In this civil action arising out of an interstate paving project, Douglas Asphalt Company sued the Georgia Department of Transportation “DOT” for breach of contract and, during the course of the litigation, successfully moved to exclude evidence pursuant to OCGA § 24-9-67.1. Shortly thereafter, the trial court granted Douglas Asphalt’s motion under OCGA § 9-15-14 to recover attorney fees and expenses, which it had incurred as a result of its motion to exclude. DOT appeals, arguing that the trial court erred in i failing to include the statutory and factual base supporting the award of attorney fees in its order; ii granting the award based on DOT’s pre-litigation conduct; iii finding that DOT’s opposition to the motion to exclude lacked merit; iv including attorney fees incurred by Douglas Asphalt in other actions; and v failing to limit the award to fees related to Douglas Asphalt’s motion to exclude. For the reasons set forth below, we vacate the trial court’s award and remand the case with instructions. The record shows that in late 2000, DOT entered into a contract with Douglas Asphalt, in which the latter was hired to widen and re-pave parts of Interstate 75 in Crisp and Turner counties. Within a year or two after the project’s commencement, some initial inspections and testing by DOT caused it to suspect that some of the hot-mix asphalt, which had been used by Douglas Asphalt for re-paving parts of Interstate 75 and other similar projects, contained less than the minimum amount of hydrated lime required by the contract. Based on these suspicions, DOT began conducting additional analyses of the hydrated lime content in the asphalt by employing a chemical analysis procedure known as atomic absorption testing. As a result of the atomic absorption testing, DOT believed that the hydrated lime content of some of the asphalt in the project fell below the contractual requirements. Consequently, DOT informed Douglas Asphalt that the non-conforming asphalt would have to be replaced.
In August 2004, Douglas Asphalt filed suit against DOT in the Superior Court of Coffee County for breach of contract, alleging that DOT had improperly found Douglas Asphalt to be in default of the 2000 contract. DOT filed an answer and counterclaim and also successfully moved to transfer venue to the Superior Court of Turner County. On July 12, 2005, shortly after the case had been transferred, Douglas Asphalt moved to exclude evidence pursuant to OCGA § 24-9-67.1, arguing that the atomic absorption testing employed by DOT was not a scientifically accurate means by which to measure the lime content of the asphalt used in the project. In September 2005, the trial court held a four-day hearing on Douglas Asphalt’s motion, during which several experts for both parties testified regarding DOT’s use of atomic absorption testing. One of those experts, Dr. Sue Zhang, testified that she was a senior chemist employed by DOT to conduct atomic absorption testing on the Douglas Asphalt project and had reported to her supervisor that there were problems with the testing methodology but was told to continue the testing in the same manner despite these problems. After the hearing, on January 18, 2006, the trial court granted Douglas Asphalt’s motion and thus excluded the results of the atomic absorption testing used by DOT. DOT received a certificate of immediate review from the trial court and filed an application for interlocutory appeal, which this Court denied.
