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Harris v. Tutt

The jury's verdict was not against the weight of the evidence, since the parties' contract entitled the appellee to a builder's fee of 12 percent of the total cost of construction-$822,931.02-and the actual damage award of $48,612.08 was clearly within the range of payment to which appellee was entitled

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C. Preston Tutt, a builder, filed a breach of contract action against Jeffery and Daniela Harris, alleging that they failed to compensate him in accordance with the terms of his contract following the construction of their custom home. A jury found in favor of Tutt and awarded him both compensatory damages and attorney fees, and the trial court entered judgment on the jury’s verdict. The Harrises appeal, asserting that the amount of the jury’s verdict is against the weight of the evidence. They further argue that the trial court erred by permitting Tutt to amend his complaint after the trial had commenced and by denying their motion for directed verdict on the issue of attorney fees. We find no error and affirm. 1. Without challenging the jury’s finding of liability, the Harrises argue that the amount of the verdict was against the weight of the evidence. Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it, as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. Citation omitted. Al & Zack Brown, Inc. v. Bullock , 238 Ga. App. 246, 247 518 SE2d 458 1999. See also OCGA § 13-6-4 “The question of damages being one for the jury, a reviewing court should not interfere unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.”

The construction contract executed between Tutt and Jeffery Harris entitled Tutt to receive a builder’s fee totaling 12 of “the total cost of construction.” The “total cost of construction” was defined as “a cumulative total of all materials and labor used to complete the project.”

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