Powell v. Watson , 190 Ga. App. 375 ( 1989 )

Birdsong, Judge.

This is a case where the installer of insulation and drywall in a new house in 1985, sued the owners (Watsons) for their failure to pay him for his work. The case was tried and the jury returned a verdict of actual damages for the plaintiff, and attorney fees in the amount of $3,000. The damages verdict for plaintiff is not appealed from; the appellant’s only enumeration of error is that the trial court erred in entering a j.n.o.v. striking the attorney fees.

The plaintiff-appellant specifically pled and prayed for attorney fees for the defendants Watsons’ bad faith. During the course of the trial, the defendants Watsons moved for a directed verdict on the issue of attorney fees for bad faith, because “there was a genuine controversy [the absence of] which is the prerequisite or the sine qua non in order to substitute [attorney fees]—.” The trial judge denied defendants’ motion, saying it was a jury issue, “albeit somewhat vague,” upon which he could not encroach.

The defendants subsequently made a motion j.n.o.v. to strike the $3,000 attorney fee award, arguing again that the existence of a bona fide controversy in the case precluded an award of attorney fees for bad faith. The trial judge granted the motion j.n.o.v., holding: “The evidence adduced . . . shows that there was a bona fide dispute between the parties as to whether or not defendants were indebted to the plaintiff for the principal amount prayed for.” The court then found there was no evidence of bad faith on the part of the defendants in defending the claim, but given the misapprehension of law below that a bona fide dispute precludes a finding of bad faith, this holding that there was no evidence of bad faith cannot be taken literally. Held:

There was some evidence of bad faith on the part of defendants Watsons, as the trial court itself held in denying defendants’ motion for directed verdict and sending the issue to the jury. The'gist of the ruling below, in later striking the attorney fees by j.n.o.v., seems to be that if a bona fide controversy exists as to liability, and there has been no stubborn litigiousness by raising an invalid defense, there can be no “bad faith” authorizing attorney fees under OCGA § 13-6-11. In so concluding, the trial court relied heavily upon the statement in Ostrom v. Kapetanakos, 185 Ga. App. 728, 730 (365 SE2d 849), that: “[T]here existed a bona fide controversy as to appellee’s performance under the contract and as to the extent to which appellants were contractually liable. . . . Accordingly, appellants were not without a defense. . . . If a recovery of attorney’s fees was authorized in this case, attorney’s fees would be recoverable in any breach of contract action wherein the plaintiff prevailed notwithstanding the existence of an actual controversy and the defendant’s presentation of a viable but unsuccessful defense. Accordingly, ‘(u)nder the facts of this case, we conclude that it was error for the trial court to submit to the jury the issue of attorney[’s] fees in that there was no evidence to support such a verdict.’ Turner v. Wilmouth, 161 Ga. App. 2, 3 (2) (288 SE2d 839) (1982).” (Emphasis supplied.)

In Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 750-754 (266 SE2d 531), we raked thoroughly over the gross misconception that the existence of a bona fide dispute or controversy has an absolute logical connection to whether there has been bad faith in the defendant’s dealings with the plaintiff. Although there be clearly a bona fide controversy as to liability or amount of liability, not only may a party still be intransigently stubbornly litigious, causing a great deal of unnecessary trouble and expense, but the jury might well, and with perfect logic, find that despite some grounds for bona fide dispute as to liability, the defendant is not only liable, but that in addition he acted in the most atrocious bad faith in his dealing with the plaintiff. See id. pp. 753-754.

We said nothing to the contrary in Ostrom, supra. In that case, everything that was said at page 730 concerning the impropriety of a recovery of attorney fees where there is a bona fide controversy, referred in fact to the absence of stubborn litigiousness, which “ ‘refers to situations where a defendant forces suit where no “bona fide controversy” exists. [Cit.]”’ Id. p. 730.

In Ostrom, we did not say that where there is a genuine dispute there can be no “bad faith.” We merely found in that case that there was no evidence or element of bad faith in defendant’s mere refusal to pay. This is what distinguishes Ostrom from this case. The trial court here, in first denying defendants’ motion for directed verdict, conceded there was evidence of bad faith of defendants, “albeit somewhat vague,” and he gave the matter to the jury, which decided as fact that there was bad faith to support attorney fees in this case. That being their finding of fact upon the matters set before them, who are we to say the jury’s conscience on the issue of bad faith was wrong? In such cases, both the trial court and the appellate court are bound to construe the evidence in favor of the jury’s verdict. United Fed. S & L Assn. of Waycross v. Connell, 166 Ga. App. 329, 330-331 (304 SE2d 131).

In granting j.n.o.v. below, the trial court evidently concluded there could be, as a matter of law, no evidence of bad faith because there was a bona fide dispute as to liability. This was incorrect. Certainly there was some dispute made as to whether the plaintiff appellant performed the work properly and whether the defendants owed the money; but once the jury put an end to that dispute, why may it not then decide the defendants also acted in bad faith? The jury found this result logical and so do we. Nothing in Ostrom, supra, or in Georgia-Car. Brick Co., supra, or any of the casés cited therein, actually suggests a contrary analysis, and in Georgia-Car. Brick Co., we expressly rejected it.

The award of attorney fees should be reinstated.

Judgment non obstante veredicto reversed.

Banke, P. J., concurs. Beasley, J., concurs specially.