Appellant/cross-appellee (Joan Read) appeals the orders of the superior court denying her motion for new trial on the issue of punitive damages and her motion for reconsideration of partial directed verdict on the issue of interest claimed; and granting appellee/crossappellant’s (Thomas Benedict) motion for judgment notwithstanding the verdict on the issue of attorney fees and striking $26,250 from the verdict and judgment entered. Appellee/cross-appellant has cross-appealed the order of the trial court denying his motion for judgment notwithstanding the verdict or, in the alternative, for new trial on the issues of voluntary payment and unjust enrichment.
This appeal arises from a suit for legal malpractice in which Joan Read in essence averred that Thomas Benedict, an attorney, was neg *5 ligent in closing the sale of her family’s home then owned by her mother. Closing occurred on or about July 1986. Specifically, Joan Read asserted that Thomas Benedict improperly structured the real estate loan closing against her express wishes so as to cause the tax liens of her husband (John Read) to attach to the property, and then improperly advised her regarding the attachment of these liens. Held:
Case No. A91A0181
1. Appellant asserts the trial court erred in granting appellee’s motion for judgment notwithstanding the verdict on the issue of attorney fees and expenses of litigation, because “sufficient evidence of appellee’s bad faith was presented at the trial and the trial court erred in granting appellee’s motion for judgment notwithstanding the verdict on the issues of attorney fees and expenses of litigation.”
Pretermitting the bad faith issue is the question whether appellant’s trial tactics failed to preserve the bad faith issue for appellate review. We find the issue has not been preserved.
The record reflects that during the charge conference, the trial judge informed the parties that appellant’s request to charge number 12 on the issue of costs of litigation would be given, except he was going to inform the jury that the issue of bad faith would not apply. Then the trial judge expressly informed the parties that “therefore, the only way attorney fees could be awarded in this particular action, in my judgment, is that the jury [will] have to find the defendant had been stubbornly litigious or had caused the plaintiff unnecessary trouble and expense.” (Emphasis supplied.) Thereafter, appellant’s counsel presented “a couple of comments about some [charges] that [he thought] would be erroneous,” but did not raise any objection to the trial court’s ruling regarding the bad faith issue. Subsequently, the trial court pertinently charged the jury, regarding the award of litigation expenses, that “where the defendant has acted in bad faith in making the contract — and that does not apply in this case because there is no bad faith as this judge has determined in making the contract.” Thereafter, when asked if there were any exceptions or objections to the charge, appellant voiced several issues, but did not take any exception or objection to the exclusion of bad faith from applicability during the charge on expenses of litigation.
By failing to object or take timely exception to the trial court’s exclusion of the bad faith from jury consideration, whether such exclusion was intentional or accidental, appellant by her own trial tactics assisted in misleading the trial court, generating the ruling and charge at trial, and in preventing the jury from considering the issue of bad faith in its award of litigation expenses. As a result, the jury, under the charge as actually given and to which no exception was
*6
timely taken, could not have awarded attorney fees on the basis of a bad faith finding. On appeal appellant cannot complain of a judgment, order, or ruling that her own procedure or conduct aided in causing.
West v. Nodvin,
Moreover, assuming arguendo, the issue of bad faith had not been abandoned, it was without merit. A genuine controversy existed in this case as a matter of law, and the existence of a bona fide controversy generally precludes any claim for attorney fees based on bad faith. See, e.g.,
EBCO Gen. Agency v. Mitchell,
Having waived bad faith, there are only two grounds remaining on which the award could be supported. “When bad faith is not an issue and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not ‘any evidence’ to support an award pursuant to OCGA § 13-6-11 . . . if a bona fide controversy . . . exists between the parties.”
Dimambro Northend Assoc. v. Williams,
2. Appellant asserts there was sufficient evidence to support an award of punitive damages and the trial court erred in granting appellee’s motion for directed verdict thereto and in refusing to grant a new trial thereon.
Regarding the error enumerated, we note that punitive damages would not lie as to any ex contractu claim in this case. OCGA § 13-6-10. However as to causes of action grounded in tort, such as exist in this case, an award of punitive damages can lie. See, e.g., OCGA § 51-12-5. Although “[m]ere negligence, although gross” will not support an award of punitive damages
(Associated Health Sys. v. Jones,
In this case, there is some evidence, albeit strongly controverted, which if believed by the jury would establish appellee entered an attorney-client relationship not only with the lending institution but with appellant and her husband, Dr. Read; that a potential conflict of interest thereafter arose between the lending institution (which issued lending instructions requiring that Dr. Read acquire title to the property contrary to the wishes of appellant); that a potential conflict of interest also may have existed between appellant and her husband, Dr. Read; that nevertheless appellee continued to represent all parties; that at closing appellee favored the desires and legal interests of the lending institution over appellant and ignored the desires and legal interests of appellant by preparing closing documents that passed title to Dr. Read before vesting title in appellant, Joan Read — with a result Internal Revenue Service (IRS) tax liens recorded against Dr. Read attached to appellant’s family home contrary to her express wishes; that appellee failed to make a timely and full disclosure to the Reads of the legal efféct of the closing documents in regard to IRS tax liens attachment, thereby precluding them from making an informed choice whether to elect not to close and to seek another lending institution; and, that appellee in whom appellant put her trust because he was “the attorney” advised her it was required that the property be transferred to Dr. Read, but that by recording the deeds together the IRS tax lien would not attach to the property.
A motion for directed verdict cannot be granted if there is any evidence,
direct or circumstantial,
creating a material issue of fact.
Armech Svc. Co. v. Rose Elec. Co.,
3. Appellant asserts that her claim for interest was supported by sufficient evidence and the trial court erred in granting appellee’s motion for directed verdict on the interest claim. We disagree. No competent evidence was introduced at trial to establish the prime rate applicable to the interest calculation. Prime rate fluctuates and is not a proper subject for judicial notice. The trial court properly did not take judicial notice of the prime rate and instruct the jury regarding such fact. Moreover, because of its fluctuating nature, the particular prime rate at any given moment is not the type of fact normally to be found within a person’s “general knowledge and experience” of which the jury sua sponte could take “judicial cognizance.” See generally Green, Ga. Law of Evid. (3d ed.), § 6. Further, an individual juror could “not act on his private knowledge” of the applicable prime interest rate (OCGA § 9-10-6), and the jury, either individually or as a group, could not base its award of interest upon speculation.
McGarr v. McGarr,
Case No. A91A0182
4. For the following reasons, we are satisfied that the trial court did not err in denying cross-appellant Benedict’s motion for judgment notwithstanding the verdict or, in the alternative, for new trial on the issue of voluntary payment.
We find that
Ins. Co. &c. v. Kyla,
Cross-appellant asserts that, subsequent to closing, Joan Read voluntarily made certain payment to the IRS to obtain release of the tax liens of the premises, and accordingly such voluntary payments are not recoverable under the provisions of OCGA § 13-1-13.
In denying the motion, the trial court inherently concluded the defense of voluntary payment would not apply to preclude a plaintiff *9 from recovering damages in a tort action from a tortfeasor merely because plaintiff previously had made payment to a third-party creditor in settlement of an indebtedness which had been proximately caused by the negligence of the tortfeasor in question. Moreover, the trial court expressly declined to apply the defense of voluntary payment to a so-called “three-cornered transaction, culminating in a tort claim”; thus a voluntary payment by Joan Read to the IRS, and not to attorney Thomas Benedict, to remove the tax liens was in effect held not to give rise to a legitimate defense of voluntary payment within the meaning of OCGA § 13-1-13. We agree.
Although OCGA § 13-1-13 in appropriate circumstances clearly could be applied in a suit brought by plaintiff so as to preclude recovery from “the other party” of the amount originally given by the plaintiff to “the other party” in voluntary payment of a “claim,” (compare
First Nat. Bank &c. v. Mayor &c. of Americus,
5. Cross-appellant’s assertion that the trial court erred in denying his motion for judgment notwithstanding the verdict or, in the alternative, for new trial on the issue of unjust enrichment also is without merit. The trial court in essence concluded the defense of unjust enrichment does not apply where the award by the jury is based on “evidence of damage in a tort action.”
“No person is unjustly enriched unless the retention of the benefit would be unjust.” 66 AmJur2d, Restitution & Implied Contracts, § 3. Viewing the record in its entirety and in light of this principle, we are satisfied that cross-appellee has not been unjustly enriched by the jury’s award of damages.
For the reasons above stated, the judgments of the trial court are affirmed, except as to its holdings granting appellee’s motion for directed verdict and refusing to grant new trial on the issue of punitive damages.
Judgments affirmed in part and reversed in part.