Clearwater Constr. Co. v. McClung

Clearwater Construction Company Clearwater appeals the judgment entered against it, following a bench trial, awarding $41,000 on McClung’s breach of warranty claim and $26,000 for attorney fees. Clearwater contends that the trial court improperly awarded McClung attorney fees under OCGA § 13-6-11. OCGA § 13-6-11 allows recovery of attorney fees if “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” It is only necessary for recovery that the plaintiff show any one of these three conditions exists. Further, an award of attorney fees under OCGA § 13-6-11 is to be affirmed if there is any evidence to support it. City of Gainesville v. Waters , 258 Ga. App. 555, 559 4 574 SE2d 638 2002. In addition, “questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense under OCGA § 13-6-11 are generally questions for the factfinder to decide.” Jones v. Ceniza , 257 Ga. App. 806, 810 5 572 SE2d 362 2002.

Viewed with all inferences in favor of the findings of the trial court, sitting as factfinder, the evidence was that Ginny Powell, whose past employment was as a receptionist/bookkeeper, formed Clearwater Construction Company in April 1994, with two men from Atlanta, intending to buy land in the Gainesville area and build spec houses for sale. Powell had previously built a wood home with a friend in Dawson County and became interested in the process, but otherwise had no construction experience. In the Spring of 1995, construction began on the home eventually purchased by McClung. Prior to this, Clearwater had built two houses using synthetic stucco, referred to as External Foam Insulation System EFIS.