Rivergate Corp. v. BCCP Enterprises, Inc., A90A1796

Decision Date14 February 1991
Docket NumberNo. A90A1796,A90A1796
Citation403 S.E.2d 65,198 Ga.App. 761
PartiesRIVERGATE CORPORATION v. BCCP ENTERPRISES, INC.
CourtGeorgia Court of Appeals

Kirby G. Bailey, Decatur, for appellant.

Glass, McCullough, Sherrill & Harrold, Scott M. Klauber, R. Philip Shinall III, James R. Harper, Atlanta, for appellee.

BEASLEY, Judge.

Defendant lessor Rivergate Corporation a/k/a Advance Leasing & Rent-A-Car, Inc., appeals from the denial of summary judgment to it and the grant of summary judgment to plaintiff BCCP Enterprises, Inc. d/b/a Palmer & Jones Body in this suit to collect, inter alia, the costs of repair of a wrecked vehicle. The leasing company contends that the trial court misapplied Strother Ford, Inc. v. First Nat. Bank of Atlanta, 258 Ga. 319, 368 S.E.2d 489 (1988), and that there was no contract or tort basis for the suit. It further contends that the court's award of attorney fees under OCGA § 13-6-11 for stubborn litigiousness was error.

1. The trial court's order set out the undisputed facts, the applicable law, and its legal conclusions. Considering the record and the arguments urged on appeal, the judgment must be affirmed on the primary issues because plaintiff is entitled to it as a matter of law. The trial court's order adequately explains its correct decision in this regard. That part of the judgment is affirmed in accordance with Rule 36(3).

2. As to attorney fees, the court found that "Defendant's actions in this matter were sufficiently stubborn and litigious so as to subject them to the payment of attorney's fees." The court awarded $3,000, stated by the court to be "that amount representing the attorney's fees accrued by plaintiff in the prosecution of this claim."

Expenses of litigation under OCGA § 13-6-11 can be awarded on summary judgment, but the movant must be entitled to them as a matter of law. City of Marietta v. Holland, 252 Ga. 299, 304(3), 314 S.E.2d 97 (1984). Generally, "[w]hether a plaintiff is entitled to recover expenses of litigation is solely a question for determination by a jury. [Cits.]" Pritchett v Rainey, 131 Ga.App. 521, 522, 206 S.E.2d 726 (1974). As it applies to this case, then, the record must show that defendant was stubbornly litigious as a matter of law. City of Marietta, supra. This it does not do.

Even assuming that it showed such actions on the part of defendant so that the court was stating an undisputed fact rather than making a finding of fact, the second fact which the movant must show is the reasonable value of the professional services which underlies the claim for attorney fees. First Bank of Clayton County v. Dollar, 159 Ga.App. 815, 817(4), 285 S.E.2d 203 (1981); Allen v. Harris, 113 Ga. 107, 108(4), 38 S.E. 322 (1901).

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13 cases
  • Covington Square Assoc.s v. Ingles Mkt.S Inc
    • United States
    • Georgia Supreme Court
    • June 28, 2010
    ...can be awarded on summary judgment, but the movant must be entitled to them as a matter of law. [Cit.]” Rivergate Corp. v. BCCP Enterprises, 198 Ga.App. 761(2), 403 S.E.2d 65 (1991) (reversing summary judgment). See Rasmussen v. Nodvin, 174 Ga.App. 203, 205(4), 329 S.E.2d 541 (1985) (revers......
  • Wooten v. Central Georgia Elec. Membership Corp.
    • United States
    • Georgia Court of Appeals
    • July 15, 1994
    ...no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. Rivergate Corp. v. BCCP Enterprises, 198 Ga.App. 761, 762 (403 SE2d 65). Where the movant fails in that burden, the grant of summary judgment is error. 944, Inc. v. Ga. State Bank, 198 G......
  • Jackson v. K-Mart Corp.
    • United States
    • Georgia Court of Appeals
    • February 8, 2000
    ...movant shows no genuine issue of material fact exists and entitlement to summary judgment as a matter of law. Rivergate Corp. v. BCCP Enterprises, 198 Ga.App. 761(1), 403 S.E.2d 65. A defendant carries this burden by demonstrating the absence of evidence as to one essential element of plain......
  • Re-Max Executives, Inc. v. Wallace
    • United States
    • Georgia Court of Appeals
    • June 24, 1992
    ...and expenses as a matter of law. City of Marietta v. Holland, 252 Ga. 299, 304, 314 S.E.2d 97 (1984). Cf. Rivergate Corp. v. BCCP Enterprises, 198 Ga.App. 761(2), 403 S.E.2d 65 (1991). But it did not do so. There is no finding that the evidence precluded such an award. Nor did defendants se......
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