After a Cherokee County jury awarded damages and attorney fees to Sonny and Sue Roper in this property damage case, John Lowery, Jr. filed a motion for judgment notwithstanding the verdict “JNOV”. Lowery contended that the trial court erred when it denied his motion for a directed verdict on the issue of attorney fees, because the Ropers were not entitled to attorney fees as a matter of law. The trial court denied Lowery’s motion for JNOV, and Lowery appeals. For the following reasons, we reverse the trial court’s order to the extent that it ordered Lowery to pay the Ropers’ attorney fees. Lowery contends that the trial court erred in denying his motion for a directed verdict on the issue of attorney fees and, later, his motion for JNOV on the same issue.1 Lowery argues that there was a bona fide controversy that required the jury to determine whether he was negligent, whether the Ropers were also negligent, and whether the Ropers’ negligence caused or contributed to the property damage. Therefore, according to Lowery, the Ropers were not entitled to attorney fees as a matter of law under OCGA § 13-6-11.
OCGA § 13-6-11 provides that “the expenses of litigation generally shall not be allowed as a part of the damages; but where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”2 Where there is a bona fide controversy regarding liability that must be resolved by a factfinder, however, “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.” Punctuation and footnote omitted. MARTA v. Mitchell , 289 Ga. App. 1, 2 659 SE2d 605 2007. Stated differently, if there is no evidence of bad faith and there is a bona fide controversy regarding liability, then the plaintiff is not allowed to recover attorney fees under OCGA § 13-6-11. Id. at 2-3; see also White v. Scott , 284 Ga. App. 87, 90 1 643 SE2d 356 2007 “The existence of a bona fide dispute and a reasonable defense at trial precludes the award of attorney fees and expenses of litigation under OCGA § 13-6-11.” citation and punctuation omitted.
