Biederbeck v. Marbut

Some evidence showed that the plaintiff performed work outside of the parties' contract in building their new home, so he had a claim in quantum meruit.

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Richard H. Marbut brought suit to recover for services rendered in constructing a house for Lincoln and Anna-Correlia Thompson Biederbeck. Following a trial by jury, Marbut was awarded damages of $457,410, including compensatory damages, costs of litigation, and attorney fees. The trial court denied the Biederbecks’ motion for judgment notwithstanding the verdict or a new trial, and the Biederbecks filed this appeal. Since filing the appeal, the Biederbecks have sold the house and paid the judgment, which was subject to a recorded writ of fieri facias. 1. As a preliminary matter, Marbut contends the appeal is moot because the Biederbecks have paid the judgment in full and they chose not to post a supersedeas bond as ordered by the court.1 We disagree.

“It is well settled in this state that the voluntary payment of the judgment by an appellant renders moot the issues sought to be determined on appeal. Cits.” Imperial Body Works v. National Claims Service , 158 Ga. App. 241, 243 2 279 SE2d 534 1981. See also City of Columbus v. Barngrover , 250 Ga. App. 589, 598 5 c 552 SE2d 536 2001; OCGA § 5-6-48 b 3. But payment of a fi. fa. while an appeal is pending does not render the appeal moot, even if the appellant did not post a supersedeas bond on appeal:Full payment of the fi. fa. founded on the judgment sought to be reversed, pending a writ of error, it not appearing that any supersedeas was sued out, is no cause for dismissing the writ of error, inasmuch as the defendant below the plaintiff in error here would be entitled to recover the money back in case the judgment should be reversed.R. & D. Railroad Co. v. Buice , 88 Ga. 180 14 SE 205 1891. See, e.g., Hudson v. Alford , 118 Ga. 669 45 SE 454 1903 following Buice ; Toole v. Davis , 13 Ga. App. 122 78 SE 864 1913 same.

Biederbeck v. Marbut

Some evidence showed that the plaintiff performed work outside of the parties' contract in building their new home, so he had a claim in quantum meruit.

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