This appeal arises from an action by materials supplier C. W. Matthews Contracting Company, Inc., to recover on a guaranty made by Larry Fletcher. Following a jury verdict and the entry of judgment for C. W. Matthews, Fletcher moved for a judgment notwithstanding the verdict (j.n.o.v.) or, in the alternative, a new trial. Fletcher claims that the trial court erred in denying his motion because the evidence demanded a verdict contrary to that returned by the jury, and, if not, the trial court’s errors in charging the jury, among other things, required a new trial. We agree with Fletcher that there was no evidence of his bad faith which could support the jury’s award of attorney fees under OCGA § 13-6-11, and that the trial court erred in failing to grant his motion for j.n.o.v. as to that claim. But for the reasons set forth below, we conclude that Fletcher’s other claims of error are without merit. Accordingly, we affirm in part and reverse in part.
“There is a presumption in favor of the validity of verdicts. And after rendition of a verdict, all the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict.” (Citation and punctuation omitted.) Williamson v. Strickland & Smith, Inc.,
The testimony at trial largely concerned Fletcher’s guaranty. C. W. Matthews required, according to its manager, that N & N provide a completed credit application and an individual guaranty as part of becoming a customer to buy hot mix asphalt. A form guaranty was submitted by C. W. Matthews to N & N. Fletcher signed the guaranty, and it was returned to C. W. Matthews along with the credit application. C. W. Matthews then opened an account for N & N to draw asphalt.
The form guaranty was styled “Individual Gaurantee [sic].” It included several blank lines. Three of these lines had “Company Name” printed thereunder, and these lines were filled in by hand as “N & N Partners, LLC Dba N & N Asphalt.” One line in the body of the guaranty had “Individual” printed under it and was filled in by hand as “Glenn Neely/Larry Fletcher.” The signature line was in blank with “Individual” printed under it, and that is where Fletcher placed his signature.
After C. W. Matthews received the credit application and the signed guaranty, its credit manager sent N & N a letter that stated, among other things, “[y]our account has been approved with a $40,000 limit.” Following submission of the credit application, a handwritten note stating “Credit Limit $40,000” was also placed thereon by a C. W. Matthews representative. There was, however, no specific credit limit specified in the credit application as submitted to C. W. Matthews. Fletcher testified that his understanding was that his limit of liability would be $40,000 and that he would not have signed the guaranty if he had thought it was unlimited.
Notwithstanding the credit limit, N & N ordered more than $40,000 worth of material from C. W. Matthews. According to the testimony of C. W. Matthews’s representative, as of the day of trial N & N owed $126,428.28 on the account guaranteed by Fletcher. After C. W. Matthews rested its case, Fletcher moved for a directed verdict on the issues of its liability for damages and for attorney fees, which the trial court denied. The jury found in favor of C. W. Matthews and awarded $135,982.63 in compensatory damages, interest in the amount of $24,698.33, and attorney fees in the amount of $3,614.52. Fletcher moved for j.n.o.v. or, in the alternative, for a new trial. The trial court denied Fletcher’s motion, but, with consent of C. W. Matthews, reduced the principal amountofthejudgmentto $126,428.28. Fletcher appeals.
1. Fletcher contends that the trial court erred in denying his motion for j.n.o.v. because the evidence demanded a verdict contrary to that returned by the jury. A motion for directed verdict or j .n.o.v. is properly granted where “there is no conflict in the evidence as to any material issues and the evidence (construed in favor of the nonmovant) demands a particular verdict.” (Citation and punctuation omitted.) Hart v. Shergold,
(a) Fletcher contends that the trial court erred in denying his motion for j.n.o.v. because C. W. Matthews failed to meet its burden of proving an enforceable contract. He argues that C. W. Matthews failed to refute Fletcher’s testimony that it was an essential term of the agreement that Neely sign the guaranty as a co-surety. It follows, Fletcher asserts, that there was no meeting of the minds and no contract to enforce.
In order to make a binding contract, “[b]oth parties must assent to the same thing.” (Citation and punctuation omitted.) Harry Norman & Assoc. v. Bryan,
Looking first to the express language of the guaranty, the document is replete with express promises of the signatory, “I,” and Fletcher knew, as he testified, that he was signing a document providing, among other consistent undertakings, that “I make myself primarily liable for such indebtedness.” Further, there is nothing in the guaranty expressly providing that any promise of a signatory is contingent upon there being two guarantors. Nevertheless, according to Fletcher, his understanding was that the guaranty was not complete until signed by Neely, and that he would not have signed as sole guarantor. In that respect, the guaranty does identify the guarantor as “Glenn Neely/Larry Fletcher.” But the circumstances surrounding the guaranty’s making also show that the guaranty form Fletcher signed was on its face designed to be executed by one guarantor. Neither C. W. Matthews nor Fletcher, but a third party, wrote in “Glenn Neely/Larry Fletcher” over the line “individual.” And Fletcher acknowledged that his association with N & N began in 2007 when “Neely had fallen on some pretty hard financial times,” and Fletcher and others had “paid off [Neely’s] loans,” matters which the jury might find inconsistent with Fletcher’s claim that he thought Neely’s participation as co-surety was essential. There is at least some evidence from which a jury could conclude that Fletcher never intended that his obligations were contingent upon Neely signing the guaranty as co-surety and that there was, rather, a meeting of the minds when upon receipt of the guaranty signed by Fletcher, C. W. Matthews extended credit to N & N.
(b) Fletcher also claims that the trial court erred in denying his motion for j.n.o.v. because C. W. Matthews’s failure to procure Neely as a co-surety was either a change in the contract terms without Fletcher’s consent or a release of a co-surety, thereby discharging Fletcher from liability. See OCGA §§ 10-7-20; 10-7-21. But this argument assumes that there was an agreement that Neely act as co-surety, or that Neely was a co-surety. For the reasons discussed in Division 1 (a), supra, the evidence did not require such a conclusion.
(c) Fletcher argues that the trial court erred in denying his motion for j.n.o.v because C. W. Matthews failed to prove the correct amount due and should not have been awarded damages. We disagree. C. W. Matthews’s manager testified that the principal balance on N & N’s account as of the date of trial was $126,428.28. C. W. Matthews also introduced into evidence the invoices it had generated and submitted to N & N in connection with N & N’s asphalt purchases. On cross-examination, the manager explained that the original complaint alleged a greater amount due because C. W. Matthews thereafter “received some additional small amount of payments . . . close to $10,000,” by reasons of a materialman’s lien, and that “we gave full credit for any payment we received on the account.” Although Fletcher maintains that C. W. Matthews did not properly credit N & N’s account for monies it received from property owners, there was at least some evidence as to the correct amount of the indebtedness guaranteed by Fletcher, and the trial court did not err in failing to grant Fletcher’s motion for j.n.o.v. See, e.g., Multimedia Technologies v. Wilding,
(d) Fletcher further claims that the trial court erred in failing to grant his motion for j.n.o.v. on C. W. Matthews’s claim for bad faith attorney fees under OCGA § 13-6-11. We agree.
Conduct authorizing a fee award under OCGA § 13-6-11 must arise “from the transaction underlying the cause of action being litigated, not conduct during the course of the litigation itself.” David G. Brown, P.E. v. Kent,
We fail to identify any evidence that Fletcher breached the guaranty in bad faith or otherwise acted in bad faith in the contractual relations underlying the cause of action. C. W. Matthews points out that Fletcher’s company, Southern Crescent Site Development, performed work on the Coweta County airport project. Southern Crescent then hired N & N to work on the same project. Southern Crescent was paid for its work and in turn paid N & N, but N & N never paid C. W. Matthews for the materials it ordered and used on the project. C. W. Matthews argues that this “inexplicable chain of events” shows Fletcher’s bad faith. But as noted above, bad faith must constitute more than refusal to pay a just debt. See Young,
C. W. Matthews also points out that Fletcher took the position at trial that his guaranty was limited to $40,000, a position which C. W. Matthews characterizes as “not tenable” and shows Fletcher’s bad faith. But C. W. Matthews cannot rely on Fletcher’s conduct in the litigation to show bad faith for purposes of OCGA § 13-6-11. See David G. Brown, P.E.,
2. Fletcher claims that the trial court erred in denying its motion for a new trial. Generally, “[a]s long as there is some evidence to support the verdict, the denial of defendant’s motion for new trial will not be disturbed.” (Citation omitted.)
(a) Fletcher maintains that he was entitled to a new trial because the principal amount of damages awarded did not conform to the evidence, the trial court improperly charged the jury as to the amount of damages sought, and the interest awarded was arbitrary and not based on the evidence. We disagree.
(i) The jury returned a verdict which included an award of compensatory damages in the amount of $135,982.63, and the trial court initially entered judgment against Fletcher consistent therewith. The trial court, however, had inadvertently instructed the jury as to the amounts C. W. Matthews claimed it was owed at the time it filed the action, which included unpaid principal of $135,982.63. C. W. Matthews had contended at trial that the unpaid principal was only $126,428.28, and it had presented evidence to support that lesser claim. Accordingly, with C. W. Matthews’s consent, the trial court reduced the principal amount of the judgment to $126,428.28.
Fletcher contends that inasmuch as the jury’s verdict may not be substantively amended after the jury has disbursed, the trial court was required to order a new trial. See OCGA § 9-12-7; Force v. McGeachy,
(ii) As noted above, the trial court inadvertently instructed the jury as to C. W. Matthews’s pre-trial claims. The trial court was nevertheless able to correct the instruction’s likely effect on the outcome of the proceedings when it eliminated the illegal portion of the jury’s verdict. Fletcher never objected to the charge. Under the circumstances, the charge “was not so harmful as to be reversible in the absence of an objection.” Kitchin v. Reidelberger,
(iii) Fletcher further asserts that he is entitled to a new trial because the jury’s interest award was arbitrary and not based on the evidence. C. W. Matthews sought collection of commercial interest which had accrued on N & N’s unpaid invoices. See OCGA § 7-4-16 (providing, in part, that “owner of a commercial account may charge interest on that portion of a commercial account which has been due and payable for 30 days or more at a rate not in excess of IV2 percent per month calculated on the amount owed from the date upon which it became due and payable until paid”). The jury awarded interest in the amount of $24,698.33, although C. W. Matthews had asked for $59,168.43. Although it is not readily apparent
(b) Fletcher argues that the trial court’s jury charge on waiver was improper and requires a new trial. Again, we disagree.
Fletcher objected to the trial court’s charge to the jury that, “[ajlthough a guarantor may be discharged by an increase of risk or a novation, a party may waive his right to be discharged by an increase of risk or a novation if that party, through his conduct, assents to the increased risk or novation.” Fletcher suggests that the protections granted by OCGA § 10-7-21 (“[a]ny change in the nature or terms of a contract is called a ‘novation’; such novation, without the consent of the surety, discharges him”) and OCGA § 10-7-22 (“[a]ny act of the creditor... which injures the surety or increases his risk or exposes him to greater liability shall discharge him”) cannot be waived by conduct. However, “the protection of [these] Code sections can be waived by the guarantor’s consent to a novation or additional risk.” Underwood v. Nationsbanc Real Estate Svc.,
(c) Fletcher also objected to the trial court’s failure to charge the jury, as he requested, that Georgia adheres to the principle that a contract is construed against the drafter. “In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Citation and punctuation omitted.) Brown v. Mann,
(d) Fletcher further contends that he was entitled to a new trial because the jury’s verdict as to the amount of attorney fees was arbitrary and not based on the evidence. In view of our findings in Division 1 (d), supra, this issue is moot.
Judgment affirmed in part and reversed in part.
Notes
In addition to bad faith, “statutory recovery for stubborn litigiousness or causing unnecessary trouble and expense is authorized if there exists no bona fide controversy or dispute regarding liability for the underlying cause of action.” David G. Brown, P.E. v. Kent,