BRIAN SIMPSON v. GREG HUSFELD

• Court: Court of Appeals of Georgia
• Decided: June 15, 2022
• Docket: A22A0064
• Status: Published

Opinion

SECOND DIVISION RICKMAN, C. J., MILLER, P. J., PIPKIN, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

June 15, 2022

In the Court of Appeals of Georgia A22A0063. BIRCH PROPERTY PARTNERS, LLC et al. v. SIMPSON. A22A0064. SIMPSON et al. v. HUSFELD.

MILLER, Presiding Judge.

These two appeals stem from the faulty construction of a home. After a bench

trial, the trial court entered judgment in favor of the homeowner plaintiffs, Brian and

Shannon Simpson, on their claims for breach of contract and breach of warranty

against the builder, Birch Property Partners, LLC (“Birch Properties”). The Simpsons

also filed a negligent construction claim against Greg Husfeld, the owner and

operator of Birch Properties, but the trial court found in Husfeld’s favor on this claim.

In Case No. A22A0063, Birch Properties appeals from the trial court’s judgment,

arguing that (1) the trial court erred by failing to make findings of specific damages; (2) the trial court erred by awarding excessive damages; (3) the trial court erred by

failing to make findings on its counterclaims; (4) the trial court erred by allowing

certain expert testimony; (5) the Simpsons waived their claim for damages to the

driveway by making modifications; and (6) the trial court erred by awarding attorney

fees to the Simpsons. In Case No. A22A0064, the Simpsons cross-appeal from the

trial court’s judgment, contending that the trial court erred because it did not enter a

judgment against Greg Husfeld in his individual capacity.

In Case No. A22A0063, we affirm the trial court’s damages award to the

Simpsons, but we reverse the lump sum award of attorney fees and remand this case

for an evidentiary hearing to allow the Simpsons to segregate the number of hours

that were allocated to their successful claims. In Case No. A22A0064, we affirm the

trial court’s judgment in Husfeld’s favor.

“Where the trial court is the finder of fact, it determines weight, credibility,

opinion evidence, sufficiency, and admissibility of all evidence; if there is any

evidence to support the judgment, it must be affirmed.” Rice v. Lost Mountain

Homeowners Assn., Inc., 269 Ga. App. 351, 357 (7) (604 SE2d 215) (2004). And

“[w]here, as here, the parties do not request, and the trial court does not make, written

findings of fact, any enumeration of error that would require consideration of a

2 finding of fact cannot be reviewed on appeal. We review questions of law de novo.”

Gateway Community Svc. Bd. v. Bonati, 346 Ga. App. 653 (816 SE2d 743) (2018).

In April 2016, the Simpsons and Birch Properties executed an agreement for

the construction of a home on a property in Hoschton, Georgia. The initial cost of the

construction was $297,900, and the parties later amended the contract to reflect a

revised total of $326,324.56. The Simpsons moved into the home around December

12, 2016. Approximately three weeks later, on January 6, 2017, Shannon Simpson

sent a “punch list” to Birch Properties, itemizing various construction issues that

needed to be addressed. Husfeld responded, “Got it. I will get these items scheduled

and let you know when.”

In April 2017, after no repairs had been completed, the Simpsons hired a

structural engineer, Maureen Davis, to conduct a limited inspection of the home.

Davis inspects commercial and residential buildings for construction defects and code

compliance. In a detailed report, she identified, itemized, and included photographs

of numerous areas of concern with the home. Ultimately, Davis’ professional opinion

was that the home had been improperly constructed, that “distress [was] manifesting

itself throughout the home,” and that several defects needed to be repaired. In a letter

dated May 15, 2017, Brian Simpson requested a “plan of action” from Birch

3 Properties, and he also sent a copy of Davis’ report. Thereafter, the Simpsons and

Birch Properties continued discussions regarding repairs at the property, but in July

2017, the Simpsons requested that Birch Properties cease attempts to continue work

on the property.

The Simpsons filed suit against Birch Properties for breach of contract and

breach of warranty, and they also filed a negligent construction claim against Husfeld

in his individual capacity. The Simpsons further requested attorney fees under OCGA

§ 13-6-11 on the basis that the defendants had acted in bad faith, had been stubbornly

litigious, and had caused them unnecessary trouble and expense. Husfeld

counterclaimed for attorney fees and litigation expenses on the basis that the claim

against him was frivolous and lacked substantial justification. Birch Properties

counterclaimed for wrongful attempted termination of contract, breach of contract,

and attorney fees.

At the ensuing bench trial, Davis was admitted as an expert witness and

provided extensive testimony on the specific major repairs required. There were large

gaps in the wood flooring, and when she reinspected the home in 2020, portions of

the flooring had delaminated from the concrete surface and parts of the floor were

“popping.” Davis testified that the flooring had not been properly installed and that

4 the concrete surface was not adequately “prepped” before the wood was laid down.

In her view, the flooring needed to be removed and reinstalled. Additionally, Davis

observed that the driveway was improperly sloped, which was causing drainage

issues and damage to the concrete. In her opinion, the driveway did not meet industry

standards, and portions of the driveway needed to be replaced. Next, although the

plans for the home included a foundation drainage system, it had not been installed.

The drainage from the roof presented a code violation in that the “roof runoff” was

not sufficiently extended which led to the over-saturation of the soil adjacent to the

foundation of the home.

Davis further observed decay in the exterior trim and that water was not being

adequately drained from the siding of the home, and she determined that the siding

had to be removed. She also testified that while the plans for the garage called for

steel I-beams, Birch Properties had downgraded to laminated veneer lumber beams.

Because of the “end bearing” of these beams, there was distress in the rear wall, and

upon her reinspection of the home in 2020, Davis saw that the cracks in the wall were

expanding and impacting the operation of the windows in the garage. In order to

remedy these issues, the wall cavities had to be opened, the sheetrock needed to be

replaced, the window frames required readjusting, and the windows needed to be

5 reset. Additionally, the quality of the stonework on the exterior of the home was poor,

there were clumps of mortar in the stonework, and “many of the penetrations through

the stone veneer” had not been sealed. Davis then testified about the attic, explaining

that the home did not satisfy “the conditions of the building code” because there was

no unobstructed path to the furnace equipment. Therefore, the ductwork needed to be

relocated or the furnace itself had to be moved. Ultimately, Davis opined that Birch

Properties was required to comply with the plans and specifications for the home,

abide by industry standards and building codes, and perform the work in a “good and

workmanlike manner.” In her opinion, however, Birth Properties failed to meet the

standard of care with regard to the defects to which she had testified.

Davis also testified to a host of miscellaneous concerns with the interior and

exterior of the home, including the improper placement of the laundry room sink;

misaligned kitchen cabinets; an improperly installed pocket door; drywall distress in

the bathroom; a damaged patio door; and a condensate line that allowed water to

drain directly onto the foundation, which can weaken the foundation of the home.

Davis opined, however, that she did not view these miscellaneous items to be

construction defects; rather, some of the items were important to the Simpsons and

others reflected quality issues. Based on Davis’ report, Tom Hordos of Creative Edge

6 Construction prepared an estimate for all of the repairs, which amounted to $216,798.

Hordos, who was also admitted as an expert witness at trial, agreed that Birch

Properties failed to build the home using the quality and standard of care typically

used in the area for finishing homes. Birch Properties’ expert proposed alternative

repairs to those listed in Davis’ report and testified that some of the repairs were not

needed. In Husfeld’s estimation, the repairs in Davis’ report amounted to $15,000.

The trial court entered a “final order and judgment” solely addressing the

Simpsons’ claims and awarding them $156,620 on their breach of contract and breach

of warranty claims and $21,679.28 in attorney fees. As to the negligent construction

claim against Husfeld in his personal capacity, the trial court found in Husfeld’s

favor. The trial court determined that “there [was] no just reason to delay an entry of

judgment against [Birch Properties]” and directed the entry of judgment for the

Simpsons. Birch Properties filed a timely notice of appeal, and the Simpsons cross-

appealed.

Case No. A22A0063

1. First, Birch Properties argues that the trial court erred because it failed to

make specific findings regarding the amount of repair costs awarded for each

construction defect. Birch Properties suggests that this omission means that the

7 judgment was based on speculation, conjecture, and guesswork. We conclude that the

absence of specific findings in the trial court’s judgment does not warrant reversal.

“[D]amages must be reasonable and proven in a manner sufficient to allow the

fact finder to estimate them with reasonable certainty free from speculation,

conjecture and guesswork.” (Citation and punctuation omitted.) John Thurmond &

Assoc., Inc. v. Kennedy, 284 Ga. 469, 473 (2) (668 SE2d 666) (2008).

The fact that the trial court entered an aggregate amount of damages in this

case was not error because the evidence enabled the trial court to determine the

amount of damages with reasonable certainty. Based on all the items detailed in

Davis’ inspection report, Hordos submitted an itemized estimate for the repairs that

listed the cost to fix each issue. Hordos testified extensively regarding the

requirements of each repair, and the estimate was entered into evidence. To be sure,

Davis opined that none of the miscellaneous interior and exterior items included in

her report constituted construction defects. She also appeared skeptical of Hordos’

quote for “roof work,” which amounted to $11,040, because she never observed an

ongoing leak in the roof. Nevertheless, even subtracting the entire proposed amounts

for the miscellaneous items and the “roof work,” the estimate for the remaining major

projects would have amounted to $167,928. Therefore, the trial court’s aggregate

8 judgment amount of $156,620 was within the range of evidence that was presented

on damages for the major projects that Davis testified needed to be completed, and

given the clear and specific evidence of the cost of each repair, we cannot say that the

judgment amount resulted from “speculation and guesswork.”1 See Dossie v.

Sherwood, 308 Ga. App. 185, 187-189 (707 SE2d 131) (2011) (although the jury did

not segregate its damages award, the award was not based on “speculation and

guesswork” because it fell within the range of evidence presented); Gipson v.

Phillips, 232 Ga. App. 235, 236 (501 SE2d 570) (1998) (lump sum verdict was

“within the range of the evidence at trial which showed property damage to the van,

medical bills, pain and suffering, and [the plaintiff’s] inability to work around the

house and yard and care for the animals”).

1 Of the major repairs, Davis and Hordos had a difference of opinion on the estimates for the driveway and the roof drainage issues. Nevertheless, the trial court was certainly entitled to credit Hordos’ testimony as to the repairs needed for the driveway, Rafferzeder v. Zellner, 272 Ga. App. 728, 730 (1) (613 SE2d 229) (2005), and Birch Properties has not identified evidence that Hordos’ solution for the roof drainage issues was unreasonably expensive. Also, while Davis recommended “flashing” certain areas in the stone veneer outside the home, she conceded that if removal of the stones was deemed necessary, then Hordos would have attributed a cost for this removal, which he did.

9 Insofar as Birch Properties desired for the trial court to enter findings of fact

and conclusions of law, Birch Properties failed to make this request either before or

after the entry of the judgment, as authorized by OCGA § 9-11-52 (a), (c). Although

Birch Properties claims that it was unable to insist on findings of fact and conclusions

of law because the trial court entered the judgment three weeks after the trial, nothing

prevented Birch Properties from requesting specific damages before or during the

trial under OCGA § 9-11-52 (a) or filing a post-judgment request under OCGA § 9-

11-52 (c) following the entry of the trial court’s written judgment. See Payson v.

Payson, 274 Ga. 231, 234 (2) (552 SE2d 839) (2001) (construing OCGA § 9-11-52

(c) and concluding that the time to file such a request runs from the entry of the trial

court’s written judgment after a bench trial). Accordingly, this enumeration of error

lacks merit.2

2. Next, Birch Properties argues that the damages award was excessive and

unreasonable, and the award should have instead been limited to the difference

2 Birch Properties claims that, given the form of the trial court’s judgment, there is no telling whether the trial court considered its counterclaims. This argument is addressed below, as part of our determination that Birch Properties’ counterclaims remain pending.

10 between the fair market value of the house as contracted and the fair market value of

the house as constructed. These arguments are not meritorious.

A fact finder is “given wide latitude in determining the amount of damages to

be awarded based on the unique facts of each case.” John Thurmond & Assoc., Inc.,

supra, 284 Ga. at 469 (1). “As a general rule, damages for defective construction . .

. are determined by measuring the cost of repairing or restoring the damage, unless

the cost of repair is disproportionate to the property’s probable loss of value.”

(Citation omitted.) Id. at 470 (1). “[P]roof of the cost of repair because of the

defective construction . . . is more likely to represent the true damage suffered from

the failure of a contractor to complete his contract than would the opinion of an

expert as to the difference in values.” (Citation omitted.) Id. In any event, cost of

repair and diminution in value are alternative measures of damages, and an injured

party may choose to present their case using either method. Id. at 471 (1). Whether

the facts justify the application of the rule permitting recovery for the reasonable cost

of repairs “is a question ordinarily determined by the trial court based on the varying

facts and circumstances of each case.” Id. n.3.

11 (a) We first address Birch Properties’ argument that the award to the Simpsons

was 66% of the contract price and that the Simpsons were therefore unjustly enriched

by the award, and that Birch Properties was unable to make a reasonable profit.

“[T]his Court will not disturb a damages award unless it is so flagrant as to

shock the conscience.” Cavin v. Powell, 276 Ga. App. 60, 61 (1) (622 SE2d 415)

(2005). Our Supreme Court has also cautioned against the application of any rule that

functions to “mechanically limit” damages. John Thurmond & Assoc., Inc., supra, 284

Ga. at 473 (2). For instance, there is no “immutable rule that damages may never

exceed the fair market value of the property.” Id. Instead, the general principle is that

“the cost of repair must be reasonable and bear some proportion to the injury

sustained.” (Citation omitted.) Id. at 474 (2) n.5. “[T]he method of calculating

damages should be flexible so as to reasonably compensate the injured party, and at

the same time, be fair to all litigants.” Id. at 473 (2).

Here, Hordos testified that it is generally more expensive to remodel or

“rework” a home than it is to construct a home.3 Davis agreed, attesting that “there

is a big difference between new construction cost[s] and remediation and repair costs

3 Also, Hordos prepared an initial estimate but then revised it to $216,798 because the COVID pandemic had caused an increase in the cost of supplies and labor.

12 because of the nature of the damage and the methods needed to conduct the repairs.”

She testified that, for all the repairs indicated in her report, an estimate of $170,000

was “probably the worst case scenario.” Hordos later testified in detail regarding the

requirements of all the major repairs, which, per his prepared estimate, amounted to

$167,928. First, the entire driveway had to be removed because it was placed in the

wrong area, it was incorrectly installed “as a whole,” and it could not be repaired in

portions. Regarding the roof drainage, he testified that downspouts and gutters had

to be removed and repitched, tubing had to placed into the ground to facilitate the

drainage, and then the area needed to be regraded. Further, there were “a lot of

structural issues” with the garage, and repairing it required building temporary walls

to hold up the structure, tearing out the drywall, reframing the garage, and reinstalling

the insulation. Hordos testified that preparation for the garage work would be “very

time-consuming” and the work “intensive” because the walls in the garage impacted

the entire structure of the home. In his view, the wood flooring was not level, he

could not “patchwork it,” and the entire flooring had to be removed. He added that

the glue needed to be scraped from the concrete, the area needed to be sanded, and

new flooring needed to be reinstalled. Hordos further testified at length on the repairs

required for the trim and siding, the stonework around the home, and the attic. When

13 we consider Davis’ inspection report and the testimony regarding the extent and the

intricacy of the repairs required, we conclude that the cost of repairs was reasonable

and bore some proportion to the Simpsons’ injury. The judgment amount was needed

to restore the Simpsons to the position that they would have been in had Birch

Properties properly constructed the house, and the award of $156,620 was not

flagrantly excessive.

(b) Second, Birch Properties supposes that because the Simpsons have not yet

made any repairs to the home, they will not complete all of the repairs for which they

claimed damages, and therefore they will receive a windfall for items that may never

be remedied.

It is axiomatic that “[t]his Court will not reverse cases based on speculation[.]”

In re Estate of Dunn, 236 Ga. App. 211, 212 (1) (b) (511 SE2d 575) (1999). As the

appellant, Birch Properties bears the burden of demonstrating reversible error from

the record, and Birch Properties identifies no evidence that the Simpsons do not

intend to have the repairs performed. On the contrary, Shannon Simpson plainly

testified that she was seeking damages in order to make the necessary repairs.

Therefore, this argument is unavailing.

14 (c) Next, Birch Properties argues that the Simpsons have benefitted from living

in the home for four years while making no repairs, and therefore the damages award

places them in a better financial position than if the contract had not been breached.

This assertion is untenable under the law.

The Simpsons were entitled to have the home that they contracted for in the

first place. Savannah Indus. Constr. & Equip. Rental, Inc. v. Sumner, 189 Ga. App.

319, 320 (375 SE2d 486) (1988). Had they received the home that was promised

under the contract, they would have conceivably been living in it all along, except

that it would have been properly constructed. In other words, the Simpsons should

have been able to occupy a properly constructed home from the very beginning.

Therefore, the award of damages is “intended to place [the Simpsons], as nearly as

possible, in the same position they would have been if the injury had never occurred.”

John Thurmond & Assoc., Inc., supra, 284 Ga. at 469 (1). Accordingly, we reject the

argument that the award places the Simpsons in a better financial position than if the

contract had not been breached.

(d) Lastly, Birch Properties argues that, instead of using the cost of the repairs,

the trial court should have measured the damages by assessing the difference in the

value of the home as contracted and the probable value of the home as constructed

15 (the probable loss in value of the home). We disagree because Birch Properties failed

to present any evidence on this issue.

After a plaintiff produces evidence supporting a claim for damages under the

cost of repair method, “the defendant has the burden to present any contradictory

evidence challenging the reasonableness or proportionality of those damages and

where appropriate, evidence of an alternative measure of damages for the [fact-

finder’s] consideration.” John Thurmond & Assoc., Inc., supra, 284 Ga. at 471 (1). To

this end, the burden is on the contractor guilty of the breach to prove that the “award

of repair costs constitutes economic waste.” (Citation omitted.) Id. Also, whether the

repair of a home is an “absurd undertaking” is a question to be resolved by the fact

finder. (Citation omitted.) Id.

Insofar as Birch Properties now urges that the trial court should have awarded

damages by measuring the diminution in the value of the property, Birch Properties

bore the burden to provide evidence on this issue. In its appellate brief, however,

Birch Properties cites no evidence whatsoever regarding the probable loss in the

value of the home. In fact, Birch Properties explicitly states that the value of the home

as constructed is unknown. At trial, Birch Properties’ position was largely that the

repairs could be completed for significantly less than Hordos’ proposed estimate, not

16 that the trial court should consider the diminished value of the property as a measure

of damages. Compare City of Atlanta v. Conner, 262 Ga. App. 423, 424-425 (585

SE2d 634) (2003) (trial court erred in using the cost of repairs as the measure of

damages where both parties agreed that the house was not salvageable and that it was

impracticable to repair it). Thus, Birch Properties failed to carry its burden of

presenting evidence of an alternative measure of damages for the trial court’s

consideration, and we have no reason to disturb the trial court’s damages award.

3. Next, Birch Properties argues that the trial court erred by failing to make

findings or enter any “verdict” on its counterclaims. A review of the record, however,

shows that the trial court properly finalized its judgment as to the Simpsons’

complaint and that Birch Properties’ counterclaims remain pending.

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

OCGA § 9-11-54 (b). This statute “expressly applies to both claims and

counterclaims.” Coxwell Tractor & Equip. Sales, Inc. v. Burgess, 192 Ga. App. 663,

17 664 (2) (385 SE2d 753) (1989). Here, the trial court expressly determined that there

was no just reason for delay and directed the entry of a final judgment solely on the

Simpsons’ claims. We are aware of no authority — and Birch Properties has not

identified any — which prevents a trial court from certifying its judgment under

OCGA § 9-11-54 (b) after a bench trial. See, e.g., Underwood v. Dunn, 215 Ga. App.

252 (451 SE2d 129) (1994) (case remained pending below after the bench trial partly

because the trial court did not direct the entry of a final judgment under OCGA § 9-

11-54 (b)). Indeed, the very reason that we have jurisdiction over Birch Properties’

direct appeal is because the trial court lawfully finalized the judgment as to the

Simpsons’ complaint. Sam’s Wholesale Club v. Riley, 241 Ga. App. 693, 695 (1) (527

SE2d 293) (1999).

Relatedly, we reject Birch Properties’ argument that the trial court’s “verdict”

ran afoul of OCGA § 9-12-1 because it did not resolve all the issues in the case.

OCGA § 9-12-1 provides that “[t]he verdict shall cover the issues made by the

pleadings and shall be for the plaintiff or for the defendant.” We have long held,

however, that “there is no verdict in a bench trial.” Meacham v. Franklin-Heard

County Water Auth., 302 Ga. App. 69, 74 (1) (690 SE2d 186) (2009). Compare

Bernath Barrel & Drum Co., Inc. v. Ostrum Boiler Svc., Inc., 131 Ga. App. 140, 144

18 (1) (205 SE2d 459) (1974) (where the jury entered a verdict for the plaintiff in the

sum sued for and did not reference the counterclaim, the verdict was to be construed

as deciding against the defendant’s counterclaim) (physical precedent only). Thus,

insofar as Birch Properties contends that the trial court’s judgment is statutorily

deficient under OCGA § 9-12-1, this claim necessarily fails.

Third, a review of the record shows that Birch Properties’ counterclaims are

still pending because the trial court has not ruled on them. Birch Properties

counterclaimed for the wrongful attempted termination of contract, breach of

contract, and attorney fees. Specifically, Birch Properties claimed that the Simpsons

prevented the company from completing the full performance of its obligations and

failed to pay for additional modifications in the amount of $26,342.45.4 At trial, the

trial court explicitly referenced and took evidence on the counterclaims. Its judgment,

however, makes no mention of the counterclaims. Although a trial court can implicitly

reject a counterclaim, there is nothing in the judgment that automatically precludes

all of Birch Properties’ counterclaims. For instance, although the trial court awarded

4 Although the Simpsons argue that the counterclaims are not credible, the viability of the counterclaims has no bearing on the fact that they remain pending until a ruling is obtained. Yates v. CACV of Colorado, LLC, 295 Ga. App. 69, 69-70 (670 SE2d 884) (2008) (counterclaim was pending regardless of whether it was without merit, procedurally unauthorized, abandoned, or waived).

19 the Simpsons damages on their breach of contract claim, this did not preclude Birch

Properties’ counterclaim for breach of contract. It is entirely possible for both parties

to not fulfill their obligations under a construction contract. See Dill v. Chastain, 234

Ga. App. 770, 771 (507 SE2d 872) (1998). And, the trial court’s designation of the

judgment as “final” does not mean that the counterclaims were necessarily

adjudicated. Rhymes v. East Atlanta Church Of God, Inc., 284 Ga. 145, 146-147 (663

SE2d 670) (2008). Thus, we cannot presume that the trial court disposed of the

counterclaims when nothing in the judgment expressly or impliedly shows that these

claims were resolved. Id. at 146 (other claims were still pending where “[n]othing in

[the] order expressly, or by necessary implication, constitute[d] an adjudication of the

other claims”). Compare Mancuso v. Jackson, 359 Ga. App. 428, 430 n.3 (858 SE2d

244) (2021) (trial court specifically mentioned counterclaims in its order and made

findings that precluded the counterclaims); Mosley v. Loan Servicing Enterprise, 241

Ga. App. 182 (525 SE2d 381) (1999) (apparent from the order that the trial court

considered the counterclaim). Accordingly, Birch Properties’ counterclaims remain

20 pending, and we have no cause to reverse the trial court’s order on the basis that it

failed to address them.5

4. Next, Birch Properties argues that the trial court erred by allowing expert

testimony from Hordos because much of his testimony on the specific repair amounts

was based on conversations with subcontractors, and he was merely a conduit for the

opinions of other individuals. This argument fails because even if this testimony was

inadmissible, Birch Properties’ substantial rights were not affected.

We are cognizant that “[a] witness’ opinion must be his own and he cannot act

as a mere conduit for the opinions of others.” (Citation omitted.) Unified Govt. of

Athens-Clarke County v. Watson, 255 Ga. App. 1, 4 (2) (564 SE2d 453) (2002).

Nevertheless, “[u]nder the new Rules of Evidence, if a party does not properly object

to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be

legal evidence and admissible.” Torres v. City of Jonesboro, 354 Ga. App. 874, 876

(2) (842 SE2d 75) (2020) (citing OCGA § 24-8-802). “The contemporaneous

objection rule provides that counsel must take exception to the alleged error at the

5 We also note that the judgment does not mention Husfeld’s counterclaim. Husfeld claimed that the action against him in his individual capacity lacked substantial justification, and, as mentioned above, the trial court found in Husfeld’s favor on the negligent construction claim.

21 earliest possible opportunity in the progress of the case by a proper objection made

a part of the record.” (Citation and punctuation omitted; emphasis in original.) Id. See

also Firmani v. Dar-Court Builders, LLC, 339 Ga. App. 413, 421 (2) (793 SE2d 596)

(2016) (to preserve an issue for appeal, a party must make a timely motion or

objection that is contemporaneous with the introduction of the evidence). Birch

Properties did not object to Hordos’ testimony on the quoted amounts in the estimate.

Therefore, Birch Properties has forfeited ordinary review of this claim.

Further, although plain error review applies to evidentiary errors in civil cases,

Thomas v. Alligood, 358 Ga. App. 703, 712 (2) (b) (856 SE2d 80) (2021), Birch

Properties does not demonstrate plain error based on the admission of Hordos’

testimony.

In order to demonstrate plain error based upon the admission of evidence, an appellant must show an error or defect that has not been affirmatively waived by the appellant, that is clear or obvious, and that affected the appellant’s substantial rights by affecting the outcome of the trial court proceedings; if these three requirements are satisfied, we have the discretion to remedy the error but should do so only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

22 Id. at (2) (c). Here, when the Simpsons moved to admit the exhibit depicting Hordos’

estimate for the repairs, counsel for Birch Properties saw the estimate and twice

stated, “I’m not going to object.” Therefore, there was no plain error in the admission

of the exhibit itself. McAllister v. State, 351 Ga. App. 76, 88 (3) (830 SE2d 443)

(2019) (plain error was inapplicable where counsel saw the exhibits and twice stated

that he had no objection to either exhibit). Accordingly, even if Hordos’ testimony

as to the specific repair amounts was inadmissible, the estimate was properly included

in the evidence for the trial court’s consideration, and Hordos opined that all of the

itemized repairs stemmed from substandard construction. Therefore, Hordos’

testimony did not affect Birch Properties’ substantial rights, and there is no basis to

disturb the trial court’s judgment based on Hordos’ expert testimony. See Thomas,

supra, 358 Ga. App. at 712 (2) (c) (explaining that “because civil cases do not

ordinarily invoke the violation of a constitutional right or the denial of liberty it is far

less likely that plain error will be identified in the civil context”) (citation and

punctuation omitted).

5. Next, Birch Properties argues that the Simpsons waived their claim for

damages to the driveway because they modified it. In Birch Properties’ view, the

Simpsons intentionally poured additional concrete that matched the elevation of the

23 existing driveway, which prevented Birch Properties from removing the driveway and

made it more expensive for Birch Properties to make the necessary repairs.6 We

conclude that the Simpsons did not waive their claim as to the driveway.

It is well recognized that a party to a contract may waive contractual provisions for his benefit. A waiver may be shown through a party’s conduct. But the law will not infer the waiver of an important contract right unless the waiver is clear and unmistakable. And because waiver is not favored under the law, the evidence relied upon to prove a waiver must be so clearly indicative of an intent to relinquish a then known particular right or benefit as to exclude any other reasonable explanation. Indeed, all the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a waiver may exist. The burden of proof lies with the party asserting waiver.

6 Birch Properties apparently makes a fleeting argument that the Simpsons accepted the driveway as constructed and that acceptance of goods with knowledge of defects constitutes a waiver of the warranty. Assuming that this principle even applies in construction defect cases, the cases on which Birch Properties relies pre- date statutory law on this issue. Under current law, “a buyer can recover damages for breach of warranty or breach of contract even though the buyer accepted the defective goods,” provided that the buyer reasonably notifies the seller of the defects, in compliance with statute. Atwood v. Southeast Bedding Co., Inc., 226 Ga. App. 50, 52 (1) (485 SE2d 217) (1997) (citing OCGA §§ 11-2-607 (3) (a), 11-2-714). Here, within weeks of moving into the home, the Simpsons notified Birch Properties, in writing, of multiple issues with the driveway. Absent any argument from Birch Properties, we have no reason to believe that the Simpsons’ notice to Birch Properties was insufficient so as to bar recovery as to the driveway.

24 (Citation omitted.) Ochoa v. Coldwater Creek Homeowners Assn. Inc., 361 Ga. App.

267, 270 (1) (863 SE2d 730) (2021). The record in this case does not show that the

Simpsons clearly and unmistakably relinquished a right to claim damages for the

driveway. Brian Simpson testified that he did not make any changes to the original

driveway, that he poured concrete adjacent to the driveway, and that he did not know

whether the additional concrete was poured to the same elevation as the existing

driveway. In essence, Birch Properties has not demonstrated that Simpson knew that,

by pouring concrete adjacent to the existing driveway, he would potentially prevent

Birch Properties from removing the existing driveway or make it more expensive for

Birch Properties to make the necessary repairs. See Ochoa, supra, 361 Ga. App. at

270 (1) (“Where the only evidence of an intention to waive is what a party does [],

there is no waiver unless his acts . . . are so manifestly consistent with an intent to

relinquish a then-known particular right or benefit that no other reasonable

explanation of the conduct is possible.”) (citation omitted; emphasis supplied).

6. Lastly, Birch Properties argues that the trial court erred by awarding attorney

fees to the Simpsons under OCGA § 13-6-11. We conclude that the evidence

authorized the trial court to grant an attorney fee award under OCGA § 13-6-11, but

that the trial court’s decision to award the fees in a lump sum amount was error.

25 “Attorney fees are recoverable under OCGA § 13-6-11 when a party has acted

in bad faith, has been stubbornly litigious, or has subjected the other party to

unnecessary trouble and expense.” (Citation omitted.) City of Lilburn v. Astra Grp.,

Inc., 286 Ga. App. 568, 570 (649 SE2d 813) (2007).

The issue of attorney fees under OCGA § 13-6-11 is a question for the [fact finder], and an award will be upheld if any evidence is presented to support the award. However, a plaintiff is entitled to recover attorney fees only for that portion of the fees which are allocable to the attorney’s efforts to prosecute a successful claim against a defendant.

Premier Cabinets, Inc. v. Bulat, 261 Ga. App. 578, 582 (5) (583 SE2d 235) (2003).

“[O]btaining some but less than all of the relief sought is sufficient to authorize an

award of attorney fees.” Magnetic Resonance Plus, Inc. v. Imaging Sys. Intl., 273 Ga.

525, 528 (3) (543 SE2d 32) (2001).

(a) First, we determine that there was an evidentiary basis for the attorney fee

award.

Husfeld knew that the punch list included items that were either incomplete or

incorrectly completed, he assured the Simpsons that the items would be resolved, and

he also received Davis’ report. Accordingly, there was evidence that Birch Properties

was entirely aware of the existence of construction defects in and around the home.

26 Husfeld also acknowledged that there remained disputes regarding outstanding issues

with the construction up to four months after he received the punch list. There was

also evidence that Birch Properties continued to make insufficient repairs to the

home. For instance, putty was placed on the wood flooring, but it “crumbled and fell

out,” and a shim was placed in the kitchen but it “pulled right back toward the wall.”

Brian Simpson testified that, even after several months, Birch Properties insisted on

offering “band-aid” solutions for pervading issues in the home, and there were

numerous other repairs that were never initiated. Shannon Simpson explained that

Husfeld often told her that repair personnel would come to the home, that they would

never arrive, and that eventually, she “just had enough.” Then, after the Simpsons

acknowledged that the parties remained at an impasse and offered to settle the matter,

Birch Properties refused. Thus, there was some evidence authorizing the trial court’s

award of attorney fees under OCGA § 13-6-11. Clearwater Constr. Co. v. McClung,

261 Ga. App. 789, 792 (584 SE2d 61) (2003) (attorney fees allowed under OCGA §

13-6-11 where the construction company failed to take the steps necessary to repair

the insulation system and address all of the problems with the installation, further

damage to the system and the home occurred, and the parties were “at loggerheads”

as to what was necessary to remedy the acknowledged problems with the system). See

27 also Charter Drywall Atlanta, Inc. v. Discovery Tech., Inc., 271 Ga. App. 514, 517

(2) (610 SE2d 147) (2005) (attorney fees allowed for stubborn litigiousness where

there was no bona fide controversy as to the drywall company’s failure to complete

the work adequately, and there was evidence of the company’s insistence on pursuing

protracted litigation).7

(b) Birch Properties also claims that the trial court erred in failing to make

findings of fact and conclusions of law as to the attorney fee award. This argument

has been waived.

As discussed above, Birch Properties failed to request findings of fact and

conclusions of law under OCGA § 9-11-52. Hampshire Homes, Inc. v. Espinosa

Constr. Svcs., Inc., 288 Ga. App. 718, 724 (3) (655 SE2d 316) (2007) (appellant

waived its argument that the trial court failed to make findings on an attorney fee

award under OCGA § 13-6-11 because the appellant did not make a post-judgment

motion challenging the sufficiency of the trial court’s findings). Compare Parland v.

7 Birch Properties insists that there was a bona fide controversy regarding damages, which precluded the claim for attorney fees. Nonetheless, a factfinder “may award attorney fees under OCGA § 13-6-11 if there is no bona fide controversy as to liability, even if there is a bona fide controversy as to damages.” Daniel v. Smith, 266 Ga. App. 637, 641 (3) (597 SE2d 432) (2004); Horton v. Dennis, 325 Ga. App. 212, 216 (750 SE2d 493) (2013) (same).

28 Millennium Constr. Svcs., LLC, 276 Ga. App. 590, 593 (623 SE2d 670) (2005)

(requiring findings of fact and conclusions of law on the award under OCGA § 13-6-

11 but not addressing waiver).8

(c) Nevertheless, we agree with Birch Properties that the trial court’s decision

to award the attorney fees in a lump sum amount constitutes error. Therefore we

reverse the award and remand this case for an evidentiary hearing to allow the

Simpsons to establish the portion of the fees which is allocable to their attorney’s

prosecution of their successful claims.

The Simpsons had the burden of proof on the issue of attorney fees, and they

were required to segregate out the hours that were recoverable from those hours that

were unrecoverable. Premier Cabinets, Inc., supra, 261 Ga. App. at 582 (5). At trial,

however, the Simpsons merely proved the total amount of attorney fees incurred, and

8 We acknowledge, however, that where a trial court enters an attorney fee award under OCGA § 9-15-14, findings of fact and conclusions of law are mandated and waiver is inapplicable. Gilchrist v. Gilchrist, 287 Ga. App. 133, 133-134 (1) (650 SE2d 795) (2007). Although Birch Properties urges the Court to adopt this approach in this case, we will not do so. OCGA § 13-6-11 provides for attorney fees and litigation expenses as compensatory damages, which would otherwise be awarded by a jury as part of the verdict, while OCGA § 9-15-14 provides for an award of attorney fees as a court-ordered sanction. Junior v. Graham, 313 Ga. 420, 425 (2) (b) (2022) (870 SE2d 378); Hill v. Doe, 239 Ga. App. 869 (2) (522 SE2d 471) (1999). Given the differing nature of these attorney fees, we will not depart from this Court’s precedent on the issue of waiver.

29 no evidence was presented from which the trial court could determine what portion

was attributable solely to prosecuting their successful claims.9 Their counsel’s

account statement delegated various fees to different tasks performed, but it was not

of “sufficient particularity to permit the [the trial court] to distinguish between time

and expenses attributable to [the] successful claim[s] and time and expenses

attributable to the pursuit of [the] unsuccessful claim and the defense of [the]

counterclaim[s].” Id. Counsel’s testimony at trial regarding the fees incurred was no

more illuminating. Therefore, “[u]nder the state of the evidence in the present case,

the [trial court] would have been forced into a posture of pure speculation as to which

fees were attributable solely to prosecuting [the] successful claim[s].” Id.

Contrary to the Simpsons’ argument, Birch Properties has not waived this claim

of error by being derelict in its cross-examination or by failing to request findings of

fact and conclusions of law. The award of attorney fees in this case is “contrary to the

law” and simply “cannot be upheld as authorized pursuant to OCGA § 13-6-11.”

Premier Cabinets, Inc., supra, 261 Ga. App. at 583 (5). Additionally, although the

Simpsons claim that their successful breach of contract claim and their unsuccessful

9 It appears that the trial court awarded approximately all the attorney fees requested.

30 negligent construction claim were too similar to allow for the separation of the hours

spent on each claim, the trial court would also have been unable to discern the

number of hours allocated to defending the separate counterclaims filed by Birch

Properties and Husfeld. See Emerson v. Brookmere Homeowners Assn., Inc., 311 Ga.

App. 371, 372 (715 SE2d 775) (2011) (under OCGA § 13-6-11, plaintiff cannot

recover expenses of defending against a counterclaim); Paul v. Destito, 250 Ga. App.

631, 642 (9) (550 SE2d 739) (2001) (plaintiff could not recover attorney fees in

defending against counterclaim alleging that he owed money to the defendant).

Therefore, we reverse the trial court’s award of attorney fees to the Simpsons and

remand to the trial court for an evidentiary hearing to allow the Simpsons to establish

the amount of attorney fees that was attributable to their prevailing claims. Terrell v.

Pippart, 314 Ga. App. 483, 485 (2) (724 SE2d 802) (2012); Premier Cabinets, Inc.,

supra, 261 Ga. App. at 583 (5); David C. Joel, Attorney at Law, P.C. v. Chastain, 254

Ga. App. 592, 597 (4) (562 SE2d 746) (2002).

Case No. A22A0064

7. In their cross-appeal, the Simpsons argue that the trial court erred in not

imposing any liability against Husfeld in his individual capacity on their negligent

construction claim because Husfeld was the sole employee of Birch Properties and

31 was responsible for approving the work done by Birch Properties’ contractors. We

conclude that sufficient evidence supported the trial court’s judgment in Husfeld’s

favor on this claim.

“[A] person who is a member, manager, agent, or employee of a limited

liability company is not liable, for a debt, obligation, or liability of the limited

liability company, . . . whether arising in contract, tort, or otherwise.” (Punctuation

omitted.) Primary Investments, LLC v. Wee Tender Care III, Inc., 323 Ga. App. 196,

199 (1) (746 SE2d 823) (2013) (quoting OCGA § 14-11-303 (a)). This principle

applies regardless of whether an individual is the sole operator of the limited liability

company. Cf. Christopher v. Sinyard, 313 Ga. App. 866, 867 (1) (723 SE2d 78)

(2012) (“[T]he mere operation of [a] corporate business does not render one

personally liable for corporate acts.”) (citation omitted). Nevertheless, “[a]n LLC

member may be held individually liable if he or she personally participates or

cooperates in a tort committed by the LLC or directs it to be done.” Milk v. Total Pay

& HR Sols., Inc., 280 Ga. App. 449, 454 (634 SE2d 208) (2006). Accordingly, if

Birch Properties was negligent in constructing the home, Husfeld “could be held

personally liable for the negligent construction if he specifically directed the manner

in which the house was constructed or participated or cooperated in its negligent

32 construction.” Baja Properties, LLC v. Mattera, 345 Ga. App. 101, 104 (2) (812 SE2d

358) (2018).

Here, the trial court was authorized to determine that Husfeld neither directed

the manner in which the home was constructed nor participated or cooperated in its

negligent construction. Husfeld testified that he does not supervise the

subcontractors; instead, he receives information from the homeowners about their

desires for the home, conveys this information to the subcontractors, and pays the

subcontractors for their work. Although Birch Properties provides a warranty for the

home, Husfeld relies on the subcontractors to ensure that the work is completed.

Husfeld “looks at [the] work to see if it’s been done right,” but he would not actually

know whether a job is completed properly because he has no specialized knowledge

in areas such as plumbing and electrical work. He explained that he is not required

to be on the job site, and on the occasions that he did visit the job site, he merely

locked and unlocked the home.

Although the Simpsons argue that Husfeld had a duty to supervise the

subcontractors’ work, they cite to no common law or statutory authority for this

proposition. And while we are mindful that a general contractor can potentially incur

personal liability where he affirmatively undertakes to supervise construction work

33 and does so negligently, there was no evidence that Husfeld engaged or sought to

engage in any supervision. Compare Schofield Interior Contractors, Inc. v. Standard

Bldg. Co., Inc., 293 Ga. App. 812, 815 (668 SE2d 316) (2008) (project manager had

a duty to “perform the supervision” of the construction work skillfully, carefully,

diligently, and in a workmanlike manner); Howell v. Ayers, 129 Ga. App. 899, 900

(4) (202 SE2d 189) (1973) (evidence was sufficient to show the contractor’s

negligence “in undertaking to supervise” the construction work).

Given Husfeld’s testimony, the trial court was allowed to conclude that Husfeld

was not personally liable for the negligent construction. Compare Fields Bros. Gen.

Contractors v. Ruecksties, 288 Ga. App. 674, 677-678 (2) (655 SE2d 282) (2007)

(trial court properly found general contractor personally liable where he was the lead

framer for the home and he inspected others’ work); Cherry v. Ward, 204 Ga. App.

833, 834 (1) (a) (420 SE2d 763) (1992) (general contractor was personally liable

where he “acknowledged that he was personally involved in the construction of [the]

appellee’s home on a daily basis, personally supervised the construction ‘from start

to finish,’ and worked as the ‘project foreman’ for the job”). Accordingly, the trial

court was entitled to find in Husfeld’s favor on the negligent construction claim.

34 Judgment affirmed in Case No. A22A0064. Judgment affirmed in part, reversed

in part and case remanded with direction in Case No. A22A0063. Rickman, C. J., and

Pipkin, J., concur.