Altamaha Convalescent Center, Inc. v. Godwin

• Decision Date: 28 January 1976
• Docket Number: No. 3,No. 51620,51620,3
• Citation: 137 Ga.App. 394,224 S.E.2d 76
• Parties: ALTAMAHA CONVALESCENT CENTER, INC. v. J. E. GODWIN
• Court: Georgia Court of Appeals

Page 76

224 S.E.2d 76

137 Ga.App. 394

ALTAMAHA CONVALESCENT CENTER, INC. v. J. E. GODWIN.

No. 51620.

Court of Appeals of Georgia, Division No. 3.

Jan. 28, 1976.

Syllabus by the Court

This decision represents the second appearance of this case in the appellate courts. Plaintiff Godwin originally filed suit against Altamaha Convalescent Center and H. J. Westberry, seeking specific performance of an alleged oral contract for the sale of corporate stock, damages for breach of contract, and also seeking recovery of money loaned to the corporate defendant. The trial court sustained a plea of the statute of frauds as to the contract for the sale and purchase of stock in the corporation, and the plaintiff appealed. Defendant Westberry cross-appealed from the overruling of his motion to dismiss for failure to state a claim, motion to strike the prayer for specific performance, and certain other motions. Defendant Altamaha Convalescent moved to dismiss for insufficient service and cross-appealed from the order of the trial judge continuing a temporary restraining order pending the plaintiff's appeal. The Supreme Court affirmed the sustaining of defendant Westberry's plea of the statute of frauds, affirmed the overruling of Westberry's motion to dismiss for failure to state a claim, reversed the overruling of Westberry's motion to strike the prayer for specific performance and affirmed the temporary restraining order against the corporate defendant. Godwin v. Westberry, 231 Ga. 492, 202 S.E.2d 402. Thereafter the case retuned to trial and the plaintiff abandoned his action against the individual defendant Westberry and proceeded solely against the corporate defendant. At the close of the evidence the trial judge granted the plaintiff's motion for directed verdict against Altamaha Convalescent in the amount of $25,000. The question of attorney fees was submitted to the jury and the plaintiff was awarded $6,000. It is from this award of attorney fees that the defendant brings this appeal.

Albert E. Butler, Jesup, for appellant.

Gibbs & Leaphart, Alvin Leaphart, Jesup, for appellee.

DEEN, Presiding Judge.

1. The defendant objects to the trial court's allowance of plaintiff's post-pretrial conference amendment to his complaint alleging that the defendant had acted in bad faith, had been stubbornly litigious and had caused the plaintiff unnecessary trouble and expense. Code Ann. § 81A-115(a) provides that a pleading may be amended as a matter of course and without leave of court at any time before the entry of a pretrial order; thereafter, an amendment requires leave of court or written consent of the adverse party. Code Ann. § 81A-116(2) notes that one of the considerations to be weighed at the pretrial conference is the necessity or desirability of amendments to the pleadings. The plaintiff argues that no pretrial order was ever signed, that it was therefore never entered, and that he was free to amend his complaint; no pretrial order, signed or unsigned, appears in the record. The trial judge recalled discussing the amendment prior to the pretrial conference and noted, 'Well, I would have allowed it and I will allow it.' Therefore, if there were no entry of a pretrial order, the amendment was proper as a matter of course, even though offered after the pretrial conference; it is the entry of the order and not the conference which is determinative. Code Ann. § 81A-115(a). If in fact such an order were entered by the trial judge, he clearly gave through his language quoted above, leave to so amend. There was no error. Western & Atlantic R. Co. v. Smith, 15 Ga.App. 289(1), 82 S.E. 906.

2. The defendant urges error was committed when the trial judge charged on attorney fees, in that it was not warranted by the evidence. Code § 20-1404 permits the award of attorney fees if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. It is only necessary to the plaintiff's recovery that he show any one of these three conditions exists. Employers Liability Assurance Corp., Ltd. v. Sheftall, 97 Ga.App. 398(5), 103 S.E.2d 143. This suit is one for the recovery by the plaintiff of an indebtedness owed him by the defendant. There is no evidence that transactions out of which the indebtedness arose were entered into in bad faith or procured by fraud; attorney fees would not be recoverable under the first condition of Code § 20-1404. McKenzie v. Mitchell, 123 Ga. 72(1), 51 S.E. 34. Thus in order to recover attorney fees there must be some evidence of the defendant's stubborn litigiousness or of its causing unnecessary trouble and expense to the plaintiff. The record here reveals that the defendant never raised a defense to the suit for indebtedness and the trial judge directed a verdict for the full amount prayed for; the defendant does not contest this. Indeed, the chairman of the board of the defendant testified that there was 'no question' that the corporation owed the plaintiff $25,000 and that it was due and payable in 1973 as alleged. Mere refusal to pay is not equivalent to stubborn litigiousness if the claim is disputed. Murphy v. Morse, 96 Ga.App. 513, 100 S.E.2d 623. There is nothing in the record to show the plaintiff's claim against the corporation was ever disputed. We believe this evidence is sufficient to warrant a charge on attorney fees and that a jury should be allowed to find whether the defendant has been stubbornly litigious. Patterson & Co. v. Peterson, 15 Ga.App. 680(4), 84 S.E. 163. We also believe this evidence would be sufficient to warrant the submission to the jury of the question of the defendant's causing unnecessary trouble and expense to the plaintiff. "Where there is a bona fide controversy for the tribunals to settle, and the parties cannot 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.' Tift v. Towns, 63 Ga. 237, 242. The key to the test is 'bona fide controversy.' Where none exists, then forcing a plaintiff to resort to the courts in order to collect is plainly causing him 'unnecessary trouble and expense." Buffalo Cab Co. v. Williams, 126 Ga.App. 522, 524, 191 S.E.2d 317, 319. 'We do not believe the trial courts will find any difficulty in determining whether a genuine dispute exists-whether of law or fact, on liability or amount of damages, or on any comparable issue. Where none is found, it may authorize the jury to award the expenses of litigation.' Id. p. 525, 191 S.E.2d p. 319.

3. Having determined that the plaintiff's procedure for obtaining attorney fees was correct and that the evidence supports a finding that such an award could be made, we...