Lineberger v. Williams

393 S.E.2d 23, 195 Ga. App. 186, 1990 Ga. App. LEXIS 444

• Court: Court of Appeals of Georgia
• Decided: March 13, 1990
• Docket: A89A2183
• Status: Published

Opinions

Carley, Chief Judge.

Appellant-defendant undertook the restoration of commercial property that he owned. Although appellant acted as his own general contractor, he hired appellee-plaintiff to assist him. Under the terms of the written contract, appellee was to be compensated at the rate of $12 per hour and, in addition, he was to receive $6,000 in equal installments of $2,000 at three different stages of construction. The contract contained no express provision regarding its duration and, after commencement, but before completion of the work, appellee informed appellant that he was moving out-of-state. When appellant could not find a suitable replacement, he offered to pay appellee an additional $12 per hour if he would remain on the job and appellee then agreed that he would continue to perform until the project was completed. However, appellant subsequently refused to pay the promised additional compensation and appellee filed this action, seeking to recover $13,714 and attorney’s fees pursuant to OCGA § 13-6-11. Appellant answered, asserting that his promise to pay the additional compensation was unsupported by legal consideration in that appellee was already obligated under the original written contract to complete the project. Appellant also counterclaimed for breach of contract and abusive litigation.

The case came on for trial before a jury. The trial court denied cross-motions for directed verdict as to contractual liability and appellant’s motion for directed verdict as to his liability for attorney’s fees. The jury returned a verdict in favor of appellee. Appellant’s motion for judgment n.o.v. or, in the alternative, new trial was denied and he appeals from the judgment entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the denial of his motions for directed verdict and judgment n.o.v. as to his contractual liability for the additional compensation.

As noted, the contract contained no express provision as to the contemplated duration of appellee’s services. If the contract for appellee’s services was for the definite duration of the project, then he was contractually obligated to continue to perform until it was completed and appellant’s promise of an additional $12 per hour would be unenforceable because it was not based upon any new consideration. See Davis & Co. v. Morgan, 117 Ga. 504 (43 SE 732) (1903); Sineath v. Lane Co., 160 Ga. App. 402, 405 (287 SE2d 341) (1981); Hiers-Wright Assoc. v. Manufacturers Hanover Mtg. Corp., 182 Ga. App. 732, 734 (2) (356 SE2d 903) (1987). If, on the other hand, the contract was of indefinite duration and thus terminable at the will of either party, then appellee was not contractually obligated to continue to perform and appellant’s promise of an additional $12 per hour would be enforceable because it was based upon new consideration. See OCGA § 34-7-1.

As written, the provisions of the contract could be construed to mean that appellee was obligated to complete the project. On the other hand, those provisions may only denote the details of appellee’s responsibilities, and the specifics of his compensation should he choose to remain on the job until it was completed. This ambiguity as to the contemplated duration of appellee’s services remains even after application of applicable statutory rules of construction. Accordingly, this is one of those rare cases wherein construction of the contract was for the jury rather than the trial court. “Where the original instrument creating the employment is ambiguous as to whether the hiring was indefinite and determinable at. . . will... , or was for a definite period, a determination of the question would be for the jury.” National Mfg. &c. Corp. v. Dekle, 48 Ga. App. 515, 522 (3) (173 SE 408) (1934). In such cases, “ ‘there is no inflexible rule of law as to the length of time the hiring is to continue. The question . . . will be governed by the circumstances of each particular case.’ ” McClure v. Leasco Computer, 134 Ga. App. 871, 872 (216 SE2d 689) (1975). It follows that the trial court properly denied appellant’s motions for directed verdict and judgment n.o.v. as to his contractual liability for the promised additional compensation.

2. By means of various instructions, the trial court submitted the issue of contractual ambiguity vel non to the jury. The trial court also charged the jury on several of the statutory rules of construction. Appellant enumerates the giving of these charges as error.

The trial court erred in charging the jury on the issue of contractual ambiguity vel non. It is for the trial court, not the jury, to determine the existence or non-existence of an ambiguity in a contract. See Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658 (1) (324 SE2d 517) (1984); Jones v. Barnes, 170 Ga. App. 762, 765 (318 SE2d 164) (1984). The trial court also erred in charging the jury on the statutory rules of construction. “ ‘ “The rules of law set forth in the Code with respect to the construction of contracts are framed for the guidance and direction of the courts.” ’ ” Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986).

As we have held in Division 1, the contract at issue in the instant case remained ambiguous even after application of the statutory rules of construction. Accordingly, the trial court should have instructed the jury that the contract was ambiguous and that resolution of that ambiguity required consideration of evidence outside of the four corners of the contract. See Bennett v. Dove, 93 Ga. App. 57 (3) (90 SE2d 601) (1955). Instead, the trial court erroneously charged that it was for the jury to determine whether an ambiguity existed and that, in making that determination, the jury was to apply the statutory rules of construction to the four corners of the contract. Under the erroneously given charge, the verdict that was returned for appellee may have been based upon the jury’s mistaken legal determination that the contract was, on its face, an unambiguous terminable-at-will employment contract. Accordingly, the error in the trial court’s charge was not harmless and requires the grant of a new trial. See generally Clarke County School Dist. v. Madden, 99 Ga. App. 670, 679 (3) (110 SE2d 47) (1959).

3. Appellant enumerates as error the denial of his motions for directed verdict and judgment n.o.v. as to his liability for attorney’s fees under OCGA § 13-6-11.

In the main action, appellee was the plaintiff and he was, therefore, entitled to seek attorney’s fees pursuant to OCGA § 13-6-11 for his prosecution of that claim. As to appellant’s counterclaim, however, appellee was the defendant and he was, therefore, not entitled to seek attorney’s fees pursuant to OCGA § 13-6-11 for his defense of that claim. “[Defendants cannot recover attorney[’s] fees against plaintiffs under [OCGA § 13-6-11]. [Cits.]” DuBose v. Box, 246 Ga. 660, 669-670 (5) (273 SE2d 101) (1980). Appellee’s evidence showed only the amount of reasonable attorney’s fees that would be attributable to both his prosecution of the main action and his defense of appellant’s counterclaim. There was no evidence showing the amount of reasonable attorney’s fees that would be attributable to only appellee’s prosecution of the main action. “Since there can be no recovery under OCGA § 13-6-11 for expenses incurred in the defense of a claim ([cit.]), and [appellee] failed to prove the attorney[’s] fees involved in pursuit of his [main action, the trial court’s failure to direct] a verdict in favor of [appellant] was [erroneous]. [Cits.]” Batchelor v. Tucker, 184 Ga. App. 761, 763 (2) (362 SE2d 493) (1987).

Judgment reversed.

Deen, P. J., McMurray, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Banke, P. J., and Beasley, J., dissent.