Anderson v. Cayes , 278 Ga. App. 592 ( 2006 )

SMITH, Presiding Judge.

This is an appeal from a jury verdict and judgment in favor of plaintiff Kristen Cayes in a personal injury action arising from a rear-end collision. In his sole enumeration of error, defendant Ronald Anderson appeals from the jury’s separate award of the costs of litigation under OCGA § 13-6-11, contending that the evidence did not support such an award and that the trial court erred in denying his motion for directed verdict on this issue. We agree and reverse.

OCGA § 13-6-11 permits the jury to award attorney fees “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” If a bona fide controversy exists, the plaintiff may recover attorney fees under this Code section only if the defendant has acted in bad faith in the underlying transaction. Issues regarding the existence of a bona fide controversy or a defendant’s bad faith are generally for the jury to decide. Finally, an award of attorney fees under OCGA § 13-6-11 should be affirmed if there is any evidence to support it.

(Citations omitted.) Dept. of Transp. v. Hardin-Sunbelt, Joint Venture, 266 Ga. App. 139, 146 (4) (596 SE2d 397) (2004).

Here, Cayes acknowledged that Anderson did not act in bad faith, contending only that he was stubbornly litigious and caused her unnecessary trouble and expense.

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 pursuant to OCGA § 13-6-11 if a bona fide controversy clearly exists between the parties. Thus, in a case where bad faith is not an issue, attorney fees are not authorized under OCGA§ 13-6-11 if the evidence shows that a genuine dispute exists — whether of law or fact, on liability or amount of damages, or on any comparable issue.

(Citations and punctuation omitted.) M & H Constr. Co. v. North Fulton Dev. Corp., 238 Ga. App. 713, 714 (1) (519 SE2d 287) (1999). “[I]t is for the jury to determine whether there was a bona fide controversy, unless the facts preclude such a finding as a matter of law.” (Citation and punctuation omitted.) Webster v. Brown, 213 Ga. App. 845, 846 (2) (446 SE2d 522) (1994). Resolution of this appeal therefore depends upon whether the evidence presented a bona fide controversy as a matter of law.

As the trial court noted, the facts of this case do not align precisely either with those of Webster, supra, or those of Daniel v. Smith, 266 Ga. App. 637 (597 SE2d 432) (2004). Webster and Daniel consider the existence of a bona fide controversy in automobile collision suits, and they reach opposite conclusions. But in light of the general law in this area, the facts of this case are closer to those of Webster and show a bona fide controversy with respect to liability.

The major distinction between this case and Daniel is that the defendant in that case would still have been liable, even had the accident occurred as he contended. Id. at 639 (1). But here, the driver of the car in which Cayes was riding testified that they had been stopped in traffic for “a moment or two” when Anderson’s truck approached and “slammed into” their vehicle from behind. Anderson testified, however, that he was preparing to slow down for traffic when one or two cars, including the car in which Cayes was riding, swerved suddenly into his lane and that he was unable to avoid them. SeeOCGA§ 40-6-123 (a) (driver may change lanes only when possible “with reasonable safety”). This is a classic example of a “swearing contest” which must be resolved by a jury.

Cayes seems to ask that we weigh the evidence here, relying on the assertion that multiple witnesses support her version of events, while Anderson produced no other witnesses to support his account. On cross-examination, however, Cayes acknowledged that she was “not paying that much attention” and could not describe how the collision occurred. The driver of Cayes’s vehicle is not an independent witness but a long-time friend of Cayes. In addition, his testimony could be considered self-serving because Anderson’s testimony points to some degree of negligence on his part. The police officer had no independent recollection of events and simply testified from his police report, which stated that Anderson told the officer that he could not see because the sun was in his eyes. The officer did not charge Anderson with any offense, unlike the defendants in Webster and Daniel, both of whom pled guilty to traffic charges.

Cayes also contends that Anderson changed his story, but his deposition testimony is consistent with his testimony at trial. The only substantial variation is between the account in the police report, of which the officer has no independent recollection, and Anderson’s testimony. Anderson consistently denied telling the police officer that the sun was in his eyes and indeed denied speaking with the officer at all about how the accident occurred. He offers as a possible explanation that the officer mistakenly attributed to him the statement of a fourth driver involved that the sun was in her eyes.

This conflict in the evidence is unlike that in cases such as Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80 (390 SE2d 31) (1990), or Jackson v. Brinegar, Inc., 165 Ga. App. 432 (301 SE2d 493) (1983). In Spring Lake, the defendant completely altered its defense during the litigation. In Jackson, the defendant first represented to his lender that construction of a home was completed to his satisfaction, but did not remember until trial “numerous construction defects which he sought to set off against the claims of the plaintiff.” Id. at 436 (2). The conflict between Anderson and Cayes more closely resembles the dispute in Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746 (365 SE2d 540) (1988). In Backus, we reversed the trial court’s denial of a motion for new trial on the issue of attorney fees, finding the evidence “in sharp conflict,” id. at 747 (1), even though plaintiffs alleged that defendant’s agent made certain admissions to them, an allegation the defendant denied. Id. at 746-747.

We must be mindful of the provision of our Constitution that “[n] o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII.

This is a privilege granted to the defendant as well as the plaintiff. Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.

(Citations and punctuation omitted.) West v. Haas, 191 Ga. 569, 575 (13 SE2d 376) (1941). We must be cautious about extending the scope of OCGA § 13-6-11 to those cases in which liability is disputed on issues of negligence.

The evidence of record in the instant case clearly demonstrates that a bona fide controversy does exist as to whether the collision was caused by the negligence of appellant or the negligence of appellee or the negligence of both. It is the general law of this state that questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly issues for jury resolution, and a court should not remove the issues from the jury except in plain and indisputable cases. Accordingly, a genuine dispute does exist in the instant case.

(Citations and punctuation omitted.) Brown v. Baker, 197 Ga. App. 466, 469 (4) (398 SE2d 797) (1990) (physical precedent only).¹ Here, the existence of a bona fide dispute and a reasonable defense at trial precludes the award of attorney fees and expenses of litigation under OCGA § 13-6-11. The trial court erred in failing to grant Anderson’s motion for directed verdict on the issue of attorney fees.

Judgment reversed in part as to attorney fees only.

Ruffin, C. J., Andrews, P. J., Johnson, P. J., Barnes, Miller, Ellington, Phipps and Mikell, JJ., concur. Blackburn, P. J., Adams and Bernes, JJ., dissent.

1 While Baker is physical precedent only, one judge having concurred in the judgment only, we have cited it with approval and without comment as to its precedential value on several occasions. See Daniel, supra at 638; M & H Constr. Co., supra at 714.