Mallory v. Daniel Lumber Co., Inc.
| Citation | 191 Ga.App. 234,381 S.E.2d 406 |
| Decision Date | 03 April 1989 |
| Docket Number | No. A89A0418,A89A0418 |
| Parties | MALLORY v. DANIEL LUMBER COMPANY, INC. |
| Court | United States Court of Appeals (Georgia) |
Powell, Goldstein, Frazer & Murphy, R. Carl Cannon, Atlanta, V. Scott Greene, Tisinger, Tisinger, Vance & Greer, Robert H. Sullivan, Carrollton, for appellant.
Willis, McKenzie & Long, C. Jerry Willis, Edward L. Long, Jr., La Grange, for appellee.
The appellee contracted to build a commercial office building for the appellant for a base price of approximately $644,000. The contract specified that "[a]ll changes in price will become a part of the contract when both parties have signed their acceptance." After the appellant had made progress payments totalling approximately $521,000, a dispute arose between the parties over how much remained to be paid for the work which had thus far been performed on the project. As a result of this dispute, the appellant refused to make additional progress payments, and the appellee ultimately discontinued work on the project.
The appellee brought the present action against the appellant seeking to recover the difference between the total contract price for the construction, including authorized changes and add-ons, and the total amount the appellant had paid on the contract, a difference calculated by the appellee to be $128,822. The appellee also sought to recover accrued interest on this alleged indebtedness in the amount of $21,000, plus attorney fees in the amount of $25,000 for bad faith and stubborn litigiousness. The appellant counterclaimed to recover the estimated cost of completing the work, plus attorney fees, in the total amount of $105,000. The case was tried before a jury, which awarded the appellee damages in the total amount of $174,862.92 (representing all of the actual damages, interest, and attorney fees which it had sought) and also found in favor of the appellee on the appellant's counterclaim. This appeal followed. Held:
1. The appellant contends that the trial court erred in allowing the appellee to introduce evidence concerning an insurance settlement which he (the appellant) had received as compensation for water damage caused by a defective drinking fountain installed in the building during the later stages of the construction. The trial court allowed this evidence based on a determination that it was permitted under OCGA § 51-12-1(b) (Ga.L.1987, p. 915, § 3), which abrogated the collateral source rule in Georgia. Subsequent to trial, however, our Supreme Court, in Polito v. Holland, 258 Ga. 54, 365 S.E.2d 273 (1988), ruled that this statute is not to be applied retroactively to events predating its enactment. Accord A.H. Friedman, Inc. v. Augusta Burglar Alarm Co., 186 Ga.App. 769, 368 S.E.2d 534 (1988); Bryan v. King, 187 Ga.App. 7, 369 S.E.2d 278 (1988). Because the events which gave rise to the present action occurred prior to the effective date of the statute, the trial court's decision to allow the evidence must, therefore, be considered erroneous. However, for the reasons which follow, we conclude that the error was harmless under the circumstances of this case.
A portion of the damages which the appellant sought in his counterclaim reflected the losses which he had allegedly sustained as a result of the appellee's failure to have the building ready for occupancy by the completion date specified in the contract. At trial, the appellee sought to prove that this delay had resulted, at least in part, from the water damage caused by the defective fountain and that the appellant had already been compensated for these damages by the money which he had received from the insurance settlement. Because the jury ultimately found in favor of the appellee on the counterclaim, and because the evidence in question went solely to the issue of the damages sought in connection therewith, it follows that the admission of this evidence could not...
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Fine & Block v. Evans
...not bad faith in refusing to pay but bad faith in the transaction out of which the cause of action arises. Mallory v. Daniel Lbr. Co., 191 Ga.App. 234, 236(2), 381 S.E.2d 406 (1989). The finding of Judge Eldridge of bad faith was authorized by evidence that Glen Restaurants, Inc., demanded ......
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Amalgamated Transit Union Local 1324 v. Roberts
...less frequently, this Court has repeatedly applied this principle in breach of contract cases. See Mallory v. Daniel Lumber Co., [Inc.], 191 Ga.App. 234, 235 (1) (381 SE2d 406) [ (1989) ]; Insurance Co. of N.A. v. Fowler, 148 Ga.App. 509, 511 (2) (251 SE2d 594) [ (1978) ]; Bituminous Cas. C......
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Citizens & Southern Trust Co. v. Hicks, s. A94A2778
... ... Compare Mallory v. Daniel Lumber Co., 191 Ga.App. 234, 236(2), 381 S.E.2d 406 (1989); ... ...
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U.S. Industries, Inc. v. Austin
...75, 78(3), 357 S.E.2d 882 [1987]." Malloy v. Elmore, 191 Ga.App. 564, 565, 382 S.E.2d 395 (1989). See also Mallory v. Daniel Lumber Co., 191 Ga.App. 234, 235(1), 381 S.E.2d 406 (1989). OCGA § 9-11-61 precludes a new trial unless the refusal to grant one "appears to the court inconsistent wi......