Read v. Benedict, s. A91A0181

Decision Date13 May 1991
Docket NumberA91A0182,Nos. A91A0181,s. A91A0181
Citation406 S.E.2d 488,200 Ga.App. 4
CourtGeorgia Court of Appeals

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Rebecca A. Copeland, Atlanta, for appellant.

Freeman & Hawkins, H. Lane Young II, Joseph A. Roseborough, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Appellant/cross-appellee (Joan Read) appeals the orders of the superior court denying her motion for new trial on the issue of punitive damages and her motion for reconsideration of partial directed verdict on the issue of interest claimed; and granting appellee/cross-appellant's (Thomas Benedict) motion for judgment notwithstanding the verdict on the issue of attorney fees and striking $26,250 from the verdict and judgment entered. Appellee/cross-appellant has cross-appealed the order of the trial court denying his motion for judgment notwithstanding the verdict or, in the alternative, for new trial on the issues of voluntary payment and unjust enrichment.

This appeal arises from a suit for legal malpractice in which Joan Read in essence averred that Thomas Benedict, an attorney, was negligent in closing the sale of her family's home then owned by her mother. Closing occurred on or about July, 1986. Specifically, Joan Read asserted that Thomas Benedict improperly structured the real estate loan closing against her express wishes so as to cause the tax liens of her husband (John Read) to attach to the property, and then improperly advised her regarding the attachment of these liens. Held:

Case No. A91A0181

1. Appellant asserts the trial court erred in granting appellee's motion for judgment notwithstanding the verdict on the issue of attorney fees and expenses of litigation, because "sufficient evidence of appellee's bad faith was presented at the trial and the trial court erred in granting appellee's motion for judgment notwithstanding the verdict on the issues of attorney fees and expenses of litigation."

Pretermitting the bad faith issue is the question whether appellant's trial tactics failed to preserve the bad faith issue for appellate review. We find the issue has not been preserved.

The record reflects that during the charge conference, the trial judge informed the parties that appellant's request to charge number 12 on the issue of costs of litigation would be given, except he was going to inform the jury that the issue of bad faith would not apply. Then the trial judge expressly informed the parties that "therefore, the only way attorney fees could be awarded in this particular action, in my judgment, is that the jury [will] have to find the defendant had been stubbornly litigious or had caused the plaintiff unnecessary trouble and expense." (Emphasis supplied.) Thereafter, appellant's counsel presented "a couple of comments about some [charges] that [he thought] would be erroneous," but did not raise any objection to the trial court's ruling regarding the bad faith issue. Subsequently, the trial court pertinently charged the jury, regarding the award of litigation expenses, that "where the defendant has acted in bad faith in making the contract--and that does not apply in this case because there is no bad faith as this judge has determined in making the contract." Thereafter, when asked if there were any exceptions or objections to the charge, appellant voiced several issues, but did not take any exception or objection to the exclusion of bad faith from applicability during the charge on expenses of litigation.

By failing to object or take timely exception to the trial court's exclusion of the bad faith from jury consideration, whether such exclusion was intentional or accidental, appellant by her own trial tactics assisted in misleading the trial court, generating the ruling and charge at trial, and in preventing the jury from considering the issue of bad faith in its award of litigation expenses. As a result, the jury, under the charge as actually given and to which no exception was timely taken, could not have awarded attorney fees on the basis of a bad faith finding. On appeal appellant cannot complain of a judgment, order, or ruling that her own procedure or conduct aided in causing. West v. Nodvin, 196 Ga.App. 825, 829(3)(e), 397 S.E.2d 567. Further, by her conduct at trial, appellant in effect acquiesced in the trial court's ruling that bad faith did not apply, and did thereby abandon any issue of error predicated on the existence of bad faith on appeal. See Whisnant v. State, 178 Ga.App. 742, 744, 344 S.E.2d 536; Horan v. Pirkle, 197 Ga.App. 151, 152, 397 S.E.2d 734.

Moreover, assuming arguendo, the issue of bad faith had not been abandoned, it was without merit. A genuine controversy existed in this case as a matter of law, and the existence of a bona fide controversy generally precludes any claim for attorney fees based on bad faith. See, e.g., EBCO Gen. Agency v. Mitchell, 186 Ga.App. 874, 875(2), 368 S.E.2d 782. We agree with the trial court that Backus Cadillac-Pontiac v. Ernest, 195 Ga.App. 579, 394 S.E.2d 367 is distinguishable.

Having waived bad faith, there are only two grounds remaining on which the award could be supported. "When bad faith is not an issue and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not 'any evidence' to support an award pursuant to OCGA § 13-6-11 ... if a bona fide controversy ... exists between the parties." Dimambro Northend Assoc. v. Williams, 169 Ga.App. 219, 224-225(6), 312 S.E.2d 386. Accord Jeff Goolsby Homes Corp. v. Smith, 168 Ga.App. 218(2), 308 S.E.2d 564. As a bona fide controversy did exist, the trial court did not err in awarding j.n.o.v. to appellee as to this matter.

2. Appellant asserts there was sufficient evidence to support an award of punitive damages and the trial court erred in granting appellee's motion for directed verdict thereto and in refusing to grant a new trial thereon.

Regarding the error enumerated, we note that punitive damages would not lie as to any ex contractu claim in this case. OCGA § 13-6-10. However as to causes of action grounded in tort, such as exist in this case, an award of punitive damages can lie. See, e.g., OCGA § 51-12-5. Although "[m]ere negligence, although gross" will not support an award of punitive damages (Associated Health Sys. v. Jones, 185 Ga.App. 798, 802(2), 366 S.E.2d 147), as to causes of action ex delicto arising before July 1, 1987, which includes a cause of action averred to arise by reason of legal malpractice, punitive damages can be awarded by the jury based upon the existence of aggravating circumstances, in either the act or the intention. OCGA § 51-12-5. "It is well established that that language means such damages cannot be imposed in any case unless there is willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression (conscious indifference to consequences) relates to an intentional disregard of the rights of another, knowingly or willfully disregarding such rights." (Citations and punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga.App. 860(1), 389 S.E.2d 355. Ordinarily the imposition of punitive damages is a jury issue; however, the controlling criteria remains whether there is any evidence to support such an award. Petrolane, supra at 862, 389 S.E.2d 355.

In this case, there is some evidence, albeit strongly controverted, which if believed by the jury would establish appellee entered an attorney-client relationship not only with the lending institution but with appellant and her husband, Dr. Read; that a potential conflict of interest thereafter arose between the lending institution (which issued lending instructions requiring that Dr. Read acquire title to the property contrary to the wishes of appellant); that a potential conflict of interest also may have existed between appellant and her husband, Dr. Read; that nevertheless appellee continued to represent all parties; that at closing appellee favored the desires and legal interests of the lending institution over appellant and ignored the desires and legal interests of appellant by preparing closing documents that passed title to Dr. Read before vesting title in appellant, Joan Read--with a result Internal Revenue Service (IRS) tax liens recorded against Dr. Read attached to appellant's family home contrary to her express wishes; that appellee failed to make a timely and full disclosure to the Reads of the legal effect of the closing documents in regard to IRS tax liens attachment, thereby precluding them from making an informed choice whether to elect not to close and to seek another lending institution; and, that appellee in whom appellant put her trust because he was "the attorney" advised her it was required that the property be transferred to Dr. Read, but that by recording the deeds together the IRS tax lien would not attach to the property.

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