Brunswick Floors, Inc. v. Shuman, 74687

• Decision Date: 04 December 1987
• Docket Number: No. 74687,74687
• Citation: 185 Ga.App. 362,364 S.E.2d 96
• Parties: BRUNSWICK FLOORS, INC. v. SHUMAN et al.
• Court: Georgia Court of Appeals

Page 96

364 S.E.2d 96

185 Ga.App. 362

BRUNSWICK FLOORS, INC. v. SHUMAN et al.

No. 74687.

Court of Appeals of Georgia.

Dec. 4, 1987.

Rehearing Denied Dec. 17, 1987.

Certiorari Denied Feb. 5, 1988.

John T. McKnight, Jr., Brunswick, for appellant.

Richard D. Phillips, Ludowici, O. Dale Jenkins, Brunswick, for appellees.

BANKE, Presiding Judge.

The appellees, Iona and Gordon Shuman, contracted with the appellant, Brunswick Floors, Inc., for the installation of new carpet in their home, paying the appellant $1,500 down on a total contract price of $4,029. After the installation had begun, the appellees expressed dissatisfaction with the way the work was being performed and instructed the appellant to stop work pending an acceptable resolution of the dispute. Two days later, the appellant returned to the appellees' home and completed the installation; however, the appellees continued to be disappointed with the appearance of the carpet and refused to pay the balance due on the contract. The appellant filed the present action to recover that balance. The appellees responded with a counterclaim seeking $100,000 in actual damages, $100,000 in punitive damages, and an unspecified amount of attorney fees, based on the appellant's alleged misconduct in the transaction and the alleged defects in the installation work. The trial court directed a verdict in favor of the appellant with respect to the punitive damages claim; and a jury subsequently awarded the appellees $6,000 on the remainder of their counterclaim, while awarding the appellant nothing on the main claim. This appeal followed. Held:

1. The appellant contends that the trial court erred in submitting the issue of attorney fees to the jury. An award of attorney fees as expenses of litigation will be upheld where there is any evidence to support a finding that the party from whom the fees are sought was stubbornly litigious, caused the prevailing party unnecessary trouble or expense, or acted in bad faith. See OCGA § 13-6-11; Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676, 266 S.E.2d 796 (1980); Jackson v. Brinegar, Inc., 165 Ga.App. 432, 436, 301 S.E.2d 493 (1983); Thibadeau Co. v. McMillan, 132 Ga.App. 842, 209 S.E.2d 236 (1974). Pretermitting whether there was any evidence of such conduct on the part of the appellant in this case, there clearly was no evidence from which the jury could have assessed the amount of attorney fees incurred by the appellees as expenses of this litigation. While the appellees did present opinion testimony from a practicing attorney to the effect that a reasonable attorney fee for the work done in the case would be "probably between four and five thousand dollars," the law requires evidence of "the actual costs of the attorney" as well as evidence of the reasonableness of those costs. Brannon Enterprises v. Deaton, 159 Ga.App. 685, 686, 285 S.E.2d 58 (1981); Sun v. Langston, 170 Ga.App. 60, 62(3), 316 S.E.2d 172 (1984). This is not to say that the fee must actually have been paid prior to trial; however, it would be incongruous to interpret OCGA § 13-6-11 as authorizing a claimant to recover, as "expenses of litigation," more attorney fees than he had actually incurred in connection with the litigation.

As no evidence whatever was introduced at trial from which the jury could have determined the amount of attorney fees actually incurred by the appellees in connection with this litigation, and as it appears from the transcript that the appellant's counsel specifically argued in support of his motion for directed verdict that "[t]here must also be evidence produced to guide the jury in determining the amount of damages to be awarded as attorney fees," we conclude that the trial court erred in denying the appellant's motion for directed verdict with respect to the claim for attorney fees.

2. The appellant contends that the trial court erred in allowing a real estate broker called by the appellees to testify as an expert on the issue of the alleged diminution in the value of their home caused by the faulty carpet installation. Generally speaking, the question of whether a witness is qualified to testify as an expert is addressed to the discretion of the trial court, Dept. of Transp. v. Great Southern Enterprises, 137 Ga.App. 710, 712, 225 S.E.2d 80 (1976), the exercise of which will not be disturbed unless it has been manifestly abused. Benson v. Tucker, 160 Ga.App. 217, 218, 286 S.E.2d 485 (1981). The witness at issue was a licensed real estate broker who was actively engaged in buying and selling real estate, as well as in the performance of real estate appraisal work. Clearly, the trial court did not manifestly abuse its discretion by allowing this witness to testify as an expert. We do not reach the appellant's additional contention on appeal that this witness's opinion was speculative and without probative value because that issue was never properly raised before the trial judge by motion to strike, motion for directed verdict, or otherwise. Cf. Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga.App. 468, 469, 287 S.E.2d 257 (1981).

3. The appellees' motion for an assessment of damages against the appellant for filing a frivolous appeal is necessarily denied.

Judgment reversed.

BIRDSONG, C.J., McMURRAY, P.J., and BENHAM, J., concur.

SOGNIER, J., concurs in judgment only.

DEEN, P.J., and CARLEY, POPE and BEASLEY, JJ., dissent.

CARLEY, Judge, dissenting.

I must respectfully dissent from Division 1 of the majority's opinion wherein it holds that, in order for a recovery of attorney's fees to be authorized, there must be "evidence of 'the actual costs of the attorney' as well as evidence of the reasonableness of those costs. Brannon Enterprises [, Inc.] v. Deaton, 159 Ga.App. 685, 686, 285 S.E.2d 58 (1981); Sun v. Langston, 170 Ga.App. 60, 62(3), 316 S.E.2d 172 (1984)." (p. 363, 364 S.E.2d at pp. 97-98) There is no doubt that evidence of the amount of "the actual costs of the attorney," coupled with evidence that such amount was reasonable, will authorize a recovery of attorney's fees. I cannot, however, agree with the majority that this is the only way in which a plaintiff can meet his evidentiary burden and that a recovery of attorney's fees is dependent upon his production of evidence of "the actual costs of the attorney" and of the reasonableness thereof. Accordingly, I must respectfully dissent.

Neither of the two cases cited by the majority supports its holding in Division 1. It has long been the law of this State that a plaintiff cannot rely merely upon proof of the amount of actual costs incurred as attorney's fees as evidentiary support for an award under OCGA § 13-6-11. See Allen v. Harris, 113 Ga. 107, 108(4), 38 S.E. 322 (1901). "The plaintiff, by merely paying a given amount to his attorney, could not bind the defendants for this amount unless there were some evidence that the amount so paid was reasonable, and unless it was found so to be by the jury trying the case." Patterson & Co. v. Peterson, 15 Ga.App. 680, 684(4), 84 S.E. 163 (1914). Brannon Enterprises v. Deaton, supra, and Sun v. Langston, supra, are merely two decisions from a long line of cases holding that proof of actual costs unaccompanied by proof of the reasonableness thereof is not a sufficient evidentiary basis for a recovery of attorney's fees. Neither case supports the majority's proposition that proof of actual costs and the reasonableness thereof is the only evidentiary foundation which will support a recovery of attorney's fees.

There is no authority to support the majority's holding in Division 1. The existing authority is to the contrary. The law recognizes that there is no requirement for the plaintiff to have "paid the attorney it was necessary for him to employ. In the absence of any agreement as to the amount of the fee, the attorney is entitled to compensation quantum meruit. The plaintiff's right to recover would not be defeated by reason of the fact that he had not paid his counsel fees at the time of the trial, where evidence was introduced as to the value of the services rendered, which authorized the amount returned by the jury in its verdict." O'Neal v. Spivey, 167 Ga. 176, 177(3), 145 S.E. 71 (1928). Thus, assuming that attorney's fees are otherwise shown to be recoverable in a case, the plaintiff therein cannot recover an amount greater than the evidence shows that he is legally obligated to pay his attorney. He can, however, recover so much of that amount as is shown to be reasonable and regardless of whether it has actually been paid. If plaintiff's evidence shows an express contract with his counsel for a definite amount of attorney's fees, he will be entitled to recover that amount to the extent that the contract price is otherwise shown to be reasonable. See Allen v. Harris, supra; Patterson & Co. v. Peterson, supra; Brannon Enterprises v. Deaton, supra; Sun v. Langston, supra. If, on the other hand, ...