of attorney's fees was proper since there was evidence on which a jury could have found bad faith arising out of the contract for the new roof on which the cause of action was based. Hendon v. Superior Roofing Co., 242 Ga. App. 307, 528 S.E.2d 548 (2000).
No fee award when dispute between contractor, homeowner, and insurer.
- When there was a bona fide controversy between the parties as to whether a contractor was employed by homeowners or by the homeowners' insurer, and when there was no suggestion of any bad faith on the part of the insurer, in connection with this matter, the trial court erred in denying the insurer's motion for summary judgment with respect to the plaintiffs' claim for litigation expenses based on bad faith and stubborn litigiousness. Carter v. Allstate Ins. Co., 197 Ga. App. 738, 399 S.E.2d 500 (1990).
Basis for fees shown against property association on behalf of owners.
- Trial court erred by granting summary judgment to a subdivision association on the lot owners' claim for attorney fees and litigation expenses under O.C.G.A. § 13-6-11 because the evidence showed that the association improperly conditioned the combination of the owners' lots on the owners' execution of an unnecessary affidavit and, after the owners sued the association, although the association eventually conceded that the association considered the lots combined, the association refused to adjust the setback lines unless and until the owners resubmitted the owners' plans. Henderson v. Sugarloaf Residential Prop. Owners Ass'n, 320 Ga. App. 544, 740 S.E.2d 273 (2013).
Attorneys fees in breach of employment contract between realtors.
- In an action regarding an alleged breach of an employment contract seeking commissions on two deals made by a real estate agent that a former real estate broker alleged it was entitled to, the trial court erred in entering summary judgment against the agent, and finding that the agent owed the broker commissions as to one of two contested deals because: (1) the agent closed the deal with that client after terminating employment with the broker; and (2) it was undisputed that the agent had not agreed to share commissions with the broker on deals struck after the agent left the broker's employ; thus, since summary judgment was properly entered in the agent's favor regarding commissions paid to the agent as to the second of the two contested clients, the broker was not entitled to litigation costs under O.C.G.A. § 13-6-11. Morgan v. Richard Bowers & Co., 280 Ga. App. 533, 634 S.E.2d 415 (2006).
No fee in employer's claim for money had and received.
- Because an employer did not prevail on the employer's claims of money had and received, and unjust enrichment against a retired employee who was allegedly overpaid, the employer was not entitled to attorneys' fees and expenses pursuant to O.C.G.A. § 13-6-11. Graphic Packaging Holding Co. v. Humphrey, F.3d (11th Cir. Nov. 16, 2010)(Unpublished).
Attorney's fees in actions on lease.
- Because no evidence was presented that a lessee's son acted as a agent for the lessee when the lease on the rented premises was entered into, and the lessee never ratified the son's actions on the lease, the lessee was not liable for unpaid rents on the leased premises; as a result, since such was the basis for the lessor's counterclaim, an award of attorney's fees under O.C.G.A. § 13-6-11 was reversed. Ellis v. Fuller, 282 Ga. App. 307, 638 S.E.2d 433 (2006).
Attorney's fees in landlord/tenant relationship.
- Although a trial court erred in awarding a tenant attorney fees under O.C.G.A. § 13-6-11 because the tenant's counterclaim was not independent or viable, the error was harmless since attorney fees were authorized under an amended lease provision allowing attorney fees to the prevailing party; the landlord was not misled or denied the opportunity to defend or offer evidence on the issue because at the first trial, the tenant asserted that it was seeking attorney fees as the prevailing party, and at the second trial, the tenant stated in its opening statement that in addition to seeking attorney fees under § 13-6-11, it was seeking and introducing evidence of attorney fees as recoverable under the lease provision, and having failed to make a contemporaneous objection when the arguments were raised and the evidence introduced, the landlord implicitly consented to the amendment of the pleadings to include the claim and waived any objections thereto. Sugarloaf Mills Ltd. P'ship v. Record Town, Inc., 306 Ga. App. 263, 701 S.E.2d 881 (2010).
Trial court did not err by awarding the tenants attorney fees under O.C.G.A. § 13-1-11 because the plain terms of the parties' lease authorized the award of reasonable attorney fees and costs. Anglin v. Moore, 332 Ga. App. 346, 771 S.E.2d 525 (2015).
Homeowner's association not entitled to attorney's fees.
- Because the original complaint for equitable relief did not put the homeowners on notice that the association was seeking attorney fees and expenses under O.C.G.A. § 13-6-11, and because the associations' claim for attorney fees and expenses was contained only in the association's amended complaint, the association was not entitled to a default judgment on that claim. Water's Edge Plantation Homeowner's Ass'n, Inc. v. Reliford, 315 Ga. App. 618, 727 S.E.2d 234 (2012).
Seller could not recover attorney's fees.
- Ancillary award of attorney fees and expenses in favor of a seller was ordered struck, pursuant to O.C.G.A. § 9-12-8, as: (1) the jury failed to find the buyers liable on the seller's underlying substantive claims; (2) the award was based on O.C.G.A. § 13-6-11, not O.C.G.A. § 10-5-14; and, as a result; (3) the lack of a damages award in favor of the seller did not support the award. Davis v. Johnson, 280 Ga. App. 318, 634 S.E.2d 108 (2006).
Attorney fee awards in tort actions.
- Because a customer did not show that a restaurant was liable on the customer's tort claims, it was proper to grant summary judgment for the restaurant on the customer's claims for attorney fees and punitive damages under O.C.G.A. §§ 13-6-11 and51-12-5.1. Dowdell v. Krystal Co., 291 Ga. App. 469, 662 S.E.2d 150 (2008), cert. denied, 2008 Ga. LEXIS 787 (Ga. 2008).
Negligence per se supporting fee award.
- As a jury could have determined that an employee for a tractor company was negligent per se pursuant to O.C.G.A. § 40-6-140(f) for driving a tractor-trailer over a railroad crossing, whereupon the tractor-trailer got stuck due to insufficient undercarriage clearance, the jury's subrogation award to an insurer whose insured suffered damages from the incident was supported by the evidence as was the award of litigation expenses under O.C.G.A. § 13-6-11; accordingly, it was proper to deny a motion by the insurer for the tractor company, against which the judgment was entered, for judgment notwithstanding the verdict. Universal Underwriters Group v. Southern Guar. Ins. Co., 297 Ga. App. 587, 677 S.E.2d 760 (2009).
Injured party was properly awarded damages for litigation expenses under O.C.G.A. § 13-6-11 after a driver's testimony tended to show that the injured party did not yield the right-of-way and that the driver was liable; the trial court was authorized to conclude that a bona fide controversy did not exist as to liability for the automobile accident and did not err by allowing evidence of the injured party's litigation expenses, denying the driver's motion for a directed verdict, or in charging the jury on the claim for litigation expenses. Daniel v. Smith, 266 Ga. App. 637, 597 S.E.2d 432 (2004).
Bona fide dispute as to driver's liability meant no award of fees.
- After a motorist being sued in a personal injury case testified that the rear-end collision at issue was caused when the injured person's car swerved suddenly into the motorist's lane, the injured person's witness, the driver of the other car, was a long-time friend of the injured person and that witness's testimony could have been self-serving, the motorist's deposition was consistent with the trial testimony, and the only substantial variation in the motorist's versions of events was between the police report, of which the officer had no independent recollection, and the motorist's testimony, there was a bona fide dispute as to liability and a reasonable defense, which precluded the award of attorney fees and expenses under O.C.G.A. § 13-6-11. Anderson v. Cayes, 278 Ga. App. 592, 630 S.E.2d 441 (2006).
Attorney's fees recoverable in intentional tort action.
- Because the appeals court found that other intentional tort claims survived summary judgment which would authorize the imposition of punitive damages if the jury were to find that a retailer and the retailer's employees acted with a wanton disregard of a nine-year-old child's rights, the trial court did not err by denying summary judgment on these grounds; moreover, every intentional tort invoked a species of bad faith that entitled a person wronged to recover the expenses of litigation, including attorney fees under O.C.G.A. § 13-6-11. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).
In a beneficiary's suit against a trust's attorneys and trustee, the trial court erred in finding that attorney's fees under O.C.G.A. § 13-6-11 and punitive damages under O.C.G.A. § 51-12-5.1(b) were not available because the beneficiary's claims for breach of fiduciary duty, conversion, and wrongful eviction should have remained in the case. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014).
O.C.G.A. § 13-6-11 does not apply in garnishment proceedings. See Worsham Bros. Co. v. FDIC, 167 Ga. App. 163, 305 S.E.2d 816 (1983).
Mere refusal to defend title pursuant to a general warranty deed will not necessarily give rise to a claim for attorney fees. Cary v. Guiragossian, 270 Ga. 192, 508 S.E.2d 403 (1998).
Defendant's counterclaim did not arise separately from plaintiff's claim.
- Because the property owner's counterclaim to quiet title did not arise separately from the bank's claim to reform the deed and void the foreclosure, the trial court did not err in dismissing the property owner's claim for attorney fees. Cronan v. JP Morgan Chase Bank, N.A., 336 Ga. App. 201, 784 S.E.2d 57 (2016).
Trial court erred in granting the plaintiffs summary judgment on the litigation expense counterclaim asserted by the defendants because questions of fact remained with respect to the defendants' derivative counterclaim for litigation expenses, particularly regarding the co-tenancy agreement; thus, summary judgment was improper as to that counterclaim. 6428 Church St. v. SM Corrigan, LLC, 352 Ga. App. 437, 834 S.E.2d 603 (2019), cert. denied, No. S20C0468, 2020 Ga. LEXIS 386 (Ga. 2020); cert. denied, No. S20C0473, 2020 Ga. LEXIS 399 (Ga. 2020).
When expenses sought for counterclaim.
- Trial court correctly granted summary judgment to the plaintiffs on the defendants' counterclaim for litigation expenses based solely on O.C.G.A. § 13-6-11, because the Code section did not permit the recovery of expenses incurred in defending a lawsuit and the record showed that the defendants did not assert a substantive counterclaim against the plaintiffs. 6428 Church St. v. SM Corrigan, LLC, 352 Ga. App. 437, 834 S.E.2d 603 (2019), cert. denied, No. S20C0468, 2020 Ga. LEXIS 386 (Ga. 2020); cert. denied, No. S20C0473, 2020 Ga. LEXIS 399 (Ga. 2020).
Claim for attorney fees against title insurance company failed as there was a bona fide controversy between the parties precluding an award based on alleged stubborn litigiousness or causing the plaintiff unnecessary trouble and expense; further, the owner failed to show that the insurance company made an alleged oral contract in bad faith or breached the oral contract as a result of some sinister motive. Marshall v. King & Morgenstern, 272 Ga. App. 515, 613 S.E.2d 7 (2005).
Attorney's fees in tax lien encumbrance suit.
- When there was a bona fide controversy regarding whether the defendant, as an assignee, could recover from plaintiffs in a tax lien encumbrances suit and the evidence did not establish that the plaintiffs acted in a manner to warrant the imposition of attorney fees, the state court's award of fees was improper. Homeland Communities, Inc. v. Rahall & Fryer, 235 Ga. App. 440, 509 S.E.2d 714 (1998).
Claim for attorney's fees based on real estate tax lien.
- Real estate investors who claimed that three mortgage companies were liable for damages based on ostensible injury caused to the investors' credit scores by reason of the filing of a tax lien triggered by the companies' failure to pay a tax bill were denied litigation expenses under O.C.G.A. § 13-6-11 because a required predicate for such an award was a finding that there was no bona fide controversy or dispute regarding liability for the underlying cause of action, and such a finding was not justified by the evidence on the companies' motions for summary judgment. Burch v. Chase Manhattan Mortg. Corp., F. Supp. 2d (N.D. Ga. Sept. 15, 2008).
Federal Automobile Dealer's Day in Court Act does not include attorney fees in the definition of "cost of suit"; however, a prevailing plaintiff would not be precluded from recovering only attorney fees under O.C.G.A. § 13-6-11. Nissan Motor Acceptance Corp. v. Stovall Nissan, Inc., 224 Ga. App. 295, 480 S.E.2d 322 (1997).
Actions under Carmack Amendment.- Plaintiff could not recover the attorneys' fees and costs sought under Georgia law because they were preempted by the Carmack Amendment, which provides for the liability of a "common carrier" to the person entitled to recover under receipt or bill of lading for loss or injury to goods incurred during transportation. PolyGram Group Distribution, Inc. v. Transus, Inc., 990 F. Supp. 1454 (N.D. Ga. 1997).
Application in condemnation cases.
- Condemnee, as plaintiff in an action to recover from the government just and adequate compensation for the taking of plaintiff's land for a public purpose, may successfully avail oneself of the provisions of O.C.G.A. § 13-6-11 and recover attorney fees. DeKalb County v. Daniels, 174 Ga. App. 319, 329 S.E.2d 620 (1985); DOT v. Edwards, 267 Ga. 733, 482 S.E.2d 260 (1997).
Action in which landowners sought to vacate a condemnation and requested attorney fees for litigation spawned from the misuse and improper use of the powers of the Department of Transportation was a "proper case" for the recovery of attorney fees. DOT v. B & G Realty, Inc., 197 Ga. App. 613, 398 S.E.2d 762 (1990).
Application in inverse condemnation cases.
- In an inverse condemnation action, the trial court erred in excluding evidence on the property owners' claim for attorney fees, alleging that the county acted in bad faith and was stubbornly litigious and caused the property owners unnecessary trouble and expense. Pribeagu v. Gwinnett County, 336 Ga. App. 753, 785 S.E.2d 567 (2016).
Genuine issues of fact remained for trial in a claim by homeowners against a county for inverse condemnation arising out of an alleged continuing nuisance from the county's failure to maintain and repair storm water drainage systems, given expert and lay testimony regarding the flooding amounts. The county could be liable for attorney's fees under O.C.G.A. § 13-6-11. Hayman v. Paulding County, 349 Ga. App. 77, 825 S.E.2d 482 (2019).
Actions based on insurer's bad faith refusal to pay insurance claim.
- Claim for attorney fees and expenses of litigation under O.C.G.A. § 13-6-11 was not authorized in an action by an insured under O.C.G.A. § 33-4-6 (now subsection (a)) seeking penalties for the insurer's bad faith refusal to pay insurance proceeds. Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 448 S.E.2d 275 (1994); United Servs. Auto. Ass'n v. Carroll, 226 Ga. App. 144, 486 S.E.2d 613 (1997).
Claims for attorney fees and expenses are not authorized under O.C.G.A. § 13-6-11; the penalties contained in O.C.G.A. § 33-4-6 (now subsection (a)) are the exclusive remedies for an insurer's bad faith refusal to pay insurance proceeds. Colonial Oil Indus. Inc. v. Underwriters Subscribing to Policy Nos. T031504670 & T031504671, 910 F. Supp. 655 (S.D. Ga. 1995).
In an insured's suit asserting claims for breach of contract and bad faith breach of contract under O.C.G.A. §§ 9-2-20 and33-4-6 in connection with an insurer's denial of the insured's claim for proceeds of a disability insurance policy, the parent corporation of the insurer, which administered the insurer's policies, was not liable upon the insured's claim for attorney fees and expenses under O.C.G.A. § 13-6-11 because even if the insured had succeeded on the insured's underlying claims against the parent, O.C.G.A. § 33-4-6 provides the exclusive remedy for fees and costs in cases involving bad faith refusal to pay insurance proceeds. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).
Because the penalties contained in O.C.G.A. § 33-4-6 were the exclusive remedies for an insurer's bad faith refusal to pay insurance proceeds, attorney fees under O.C.G.A. § 13-6-11 were unavailable to an insured who prevailed on the insured's coverage claim before a jury. Johnston v. Companion Prop. & Cas. Ins. Co., 318 Fed. Appx. 861 (11th Cir. 2009)(Unpublished).
Mortgagee's claim for expenses of litigation, including attorney fees under O.C.G.A. § 13-6-11 was not authorized in the mortgagee's action against an insurer seeking payment of insurance proceeds because the penalties contained in O.C.G.A. § 33-4-6 were the exclusive remedies for an insurer's bad faith refusal to pay insurance proceeds. Balboa Life & Cas., LLC v. Home Builders Fin., 304 Ga. App. 478, 697 S.E.2d 240 (2010).
In a suit by a mortgagee against an insurer for bad faith, the insurer should have been granted summary judgment on the mortgagee's claims for bad faith damages and attorney fees under O.C.G.A. § 33-4-6 for a refusal to pay and attorney fees under O.C.G.A. § 13-6-11 because the insurer had paid the claim to the mortgagor and the mortgagee jointly and the mortgagor's agent had fraudulently endorsed the check; attorney's fees were not available because penalties were the exclusive remedy. Auto-Owners Ins. Co. v. Hale Haven Props., 346 Ga. App. 39, 815 S.E.2d 574 (2018), cert. denied, No. S18C1423, 2019 Ga. LEXIS 75, cert. denied, No. S18C1418, 2019 Ga. LEXIS 88, cert. denied, No. S18C1421, 2019 Ga. LEXIS 92 (Ga. 2019), cert. denied, No. S18C1417, 2019 Ga. LEXIS 93 (Ga. 2019).
Contested insurance clause.
- No award of attorney fees was authorized when litigant's position was anything less than genuine over a contested insurance clause's coverage. Georgia Baptist Children's Homes & Family Ministries, Inc. v. Essex Ins. Co., 207 Ga. App. 346, 427 S.E.2d 798, cert. denied, 263 Ga. 441, 435 S.E.2d 445 (1993).
Attorney fees properly denied when damages not shown in malpractice action.
- When a client in a legal malpractice action failed to demonstrate that genuine issues of fact existed as to whether the attorney had proximately caused the client any damages, the trial court did not err in granting the attorney summary judgment on the client's claims for punitive damages and for attorney fees under O.C.G.A. §§ 13-6-11 and51-12-5.1. Amstead v. McFarland, 287 Ga. App. 135, 650 S.E.2d 737 (2007), cert. denied, 2007 Ga. LEXIS 769 (Ga. 2007).
Evidence sufficient to award attorney's fees by probate.
- Beneficiaries of a will sued the decedent's grandchild for conversion of stock the beneficiaries alleged was intended to be part of the decedent's estate; the jury found by special verdict that the grandchild, with intent to commit fraud, converted the stock. As fraud was a form of bad faith, the beneficiaries were entitled to attorney fees under O.C.G.A. § 13-6-11. Bunch v. Byington, 292 Ga. App. 497, 664 S.E.2d 842 (2008).
Recoverable in trust beneficiary's claim against trustee and attorneys.
- In a trust beneficiary's claim against a co-trustee and attorneys for the trust for breach of fiduciary duty, conversion, and wrongful eviction and trespass, because issues of fact remained as to those claims, the beneficiary's claims for bad faith expenses of litigation and punitive damages were not subject to summary judgment. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014).
Willful divesting of trust.
- In a trustee's suit against a company and the company's manager (defendants) for interfering with trust assets, the trial court erred by granting summary judgment to the defendants on the trustee's claim for punitive damages and litigation expenses because the trustee offered evidence that the defendants willfully violated the partnership agreement and divested the trust of a valuable asset, which raised material factual questions as to whether such conduct supported such damages. Schinazi v. Eden, 338 Ga. App. 793, 792 S.E.2d 94 (2016).
Denial in bankruptcy non-dischargeability matter.
- Creditor who loaned 503,170 Euros to a debtor before the debtor moved to the United States and declared Chapter 7 bankruptcy proved that the debtor was ineligible under 11 U.S.C. § 727 to have the debt discharged because the debtor made a false oath in conjunction with the bankruptcy case by testifying falsely that the debtor did not sign an Acknowledgement of Debt the creditor offered as evidence of the debt; however, the creditor was not entitled to punitive damages under O.C.G.A. § 51-12-5.1 or an award of attorney's fees and costs under O.C.G.A. § 13-6-11 because those statutes did not apply in an adversary proceeding filed pursuant to 11 U.S.C. § 727. Locci v. Siewe (In re Siewe), Bankr. (Bankr. N.D. Ga. June 13, 2017).
Sufficient basis had not been offered to support either an award of attorney's fees or a ruling that the fees were nondischargeable under 11 U.S.C. § 523(a)(6) because it had not been shown that the attorney's fees sought by the creditor arose from the willful and malicious conduct forming the basis of the nondischargeability claim. Law Offices of Robert Pagniello, P.C. v. Bryan (In re Bryan), Bankr. (Bankr. N.D. Ga. Feb. 15, 2019).
Attorney's fees in dischargeability proceeding.
- Plaintiff failed to cite any authority for the proposition that an award of attorney's fees under O.C.G.A. § 13-6-11 was appropriate in a dischargeability proceeding under the Bankruptcy Code and did not offer any admissible evidence that would support an award of attorney's fees for the instant adversary proceeding in connection with a motion for summary judgment. Peoples Bank v. Abernathy (In re Abernathy), Bankr. (Bankr. N.D. Ga. Apr. 1, 2019).
Shareholders' suit.
- After the shareholders' claims for breach of fiduciary duty and fraud against a bankrupt corporation, the corporation's board of directors, and two investor corporations were dismissed because the shareholders no longer owned any shares in the bankrupt corporation and therefore did not meet the ownership requirements of Fed. R. Civ. P. 23.1, the shareholders were not entitled to attorney's fees pursuant to O.C.G.A. § 13-6-11. Hantz v. Belyew, F. Supp. 2d (N.D. Ga. Mar. 23, 2005).
Trial court did not err in declining to set off attorney fees from the total awarded to a corporation in its action against a former president alleging breach of fiduciary duty and misappropriation of corporate opportunity because a mutual release entered into between the president, the corporation, and joint tortfeasors specifically released the joint tortfeasors from future claims for attorney fees, but it excluded the president; there was no evidence in the record to suggest that the corporation received full satisfaction of its attorney fees through the settlement agreement with the joint tortfeasors. Brewer v. Insight Tech., Inc., 301 Ga. App. 694, 689 S.E.2d 330 (2009), cert. denied, No. S10C0678, 2010 Ga. LEXIS 455 (Ga. 2010).
Attorney's fees in piercing corporate veil.
- Because a corporation's officers abused the corporate form and disregarded the corporation's separateness by commingling properties, failed to observe corporate formalities, undercapitalized the corporation, and committed fraud at a real estate closing, a trial court did not err in holding the officers liable for a judgment against the corporation obtained by homeowners and in ordering the homeowners to pay the homeowners' attorney fees. Christopher v. Sinyard, 313 Ga. App. 866, 723 S.E.2d 78 (2012).
Attorney's fee award in conversion claim.
- An award of attorney fees in favor of the plaintiff in a conversion action was not warranted, given bona fide dispute as to whether trailer in defendant's possession was in fact the property of the plaintiff. Allmond v. Walker, 172 Ga. App. 870, 324 S.E.2d 812 (1984).
Assurance that property damages would be paid.
- In an action to recover the cost of repairs to a plaintiff's automobile which was damaged while parked in defendant's facility at an airport, and for attorney fees, the evidence showed that the plaintiff was assured by defendant at the time the plaintiff reported the damage and for six months afterwards that the defendant would take care of the paint repairs, which was not done, thus, the plaintiff showed that the defendant acted in bad faith, or was stubbornly litigious, or put the plaintiff to unnecessary trouble or expense, and the trial court did not err in awarding attorney fees. Parking Co. of Am. v. Sucan, 195 Ga. App. 616, 394 S.E.2d 411 (1990).
Refusal to pay interest is not conversion.- When there was no independent, noncontractual duty which defendants could have violated by refusing to pay the interest on the plaintiff's escrow account, the defendants' refusal to pay to the plaintiff interest on the cash escrow account did not constitute the tort of conversion under Georgia law and the relationship was contractual which justified the setting aside of the jury's punitive damages award and reversing the jury's conclusion that the defendants' withholding of the accrued interest constituted the tort of conversion. LaRoche Indus., Inc. v. AIG Risk Mgt., Inc., 959 F.2d 189 (11th Cir. 1992).
Home construction contracts.
- O.C.G.A. § 13-6-11 did not apply to the award of attorney fees in an action by a contractor to recover the balance owing under a home construction contract that contained a provision governing attorney fees. Layfield v. Southeastern Constr. Coordinators, Inc., 229 Ga. App. 71, 492 S.E.2d 921 (1997).
Bad faith breach of construction contract.
- Trial court did not err in denying homeowners' motion for directed verdict and allowing the issue of attorney fees to go to the jury because there was evidence from which the jury could have concluded that the homeowners willfully failed to disclose and/or misrepresented to a builder certain construction costs that otherwise should have been included in the calculation of the builder's compensation; that evidence would authorize a finding of something other than a good-faith belief on the part of the homeowners that the builder was asking the homeowners to pay more than the homeowners were contractually obligated to pay. Harris v. Tutt, 306 Ga. App. 377, 702 S.E.2d 707 (2010).
Sellers' bad faith in retaining earnest money.
- Jury was authorized to find that there was no bona fide controversy, or that the defendants (sellers of certain property) acted in bad faith in that there was no contractual or equitable basis for the sellers to have retained the buyer's earnest money after the contract was rescinded. New York Ins. Co. v. Willett, 183 Ga. App. 767, 360 S.E.2d 37 (1987).
In a home buyer's suit to recover earnest money based on damage to the home, because there was evidence on both sides of the question regarding the nature of the damage, and the seller attempted some repairs and extended the closing date, the trial court was authorized to find a lack of bad faith that would support an attorney fee award against the seller under O.C.G.A. § 13-6-11. Rivers v. South Auction & Realty, 351 Ga. App. 179, 830 S.E.2d 636 (2019), cert. denied, 2020 Ga. LEXIS 159 (Ga. 2020).
Expenses of litigation not recoverable in breach of warranty action.
- Expenses of litigation, including attorney fees and costs, are not proper elements of damage in suit for breach of warranty and are not recoverable. State Mut. Ins. Co. v. McJenkin Ins. & Realty Co., 86 Ga. App. 442, 71 S.E.2d 670 (1952).
For application of section in breach of warranty action.
- See Smith v. Williams, 117 Ga. 782, 45 S.E. 394, 97 Am. St. R. 220 (1903).
Attorney fees award in fraud claims.
- Trial court did not err in granting a car dealer summary judgment against a customer's fraud claim as: (1) the customer's contention that the dealer knew of the alleged defects in a car sold to the customer at the time of the sale was specifically negated by affidavits submitted by the dealer's service and maintenance employees; and (2) even if the dealer knew of the car's defectiveness after the sale, this knowledge did not amount to either knowledge, or a reckless disregard of the car's defectiveness, at the time of the sale; hence, as a result, the trial court did not err in granting the dealer's motion for summary judgment on the customer's claims for attorney fees under O.C.G.A. § 13-6-11, costs, and punitive damages pursuant to O.C.G.A. § 51-12-5.1. Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App. 238, 641 S.E.2d 222 (2007).
Attorney fees not recoverable in commitment proceedings.
- There is no statutory authority for the award of attorney fees to a patient who was ordered discharged in involuntary commitment proceedings under O.C.G.A. Ch. 3, T. 37. Georgia Mental Health Inst. v. Brady, 263 Ga. 591, 436 S.E.2d 219 (1993).
Section inapplicable to suit to foreclose mortgage. Lowry Banking Co. v. Atlanta Piano Co., 95 Ga. 146, 22 S.E. 42 (1894).
Foreclosure proceedings are not ordinarily within purview of this statute. Builders Supply Co. v. Pilgrim, 115 Ga. App. 85, 153 S.E.2d 657 (1967) (see O.C.G.A. § 13-6-11).
Attorney fee awards in foreclosure proceedings.
- Because there were no excess proceeds from the foreclosure sale to which a condominium association would have been entitled, and regardless of whether it was the owner of the condominium at the time of the foreclosure it was not entitled to an equitable accounting, the association was also properly denied attorney fees under O.C.G.A. § 13-6-11 resulting from the bank's failure to provide an equitable accounting. Riverview Condo. Ass'n v. Ocwen Fed. Bank, FSB, 285 Ga. App. 7, 645 S.E.2d 5 (2007), cert. denied, No. S07C1254, 2007 Ga. LEXIS 705 (Ga. 2007).
Fees when class action more profitable than action by individual.
- Because the precatory nature of attorneys' fees under O.C.G.A. § 13-6-11 did not provide the same incentive for an attorney to represent an individual plaintiff as the automatic, or likely, award of fees and costs available to a prevailing plaintiff under statutes that mandated an award of attorneys' fees, the court concluded that plaintiff consumer would probably be unable to secure adequate representation to prosecute the plaintiff's claims were a class action waiver found in the plaintiff's banking services agreement to be enforced because the potential of the plaintiff's individual recovery was too small. Gordon v. Branch Banking & Trust, F.3d (11th Cir. Mar. 28, 2011)(Unpublished).
Attorney's fees in class action.
- Landowners' belated claim for attorney fees could not be asserted in connection with their individual claim, which had already been decided by the appellate court; thus, once the trial court declined to certify the class action claim, nothing remained to which the claim for attorney fees could be attached, and the amendment therefore fell with the class action claim. Duffy v. Landings Ass'n, 254 Ga. App. 506, 563 S.E.2d 174 (2002).
Attorney's fees in bankruptcy action.
- Chapter 7 debtor was collaterally estopped from relitigating a creditor's claim for a determination of nondischargeability per 11 U.S.C. § 523(a)(6) of a state court judgment for damages for malicious prosecution and intentional infliction of emotional distress because the state court litigation met all of the requirements for the application of that doctrine. Moreover, the nondischargeable debt included amounts awarded as attorneys fees per O.C.G.A. § 13-6-11. Kasper v. Turnage (In re Turnage), 460 Bankr. 341 (Bankr. N.D. Ga. 2011).
Although term "bad faith" in Georgia statute allowing for recovery of attorney's fees did not per se equate to a deliberate or willful injury, facts found by an arbitrator formed the basis for a nondischargeability judgment under the Bankruptcy Code. Arbitrator's findings that debtor intentionally failed to bill and collect from the debtor's patients and that the debtor shredded patient files were sufficient for the bankruptcy court to conclude that the debtor willfully intended to injure the creditor and that the debtor's actions were malicious, wrongful, and without just cause. Tenet South Fulton, Inc. v. Demps (In re Demps), 506 Bankr. 163 (Bankr. N.D. Ga. 2014).
LLC that declared Chapter 11 bankruptcy committed trespass in violation of O.C.G.A. § 51-9-10 when the LLC interfered with a pilot's right to use an airport the LLC owned after the LLC gave the pilot permission to do so, but the pilot's right was limited to use of the taxiways and runway and the pilot violated O.C.G.A. § 51-9-10 by entering the airport for other purposes after being told not to do so; although the court awarded the LLC $100 for the pilot's trespass and the pilot $600 for the LLC's trespass, neither party showed that the opposing party committed a private nuisance in violation of Georgia law, and the court refused to award punitive damages under O.C.G.A. § 51-12-5.1 or attorney's fees under O.C.G.A. § 13-6-11 to either party. Flyboy Aviation Props., LLC v. Franck (In re Flyboy Aviation Props., LLC), 525 Bankr. 510 (Bankr. N.D. Ga. 2015).
Negligence suit involving contested amount of damages and proximate cause.
- Trial court did not err in refusing to submit plaintiffs' claim under O.C.G.A. § 13-6-11 for attorney fees to the jury because the record showed that a bona fide controversy existed throughout the litigation, the record contained evidence that defendants genuinely disputed the amount of plaintiffs' damages and the issue of the proximate cause of certain injuries, and there was no evidence that defendants forced plaintiffs to resort to litigation or caused them unnecessary trouble and expense. Horton v. Dennis, 325 Ga. App. 212, 750 S.E.2d 493 (2013).
Insufficiency of damages award required reversal of attorney fees award.
- Though a subcontractor successfully proved a breach of contract claim against a supplier, the damages award in the amount of $160,000 was reversed on appeal as the subcontractor failed to present any evidence of anticipated expenses due to the loss of a construction project arising from the breach, and therefore the subcontractor's proof of lost profits was insufficient as a matter of law and required a new trial; further, because the damages award was reversed, the appellate court also reversed the award of attorney fees to the subcontractor since the award of attorney fees was contingent upon the damages award on the breach of contract claim. Bldg. Materials Wholesale, Inc. v. Triad Drywall, LLC, 287 Ga. App. 772, 653 S.E.2d 115 (2007).
Expert witness's suit against client for fee.
- In a suit wherein an expert witness sued the former client for unpaid fees, the trial court properly awarded the expert witness attorney fees and expenses related to the suit to collect unpaid fees incurred as the evidence established that no bona fide controversy existed since the former client's attorney had the apparent authority to hire the expert witness. Wilen v. Murray, 292 Ga. App. 30, 663 S.E.2d 403 (2008).
Fees in dispute over repairs of vehicle.
- Truck repairer's failures to repair an owner's truck to the owner's satisfaction or to agree on a trade-in price for the truck could not have justified the submission of attorney fees to the jury pursuant to O.C.G.A. § 13-6-11, such that the trial court properly granted a directed verdict under O.C.G.A. § 9-11-50 to the repairer. Puckette v. John Bailey Pontiac-Buick-GMC Truck, Inc., 311 Ga. App. 138, 714 S.E.2d 750 (2011).
General contractor prevailing in federal claim.
- To the extent the general contractor prevailed on the contractor's 11 U.S.C. § 523(a)(2)(A) claim and could establish circumstances that O.C.G.A. § 13-6-11 specified, the general contractor could recover attorney's fees. Hensler & Beavers Gen. Contrs., Inc. v. Sanford (In re Sanford), Bankr. (Bankr. N.D. Ga. Dec. 22, 2011).
Attorney's fees award not supported.
- When there is a bona fide controversy and the evidence does not demand a verdict for either side and there is no evidence of bad faith or stubborn litigiousness or unnecessary trouble and expense, a verdict for attorney fees is not supported. Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 277 S.E.2d 753 (1981).
Award of attorney fees pursuant to O.C.G.A. § 13-6-11 was improper since the substantial uncertainty and disagreement between the parties led the plaintiff to seek a declaratory judgment as to whether a contract existed between the parties. General Hosps. of Humana v. Jenkins, 188 Ga. App. 825, 374 S.E.2d 739 (1988), cert. denied, 188 Ga. App. 911, 374 S.E.2d 739 (1989); Wynn v. Arias, 242 Ga. App. 712, 531 S.E.2d 126 (2000), overruled on other grounds, Clearwater Constr. Co. v. McClung, 261 Ga. App. 789, 584 S.E.2d 61 (2003).
Plaintiff did not show the bad faith or stubborn litigiousness on the part of defendant that would support an award of fees and costs, particularly since the defendant asserted a position that ultimately prevailed on a majority of the issues. Krieger v. Walton County Bd. of Comm'rs, 241 Ga. App. 373, 525 S.E.2d 147 (1999).
City was not entitled to recover additional payment for natural gas that the city had provided to a corporation's Georgia manufacturing plant: (1) the evidence showed that the city failed to exercise due diligence in billing the corporation and that the corporation was not involved in any way with the errors contained in the city's gas bills; (2) the city was not entitled to attorney's fees under O.C.G.A. § 13-6-11 merely because the corporation refused to pay the additional amount demanded by the city; and (3) the city did not present any evidence showing that the corporation acted in bad faith in making the contract, that the corporation had been stubbornly litigious, or that the corporation had caused the city unnecessary trouble and expense, any of which could be used as a basis for an attorney fee award under O.C.G.A. § 13-6-11. City of Lawrenceville v. Ricoh Elecs., Inc., 370 F. Supp. 2d 1328 (N.D. Ga. 2005).
Investment bank partner was not entitled to attorney fees predicated on the successful prosecution of the investment bank partner's guaranty counterclaim against a partner who guaranteed the partnership's debts to the investment bank partner because the trial court properly granted summary judgment to the guaranty partner on the guaranty counterclaim and a bona fide controversy existed as to the investment bank partner's breach of fiduciary duty counterclaim. AAF-McQuay, Inc. v. Willis, 308 Ga. App. 203, 707 S.E.2d 508 (2011).
Trial court erred when the court awarded the decedent's estate the attorney fees that were expended in a previous will contest in another court as no determination for the fees was made in that court. In re Estate of Tapley, 312 Ga. App. 234, 718 S.E.2d 92 (2011).
In a breach of contract action by a city against the Georgia Interlocal Risk Management Agency, the trial court did not err in denying the city's claim for attorney fees because the city failed to show that it was entitled to such fees under O.C.G.A. § 13-6-11, given that it was not entitled to an award of damages on the underlying claim. City of College Park v. Georgia Interlocal Risk Mgmt. Agency, 313 Ga. App. 239, 721 S.E.2d 97 (2011).
Indemnity provision in a title insurance agency agreement did not expressly provide for attorney fees; because attorney fees were not recoverable absent an express provision in the contract, the title insurer was not entitled to summary judgment on the insurer's claim for attorney's fees against the closing attorney. Doss & Assocs. v. First Am. Title Ins. Co., 325 Ga. App. 448, 754 S.E.2d 85 (2013).
Trial court erred in awarding attorney's fees to the contractor because a plaintiff-in-counterclaim could not recover those fees when the counterclaim arose out of the same transaction underlying the complaint and the contractor's counterclaims were in the nature of compulsory counterclaims. Graybill v. Attaway Constr. & Assocs., 341 Ga. App. 805, 802 S.E.2d 91 (2017).
When defendant entitled to judgment.
- Since the defendant was entitled to judgment on the substantive count of plaintiff's complaint, it necessarily follows that the defendant was also entitled to judgment on the plaintiff's claim for attorney fees. Arford v. Blalock, 199 Ga. App. 434, 405 S.E.2d 698, cert. denied, 199 Ga. App. 906, 405 S.E.2d 698 (1991), aff'd sub nom., Wilensky v. Blalock, 262 Ga. 95, 414 S.E.2d 1 (1992), overruled on other grounds Jordan v. Moses, 291 Ga. 39, 727 S.E.2d 460 (2012).
When there was no evidence of any complaints to defendant developers while a subdivision was being built or that the drainage system was designed with knowledge that the system would increase the runoff of storm-water or sediment onto plaintiffs' property, and when the developers complied with all requirements imposed by the county, plaintiffs' failure to comply with the county's request that the plaintiffs provide documentation of the plaintiffs' complaints and the findings of various governmental agencies as to plaintiffs' lack of damages supported the granting of summary judgment to the developers as to plaintiffs' claims for punitive damages and attorney fees. Tyler v. Lincoln, 236 Ga. App. 850, 513 S.E.2d 6 (1999).
Default judgment inappropriate.- Even assuming that the factual allegations in the complaint were true, plaintiff has not demonstrated that defendant acted in bad faith, has been stubbornly litigious, or has caused plaintiff unnecessary trouble and expense; thus, plaintiff's request for a default judgment on the issue of attorney's fees was properly denied. Ragsdale v. Giamboi (In re Sands), Bankr. (Bankr. N.D. Ga. Feb. 3, 2003).
Default judgments.
- Fact that judgment was entered by default does not make an award of attorney fees improper under O.C.G.A. § 13-6-11. Fresh Floors, Inc. v. Forrest Cambridge Apts., L.L.C., 257 Ga. App. 270, 570 S.E.2d 590 (2002).
Ten years of litigation justified attorney fee award.
- Evidence of almost ten years of protracted litigation and appeals, coupled with the trial court's finding of fraud and bad faith, warranted an award of attorney fees. Scriver v. Lister, 235 Ga. App. 487, 510 S.E.2d 59 (1998).
Termination of contract after appeal in another case.
- When the trial court found that defendant acted in bad faith, was stubbornly litigious, and caused plaintiff unnecessary trouble and expense because defendant waited until after the Supreme Court ruled on the plaintiff's appeal in another case before attempting to terminate the plaintiff's contract with defendant or otherwise attempting to renegotiate the contract terms to mitigate the potential damage to plaintiff, since the Supreme Court's holding in the other case was by no means probable, the award for plaintiff's expenses of litigation in this action was improper. DOT v. Arapaho Constr., Inc., 180 Ga. App. 341, 349 S.E.2d 196 (1986), aff'd, 257 Ga. 269, 357 S.E.2d 593 (1987).
Expenses of litigation not recoverable in conjunction with compulsory counterclaim.
- Defendant could not recover its expenses of litigation under O.C.G.A. § 13-6-11 in conjunction with its counterclaim for improper retention of property, because that claim was clearly a compulsory counterclaim. Tri-State Consumer Ins. Co. v. LexisNexis Risk Solutions, Inc., F. Supp. 2d (N.D. Ga. May 3, 2012).
Expenses of litigation recoverable in the absence of a claim for damages.
- Defendant could recover expenses of litigation in connection with a substantive claim that sought only an injunction and specific performance rather than damages because Georgia law clearly authorized the recovery of attorney's fees under O.C.G.A. § 13-6-11 in connection with claims that sought equitable, and not just legal, relief. Tri-State Consumer Ins. Co. v. LexisNexis Risk Solutions, Inc., F. Supp. 2d (N.D. Ga. May 3, 2012).
Expenses of litigation not recoverable for conduct during course of litigation.- Defendant could not recover expenses of litigation as a result of plaintiff's having allegedly asserted baseless claims because such conduct occurred during the course of the litigation rather than in connection with the transactions underlying the litigation. Tri-State Consumer Ins. Co. v. LexisNexis Risk Solutions, Inc., F. Supp. 2d (N.D. Ga. May 3, 2012).
Sanctionable conduct occurring during litigation.
- Award of attorney fees was reversed because the record was clear that the property owner sought attorney fees pursuant to O.C.G.A. § 13-6-11, and the civil court made the court's award explicitly under that Code section, but the allegedly sanctionable conduct cited occurred as part of the litigation, namely, in the 30 days leading up to trial; therefore, a fee award under O.C.G.A. § 13-6-11 was not authorized because that Code section addressed conduct arising from the underlying transaction. Cheatham Fletcher Scott Architects, P.C. v. Hull 2000, LLLP, 352 Ga. App. 691, 835 S.E.2d 644 (2019).
Bad Faith, Fraud, and DeceitBad faith is a sufficient ground for award of attorneys' fees. White, Weld & Co. v. Cowan, 585 F.2d 136 (5th Cir. 1978).
Intention with which act is done determines whether act is in good or bad faith. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).
Bad faith must arise from transaction that spawned lawsuit.
- "Bad faith" referred to in O.C.G.A. § 13-6-11 must have arisen out of the transaction that spawned the lawsuit rather than out of the defendant's conduct in defending the case. Salsbury Labs., Inc. v. Merieux Labs., Inc., 735 F. Supp. 1555 (M.D. Ga. 1989), aff'd, 908 F.2d 706 (11th Cir. 1990).
Bad faith relates to time prior to institution of suit. Gordon v. Ogden, 154 Ga. App. 641, 269 S.E.2d 499 (1980).
Language of this statute clearly points to bad faith prior to institution of action, rather than to motive with which particular suit is being defended. Brooks v. Steele, 139 Ga. App. 496, 229 S.E.2d 3 (1976) (see O.C.G.A. § 13-6-11).
Bad faith under O.C.G.A. § 13-6-11 is bad faith arising out of the transaction upon which the complaint is based and refers to a time prior to the institution of action. Brannon Enters., Inc. v. Deaton, 159 Ga. App. 685, 285 S.E.2d 58 (1981).
When appellee agreed to submit issue of attorney fees to jury under a bad faith theory only, appellant's conduct subsequent to formation and breach of alleged agreement in question was irrelevant. Albert v. Albert, 164 Ga. App. 783, 298 S.E.2d 612 (1982).
Element of bad faith that will support a claim for litigation expenses under O.C.G.A. § 13-6-11 must relate to the acts in a transaction itself prior to litigation, not to the conduct during or motive with which a party proceeds in the litigation. Fresh Floors, Inc. v. Forrest Cambridge Apts., L.L.C., 257 Ga. App. 270, 570 S.E.2d 590 (2002).
Bad faith under which expenses of litigation are allowable means bad faith in entering contract in the first place. Murray v. Americare-Medical Designs, Inc., 123 Ga. App. 557, 181 S.E.2d 871 (1971).
Bad faith in original cause of action.
- Bad faith which would authorize recovery of attorney's fees as expenses of litigation is fraud or bad faith of defendant in transaction out of which cause of action arose. Bankers Health & Life Ins. Co. v. Plumer, 67 Ga. App. 720, 21 S.E.2d 515 (1942).
Bad faith which will authorize recovery of attorney's fees in action seeking damages and attorney's fees is bad faith in transaction out of which cause of action arose. Ford Motor Credit Co. v. Hitchcock, 116 Ga. App. 563, 158 S.E.2d 468 (1967).
"Bad faith" contemplated by O.C.G.A. § 13-6-11 is bad faith connected with the transaction and dealings out of which the cause of action arose, rather than bad faith in defending or resisting the claim after the cause of action has already arisen. Brown v. Baker, 197 Ga. App. 466, 398 S.E.2d 797 (1990).
Bad faith authorizing an award of attorney's fees in a contract action must relate to the conduct of entering the contract or to the transaction and dealings out of which the cause of action arose, which includes not only the negotiations and formulation of the contract but also performance of the contractual provisions. Baxley Veneer & Clete Co. v. Maddox, 198 Ga. App. 235, 401 S.E.2d 282 (1990), rev'd on other grounds, 261 Ga. 309, 404 S.E.2d 554 (1991).
Bad faith referred to in O.C.G.A. § 13-6-11 is not bad faith in refusing to pay but bad faith in the transaction out of which the cause of action arises. Fine & Block v. Evans, 201 Ga. App. 294, 411 S.E.2d 73 (1991).
Trial court did not err by denying a former employee benefits plan administrator's motions for judgment as a matter of law on a client's claim for litigation expenses under O.C.G.A. § 13-6-11 because there was evidence that the administrator acted in bad faith; the evidence also authorized the jury to find that the administrator's fraud hindered the client from discovering the client's cause of action because there was evidence that a close scrutiny of the administrator's invoices would not have disclosed the cause of action. Hewitt Assocs., LLC v. Rollins, Inc., 308 Ga. App. 848, 708 S.E.2d 697 (2011).
Employer's motion for summary judgment was denied as to the employees' claim of bad faith because the employer's motion for summary judgment was required to be denied as to several of the employees' claims. Pinder v. John Marshall Law Sch., LLC, F. Supp. 2d (N.D. Ga. Mar. 31, 2014).
Bad faith means bad faith in transaction which constitutes basis of action. Grant v. Hart, 197 Ga. 662, 30 S.E.2d 271 (1944); Thibadeau Co. v. McMillan, 132 Ga. App. 842, 209 S.E.2d 236 (1974), appeal dismissed, 233 Ga. 636, 213 S.E.2d 1 (1975); Clark v. Aenchbacher, 143 Ga. App. 282, 238 S.E.2d 442 (1977).
Bad faith means bad faith (such as fraud) in transaction out of which cause of action arose. Vacca v. Meetze, 499 F. Supp. 1089 (S.D. Ga. 1980).
Presence or absence of bad faith on part of defendant lies solely in evidence of the defendant's conduct in dealings with plaintiff out of which suit arose, and not in plaintiff's ability to prove up plaintiff's damages, which can unquestionably be dependent on a spate of factors unrelated to defendant's moral culpability. Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980).
Bad faith referred to, in actions sounding in tort, means bad faith in transaction out of which cause of action arose. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950); Knobeloch v. Mustascio, 640 F. Supp. 124 (N.D. Ga. 1986); Mallory v. Daniel Lumber Co., 191 Ga. App. 234, 381 S.E.2d 406 (1989); City of Atlanta v. Murphy, 194 Ga. App. 652, 391 S.E.2d 474 (1990).
Bad faith must have arisen from transaction, not defendant's defense of case.
- Statutory bad faith necessary to establish a right to attorney fees must have arisen out of the transaction on which the cause of action is predicated rather than defendant's conduct in defending the case. Allen v. Brackett, 165 Ga. App. 415, 301 S.E.2d 486 (1983); Cade v. Roberts, 175 Ga. App. 800, 334 S.E.2d 379 (1985).
When bona fide controversy, bad faith damages not recoverable.
- Bad faith damages are not recoverable under O.C.G.A. § 13-6-11 when there exists a bona fide controversy. Hightower v. GMC, 175 Ga. App. 112, 332 S.E.2d 336 (1985), aff'd, 255 Ga. 349, 338 S.E.2d 426 (1986), overruled on other grounds, Pender v. Witcher, 196 Ga. App. 856, 397 S.E.2d 193 (1990).
Bad faith may be found in absence of bona fide controversy.
- When there was bad faith in a fraudulent transaction inducing the defendant bank to accept a warranty deed in lieu of foreclosure, attorney fees were authorized regardless of whether a bona fide controversy otherwise existed between the parties. Kopp v. First Bank, 235 Ga. App. 520, 509 S.E.2d 384 (1998).
Bad faith may be found despite existence of bona fide controversy.
- Bona fide controversy within the contemplation of O.C.G.A. § 13-6-11 pertains solely to the issue of stubborn litigiousness or causing the plaintiff unnecessary trouble and expense. Despite the existence of a bona fide controversy as to liability, a jury may find that defendant acted in the most atrocious bad faith in the defendant's dealing with the plaintiff. Fidelity Nat'l Bank v. Kneller, 194 Ga. App. 55, 390 S.E.2d 55 (1989); Burlington Air Express, Inc. v. Georgia-Pacific Corp., 217 Ga. App. 312, 457 S.E.2d 219 (1995), cert. denied, 516 U.S. 989, 116 S. Ct. 520, 133 L. Ed. 2d 427 (1995).
If there is bad faith in the making or performance of a contract, attorney fees are authorized regardless of whether a bona fide controversy otherwise existed between the parties. McDonald v. Winn, 194 Ga. App. 459, 390 S.E.2d 890 (1990); Walther v. Multicraft Constr. Co., 205 Ga. App. 815, 423 S.E.2d 725 (1992).
When evidence of bad faith in the transaction is presented, the existence of a bona fide ground for contesting liability is not dispositive of the claim for damages under O.C.G.A. § 13-6-11. Windermere v. Bettes, 211 Ga. App. 177, 438 S.E.2d 406 (1993).
Evidence that defendant acted in bad faith in the transaction and dealings out of which the cause of action arose authorized the jury's award of attorney fees, despite any bona fide dispute as to liability or damages. Kemire, Inc. v. Williams Investigative & Sec. Servs., Inc., 215 Ga. App. 194, 450 S.E.2d 427 (1994); DPLM, Ltd. v. J.H. Harvey Co., 241 Ga. App. 219, 526 S.E.2d 409 (1999).
Award of attorneys' fees under O.C.G.A. § 13-6-11 to a broker in the broker's quantum meruit suit against a buyer was appropriate, even if a bona fide controversy existed, since the district court specifically found that the buyer acted in bad faith, was stubbornly litigious, and caused the broker unnecessary expense and trouble. Litsky v. G.I. Apparel, Inc., F.3d (11th Cir. Oct. 12, 2005)(Unpublished).
Bona fide dispute without bad faith meant no attorney's fees.
- Property owner sued a county alleging the county's approval of a neighbor's request for a conditional use permit was invalid. Although the owner's position was correct, the owner was not entitled to attorney's fees under O.C.G.A. § 13-6-11 because the parties had a bona fide dispute, the county's defense was reasonable, and the owner did not show that the county acted dishonestly or was motivated by sinister motive or ill will. C & H Dev., LLC v. Franklin County, 294 Ga. App. 792, 670 S.E.2d 491 (2008).
Defendant not chargeable absent bad faith.
- Defendant is not chargeable with expenses of litigation unless the defendant has acted in bad faith as the constitutional right to be heard in the courts is granted to defendants as well as plaintiffs. Pickett v. Chamblee Constr. Co., 124 Ga. App. 769, 186 S.E.2d 123 (1971).
When the trial court did not find bad faith or any other basis for an award of attorney fees, the award of expenses of litigation must fall. Davis v. Davis, 262 Ga. 420, 419 S.E.2d 913 (1992).
When there was no evidence from which a jury could find that a contract was made in bad faith or that the defendant breached the contract as a result of some sinister motive, the award of attorney's fees could not be sustained on the basis of bad faith. Williams Tile & Marble Co. v. Ra-Lin & Assocs., 206 Ga. App. 750, 426 S.E.2d 598 (1992).
It was error for the auditor to find that plaintiff was entitled to an award of attorney's fees pursuant to O.C.G.A. § 13-6-11 since the auditor found that there was no bad faith and that a bona fide controversy existed. AAA Pest Control, Inc. v. Murray, 207 Ga. App. 631, 428 S.E.2d 657 (1993).
Trial court did not err in denying one partner's request for attorney fees and expenses of litigation pursuant to O.C.G.A. § 13-6-11 because the partner cited to no evidence showing that a second partner acted in bad faith; the record in the case demonstrated that a bona fide controversy existed between the parties. Memar v. Jebraeilli, 303 Ga. App. 557, 694 S.E.2d 172 (2010).
Party sought to be charged acted in bad faith.
- When a bona fide controversy exists, attorney's fees may be awarded under O.C.G.A. § 13-6-11 only when the party sought to be charged has acted in bad faith in the underlying transaction. Latham v. Faulk, 265 Ga. 107, 454 S.E.2d 136 (1995).
Award not limited to amount pertaining to particular issue.
- An award of expenses of litigation pursuant to O.C.G.A. § 13-6-11 is not limited to an amount pertaining to a particular issue. A party acting in bad faith should pay the full price for losing. McDonald v. Winn, 194 Ga. App. 459, 390 S.E.2d 890 (1990).
Award of attorney fees based on bad faith were upheld because each of the defendants was found liable for bad faith, and the fees incurred before one appellant was added to the complaint were substantially related to the appellee's ultimate success at trial. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793, 806 S.E.2d 255 (2017).
Actions based on fraud and deceit.
- When action is based on fraud and deceit, expenses of litigation may be recovered. F.N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257, 208 S.E.2d 13 (1974).
Surety claim brought in bad faith.
- Trial court properly awarded the surety company a bad faith attorney fee award and struck the counterclaim because the purchaser's bad faith counterclaim against the surety company as a corporate surety was not only brought under an inapplicable statute, namely O.C.G.A. § 13-6-11, but failed to meet the basic pleading requirements under O.C.G.A. § 13-6-11. Hicks v. Gabor, 354 Ga. App. 714, 841 S.E.2d 42 (2020).
Punitive damages are authorized when the evidence proves fraud was committed, and in such actions attorney fees may be recovered under O.C.G.A. § 13-6-11. Carco Supply Co. v. Clem, 194 Ga. App. 566, 391 S.E.2d 134 (1990).
Attorney fees recoverable when contract procured through fraud and deceit.
- Once a jury determines that defendant procured a contract through fraudulent and deceitful means, the jury is authorized to consider the matter of attorney fees as an expense of litigation. F.N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257, 208 S.E.2d 13 (1974).
Double recovery of fees based on bad faith and breach of statutes prohibited.
- Although an injured party could have recovered attorney fees for appellants' bad faith under O.C.G.A. § 13-6-11 or for appellants' breach of the beauty pageant statutes under O.C.G.A. § 10-1-835, the law prohibited a double recovery of attorney fees and expenses as damages when the tortfeasors alleged that the injured party cheated in a beauty pageant, resulting in the injured party being effectively barred from the pageant, and causing the injured party to be unable to find work as an adult entertainer. Galardi v. Steele-Inman, 259 Ga. App. 249, 576 S.E.2d 555 (2002).
Words "bad faith" not required in prayer for fees.
- O.C.G.A. § 13-6-11 does not require the words "bad faith" to be included in the prayer for attorney's fees. Salsbury Labs., Inc. v. Merieux Labs., Inc., 735 F. Supp. 1555 (M.D. Ga. 1989), aff'd, 908 F.2d 706 (11th Cir. 1990).
If there is any reasonable ground to contest a claim, there is no bad faith and it is error for court to permit jury to return a verdict for penalties and attorney fees. First Nat'l Bank v. Wynne, 149 Ga. App. 811, 256 S.E.2d 383 (1979).
When there is, as matter of law, reasonable defense, attorney fees are not recoverable. Ebco Gen. Agency v. Mitchell, 186 Ga. App. 874, 368 S.E.2d 782, cert. denied, 186 Ga. App. 917, 368 S.E.2d 782 (1988).
Bad faith does not refer to defense.
- Bad faith refers to transaction out of which the cause of action arose, rather than to motive with which defense is made. Traders Ins. Co. v. Mann, 118 Ga. 381, 45 S.E. 426 (1903); Shemwell v. Graham, 166 F.2d 391 (5th Cir. 1948); Adams v. Cowart, 224 Ga. 210, 160 S.E.2d 805 (1968); Pickett v. Chamblee Constr. Co., 124 Ga. App. 769, 186 S.E.2d 123 (1971); G.E.C. Corp. v. Levy, 126 Ga. App. 604, 191 S.E.2d 461 (1972); Computer Communications Specialists, Inc. v. Hall, 188 Ga. App. 545, 373 S.E.2d 630 (1988).
Bad faith refers to conduct of defendant in the defendant's dealings with plaintiff out of which suit arose, rather than defendant's conduct in defending suit. University Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518 (5th Cir. 1974); Southern Bell Tel. & Tel. Co. v. C & S Realty Co., 141 Ga. App. 216, 233 S.E.2d 9 (1977).
Bad faith has been consistently held by Georgia courts to refer to conduct of defendant in the defendant's dealings with plaintiff out of which suit arose, rather than defendant's conduct in defending suit. Citizens & S. Nat'l Bank v. Bougas, 149 Ga. App. 722, 256 S.E.2d 37 (1979), rev'd in part on other grounds, 245 Ga. 412, 265 S.E.2d 562 (1980).
In contract actions, bad faith refers to conduct of defendant out of which cause of action arose, not to defendant's conduct in defending the suit. Raybestos-Manhattan, Inc. v. Friedman, 156 Ga. App. 880, 275 S.E.2d 817 (1981).
Mere refusal to pay a disputed claim without suit is not sufficient to award attorney fees. See Allen v. Brackett, 165 Ga. App. 415, 301 S.E.2d 486 (1983).
Jury may allow attorney's fees if defendant has acted in bad faith in transaction out of which cause of action arose. B-X Corp. v. Jeter, 210 Ga. 250, 78 S.E.2d 790 (1953); Scott v. Dudley, 214 Ga. 565, 105 S.E.2d 752 (1958); Moon v. Georgia Power Co., 127 Ga. App. 524, 194 S.E.2d 348 (1972); Standard Oil Co. v. Mount Bethel United Methodist Church, 230 Ga. 341, 196 S.E.2d 869 (1973); Ford Motor Credit Co. v. Milline, 137 Ga. App. 585, 224 S.E.2d 437 (1976); Fratelli Gardino v. Caribbean Lumber Co., 447 F. Supp. 1337 (S.D. Ga. 1978), aff'd in part and rev'd in part, Fratelli Gardino v. Caribbean Lumber Co., 587 F.2d 204 (5th Cir. 1979).
Contention that award in favor of party for attorney fees was unauthorized because the amount of party's judgment on the party's counterclaim was substantially less than the amount the party originally sought and because a bona fide controversy existed between the parties was without merit when attorney fees were sought on the ground that a party acted in bad faith. Formica Corp. v. Rouse, 176 Ga. App. 548, 336 S.E.2d 383 (1985).
Great disparity between the damages sought and those actually awarded in a verdict may defeat an award of attorneys fees based on stubborn litigiousness under O.C.G.A. § 13-6-11, but not an award that is based on bad faith. Crocker v. Stevens, 210 Ga. App. 231, 435 S.E.2d 690 (1993), cert. denied, 511 U.S. 1053, 114 S. Ct. 1613, 128 L. Ed. 2d 340 (1994), overruled on other grounds, Kim v. Lim, 254 Ga. App. 627, 563 S.E.2d 485 (2002).
Every intentional tort invokes species of bad faith that entitles person wronged to recover expenses of litigation involving attorney's fees. Piedmont Cotton Mills, Inc. v. H.W. Ivey Constr. Co., 109 Ga. App. 876, 137 S.E.2d 528 (1964).
Disagreement as to terms not bad faith.- Disagreement as to certain terms and conditions of their contractual relationship is not sufficient to evidence any bad faith. Macon-Bibb County Water & Sewerage Auth. v. Tuttle/White Constructors, Inc., 530 F. Supp. 1048 (M.D. Ga. 1981).
Bad faith within meaning of O.C.G.A. § 33-4-6 not equivalent of that required by O.C.G.A. § 13-6-11. - Bad faith which authorizes recovery of attorney's fees under former Code 1933, §§ 56-706 and 56-1206 (see O.C.G.A. § 33-4-6), was not equivalent of having acted in bad faith under former Code 1933, § 20-1404 (see O.C.G.A. § 13-6-11). New York Life Ins. Co. v. Bradford, 57 Ga. App. 733, 196 S.E. 92 (1938).
Bad faith referred to in former Code 1933, §§ 56-706 and 56-1206 (see O.C.G.A. § 33-4-6) and former Code 1933, § 20-1404 (see O.C.G.A. § 13-6-11) was not the same. Canal Ins. Co. v. Lawson, 123 Ga. App. 376, 181 S.E.2d 91 (1971).
Refusal to pay, in bad faith, under former Code 1933, §§ 56-706 and 56-1206 (see O.C.G.A. § 33-4-6), governing insurance policies, was not legal equivalent of having acted in bad faith under former Code 1933, § 20-1404 (see O.C.G.A. § 13-6-11). Traders Ins. Co. v. Mann, 118 Ga. 381, 45 S.E. 426 (1903).
Store acted in bad faith following slip and fall accident.
- In a slip and fall case, the trial court properly concluded that the store acted in bad faith because the manager did not follow store policy, failed to preserve videos of the accident, and then manipulated the evidence by changing the direction in which the cameras were pointed; because the spoliation of evidence prejudiced the customer by causing the customer the unnecessary expense of bringing a lawsuit when the videos might have shown there was no dispute as to the store's liability, the trial court did not err by denying the store's motion for a directed verdict on the issue of attorney fees and expenses of litigation under O.C.G.A. § 13-6-11. The Kroger Co. v. Walters, 319 Ga. App. 52, 735 S.E.2d 99 (2012).
Evidence sufficient to award attorney's fees.
- Former employee was properly awarded attorney's fees in a breach of contract suit for the former employer's failure to pay the employee under a deferred compensation agreement because there was sufficient evidence showing that the denial of deferred compensation was not based on a good faith belief that the employee was terminated due to a corporate reorganization, rather than due to the employee's disability. Capital Health Mgmt. Group, Inc. v. Hartley, 301 Ga. App. 812, 689 S.E.2d 107 (2009).
Trial court erred in dismissing a camp's claims for attorney fees and expenses of litigation because there was some evidence from which the jury could determine that a marina acted in bad faith during the erection of a dock; although the marina knew that the camp opposed having the dock on their property, the marina took no action to remove it. Camp Cherokee, Inc. v. Marina Lane, LLC, 316 Ga. App. 366, 729 S.E.2d 510 (2012).
Application of Bad Faith, Fraud, and Deceit
Mere failure of a defendant to pay a claim does not constitute bad faith; moreover, the refusal to pay a disputed claim is not the equivalent of stubborn litigiousness, nor will refusal to pay support a claim that defendant caused the plaintiff unnecessary trouble and expense. Beacon Indus., Inc. v. Vanderbunt Concrete, Ltd., 172 Ga. App. 573, 323 S.E.2d 871 (1984); Harrell v. Gomez, 174 Ga. App. 8, 329 S.E.2d 302 (1985); Annis v. Tomberlin & Shelnutt Assocs., 195 Ga. App. 27, 392 S.E.2d 717 (1990); Plemons v. Weaver, 243 Ga. App. 464, 533 S.E.2d 747 (2000); Wachovia Bank of Ga., N.A. v. Reynolds, 244 Ga. App. 1, 533 S.E.2d 743 (2000); Artzner v. A & A Exterminators, Inc., 242 Ga. App. 766, 531 S.E.2d 200 (2000); Kraft v. Dalton, 249 Ga. App. 754, 549 S.E.2d 543 (2001).
Transactions out of which cause of action arose include performance of contract.
- This court construes "transactions and dealings out of which cause of action arose" to mean not only negotiation and formulation of contract, but also included is performance of contractual provisions. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 115 S.E.2d 852 (1960).
In a buyer's breach of contract claim against a seller, it was error to grant a directed verdict on the buyer's claim for attorney fees. The evidence that the seller breached the parties' contract by requiring the buyer to pay for the goods before inspecting the goods and that the seller further breached the contract by not allowing the buyer to thereafter inspect the parts, thereby unilaterally ceasing performance of the contractual obligations, constituted a sufficient basis upon which the jury could determine that the seller acted in bad faith under the contract. Energy & Process Corp. v. Jim Dally & Assocs., 291 Ga. App. 772, 662 S.E.2d 835 (2008).
Elements of bad faith which will authorize expenses of litigation in ex contractu action are those acts relative to conduct of entering into contract or to transaction and dealings out of which cause of action arose but do not have reference to motive with which defendant defends action after a cause of action has arisen. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 115 S.E.2d 852 (1960); Brooks v. Steele, 139 Ga. App. 496, 229 S.E.2d 3 (1976); Vitner v. Funk, 182 Ga. App. 39, 354 S.E.2d 666 (1987).
Bad faith in carrying out contract, beyond refusal to pay debt, authorizes award.
- While bad faith does not have reference to a simple refusal to pay a debt which results in requiring a party to employ counsel and institute legal action or to the motive with which the defendant defends the action, there may be bad faith in carrying out the provisions of the contract sufficient to support the award, and bad faith in a breach of contract, other than mere refusal to pay a just debt, may authorize the jury to award attorney fees, provided it is not prompted by an honest mistake as to one's rights or duties but by some interested or sinister motive. Glen Restaurant, Inc. v. West, 173 Ga. App. 204, 325 S.E.2d 781 (1984).
Evidence that defendant lenders employed sham documents in the course of the transaction with plaintiff borrower, and sought a far greater sum than plaintiff had received from a series of loans was sufficient to establish bad faith. Crawford v. Crump, 223 Ga. App. 119, 476 S.E.2d 855 (1996).
Breach of option contract and refusal to return consideration as constituting bad faith.
- Allegations of petition which disclose that defendant not only breached terms of written option contract by demanding more money for subject property, but that the defendant also refused to return $150.00 paid to the defendant as consideration for option contract, are sufficient to authorize conclusion that defendant was guilty of bad faith and presented a question for jury on issue of recovery of attorney's fees. Yun-Kung Shen v. Bruce, 113 Ga. App. 483, 148 S.E.2d 496 (1966).
Bad faith in sale of company.
- Circumstances surrounding the sale of a business provided sufficient support of an award for attorney's fees since the jury was authorized to find that the seller was dishonest, and thus had acted in bad faith, in the seller's dealings in negotiating the sale of the company. Shepherd v. Aaron Rents, Inc., 208 Ga. App. 139, 430 S.E.2d 67 (1993).
Plaintiffs failed to demonstrate that genuine issues of material fact existed with respect to the defendant's alleged breach of a contract to purchase a hospital; there was likewise no evidence that the defendant acted in bad faith, was stubbornly litigious, or caused the plaintiffs unnecessary trouble and expense, so summary judgment on the issue of attorney's fees was warranted. St. Joseph Hosp. v. Health Mgmt. Assocs., F. Supp. 2d (S.D. Ga. Mar. 30, 2011).
Bad faith in sale of used medical equipment.
- Debtor established that the debtor was entitled to damages for tortious interference with the debtor's resale of medical equipment from defendant manufacturers. Bad faith under O.C.G.A. § 13-6-11 required more than bad judgment or negligence, but debtor established a dishonest purpose and breach of known duty. Bailey v. Hako-Med USA, Inc. (In re Bailey), Bankr. (Bankr. S.D. Ga. Nov. 16, 2010).
Bad faith not shown in suit involving auto repairs.
- In a suit for fraud and other claims, the trial court erred by denying the defendants' motions for a directed verdict and judgment notwithstanding the verdict on the issue of attorney fees because the record made clear that there was a bona fide controversy regarding the defendants' liability since the evidence did not demand a finding that the defendants were negligent or that any negligence was the sole cause of the plaintiff's damages; thus, the plaintiff was not entitled to attorney fees under O.C.G.A. § 13-6-11. Vol Repairs II, Inc. v. Knighten, 322 Ga. App. 416, 745 S.E.2d 673 (2013).
Claim cannot be predicated solely upon bad faith in carrying out obligations.
- Since plaintiff's claim for attorney's fees in action for breach of contract was predicated solely upon defendant's bad faith in carrying out the defendant's obligations, and not for allegedly having been stubbornly litigious or having caused plaintiffs unnecessary trouble and expense, the trial judge did not err in granting defendant's motion for judgment n.o.v. as to attorney's fees. Mutual Fed. Sav. & Loan Ass'n v. Johnson, 124 Ga. App. 68, 183 S.E.2d 50 (1971).
Promise as to future event made with present intention not to perform as actionable fraud.- Although failure to perform a future act does not constitute actionable fraud under Georgia law, there exists an exception for promises as to future events made with present intention not to perform. Vacca v. Meetze, 499 F. Supp. 1089 (S.D. Ga. 1980).
Bad faith when defendant lacked intent to perform under contract.
- Evidence may be sufficient to show that defendants have acted in bad faith in a transaction when it shows lack of intention by defendants to perform the defendants' obligation under a contract. Spearman v. Flanders, 143 Ga. App. 759, 240 S.E.2d 141 (1977).
No present intention of keeping contract is bad faith.
- Evidence that defendant entered into contractual agreements with no present intention of keeping the contract was sufficient to authorize the charge to the jury and the recovery of attorney fees for bad faith. Gaines v. Crompton & Knowles Corp., 190 Ga. App. 863, 380 S.E.2d 498, cert. denied, 190 Ga. App. 897, 380 S.E.2d 498 (1989).
Bad faith in breach of promise to marry.
- Because a mother presented some evidence to show that the father of her child acted in bad faith in connection with his promise to marry, given that he was involved in another relationship at the time he proposed and gave her a $10,000 ring, an award of $6,500 in attorney fees was upheld. Kelley v. Cooper, 325 Ga. App. 145, 751 S.E.2d 889 (2013).
Bad faith in violations of Fair Business Practices Act.
- Trial court erred in granting summary judgment to an auto dealership in a purchaser's suit asserting fraud and violations of Georgia's Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., with regard to the purchase of a vehicle as genuine issues of material fact existed as to each element, including whether the purchaser was entitled to attorney fees under O.C.G.A. §§ 10-1-399 and13-6-11 since there was evidence from which the jury could find that the auto dealership acted in bad faith by offering a vehicle for sale that was not the more valuable model the dealership represented the vehicle to be; that the auto dealership caused the purchaser unnecessary trouble and expense; and that the dealership violated the Act. Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 663 S.E.2d 779 (2008).
Lessee did not act in bad faith.
- In an action for a failure to surrender the premises on time and in proper condition, the trial court properly granted summary judgment to the lessee on the lessor's claim for attorney's fees because there was no evidence that the lessee acted in bad faith in causing the lessor's injury. Lay Bros., Inc. v. Golden Pantry Food Stores, Inc., 273 Ga. App. 870, 616 S.E.2d 160 (2005).
Lessee acted in bad faith.
- In an action for claims arising from a commercial property lease agreement, the trial court did not err in denying the lessee's motion for summary judgment on the lessor's claim for attorney fees under O.C.G.A. § 13-6-11 because, however willing the lessee might have become later in the litigation to pay the lease amount for the roof replacement into the registry of the court, a jury could find that the lessee acted in bad faith when the lessee asserted that it was the lessor's sole responsibility to replace the roofs while at the same time denying the lessor access to the property to do so until the lessor obtained a temporary restraining order. West Asset Mgmt. v. NW Parkway, LLC, 336 Ga. App. 775, 784 S.E.2d 147 (2016).
Question of bad faith in dealing with homeless shelter.
- Trial court did not err in denying the defendants summary judgment on the claim for attorney fees and litigation expenses as there were genuine issues of material fact as to whether the defendants acted in bad faith in the defendants' dealings related to the homeless shelter. Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Community Trust, 298 Ga. 221, 780 S.E.2d 311 (2015).
Bad faith in real estate contract.
- Sufficient evidence was presented that a home seller acted in bad faith in connection with the failed real estate deal in that: (1) the seller stated that the seller had no intention of selling the home to the buyers and that the seller would try to sell the home to someone else, in spite of the fact that the buyers were ready and able to complete the deal; and (2) despite this admission, and despite the seller's failure to timely complete the home, the seller still planned on keeping the buyers' $20,000 in earnest money. Bourke v. Webb, 277 Ga. App. 749, 627 S.E.2d 454 (2006).
In a construction company's breach of contract suit against a realty company and the company's principal, the realty company was liable for attorney's fees based on the finding that the company acted in bad faith because the record supported the conclusion that the realty company and the company's employees manipulated the construction company into doing a great deal of work that was clearly beyond the written contract with the principal and, despite the construction company's reasonable expectations that the company would be paid for the work, the realty company then attempted to shield itself behind the written contract. Circle Y Constr., Inc. v. WRH Realty Servs., F.3d (11th Cir. May 24, 2011)(Unpublished).
Bad faith in performance of construction contract.
- In an action arising from plaintiffs' dissatisfaction with the construction of plaintiffs' new home, the evidence authorized the jury to find bad faith by the defendants in the performance of defendants' contract with the plaintiffs, regardless of whether the jury decided that one defendant had passively concealed certain construction defects. Runion v. Hofer, 245 Ga. App. 854, 538 S.E.2d 462 (2000).
Bad faith in contractor and subcontractor relationships.
- General contractor refused to pay its subcontractor without explanation after the latter completed the work, the general contractor's answer denied having a contract with the subcontractor or that the subcontractor had completed the work, but the general contractor admitted at trial that the subcontractor was entitled to payment, less a setoff in an amount the general contractor could not document. This evidence allowed the jury to find that the general contractor acted in bad faith, entitling the subcontractor to attorney's fees under O.C.G.A. § 13-6-11. Roofers Edge, Inc. v. Std. Bldg. Co., 295 Ga. App. 294, 671 S.E.2d 310 (2008).
Bad faith of subcontractor.
- There was sufficient bad faith on the part of a subcontractor who failed to substantially perform work, and on whose bid the contractor had relied upon when the contractor submitted the contractor's bid, that the award of litigation expenses to contractor was justified; it was within jury's province to award litigation costs. SKB Indus. v. Insite, 250 Ga. App. 574, 551 S.E.2d 380 (2001).
Bad faith of member of limited liability company.
- In an action involving the judicial dissolution of a limited liability company, the evidence supported the trial court's finding that an award of attorney fees was warranted pursuant to O.C.G.A. § 13-6-11 when the trial court determined that a member of the company had acted in bad faith, was stubbornly litigious, and had caused the other member unnecessary trouble and expense. Moses v. Pennebaker, 312 Ga. App. 623, 719 S.E.2d 521 (2011).
Bad faith to customer meant award against customer.
- As a construction company customer engaged in bad faith when the customer ordered numerous changes and upgrades to a construction project but then the customer refused to pay for the changes, and further, when the customer attempted to coerce the continuation of the work through threats to the company president, the company was entitled to a jury award of attorney fees under O.C.G.A. § 13-6-11. Chong v. Reebaa Constr. Co., 292 Ga. App. 750, 665 S.E.2d 435 (2008).
Lack of contract did not impact fee award.
- In a business dispute, there was no merit to the argument of the defendants, a developer and a limited liability company, that the trial court erred in awarding attorney fees under O.C.G.A. § 13-6-11 because there was no contract between the parties. The statute was not restricted to actions for breach of contract, and the defendants did not show that the award was unsupported by any evidence. Harbolt v. Pelletier, 291 Ga. App. 582, 662 S.E.2d 355 (2008).
Evidence of bad faith in nuisance case involving power plant.
- In a nuisance case arising out of noise from a power plant that used gas-fired combustion turbine units, a punitive damages award of $250,000 was upheld, O.C.G.A. § 51-12-5.1(g), based on evidence that, despite assurances that the plant would be "as unobtrusive as possible," the plant's owners ignored noise issues that were common knowledge in the industry and failed to take timely action to ameliorate them. The same conduct supported an award of attorney's fees under O.C.G.A. § 13-6-11. Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 774 S.E.2d 755 (2015).
In an action for trespass and damage to trees, evidence that a power corporation exceeded a condemnation order by cutting trees outside the right-of-way was sufficient to support a jury finding of bad faith and the award of attorney fees. Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 436 S.E.2d 14 (1993).
In a declaratory judgment action brought by adjoining landowners against two neighbors regarding an easement, the trial court properly awarded the adjoining landowners attorney fees since the evidence supported the trial court's conclusion that the neighbors' blocking of the driveway easement by planting trees, which prevented the adjoining landowners from obtaining access to their lots, constituted a willful trespass entitling the landowners to recovery of attorney fees. Mize v. McGarity, 293 Ga. App. 714, 667 S.E.2d 695 (2008).
Contract between client and realtor not in bad faith.
- Summary judgment was properly denied on a broker's claim for attorney fees under O.C.G.A. § 13-6-11 because there was no evidence that the client made the contract, agreeing to pay commission on the sale of a home to the broker, in bad faith or that the client's breach was the result of a sinister motive as matter of law. Steel Magnolias Realty, LLC v. Bleakley, 276 Ga. App. 155, 622 S.E.2d 481 (2005).
Bad faith in denial of commissions.
- Plaintiff's testimony that defendant company's management denied plaintiff's right to commissions and told plaintiff that plaintiff would have to sue to recover the commissions was sufficient to authorize attorney's fees based on defendant's bad faith refusal to perform under the contract. Southern Water Techs., Inc. v. Kile, 224 Ga. App. 717, 481 S.E.2d 826 (1997).
Bad faith of bank in repossession.
- Trial court properly awarded attorney fees to the injured party under O.C.G.A. § 13-6-11 since there was evidence that the bank acted in bad faith in the wrongful repossession of the injured party's trailer when the bank failed to attempt to identify the trailer's owner prior to seizing the trailer. Gateway Bank & Trust v. Timms, 259 Ga. App. 299, 577 S.E.2d 15 (2003).
Bad faith of estate administrator.
- Fact that a personal representative prolonged administration of the estate so the personal representative could wrongfully have the estate's primary asset, a house, conveyed to the personal representative entitled the beneficiary to litigation expenses, including attorney fees, under O.C.G.A. §§ 9-15-14(b) and13-6-11. In re Estate of Zeigler, 295 Ga. App. 156, 671 S.E.2d 218 (2008).
Inconsistent standards in applying bad faith in executors' request.
- Trial court erred in denying the executors' request for attorney fees because the trial court applied inconsistent standards with regard to the request under O.C.G.A. § 13-6-11 based on enforcing a consent order and an award under O.C.G.A. § 9-15-14(a) and (b) for bad faith; thus, a remand was necessary for reconsideration of the issue. Haney v. Camp, 320 Ga. App. 111, 739 S.E.2d 399 (2013).
Bad faith not exhibited by trustee.
- Trust beneficiaries were not entitled to attorney's fees pursuant to O.C.G.A. § 13-6-11 or O.C.G.A. § 53-12-193(a)(4), on the basis of bad faith, because the trustee's actions in failing to lease the trust property or otherwise generate income while debt for property taxes, insurance, and utilities continued to increase, although unreasonable, were not conclusively established to be in bad faith. Davis v. Walker, 288 Ga. App. 820, 655 S.E.2d 634 (2007).
While judgment creditors were entitled to default judgment on claims under 11 U.S.C. § 523(a)(2)(A) against the debtor husband because state court adjudication of the debtor husband's liability for fraud necessarily adjudicated the same issues that rendered liability nondischargeable under § 523(a)(2)(A), and collateral estoppel applied, because it was not clear how the punitive damages award was allocated under state law, it also was not clear how nondischargeable attorneys' fees should be calculated and judgment could not be awarded regarding such fees. Palloto v. Neri (In re Neri), Bankr. (Bankr. N.D. Ga. Jan. 8, 2018).
Trespass.
- Trespass, an intentional tort, will support a claim for litigation expenses under the theory that the intention evokes that "bad faith" necessary for recovery under O.C.G.A. § 13-6-11. Tanner v. Gilleland, 186 Ga. App. 377, 367 S.E.2d 257 (1988).
Court properly allowed the jury to enter an award for attorney fees and litigation expenses when the complaint averred and the jury found that the defendant was liable for committing the intentional tort of trespass. KDS Properties, Inc. v. Sims, 234 Ga. App. 395, 506 S.E.2d 903 (1998).
In a trespass action filed against owners of property by the holder of an easement across the owners' property, attorney fees were properly awarded to the holder under O.C.G.A. § 13-6-11 because the holder pled a claim for attorney fees and there was evidence that the owners participated in the repeated and knowing obstruction of the holder's easement and intrusion onto the holder's property. Paine v. Nations, 283 Ga. App. 167, 641 S.E.2d 180 (2006).
Jury's award of attorney fees and expenses was authorized under O.C.G.A. § 13-6-11 because bad faith existed as a neighbor's trespass onto an adjacent owner's property was both knowing and willful. The neighbor trespassed onto the owner's adjacent property by tying into the owner's sewer line without the owner's permission. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85 (2010).
Bad faith in trespass and nuisance suit.
- In a trespass and nuisance suit involving two landowning couples, because there was some evidence from which a jury could find that the second couple acted in bad faith in plugging an underground drainage pipe, it was error to grant summary judgment to the second couple on the first couple's claim for attorney fees under O.C.G.A. § 13-6-11. Merlino v. City of Atlanta, 283 Ga. 186, 657 S.E.2d 859 (2008).
Trial court erred by granting summary judgment to neighbors on attorney fees in property owners' action to recover damages arising from smoke emanating from the neighbors outdoor fireplace because the evidence was sufficient to submit the issue of attorney fees to the jury; the neighbors knew that the smoke was still infiltrating the owners' home and, nevertheless, proceeded to burn wood in the neighbors' fireplace. Weller v. Blake, 315 Ga. App. 214, 726 S.E.2d 698 (2012).
Trial court erred by granting an apartment owner summary judgment on the issue of attorney fees because although there was some evidence from which the jury could find that after a property owner notified the apartment owner of a possible nuisance prior to filing the lawsuit, the apartment owner failed to take any action to remedy the alleged increase flow of storm water runoff from the detention ponds. Haarhoff v. Jefferson at Perimeter L.P., 315 Ga. App. 271, 727 S.E.2d 140 (2012).
In a boundary line dispute between the parties' adjacent pieces of property, the trial court improperly granted the defendant's motion for summary judgment in part as to the plaintiff's claim for attorney fees because, inasmuch as the trial court determined that the question of the defendant's commission of an intentional tort remained for the jury to consider, the claim for attorney fees rooted in bad faith concerning those actions should have also been left for the jury. McDonald v. Silver Hill Homes, LLC, 343 Ga. App. 194, 806 S.E.2d 651 (2017).
Bad faith in diversion of water.
- When there was some evidence that defendant-developer intentionally diverted the flow of water onto plaintiff-homeowner's property, the trial court properly denied defendant's motion for directed verdict on the claim for attorney fees. Ross v. Hagler, 209 Ga. App. 201, 433 S.E.2d 124 (1993).
Company did not act in bad faith in employment contract.
- Consultant was granted back wages as a matter of law because the consultant's inartfully-worded employment contract covered a rolling period that effectively continued the consultant's employment for six months after the consultant's date of termination; however, the consultant was not entitled to attorney fees under O.C.G.A. § 13-6-11 because the company did not refuse to pay in bad faith. Tura v. White Oak Group, Inc., F. Supp. 2d (N.D. Ga. Sept. 15, 2008).
Employer acted in bad faith.
- Litigation expenses pursuant to O.C.G.A. § 13-6-11 were properly awarded to an employee alleging breach of an employment agreement when there was support for the jury's verdict that the employer acted in bad faith, despite the possible determination that there was a bona fide controversy; the evidence indicated that the employer refused to honor the employee's agreement, that the employee had provided 12 years of loyal service, that there was animosity between the employee and new management, and that the employer had indicated a desire to terminate the employee due to the employee's high salary. ISS Int'l Serv. Sys. v. Widmer, 264 Ga. App. 55, 589 S.E.2d 820 (2003).
Bad faith in misappropriating owner's intellectual property.
- Copyright owner failed to state a claim for attorney's fees under O.C.G.A. § 13-6-11 to be resolved on summary judgment because there was some evidence to support the owner's claim that the customer acted with bad faith in breaching the parties' agreement and misappropriating the owner's intellectual property. SCQuARE Int'l, Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347 (N.D. Ga. 2006).
Tortfeasor's bad faith does not equal uninsured motorist insurer's bad faith.
- Because an insured's bad faith claim was based upon a tortfeasor's conduct, the insured did not incur attorney's fees and expenses because of the bodily injury or property damage that the insured sustained; thus, pursuant to the plain language of O.C.G.A. § 33-7-11(b)(1)(D)(ii), the insured could not recover attorney's fees and expenses from the insured's uninsured motorist insurer under O.C.G.A. § 13-6-11. Smith v. Stoddard, 294 Ga. App. 679, 669 S.E.2d 712 (2008).
Litigation expenses were recoverable by an insurance company when it was established that the insurance contracts were entered into in bad faith or were procured by fraud. Guarantee Trust Life Ins. Co. v. Wood, 631 F. Supp. 15 (N.D. Ga. 1984).
Bad faith of insurer.
- Evidence was sufficient to show that plaintiff insurer acted in bad faith by failing to verify the data which formed the basis of the premium charged defendant and failing to respond in any constructive fashion when defendant sought correction of erroneous premiums. International Indem. Co. v. Regional Emplr. Serv., Inc., 239 Ga. App. 420, 520 S.E.2d 533, cert. denied, 1999 Ga. LEXIS 1019 (1999).
Insured's claim based on bad faith failed.- When the trial court found that defendant insurer was not liable to the insured since the plaintiff breached three separate conditions precedent in the policy, plaintiff's claim for bad faith penalties likewise failed. Hill v. Safeco Ins. Co. of Am., 93 F. Supp. 2d 1375 (M.D. Ga. 1999).
In an insurance coverage dispute, there were not sufficient grounds upon which a jury could find that the insurer acted in bad faith by contesting the insured's claim. As a result, there was no genuine dispute of material fact under O.C.G.A. § 13-6-11 and the insured was not entitled to attorneys' fees and expenses. Mock v. Cent. Mut. Ins. Co., 158 F. Supp. 3d 1332 (S.D. Ga. Jan. 25, 2016).
Denial of the insurance company's motion for summary judgment as to the insured's claim for attorney fees pursuant to O.C.G.A. § 13-6-11 was reversed because the penalty provisions of the statute could not be the basis of recovery when the underlying bad faith claim failed. Thompson v. Homesite Ins. Co., Ga. App. , S.E.2d (Mar. 14, 2018).
Failure to comply with fire safety regulations was bad faith.
- Evidence that a landlord failed to comply with fire safety regulations promulgated for the benefit of residents of an apartment who received injuries when forced to leap from the second story of a burning apartment building because the exits were not safe to use was sufficient to show "bad faith" justifying an award of litigation expenses. Windermere v. Bettes, 211 Ga. App. 177, 438 S.E.2d 406 (1993).
Bad faith of homeowners in dealing with home builder.
- Appeals court upheld an attorney-fee award based on the bad faith exhibited by the home buyers' refusal to pay the $40,000 final change order, even though the buyers admitted: (i) owing the buyers' home builder for additional allowance overages and change orders; and (ii) that out of the $40,000 owed, the buyers could only point to $800 for which the builder had failed to provide the buyers with a subcontractor invoice to verify the legitimacy of the charges. Davis v. Whitford Props., 282 Ga. App. 143, 637 S.E.2d 849 (2006).
Homeowners not entitled to bad faith attorney fees.
- Homeowners' claim for statutory bad faith attorney fees was properly resolved by a grant of summary judgment against the homeowners with respect to substantive claims that were resolved against the homeowners in a dispute with the homeowner's association. Indeed, there was a bona fide controversy regarding whether the claims had merit; accordingly, the association was not stubbornly litigious and did not cause unnecessary trouble and expense. McGee v. Patterson, 323 Ga. App. 103, 746 S.E.2d 719 (2013).
Legitimate award of damages for an intentional tort, such as trespass or intentional conversion, generally will support a claim for expenses under O.C.G.A. § 13-6-11 under the theory that the intention evokes that bad faith necessary for recovery under the statute. Rossee Oil Co. v. BellSouth Telecommunications, Inc., 212 Ga. App. 235, 441 S.E.2d 464 (1994).
Award of damages for the intentional tort of conversion alone was sufficient to support plaintiff's claim for expenses under the "bad faith" prong of O.C.G.A. § 13-6-11. Infinity Ins. Co. v. Martin, 240 Ga. App. 609, 524 S.E.2d 294 (1999).
Bad faith may arise from intentional tort.
- Store and the store's employees were not entitled to summary judgment on a parent's claim for expenses of litigation under O.C.G.A. § 13-6-11 in the parent's intentional tort action arising out of the employees' claim that the child stole from the store because summary judgment was not granted on all of the parent's claims and, if proven, the intentional tort claims would authorize damages under O.C.G.A. § 13-6-11 because every intentional tort invoked a species of bad faith that entitled a person wronged to recover the expenses of litigation, including attorney fees. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).
Bad faith not shown in negligence suit.
- In a negligence suit, the defendants should have been granted a directed verdict as to the plaintiff's claim for litigation expenses under O.C.G.A. § 13-6-11. Because there was a bona fide controversy as to whether the plaintiff exercised ordinary care, a showing of bad faith on the defendants' part was required, and as there was no showing of any interested or sinister motive, dishonest purpose, moral obliquity, conscious wrongdoing, or any other species of bad faith, the plaintiff had not shown that the defendants had acted in bad faith. MARTA v. Mitchell, 289 Ga. App. 1, 659 S.E.2d 605 (2007).
Wrongful death cases.
- In a wrongful death case, since there was evidence to support a finding of bad faith on the part of the surviving spouse who represented the spouse's own interests at the same time the spouse represented the children's interests, the trial court did not err in denying the spouse's motion for a directed verdict as to the attorney fees. Home Ins. Co. v. Wynn, 229 Ga. App. 220, 493 S.E.2d 622 (1997).
Defendant's actual knowledge of defect in question.
- Evidence amply authorized an award of litigation expenses on the basis of an automobile manufacturer's having acted in bad faith in the transaction out of which the cause of action arose; the manufacturer was shown to have actual knowledge before the sale of a defect in the manufacturer's product from which the manufacturer could have reasonably foreseen injury of the specific type sustained. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 319 S.E.2d 470 (1984).
Driving while intoxicated may constitute "willful" misconduct and, therefore, "bad faith" under O.C.G.A. § 13-6-11. See Knobeloch v. Mustascio, 640 F. Supp. 124 (N.D. Ga. 1986).
Attorney's bad faith in refusing to return fee.
- In a former client's suit for fraud, breach of contract, and other claims against a former attorney, who refused to return the retainer paid after being fired, the trial court erred by denying summary judgment to the attorney on the former client's claim for attorney fees and by deferring the matter for a later ruling since the trial court concluded that the record failed to show bad faith as required under O.C.G.A. § 13-6-11. Nash v. Studdard, 294 Ga. App. 845, 670 S.E.2d 508 (2008).
Bad faith in contract for medical services.
- When plaintiff patient sued defendant manufacturer of a surgically implanted medical device, alleging breach of contract to pay for a third surgery to remove the device, the manufacturer's motion for summary judgment on the issue of the patient's ability to recover attorney fees under O.C.G.A. § 13-6-11 was denied because even though there was a bona fide controversy as to liability or amount of liability, the patient testified that after receiving the manufacturer's letter agreeing to pay for the third surgery, the manufacturer's representative directed the patient to check into a hospital for surgery as a "private patient," preventing the hospital from billing the patient's health insurance company, but that the manufacturer did not act on any of the manufacturer's obligations as set out in the letter until after the patient filed suit. Trickett v. Advanced Neuromodulation Sys., 542 F. Supp. 2d 1338 (S.D. Ga. 2008).
Refusal to deliver truck title was bad faith.
- Jury's award of attorney fees was held proper when the jury was authorized to find that defendant's refusal to tender the title to a truck brought by the plaintiff was without foundation, was characterized by bad faith, and had resulted in unnecessary trouble and expense to the plaintiff, within the contemplation of O.C.G.A. § 13-6-11. I.M.C. Motor Express, Inc. v. Cochran, 180 Ga. App. 232, 348 S.E.2d 750 (1986).
"Plaintiff in counterclaim" action when main action alleged to be fraudulent.
- When the gravamen of defendant's counterclaim was that it was required to defend itself against an allegedly spurious claim, such a claim cannot be made as a counterclaim in the subject lawsuit and defendant could not avoid this rule of law merely by characterizing the defendant's claim as one based upon fraud. Therefore, defendant was not "plaintiff in counterclaim" and the defendant's claim for attorney fees and litigation expenses was not viable. Barnes v. White County Bank, 170 Ga. App. 681, 318 S.E.2d 74 (1984).
Bad faith in attorney's representation of client.
- Evidence supported an award of attorney fees because the evidence presented by the client in a legal malpractice suit could authorize a jury to conclude that, despite owing the client a fiduciary duty, the attorney's persistent failure to adequately represent the client went beyond mere negligence and rose to the level of bad faith. Brito v. Gomez Law Group, LLC, 289 Ga. App. 625, 658 S.E.2d 178 (2008).
Trial court did not err in awarding summary judgment to an attorney and a law firm in a former client's legal malpractice action seeking attorney fees because the client pointed to no evidence that would support an award of attorneys' fees but instead referred generally to the acts and/or omissions made by the attorney and the firm in the representation of the client; the client did not point to any evidence that would support an award of attorneys' fees on the grounds of stubborn litigiousness and unnecessary trouble and expense. Duncan v. Klein, 313 Ga. App. 15, 720 S.E.2d 341 (2011).
"So sue me" attitude not present.
- Court erred in awarding attorney fees and litigation expenses to a court reporting service in their suit against an attorney for the payment of fees as there was no evidence that the attorney acted in bad faith in the transactions underlying the suit, and did not exhibit a "so sue me" attitude, but instead advised the court reporters of a willingness to "work something out" long before a lawsuit was filed. Free v. Lankford & Assocs., Inc., 284 Ga. App. 328, 643 S.E.2d 771 (2007), cert. denied, 2007 Ga. LEXIS 560 (Ga. 2007).
"Sue me" attitude justified attorney fees award to partially successful plaintiff.
- Trial court's award of attorney fees to the buyer in the buyer's action against the construction company for breach of warranty was affirmed despite the trial court having found against the buyer in the buyer's claims against the company's owners since the appellate court found evidence to support the trial court's finding that the company caused unnecessary trouble and expenses to the buyer by a "sue me" attitude regarding doing anything more than patch repairs; obtaining some but less than all of the relief sought was sufficient to authorize the award of attorney fees. Clearwater Constr. Co. v. McClung, 261 Ga. App. 789, 584 S.E.2d 61 (2003).
Forcing plaintiff to court when no defense exists.
- When no defense exists in an action, forcing a plaintiff to resort to the courts in order to collect an amount plainly constitutes the causing of "unnecessary trouble and expense" for purposes of O.C.G.A. § 13-6-11. Sawgrass Bldrs., Inc. v. Realty Coop., 172 Ga. App. 324, 323 S.E.2d 243 (1984).
Seller of property who made an honest mistake in deciding that the seller was not obligated to pay a broker for the broker's services did not act in bad faith, and the broker-plaintiff was not entitled to litigation expenses. Coldwell Banker Com. Group, Inc. v. Nodvin, 598 F. Supp. 853 (N.D. Ga. 1984), aff'd, 774 F.2d 1177 (11th Cir. 1985).
Bad faith in conversion of property.
- Trial court erred by granting the appellees' motion for summary judgment as to the appellants' claim for attorney fees because conversion was an intentional tort and, for the same reasons supporting punitive damages, a trier of fact could find that the appellees became aware that the appellees were in possession of property that did not belong to the appellees and that the appellees were unwilling to return that property upon demand, thereby showing conscious indifference to consequences. Bo Phillips Company, Inc. v. R. L. King Properties, LLC, 336 Ga. App. 705, 783 S.E.2d 445 (2016).
Attorney's fees awarded in error.
- Trial court erred in awarding attorney fees under O.C.G.A. § 13-6-11 to the carpet purchaser after the trial court found that an inference of bad faith could be drawn against the carpet supplier as the record showed an honest dispute over the parties' transaction involving the purchase and installation of carpeting, and did not show the bad faith related to the underlying transaction that was necessary to award attorney fees. Lexmark Carpet Mills, Inc. v. Color Concepts, Inc., 261 Ga. App. 622, 583 S.E.2d 458 (2003).
In a breach of contract action with regard to the installation of a landscape irrigation system, the trial court erred by awarding the irrigation company attorney fees based on the customer's alleged bad faith because bona fide controversies existed as to the nature of the parties' agreement in light of the modifications to the landscape design and also as to whether the customer breached any such agreement by failing to pay the balance in full without receiving an irrigation system to the customer's satisfaction. Because the record did not demand a finding that the customer breached the parties' agreement or otherwise owed the irrigation company the balance for the work performed and, in the absence of a finding of bad faith on the customer's part, the irrigation company was not entitled to attorney's fees under O.C.G.A. § 13-6-11 as a matter of law. Christie v. Rainmaster Irrigation, Inc., 299 Ga. App. 383, 682 S.E.2d 687 (2009).
Evidence did not support the award of attorneys' fees in favor of a truck driver because there was a genuine dispute about the amount of lost earnings the truck driver was entitled to recover. French v. Dilleshaw, 313 Ga. App. 834, 723 S.E.2d 64 (2012).
Attorney's fees not apportioned.
- Attorney's fees and costs awarded pursuant to O.C.G.A. § 13-6-11 to a stockholder, in a suit against a corporation and the corporation's other owners, was vacated and remand was ordered for an evidentiary hearing in order to determine the amount attributable solely to the claims in which the stockholder prevailed; thus, insofar as Ins. Co. of North America v. Allgood Elec. Co., 229 Ga. App. 715 (1997), CSX Transp. v. West, 240 Ga. App. 209 (1999), and Lincoln v. Tyler, 258 Ga. App. 374 (2002), conflicted with this premise, as those cases failed to require an apportionment of attorney fees based on bad faith, those cases were overruled. Monterrey Mexican Rest. of Wise, Inc. v. Leon, 282 Ga. App. 439, 638 S.E.2d 879 (2006), overruled on other grounds by Temple v. Hillegass, 344 Ga. App. 454, 810 S.E.2d 625 (2018).
No bad faith justifying attorney's fees award.
- As there was no evidence that a guarantor breached the guaranty in bad faith or otherwise acted in bad faith in the contractual relations underlying the cause of action, it was error to grant the materials supplier a bad faith attorney fee award; further, the guarantor's post-trial relief motion should have been granted. Fletcher v. C. W. Matthews Contr. Co., 322 Ga. App. 751, 746 S.E.2d 230 (2013).
Claim for fraud against fraudster's attorney would support attorney's fees claim.
- Complaint by investors against a fraudster's attorney adequately set forth the elements of a fraud claim in alleging that the attorney drafted transaction documents that evidenced phony deals that the fraudster pretended to undertake, which conveyed the false impression to the investors that their investments were legitimate, causing damage to the investors. If proven, their claim would support a claim for bad faith attorney's fees. Siavage v. Gandy, 350 Ga. App. 562, 829 S.E.2d 787 (2019).
Evidence.
- When there is some evidence supporting a finding of bad faith, an award of attorneys fees on that basis must be affirmed. Crocker v. Stevens, 210 Ga. App. 231, 435 S.E.2d 690 (1993), cert. denied, 511 U.S. 1053, 114 S. Ct. 1613, 128 L. Ed. 2d 340 (1994), overruled on other grounds, Kim v. Lim, 254 Ga. App. 627, 563 S.E.2d 485 (2002).
Trial court did not err in granting summary judgment to a bank and a credit union, on claims of conversion, civil conspiracy, and for attorney fees and punitive damages as: (1) no probative evidence existed that the buyer received delivery of the check, and thus, it never became a holder of the instrument at issue or entitled to enforce the instrument; (2) no evidence was presented that the bank and credit union acted in concert against the buyer; (3) no evidence of misconduct or bad faith on the part of the bank or the credit union was presented; but, the trial court properly found that a genuine issue of material fact existed as to whether the bank and the credit union were holders in due course and whether the check bore evidence of forgery or alteration so as to call into question the instrument's authenticity. Hartsock v. Rich's Emples. Credit Union, 279 Ga. App. 724, 632 S.E.2d 476 (2006).
Because sufficient evidence was presented to support a distributor's tortious interference with a contractual or business relationship claim alleged against a manufacturer, and because such was an intentional tort, demonstrating evidence of the manufacturer's bad faith, when coupled with other evidence of bad faith, an attorney-fee award under O.C.G.A. § 13-6-11 was authorized; thus, the trial court erred in setting the award aside in granting the manufacturer's motion for a judgment notwithstanding the verdict. Fertility Tech. Res., Inc. v. Lifetek Med., Inc., 282 Ga. App. 148, 637 S.E.2d 844 (2006).
Attorney fees recoverable when breach done with ulterior motive.
- Attorney fees are allowed when the defendant willfully breaches an agreement with express ulterior or sinister motives not prompted by an honest mistake as to the defendant's rights or duties under the agreement. St. Holmes v. St. Holmes, 169 Ga. App. 283, 312 S.E.2d 370 (1983).
Evidence of bad faith sufficient to award attorney's fees.
- When a city engineer found that methane gas was migrating from a landfill onto plaintiff's property, yet the city failed to take remedial measures to protect such property, it constituted evidence sufficient for a jury to conclude that the city acted in bad faith, and to award attorney fees. City of Warner Robins v. Holt, 220 Ga. App. 794, 470 S.E.2d 238 (1996).
Evidence that defendant refused to maintain drainage control around the defendant's rails despite the defendant's knowledge that plaintiff's property flooded as a result authorized finding that the defendant acted in bad faith by consciously refusing to take any action to alleviate the damage being caused to plaintiff's property. CSX Transp., Inc. v. West, 240 Ga. App. 209, 523 S.E.2d 63 (1999), overruled on other grounds by Monterrey Mexican Rest. of Wise, Inc. v. Leon, 282 Ga. App. 439, 638 S.E.2d 879 (2006).
Landowner was entitled to litigation expenses and attorney fees after a county damaged the landowner's trees, graded a path on the landowner's property, and dug ditches by the side of the path without ascertaining the owner of the property and in spite of the landowner's being notified that there would be no additional work, the county returned to the site to continue to widen the path; the county acted in bad faith and put the landowner to unnecessary trouble and expense thereby justifying the award. Irwin County v. Owens, 256 Ga. App. 359, 568 S.E.2d 578 (2002), overruled in part, Shearin v. Wayne Davis & Co., P.C., 281 Ga. 385, 637 S.E.2d 679 (2006).
There was sufficient evidence that a city acted in bad faith by refusing to take any action to alleviate damage that the city knew or should have known was being caused by the city's sewer lines because: (1) the city was notified of raw sewage feces floating in a ravine across the street from the property; (2) the city received numerous complaints about an odor in the area; (3) the city's own samplings confirmed that the property was contaminated by unsafe levels of fecal coliform bacteria; and (4) the city's partial compliance with a Georgia Environmental Protection Department order confirmed that the sewer system contained numerous cracks, openings, and separations. City of Atlanta v. Landmark Envtl. Indus., 272 Ga. App. 732, 613 S.E.2d 131 (2005).
In a breach of contract action between a city and its general contractor arising out of a renovation project on property above and within an inert landfill, because the jury could find that the city acted in bad faith in the city's dealings with the general contractor on the issue of overhead costs, was stubbornly litigious, and caused the contractor unnecessary trouble and expense after the contractor encountered landfill materials within the depth of the contractor's excavation which caused the contractor to have to halt work, the court properly awarded attorney fees under O.C.G.A. § 13-6-11; thus, the city was properly denied a directed verdict and judgment notwithstanding the verdict as to this issue. City of Lilburn v. Astra Group, Inc., 286 Ga. App. 568, 649 S.E.2d 813 (2007).
In a nuisance suit brought by a property owner against the City of Atlanta, which involved the city failing to properly maintain a storm pipe that traversed and served the property owner's land and resulted in extensive flooding of the land and the home, the trial court properly awarded the property owner bad faith attorney fees and costs in the amount of $325,148 as there was sufficient evidence to support the trial court's finding that the city acted in bad faith based on the property owner complaining for over seven years about the flooding, sinkholes, and other problems; city workers observing the water in the property owner's basement and sinkholes in the yard; the recommendations that immediate action be taken, including dye testing and use of a closed-circuit camera, which the city ignored; and the city only taking care of the problem when the property owner brought suit. City of Atlanta v. Hofrichter, 291 Ga. App. 883, 663 S.E.2d 379 (2008).
Evidence that an appellant breached the parties' agreement by operating a rival business within their lessor's store while conspiring with the lessor to divert customers to the appellant and away from the appellee, and, once the appellee had been evicted, continued to operate the business from the store while retaining all of the profits to the exclusion of the appellee, justified an award of attorney fees to the appellee under O.C.G.A. § 13-6-11 due to the appellant's bad faith. Asgharneya v. Hadavi, 298 Ga. App. 693, 680 S.E.2d 866 (2009), overruled on other grounds, Jordan v. Moses, 291 Ga. 39, 727 S.E.2d 460 (2012).
While plaintiff firm was awarded only $325 in compensatory damages, in Georgia, there was no proportionality requirement between attorney's fees and compensatory damages if bad faith was shown under O.C.G.A. § 13-6-11, and since defendant convention host interfered with sales leads from another company, allowing $517,168 in fees was not error. GT Software, Inc. v. webMethods, Inc., F.3d (11th Cir. Mar. 5, 2012)(Unpublished).
In a personal injury case in which the plaintiff alleged that the defendant struck the plaintiff with a car while the plaintiff was jogging, the evidence was sufficient to create a jury issue on the plaintiff's claim for bad-faith attorney fees because the defendant saw the plaintiff on the other side of the intersection and knew that the plaintiff did not see the defendant; the defendant admitted that the defendant could have stopped and allowed the plaintiff to finish crossing the street but chose not to; and the defendant crossed a double-yellow line in an attempt to get around the plaintiff even though traffic laws generally prohibited the defendant from doing so. Nash v. Reed, 349 Ga. App. 381, 825 S.E.2d 853 (2019).
Bad faith award of attorney fees based on promissory estoppel.
- As a factfinder could conclude from the apparently bitter nature of the dispute that the landlords' failure to perform some substantial portion of the landlord's alleged promises to the landlords' tenants was the result of bad faith, the tenants' claim for attorney fees expended on the tenants' promissory estoppel claim should not have been dismissed on summary judgment. Brown v. Rader, 299 Ga. App. 606, 683 S.E.2d 16 (2009).
Not every intentional tort results in attorney fee recovery.
- While every intentional tort invokes a species of bad faith and entitles a person so wronged to recover the expenses of litigation including attorney fees, the evidence at issue did not demand a finding of bad faith where a conversion occurred, but when such was done in an attempt to reimburse the converting party for loans that party made to the corporation and recoup some of the costs the party expended; thus, the complaining party was not entitled to attorney's fees. Multimedia Techs., Inc. v. Wilding, 262 Ga. App. 576, 586 S.E.2d 74 (2003).
Effect of evidence of bad faith in entitlement to interest on unliquidated damages.
- When the original complaint contained a prayer for recovery of expenses of litigation and the evidence in support of the claim was defendant's bad faith in the transaction, and when written notice in the form of a demand letter expressly offered to settle the entire core with all defendants for all damages, the amount of bad faith damages was correctly included in calculating the amount of the judgment for purposes of determining plaintiffs' entitlement to interest on unliquidated damages. Windermere v. Bettes, 211 Ga. App. 177, 438 S.E.2d 406 (1993).
Despite the award of a set-off, the fraud or bad faith of the defendant in the transaction out of which the cause of action arose remains available as grounds of award for attorney's fees. Performance Mech. Co. v. Heat Transfer Control, Inc., 247 Ga. App. 436, 543 S.E.2d 808 (2000).
Arbitration award of attorney fees upheld when bad faith in transaction.
- Trial court erred in vacating an arbitration award of attorney fees against a brokerage firm under O.C.G.A. § 13-6-11 when: (1) the arbitrators could have found that the pleading requirement was satisfied as the claim prayed for attorney fees and alleged that the firm acted in bad faith in the underlying transaction; (2) the award was silent as to which of the criteria under O.C.G.A. § 13-6-11 was found; (3) the firm failed to carry the firm's burden of refuting every rational basis for the award; and (4) the award of actual damages was consistent with a finding that the firm acted in bad faith in the underlying transaction. Joyner v. Raymond James Fin. Servs., 268 Ga. App. 835, 602 S.E.2d 871 (2004).
Stubborn Litigiousness
"Stubborn litigiousness" does not in and of itself give rise to cause of action for damages but is instead a factor which may enable a plaintiff in a contract action to recover expenses of litigation. Citibank v. Knowles, 168 Ga. App. 664, 310 S.E.2d 18 (1983).
"Bona fide controversy" test relates to stubborn litigiousness and requires independent inquiry into bad faith.
- "Bona fide controversy" test regarding an award of attorney fees relates to the issue of stubborn litigiousness. An independent inquiry into bad faith is necessary. Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980).
Refusal to arbitrate is not stubborn litigiousness absent a mandatory arbitration clause in a contract. Witty v. McNeal Agency, Inc., 239 Ga. App. 554, 521 S.E.2d 619 (1999).
When court finds no genuine dispute exists, the court may authorize the jury to award litigation expenses. Palmer v. Howse, 133 Ga. App. 619, 212 S.E.2d 2 (1974); Harrison v. Ivie, 143 Ga. App. 856, 240 S.E.2d 224 (1977).
Attorney's fees cannot be recovered if plaintiff's claim is fairly open to controversy. Pickett v. Chamblee Constr. Co., 124 Ga. App. 769, 186 S.E.2d 123 (1971).
No recovery when bona fide claim exists.
- Recovery of attorney fees for stubborn litigiousness is not authorized when there is a bona fide controversy. Bayliner Marine Corp. v. Prance, 159 Ga. App. 456, 283 S.E.2d 676 (1981); Forester v. McDuffie, 189 Ga. App. 359, 375 S.E.2d 488 (1988); Mallory v. Daniel Lumber Co., 191 Ga. App. 234, 381 S.E.2d 406 (1989); Milam v. Attaway, 195 Ga. App. 496, 393 S.E.2d 753 (1990).
If there is a bona fide controversy, there can be no stubborn litigiousness as a matter of law. Trust Co. Bank v. Henderson, 185 Ga. App. 367, 364 S.E.2d 289 (1987), aff'd, 258 Ga. 703, 373 S.E.2d 738 (1988).
Bona fide dispute as to part of a claim will preclude a finding of stubborn litigiousness. Gwinnett County Bd. of Tax Assessors v. Network Publications, Inc., 208 Ga. App. 15, 429 S.E.2d 696 (1993); Driggers v. Campbell, 247 Ga. App. 300, 543 S.E.2d 787 (2000).
Trial court properly rejected a guardian's claim that a brokerage firm failed to raise a cognizable argument for vacatur of an arbitration award of attorney fees as the mere refusal to pay a disputed claim was not the equivalent of stubborn litigiousness or causing unnecessary trouble and expense as contemplated under O.C.G.A. § 13-6-11; the key was whether a bona fide controversy existed. Joyner v. Raymond James Fin. Servs., 268 Ga. App. 835, 602 S.E.2d 871 (2004).
Borrower failed to show entitlement to litigation expenses for stubborn litigiousness against two banks under O.C.G.A. § 13-6-11 because a bona fide controversy existed between the parties and there was no evidence of bad faith on the part of the banks. Cornelius v. Home Comings Fin. Network, Inc., F.3d (11th Cir. Sept. 16, 2008)(Unpublished).
Probate court erred by ordering two co-executors to pay attorney fees to another co-executor on the ground that they had been stubbornly litigious for refusing to accept that to which they had agreed in the settlement agreement because a bona fide controversy existed as to the intermediate discounts in the equalization calculation and when a bona fide controversy exists, there can be no stubborn litigiousness as a matter of law. In re Estate of Hubert, 325 Ga. App. 276, 750 S.E.2d 511 (2013).
In a personal injury case arising from a collision between the plaintiff, who was jogging, and the defendant's car, the trial court did not err by finding a bona fide controversy existed, precluding an attorney fees claim for stubborn litigiousness, because the plaintiff claimed that the defendant struck the plaintiff while the defendant claimed that it was the plaintiff who ran into the defendant's car; and both parties argued that the other one violated traffic laws, causing the collision. Nash v. Reed, 349 Ga. App. 381, 825 S.E.2d 853 (2019).
Trial court did not err by reversing the court's prior grant of attorney fees to the homeowners association because a genuine dispute existed between the parties as to the email sent by the association indicating that the association could not issue a determination as the association believed that was a denial but the homeowner believed the failure to issue any further determination led to an approval of the application. Riverwood Homeowners Ass'n v. Jones, 351 Ga. App. 716, 832 S.E.2d 868 (2019).
Existence of a genuine dispute or bona fide controversy precludes award of attorney's fees. Eldon Indus., Inc. v. Paradies & Co., 397 F. Supp. 535 (N.D. Ga. 1975); Anderson v. Golden, 569 F. Supp. 122 (S.D. Ga. 1982); Eastern Foods, Inc. v. Forman, 202 Ga. App. 347, 415 S.E.2d 1 (1991).
Statute turns upon existence of bona fide controversy. Beaudry Ford, Inc. v. Bonds, 139 Ga. App. 230, 228 S.E.2d 208 (1976); Eastern Foods, Inc. v. Forman, 202 Ga. App. 347, 415 S.E.2d 1 (1991) (see O.C.G.A. § 13-6-11).
Recovery of attorney fees for stubborn litigiousness is not authorized if bona fide controversy exists. Nestle Co. v. J.H. Ewing & Sons, 153 Ga. App. 328, 265 S.E.2d 61 (1980).
Bona fide controversy precludes award of fees.
- When there is a bona fide controversy, which parties cannot adjust amicably, there should be no burdening of one with counsel fees of the other, unless there has been wanton or excessive indulgence in litigation. Thomas v. Dumas, 207 Ga. 161, 60 S.E.2d 356 (1950).
One may resist settlement of a claim without fear of future liability for attorney fees if resistance is predicated upon a bona fide controversy. Delta Air Lines v. Isaacs, 141 Ga. App. 209, 233 S.E.2d 212 (1977).
Question of whether attorney fees are authorized for stubborn litigiousness should focus on whether defendant's resistance of claim was bottomed on bona fide controversy or dispute since absence of such is the essence of the attorney fee award for stubborn litigiousness. Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980); Bigelow-Sanford, Inc. v. Gunny Corp., 649 F.2d 1060 (5th Cir. 1981).
Expenses not allowed.
- Because plaintiff made no showing that the plaintiff asserted a viable counterclaim for relief independent of the plaintiff's claim of stubborn litigiousness and bad faith, expenses of litigation pursuant to O.C.G.A. § 13-6-11 were not available to plaintiff. Alcovy Properties, Inc. v. MTW Inv. Co., 212 Ga. App. 102, 441 S.E.2d 288 (1994), appeal dismissed, 223 Ga. App. 230, 477 S.E.2d 395 (1996), overruled on other grounds by Coen v. Aptean, Inc., 2020 Ga. LEXIS 103 (Ga. 2020).
Expenses not allowed when zero damages awarded.
- Litigation expenses are not available to defendant who prevailed on claim of stubborn litigiousness but was awarded zero damages. Gardner v. Kinney, 230 Ga. App. 771, 498 S.E.2d 312 (1998).
In avoidance action, the Chapter 7 trustee was not entitled to attorney's fees because there was no evidence in the record to substantiate the claim of stubborn litigiousness and causing unnecessary trouble and expense. There was no mention that the trustee ever contacted the defendant prior to filing the complaint. Howell v. Brown (In re Pritchett), 515 Bankr. 656 (Bankr. N.D. Ga. 2014).
When defendant denies any liability, defendant cannot raise amount of damages as a genuine controversy.
- When defendant steadfastly denies any liability to plaintiff and forces plaintiff to litigate, the defendant cannot raise amount of damages as a genuine controversy and an award of attorney fees to the plaintiff is proper. Beaudry Ford, Inc. v. Bonds, 139 Ga. App. 230, 228 S.E.2d 208 (1976).
When defendant disclaimed all liability prior to litigation, raising at trial of dispute as to amount of liability, without more, will not satisfy bona fide controversy requirement. Delta Air Lines v. Isaacs, 141 Ga. App. 209, 233 S.E.2d 212 (1977).
Great disparity between demand and verdict alone may defeat an award of attorney's fees when based upon theory of stubborn litigiousness. General Refractories Co. v. Rogers, 240 Ga. 228, 239 S.E.2d 795 (1977).
Disparity between damages sought and amount awarded.
- Fact that a plaintiff receives less in damages than the plaintiff seeks does not mandate a finding of a bona fide controversy. Morris v. Savannah Valley Realty, Inc., 233 Ga. App. 762, 505 S.E.2d 259 (1998).
Evidence supported award of attorney fees for defendant's stubbornly litigious behavior, since defendant was merely "stonewalling," or attempting to utilize the "so sue me" ploy. Southern Ry. v. Crowe, 186 Ga. App. 244, 366 S.E.2d 846 (1988); Carpet Transp., Inc. v. Kenneth Poley Interiors, Inc., 219 Ga. App. 556, 466 S.E.2d 70 (1995).
Evidence that the seller of certain land, inter alia, asserted that the buyer had only purchased 10 acres of land when it was clear from the installment purchase contracts that 15 acres had been purchased, showed that the seller was stubbornly litigious regarding matters as to which there was no good faith controversy and such evidence supported the trial court's decision to award attorney's fees to the buyer under O.C.G.A. § 13-6-11 after the buyer prevailed on a claim for reformation of the installment contracts. L.S. Land Co. v. Burns, 275 Ga. 454, 569 S.E.2d 527 (2002).
When the adjacent landowner failed to stop the trespass and tree cutting by the two workers even after the property owners' request that the landowner do so, the landowner received payment for the trees cut but did not offer to give the money to the property owners who owned the trees, and failed to utilize an opportunity to resolve the matter before suit was filed, the evidence supported an attorney fee award for the landowner's stubborn litigiousness. Jones v. Ceniza, 257 Ga. App. 806, 572 S.E.2d 362 (2002).
Trial court was entitled to conclude that a debtor's contention that money loaned to the debtor by the lenders was an investment in the debtor's venture to sell computers was specious, and that the debtor had been stubbornly litigious in refusing to repay the loan; thus, with some evidence authorizing the award of attorney fees, the appeals court refused to hold as a matter of law that there was a reasonable defense to the main claim. Gray v. King, 270 Ga. App. 855, 608 S.E.2d 320 (2004).
In a suit for specific performance and damages, the trial court properly awarded the plaintiff attorney fees under O.C.G.A. § 13-6-11 since the defendant repeatedly refused the plaintiff's demands to comply with the contract provision in question, forcing the plaintiff to resort to litigation to enforce the provision, and there was no evidence that the defendant misunderstood the provision; thus, there was some evidence that the defendant was stubbornly litigious. Hibbard v. McMillan, 284 Ga. App. 753, 645 S.E.2d 356 (2007).
An award of attorney fees entered against a home builder, pursuant to both O.C.G.A. §§ 13-6-11 and13-11-8, was upheld on appeal because an award pursuant to the latter statute did not require a finding of bad faith, and evidence of the home builder's stubborn litigiousness and the unnecessary trouble and expense it caused the two contractors supported an award under the former statute. Hampshire Homes, Inc. v. Espinosa Constr. Servs., 288 Ga. App. 718, 655 S.E.2d 316 (2007).
There was some evidence to support a finding of bad faith sufficient to recover attorney fees under circumstances in which there was evidence that a former employer was stubbornly litigious in refusing to pay a former employee the monies to which the employee was legally entitled under the parties' employment contract. Ins. Indus. Consultants, LLC v. Alford, 294 Ga. App. 747, 669 S.E.2d 724 (2008), cert. denied, No. S09C0465, 2009 Ga. LEXIS 200 (Ga. 2009).
In a case in which a lessee sought attorney's fees from a lessor pursuant to O.C.G.A. §§ 9-15-14 and13-6-11, the lessor unsuccessfully appealed the district court's award of attorney's fees. Not only had the lessee submitted evidence to support the award of attorney's fees, but the district court found that the lessor had been stubbornly litigious and had asserted baseless claims and defenses. Cargill Ltd. v. Jennings, F.3d (11th Cir. Jan. 22, 2009)(Unpublished).
Evidence supported the jury's award of attorney fees under O.C.G.A. § 13-6-11 in homeowners' class action against a private water system owner because the owner adopted the position that the homeowners were obligated to remain connected to the owner's water system and pay the owner a minimum monthly connection fee only after the owner's efforts to keep those customers failed, and the vast majority of homeowners opted to go with the county system, and the jury could rely on that evidence to find that the owner had been stubbornly litigious or had caused the class unnecessary trouble and expense; the statute contemplates that the facts in any given case may support an award of attorney fees, even if the case is resolved at trial, rather than by summary adjudication. Jones v. Forest Lake Vill. Homeowners Ass'n, 304 Ga. App. 495, 696 S.E.2d 453 (2010).
Attorney suing former client who was stubbornly litigious.
- Attorney who sued a former client for unpaid attorney fees presented sufficient evidence on which the jury could conclude that the client was stubbornly litigious and award attorney fees on the evidence that the attorney sent the client bills for a number of years, the client never questioned the bills until after the attorney brought suit, and the client stated that the client's primary contention against the attorney was being abandoned when the attorney withdrew legal representation of the client and not the bill. However, the trial court erred in denying the client's motion for directed verdict as there was insufficient evidence to establish the value and reasonableness of the attorney fees which the attorney sought. Patton v. Turnage, 260 Ga. App. 744, 580 S.E.2d 604 (2003).
No stubborn litigiousness in dispute between attorney and client.
- Because a genuine dispute precluded the recovery of attorney fees from the attorney by the client based upon the client's claim of stubborn litigiousness, summary judgment was reversed. Brito v. Gomez Law Group, LLC, 289 Ga. App. 625, 658 S.E.2d 178 (2008).
No stubborn litigiousness in contractor's suit.
- Subcontractor's motion for summary judgment was granted on a general contractor's litigation expenses claim under O.C.G.A. § 13-6-11 to the extent it was based on stubborn litigiousness or unnecessary trouble because a bona fide controversy existed as to whether an oral contract existed and was breached. Apac-Southeast, Inc. v. Coastal Caisson Corp., 514 F. Supp. 2d 1373 (N.D. Ga. 2007).
No stubborn litigiousness in contract for services.
- When a bona fide controversy exists, a recovery is impermissible under O.C.G.A. § 13-6-11 unless there is evidence that the defendant acted in bad faith in the underlying transaction; if there is a bona fide controversy, the party could not have been stubbornly litigious as a matter of law. In a dispute over payment for services that an employment firm rendered to a company, when the company was successful in the company's defense of a breach of contract claim, and when a bona fide controversy was litigated on a quantum meruit claim, attorney fees were improperly awarded to the employment firm and were reversed on appeal. Nextel S. Corp. v. R.A. Clark Consulting, 266 Ga. App. 85, 596 S.E.2d 416 (2004).
Defendant was not stubbornly litigious.
- Given the complexity of the transactions and the court's finding that defendant acted appropriately in many circumstances, the court could not find that defendant was stubbornly litigious or caused plaintiff unnecessary trouble and expense; while defendant's actions could have supported a finding of bad faith under O.C.G.A. § 13-6-11, the court declined to award attorneys' fees. The evidence showed that plaintiff also acted recalcitrantly and made excessive demands and that defendant made multiple efforts to settle the matter short of litigation; the award in this case was sufficient under the circumstances. Pollitt v. McClelland (In re McClelland), Bankr. (Bankr. N.D. Ga. June 8, 2011).
Application to party asserting counterclaim.
- Supreme Court of Georgia reversed the court's decision in Byers v. McGuire Properties, Inc., 285 Ga. 530 (2009) and held that a defendant who brings a counterclaim against a plaintiff becomes the plaintiff as to that counterclaim and, thus, as a plaintiff-in-counterclaim asserting an independent claim, they may seek, along with that claim, attorney fees and litigation expenses under O.C.G.A. § 13-6-11, regardless of whether the independent claim is permissive or compulsory. SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404, 841 S.E.2d 729 (2020).
Summary judgment denied because issues of fact exist.
- Summary judgment was properly denied on a broker's claim for attorney fees under O.C.G.A. § 13-6-11 because issues of fact existed as to whether the client was stubbornly litigious in the suit against the client, which sought to recover for the client's breach of contract in failing to abide by an agreement to pay the broker a commission on the sale of the home, in that there was a factual dispute as to the client's understanding of the obligations under the contract. Steel Magnolias Realty, LLC v. Bleakley, 276 Ga. App. 155, 622 S.E.2d 481 (2005).
As a doctor was terminated wrongfully and without authority from a medical practice, and there was evidence that the practice acted in bad faith and was stubbornly litigious, the trial court properly denied summary judgment to the practice on the doctor's claim for statutory bad faith fees and expenses. Ga. Dermatologic Surgery Ctrs., P.C. v. Pharis, 323 Ga. App. 181, 746 S.E.2d 678 (2013).
Unnecessary Trouble and Expense
Trouble and expense contemplated by section is not that which is so associated with every suit. Thomas v. Dumas, 207 Ga. 161, 60 S.E.2d 356 (1950).
When there is no bad faith, there must be something more than being put to expense of a suit to authorize plaintiff to claim attorney's fees as part of plaintiff's damages. D.H. Overmyer Co. v. Nelson-Brantley Glass Co., 119 Ga. App. 599, 168 S.E.2d 176 (1969); Raybestos-Manhattan, Inc. v. Friedman, 156 Ga. App. 880, 275 S.E.2d 817 (1981).
Forcing plaintiff to sue when no bona fide controversy exists causes unnecessary trouble and expense.
- When no bona fide controversy exists, forcing plaintiff to resort to courts in order to collect is plainly causing the plaintiff unnecessary trouble and expense. Buffalo Cab Co. v. Williams, 126 Ga. App. 522, 191 S.E.2d 317 (1972); Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976).
Forcing a plaintiff to sue when no bona fide controversy exists causes unnecessary trouble and expense and would authorize attorney fees and costs of litigation. Rogers v. Georgia Ports Auth., 183 Ga. App. 325, 358 S.E.2d 855, cert. denied, 183 Ga. App. 906, 358 S.E.2d 855 (1987).
When no defense exists, forcing a plaintiff to resort to the courts in order to collect is plainly causing the plaintiff "unnecessary trouble and expense." Clements v. Barnes, 197 Ga. App. 120, 397 S.E.2d 560 (1990).
Statutory recovery of attorney fees for causing unnecessary trouble and expense is authorized if there exists no bona fide controversy or dispute regarding liability for the underlying cause of action. Fresh Floors, Inc. v. Forrest Cambridge Apts., L.L.C., 257 Ga. App. 270, 570 S.E.2d 590 (2002).
Effect of plaintiff's failure to move for protective order to avoid unnecessary expense or annoyance.
- While numerous depositions may have been taken, and while some deponents, including plaintiff, were deposed on multiple occasions it was insufficient grounds for award of attorney's fees under O.C.G.A. § 13-6-11 when a motion for protective order under O.C.G.A. § 9-11-26(c) could otherwise have been made if plaintiff felt plaintiff was being subjected to unnecessary expense or annoyance. Raybestos-Manhattan, Inc. v. Friedman, 156 Ga. App. 880, 275 S.E.2d 817 (1981).
Bona fide dispute.
- Trial court improperly denied a railroad's motion for a judgment notwithstanding the verdict as to the imposition of attorney fees and litigation expenses against the railroad for unnecessary trouble and expense under O.C.G.A. § 13-6-11 since there was a bona fide dispute as to causation and damages and since there was no finding of bad faith. Ga. Northeastern R.R. Co. v. Lusk, 258 Ga. App. 742, 574 S.E.2d 810 (2002).
Because there was evidence showing a bona fide controversy between a corporation and an accounting firm as the firm allegedly acted negligently and in breach of contract in failing to follow generally accepted accounting principals, there was a bona fide controversy in the case, and thus, the corporation was not entitled to attorneys fees pursuant to O.C.G.A. § 13-6-11. TSG Water Res., Inc. v. D'Alba & Donovan Certified Pub. Accountants, P.C., 366 F. Supp. 2d 1212 (S.D. Ga. 2004), aff'd in part, rev'd in part, 260 Fed. Appx. 191 (11th Cir. Ga. 2007).
Attorney fees not recoverable given existence of genuine dispute.
- With the evidence showing a genuine dispute, attorney fees were not authorized for prosecuting the breach of contract claim because the trial court based the award on the court's finding that the truck rebuilding company had been stubbornly litigious and had caused the truck owner unnecessary trouble and expense. However, the evidence did authorize an award of attorney fees to the truck owner for prosecuting the claim to recover for the loss of value to the vehicle as it was uncontroverted that during the pendency of the bailment there was destruction or deterioration to the truck; the truck rebuilding company's assertion that the owner owed the company money was not a viable defense for the company's failure to keep the truck safe. 4WD Parts Ctr., Inc. v. Mackendrick, 260 Ga. App. 340, 579 S.E.2d 772 (2003).
Failure to describe property properly.
- When a sales agreement did not properly describe the property being sold, the agreement was void and unenforceable as a matter of law; because the buyer was forced to litigate, the buyer was entitled to attorney's fees pursuant to O.C.G.A. § 13-6-11. White v. Plumbing Distribs., 262 Ga. App. 228, 585 S.E.2d 135 (2003).
Burdensome discovery.
- Since the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, contains remedies available to a party litigant when the litigant feels the litigant has been the subject of burdensome discovery, allowance of attorney fees pursuant to O.C.G.A. § 13-6-11 based upon a party's conduct in the course of litigation is wholly improper. Padgett v. Moran, 167 Ga. App. 244, 306 S.E.2d 96 (1983).
Counsel's role in document review involving spoliation.
- Trial court did not err in denying defendant's motion in limine to preclude plaintiffs' counsel from testifying at trial as to what occurred during a May 2009 document review involving spoliation because the evidence was properly admitted as it related to the issue of attorney fees since plaintiffs sought expenses of litigation and attorney fees under O.C.G.A. § 13-6-11; thus, the testimony was relevant. Pulte Home Corp. v. Simerly, 322 Ga. App. 699, 746 S.E.2d 173 (2013).
Effect of Refusal to Pay Debt
Mere refusal to pay disputed claim is not equivalent of stubborn litigiousness. State Mut. Ins. Co. v. McJenkin Ins. & Realty Co., 86 Ga. App. 442, 71 S.E.2d 670 (1952); Murphy v. Morse, 96 Ga. App. 513, 100 S.E.2d 623 (1957); D.H. Overmyer Co. v. Nelson-Brantley Glass Co., 119 Ga. App. 599, 168 S.E.2d 176 (1969); Sam Finley, Inc. v. Pilcher, Livingston & Wallace, Inc., 314 F. Supp. 654 (S.D. Ga. 1970); First Nat'l Bank v. Wynne, 149 Ga. App. 811, 256 S.E.2d 383 (1979); McDevitt & Street Co. v. K-C Air Conditioning Serv., Inc., 203 Ga. App. 640, 418 S.E.2d 87, cert. denied, 203 Ga. App. 906, 418 S.E.2d 87 (1992).
Bad faith is not implied by mere refusal to pay disputed claim. Nor, ordinarily, will simple refusal to pay a debt, which results in requiring a party to employ counsel and institute legal action, imply bad faith or authorize expenses of litigation; nor a refusal to pay when there is an honest dispute. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 115 S.E.2d 852 (1960).
Statute does not allow recovery for mere refusal to pay. G.E.C. Corp. v. Levy, 126 Ga. App. 604, 191 S.E.2d 461 (1972) (see O.C.G.A. § 13-6-11).
Mere refusal to pay debt will not support award of attorney fees, and is not equivalent of stubborn litigiousness. Palmer v. Howse, 133 Ga. App. 619, 212 S.E.2d 2 (1974); Brannon Enters., Inc. v. Deaton, 159 Ga. App. 685, 285 S.E.2d 58 (1981); Associated Software Consultants Org., Inc. v. Wysocki, 177 Ga. App. 135, 338 S.E.2d 679 (1985); Evans v. Willis, 212 Ga. App. 335, 441 S.E.2d 770 (1994).
Mere refusal to pay amount due and payable is not equivalent to stubborn litigiousness if claim is disputed. Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976).
Although expenses of litigation are allowable in contract actions when defendant has been stubbornly litigious, mere refusal to pay disputed claim does not warrant award of such expenses. Spurlock v. Commercial Banking Co., 138 Ga. App. 892, 227 S.E.2d 790 (1976), aff'd in part, rev'd in part, 238 Ga. 218, 232 S.E.2d 53 (1977).
Mere refusal to pay does not alone amount to bad faith, or causing unnecessary trouble and expense, and a defense of action is not of itself stubborn litigiousness. Brooks v. Steele, 139 Ga. App. 496, 229 S.E.2d 3 (1976).
When there is a bona fide controversy the law does not allow recovery for mere refusal to pay. Southern Bell Tel. & Tel. Co. v. C & S Realty Co., 141 Ga. App. 216, 233 S.E.2d 9 (1977), overruled on other grounds, Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980).
Attorney fees are expressly prohibited for mere refusal to pay, but rather are grounded in defendant's having acted in bad faith in transaction and dealings out of which cause of action arose. Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980).
Refusal to pay a disputed claim is not equivalent to stubborn litigiousness, nor will it support a claim that plaintiff caused defendant unnecessary trouble and expense. Gordon v. Ogden, 154 Ga. App. 641, 269 S.E.2d 499 (1980).
Mere failure to pay a claim is not bad faith. Raybestos-Manhattan, Inc. v. Friedman, 156 Ga. App. 880, 275 S.E.2d 817 (1981).
Mere refusal to pay a just debt, standing alone, was insufficient to support an award of attorney fees under O.C.G.A. § 13-6-11; but the refusal may be sufficient when the refusal is not prompted by an honest mistake as to one's rights or duties but by some interested or sinister motive. Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 556 S.E.2d 554 (2001).
Mere failure of defendants to pay a claim does not rise to the level of bad faith for purposes of O.C.G.A. § 13-6-11, and a refusal to pay a disputed claim does not constitute stubborn litigiousness, nor will it support a claim that defendants caused the plaintiff unnecessary trouble and expense. Powell Co. v. McGarey Group, LLC, 508 F. Supp. 2d 1202 (N.D. Ga. Mar. 28, 2007).
Key to test is bona fide controversy not just refusal to pay.
- Mere refusal to pay a disputed claim is not the equivalent of stubborn litigiousness or causing unnecessary trouble and expense. Rather, the key to the test is whether there is a "bona fide controversy." When none exists, forcing a plaintiff to resort to the courts in order to collect is plainly causing the plaintiff to go to unnecessary trouble and expense. Franchise Enters., Inc. v. Ridgeway, 157 Ga. App. 458, 278 S.E.2d 33 (1981).
Mere refusal to pay will not support award of attorney fees in ex contractu case. Brooks v. Steele, 139 Ga. App. 496, 229 S.E.2d 3 (1976).
Bad faith refusal to pay not ground for recovery.
- Refusal to pay, in bad faith, is not legal equivalent of acting in bad faith and bad faith in refusing to pay is not ground for such damages. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 115 S.E.2d 852 (1960).
Expenses of litigation are not allowed for bad faith in refusing to pay. Lovell v. Frankum, 145 Ga. 106, 88 S.E. 569 (1916); Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933).
Refusal to pay in bad faith means a frivolous and unfounded denial of liability. First Nat'l Bank v. Wynne, 149 Ga. App. 811, 256 S.E.2d 383 (1979).
Interested or sinister motive justifies attorney fee award.
- Refusal to pay a debt may be sufficient to support an award of attorney fees when the refusal is not prompted by an honest mistake as to one's rights or duties but by some interested or sinister motive, and when no defense exists, a defendant who forces a plaintiff to resort to the courts in order to collect a debt is plainly causing plaintiff unnecessary trouble and expense, justifying an attorney fee award. Fresh Floors, Inc. v. Forrest Cambridge Apts., L.L.C., 257 Ga. App. 270, 570 S.E.2d 590 (2002).
Attorney fees were properly awarded to an attorney in the attorney's action against a client to recover sums owed to the attorney under a contingency fee agreement with the client; the evidence was sufficient to support a jury finding that the client's refusal to pay the fees was not prompted by an honest mistake but by some interested or sinister motive or an attempt to defeat the clear intent of the contingency fee agreement. Am. Computer Tech., Inc. v. Hardwick, 274 Ga. App. 62, 616 S.E.2d 838 (2005).
Bad faith refusal with no bona fide controversy justifies award.
- When the only explanation offered by defendants for the defendant's refusal to pay at least some portion of plaintiff's bill was that the plaintiff's/architect's plans proved too costly to implement, and when there existed no bona fide controversy as to defendant's liability, an award of attorney's fees to plaintiff was authorized by O.C.G.A. § 13-6-11. Matthews v. Neal, Greene & Clark, 177 Ga. App. 26, 338 S.E.2d 496 (1985).
After plaintiff mulch seller prevailed in the seller's suit on account against defendants, two individuals doing business as a company (company), who failed to pay for certain plastic mulch that was delivered by the seller, there was no basis to reverse the jury's award to the seller of attorney fees and litigation expenses under O.C.G.A. § 13-6-11 as the testimony of one of the individuals that the invoice from the seller was not initially paid because of a lack of funds provided some evidence to support the award and the appellate court did not say as a matter of law that the company had a reasonable defense to the suit or that a bona fide dispute existed. McLeod v. Robbins Ass'n, 260 Ga. App. 347, 579 S.E.2d 748 (2003).
Bona fide dispute as to claim for specific performance.
- When a purchaser sues to recover damages for breach of contract or, in the alternative, to obtain specific performance, and when there is no bona fide dispute as to the existence of the indebtedness, but there is a bona fide dispute as to the claim for specific performance, it cannot be said that the seller has been stubbornly litigious in defending the suit. Gaston v. Mullins, 168 Ga. App. 371, 309 S.E.2d 166 (1983).
Pleadings and Practice
Plaintiff must make out a proper case for litigation expenses, which must be supported by evidence. Davis v. Fomon, 144 Ga. App. 14, 240 S.E.2d 581 (1977).
Proof of costs and reasonableness.
- An award of attorney fees is unauthorized if the applicant fails to prove the actual costs of the attorney and the reasonableness of the costs. Fiat Auto U.S.A., Inc. v. Hollums, 185 Ga. App. 113, 363 S.E.2d 312 (1987); Crosby v. DeMeyer, 229 Ga. App. 672, 494 S.E.2d 568 (1998); Cannon Air Transp. Servs. v. Stevens Aviation, Inc., 249 Ga. App. 514, 548 S.E.2d 485 (2001).
Damages in the nature of expenses of litigation must be especially pleaded and prayed for. Davis v. Macon Tel. Publishing Co., 93 Ga. App. 633, 92 S.E.2d 619 (1956); Carroll v. Johnson, 144 Ga. App. 750, 242 S.E.2d 296 (1978).
Must plead for recovery of fees.
- Although trial judge might have been authorized to find that party was being stubbornly litigious and to award attorney's fees for defense of a series of baseless suits when other party failed to allege stubborn litigiousness and pray for award of attorney's fees, such an award was clearly erroneous. Rowell v. Rowell, 212 Ga. 584, 94 S.E.2d 425 (1956).
The "specially pleaded" and prayed-for award of attorney fees in the case of two cross-claiming codefendants constituted actual damages under the express terms of O.C.G.A. § 13-6-11 and supported awards of punitive damages. Privitera v. Addison, 190 Ga. App. 102, 378 S.E.2d 312, cert. denied, 190 Ga. App. 898, 378 S.E.2d 312 (1989).
Awards under O.C.G.A. § 13-6-11 must be prayed for in the complaint and must be awarded by the factfinder. Williams v. Binion, 227 Ga. App. 893, 490 S.E.2d 217 (1997).
Customer's claim for attorney fees in an action seeking reimbursement for improperly charged9-1-1 phone service fees failed because the customer failed to specially plead for attorney fees and for the costs of litigation as required by O.C.G.A. § 13-6-11. Daniels v. Price Communs. Wireless, Inc., 254 Ga. App. 559, 562 S.E.2d 844 (2002).
Because appellant failed to plead damages specially pursuant to O.C.G.A. § 13-6-11 and did not litigate the issue of bad faith damages, the appellant was not entitled to recover attorney's fees pursuant to the statute. Pipe Solutions, Inc. v. Inglis, 291 Ga. App. 328, 661 S.E.2d 683 (2008).
Plaintiffs in a medical malpractice and contract case were not entitled to attorney's fees because they did not specifically plead O.C.G.A. § 13-6-11 and did not allege any bad faith by a doctor and clinic. Further, claims for fees under O.C.G.A. § 9-11-68 were properly dismissed on directed verdict because the statute was not in effect at the time the complaint was filed. Morrison v. Mann, F.3d (11th Cir. Mar. 26, 2008)(Unpublished).
Plaintiffs could not recover attorney's fees as an element of damages under the plaintiffs' breach of contract claim because the plaintiffs failed to specifically plead the request for fees in accordance with O.C.G.A. § 13-6-11 and Fed. R. Civ. P. 9(g) as special damages and generalized language requesting any and all other legal and equitable relief was not sufficient. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 6, 2009).
Portion of a default judgment awarding the plaintiffs $43,500 in attorney's fees could not stand because a hearing as to the fees was required; the defendant was entitled to cross examine the plaintiffs' counsel on the amount and reasonableness of the fees and costs requested. Giovanno v. Fabec, 804 F.3d 1361 (11th Cir. 2015).
Implicit prayer for litigation expenses.
- Although defendant's amended counterclaim adding a party may not have asserted a claim for attorney fees against such party under O.C.G.A. § 13-6-11 by citation, it asked for the award of attorney fees in the defendant's prayer as to a count for tortious interference with contract, which was an implicit prayer for litigation expenses. Witty v. McNeal Agency, Inc., 239 Ga. App. 554, 521 S.E.2d 619 (1999).
General prayer for relief not sufficient to state claim for attorney fees.
- General prayer for "such other just and equitable relief as this court may deem proper and necessary" was not sufficient to state a claim for attorney fees, as pursuant to O.C.G.A. § 13-6-11, recovery of such expenses is permitted only when the plaintiff has specially pleaded and made prayer therefor. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 329 S.E.2d 900, cert. denied, 254 Ga. 349, 331 S.E.2d 879 (1985); DOT v. Georgia TV Co., 244 Ga. App. 750, 536 S.E.2d 773 (2000).
Fees under O.C.G.A.
§ 13-6-11 cannot be awarded via summary judgment. - Trial court erred by granting summary judgment to a landlord for attorney fees under O.C.G.A. § 13-6-11 because the language of § 13-6-11 prevents a trial court from ever determining that a claimant is entitled to attorney fees as a matter of law and although the trial court may grant attorney fees or litigation expenses under § 13-6-11 when the court sits as the trier of fact, the court is not a trier of fact on a motion for summary judgment. Meek v. Mallory & Evans, Inc., 318 Ga. App. 407, 734 S.E.2d 109 (2012).
Failure to comply with the ante litem notice requirement of O.C.G.A. § 36-33-5 precluded plaintiff's ability under O.C.G.A. § 13-6-11 to sue for money damages in the form of attorney fees and costs of litigation. Dover v. City of Jackson, 246 Ga. App. 524, 541 S.E.2d 92 (2000).
No ante litem notice for claim for attorney fees and costs.
- Firefighters' request for costs of litigation, including attorney fees, was properly submitted to the jury in the firefighters' class action, challenging a promotional examination, as the firefighters were not statutorily required to give ante-litem notice to the city. City of Atlanta v. Bennett, 322 Ga. App. 726, 746 S.E.2d 198 (2013).
Construed with
§ 14-2-1604(c). - When attorney fees were awarded as costs under O.C.G.A. § 14-2-1604(c), and not damages under O.C.G.A. § 13-6-11, the award was directly appealable. Motor Whse., Inc. v. Richard, 235 Ga. App. 835, 510 S.E.2d 600 (1998).
Plaintiff must set out facts in petition justifying prayer for attorney's fees.
- No cause of action was set out in the paragraphs of plaintiff's amendment which sought a recovery of $500.00 as attorney's fees when the plaintiff did not set out any facts showing that the defendant had acted in bad faith or been stubbornly litigious and caused the plaintiff unnecessary trouble and expense. Roberts v. Scott, 212 Ga. 87, 90 S.E.2d 413 (1955).
Denial of summary judgment to the defendants on the plaintiff's claim for punitive damages was proper because the plaintiff asserted an independent tort claim for conversion, which could support an award of punitive damages and an award of attorney fees. McCalla Raymer, LLC v. Foxfire Acres, Inc., Ga. App. , 846 S.E.2d 404 (2020).
Failure to present evidence of attorney fees.
- In a case involving a home buyer's fraudulent conveyance and negligent construction claims against a corporation, given the buyer's failure to present required evidence on the buyer's attorney fee claim under O.C.G.A. § 13-6-11, there was no error in the trial court's refusal to submit the issue to the jury and in directing a verdict on this claim. Sims v. GT Architecture Contrs. Corp., 292 Ga. App. 94, 663 S.E.2d 797 (2008).
General allegation that defendant acted in bad faith will not authorize recovery of expenses. Lampkin v. Garwood, 122 Ga. 407, 50 S.E. 171 (1905).
Failure to set forth facts justifying award.
- In two companies' suit for conversion, fraud, breach of fiduciary duty, and several other related claims against a former director, the trial court properly granted the companies' motion for summary judgment on the former director's counterclaim seeking attorney fees as the former director failed to set forth any facts showing that the companies acted in bad faith, had been stubbornly litigious, or had caused the former director any unnecessary trouble or expense in the defense of the former director's remaining independent counterclaims in the action. Sampson v. Haywire Ventures, Inc., 293 Ga. App. 779, 668 S.E.2d 286 (2008).
Discrepancy between amount of compensatory damages awarded and ad damnum of complaint will not necessarily defeat submission of the issue of attorney fees to the jury. Camp v. Jordan, 168 Ga. App. 339, 309 S.E.2d 384 (1983).
Georgia law does not allow attorney's fees under O.C.G.A. § 13-6-11 when the amount recoverable is considerably less than the amount sought, because this indicates the existence of a genuine dispute. Anderson v. Golden, 569 F. Supp. 122 (S.D. Ga. 1982).
When plaintiffs were awarded damages under only one of six counts initially sought, but were awarded attorneys fees and expenses based on the plaintiff's proof of the lump sum amount incurred to work on all six counts of the complaint, the case had to be remanded with direction to limit the award of fees to the amount based upon the prevailing claim. United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 475 S.E.2d 601 (1996).
Award vacated due to grant of new trial.
- In a direct action brought by a medical practice limited liability company member against another, the award of attorney fees and expenses in favor of the exiting member was vacated because a new trial was warranted on a conversion claim due to insufficient evidence, and a successful litigant is only entitled to recover attorney fees and expenses for that portion of the fees and expenses which are allocable to the attorney's efforts to prosecute a successful claim against a defendant. Internal Med. Alliance, LLC v. Budell, 290 Ga. App. 231, 659 S.E.2d 668 (2008).
No basis for fees and costs because award of attorney fees and expenses of litigation was ancillary and plaintiff did not successfully recover on any claim.
- Trial court did not err by granting a power company's motion for a directed verdict on the issue of attorney fees under O.C.G.A. § 13-6-11 in a property owner's negligence suit as, pretermitting whether any evidence of bad faith existed, reversal was not required, because the property owner could not show any harm regarding the trial court's decision not to submit the issue to the jury since an award of attorney fees and expenses of litigation under § 13-6-11 was ancillary and, because the property owner did not successfully recover on any claim against the power company, the property owner was not entitled to recover fees pursuant to § 13-6-11. Accordingly, the property owner could show no harm and no basis for reversal arising from the grant of a directed verdict to the power company on the issue of attorney fees. Lee v. Ga. Power Co., 296 Ga. App. 719, 675 S.E.2d 465 (2009).
Waiver of objection to award of fees.
- To the extent that an attorney fee award to homeowners was based on O.C.G.A. § 13-6-11, the builder had not waived the builder's right to object to the award by failing to object to the verdict form because the verdict was void due to the homeowners' failure to recover any affirmative relief. However, the Court of Appeals failed to consider the owners' alternative argument that the award was based on contract, in which case the builder could have waived the builder's right to object, requiring remand. Benchmark Builders, Inc. v. Schultz, 289 Ga. 329, 711 S.E.2d 639 (2011).
Lender's demand letter for fees sufficient.
- Lender's demand letter that referenced the note signed by the borrower and advised a guarantor of the lender's intent to seek attorney's fees if the debt was not paid within ten days was sufficient, although the letter did not cite to O.C.G.A. § 13-6-11 or the specific section of the note allowing attorney's fees. Brzowski v. Quantum Nat'l Bank, 311 Ga. App. 769, 717 S.E.2d 290 (2011).
Award of attorney's fees part of underlying case.
- Trial court erred in denying the children's petition for writ of mandamus to compel a judge to allow the children to appeal from the order dismissing their appeals because the award of attorney fees under O.C.G.A. § 13-6-11 was considered part of the underlying case; therefore, if the judgment reserves the issue of attorney fees under § 13-6-11, then one cannot claim that "the case is no longer pending in the court below" as required by O.C.G.A. § 5-6-34(a)(1). Sotter v. Stephens, 291 Ga. 79, 727 S.E.2d 484 (2012).
Dismissal of attorney's fees claim inappropriate when underlying claim proceeding.- As the defendant clinic concedes, since the plaintiffs may proceed with the plaintiffs' negligence and breach of implied contract claims, it was error to dismiss the claim for attorney fees. Collins v. Athens Orthopedic Clinic, Ga. App. , S.E.2d (Sept. 25, 2020).
Award vacated.
- Trial court award of attorney fees under O.C.G.A. § 13-6-11 to a bank was reversed on appeal since the appellate court determined that summary judgment should not have been granted to the bank as a result of genuine issues of fact existing as to the interpretation of the contract at issue. DJ Mortg., LLC v. Synovus Bank, 325 Ga. App. 382, 750 S.E.2d 797 (2013).
In a patient's challenge to a hospital asserting a lien, because the appellate court properly ruled that the hospital's lien was valid, it also properly affirmed the ruling that the award of attorney fees against the hospital pursuant to O.C.G.A. § 13-6-11 was improper. Kight v. MCG Health, Inc., 296 Ga. 687, 769 S.E.2d 923 (2015).
Trial court erred by denying the defendant's motions for a directed verdict or JNOV on the issue of attorney fees under O.C.G.A. § 13-6-11 because the jury found no bad faith in the underlying quiet title action between the parties and the mere fact that the defendant's action had caused an issue which later required litigation to correct did not in and of itself provide a basis for award; plus, any conduct during litigation could not support an award under § 13-6-11. Bowen v. Laird, 348 Ga. App. 1, 821 S.E.2d 105 (2018).
Separation of successful and unsuccessful claims.
- Trial court properly awarded attorney fees to the purchaser by reducing the amount requested after omitting time spent solely on the unsuccessful and dismissed claims and it was not necessary to separate the hours spent on each of the successful claims. Krayev v. Johnson, 327 Ga. App. 213, 757 S.E.2d 872 (2014).
Evidentiary Issues
Expert testimony required.
- Under O.C.G.A. § 13-6-11, the amount of the award of attorney fees as damages is a jury question that cannot be decided on summary judgment because the questions of reasonableness and necessity of the expenses of litigation and attorney fees are matters for expert opinion. American Medical Transp. Group, Inc. v. Glo-An, Inc., 235 Ga. App. 464, 509 S.E.2d 738 (1998).
It is only necessary for the plaintiff to show that one of the conditions, i.e., bad faith or stubbornly litigious, existed to recover fees and costs. ADP-Financial Computer Servs., Inc. v. First Nat'l Bank, 703 F.2d 1261 (11th Cir. 1983).
Contingency fee contracts as evidence of value of attorney's services.
- Injured party who sued a corporation after the injured person fell while shopping in a store the corporation owned provided enough evidence that the contingency fee the injured person agreed to pay an attorney was a valid indicator of the value of the attorney's services, and the trial court did not err when the court denied the corporation's motion for a directed verdict on the customer's claim seeking attorney's fees under O.C.G.A. § 13-6-11. Home Depot U.S.A., Inc. v. Tvrdeich, 268 Ga. App. 579, 602 S.E.2d 297 (2004).
Evidence of diminished value after unauthorized cutting of timber relevant.
- Holder of a security deed on property from which timber was cut without authorization was not entitled to damages for the diminished value of the property, but only for the value of the trees; however, evidence of diminished value was relevant for purposes of attorney's fees and punitive damages. Redcedar, LLC v. CML-GA Social Circle, LLC, 341 Ga. App. 110, 798 S.E.2d 334 (2017).
Plaintiff's failure to demonstrate that a bona fide controversy existed regarding plaintiff's obligation to pay for legal services rendered by plaintiff warranted presentation to the jury of the issue of attorney fees. Owens v. McGee & Oxford, 238 Ga. App. 497, 518 S.E.2d 699 (1999).
Proof of expenses of litigation is required. See Johnson & Shahan v. East Tenn., Va. & Ga. Ry., 90 Ga. 810, 17 S.E. 121 (1893).
An attorney cannot recover for professional services without proof of their value. First Bank v. Dollar, 159 Ga. App. 815, 285 S.E.2d 203 (1981).
Expenses must be reasonable.
- An award for litigation expenses under O.C.G.A. § 13-6-11 must be supported by evidence that the expenses were reasonable. Eways v. Georgia R.R. Bank, 806 F.2d 991 (11th Cir. 1986).
Before an award can be made under O.C.G.A. § 13-6-11, the requesting party must provide the court with evidence which demonstrates the expenses submitted were reasonably incurred. Great Am. Ins. Co. v. International Ins. Co., 753 F. Supp. 357 (M.D. Ga. 1990).
Insufficient evidence was offered to support the amount of attorney fees awarded to defendant as no testimony was offered as to the reasonableness of those fees and plaintiff was denied the opportunity to challenge the amount and the reasonableness of the fees. Kwickie/Flash Foods, Inc. v. Lakeside Petroleum, Inc., 256 Ga. App. 556, 568 S.E.2d 816 (2002).
Proof of what was paid for professional services is not sufficient proof of their value. Allen v. Harris, 113 Ga. 107, 38 S.E. 322 (1901).
Evidence of offer to compromise action for sought damages is admissible when expenses of litigation are sought. See Selma, R. & D.R.R. v. Fleming, 48 Ga. 514 (1873); Western & A.R.R. v. Smith, 15 Ga. App. 289, 82 S.E. 906 (1914).
Appropriate testimony as to reasonable attorney fees.
- While plaintiff's attorney was competent to testify as to the attorney's opinion on reasonable fees, there was no prohibition on more objective expert testimony with regard to attorney fees under former Code 1933, § 38-1710 (see now O.C.G.A. § 24-7-707). Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976).
Despite the fact that a lender in a loan dispute testified as to the lender's attorney's hourly rate, the number of hours spent by the attorney on depositions and trial preparation, and the amount of the fees, absent testimony by any witness as to the reasonableness of the fees, even testimony from their own attorney, the attorney-fee award was vacated for lack of sufficient evidence and remand was ordered for an evidentiary hearing on the matter. Gray v. King, 270 Ga. App. 855, 608 S.E.2d 320 (2004).
Despite the fact that a construction contractor was found to have acted in bad faith, had been stubbornly litigious, and caused the city unnecessary trouble and expense in refusing to return a duplicate payment to the city, the award of attorney fees under O.C.G.A. § 13-6-11 to the city was reversed, as the contractor was erroneously denied the opportunity to inquire about the reasonableness of the attorney fees. D & H Constr. Co. v. City of Woodstock, 284 Ga. App. 314, 643 S.E.2d 826 (2007).
Appropriate testimony required as to fees attributable to prevaling claims.
- Action awarding attorney fees and litigation expenses to the customer was remanded with directions to the trial court to conduct an evidentiary hearing on the issue to allow the customer to establish the amount of the customer's attorney fees that were attributable to the customer's successful negligence construction claim since, at trial, the customer merely proved the "lump sum" amount of attorney fees and expenses of litigation incurred in working on the entire case rather than that portion on which the customer prevailed. Premier Cabinets, Inc. v. Bulat, 261 Ga. App. 578, 583 S.E.2d 235 (2003).
Billing document not hearsay.
- Exhibit, in the form of a billing document, summarizing an injured party's attorney fees and litigation expenses admitted to support the injured party's claim under O.C.G.A. § 13-6-11 was not hearsay since the injured party's attorney authored the exhibit, testified, and was cross-examined. The driver's claim that the exhibit made no attempt to differentiate between those fees incurred on the liability issue and those incurred on the property damage issue was rejected as the driver was awarded summary judgment based on the driver's offer to pay the total amount for property damage that the injured party claimed, which was not the same as prevailing on a separate claim. Daniel v. Smith, 266 Ga. App. 637, 597 S.E.2d 432 (2004).
Party's testimony as to "approximate" cost of legal fees is insufficient. See First Bank v. Dollar, 159 Ga. App. 815, 285 S.E.2d 203 (1981).
Fee award based on guesswork improper.
- Because the attorney offered no billing records or any other evidence describing, with any particularity, how the time was spent, the award of $6,000 for attorney fees was improperly based on guesswork. 4WD Parts Ctr., Inc. v. Mackendrick, 260 Ga. App. 340, 579 S.E.2d 772 (2003).
Damages stricken for failure to provide evidence of litigation expenses.
- When the trial court finds bad faith on the part of the defendant, and this finding is supported by the evidence but no evidence is presented as to the amount of litigation expenses incurred, these damages must be stricken from the award. Wahnschaff Corp. v. O.E. Clark Paper Box Co., 166 Ga. App. 242, 304 S.E.2d 91 (1983); Sheppard v. Sheppard, 229 Ga. App. 494, 494 S.E.2d 240 (1997).
Award of attorney's fees should be affirmed if there is any evidence to support the award unless it can be said as a matter of law that there was a reasonable defense. Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676, 266 S.E.2d 796 (1980); Fuller v. Moister, 248 Ga. 287, 282 S.E.2d 889 (1981); Wisenbaker v. Warren, 196 Ga. App. 551, 396 S.E.2d 528 (1990); Gist v. Ferguson Constr. Co., 197 Ga. App. 625, 398 S.E.2d 862 (1990).
When the award of attorney fees is supported by the evidence, the appellate court will not disturb the award. Franchise Enters., Inc. v. Ridgeway, 157 Ga. App. 458, 278 S.E.2d 33 (1981); Griffiths v. Phenix Supply Co., 192 Ga. App. 651, 385 S.E.2d 789 (1989).
Trial court did not err in a breach of contract suit when the court granted the plaintiff $55,000 in attorney fees under O.C.G.A. § 13-6-11 because the trial court had substantial evidence, including affidavits, testimony, and billing statements, concerning the proportion of fees expended on the breach-of-contract and rescission claims, and made an award within the range of the evidence presented. Fowler's Holdings, LLLP v. CLP Family Invs., L.P., 318 Ga. App. 73, 732 S.E.2d 777 (2012).
Record indicated that the majority of attorney fees were related to claims connected with the mother's estate and the superior court, therefore, did not abuse the court's discretion in finding that the mother's estate was entitled to reimbursement from the siblings' estate in the amount of $3,000 for their individual claims. Braswell v. Benton, 351 Ga. App. 372, 830 S.E.2d 758 (2019).
Award of attorney fees is to be affirmed if there is any evidence to support the award. A.P.S.S., Inc. v. Clary & Assocs., 178 Ga. App. 131, 342 S.E.2d 375 (1986).
Standard of review of an award of attorney fees under O.C.G.A. § 13-6-11 is whether there is any evidence to support the award. Spring Lake Property Owners Ass'n v. Peacock, 260 Ga. 80, 390 S.E.2d 31 (1990).
Amount of fee award.
- In breach of contract action brought by attorney to recover legal fees from a client, remand for evidentiary hearing on amount of attorney fee award under O.C.G.A. § 13-6-11 was required; although there was evidence of the client's bad faith in that parties' contract plainly required client to pay one-third of any cash settlement, which client never offered to do, attorney's trial counsel had offered only generalized and approximated proffer of time spent on the breach of contract case, there was a lack of billing records or other evidence showing precisely how trial counsel's time was spent, and there was no evidence as to reasonableness of trial counsel's fees. Hardnett v. Ogundele, 291 Ga. App. 241, 661 S.E.2d 627 (2008).
Portion of the jury's award for attorney fees and expenses against the defendant was vacated and the case remanded to the trial court to conduct further proceedings on the amount of fees and expenses for which the plaintiff could recover because the trial court abused the court's discretion in excluding from evidence an exhibit showing the plaintiff's legal fees and expenses, which would have aided the jury in the determination of the appropriate amount of fees under O.C.G.A. § 13-6-11. Wilson v. Wernowsky, Ga. App. , 846 S.E.2d 101 (2020).
Evidence was insufficient to support the amount of the attorney fees awarded to the plaintiff as neither the plaintiff nor the plaintiff's attorney testified to the terms of any contingency fee agreement; and no evidence was introduced at trial regarding the attorney's hours, rates, or any other indicator of the value of the attorney's services. Wimpy v. Martin, Ga. App. , 846 S.E.2d 230 (2020).
Evidence that plaintiff could not get response from insurer properly admitted.
- Evidence that the plaintiff, in attempting to discuss the plaintiff's claims arising out of an automobile collision, could not get a response from the defendant, the plaintiff's insurer, did not show "negotiations and offers of compromise or settlement," which were not proper evidence under former O.C.G.A. § 24-3-37 (see now O.C.G.A. § 24-4-408), but was properly admitted under O.C.G.A. § 13-6-11 to show that the defendant acted in bad faith, or was stubbornly litigious, or put the plaintiff to unnecessary trouble or expense. U-Haul Co. v. Ford, 171 Ga. App. 744, 320 S.E.2d 868 (1984).
In an action for damages sustained in an automobile collision, the plaintiff, in support of the plaintiff's claim under O.C.G.A. § 13-6-11, was entitled to show that the defendant, acting through the defendant's claims service agent, had no defense on the issue of liability for property damage, yet refused to discuss this claim, even though the existence of liability insurance could be inferred through the introduction of such evidence. U-Haul Co. v. Ford, 171 Ga. App. 744, 320 S.E.2d 868 (1984).
Award affirmed if finding supported by any evidence.
- An award of litigation expenses, based on an express finding that the defendant acted in bad faith, must be affirmed if there is any evidence to support that finding. Jim Ellis Atl., Inc. v. McAlister, 198 Ga. App. 94, 400 S.E.2d 389 (1990).
Award vacated if statutory basis and reasonableness not provided.
- Trial court erred in awarding attorney fees to a publisher, absent a statutory basis for the award and evidence as to the reasonableness of the award; hence, the award was vacated and remand was ordered for the trial court to hold an evidentiary hearing on the amount and reasonableness of the fees. In re Serpentfoot, 285 Ga. App. 325, 646 S.E.2d 267 (2007), cert. denied, No. S07C1397, 2007 Ga. LEXIS 661 (Ga. 2007).
Unresolved costs warranted new trial.
- When no evidence was presented from which the jury could determine what portion of the total amount of attorney time and litigation expenses incurred was attributable to defendant's counterclaim against plaintiff, the trial court erred in denying plaintiff's motion for new trial on the issue of attorney fees. Professional Consulting Servs. of Ga., Inc. v. Ibrahim, 206 Ga. App. 663, 426 S.E.2d 376 (1992).
When there was no evidence of the percentage contingency being charged by law firms, the amount of attorney fees awarded was nearly one-and-one-half times the amount of the damages awarded, and no recovery of fees attributable to punitive damages claims could be had, the award of attorney fees was vacated and the case remanded for an evidentiary hearing on the amount of reasonable fees. First Union Nat'l Bank v. Davies-Elliott, Inc., 215 Ga. App. 498, 452 S.E.2d 132 (1994).
Record supported award of attorney's fees.
- See Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506, 305 S.E.2d 14 (1983); I.M.C. Motor Express, Inc. v. Cochran, 180 Ga. App. 232, 348 S.E.2d 750 (1986); Anderson v. Chatham, 190 Ga. App. 559, 379 S.E.2d 793 (1989); Southern Medical Corp. v. Willis, 194 Ga. App. 773, 391 S.E.2d 803 (1990); Myers v. Myers, 195 Ga. App. 529, 394 S.E.2d 374 (1990); Pope v. Witter, 205 Ga. App. 101, 421 S.E.2d 725, cert. denied, 205 Ga. App. 901, 421 S.E.2d 725 (1992); Young v. A.L. Anthony Grading Co., 225 Ga. App. 592, 484 S.E.2d 318 (1997); Sass v. First Nat'l Bank, 228 Ga. App. 7, 491 S.E.2d 76 (1997); Wheat Enters., Inc. v. Redi-Floors, Inc., 231 Ga. App. 853, 501 S.E.2d 30 (1998); Tattersall Club Corp. v. White, 232 Ga. App. 307, 501 S.E.2d 851 (1998); Goodman v. Frolik & Co., 233 Ga. App. 376, 504 S.E.2d 223 (1998); Plaza Properties, Ltd. v. Prime Bus. Invs., Inc., 240 Ga. App. 639, 524 S.E.2d 306 (1999), aff'd, 273 Ga. 97, 538 S.E.2d 51 (2000); Parks v. Breedlove, 241 Ga. App. 72, 526 S.E.2d 137 (1999); Graves v. Diambrose, 243 Ga. App. 802, 534 S.E.2d 490 (2000); Ryland Group, Inc. v. Daley, 245 Ga. App. 496, 537 S.E.2d 732 (2000).
Evidence improperly excluded in contract action.
- In a breach of contract action, the court improperly granted an asphalt company's motion in limine excluding evidence of attorney's fees sought by the Georgia Department of Transportation (DOT) under O.C.G.A. § 13-6-11; the trial court erred in concluding that the DOT could not recover such fees incurred in developing testing evidence that was excluded as a jury would not be required to pro-rate fees between various aspects of a cause of action. State, DOT v. Douglas Asphalt Co., 297 Ga. App. 470, 677 S.E.2d 699 (2009), appeal dismissed, 297 Ga. App. 511, 677 S.E.2d 728 (2009).
Existence of contract.
- O.C.G.A. § 13-6-11 does not specifically require that allowable litigation expenses be incurred pursuant to an existing oral or written contract. KDS Properties, Inc. v. Sims, 234 Ga. App. 395, 506 S.E.2d 903 (1998).
When no ruling invoked, no question for review and no jurisdiction.
- When the trial court lacked jurisdiction to decide a lessee's motion for clarification as an out-of-term motion to reconsider the original order and such was insufficient to extend the time to file timely a notice of appeal as to such order, the appeals court lacked jurisdiction to consider the appeal; thus, the trial court's clarification order declaring the court's original order granting summary judgment to the lessee on the lessee's specific performance claim, but denying the lessee's breach of contract and attorney-fee claim, and denying the lessor's motion for partial summary judgment on the lessor's claim for reasonable rents was vacated. Masters v. Clark, 269 Ga. App. 537, 604 S.E.2d 556 (2004), appeal dismissed, Clark v. Masters, 297 Ga. App. 794, 678 S.E.2d 538 (2009).
Some evidence.
- When a party seeking attorney fees has engaged in bad faith or stubborn litigiousness, or has caused unnecessary trouble and expense, such factor may be considered by the trial court and will, either standing alone, or in conjunction with other operative facts, constitute some evidence to support denial of the request for attorney fees. Crotty v. Crotty, 219 Ga. App. 408, 465 S.E.2d 517 (1995).
Jury-Court Determinations
Intent of O.C.G.A. § 13-6-11, as shown by the words, "the jury may allow them," is to leave the matter of expenses to the jury trying the case. Brannon Enters., Inc. v. Deaton, 159 Ga. App. 685, 285 S.E.2d 58 (1981); J.M. Clayton Co. v. Martin, 177 Ga. App. 228, 339 S.E.2d 280 (1985); Jamison v. West, 191 Ga. App. 431, 382 S.E.2d 170 (1989).
Question of attorney fees under O.C.G.A. § 13-6-11 is question for jury. See Citizens & S. Trust Co. v. Hicks, 216 Ga. App. 338, 454 S.E.2d 207 (1995).
Under O.C.G.A. § 13-6-11, the amount of the award of attorney fees as damages is a jury question that cannot be decided on summary judgment because the questions of reasonableness and necessity of the expenses of litigation and attorney fees are matters for expert opinion. American Medical Transp. Group, Inc. v. Glo-An, Inc., 235 Ga. App. 464, 509 S.E.2d 738 (1998); Young v. Turner Heritage Homes, Inc., 241 Ga. App. 400, 526 S.E.2d 82 (1999).
In a nuisance suit wherein the plaintiff homeowners received a verdict in the plaintiff's favor as against the City of Atlanta with regard to recurrent flooding in a neighborhood, the trial court did not abuse the trial court's discretion by denying the homeowners' motion for a new trial based on the jury's failure to award the homeowners attorney fees and litigation expenses as well as damages for the relocation costs the homeowners incurred as a result of being displaced; whether the homeowners met any of the preconditions for an award of attorney fees and litigation expenses set forth in O.C.G.A. § 13-6-11 was solely a question for the jury, and even though the jury did not award the homeowners damages for relocation expenses, the damages may have been included within the awards for the loss of the use and enjoyment of the homes. City of Atlanta v. Broadnax, 285 Ga. App. 430, 646 S.E.2d 279 (2007), cert. denied, No. S07C1445, 2007 Ga. LEXIS 615, 648 (Ga. 2007), overruled on other grounds, Royal Capital Dev. LLC v. Md. Cas. Co., 291 Ga. 262, 728 S.E.2d 234 (2012).
Trial court erred in granting summary judgment to a property owner on heirs' claim for attorney fees under O.C.G.A. § 13-6-11 because that issue was for the jury. Davis v. Overall, 301 Ga. App. 4, 686 S.E.2d 839 (2009).
Pursuant to the language of O.C.G.A. § 13-6-11, a trial court erred when the court granted a tenant attorney fees thereunder as a matter of law on a summary judgment ruling as the determination of the fee issue was one within the province of the jury. Covington Square Assocs., LLC v. Ingles Mkts., 287 Ga. 445, 696 S.E.2d 649 (2010).
Trial court erred in granting attorney fees pursuant to O.C.G.A. § 13-6-11 on summary judgment because both the liability for and amount of attorney fees pursuant to § 13-6-11 were issues solely for a jury's determination. The trial court did not sit as a trier of fact on a motion for summary judgment. Crouch v. Bent Tree Cmty., 310 Ga. App. 319, 713 S.E.2d 402 (2011).
Given the preference under Georgia law for jury resolution of a claim for fees under O.C.G.A. § 13-6-11, and the open question of whether a jury would award damages to plaintiff on the plaintiff's breach of contract claim, the defendants' motion for summary judgment on plaintiff's claim for fees was denied. However, summary judgment was granted in favor of the defendants on the plaintiff's claim for fees under O.C.G.A. § 9-15-14, as that provision was not available to civil litigants in federal court. Jackson v. JHD Dental, LLC, F. Supp. 2d (N.D. Ga. June 14, 2011).
No right to have attorney fee issue decided by jury.
- O.C.G.A. § 13-6-11 did not apply in a suit in which defendants sought attorney's fees and expenses after a derivative action brought by former shareholders under diversity jurisdiction was dismissed on the merits because, under United States Court of Appeals for the Eleventh Circuit precedent, defendants had no right to a trial by jury on the issue of attorney's fees. Hantz v. Belyew, F. Supp. 2d (N.D. Ga. Nov. 8, 2006).
Trial court erred in granting summary judgment as to availability of fees.
- Language of O.C.G.A. § 13-6-11 prevented a trial court from ever determining that a claimant is entitled to attorney fees as a matter of law. Whether the plaintiff had met any of the preconditions for an award of attorney fees and expenses was solely a question for the jury as was the amount of fees and expenses. Royal v. Blackwell, 289 Ga. 473, 712 S.E.2d 815 (2011).
If there is a bona fide controversy between the parties as to liability, the issue of costs cannot be submitted to a jury. Thompson Enters., Inc. v. Coskrey, 168 Ga. App. 181, 308 S.E.2d 399 (1983).
When a bona fide controversy clearly exists between the parties, there is not "any evidence" to support an award for expenses of litigation. Gunnin v. Parker, 194 Ga. App. 426, 390 S.E.2d 596, cert. denied, 194 Ga. App. 911, 390 S.E.2d 596 (1989).
Error to submit issue to jury when case involves bona fide dispute.
- In a personal injury suit, it was error to submit the issue of litigation expenses under O.C.G.A. § 13-6-11 to the jury; a bona fide controversy existed as to whether a collision was caused by the negligence of the first driver, the second driver, or both; a bona fide dispute and a reasonable defense precluded an award under the statute. White v. Scott, 284 Ga. App. 87, 643 S.E.2d 356 (2007).
It is for jury determination as to whether or not there is a bona fide controversy so as to deny attorney fees. Jackson v. Brinegar, Inc., 165 Ga. App. 432, 301 S.E.2d 493 (1983).
Evidence of one enumerated ground sends question to jury.
- Evidence of one of the enumerated elements in O.C.G.A. § 13-6-11 will send the question of recovery of fees and costs to the jury. The award of attorney's fees is a question exclusively for the jury once evidence of a requisite element is produced. Brown v. Joiner Int'l, Inc., 523 F. Supp. 333 (S.D. Ga. 1981).
Bad faith for jury determination.
- Trial court did not err in denying summary judgment to a management company on a health care companies' claim for attorney's fees for bad faith under O.C.G.A. § 13-6-11 because questions concerning bad faith under § 13-6-11 were generally for the jury to decide. Mariner Health Care Mgmt. Co. v. Sovereign Healthcare, LLC, 306 Ga. App. 873, 703 S.E.2d 687 (2010).
Trial court erred by summarily granting judgment on the pleadings on the buyer's claim for attorney's fees as the trial court was not sitting as the trier of fact; and, whether there had been bad faith in support of an award of attorney's fees under O.C.G.A. § 13-6-11 was normally an issue for a jury. Caldwell v. Church, 341 Ga. App. 852, 802 S.E.2d 835 (2017).
Questions of bad faith, stubborn litigiousness, and expense are generally questions for the jury. Gorin v. FPA 2, 184 Ga. App. 239, 361 S.E.2d 193, cert. denied, 184 Ga. App. 909, 361 S.E.2d 193 (1987); American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826 (11th Cir. 1989); Manderson & Assocs. v. Gore, 193 Ga. App. 723, 389 S.E.2d 251, cert. denied, 193 Ga. App. 910, 389 S.E.2d 251 (1989); Jim Anderson & Co. v. Partraining Corp., 216 Ga. App. 344, 454 S.E.2d 210 (1995).
Questions of bad faith, stubborn litigiousness, and expense are generally questions for the factfinder. Rossee Oil Co. v. BellSouth Telecommunications, Inc., 212 Ga. App. 235, 441 S.E.2d 464 (1994).
Whether plaintiff is entitled to recover expenses of litigation is solely a question for jury. Pritchett v. Rainey, 131 Ga. App. 521, 206 S.E.2d 726 (1974).
Question as to whether or not plaintiff in a particular case is entitled to recover expenses of litigation is solely a matter for jury to determine from evidence. Parks v. Parks, 89 Ga. App. 725, 80 S.E.2d 837 (1954).
When trial court decides that there is an issue for the jury as to defendant's fraud respecting one issue, and jury decides for plaintiff on this issue, it is error for the trial court to direct a verdict against plaintiff as to punitive damages and attorney's fees. Champion v. Martin, 124 Ga. App. 275, 183 S.E.2d 571 (1971).
Question of attorney fees under O.C.G.A. § 13-6-11 is a question for the jury. Spring Lake Property Owners Ass'n v. Peacock, 260 Ga. 80, 390 S.E.2d 31 (1990); Deloitte, Haskins & Sells v. Green, 198 Ga. App. 849, 403 S.E.2d 818, cert. denied, 198 Ga. App. 897, 403 S.E.2d 818 (1991); Lewis v. Rogers, 201 Ga. App. 899, 412 S.E.2d 632 (1991).
Issue of attorney fees under O.C.G.A. § 13-6-11 is a question for the jury and an award will be upheld if any evidence is presented to support the award. Arford v. Blalock, 199 Ga. App. 434, 405 S.E.2d 698, cert. denied, 199 Ga. App. 906, 405 S.E.2d 698 (1991), aff'd sub nom., Wilensky v. Blalock, 262 Ga. 95, 414 S.E.2d 1 (1992), overruled on other grounds Jordan v. Moses, 291 Ga. 39, 727 S.E.2d 460 (2012).
Mere inclusion of a request for attorney's fees, when the plaintiff's other claims are exclusively equitable in nature, does not entitle the defendant to a jury trial pursuant to the seventh amendment. Wheeless v. Gelzer, 765 F. Supp. 741 (N.D. Ga. 1991).
Court may not direct jury to find any sum as attorney's fees.
- Intent of the law, as indicated by the words, "the jury may allow them," is to leave matter of expenses of litigation to jury trying the case. Consequently, a court errs in directing a jury to find any sum for attorney's fees. Taylor v. Estes, 85 Ga. App. 716, 70 S.E.2d 82 (1952).
Trial judge, when sitting as trier of fact, may award litigation expenses. Derrickson v. Kristal, 148 Ga. App. 320, 251 S.E.2d 170 (1978).
Failure to make findings of fact and conclusions of law to support award of attorney fees.
- In civil contempt action, the trial court erred in failing to make express findings of fact and conclusions of law as to the statutory basis for the award of attorney fees or the conduct that would authorize the award, and the record contained insufficient evidence of the reasonableness of the attorney fees incurred by the corporation and its owner due to the former employee's violation of an injunction prohibiting the employee from contacting the corporation's customers and using the corporation's name to conduct business on the employee's website. Parland v. Millennium Constr. Servs., LLC, 276 Ga. App. 590, 623 S.E.2d 670 (2005).
O.C.G.A. § 13-6-11 did not permit an award of attorney fees and litigation expenses for proceedings before the appellate courts as the statute's purpose was not to ensure that a winning plaintiff was made whole. David G. Brown, P.E., Inc. v. Kent, 274 Ga. 849, 561 S.E.2d 89 (2002).
While attorney fees could be awarded to an attorney's client for the attorney's breach of a fiduciary duty to attorney's client in failing to adequately supervise the attorney's non-legal staff, only those attorney fees attributable to the client's breach of fiduciary duty claim could be awarded; therefore, when the jury made a lump sum award of attorney fees to the client, the appellate court remanded the case to the trial court for a determination of what amount of the attorney fee award was attributable to the breach of fiduciary verdict claim rather than the client's other non-prevailing claims. David C. Joel, Attorney at Law, P.C. v. Chastain, 254 Ga. App. 592, 561 S.E.2d 746 (2002).
Since the adjoining property owners did not prove their attorney fees as attributable to each of the claims on which the owners were awarded damages and the jury awarded punitive damages to the owners without particularity upon all counts, the award of attorney fees and punitive damages to the adjoining property owners had to be reversed as to both issues, and the cause had to be remanded for a new trial on both issues. D. G. Jenkins Homes, Inc. v. Wood, 261 Ga. App. 322, 582 S.E.2d 478 (2003).
Trial court may not direct verdict on issue of expenses of litigation.
- In suits where expenses of litigation might be recovered as part of damages, it is error for trial court to direct a verdict therefor. The matter of such expenses is left solely to jury. Tab Sales, Inc. v. D & D Distribs., Inc., 153 Ga. App. 779, 266 S.E.2d 558 (1980).
Trial court may not strike jury-awarded attorney fees when evidence supported award.
- When jury awarded plaintiff fees, the court's entering a j.n.o.v. striking the attorney fees was error since there was evidence of bad faith on the part of defendants. Powell v. Watson, 190 Ga. App. 375, 378 S.E.2d 867, cert. denied, 190 Ga. App. 898, 378 S.E.2d 867 (1989).
When evidence warrants award of fees, failure to direct verdict for defendant not error.
- When, from the evidence admitted in court, the jury is warranted in finding that the defendant has been stubbornly litigious and has caused plaintiff unnecessary trouble and expense, the trial court does not err in failing to direct a verdict in favor of the defendant on the issue of entitlement to attorney fees and expenses. Assaf v. Coker, 157 Ga. App. 432, 278 S.E.2d 82 (1981).
Jury shall determine questions of bad faith, stubborn litigiousness, and causing unnecessary trouble. Emery v. Atlanta Real Estate Exch., 88 Ga. 321, 14 S.E. 556 (1891).
Pro-rating fees not required.
- Jury may award attorney fees under O.C.G.A. § 13-6-11 if there is no bona fide controversy as to liability, even if there is a bona fide controversy as to damages. Once the threshold for awarding the plaintiff expenses of litigation as compensation for a defendant's stubborn litigiousness or causing unnecessary trouble or expense was reached, there was no authority for requiring the jury to pro-rate fees between various aspects of a discrete cause of action. Daniel v. Smith, 266 Ga. App. 637, 597 S.E.2d 432 (2004).
Jury to determine fees in suit for fraud and deceit.
- In suit for fraud and deceit, plaintiff is entitled to have submitted to jury the matter of allowance of attorney's fees. McMichen v. Martin Burks Chevrolet, Inc., 128 Ga. App. 482, 197 S.E.2d 395 (1973).
In action for fraud and deceit, jury to determine whether attorney fees are warranted.
- In action by buyer against seller for fraud and deceit, it is for jury to determine if evidence warrants imposition of punitive damages and attorney fees. Hill Aircraft & Leasing Corp. v. Flanders, 143 Ga. App. 504, 239 S.E.2d 155 (1977).
When fraud and deceit are alleged, a plaintiff in Georgia is permitted to submit attorney's fee question to jury. Shingleton v. Armor Velvet Corp., 621 F.2d 180 (5th Cir. 1980).
When plaintiff produces evidence of bad faith in breaching contract, jury may award attorney fees.
- When plaintiff produces some evidence of bad faith in breaching contract, recovery of attorney fees may be submitted to jury as an additional element of damages for plaintiffs. A.W. Easter Constr. Co. v. White, 137 Ga. App. 465, 224 S.E.2d 112 (1976).
Since a court should not vacate an award under O.C.G.A. § 13-6-11 unless there was absolutely no evidence to support the award, when the jury was authorized to find the requisite bad faith with respect to a contract theory and award fees on that basis alone and the jury found that defendants acted in bad faith with respect to the defendants' underlying dealing with the plaintiff, then the jury verdict awarding attorneys' fees was upheld. LaRoche Indus., Inc. v. AIG Risk Mgt., Inc., 959 F.2d 189 (11th Cir. 1992).
Jury determined defendants acted with bad faith.
- Summary judgment against plaintiff on plaintiff's claim for attorney fees under O.C.G.A. § 13-6-11 was error when, even though there was a bona fide controversy, a jury could have decided that defendants acted with bad faith. Stargate Software Int'l, Inc. v. Rumph, 224 Ga. App. 873, 482 S.E.2d 498 (1997).
Jury can determine bad faith even though bona fide controversy shown.
- Even though the existence of a prior appeal demonstrated a "bona fide controversy" under O.C.G.A. § 13-6-11, that did not preclude the jury's consideration of whether the defendant demonstrated bad faith in the defendant's dealing with the plaintiff, authorizing the award of attorney fees. First Union Nat'l Bank v. Davies-Elliott, Inc., 215 Ga. App. 498, 452 S.E.2d 132 (1994).
Subcontractor's motion for summary judgment was denied on a general contractor's litigation expenses claim under O.C.G.A. § 13-6-11 to the extent the claim was based on bad faith because the question of whether a contract existed and the subcontractor breached the contract in bad faith remained for a jury to decide, and the jury could determine both that there was a contract and that the subcontractor breached the contract for an interested motive such as scheduling or financial problems. Apac-Southeast, Inc. v. Coastal Caisson Corp., 514 F. Supp. 2d 1373 (N.D. Ga. 2007).
Bad faith is for jury determination.
- Because a corporation adduced evidence from which a jury could find that the corporation's competitor, the competitor's majority shareholder, and a newly formed company liable for procuring a breach of fiduciary duty, and because acting purposefully, with malice and the intent to injure, was an essential element of this tort, defendants were not entitled to judgment as a matter of law on the corporation's malice claims seeking punitive damages and attorney fees; moreover, the question of bad faith was one for the jury to determine. Insight Tech., Inc. v. FreightCheck, LLC, 280 Ga. App. 19, 633 S.E.2d 373 (2006).
Jury considerations in determining amount to award as attorney's fees.
- Jury in awarding attorney's fees may consider experience and expertise of counsel, amount of time involved in rendering services, and rate of compensation allowed in similar cases, among other things. F.N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257, 208 S.E.2d 13 (1974).
Summary adjudication only in rare cases.
- Only in the rare case when there was absolutely no evidence to support the award of expenses of litigation would the trial court be authorized to grant summary judgment on such issues. American Medical Transp. Group, Inc. v. Glo-An, Inc., 235 Ga. App. 464, 509 S.E.2d 738 (1998).
Trial court could grant summary judgment on availability of attorney's fees, but question of punitive damages was for jury.
- Tenant whose former landlord cashed a check for property taxes that the tenant mailed to the landlord by mistake was entitled to summary judgment on a claim for conversion and bad faith attorney's fees under O.C.G.A. § 13-6-11; however, under O.C.G.A. § 51-12-5.1(d), the question of whether punitive damages should be awarded and the amount thereof was for a jury. Covington Square Assocs., LLC v. Ingles Mkts., Inc., 300 Ga. App. 740, 686 S.E.2d 359 (2009), aff'd in part and rev'd in part, 287 Ga. 445, 696 S.E.2d 649 (2010).
Summary judgment for fees properly denied.
- Summary judgment was denied to a former employer and its acquirer on a former employee's claim for attorney's fees and expenses for bad faith litigation pursuant to O.C.G.A. § 13-6-11 arising out of defendants' failure to permit the employee to exercise stock options because there was a fact issue for the jury since the employee contended that defendants forced the employee to resort to litigation to enforce an agreement and that, in doing so, the defendant's acted in bad faith, demonstrated litigiousness, and caused the employee undue expense. Lucius v. Micro Gen. Corp., F. Supp. 2d (N.D. Ga. Apr. 8, 2004).
Jury Instructions
Jury charge must specify provisions authorizing attorney fees.
- When a party seeks recovery of attorney fees from an opponent pursuant to the provisions of O.C.G.A. § 13-6-11, the court's charge to the jury must specify the provisions of the section which would authorize a jury verdict or attorney fees. Spivey v. Rogers, 173 Ga. App. 233, 326 S.E.2d 227 (1984).
Because the party pursuing attorney's fees and expenses under O.C.G.A. § 13-6-11 did not submit a jury charge under the statute, no error resulted in the jury's failure to award attorney's fees and expenses under the theory presented. Gold Kist, Inc. v. Base Mfg., 289 Ga. App. 690, 658 S.E.2d 228 (2008).
Failure to instruct harmless error.
- While O.C.G.A. § 13-6-11 appears in the contracts section of the code, it is universally applied when the underlying suit is not in contract; however, when the underlying claims in a case should not have been allowed to go to the jury, the refusal to charge the jury on awarding attorney fees under O.C.G.A. § 13-6-11 was harmless error. Bacon v. Volvo Serv. Ctr., Inc., 266 Ga. App. 543, 597 S.E.2d 440 (2004).
Jury is authorized to consider damages despite absence of specific instructions.
- Where, when trial court gave the court's general charge to the jury on liability and damages, the trial court gave no instructions regarding the recoverability of attorney's fees pursuant to O.C.G.A. § 13-6-11, when despite this absence of specific instructions, the jury nevertheless included in the jury's verdict an award to appellees of attorney's fees, and when at the time that verdict was returned, defendants did not object to its inclusion of an award of attorney's fees and the jury was dispersed, the award of attorney fees was correct despite the absence of specific instructions by the trial court; since the recoverability of damages is dependent upon the applicable law and evidence, and not upon the instructions of the trial court, since defendants did not contest the sufficiency of the evidence to authorize the $8,008.08 verdict in attorney's fees, and since defendants failed to object to the verdict at the time the verdict was returned, the award of attorney's fees was sustained. Ring v. Williams, 192 Ga. App. 329, 384 S.E.2d 914 (1989).
Failure to object to jury instruction on attorney fees for stubborn litigiousness.
- In an action in which a widow sued an insurer for failing to pay benefits under a life insurance policy, and the jury found the insurer was not guilty of bad faith in the insurer's refusal to pay these benefits but that the insurer was stubbornly litigious, the insurer's argument on appeal that the jury was not authorized to award attorney fees for stubborn litigiousness was not preserved for appeal because the insurer did not present that argument to the trial court and did not object to a jury instruction on awarding attorney fees for stubborn litigiousness. Cherokee Nat'l Life Ins. Co. v. Eason, 276 Ga. App. 183, 622 S.E.2d 883 (2005).
Evidence sufficient to support instruction on bad faith.
- When the trial court instructed the jury that expenses of litigation may be allowed under the three conditions enumerated by the trial court (encompassing the provisions of O.C.G.A. § 13-6-11), that it was necessary to show one of the three conditions existed in order to recover attorney fees, but that any one of the three may authorize such damages, and the evidence adduced at trial showed that defendant obtained a writ of possession by swearing that plaintiffs had failed to pay monies due the defendant which instead were shown to be due to third parties (namely, the finance company and the lot manager of the mobile home park) and that defendant, together with the other defendants, first emptied plaintiffs' mobile home of the home's belongings and then drove off taking some of plaintiffs' belongings with the defendants, and leaving the rest to be taken by unknown third parties, this evidence was sufficient to support the trial court's charge to the jury on the issue of attorney fees under O.C.G.A. § 13-6-11, particularly the bad faith section of that statute. Sanders v. Hughes, 183 Ga. App. 601, 359 S.E.2d 396, cert. denied, 183 Ga. App. 907, 359 S.E.2d 396 (1987).
Jury instruction on bad faith.
- Jury was properly charged on bad faith as an avenue for attorney fees pursuant to O.C.G.A. § 13-6-11 as a pretrial order did not exclude bad faith as an avenue of recovery; the trial court did not err in charging the jury that the jury could award attorney fees if the defendants had acted in bad faith, had been stubbornly litigious, or had caused the client unnecessary trouble and expense. As the trial court did not err in charging on bad faith, the trial court did not compound the error or commit reversible error by charging the jury that "where a jury (was) authorized to find fraud, it (was) authorized to find bad faith." Gerschick v. Pounds, 281 Ga. App. 531, 636 S.E.2d 663 (2006), cert. denied, No. S07C0191, 2007 Ga. LEXIS 95 (Ga. 2007).
No error in instructions.
- Trial court did not err in giving a charge paraphrasing O.C.G.A. § 13-6-11 since the charge was warranted by the evidence. Kent v. Brown, 238 Ga. App. 607, 518 S.E.2d 737 (1999).
RESEARCH REFERENCES
Am. Jur. 2d.
- 20 Am. Jur. 2d, Costs, § 1 et seq. 22 Am. Jur. 2d, Damages, §§ 147 et seq.
C.J.S.- 25 C.J.S., Damages, § 68, et seq.
ALR.
- Right to recover attorneys' fees for wrongful attachment, 25 A.L.R. 579; 65 A.L.R.2d 1426.
Recovery in action of deceit for fraudulently inducing contract of expense of other litigation incident to contract, 41 A.L.R. 1156.
Attorneys' fees as element of damages allowable in action on injunction bond, 164 A.L.R. 1088.
Right to recover attorneys' fees for wrongful attachment, 65 A.L.R.2d 1426.
What constitutes "trial," "final trial," or "final hearing" under statute authorizing allowance of attorneys' fees as costs on such proceeding, 100 A.L.R.2d 397.
Attorneys' fees incurred in litigation with third person as damages in action for breach of contract, 4 A.L.R.3d 270.
Attorneys' fees or other expenses of litigation as element in measuring exemplary or punitive damages, 30 A.L.R.3d 1443.
Punitive damages for wrongful seizure of chattel by one claiming security interest, 35 A.L.R.3d 1016.
Dismissal of plaintiff's action as entitling defendant to recover attorneys' fees or costs as "prevailing party" or "successful party,", 66 A.L.R.3d 1087.
Construction and application of state statute or rule subjecting party making untrue allegations or denials to payment of costs or attorney's fees, 68 A.L.R.3d 209.
Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.
Allowance of counsel fees in taxpayer's action in state court, 89 A.L.R.3d 690.
Measure and elements of damages for breach of contract to lend money, 4 A.L.R.4th 682.