Following a bench trial, the court awarded Reginald Parker damages on his breach of contract claim against Hazel Mills and $18,000 in attorney fees and expenses because Mills failed to comply with a discovery request. Because the damages awarded are not recoverable on a claim for breach of contract to sell real estate, we reverse that judgment. Also, because there was no evidence presented which would enable the trial court to determine what portion of the fees and expenses were attributable to the discovery abuse, we vacate that award and remand the case for a further evidentiary hearing. This is the second appearance of this case in our Court. See Mills v. Parker , 253 Ga. App. 620 560 SE2d 42 2002, for a detailed recital of the underlying facts. Briefly, that case states that Mills and Parker signed a contract for the sale of Mills’s home to Parker for $125,000. Mills then changed her mind and notified Parker that she did not wish to sell the house and would not be at the closing. Just before closing, the closing attorney received a letter from an attorney purporting to represent Mills’s husband, stating that Mills had earlier executed a quitclaim deed in her husband’s favor and the deed would be recorded in the immediate future. Id. at 621. A quitclaim deed dated March 20, 2000, was filed and recorded on July 14, 2000, three days before closing. Id.
When Mills did not come to the scheduled closing, Parker sued for specific performance or, in the alternative, breach of contract, damages for fraudulent misrepresentation of marketable title, attorney fees and punitive damages. The trial court granted Parker partial summary judgment on his claim for specific performance of the contract, set aside the quitclaim deed as a fraudulent conveyance, and found that Mills fraudulently represented that she had marketable title at the time of the contract to sell the house. The trial court also struck Mills’s Answer and awarded default judgment to Parker after granting Parker’s motion for sanctions against Mills for her failure to respond to his request that she produce the original or a legible copy of the quitclaim deed. Id.
