Ginsberg v. Termotto

• Decision Date: 13 June 1985
• Docket Number: No. 70612,70612
• Citation: Ginsberg v. Termotto, 333 S.E.2d 120, 175 Ga.App. 265 (Ga. App. 1985)
• Parties: GINSBERG v. TERMOTTO.
• Court: Georgia Court of Appeals

Page 120

333 S.E.2d 120

175 Ga.App. 265

GINSBERG v. TERMOTTO.

No. 70612.

Court of Appeals of Georgia.

June 13, 1985.

Rehearing Denied June 28, 1985.

Louisa Abbot, Savannah, for appellant.

Kenneth L. Royal, Savannah, for appellee.

BANKE, Chief Judge.

The appellee, Sandy S. Termotto, filed this action against the appellant, Linda G. Ginsberg, to obtain reimbursement for certain utility payments he had allegedly made for her benefit over a period of several years. A jury awarded him $6,000 in "special damages," $3,000 in "general damages," and $3,000 in attorney fees. This appeal followed.

Most of the salient facts are undisputed. The appellant's late husband owned two adjacent apartment buildings in Savannah, Georgia, which shared a common hot water system. In 1976, he contracted to sell one of these buildings to the appellee but died prior to the closing. The closing nevertheless proceeded, with the appellant being substituted as seller in place of her husband.

At some point prior to the closing, it was discovered that the building which was to be retained by the appellant contained the hot water supply system for both buildings. In order to consummate the sale, the real estate agents and closing attorneys representing the two parties negotiated an agreement giving the appellee a 25-year lease on the boiler room and conveying to him the fixtures located therein. Because the two buildings shared a common water meter, an agreement was also reached whereby the appellee was to pay approximately 2/3 of the water and sewerage bills for the two buildings, as well as 2/3 of the refuse collection bills, and the appellant was to pay approximately 1/3 of such expenses. Although the appellant was not personally involved in the negotiation of these agreements, she does not deny that the attorneys and real estate agents representing her at the time were authorized to enter into the agreements on her behalf. The two buildings were managed by the same realty company for a substantial period of time following the sale, and that company deducted the expenses for water, sewerage, and refuse from the parties' rental proceeds in accordance with the 2/3- 1/3 arrangement.

Unbeknownst to the parties or any of their agents, the two buildings also shared a common gas meter. No mention of the gas system was made during the closing, nor was any agreement made by the parties to split the gas bills, which were placed in the appellee's name. Consequently, he alone paid for all the gas utilized by the tenants of both buildings until 1980, when for reasons appearing below, the appellant installed her own separate gas and hot water system.

Following her husband's death, the appellant, who was employed on the staff of Dental Magazine, published two articles in that magazine concerning some of the experiences she had undergone in connection with her husband's death. Feeling that these articles presented the Savannah dental community in an unfavorable light, the appellee, who is a member of that community, called the publisher of the magazine to complain. Soon thereafter, in July of 1979, the appellant instructed the realty company which managed the two properties to stop deducting her 1/3 share of the water, sewerage, and refuse collection bills from the gross rentals collected from the tenants in her building. The situation with regard to the gas meter was discovered soon thereafter. The appellee subsequently turned off the water to the appellant's apartments on several occasions, demanded that she pay for all utilities furnished to her building, and ultimately disconnected her building from the gas and hot water system altogether, with the result that the appellant was forced to install a separate system. Held:

1. The appellee was not entitled to restitutionary damages for unjust enrichment based on his payment of the bill for gas furnished to the appellant's building. The evidence discloses without dispute that both she and the appellee were unaware that such a benefit was being conferred on her, and the law implies a promise to pay for a benefit conferred by one party upon another only where the benefit is accepted by the latter. See OCGA § 9-2-7; First Nat. Bank & Trust Co. of Vidalia v. McNatt, 141 Ga.App. 6, 8, 232 S.E.2d 356 (1977). "Where money is paid on the debt of another by a person who is under no legal or moral obligation to pay the debt, and he does not do so at the instance, request, or consent of the debtor, and the debtor does not ratify his act as one done in his behalf, or does not otherwise become liable therefor, it is a voluntary payment, and the person making the payment cannot recover from the debtor." Hartley v. Hartley, 50 Ga.App. 848(1), 179 S.E. 245 (1935); Jennings v. Stewart, 106 Ga.App. 689(2), 127 S.E.2d 842 (1962). Accord Beavers v. Weatherly, 250 Ga. 546, 548, 299 S.E.2d 730 (1983); Bryant v. Guaranty Life Ins. Co., 40 Ga.App. 573, 579, 150 S.E. 596 (1929). Compare Clay v. Littlefield, 144 Ga.App. 88(1), 240 S.E.2d 254 (1977).

2. With regard to the remaining utility expenses, we note that because the appellant's obligation to pay was undisputedly governed by an express contract, any recovery of damages by the appellee based on his payment of those expenses must be governed by that contract. "[T]here cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law interposes and raises a promise. (Cit.)" Fonda Corp. et al. v. Southern Sprinkler Co., 144 Ga.App. 287, 292(3), 241 S.E.2d 256 (1977).

3. In view of the fact that a "bona fide controversy" did exist with respect to the appellee's claim for payment of the gas bills, and in view of the fact that this portion of the claim constituted the lion's share of the appellee's total claim, it cannot be said that the appellant was stubbornly litigious or that she caused the appellee unnecessary trouble and expense by defending the suit. Consequently, the award of attorney fees and expenses of litigation to the appellee pursuant to OCGA § 13-6-11 was not authorized. Accord Jordan Bridge Co. v. I.S. Bailey, Jr., Inc., 164 Ga.App. 124, 126-127, 296 S.E.2d 107 (1982). See also Buffalo Cab Co. v. Williams, 126 Ga.App. 522, 524, 191 S.E.2d 317 (1972); ...