Graybill v. Attaway Construction & Associates, LLC
341 Ga. App. 805
| Ga. Ct. App. | 2017Background
- Graybill contracted with Attaway for a residential remodel; disputes arose after change orders and selections that increased cost. Graybill paid most sums but withheld two payment applications totaling $43,540.05.
- Attaway suspended work for non-payment, sued (counterclaim) seeking $43,540.05, and sought attorney fees under OCGA § 13-6-11. Graybill sued for breach and negligent construction; bench trial followed.
- Trial court entered judgment for Attaway for $43,540.05 plus interest and awarded $57,156.62 in attorney fees and expenses.
- On appeal Graybill raised: denial of oral closing argument, the propriety and proof of attorney-fee award, alleged double recovery (breach of contract vs. quantum meruit), and denial of his motion to recuse the trial judge.
- Court of Appeals: affirmed the damages award ($43,540.05) but reversed the statutory attorney-fee award under OCGA § 13-6-11 and upheld denial of recusal; also held Graybill waived the oral-closing argument complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to oral closing argument | Graybill: trial court refused his right to present oral closing argument | Attaway: proposed written post-trial briefs in lieu of oral argument; parties agreed procedure | Waived — Graybill repeatedly agreed to submit briefs and declined multiple invitations to argue, so cannot complain on appeal (Wilson principle) |
| Award of attorney fees under OCGA § 13-6-11 | Graybill: defendant-in-counterclaim cannot recover §13-6-11 fees where counterclaim arises from same transaction; award improper | Attaway: sought fees as prevailing party on counterclaim and submitted affidavit/time records | Reversed — fee award under §13-6-11 invalid because fees are only recoverable by plaintiffs and not by defendant/plaintiff-in-counterclaim for compulsory counterclaims (Byers/Singh) |
| Sufficiency of proof of attorney fees | Graybill: fees were excessive and unsupported | Attaway: provided billing records and affidavit supporting $50,000 request | Not reached — appellate reversal on legal entitlement to fees made evidentiary challenge unnecessary |
| Recovery on both breach of contract and quantum meruit | Graybill: court erred by awarding damages under mutually exclusive remedies without election | Attaway: alternatively pleaded both; amount owed is the same either way ($43,540.05) | Affirmed — single, unchallenged $43,540.05 recovery stands; no double recovery or reversible error given no risk of double recovery and parties did not contest the amount |
| Motion to recuse judge for alleged familial tie to opposing counsel | Graybill: judge failed to disclose familial relationship; appearance of bias required referral | Attaway: relationship not within prohibited degree and affidavit insufficient | Denied — affidavit legally insufficient under USCR 25; relationship not within statutory disqualification and did not show reasonable appearance of lack of impartiality (Batson-Cook standard) |
Key Cases Cited
- Wilson v. Wilson, 277 Ga. 801 (2004) (right to closing argument in civil bench trials may be waived)
- Byers v. McGuire Properties, 285 Ga. 530 (2009) (plaintiff-in-counterclaim cannot recover §13-6-11 fees for compulsory counterclaims)
- Singh v. Sterling United, Inc., 326 Ga. App. 504 (2014) (confirming limitation on §13-6-11 recoverability for defendants/plaintiffs-in-counterclaim)
- Mayor & Aldermen of the City of Savannah v. Batson-Cook Co., 291 Ga. 114 (2012) (appearance-of-impartiality standard for judicial recusal under Canon 2.11)
- Gibson v. Decatur Fed. S & L Assn., 235 Ga. App. 160 (1998) (USCR 25.3: judge need not assign motion to another judge if affidavit is legally insufficient)