Ostrom v. Kapetanakos
| Decision Date | 12 January 1988 |
| Docket Number | No. 75383,75383 |
| Parties | OSTROM, et al. v. KAPETANAKOS. |
| Court | Georgia Court of Appeals |
Gene Burkett, Conyers, for appellants.
Fred J. Stokes, Atlanta, for appellee.
Pursuant to a written contract, appellant-defendants engaged appellee-plaintiff as an employee. After seven months, appellee's employment was terminated by appellants. Appellee brought this suit, seeking to recover compensation which was allegedly earned by him, but which was unpaid by appellants. Appellee also sought an award of attorney's fees pursuant to OCGA § 13-6-11. Appellants answered and asserted, among their other defenses, a failure of consideration in that appellee had not performed his obligations under the written contract.
After a jury trial, a verdict was returned in favor of appellee awarding him $1,500 in general damages and $1,370 in attorney's fees as against each appellant. Appellants filed this direct appeal from the judgment that was entered by the trial court on the jury's verdict. In their sole enumeration, appellants assert that the trial court erroneously denied their motion for directed verdict as to the issue of attorney's fees.
1. Appellee has moved this court to dismiss appellants' appeal for lack of jurisdiction. Appellee's contention is that, insofar as each appellant ultimately seeks only the reversal of the $1,350 judgment for attorney's fees, their appeal is from a judgment for "$2,500.00 or less" and must, therefore, be deemed to be discretionary pursuant to OCGA § 5-6-35(a)(6). However, the final judgment which was entered as against each appellant is in the total amount of $2,850 and the fact that their enumerations of error address only a portion of that judgment will not serve to render their appeal discretionary. Under OCGA § 5-6-35(a)(6), it is the amount of the underlying final judgment from which an appeal is taken, not the enumerations of error, which determines the direct or discretionary appealability of any given case. Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457, 339 S.E.2d 590 (1986). Appellants each seek to appeal from a judgment in excess of $2,500. Therefore, no applications for a discretionary appeal were required and this court has jurisdiction over this direct appeal. Compare Vaughn v. Cable East Point, 185 Ga.App. 203, 363 S.E.2d 639 (1987.)
2. As indicated, appellants' sole enumeration is that the trial court erred in failing to grant their motion for a directed verdict on the issue of attorney's fees.
There is some question whether it is former or existing OCGA § 13-6-11 that is the controlling statutory authority. All relevant events in this case occurred prior to February 3, 1984, the effective date of existing OCGA § 13-6-11, but this case was not tried until afterwards. Under both former and existing OCGA § 13-6-11, a recovery of attorney's fees would be authorized as against a defendant who has been shown to have acted in bad faith, or to have been stubbornly litigious, or to have caused the plaintiff unnecessary trouble and expense. However, existing OCGA § 13-6-11, unlike former OCGA § 13-6-11, contains no specific limitation of proof as to the defendant's bad faith "in making the contract." However, a thorough review of the transcript in this case shows that there is ultimately no need to determine whether it is former or existing OCGA § 13-6-11 that is controlling authority. To recover under the "bad faith" portion of either statutory provision would obviously require that appellee make a showing of the existence of appellants' "bad faith" at some point in time. The most that appellee showed was that appellants had failed to pay such compensation as, according to him, he was entitled to receive. "Mere failure to pay a claim is not bad faith." Raybestos-Manhattan, Inc. v. Friedman, 156 Ga.App. 880, 883-884(2), 275 S.E.2d 817 (1981). See also Glenn v. Fourteen West Realty, 169 Ga.App. 549, 551(2), 313 S.E.2d 730 (1984). It would necessarily follow under the "bad faith" portion of neither former nor existing OCGA § 13-6-11 would the issue of appellee's entitlement to a recovery of attorney's fees have been correctly submitted to the jury.
Accordingly, only if appellee produced some evidence of appellants' "stubborn litigiousness" or that they caused him "unnecessary trouble and expense" would the...
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Johnson v. Citimortgage, Inc.
...litigiousness" refers to situations where "a defendant forces suit where no `bona fide controversy' exists." Ostrom v. Kapetanakos, 185 Ga.App. 728, 730, 365 S.E.2d 849 (1988). "Bad faith," in turn, is not simply bad judgment or negligence, but it imports "a dishonest purpose or some moral ......
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Powell v. Watson
...attorney fees under OCGA § 13-6-11. In so concluding, the trial court relied heavily upon the statement in Ostrom v. Kapetanakos, 185 Ga.App. 728, 730, 365 S.E.2d 849 (1988), that: "[T]here existed a bona fide controversy as to appellee's performance under the contract and as to the extent ......
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First Union Nat. Bank of Georgia v. Davies-Elliott, Inc.
...preclude the jury's consideration of whether the Bank demonstrated "bad faith" in its dealings with Davies-Elliott, Inc. Ostrom v. Kapetanakos, 185 Ga.App. 728, 729(2), 365 S.E.2d 849 (1988); Jackson v. Brinegar, Inc., 165 Ga.App. 432, 436, 301 S.E.2d 493 "As a general matter, determination......
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First Union Nat. Bank of Georgia v. Cook
...in bad faith. First Union Nat. Bank, etc., v. Davies-Elliott, Inc., 215 Ga.App. 498, 502, 452 S.E.2d 132; Ostrom v. Kapetanakos, 185 Ga.App. 728, 729, 365 S.E.2d 849. Accordingly, the trial court erred by granting summary judgment on Cook's claim under OCGA § Therefore, the grant of summary......