Gunnin v. Parker

Court of Appeals of Georgia

Gunnin v. Parker

390 S.E.2d 596, 194 Ga. App. 426

CourtCourt of Appeals of Georgia

DecidedFebruary 7, 1990

DocketA89A1296

StatusPublished

Cited by3 cases

This text of 390 S.E.2d 596 (Gunnin v. Parker) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gunnin v. Parker, 390 S.E.2d 596, 194 Ga. App. 426 (Ga. Ct. App. 1990).

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Opinions

Deen, Presiding Judge.

This appeal arises from a plaintiffs’ verdict in a suit by the purchasers of a house (appellees) against the developer/sellers of the house (appellants). The issues appellants raise on appeal all concern the propriety of an award of expenses of litigation.

1. In this case, the appellees purchased the house in question for $112,000. After purchasing the house, the appellees proceeded to remove and discard the steel support posts in the basement; further, they removed a substantial quantity of dirt away from the rear footings of the house, and had a swimming pool contractor install a pool behind the house, necessitating driving bulldozers and concrete trucks on the driveway. There was expert testimony that these actions likely caused the cracking in the structure ultimately complained about by the appellees.

When the appellees communicated their complaints to the appellants, at one point the appellants offered either (1) to repair the structure at the appellants’ expense, (2) to pay the appellees the estimated cost of repairs, or (3) to repurchase the home from the appellees. The appellees rejected that offer and three weeks later filed this action seeking over $15,000,000 in damages. The appellees sued the realtor involved for an additional $5,040,000. (They also threatened to sue the swimming pool contractor for a violation of Georgia’s Solid Waste Management Act for leaving soft drink bottles and caps around the pool’s installation area.)

Expenses of litigation may be awarded pursuant to OCGA § 13-6-11 where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. The evidence in this case failed to demonstrate any bad faith on the [427]*427part of the appellants. The existence of a bona fide dispute over both liability and damages was so clear, that the issue could not be passed off to the jury. Where a bona fide controversy clearly exists between the parties, there is not “any evidence” to support an award for expenses of litigation. Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746 (365 SE2d 540) (1988); Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219 (312 SE2d 386) (1983). Accordingly, the award for expenses of litigation must be reversed.

2. The appellees’ motion for a penalty for frivolous appeal is necessarily denied.

Judgment reversed.

Carley, C. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. McMurray, P. J., Benham and Beasley, JJ., dissent.

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Deen, Presiding Judge.

This appeal arises from a plaintiffs’ verdict in a suit by the purchasers of a house (appellees) against the developer/sellers of the house (appellants). The issues appellants raise on appeal all concern the propriety of an award of expenses of litigation.

1. In this case, the appellees purchased the house in question for $112,000. After purchasing the house, the appellees proceeded to remove and discard the steel support posts in the basement; further, they removed a substantial quantity of dirt away from the rear footings of the house, and had a swimming pool contractor install a pool behind the house, necessitating driving bulldozers and concrete trucks on the driveway. There was expert testimony that these actions likely caused the cracking in the structure ultimately complained about by the appellees.

When the appellees communicated their complaints to the appellants, at one point the appellants offered either (1) to repair the structure at the appellants’ expense, (2) to pay the appellees the estimated cost of repairs, or (3) to repurchase the home from the appellees. The appellees rejected that offer and three weeks later filed this action seeking over $15,000,000 in damages. The appellees sued the realtor involved for an additional $5,040,000. (They also threatened to sue the swimming pool contractor for a violation of Georgia’s Solid Waste Management Act for leaving soft drink bottles and caps around the pool’s installation area.)

Expenses of litigation may be awarded pursuant to OCGA § 13-6-11 where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. The evidence in this case failed to demonstrate any bad faith on the [427]*427part of the appellants. The existence of a bona fide dispute over both liability and damages was so clear, that the issue could not be passed off to the jury. Where a bona fide controversy clearly exists between the parties, there is not “any evidence” to support an award for expenses of litigation. Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746 (365 SE2d 540) (1988); Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219 (312 SE2d 386) (1983). Accordingly, the award for expenses of litigation must be reversed.

2. The appellees’ motion for a penalty for frivolous appeal is necessarily denied.

Judgment reversed.

Carley, C. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. McMurray, P. J., Benham and Beasley, JJ., dissent.

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390 S.E.2d 596, 194 Ga. App. 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gunnin-v-parker-gactapp-1990.

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