Bobby W. White appeals from an order of the Stephens County Superior Court denying his motion for new trial in this personal injury automobile accident suit brought by Carolyn and Julius Scott. The jury found in favor of Carolyn Scott only, awarding her $25,000 in damages and $22,500 in attorney fees and costs of litigation. White contends the trial court erred in submitting the issue of litigation expenses to the jury. White also raises as error the court’s giving or failing to give several jury charges. For the following reasons, we reverse. 1. White contends the trial court should not have submitted the issue of litigation expenses under OCGA § 13-6-11 to the jury. As we have held, OCGA § 13-6-11 permits the jury to award attorney fees “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” If a bona fide controversy exists, the plaintiff may recover attorney fees under this Code section only if the defendant has acted in bad faith in the underlying transaction. Issues regarding the existence of a bona fide controversy or a defendant’s bad faith are generally for the jury to decide. Finally, an award of attorney fees under OCGA § 13-6-11 should be affirmed if there is any evidence to support it. Citation omitted. Anderson v. Cayes , 278 Ga. App. 592, 593 630 SE2d 441 2006. Here, there is no claim that White acted in bad faith. The Scotts averred only that he was stubbornly litigious and caused them unnecessary trouble and expense.
When bad faith is not an issue and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not “any evidence” to support an award pursuant to OCGA § 13-6-11 if a bona fide controversy clearly exists between the parties. Thus, in a case where bad faith is not an issue, attorney fees are not authorized under OCGA § 13-6-11 if the evidence shows that a genuine dispute exists —whether of law or fact, on liability or amount of damages, or on any comparable issue. Citation omitted. Id. “It is for the jury to determine whether there was a bona fide controversy, unless the facts preclude such a finding as a matter of law.” Citation and punctuation omitted. Webster v. Brown , 213 Ga. App. 845, 846 2 446 SE2d 522 1994. Therefore, resolution of this appeal depends upon whether the evidence below presented a bona fide controversy as a matter of law.
