Horton v. Dennis

• Decision Date: 21 November 2013
• Docket Number: No. A13A0935.,A13A0935.
• Parties: HORTON et al. v. DENNIS et al.
• Court: Georgia Court of Appeals

325 Ga.App. 212

750 S.E.2d 493

HORTON et al.

v.DENNIS et al.

No. A13A0935.

Court of Appeals of Georgia.

Nov. 21, 2013.

Reconsideration Denied Dec. 3, 2013.

Certiorari Denied June 2, 2014.

Caleb Frank Walker, Katherine Lee McArthur, Macon, for Appellants.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert Peter Marcovitch, Robert C. Semler, John Kirk Train IV, Joshua Steven Wood, Atlanta, McNatt, Greene & Peterson, Hugh Brown McNatt, for Appellees.

ELLINGTON, Presiding Judge.

Raford and Virginia Horton filed this personal injury action in the Superior Court of Telfair County against Joseph Dennis, The Putnam Group, LLC, Horton Iron Works, LLC, and Horton Iron Works' liability insurer (collectively, "the appellees"). On the eve of trial, the Hortons added a claim for attorney fees under OCGA § 13–6–11, alleging that, by denying liability until the eve of trial and then stipulating to liability and going to trial on damages only, the appellees had been stubbornly litigious and caused them unnecessary trouble and expense. The appellees moved for judgment as a matter of law on the Hortons' attorney fee claim. After a hearing, the trial court granted the appellees' motion, and the Hortons appeal. For the reasons explained below, we affirm.

Viewed in the light most favorable to the Hortons as the nonmovants,¹ the record shows the following. On October 27, 2008, Mr. Horton was severely injured when a tractor-trailer operated by Joseph Dennis (an employee of Horton Iron Works, LLC and under the interstate motor carrier authority of The Putnam Group, LLC) crossed the center line of Ga. Highway 31 near McRae and crashed into Mr. Horton's truck. In addition to injuries requiring multiple joint replacements, debridements, and other surgeries, the Hortons claim that, as a result of the wreck, Mr. Horton also suffered a mild traumatic brain injury, which impairs his memory and mental function, and damage to his sacral or pudendal nerves, which results in permanent loss of erectile function.

On June 8, 2009, the Hortons filed suit for Mr. Horton's personal injury and Mrs. Horton's loss of consortium. During discovery, the appellees interviewed and deposed witnesses to determine whether Mr. Horton had been at fault in causing the wreck. In addition, the appellees explored during discovery the nature and extent of Mr. Horton's alleged damages. Among other witnesses, the Hortons took the depositions for use at trial of two of his treating physicians: Alan Harben, M.D., a rehabilitation specialist, who opined that Mr. Horton suffered a traumatic brain injury and had some resulting cognitive impairment; and Walter Wilifong, M.D., a urologist, who opined that Mr. Horton suffered a pelvic nerve injury which caused him to be impotent.

The appellees questioned Dr. Harben about the medical evidence linking the trauma from the accident to any cognitive impairment, and Dr. Harben answered that no intracranial bleeding or other physical signs of brain trauma were evident on brain scans that were done in the immediate aftermath of the wreck. The deposition of Dr. Harben also showed that his opinion that Mr. Horton was experiencing cognitive deficits was based largely on logic and memory tests; because Mr. Horton had not completed such tests before the wreck, Dr. Harben could not objectively compare Mr. Horton's cognitive function before the wreck and after the wreck. Dr. Harben conceded that certain lesions and abnormalities detected in brain scans that were performed several months after the wreck could not reliably be attributed to the wreck and could have been age related (Mr. Horton was 60 years old at the time of the wreck and 62 at the time Dr. Harben tested his cognitive functions).

The appellees questioned Dr. Wilifong about the extent of Mr. Horton's erectile dysfunction. Dr. Wilifong answered that his opinion that Mr. Horton suffered from erectile dysfunction was based on Mr. Horton's statement that after the wreck he and his wife had sexual relations only once per month (compared to once or twice per week before the wreck) and that he had trouble having erections. Because pelvic crush injuries often cause impotence, Dr. Wilifong assumed that Mr. Horton's erectile difficulties stemmed from the wreck, and he focused on treating Mr. Horton's self-reported erectile dysfunction and not on finding its cause. Dr. Wilifong conceded that Mr. Horton's sexual problems could be caused by something other than a nerve injury. In addition, Dr. Wilifong conceded that, if Mr. Horton were able to get a normal erection at all, even if less frequently, it would show that his pelvic nerves were intact, but Dr. Wilifong could not recall ever asking Mr. Horton that question.

Just before trial was scheduled to commence on September 26, 2011, the appellees opted to stipulate to "liability," that is, their "fault for how this accident happened" and "responsibility for the accident." The appellees also conceded that the wreck proximately caused Mr. Horton's crushed pelvis, injuries to his left knee and left hip, and foot drop. The appellees contested, however, that the wreck was the proximate cause of Mr. Horton's alleged traumatic brain injury or his alleged pelvic nerve damage and permanent loss of erectile function.

With the trial court's permission, the Hortons amended their complaint to add a claim for attorney fees under OCGA § 13–6–11, alleging that the appellees had been stubbornly litigious and had caused the Hortons unnecessary trouble and expense. Specifically, the Hortons alleged that "[n]o bona fide controversy or dispute [had] ever existed in this case as to the fault of ... Dennis in causing [the] collision" and as to the other appellees' liability for Dennis's actions. The Hortons alleged that the appellees were stubbornly litigious from the time they answered the Hortons' complaint, denying any liability, until September 26, 2011, when the appellees admitted in a written stipulation that Dennis was at fault for negligently causing the collision. The trial court bifurcated the trial, reserving the issue of attorney fees to the second phase.

At the conclusion of the first phase of the trial, the jury returned a verdict in favor of the Hortons as follows: $1,252,804 for Mr. Horton's medical bills, $184,010 for past and future lost income, $1,150,000 for past and future mental and physical pain and suffering, and $250,000 for Mrs. Horton's loss of consortium. The trial court then took up the appellees' pending motion for judgment as a matter of law on the Hortons' claim for attorney fees. At the hearing, the Hortons stipulated that there had been "a bona fide controversy as to some of [Mr. Horton's] damages."² The court noted that the parties agreed that bad faith was not an issue. The trial court concluded that a bona fide controversy had existed at least regarding the issue of whether Mr. Horton had a traumatic brain injury and erectile dysfunction that were proximately caused by the appellees' admitted negligence. In addition, the court found that the amount of damages for the Hortons' losses had always been in dispute and that the appellees had not "displayed a ‘so sue me’ attitude that has been present in several cases where attorney fees pursuant to OCGA § 13–6–11 were allowed."³ Based on this, the trial court found that it would be improper to submit the Hortons' attorney fee claim to a jury and granted the appellees' motion for judgment as a matter of law on that claim.

The Hortons contend that the trial court erred in finding as a matter of law that a bona fide controversy existed on proximate cause. Further, the Hortons contend that, even if there was a dispute on proximate cause as to some of the Hortons' damages, the appellees' denial of liability through two years of litigation was not justified.

"Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract." (Citation omitted.) Moon v. Moon, 277 Ga. 375, 379(6), 589 S.E.2d 76 (2003). See OCGA § 13–6–11 ("The expenses of litigation generally shall not be allowed as a part of the damages [.]"). The Supreme Court of Georgia reminds our courts to be mindful

of the provision of our Constitution that "[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state." Ga. Const. of 1983, Art. I, Sec. I, Par. XII. This is a privilege granted to the defendant as well as the plaintiff. Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.

(Citation and punctuation omitted.) Anderson v. Cayes, 278 Ga.App. 592, 595, 630 S.E.2d 441 (2006).⁴ Further, "[s]ince any ... statute [that provides for the award of attorney fees] is in derogation of common law, ... it must be strictly construed against the award of such damages." (Citations omitted.) VSI Enterprises v. Edwards, 238 Ga.App. 369, 375(2), 518 S.E.2d 765 (1999).

One such statutory provision is OCGA § 13–6–11, which authorizes the finder of fact to make an award of attorney fees and other expenses of litigation where (1) the plaintiff specially pleads and prays for such an award, and (2) the finder of fact finds that the defendant acted in bad faith in the underlying transaction or that, after the transaction on which the cause of action is predicated, the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble and expense. When bad faith is not an issue, as in this case,⁵ and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, an award under OCGA § 13–6–11 is authorized where the evidence reveals that no bona fide controversy or genuine dispute existed—"whether of law or fact, on liability or amount of...