Nash v. Reed

• Decision Date: 12 March 2019
• Docket Number: A18A1707, A18A1708
• Citation: 349 Ga.App. 381,825 S.E.2d 853
• Parties: NASH v. REED; and vice versa.
• Court: Georgia Court of Appeals

349 Ga.App. 381
825 S.E.2d 853

NASH
v.
REED; and vice versa.

A18A1707, A18A1708

Court of Appeals of Georgia.

March 12, 2019

825 S.E.2d 855

Fried & Bonder, David S. Fried, Jennifer L. Little, Matthew R. Kahn, for Nash.

William E. Gray II, for Reed.

Hodges, Judge.

349 Ga.App. 381

In this personal injury case, Marshall Nash sued Daniel Reed for injuries he sustained when Reed struck him with a car while Nash was jogging. Reed moved for summary judgment on Nash's claims for negligence and attorney fees, and the trial court granted the motion on Nash's claim for attorney fees but denied it as to the negligence claims. In Case No. A18A1707, Nash appeals the trial court's ruling on his claim for attorney fees. In Case No. A18A1708, Reed cross-appeals the ruling on the negligence claims. We have consolidated these cases for decision. For the reasons below, we reverse summary judgment on Nash's claim for bad faith attorney fees, affirm summary judgment on his attorney fees claim premised on stubborn litigiousness, and affirm the denial of summary judgment on his negligence claims.

"[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law ...." (Citations and punctuation omitted.) Cowart v. Widener , 287 Ga. 622, 623 (1) (a), 697 S.E.2d 779 (2010). Trial court rulings on summary judgment "enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of

349 Ga.App. 382

OCGA § 9-11-56 (c)^{[1 ]} have been met." Id. at 624 (1) (a), 697 S.E.2d 779. In making that determination, "we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant." (Citation and punctuation omitted.) Id.

So viewed, the record shows that Nash was wearing headphones and listening to music while jogging on Moore's Mill Road near its intersection with Northside Drive. Reed was driving about 35 mph on Moore's Mill in the same direction. As he approached the intersection, Reed saw Nash near the middle of the street and slowed to about 25 mph Reed did not think that Nash saw him, and he admits that he did not know the direction in which Nash was going.

Reed crossed the intersection without honking or waiting for Nash to get out of the way. In an attempt to get around Nash, Reed drove across double-yellow lines into oncoming traffic, knowing that traffic laws generally prohibit him from doing so. As he was returning to his lane, Reed struck Nash, breaking his leg. Reed testified that he "made an educated decision on how to avoid [Nash]" and that he would "do it again." Minutes later, the police arrived. Nash told an officer that Reed ran a red light; Reed testified that he had a green light. Although an officer on the scene cited Nash for "Dart[ing] Into Traffic," the State dismissed the citation.

Nash sued Reed for negligence, negligence per se, and OCGA § 13-6-11 attorney fees. Reed answered the lawsuit and moved for summary judgment. Reed argues that he did not strike Nash; instead, he claims, Nash struck him. He also argues that Nash violated several traffic laws, eliminating any liability Reed may otherwise have had.

The trial court granted summary judgment to Reed on Nash's attorney fees claim but denied it on the remaining claims. Nash appeals

825 S.E.2d 856

the grant of summary judgment on the attorney fees claim, and Reed cross-appeals the denial of summary judgment on the remaining claims.

Case No. A18A1707

1. Nash first argues that the trial court erred by granting summary judgment on his claim under OCGA § 13-6-11 for bad faith attorney fees. We agree.

349 Ga.App. 383

Generally, a party may not recover litigation expenses as damages. See OCGA § 13-6-11. If, however, "the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith ..., the jury may allow them." Id. "[T]he intent of the law, as shown by the words, ‘the jury may allow them,’ is to leave the matter of expenses of litigation to the jury trying the case." (Citations and punctuation omitted.) Covington Square Assocs. v. Ingles Markets , 287 Ga. 445, 446, 696 S.E.2d 649 (2010) ; see also Forsyth County v. Martin , 279 Ga. 215, 219 (2) (b), 610 S.E.2d 512 (2005) ("Questions concerning bad faith ... are generally questions for the jury....") (citation omitted). On summary judgment, "[e]ven slight evidence of bad faith can be enough to create an issue for the jury." (Citation and punctuation omitted.) City of Lilburn v. Astra Group, Inc. , 286 Ga. App. 568, 571, 649 S.E.2d 813 (2007). That said, "if there is no evidence of bad faith ... , a court should grant a defendant's motion for summary judgment on a claim for attorney fees." Garrett v. Women's Health Care of Gwinnett , 243 Ga. App. 53, 55 (1), 532 S.E.2d 164 (2000).

Bad faith under OCGA § 13-6-11 "must have arisen out of how the defendant acted in dealing with the plaintiff." (Citation and punctuation omitted.) City of Lilburn , supra, 286 Ga. App. at 571, 649 S.E.2d 813. It "pertains to the transaction ... out of which the cause of action arose, not to the defendant's conduct after the cause of action arose." (Citation and punctuation omitted.) Id.² "Indicative of whether a party acts in good or bad faith in a given transaction is his abiding by or failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter's legal rights." (Citation and punctuation omitted.) Windermere, Ltd. , supra, 211 Ga.App. 177, 179 (2), 438 S.E.2d 406 (1993).

Nash highlights several facts to support his argument that Reed acted in bad faith. First, Reed saw Nash on the other side of the intersection and knew that Nash did not see him. Second, Nash was near the middle of the street, and Reed did not know where he was going. Third, Reed thought about honking to alert Nash but decided against it, and Reed admits that he could have stopped and allowed

349 Ga.App. 384

Nash to finish crossing the street but chose not to. And fourth, Reed crossed a double-yellow line in an attempt to get around Nash even though traffic laws generally prohibit him from doing so.

Taken together, this evidence is sufficient to create a jury issue on the issue of bad faith. See City of...