Attorney’s fees under O.C.G.A. §13-6-11
For bad faith, stubborn litigiousness or causing unnecessary trouble and expense.
Clearwater Constr. Co. v. McClung A03A0325 (6/19/03)
a. Defendant Clearwater contended that trial court improperly awarded attorney’s fees under O.C.G.A. § 13-6-11, following trial court’s findings that Defendant breached warranty to Plaintiff, but that Plaintiff did not prove Fraud & Fair Business Practices Act claims.
b. “O.C.G.A. § 13 allows recovery of attorney fees if ‘the Defendant has acted in bad faith, has been stubbornly litigious, or has caused the Plaintiff unnecessary trouble and expense.’ It is only necessary for recovery that the Plaintiff show any one of these three conditions exists. Further, an award of attorney fees under O.C.G.A. § 13 is to be affirmed if there is any evidence to support it...In addition, ‘[q]uestions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense under O.C.G.A. § 13-6-11 are generally questions for the [factfinder] to decide.”
c. “Clearwater’s argument that, because the court found in [its] favor on two claims, this provides a bona fide controversy precluding an award of attorney fees is unavailing. ‘...obtaining some but less than all of the relief sought is sufficient to authorize...fees.’”
d. Rule that a bona fide controversy as to any claim precludes the grant of attorney fees has been impliedly overruled by Magnetic Resonance Plus v. Imaging Systems Intl., 273 Ga. 525, 543 S.E.2d 32 (2001) and by L.S. Land Co. v. Burns, 275 Ga. 454, 569 S.E.2d 527 (2002).
Campbell v. Bausch, 195 Ga.App. 791, 395 S.E.2d 267 (1990): attorney’s fees in conversion case
a. Where Plaintiff elects to sue for damages rather than return of the property converted, proof of the value of the property is an essential element of an action for damages.
b. Claim under [Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986)]:
i. It is well established that party’s attorney himself is competent to testify as to his opinion on reasonable fees’;
ii. After being qualified as an expert, appellant’s counsel estimated that on-fourth to one-third of the total hours had been spent in prosecution of the Yost claim...Thus, the proof was adequate to show what portion of the total attorney’s fees was allocable to the claim supporting the award of attorney’s fees...”