Color Concepts, Inc. d/b/a Designer Carpets Designer prevailed on a breach of warranty claim relating to certain carpet manufactured by Lexmark Carpet Mills, Inc. Lexmark The jury awarded $10,284 for the breach and $27,253 in attorney fees. In this appeal, Lexmark contests only the award of attorney fees. Lexmark contends that the trial court erred by finding its motion for directed verdict was untimely and asserts that the record lacks evidence of bad faith within the meaning of OCGA § 13-6-11. Because we find that Lexmark’s motion was not procedurally barred and that the record does not support a finding of bad faith, we reverse. This litigation arose in the aftermath of Designer’s purchase of carpet from Lexmark. When one of Designer’s customers selected a specific carpet pattern, sales representative Shelly Levy then contacted Steven Enck, an independent mill representative. Enck phoned Robert A. White, Lexmark’s vice president of marketing. After some discussion between Enck and White, Designer placed a custom order for Lexmark’s Infinity 831 in a 30 ounce tufted weight. Lexmark produced the carpet and sent Designer an invoice for the purchase price. At the bottom of the invoice was stated “OUR WARRANTY REQUIRES: . . . 2 That Carpet and Rug Institute Installation Procedures be used. 3 That Mill recommended pad be used.” The “MILL ONE YEAR LIMITED WARRANTY” on the back of the invoice stated: “this warranty applies only to carpeting properly installed over manufacturer approved pad with the proper density and installed according to CRI installation procedures in effect at time of purchase.” The warranty provided that “in the event of a manufacturing defect, the manufacturer will furnish replacement carpet, of equivalent quality, for the effected area at no charge, excluding installation.” It is undisputed that when installed, the carpet was glued directed onto a concrete subfloor without a pad. Under the terms of the limited warranty, a purchaser waived incidental and consequential damages.
About eight months after the carpet’s installation, complaints arose. On February 15, 1999, Enck notified Lexmark that “customer is complaining of very excessive wear and wants mill to inspect ASAP.” In response, Lexmark retained an expert, Patrick Richardson, to inspect the carpet. In an inspection report dated March 2, 1999, Richardson concluded: “the carpet is defective due to the loss of twist in the cut pile nylon yarn. The loss of twist has caused the pattern to be lost and resulted in the fiber being crushed, matted and tangled down to one/half its original pile height.” On March 5, 1999, Designer demanded a full refund or full assurance that any replacement carpet would perform properly. Designer subsequently also retained Richardson to inspect the carpet. In an inspection report to Designer, dated
