*1
thаt this comment
The trial court’s order in the case states
joking
Abernathy
in
but rather was directed
was not directed at
response
170,
her
in
to the
manner toward Juror No.
who raised
hand
supported by
question.
statement,
trial
This is
court’s next
court’s
proud
judge states,
No. 170. The
“I’m
which is directed toward Juror
you’d
give
your
you, too,
stand,
me
and number.”
ma’am. If
name
object
Abernathy’s
Mоreover,
to this
we note that
counsel
Accordingly,
find
17-8-57.
§
statement.
we
no violation OCGA
Abernathy
spoke improp
addition,
that the trial
asserts
court
erly by stating
verdict,
after the return of the
“Youtackled
admirably
that task
Pretermitting
and reached the correct verdict in this case.”
improper statement,
issue of whether this was
requiring
find
error
reversal.
amounted
wе
no
“Whether
statement
improper expression
approval
jury’s
to an
verdict is imma
remedy
terial since the
prohibit
for such a remark is not a new
but to
offending judge
presiding
[in
from
over the new trial
(b).” (Citations
granted].
§
event a new trial is
17-9-22
omit
OCGA
ted.) Magsby
169 Ga.App.
(5) (
Decided March Yeager, Yeager, Bowens, Bowers, Guerra & Cindi L. Carl W. for appellant. Attorney, Darragh, Bag- Dеal, J. Jason District Lee C. Jennifer Attorneys, appellee.
well, Assistant District A05A2005. ANDERSON v. CAYES. SMITH, Presiding Judge. appeal judgment
This is an from a verdict favor of plaintiff personal injury arising Kristen in a from a error, rear-end collision. his sole enumeration of defendant Ronald appeals jury’s separate from the award of the costs of contending 13-6-11, § under that the evidence did OCGA denying such an award and that the trial court erred in agree for directed his motion verdict this issue. We and reverse. permits fees 13-6-11 to award has been the defendant has acted bad “where unnecessary plaintiff stubbornly litigious, or has caused the expense.” exists, If a bona may plaintiff under this Code section recover underlying faith in the if the defendant has acted bad of a bona fide transaction. Issues the existence *2 controversy generally are or a defendant’s bad faith Finally, fees under to decide. an award of any if evidence 13-6-11 should be affirmed there is support it. omitted.) Dept. Transp. (Citations Hardin-Sunbelt, Joint Ven of App. (4) (596 397) (2004). ture, Ga. Cayes acknowledged
Here, act in bad that Anderson only stubbornly litigious contеnding and caused that he was unnecessary expense. her trouble and only
When bad faith is not an issue and the asserted basis recovery attorney litigiousness or of fees is either stubborn causing unnecessary expense, there is not “any support pursuant evidence” to an award to OCGA controversy clearly if a fide exists § 13-6-11 bona between parties. issue, Thus, in а case bad faith is not an where if OCGA§ fees are not authorized under 13-6-11 the — genuine dispute evidence shows that a exists whether of damages, fact, on law or on or amount of comparable issue.
(Citations punctuation omitted.) and M & H Constr. Co. North Corp., (1) (519 287) (1999). Fulton Dev. “[I]t is for the to determine whether there was a bona fide controversy, preclude unless the facts such a as a matter of (Citаtion punctuation omitted.) law.” and Webster v. appeal 845, Resolution of this depends upon presented
therefore whether bona controversy as a matter of law. align noted,
As the trial court the facts of this case do not precisely supra, Webster, either with those of or those of Daniel v. Smith, 266 and Daniel Webster consider the existence оf a bona fide collision in automobile they opposite light suits, But in reach conclusions. ofthe general area, law in this the facts of this case are closer to those of respect Webster and show a bona fide major this case and Daniel is The distinction between liable, been even had the in that case would still have defendant acсident occurred as here, But he Cayes Id. at 639 driver contended. riding had been in which testified of stopped approached car Anderson’s truck in traffic for “a moment or two” when “slammed into” their vehicle from behind. Anderson preparing however, down for traffic testified, that he was to slow riding, including cars, one or two the car which when suddenly into his lane and thаt he was unable to avoid them. swerved change possible (a) (driver may lanes when SeeOCGA§ 40-6-123 safety”). example “swearing “with reasonable This is a classic by a contest” which must be resolved weigh relying here, to ask that we the evidence seems multiple support events,
the assertion that witnesses her version of produced while Anderson no other witnesses his account. Cayes acknowledged cross-examination, however, On she was paying that much and could not describe how the “not collision occurred. The driver of attention”
Cayes’s independent vehicle is not an long-time Cayes. testimony addition, friend witness but a self-serving testimony points could be considered because Anderson’s part. police dеgree to some independent on his officer had no simply recollection ofevents and testified from his *3 report, the which stated that Anderson told officer that could not eyes. charge see because the sun in his The officer did not any offense, Anderson with unlike the defendants in Webster and pled guilty charges. Daniel, both of whom to traffic story, also contends that Anderson but his deposition testimony testimony is consistent with his at trial. The police report, substantial variation is between the account in the independent recollection, of which the officer has no and Anderson’s testimony. consistently telling the denied officer that eyes speaking the sun was in his and indeed denied with the officer possible at all abоut how the accident occurred. He offers as a explanation mistakenly him officer attributed to the state- eyes. ment of a fourth driver involved that the sun was in her Spring in in This conflict the evidence is unlike that cases such as 31) Property (390 Peacock, Lake Owners Assn. v. 260 80 SE2d Ga. (1990), (301 Brinegar, Inc., or Jackson v. (1983). Spring completely Lake, In the defendant altered its defense during litigation. represented Jackson, the the first to completed his lender that construction of a home was to his satisfac- tion, but did not remember until trial “numerous construction defects sought against plaintiff.” Id. which he to set off the claims ofthe at 436 closely resembles The conflict between Anderson and more in Backus Cadillac-Pontiac Ga. (365 court’s dеnial Backus, reversed the trial we fees, of trial on the issue of a motion for new (1), though plaintiffs sharp conflict,” at 747 even “in id. evidence alleged agent them, to an certain admissions that defendant’s made allegation Id. at 746-747. the defendant denied. provision o“[n] ofour Constitution be mindful ofthe
We must right prosecute deprived person defend, in or either tо shall be person’s attorney, person cause in ofthe courts own or I, 1983, I, Par. XII. of Art. Sec. of this state.” Ga. Const. granted privilege the defendant as well as
This is plaintiff. there is a bona fide Where adjust amicably, parties settle, and the can tribunals to there should be no burdening of one with the counsel fees of indul- other, there has been wanton or excessive unless gence litigation. punctuation omitted.)
(Citations Haas, West extending scope about We must cautious disputed of OCGA 13-6-11 to those cases which negligence. issues of clearly instant demon-
The evidence of record case strates that a bona fide does exist as whether negligence appellant the collision was caused negligenсe appellee It or the of both. is the general questions negligence, dili- law of this state that contributory proximate gence, negligence, and cause are peculiarly jury resolution, should issues for and a court jury except plain remove the issues from the putable and indis- Accordingly, genuine dispute cases. does exist in the instant case.
(Citаtions punctuation omitted.) Baker, Brown v. 197 797) (1990) (physical precedent only).1 Here, the existence of a bona fide and a reasonable defense at trial precludes expenses the award of fees and under failing grant § 13-6-11. The trial court erred in Anderson’s *4 motion for directed verdict on issue of fees. only. Judgment J., Ruffin, C. reversed Ellington, Phipps
Andrews, J., Johnson, J., Barnes, Millеr, P. P. Blackburn, Bernes, JJ., Mikell, JJ., J., concur. P. Adams and dissent. 1 only, physical precedent only, judge having judgment in the Baker is one concurred While precedential approval without comment as to its value on several we have cited it and 638; Co., Daniel, supra supra & H at 714. occasions. See at M Constr.
596 Judge, dissenting.
ADAMS, respectfully because evidence that the defendant has I dissent story not a bona or her is some evidence that question dispute. circumstances, those of whether fide there was a bona fide the Under jury, dispute taken from the should jury reason, I authorized to award fees. For the same would App. (446 522) (1994). Brown, 213 845 SE2d overrule Webster v. Ga. does not base her claim for fees on an agree, Kristen As all underlying
allegation that Anderson acted in bad faith trans- suggest words, action. In other she does not caused the litigious- intentionally. Instead, she claims fees for stubborn collision causing unnecessary expense. case, a a ness or trouble and such controversy dispute recovery not if a bona fide or exists is authorized Realty App. liability. King Rich, to the defendant’s Indus. 224 Ga. as (6) (481 861) (1997). below, SE2d As shown this is thing saying recovery only same аs that a is authorized if there is no controversy dispute that the defendant liable. or is
Normally, jury, qualified fact, a as finder of to decide whether controversy App. Toncee, Thomas, a bona fide exists. Inc. v. 219 Ga. (3) (466 uphold 539, 542 SE2d It follows that we will jury decision of the if there is some or evidence to regard. Id.; Moister, determination (282 Fuller 889) (1981); Brinegar, (2) Inc., Jackson v. 165 Ga. (301 cоntroversy
A and a bona fide are two different things. dispute arising Abona fide or is one made or out genuine. deceit; without fraud or it is sincere or See Dictionary (8th 2004). Black’s Law controversy ed. A who defendant concocts a dispute by engaging during litigation
or in fraud or deceit subject expenses litigiousness is causing unnecessary for stubborn expense. examplе, a For originally who admits fault but then fabricates a defense for the controversy. not created a A has if that bona fide is allowed to determine case and award fees under OCGA 13-6-11. disputes Some are not bona fide because the facts and law are not e.g., See, and the defendant is liable as a matter of law. 317) (1972) Williams, Cab Co. v. Buffalo disputed (defеndant liability); neither offered evidence at trial nor 432) (2004) (defen- Smith, Daniel v. liability). But dant’s own version of facts established his it cannot be only proper complete that a fee award is when there is absence of a fact the defendant’s If defense or oflaw or case, that were the then there would be no reason making finding of fact but consider the issuе. It would not be jury’s responsibility words, on the of no facts. other *5 type presented no to that here is not determine of fee issue dispute to but rather deter- that the defendant liable whatsoever dispute his or her mine whether there was a bona They limited nor for the more rule. Neither Cab Daniel stands Buffalo easily merely present the that are within correct factual situations rule. disputes bona fide even is so are not
The reason this
is that some
though
that the defendant
are in
if it can
shown
the facts
litigation.
e.g.,
regard
See,
not
faith
to the
has
acted
Spring
Property
Peacock,
was bona Id. at 81-82. was one fide. properly despite the fact that there continued to be a question located. factual аbout where the road was present adhering proper case, In the we are standard of straying plaintiff Cayes acknowledge review, it, from if we that presented originally Anderson admitted but some that fault then fabricated a defense accident;
Four cars in the in order from were involved front Bronco, back were a Ford a white Honda in which riding, truck, Andеrson’s and a car driven a woman. morning admitted he headed toward the
Anderson that was east day, sun on approaching on a that Interstate 16 clear cloudless and he knew he was “pretty an area where the traffic slows down dramati cally.” per approached traveling Yet he was to 70 miles as he hour He first denied talked to him area. аt officer about yet did, But he later that he he testified accident. admitted he never told the officerthe dramatic version events that he related passed possibly going at that one or two cars him while he was suddenly per 65 to 70 miles hour and cut in front ofhim then slammed immediately upon Rather, on their brakes. the officer testified that hitting scene, his arrival at thе accident Anderson admitted passenger he was unaware and said that Honda in which eyes.2 stopped in his had because the sun was that the Honda only going he was about one also testified at trial that per impact. the Honda struck He claimed that the reason mile hour at car, him, the car behind the fourth the car ahead of it was because deposition, Yet at his his truck and the Honda forward. shoved explanation. give And he no other evidence at trial this introduced support his claim. facts, a was authorized to conclude that Ander- From these *6 story. thing swearing changed contest, it his It is one to have a son attempt change story in front of a in an to avoid another to one’s correctly judge submitted the issue to the The trial (1990) (physical 797) Baker, Brown v. precedent only), distinguishable. In no evidence that case was during litigation. Rather, that in bad faith the defendant acted solely upon [the] [the fee claim “was based contention that defen- liability ‘arbitrarily capriciously insurer had refused to dant’s] [plaintiffs] faith claim and made unrea- make a sonably еffort settle attempt [plaintiff] offers in an to force low of settlement... ” . . to settle his claim for less than the true value thereof. .’ Id. at 466-467. This Court first made clear that the insurer’s actions were alleged not relevant because the case concerned the (1). Id. at 467 Then the court tortfeasor. concluded controversy [did] showed that “a bona fide еxist as to whether the by negligence appellant negligence collision caused or the appellee or the of both.” Id. at 469 And the evidence willingness showed “a on the [the defendant] to resolve litigation.” (5). Thus, matter without resort to id. at 469 there was nothing suggest controversy. the absence of a bona fide
Webster should be overruled. that plaintiff cаse, the and a testified that the admitted witness looking at the that he and that the scene collision was his pled guilty charge improper fault; he also to a left turn. Id. at 847. pled guilty But at charge he denied fault and stated that he to the traffic to end the matter. Id. A should have been allowed to story. Instead, determine whether the defendant had this weighed Court the evidence when concluded that the defendant’s explanation at-trial not so “was shallow demonstrate absence controversy. of a bona fide . . .” Id. policereport Although was not introduced into evidence. the officertestified The officer’s events, independent he that he remembered
that he did not have an what the recollectiоn. recollection ofthe testified people report, told him and what was in his which had been used refresh his Judge Presiding Blackburn and to state authorized I am join Judge in this dissent. Bernes 30, 2006 March
Decided appellant. Harris, Smart, for Don & Smart appellee. Lloyd Bell, Bell, N. & Jones CORPORATION A05A2130, U. S. MICRO A05A2131. al.; vice versa. SYSTEMS, et LLC ATLANTIX GLOBAL (630 SE2d Judge.
Adams, brought Corporation suit for defamation/libel Micro County against U. S. Systems, LLC and Atlantix Global Gwinnett arising primarily of an e-mail president William out Woerner computer equipment suggested sold Woerner, in which nearby might it was located because have “health issues” Micro U. S. when World September 11, 2001. attacked on Center was Trade by a related claims asserted similar defeated Atlantix and Woerner present County then party court. Both sides Fulton in a County designed the Fulton the results of to utilize filed motions *7 Micro U. S. dеnied both motions. The trial court in this case. cross-appeal. appeals, Atlantix and Woerner and now Optimus Atlantix, Micro, and U. S. shows that The record brokerage computer operate market. resale Solutions, all LLC Microsys- bought supply Sun of used 2001, U. S. Micro In October (“the equipment”) computers in an office been located that had tem September building U. S. 2001. Trade Center on the World near Optimus, sought Atlantix, and bids from and received Micro then consign- equipment remarketing on a ofthe and later sold some for the resale others Optimus or all of the contract basis. won ment parties. equipment to third president May Atlantix, sent an e-mail 2002, Woerner,
On potential hazards related health to three individuаls language pertinent equipment. as follows: the e-mail reads potential problem. brokers about from several I’ve heard Lynch Apparently numerous machines had Merrill dispose of all were disaster near WTC were They potential sent to were health hazards. due to machines properly requested scrapper who was here in Atlanta They dispose another them to sold them. Guess what?