Latham v. Faulk

454 S.E.2d 136, 265 Ga. 107

Opinions

Fletcher, Justice.

Charles Faulk sued Saralyn Latham for specific performance of a contract to make a will that had been made by Faulk and Latham’s respective predecessors-in-interest. Following a verdict by an advisory jury in favor of Faulk, the trial court entered judgment enforcing the contract and awarding Faulk damages and attorney fees pursuant to OCGA § 13-6-11. We reverse the award of attorney fees, but affirm on the remaining issues.

1. After reviewing the record, we hold that the court’s judgment regarding the enforceability of the contract and damages flowing therefrom is supported by sufficient evidence. Scott v. Scott, 243 Ga. 472, 473 (254 SE2d 852) (1979). We, therefore, affirm that portion of the trial court’s judgment.

2. Where a bona fide controversy exists, attorney fees may be awarded under OCGA § 13-6-11 only where the party sought to be charged has acted in bad faith in the underlying transaction. Dimambro Northend. Assoc. v. Williams, 169 Ga. App. 219, 224-225 (312 SE2d 386) (1983). A review of the record demonstrates that there was a bona fide controversy regarding the existence and terms of the contract because there was no extant signed copy of the contract that Faulk sought to enforce. In completing the special verdict form, the jury did not find that Latham had acted in bad faith. In the absence of bad faith, the award for attorney fees cannot stand.¹

3. Faulk’s request for damages for a frivolous appeal is denied.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Benham, P. J., who concurs specially.

Footnotes

1

Faulk did not seek attorney fees under OCGA § 9-15-14 (b), which provides that [t]he court may assess reasonable and necessary attorney’s fees and expenses of litigation ... if ... it finds . . . that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct ....