G. E. C. Corp. v. Levy

• Decision Date: 07 July 1972
• Docket Number: No. 2,No. 46875,46875,2
• Citation: 191 S.E.2d 461,126 Ga.App. 604
• Parties: G.E.C. CORPORATION et al. v. Ted LEVY
• Court: Georgia Court of Appeals

Page 461

191 S.E.2d 461

126 Ga.App. 604

G.E.C. CORPORATION et al. v. Ted LEVY.

No. 46875.

Court of Appeals of Georgia, Division No. 2.

July 7, 1972.

Joseph S. Crespi, Atlanta, for appellants.

Heyman & Sizemore, William H. Major, Thomas H. Nickerson, Atlanta, for appellee.

Syllabus Opinion by the Court

QUILLIAN, Judge.

This is the third appearance of the instant case in this court. See Levy v. G.E.C. Corporation, 117 Ga.App. 673, 161 S.E.2d 339, and G.E.C. Corporation v. Levy, 119 Ga.App. 59, 166 S.E.2d 376. The plaintiff, Ted Levy, brought the action in Fulton Superior Court against G.E.C. Corporation and A. T. Ehlers. The complaint originally contained three counts. In the first count, the plaintiff sought to foreclose an architectural lien for the reasonable value of his services in the amount of $49,000, as well as $100,000 punitive damages, and $15,000 attorney's fees. In the second count, the plaintiff sought to recover $49,000 as damages, $100,000 as punitive damages, and $15,000 as attorney's fees for conversion of the plaintiff's architectural plans. In the third count, the plaintiff sought to recover $49,000 damages, $100,000 as punitive damages, and $15,000 attorney's fees for common law copyright infringement.

In the original appearance of this case in this court, it was held that the plaintiff's claim for lien was not timely filed. Levy v. G.E.C. Corp., 117 Ga.App. 673, 677, 161 S.E.2d 339, supra. Subsequently, on motion for summary judgment, the plaintiff voluntarily dismissed Counts 2 and 3 of his complaint; however, the trial judge overruled the defendant's motion to dismiss Count 1. This ruling was affirmed by the Court of Appeals in G.E.C. Corp. v. Levy, 119 Ga.App. 59, 166 S.E.2d 376, supra, where it was held that the claim for a joint and several judgment for the reasonable value of architectual services rendered still remained even though the claim of lien failed. The defendants answered and filed a counterclaim seeking the recovery of $10,000 compensatory damages and $3,000 attorney's fees.

The case came on for trial before a judge and jury, at the conclusion of which the jury found against the defendants on their counterclaim and found in favor of the plaintiff in the amount of $20,000, plus $4,000 as attorney's fees.

The defendants filed a motion for new trial on the general grounds and by amendment added 19 special grounds (grounds 4-22). The trial judge overruled the motion for new trial and appeal was taken from that judgment. In this court the appellants enumerate as error the grounds of the motion for new trial and in enumerations of error 3-8 attack various instructions given to the jury which alleged error not included in the motion for new trial. In their brief to this court enumeration of error 22 has been abandoned. Held:

1. Grounds 4, 7 and 20 raise basically the issue that the verdict was excessive and not supported by evidence. The copious evidence introduced was conflicting. The defendants offered proof showing that the plans were practically worthless, while the plaintiff showed what the reasonable value of his services would be worth.

In this connection the defendants urge the rule: 'Where quantum meruit is an available remedy, 'value' means value to the owner rather than the cost of producing the result to be workman. It then becomes a jury question as to whether the owner has in fact been benefited by the work and, if so, to what extent.' Brumby v. Smith & Plaster Co. of Ga., 123 Ga.App 443, 444, 181 S.E.2d 303, 305. See City of Gainesville v. Edwards, 112 Ga.App. 672, 675, 145 S.E.2d 715. There was evidence that long after the defendants received the plans from the plaintiff he investigated and learned that the defendants were proceeding with construction; that the plans used to obtain the building permit coincided with the plaintiff's plans although the former had another's name on them; this was demonstrated by use of overlay of the plaintiff's plans on the plans actually used. Here the jury could have found that the defendants did utilize the plaintiff's services and drawings based on similarity of the plans that were used. Thus, the defendants would have benefited and could not contend that the plaintiff's plans were not of value to them within the meaning of the Brumby case, 123 Ga.App. 443, 181 S.E.2d 303, supra. 'The true question in such cases, where there is no express contract, is: What is the ordinary and reasonable charge made for such services by members of similar standing in the same profession?' Marshall v. Bahnsen, 1 Ga.App. 485, 486, 57 S.E. 1006; Noble v. Hunt, 95 Ga. 804, 806, 99 S.E.2d 345. See also 58 Am.Jur. 551, Work and Labor, § 48; 98 C.J.S. Work and Labor § 65b(1), p. 821. Plaintiff's testimony was that, based on the standard architect's fee, $48,600 was the value of his services. The jury found for him in the amount of $20,000 which was not excessive as a matter of law. While recognizing from a review of this extensive record that the preponderance of evidence might lie with the defendants, on appeal we can not hold that the verdict was without evidence to support it. Hence, grounds, 4, 7 and 20 are without merit.

2. In grounds 8, 9, 10 and 11 of the motion for new trial, the defendant contends that the allowance of attorney's fees and the failure to give certain charges in that regard constituted error. The basis of these contentions is that any bad faith did not occur at the inception of a contract and that therefore attorney's fees would not be recoverable. Furthermore, it is pointed out that although the plaintiff sued for $49,000, the jury only awarded him $20,000. Thus, the rule is alleged to be applicable. 'An award of attorney's fees . . . will not be granted where the defendant's liability as established by the fact-finding tribunal is substantially less than the amount sued for.' Simonton Construction Co. v. Pope, 95 Ga.App. 211(3c), 97 S.E.2d 590. See Crump v. Ojay Spread Co., Inc., 87 Ga.App. 250, 252, 73 S.E.2d 331.

Of course, Code § 20-1404 does not allow recovery for mere refusal to pay as pointed out in an exhaustive discussion of this topic in Edwards-Warren Tire Co. v. Coble, 102 Ga.App. 106, 111, 115, S.E.2d 852, in which cases holding that such bad faith referred only to bad faith in the entering into of the contract were disapproved. The opinion pointed out that bad faith could occur at the inception or in carrying out the provisions or obligations of the contract, that where a party acted to avoid payment under the terms of a contract that such breach constituted the transaction out of which the cause of action arose within the meaning of Code § 20-1404.

In Adams v. Cowart, 224 Ga. 210, 215, 160 S.E.2d 805, 809, the Supreme Court considered a question almost identical to that presented to this court. The court held: 'The defendants point out that the judge directed that the jury find against an injunction as to the use of one of the lots included in the prayers for injunction, and that the jury did not award any damages to the petitioners, and assert that these findings by the judge and jury show that they did not act in bad faith in resisting the action. The bad faith referred to in Code § 20-1404 pertains to the transaction out of which the cause of action arose rather than to the motive with which the defense is made. Traders' Ins. Co. v. Mann, 118 Ga. 381(7), 45 S.E. 426; B-X Corp. v. Jeter, 210 Ga. 250(3), 78 S.E.2d 790; Scott v. Dudley, 214 Ga. 565(4), 105 S.E.2d 752. In an action for injunctive relief and damages, where injunctive relief is granted, the failure of the jury to find damages would not prevent them from finding attorney's fees, where the evidence authorizes a determination that the defendants have acted in bad faith, been stubbornly litigious, or caused the petitioners unnecessary trouble and expense. See B-X Corp. v. Jeter, supra.' Here, based on the plaintiff's theory of the case, the defendant sought, in bad faith, to avoid paying the plaintiff the reasonable value of his services or at least to pay only a nominal amount for such services. The wrongful act was not in refusing to pay a certain sum but in attempting to avoid paying the value of the plaintiff's services. Thus, as in Adams v. Cowart, 224 Ga. 210, 160 S.E.2d 805, supra, although the plaintiff did not recover all that he sought he did recover a substantial amount under the jury verdict. Upon a showing of bad faith, plaintiffs were therefore entitled to recovery of attorney's fees.

Defendant makes an additional contention that in showing the value of professional services, the plaintiff included work performed by his attorneys on the appeal to this court which the plaintiff lost. See Levy v. G.E.C. Corporation, 117 Ga.App. 673, 161 S.E.2d 339, supra. Any error in this regard would be harmless since the jury returned a verdict for less than one-third of the attorney's fees which the plaintiff sought.

3. Ground 5 complains that the plaintiff failed to comply with a condition, that is that his plans were insufficient for obtaining a loan commitment. Whether preparation and delivery of the...