Graybill v. Attaway Constr. & Assocs., LLC, A17A0608

• Decision Date: 19 June 2017
• Docket Number: A17A0608
• Court: Georgia Court of Appeals
• Parties: GRAYBILL v. ATTAWAY CONSTRUCTION & ASSOCIATES, LLC.

341 Ga.App. 805

802 S.E.2d 91

GRAYBILL

v.ATTAWAY CONSTRUCTION & ASSOCIATES, LLC.

A17A0608

Court of Appeals of Georgia.

June 19, 2017

Barry Neal Middleton, John Andrew Tisdale, Evans, for Appellant.

David E. Hudson, George Gostin Robertson, Augusta, for Appellee.

Self, Judge.

In this contract dispute, homeowner Brannon Graybill ("Graybill") sued contractor Attaway Construction & Associates, LLC ("Attaway") for damages related to work Attaway performed during the remodeling of Graybill's residence. Following a bench trial, the Superior Court of Columbia County entered judgment in Attaway's favor, including an award of attorney fees pursuant to OCGA § 13-6-11. Graybill appeals and, for the reasons that follow, we affirm in part and reverse in part.

Evidence adduced at trial revealed that Graybill and Attaway entered into an October 1, 2014 contract for residential remodeling work at Graybill's residence. The contract listed the cost of the work as $175,000; Graybill testified that the $175,000 represented a comprehensive fixed price for the project,¹ while Attaway asserted that the project would cost "approximately $225,000 on a cost plus 12% basis." Attaway also stated that Graybill executed the contract to obtain a loan for $175,000 and that he would pay any difference between the contract price and the total cost out of pocket.

Based upon the parties' agreement, drawings were prepared and subsequently modified on multiple occasions. During the course of the remodeling project, Graybill and his wife chose more expensive and higher-quality materials than were originally budgeted. As the cost of the project escalated, and Attaway sought additional payments, the parties' relationship soured. Ultimately, Graybill paid

Attaway $213,979 and paid $52,231.73 directly to some of Attaway's subcontractors. However, Graybill refused to pay two of Attaway's applications for payment totaling $43,540.05, after which Attaway issued a July 8, 2015 "Suspension of Construction for Non-Payment." On August 21, 2015, Graybill sued Attaway for breach of contract and negligent construction, and Attaway counterclaimed for, among other things, breach of contract, quantum meruit, fraud,² and attorney fees pursuant to OCGA § 13-6-11. Graybill waived his right to a jury trial and, following a bench trial, the trial court entered judgment in favor of Attaway for $43,540.05 in damages plus interest and $57,156.62 in attorney fees and expenses. This appeal followed.

1. In his first enumeration of error, Graybill contends the trial court erroneously refused his "right to present oral closing argument" and his right to a concluding argument. However, we need not consider Graybill's enumeration because he waived the alleged error.

Near the conclusion of the bench trial, the trial court asked counsel for both parties, "[d]o y'all want to argue it this afternoon, or what do you want—do you want to submit it, or do you want to send me a brief or what?" Graybill's counsel responded that he could complete his argument in "ten minutes" and that he had prepared two bench briefs for the trial court, while Attaway's counsel stated he had not seen the bench briefs and suggested that "each side submit their proposed findings and conclusions of law[;] [t]hat would be our argument." Graybill's counsel resisted Attaway's counsel's suggestion, saying "I would prefer not to. I'd prefer to argue it, Your Honor."

What followed was an extended colloquy between counsel and the trial court concerning whether the parties wished to argue the case personally or by post-trial briefing. During that discussion, Graybill's counsel repeated his desire "to close today" rather than submit briefs in lieu of argument. The trial court responded that it would allow the parties to submit post-trial briefs "and that will stand for your argument, unless ... someone objects," but added that "if you want to argue, I've got all night." Graybill's counsel then stated:

[GRAYBILL'S COUNSEL]: Well, we're—we're going to do what you tell us to do. What are you telling us? Would you have preferred to do a bench brief?

THE COURT: Without objection, then, what I'm going to ask you to argue—is to argue the case in the way of—of a letter—

[GRAYBILL'S COUNSEL]: Okay.

THE COURT: —or brief—

[GRAYBILL'S COUNSEL]: Sure.

THE COURT: —and incorporate—and that would incorporate your authority.

[GRAYBILL'S COUNSEL]: May we put a limit on that?

THE COURT: A page limit?

[GRAYBILL'S COUNSEL]: Yes, sir.

However, Graybill's counsel then said, "Well, ... I object then. I want to orally argue the case[,]" to which the trial court replied,

THE COURT: Okay, argue it. That's fine, we'll stay and we'll argue it.

[GRAYBILL'S COUNSEL]: I mean, you know, it's—that's what I—that's what I want to do.

THE COURT: And if you—all right, you argue it, and then if you all—all right, that will be fine. You argue it. I'll take care of everything after that.

[GRAYBILL'S COUNSEL]: Sure.

Attaway's counsel then asked to reserve argument in the form of a written brief, which led to additional discussion in view of Graybill's counsel's statement that he wanted to waive opening and reserve concluding argument. The trial court ultimately stated that

[i]f either of you wants to argue the case, you have [the] absolute right to do it. So, if either of you is insisting on oral argument this afternoon, then I am going to allow either or both of you to do that. And I don't mind, then, giving you five days if you want to brief it after that. That suits me to a tee. That's fine. So with that advisory, or that communique, ... [Graybill's counsel], what do you want to do?

Graybill's counsel stated, "I want to close it out today. I'd like to orally argue briefly. I'm going to keep it very brief." When Attaway's counsel elected to forego an oral argument in lieu of a post-trial brief, Graybill's counsel again complained that the proposed procedure would give Attaway "the last say in the case...." Nevertheless, Graybill's counsel ultimately stated that, "I'll put it all in a letter, Judge, if we're going to do it that way. [...] But I'm going to put on the record that I object to this." The discussion concluded with the following exchange:

[GRAYBILL'S COUNSEL]: All right, I'll do it whatever way you want to, but just, you know,—

THE COURT: All right.

[GRAYBILL'S COUNSEL]: —I—

THE COURT: I'll get briefs from you then.

One week later, the parties delivered letter briefs to the trial court.

In Wilson v. Wilson , our Supreme Court confirmed that "the right to closing argument exists even in civil, non-jury trials, but may be precluded when no factual issues exist or when the parties waive the opportunity ." ( Emphasis supplied.) 277 Ga. 801, 802 (1), 596 S.E.2d 392 (2004). See also OCGA § 9-10-186 (plaintiff in civil actions is entitled to opening and concluding arguments). Indeed, the right to argue "may be waived expressly or by conduct." (Citation omitted.) Wilson , 277 Ga. at 803 (1), 596 S.E.2d 392.

In this case, the trial court inquired of counsel for the parties whether they wanted to present an oral closing argument or submit arguments in a post-trial brief. While Graybill's counsel stated he wanted to present an oral closing argument, Attaway's counsel suggested submitting a post-trial brief in lieu of a closing argument. This initial disagreement spawned an extended discussion between the trial court and the parties, during which Graybill's counsel repeated his desire to present an oral closing argument. In fact, during the ongoing discussion, the trial court invited Graybill's counsel to present oral argument on three occasions. After the trial court's third invitation, Graybill's counsel repeated that he wanted to present oral argument but also wanted to submit two bench briefs. Additional discussion ensued, during which Graybill's counsel stated to the trial court: (1) "we're going to do what you tell us to do"; (2) "[t]hen I'll put it in a letter, Judge, if we're going to do it that way"; and (3) "I'll do it whatever way you want to...."

As a result, despite multiple invitations by the trial court, Graybill's counsel did not present oral argument and cannot now "be heard to complain of error induced by [his] own conduct, nor to complain of errors expressly invited by [him] during the trial of the case." (Citation omitted.) Oglethorpe Power Corp. v. Estate of Forrister , 332 Ga. App. 693, 699 (2) (b), 774 S.E.2d 755 (2015). "[N]o matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further." (Footnote omitted.) Roberts v. First Ga. Community Bank , 335 Ga. App. 228, 230 (1), 779 S.E.2d 113 (2015). See also Davis v. Phoebe Putney Health Systems , 280 Ga. App. 505, 506-507 (1), 634 S.E.2d 452 (2006) ("A party cannot participate and acquiesce in a trial court's procedure and then complain of it."). Accordingly, we conclude that

Graybill waived any error concerning closing arguments since he, despite multiple invitations by the trial court to present an oral closing argument, failed to do so and acquiesced in the trial court's suggestion to submit closing arguments by brief.

2. In two related enumerations of error, Graybill argues that the trial court's award of attorney fees to Attaway was improper and that, even if the award was appropriate, Attaway failed to present sufficient evidence to support its request for attorney fees. We agree that the trial court's award of attorney fees to Attaway pursuant to OCGA § 13-6-11 is not authorized under Georgia law.

Graybill's complaint alleged causes of action for breach of contract and negligent construction related to Attaway's remodeling work at Graybill's residence. In its answer to Graybill's complaint, Attaway included counterclaims for, among other things, breach of contract, quantum meruit, fraud, and attorney fees pursuant to OCGA § 13-6-11...