Appellees-plaintiffs Fred Franklin Wood and Jacquelyn M. Wood brought this action for continuing trespass to realty, negligent design, negligent construction, OCGA § 13-6-11 attorney fees and punitive damages against appellant-defendant D. G. Jenkins Homes, Inc. “Jenkins”.1 The action arose when Jenkins built a house and a railroad crosstie retaining wall for Tim and Gloria Goss on property immediately adjacent to the Woods.2 The Woods averred that the retaining wall encroached upon their property and that the house violated the side yard setback requirement for the subdivision. Upon first considering this case on interlocutory appeal, see Wood v. D. G. Jenkins Homes, Inc. , 255 Ga. App. 572 565 SE2d 886 2002, we reversed, concluding that the trial court abused its discretion in finding that the potential for undue prejudice and confusion outweighed the probative value of similar transaction evidence the Woods sought to introduce as to Jenkins’s state of mind and intent when it built the offending house and retaining wall, not as probative merely of carelessness as a builder but as probative of knowing carelessness persisted in with utter indifference to the consequences. Wood v. D. G. Jenkins Homes, Inc. , supra at 573-74, citing Gunthorpe v. Daniels , 150 Ga. App. 113, 115 257 SE2d 199 1979.
Upon the trial of the case following the remittitur of our decision on interlocutory appeal, the jury returned a verdict for the Woods, awarding them $318,500 in compensatory and punitive damages3 as well as $10,000 for attorney fees and expenses of litigation. Jenkins now appeals, contending that the state court erred in denying its motion for directed verdict as to the Woods’ claims for negligent construction, negligent design, and negligent reconstruction of the retaining wall; erred in failing to admit certain applications for setback variance filed by a competing builder, Defendant’s Exhibits 2 and 3, this to rebut the Woods’ similar transaction evidence of setback violation as to Jenkins; erred in entering judgment on damages, such damages as in excess of the relevant evidence; erred in entering judgment on the Woods’ claims for attorney fees and punitive damages for want of a basis for recovery on the underlying claims; and erred in entering judgment as to punitive damages in excess of $250,000 in that there was no evidence of any specific intent to harm the Woods. These claims of error as meritorious in part, we affirm in part, reverse in part, and remand the case for a new trial with direction. Held :
