Carpet Transport, Inc. v. Dixie Truck Tire Co., 75487
| Citation | 363 S.E.2d 840,185 Ga.App. 181 |
| Decision Date | 03 December 1987 |
| Docket Number | No. 75487,75487 |
| Parties | CARPET TRANSPORT, INC. v. DIXIE TRUCK TIRE COMPANY. |
| Court | Georgia Court of Appeals |
Charles G. Price, Rome, for appellant.
William H. Boling, Jr., Rome, for appellee.
Appellee Dixie Truck Tire Company (Dixie) filed suit on February 14, 1986, against appellant Carpet Transport, seeking to recover on an open account which was due and payable on April 10, 1985, plus interest and expenses of litigation for bad faith and stubborn litigiousness. It was undisputed that on February 28, 1985, appellant received delivery of 280 tractor-trailer truck tires and 300 tire tubes from Dixie having a total value of $47,845, but that no part of the agreed-upon purchase price had been paid. Under the warranty agreement applicable to the sales transaction between the parties, Dixie issued credits for defective tires previously sold to appellant; in the instant case a set-off of $6,314.63 was credited, leaving a balance owing of $41,519.37. Appellant claimed in response to demands for payment on the invoice that it was entitled to more than the amount of set-off computed by Dixie and refused to make any payments for the tires ordered, delivered, and accepted.
At trial Dixie submitted documentary evidence and testimony of witnesses who personally inspected the defective tires, establishing the amount due for the tires ordered and delivered as well as the basis for the credit given for the defective tires returned for adjustment. Appellant prior to litigation had claimed that it was owed a $9,000 set-off in addition to the $6,314.63 already credited by Dixie. In defensive pleadings and at the pretrial conference appellant asserted that it was entitled to $21,000 in total set-offs, admitting that $20,000 was owed under the contract. In its statement of the case submitted to the court for reading to the jury, however, appellant contended that it had submitted 183 tires worth $250 each, which should have been adjusted at 100 percent of their value of $250 each, or $45,750. Appellant's president and co-owner also testified variously at trial that the credits claimed were "right around $40,000"; that $61,000 "sounded right"; and that the correct amount "would be close to $47,000." Appellant presented no written records or other proof as to the number of tires submitted for adjustment, whether they were qualified for adjustment under the warranty, the type of tires, or the nature of the defects. Although appellant's president testified that his company bought various types of tires from Dixie over a period of several years, he contended that the 183 tires he claimed were submitted for adjustment were all the most expensive $250 radial tires. His testimony was based primarily on the recollection of the truck driver who unloaded the tires at Dixie, but the driver did not testify. Appellant's president further conceded that some of the tires submitted for credit could have been purchased from another source. Nor could Dixie produce any record of the number of tires received from Carpet Transport, the number of tires sent to Goodyear to be adjusted, or the number of tires disposed of without authorization.
The trial court denied Dixie's motion for directed verdict and submitted all issues to the jury, which returned a verdict for the full amount claimed on the account and as pre-judgment interest, costs, expenses of litigation, and attorney fees. This appeal is from the denial of appellant's motion for new trial. Dixie has filed a motion to impose a penalty for frivolous appeal pursuant to OCGA § 5-6-6.
1. Appellant contends that the trial court erred in submitting the issue of attorney fees to the jury because OCGA § 13-6-11 negates the possibility of such an award where there is a bona fide controversy to be decided between the parties. At issue is whether a contracting party is entitled to legally adjudicate a dispute between two entities, i.e., whether there was a verbal guarantee from an officer of a firm soliciting business. Ideal Pool Corp. v. Champion, 157 Ga.App. 380, 383, 277 S.E.2d 753 (1981). A plaintiff has the burden of establishing one of these three bases before a jury can award attorney fees, and on appeal there must be some evidence of one of the three statutory conditions before an appellate court should approve the award. Franchise Enterprises v. Ridgeway, 157 Ga.App. 458, 460, 278 S.E.2d 33 (1981). Although appellee alleged all three bases for attorney fees in the complaint, the record is devoid of any evidence of bad faith.
When bad faith is not in issue and only the elements of stubborn litigiousness or unnecessary trouble and expense are relied upon, "if a bona fide controversy clearly exists between the...
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Golden Peanut Co. v. Bass
...v. Kincade, supra; Kittles v. Kittles, 187 Ga.App. 537, 539-540(5), 370 S.E.2d 803 (1988); and Carpet Transport v. Dixie Truck Tire Co., 185 Ga.App. 181, 183-184(2), 363 S.E.2d 840 (1987), and any like opinions, were incorrectly decided and should no longer be followed. We need not overrule......
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French v. Dilleshaw
...the award of attorney fees in this case, and that portion of the judgment must be reversed. See Carpet Transport v. Dixie Truck Tire Co., 185 Ga.App. 181, 183(1), 363 S.E.2d 840 (1987), overruled on other grounds, Golden Peanut Co. v. Bass, 249 Ga.App. 224, 233–234(2), 547 S.E.2d 637 (2001)......
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McNair v. McNair, A17A0961
...9–15–14 (b), although the record reflected lengthy, acrimonious litigation between the parties.).19 Carpet Transport v. Dixie Truck Tire Co., 185 Ga.App. 181, 183 (1), 363 S.E.2d 840 (1987) (citation and punctuation omitted; emphasis in original).20 See The Gibson Law Firm v. Miller Built H......
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Hester Enterprises, Inc. v. Narvais, A90A2122
...shows a bona fide dispute as to the amount of damages appellees were authorized to recover. See Carpet Transport v. Dixie Truck Tire Co., 185 Ga.App. 181, 182(1), 363 S.E.2d 840 (1987). Moreover, appellees do not point out, and we do not find, any evidence of bad faith. It follows that the ......