REDMOND CONSTRUCTION, INC. v. DOUGLAS R. WILSON
A21A0507
Ga. Ct. App.Jun 30, 2021Background
- The Wilsons contracted Redmond to build a house and driveway; after move-in the driveway showed cracking, pitting, holes, and leveling/standing-water problems.
- Redmond employed a subcontractor for the driveway; parties exchanged repairs (some accepted, some refused) and disputed whether replacement or resurfacing was required.
- The Wilsons hired an engineer who recommended complete replacement; Redmond’s expert proposed surface remediation (grinding and self‑leveling dressing) with a much lower cost estimate.
- The Wilsons sued for negligent construction and breach of contract and sought attorney fees under OCGA § 13‑6‑11 (bad faith, stubborn litigiousness, or causing unnecessary trouble and expense).
- Redmond filed a non‑party fault notice as to its subcontractor and moved for partial summary judgment on the fee claim; the trial court granted that motion and denied Redmond’s motion to exclude portions of the Wilsons’ expert testimony.
- This Court affirmed the summary judgment on attorney fees, but vacated in part and remanded for the trial court to perform a Daubert/OCGA § 24‑7‑702 gatekeeping analysis on the expert’s opinion that improper joint spacing caused the cracking; the court affirmed denial of exclusion as to the expert’s soil/clay‑related opinions.
Issues
| Issue | Plaintiff's Argument (Wilsons) | Defendant's Argument (Redmond) | Held |
|---|---|---|---|
| Whether summary judgment barred OCGA § 13‑6‑11 fees for bad faith | Redmond acted in bad faith or was stubbornly litigious and denied liability despite defects | Bona fide disputes existed on causation, remedy, apportionment; no evidence of dishonest purpose or ill will | Affirmed: no genuine evidence of bad faith; summary judgment proper on bad‑faith theory |
| Whether a bona fide controversy existed (stubborn litigiousness / unnecessary trouble) | No bona fide controversy: both experts agreed driveway was defective; Wilsons forced to sue | Conflicting expert opinions on damage, remedy, cost, and subcontractor fault; repairs were attempted | Affirmed: genuine factual disputes about causation, remedy, and apportionment preclude fee award for stubborn litigiousness |
| Whether trial court abused discretion by denying Daubert challenge to expert causation opinion (improper joint spacing caused cracking) | Expert reliably linked improper joint spacing to cracking | Redmond argued methodology was unreliable and the trial court failed to apply Daubert/OCGA § 24‑7‑702 | Vacated in part and remanded: trial court abused discretion by not performing a proper gatekeeping analysis on the joint‑spacing causation opinion |
| Whether trial court abused discretion by denying Daubert challenge to expert soil/clay/remedy opinion (need to remove clay and replace with sand) | Expert’s basis for clay and need for replacement was reliable enough to admit | Redmond argued expert misread reports and methodology was unreliable | Affirmed: trial court sufficiently reviewed the methodology; challenges go to weight, not admissibility |
Key Cases Cited
- Hunsucker v. Belford, 304 Ga. App. 200 (affirming summary judgment standard and de novo review)
- Horton v. Dennis, 325 Ga. App. 212 (standards for OCGA § 13‑6‑11 awards)
- Emory Univ. v. Willcox, 355 Ga. App. 542 (trial court gatekeeper role under OCGA § 24‑7‑702)
- McClain v. Metabolife Intl., Inc., 401 F.3d 1233 (Daubert gatekeeping discussion)
- C & H Dev., LLC v. Franklin County, 294 Ga. App. 792 (no fee award where bona fide controversy exists)
- Cash v. LG Electronics, Inc., 342 Ga. App. 735 (factors for assessing expert reliability)
- Quiet Technology DC‑8 v. Hurel‑Dubois UK Ltd., 326 F.3d 1333 (flaws in scientific evidence bear on weight, not admissibility)
- An v. Active Pest Control South, Inc., 313 Ga. App. 110 (remand required where trial court failed to rule on expert exclusion motions)