Evidence at trial showed that in December 1997, Mackendrick met with St. Amant and requested various customizations to his 1972 Cheyenne Chevrolet four-wheel-drive truck. According to Mackendrick, because he considered the “original estimate” or “quote” of $22,000 excessive, he and St. Amant agreed that the installation of one-ton military axlеs, which totaled
Beginning in March, Mackendrick repeatedly called 4WD to determine the truck’s status, but was told only that “they were working on it,” that the truck “looked, good,” and that “it would be a little while longer.” In August, Mackendrick went to 4WD and saw his truck sitting outside. It had been “stripped.” Some of his truck’s parts were for sale on the showroom floor. He could not discern that any of the requested customization had been done. He complained tо St. Amant and demanded his truck. St. Amant told Mackendrick that he had “$18,000 worth of interest” in the truck. He refused to release it and called the police. Mackendrick left the premises, advising that he would resort to legal action. St. Amant responded, “Go ahead, you are wasting your money.” In
But Mackendrick did not receive his truck from 4-WD until October 24, 2001. The body of the truck had rusted. Many of its original parts were missing. For many reasons, the motor was not usable. The brakes were inopеrable. It had to be towed from the premises, and the towing wrecker almost lost the bed of the truck because it had been unbolted from the bed assembly. Mackendrick presented evidence that the only work that had been done to the truck was “some plates [had been] welded on the rear lеad shackles,” but it did not appear that the work was related to the requested customization.
The defendants presented their account of the matter. St. Amant testified that the initial contract price was actually $22,000, and that the $12,000 Mackendrick paid was only a deposit. When 4WD received thе truck in January 1998, 4WD brought the truck inside and worked on it for two months.
In ruling in Mackendrick’s favor, the trial court awarded him $12,000 on the breach of contract claim, $14,000 for loss of the value of the vehicle, $4,320 prejudgment interest, and $6,000 in attorney fees. It further allowed Mackendrick to retain the truck and 4WD to retain any parts, whether ordered for or removed from the truck, that were then in its possession.
1. (a) 4WD contends that the award of damages in the amount of $14,000 for loss of value of the truck was not supported by the evidence because Mackendrick failed to еstablish a foundation for his opinion of the truck’s fair market value before and after it was in 4WD’s possession. Where, as here, a party sues for damages for conversion and the property has been returned before trial, the party may be awarded the amount of diminution in fair market value of the property during the time period between the alleged conversion and the property’s return.
Mackendrick presented evidence of the fair market value of the truck through the testimony of himself and others. For lay opinion to be probative of fair market value, it “must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property or similar property and he must give reasons for the vаlue assessed and also must have had an opportunity for forming a correct opinion.”
Mackendrick had experience in building “high horsepower motors” and had also “built a truck.” He had researched various older model trucks for restoration for three or four months before selecting the truck at issue in this case. After purchasing it, he “had done some additional stuff to it.” Based on what he encountered over several months of searching and his knowledge of motors, he stated that the fair market value of his truck was “roughly $15,000” when he drove it to 4WD and that it was worth less than $1,000 when it was towed away.
In addition, Mаckendrick presented the testimony of Mark Franklin, who had 17 years experience in “general repair and performance work” on automobiles, including four-wheel-drive vehicles. Franklin estimated that before Mackendrick’s truck was taken to 4WD, it was worth $15,000 to $20,000, based on “everything that was done to it, liftеd up, the wheels and tires, the shape and condition of the body and the engine.” After Mackendrick regained possession of it, Franklin testified, the truck was “not usable at all.” Mackendrick also presented the testimony of Joseph Beatty, who had purchased four trucks. Beatty estimated that beforе Mackendrick’s truck was taken to 4WD, it was worth $10,000 to $15,000.
Contrary to 4WD’s contention, we find that the court’s award was within the range of sufficient probative evidence as to the fair market value of the truck before and after it was in 4WD’s possession.
It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violatеs a duty owed to plaintiff independent of the contract to avoid harming him. Such duties may arise from statute, or flow from relations created by contract, express or implied. The violation of any such specific duty, accompanied with damage, gives a right of action. In order to maintain аn action ex delicto because of a breach of duty growing out of a contractual relation the breach must be shown to have been a breach of a duty imposed by law and not merely the breach of a duty imposed by the contract itself.5
The evidence adduced at trial authоrized the court’s finding that 4WD had breached' the contract, under which it had received $12,000. It also authorized the court to find that, apart from failing to perform its obligation under the contract, 4WD had breached a duty imposed by law not to cause the diminution of the truck’s value. OCGA § 44-12-77 provides: “The relationship of the owner of an automobile and the owner of the garage in which the automobile is stored is that of bailor and bailee. The bailee is bound to use ordinary care for the safekeeping and return of the automobile.”
2. 4WD contests Mackendrick’s award of attorney fees under OCGA § 13-6-11, which allows such fees “where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trоuble and expense.”
(a) 4WD now complains that Mackendrick did not specially plead for that award. But when Mackendrick’s attorney offered evidence at trial concerning the attorney fees earned in this case, no objection was made. Rather, defense counsel cross-examined Mackendrick’s attorney about his rates and the number of hours he had worked on the case. Because the issue of attorney fees was litigated without objection from 4WD, the pleadings must be treated as if amended to include a plea and prayer for them.
(b) 4WD complains that the trial court refused to hear evidence on its claim for attorney fees pursuant to OCGA § 13-6-11. Not only does this argument impermissibly expand upon 4WD’s enumeration of errors, but it also lacks merit. Attorney fees are not recoverable under OCGA § 13-6-11 where there is no award of damages or other
(c) 4WD contends that the evidence did not support an award of attorney fees. We will affirm an award of attorney fees under OCGA § 13-6-11 if there is any evidence to support it.
Here, Mackendrick did not allege bad faith. The triаl court based the award on its finding that 4WD had been stubbornly litigious and had caused Mackendrick unnecessary trouble and expense. Where “bad faith is not an issue and the basis for attorney fees is either stubborn litigiousness or unnecessary trouble and expense, there is not any evidence to support an аward pursuant to OCGA § 13-6-11 if a bona fide controversy clearly exists between the parties. [Cit.]”
4WD . argues that the cleаr existence of a bona fide controversy between it and Mackendrick precluded an award of attorney fees in this case. We agree that the evidence was in conflict as to which party first breached the contract. Mackendrick presented evidence that he had performed in full by paying $12,000 to 4WD, but that the company then failed to perform the contracted work. 4WD, on the other hand, presented evidence that the initial contract price was $22,000.
However, the evidence did authorize an award of attorney fees to Maсkendrick for prosecuting the claim to recover for the loss of value to his vehicle. It is uncontroverted that during the pendency of the bailment, there was destruction or deterioration to Mackendrick’s truck. 4WD’s assertion that Mackendrick owed it money was not a viable defense for its failure to keep the truck safe. Rather than safekeeping the truck, 4WD took an attitude of “so, sue me” and showed no willingness to resolve the matter until a year after Mackendrick filed suit. 4WD has failed to support its claim that a bona fide controversy existed between it and Mackendrick regarding the conversion claim. Because there was some evidence to support the trial court’s award of attorney fees, attorney fees related to that claim were authorized.
(d) 4WD contends that the attorney fees award was not authorized because there was insufficient evidencе that the fees were reasonable. “An award of attorney fees is unauthorized if [Mackendrick] failed to prove the actual costs of [his attorney] and the reasonableness of those costs.”
Mackendrick’s attorney stated in his place the number of years he had been sworn to practice law, his billing rate, the number of hours already spent on the case, and the number of unbilled, but anticipated hours required by the case. He further stated that the incurred fees were reasonable. However, because he offered no billing records or any other evidence describing, with any particularity, how he spent his time, the court’s
Accordingly, we vacate the award of attorney fees and remand the case to the trial court to conduct an evidentiary hearing on the amount of reasonable attorney fees based on the conversion claim.
Judgment affirmed in part, vacated in part and remanded, with direction.
Notes
The court dismissed St. Amant from the case.
St. Amant also testified that he then notified Mackendrick that, based on an oral agreement for additional upgrades totaling $17,000, Mackendrick needed to pay an extra deposit of $6,000.
See Campbell v. Bausch,
(Citations and punctuation omitted.) Dixon v. Williams,
(Citations and punctuation omitted.) Waldrip v. Voyles,
See Turner v. Jackson,
OCGA § 44-12-65.
See Long v. Marion,
See generally Privitera v. Addison,
United, Cos. Lending Corp. v. Peacock,
Morris v. Savannah Valley Realty,
Id.
(Citations and punctuation omitted.) Backus Cadillac-Pontiac v. Brown,
This figure excludes upgrades that Mackendrick allegedly later requested.
See Backus Cadillac-Pontiac, supra.
(Citations and punctuation omitted.) Citadel Corp. v. All-South Subcontractors,
See Paul v. Destito,
See United Cos. Lending, supra; Destito, supra.