author: Dillard, Judge.

text:
    A11A0055.
    HINDU TEMPLE AND COMMUNITY CENTER OF THE HIGH DESERT, INC. et al. v. RAGHUNATHAN et al.
    (714 SE2d 628)
   Dillard, Judge.

The trial court dismissed a lawsuit filed by appellants Hindu Temple and Community Center of the High Desert, Inc. (“Hindu Temple”) and Annamalai Annamalai against appellees Sandhya J. Shastri, Senthil Kumar Kandasamy, and Valmikinathan E Raghu-nathan, after concluding that both the lawsuit and accompanying verifications violated OCGA § 9-11-11.1, Georgia’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute. In addition to dismissing the lawsuit, the trial court ordered that appellants pay appellees’ attorney fees and expenses pursuant to OCGA §§ 9-11-11.1 (b) and 9-15-14 (a), (b). Appellants argue that the trial court erred in ruling that the lawsuit was governed by OCGA § 9-11-11.1 and that their verifications were false, and further erred in calculating the amount of attorney fees owed. We disagree and affirm.

The undisputed evidence shows that in 2008, the Gwinnett County Police Department began receiving numerous complaints from individuals throughout the country against the Hindu Temple and Annamalai (the Temple’s founder), alleging that they were victims of credit-card fraud. Specifically, the victims claimed that they contacted the Hindu Temple in order to purchase “religious services,” only to later discover that their credit cards had been charged up to ten times more than the agreed-upon amount. There were also reports that Annamalai had been misrepresenting himself to these purchasers of religious services as a medical doctor.

During the ensuing investigation, the investigator assigned to manage the flood of complaints received statements from Shastri and Kandasamy. Specifically, Shastri reported that her grandmother contacted the Hindu Temple to purchase religious services by Annamalai, who claimed to be a doctor or psychologist, and that thereafter multiple unauthorized charges were run on her credit card. Similarly, Kandasamy reported that he had also been a victim of credit-card fraud at the hands of the appellants, providing the investigator with a recorded conversation between himself and Annamalai, in which Annamalai held himself out to be a medical doctor. It is unclear from the record whether Raghunathan also reported to having been victimized by appellants’ alleged criminal conduct, but there is evidence that he referred Kandasamy to the investigator via e-mail after Kandasamy reported the alleged fraud to his bank and other governmental authorities.

Sometime thereafter, Hindu Temple and Annamalai filed the instant complaint against Shastri, Kandasamy, and Raghunathan, alleging malicious prosecution, intentional interference with contractual relations, and defamation, and seeking both compensatory and punitive damages. Appellants’ claim for malicious prosecution was based not on direct conduct by appellees, but rather on appel-lees’ “support[ ]” of “false statements” made by two other nonparty individuals (one from New Jersey and one from Illinois), which resulted in Annamalai’s arrest in an unrelated case. Appellants’ claim for intentional interference with contractual relations, lodged only against Kandasamy and Raghunathan, alleged that, by reporting unauthorized credit-card transactions, those appellees interfered with appellants’ contractual relationships with their followers, from whom they enjoyed “substantial funds.” And finally, appellants’ defamation claim, also lodged only against Kandasamy and Raghu-nathan, claimed that those appellees allegedly made “false and malicious comments” to the police about appellants’ unauthorized credit-card transactions and/or encouraged others to do so as well, resulting in the cancellation of payments and appellants’ “economic loss.” Appellants have filed similar lawsuits in various courts throughout Georgia against other individuals who likewise reported appellants’ alleged criminal conduct to law-enforcement officials.

Contemporaneously with the filing of the complaint, Annamalai (on behalf of both himself and the Hindu Temple), as well as appellants’ counsel, Jesse W. Hill, filed sworn verifications pursuant to OCGA § 9-11-11.1 (b), in which they certified that (1) the claims were “true and correct to the best of [their] knowledge, information and belief formed after reasonable inquiry”; (2) the claims were well grounded in law and fact; (3) the acts forming the bases of the claims were not privileged communications as defined by the statute; and (4) the claims were not interposed for any improper purpose, including to harass or to cause unnecessary delay.

Appellees moved to dismiss the complaint, asserting that the lawsuit violated Georgia’s anti-SLAPP statute and that appellants’ verifications were false. The trial court held a hearing on the motion pursuant to OCGA § 9-11-11.1 (d), during which it heard testimony from the investigator assigned to receive the complaints. In addition to assimilating reports from individuals throughout the country complaining about having been victimized by appellants, the officer also learned of numerous individuals who had disputed the allegedly fraudulent charges with their credit-card companies directly but had chosen not to file police reports. The investigator testified that he had no reason to question the veracity of appellees or the other alleged victims’ statements or motives, nor did he have any evidence remotely suggesting that any of them were conspiring to harm appellants. The trial court also learned that, in direct violation of a discovery stay in the case, appellants’ counsel subjected the investigator, unrepresented by counsel, to a seven-hour videotaped deposition prior to the hearing.

Clearly troubled by what it deemed appellants’ “almost criminal behavior” of filing complaints against individuals voicing legitimate legal grievances, the trial court dismissed appellants’ complaint. And in so doing, the trial court expressly credited the investigator’s testimony that appellees’ reports to the police were truthful, made in good faith, and were not malicious in nature, nor made pursuant to any type of conspiracy. The trial court also held that the lawsuit fell within the purview of OCGA § 9-11-11.1, and further concluded that appellants’ verifications were false. The court based its ruling on a determination that appellants’ claims were not well-grounded in fact or warranted by existing law at the time they were filed; that appellants’ statements to law enforcement were privileged; and that neither appellants nor their attorney reasonably believed the claims were filed for a proper purpose. Finally, the trial court ordered appellants and their counsel, jointly and severally, to pay appellees’ attorney fees and expenses in the amount of $8,775, pursuant to OCGA §§ 9-11-11.1 (b) and 9-15-14 (a) and (b), after concluding that the complaint amounted to abusive litigation. This appeal follows.

The General Assembly adopted the anti-SLAPP statute “to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their . . . right to petition government for redress of grievances.” The statute’s stated purpose is to prevent a “chill[ing]” of that right “through abuse of the judicial process.” And to discourage such abuse, the anti-SLAPP statute requires that any claim that could reasonably be construed as infringing upon those rights must be accompanied by a detailed verification attesting that the claim

is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section 51-5-7; and that the claim is not interposed for any improper purpose such as to suppress a person’s or entity’s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation.

If a claim falls within the ambit of OCGA § 9-11-11.1 and the trial court makes a “substantive, evidentiary” determination that a verification is false, the statute demands the imposition of sanctions — up to and including dismissal of the complaint and an award of attorney fees.

With these guiding principles in mind, we now turn to appellants’ enumerations of errors, which we will address in turn.

1. First, appellants argue that the trial court erred in ruling that their lawsuit constituted a SLAPP suit under OCGA § 9-11-11.1 because it was filed “months” after appellees’ reports were given to the police and, therefore, “cannot reasonably be construed as an effort” to intimidate appellees or suppress their speech. Appellants’ argument is specious at best.

Each of appellants’ claims are predicated solely and exclusively upon appellees’ statements to police or statements made in furtherance of an ongoing investigation regarding appellants’ alleged criminal activity. Suffice it to say, such speech is “in furtherance of the right ... to petition government for a redress of grievances” and thus represents the type of speech that the anti-SLAPP statute is designed to protect. Moreover, it goes without saying that the perceived (and substantially documented) victimization of individuals throughout the country constitutes “an issue of public interest or concern.” Indeed, it is hard to imagine a more clear example of the type of “abuse of judicial process” that OCGA § 9-11-11.1 aims to deter than the serial filing of civil complaints against individuals lawfully reporting alleged unlawful activity We therefore have little trouble concluding that appellants’ complaint falls within the ambit of OCGA § 9-11-11.1, which imposes on them the procedural requirement of filing sworn verifications; and, contrary to appellants’ assertion, the passage of “months” between appellees’ reports to the police and appellants’ filing of the lawsuit does nothing to change that result. We further note that appellants’ argument that the anti-SLAPP statute is inapplicable in the case sub judice seems particularly disingenuous in light of the fact that, having filed sworn affidavits pursuant to OCGA § 9-11-11.1 (b), they were obviously under the impression that the statute did in fact govern their claims.

2. Appellants also challenge the trial court’s finding that their affidavits were false. Again, we disagree.

Although we could affirm the trial court on any number of grounds, we need not go beyond our conclusion that there is ample evidence in the record demonstrating that appellants’ lawsuit was not filed for a proper purpose or well-grounded in fact. Here, each of appellants’ claims — malicious prosecution, tortious interference with business relations, and defamation — requires a showing of intentional, unlawful conduct by appellees. Importantly, appellants have not contested the veracity of appellees’ statements concerning their alleged criminal conduct, much less presented evidence sufficient to imply wrongdoing or malicious conduct by the appellees. At most, appellants showed that Raghunathan asked Kandasamy to report to the appropriate law-enforcement official the same conduct he had already reported to his bank and other governmental entities, which appellants argue was inconsistent with Kandasamy’s later statement that, “[n]o party ever encouraged [him] to contact the Gwinnett County Police or to suggest that [he] say anything that was not true.” But that evidence falls woefully short of the prima facie evidence required to support the claims asserted in the complaint. Moreover, appellants concede that they have filed similar lawsuits in various courts throughout Georgia against numerous individuals from across the country — all of whom claim to have been victimized by appellants’ alleged criminal activity. And, with regard to the seven-hour deposition of the investigator, the evidence shows that appellants have blatantly abused the judicial process within the context of this case.

For all of the foregoing reasons, we agree with the trial court that appellants’ verifications were false to the extent that the complaint was neither filed for a proper purpose nor well-grounded in fact, and that dismissal of the complaint was more than warranted.

3. Finally, appellants argue that the trial court erred in calculating the amount of its attorney-fee assessment. During a separate hearing on the issue of attorney fees, the trial court received evidence related to appellees’ counsel’s experience, his hourly billing rate and the reasonableness of that rate, the rate structure with his clients, and the nature and amount of time expended on this matter. The trial court then concluded that, inter alia, appellants asserted claims “with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept,” or, alternatively, claims that “lacked substantial justification” and “were substantially frivolous, substantially groundless, or substantially vexatious,” such that an award of attorney fees was justified under either OCGA § 9-15-14 (a) or (b). And consistent with the evidence presented, the trial court ordered appellants and their attorney, jointly and severally, to pay $8,775, which it determined “constitute[d] the amount of reasonable attorney[ ] fees incurred in defending this lawsuit.”

Without challenging the sufficiency of the evidence as to the attorney fees/costs or the reasonableness of same, appellants argue that the trial court’s award was unwarranted because appellees’ counsel testified on cross-examination that he agreed to defend his clients for a flat fee of $2,000 each, totaling $4,000. Appellees’ trial counsel testified that, although he agreed to accept a lesser fee from his clients, his testimony represented the actual billable hours he incurred in defending the lawsuit.

The question, then, is whether, under OCGA § 9-15-14, the trial court was authorized to assess an award representing the reasonable value of the attorney’s services rendered, or whether it was instead limited strictly to the amount that the attorney actually billed to his clients.

By its express terms, OCGA § 9-15-14 authorizes an award of “reasonable and necessary attorney’s fees and expenses of litigation” to any party who has been forced to defend a complaint lacking either a justiciable issue or a substantial justification, limiting the recovery only so as to “not exceed amounts which are reasonable and necessary for defending or asserting the rights of a party.” Our case law further requires that the award be supported by “sufficient proof of the actual costs and the reasonableness of those costs,” but does not otherwise define “actual costs.” And notably, nothing in either the statute or our case law strictly limits the award to expenses actually billed to or incurred by a client.

In the absence of an explicit textual limitation of such an award, or decisional case law to the contrary, we see no basis for narrowing the scope of a permissible attorney-fee award assessed pursuant to OCGA § 9-15-14 (a) or (b) in the manner urged by appellants. The purpose of these statutory subsections is twofold: to both punish and deter litigation abuses and to recompense litigants who are forced to expend resources in contending with abusive litigation. In light of this dual purpose, we conclude that to the extent one party may receive the benefit of an attorney’s willingness to accept the risk of defending his or her client for an amount less than the actual value of the services ultimately rendered, the most faithful construction of OCGA § 9-15-14 is one that does not reward the offending party. This is particularly true in light of the fact that, as a necessary predicate to having issued the award, the trial court must determine that the fees were unwarranted and amassed solely as a result of abusive conduct by the party against whom they were assessed. For these reasons, we conclude that the trial court did not abuse its discretion in awarding to appellees the reasonable value of their attorney’s services.

Decided June 30, 2011

Reconsideration dismissed July 22, 2011

Jesse W. Hill, for appellants.

Mark E. Scott, for appellees.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.

       The anti-SLAPP statute, OCGA § 9-11-11.1, imposes prerequisites to the filing of a lawsuit that has been
      asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern.
      See Atlanta Humane Soc’y v. Harkins, 278 Ga. 451, 452-54 (1) (603 SE2d 289) (2004) (recognizing that OCGA § 9-11-11.1 embodies both a procedural and substantive component).

       The investigator testified that, like many of the reported victims, Shastri’s grandmother feared spiritual repercussions for “rock[ing] the boat,” and consequently decided to pay the unauthorized charges; thus, no criminal charges were filed against appellants in that particular case.

       The record does not reflect that criminal charges were ever filed as a direct result of Kandasamy’s statements.

       The record shows that prior to the events in question, Annamalai filed a police report claiming that Raghunathan made terroristic threats to him, but the resulting investigation revealed that Annamalai’s claims were unsubstantiated and the investigator ultimately concluded that Annamalai provided false information to law enforcement.

       Indeed, Shastri resides in North Carolina, Kandasamy resides in Missouri, and Raghunathan resides in Georgia. The relationship between the appellees, if any, is unclear. With the exception of Raghunathan’s e-mail introduction of Kandasamy and the investigator (which occurred after Kandasamy reported the alleged crime to other entities), the record is devoid of evidence that any of the appellees or the nonparty individuals knew of each other prior to voicing their respective grievances about appellants to the investigator.

       The criminal complaint in that case charged Annamalai with practicing medicine without a license, naming one of the nonparty individuals as the victim. Appellants contend that their claim against appellees is justified by the investigator’s testimony that the arrest warrant for Annamalai was supported by both the statements of the nonparty victim, as well as witness statements (i.e., those from Shastri and Kandasamy), which provided additional evidence of the conduct alleged. The case was ultimately dismissed for reasons unknown.

       As noted supra, the record contains no evidence of a criminal report made by Raghunathan, so the allegations against him appear to be based upon his referring Kandasamy to the investigator.

        See Metzler v. Rowell, 248 Ga. App. 596, 600 (3) (547 SE2d 311) (2001) (trial court is authorized to receive evidence during an OCGA § 9-11-11.1 hearing without converting the motion to dismiss into one for summary judgment).

        See OCGA § 9-11-11.1 (d) (“All discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss or a motion to strike made pursuant to [OCGA § 9-11-11.1 (b)].”). Appellants’ counsel acknowledged his awareness of the discovery stay, and stated only that he had “no good response” for his conduct and admitted that “the bottom line [was] that [he] did not follow the court’s direction.” The trial court struck the deposition and ordered the videotape returned to the investigator.

       The trial court also dismissed the Hindu Temple’s claims in their entirety after concluding that the entity “Hindu Temple and Community Center of the High Desert, Inc.,” the named party in the lawsuit, did not even exist as a legal entity in the State of Georgia when the complaint and verifications were filed, and only came into existence nine days prior to the hearing on the motion to dismiss. See generally OCGA §§ 14-2-1502; 14-3-1502 (a) (corporations, whether for profit or nonprofit, not qualified to do business in the state are precluded from suing in Georgia courts). Appellants do not dispute the trial court’s factual findings in this regard.

       OCGA § 9-11-11.1 (a).

        Id.

       OCGA § 9-11-11.1 (b). OCGA § 51-5-7 (4) deems privileged [statements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1[.]

        Atlanta Humane Soc’y, 278 Ga. at 454 (1), 456 (2) (“[T]he trial court may dismiss the claim if it makes a substantive, evidentiary determination that such claim is falsely verified.”). See OCGA § 9-11-11.1 (b) (“If a claim is verified in violation of this Code section, the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.”); Hagemann v. Berkman Wynhaven Assocs., L.P., 290 Ga. App. 677, 683 (660 SE2d 449) (2008) (“A sanction against a claimant must be imposed upon a finding that the complaint and verification were filed in violation of OCGA § 9-11-11.1 (b).”).

       The record reflects that appellees spoke with the investigator toward the end of 2008, and appellants filed the complaint in January 2010.

       OCGA § 9-11-11.1 (b).

        See id. The definition of protected speech, as set forth in OCGA § 9-11-11.1 (c), is exceptionally broad and, by its plain terms, encompasses “any written or oral statement . . . made ... to a[n] . . . executive . . . proceeding, or any other official proceeding authorized by law, . . . or . . . made in connection with an issue under consideration or review by a[n] . . . executive . . . body, or any other official proceeding authorized by law.” See Metzler, 248 Ga. App. at 598 (1) (noting that the definition of protected speech encompassed by OCGA § 9-11-11.1 (c) is “very expansive”); see also Lovett v. Capital Principles, LLC, 300 Ga. App. 799, 801.(686 SE2d 411) (2009) (recommendations made by advisors to school board regarding the implementation of a computer program within the school district were made during “an official proceeding authorized by law,” and thus, a complaint based upon the advisors’ statements fell within OCGA § 9-11-11.1). Compare Berryhill v. Ga. Cmty. Support & Solutions, Inc., 281 Ga. 439, 440-42 (638 SE2d 278) (2006) (defendant’s statements in internet postings and e-mails complaining about the care her mentally handicapped son was receiving were not made pursuant to an official proceeding, nor could they be construed as a request for an official investigation or proceeding, and were therefore not entitled to anti-SLAPP protection).

       OCGA § 9-11-11.1 (b); see also generally Adventure Outdoors, Inc. v. Bloomberg, 307 Ga. App. 356, 360 (2) (705 SE2d 241) (2010) (extending OCGA § 9-11-11.1 protection to speech designed to inform the public about gun dealers alleged to be violating federal laws).

        See OCGA § 9-11-11.1 (a). Cf. Citizens for Ethics in Gov’t, LLC v. Atlanta Dev. Auth.,
        303 Ga. App. 724 (694 SE2d 680) (2010) (illustrating a clear abuse of the judicial process).

        See generally Atlanta Humane Soc’y, 278 Ga. at 454 (1) (holding that OCGA § 9-11-11.1 offers substantive protection beyond the procedural consideration related to the timing of the filing of the verification); see also Lovett, 300 Ga. App. at 801; Metzler, 248 Ga. App. at 598 (1).

       We further reject appellants’ contention that Denton v. Browns Mill Dev. Co., Inc., 275 Ga. 2 (561 SE2d 431) (2002), stands for the proposition that any lawsuit alleging intentional conduct by a defendant falls outside the purview of OCGA § 9-11-11.1. Rather, Denton merely holds that the defendant’s alleged unlawful trespass onto the plaintiff s land under the facts of that particular case did not constitute “an act in furtherance of the right of free speech or the right to petition government” and, therefore, fell outside the stated purpose of the statute. Id. at 6 (punctuation omitted).

       A claim of malicious prosecution requires the appellants to show that they were “subject to a criminal prosecution which was carried on maliciously and without any probable cause and which caused [them] damage, and that the prosecution was instigated by the [appellees].” Turnage v. Kasper, 307 Ga. App. 172, 179-80 (1) (b) (704 SE2d 842) (2010) (punctuation and footnote omitted); see OCGA § 51-7-40.

       A claim of tortious interference with business relations requires proof that appellees engaged in nonprivileged, improper action or wrongful conduct; that they acted purposely and with malice with the intent to injure appellants; that their actions induced or caused a party to breach a contractual obligation or to discontinue or fail to enter into an anticipated business relationship with appellants; and that their tortious conduct proximately caused damage to appellants. See, e.g., Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, 818 (2) (708 SE2d 672) (2011).

       A claim of defamation requires proof of “(1) a false and defamatory statement concerning [appellants]; (2) an unprivileged communication to a third party; (3) fault by [appellees] amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.” Bolleo v. World Championship Wrestling, Inc., 271 Ga. App. 555, 557 (1) (610 SE2d 92) (2005) (punctuation omitted); see OCGA §§ 51-5-4 (a); 51-5-6.

       This statement was included in a sworn affidavit filed by Kandasamy, and appellants argue that it is inconsistent with an e-mail in which Raghunathan identifies the assigned investigator and requests that Kandasamy “[p]lease call [the investigator] with information about the fraudulent transactions.”

        See generally OCGA §§ 51-5-4 (a); 51-5-6; 51-7-40; Chaney, 308 Ga. App. at 818 (2); Turnage, 307 Ga. App. at 179-80 (1) (b); Bollea, 271 Ga. App. at 557 (1). Cf. Quiktrip Corp. v. Fesenko, 228 Ga. App. 287, 288 (1) (491 SE2d 504) (1997) (“It is fundamental that once defendant affirmatively negates an essential element of plaintiffs complaint, the burden shifts to the plaintiff to show specific evidence of a genuine issue for trial.” (citation omitted)).

       Indeed, appellants filed a separate lawsuit in federal court, naming the investigator as a defendant, in which they alleged that he violated the Racketeer Influenced and Corrupt Organizations Act (RICO) and conspired with appellees, among others, to cause appellants harm. The lawsuit was ultimately dismissed, but not before the officer was subject to an internal investigation pursuant to which appellants’ allegations were deemed utterly baseless.

        See, e.g., OCGA § 9-11-11.1 (b); Hagemann v. City of Marietta, 287 Ga. App. 1, 6-8 (1) (650 SE2d 363) (2007) (affirming trial court’s striking of defendant’s counterclaims after concluding that the verifications filed therewith were false because the counterclaims were not well-grounded in law); Metzler, 248 Ga. App. at 597-99 (1) (dismissing plaintiffs complaint filed in violation of OCGA § 9-11-11.1).

       Appellees’ counsel represented Shastri and Kandasamy exclusively; Raghunathan defended the lawsuit pro se.

       OCGA § 9-15-14 (a).

       OCGA § 9-15-14 (b).

       As previously mentioned, the trial court also assessed attorney fees under OCGA § 9-11-11.1 (b); however, because we affirm the award under OCGA § 9-15-14, we need not address this alternative ground.

       OCGA § 9-15-14 (a) expressly authorizes the trial court to assess an attorney-fees award against the party asserting the offending claim, that party’s attorney, or both.

       OCGA § 9-15-14 (a), (b).

       OCGA § 9-15-14 (d).

        Dave Lucas Co. v. Lewis, 293 Ga. App. 288, 293 (5) (666 SE2d 576) (2008) (footnote omitted); see, e.g., Murray v. DeKalb Farmers Mkt., Inc., 305 Ga. App. 523, 525 (2) (699 SE2d 842) (2010) (affirming only that portion of fee award that was supported by evidence in the record); Johnston v. Correale, 285 Ga. App. 870, 870-71 (1) (648 SE2d 180) (2007) (remanding case to the trial court for entry of findings of fact, including actual costs and reasonableness of attorney fees).

        Compare OCGA §§ 9-11-11.1 (b) (“If a claim is verified in violation of this Code section, the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include . . . the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.” (emphasis supplied)); 9-15-14 (d) (“Attorney’s fees and expenses of litigation incurred in obtaining an order of court pursuant to this Code section may also be assessed by the court and included in its order.” (emphasis supplied)); Roylston v. Bank of Am., N.A., 290 Ga. App. 556, 562-63 (2) (a) (660 SE2d 412) (2008) (in actions involving both meritorious and frivolous claims, trial court must limit award to fees incurred as a result of the sanctionable conduct so as to “exclude from any sanctions award those fees and expenses unrelated to defending against the claims deemed frivolous”). Cf. Wisconsin v. Hotline Indus., Inc., 236 F3d 363, 366-68 (II) (7th Cir. 2000) (discussing various attorney-fee statutes under federal law and recognizing a distinction between those authorizing an award of “reasonable fees” and those authorizing an award of fees “actually incurred”); State Farm Mut. Auto. Ins. Co. v. Smoot, 381 F2d 331, 339 (4) (5th Cir. 1967) (prior to the adoption of OCGA § 9-15-14, affirming a jury charge stating that under Georgia law “any award of attorney fees . . . should be determined on a quantum meruit basis, irrespective of any contract which may exist between the plaintiff and his attorney as to the amount of such fees. . . .”).

        See O’Keefe v. O’Keefe, 285 Ga. 805, 806 (684 SE2d 266) (2009); In re Estate of Holtzclaw, 293 Ga. App. 577, 579 (1) (667 SE2d 432) (2008); see also Dixon v. Home Indem. Co., 206 Ga. App. 623, 624 (1) (426 SE2d 381) (1992) (“Though an award arising from a judgment under OCGA § 9-15-14 also serves the incidental purpose of providing compensation to the injured party, this does not diminish the reality that awards made under it are ‘sanctions’ under the accepted definition of that term.”).

       We note that “any award of fees or expenses under OCGA § 9-15-14 (a) ‘shall be awarded to any party’ and not directly to the attorney for the party!,]” but the court nonetheless may “specify the amounts due to each attorney or law firm.” Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009) (citation and emphasis omitted).

        See generally Roylston, 290 Ga. App. at 564 (2) (b) (“Because [appellant] failed to present any justiciable issue of law or fact and brought claims that lacked substantial justification against [appellee], the trial court did not abuse its discretion in its attorney fees award.”); Bircoll v. Rosenthal, 267 Ga. App. 431, 439 (2) (c) (600 SE2d 388) (2004) (rejecting appellant’s argument that attorney fees sanction should be limited to legal work performed after deposition in which it was revealed the claims were groundless because appellants “should have known that their claims had no substantial basis before they filed the complaint”); see also Abt v. Abt, 289 Ga. 166 (709 SE2d 806) (2011); Miner v. Harrison, 205 Ga. App. 523, 527 (5) (422 SE2d 899) (1992).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A11A0397.
    REYNOLDS v. THE STATE.
    (714 SE2d 621)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Dennis Ivan Reynolds appeals his convictions for aggravated assault, aggravated battery, kidnapping with bodily injury and possession of a firearm or knife during the commission of a crime. Reynolds contends that the evidence was insufficient, and that the trial court erred by failing to merge the aggravated assault, aggravated battery, and kidnapping with bodily injury offenses. Upon our review, we affirm.

When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that on the night of April 29, 1998, Reynolds was visiting the victim when she told him that she wanted to end their relationship of approximately four years. He became upset, went to the garage, and returned with a shotgun that he pointed at the victim and threatened to kill her. Reynolds cut the telephone line when the victim attempted to call 911, and also refused to let the victim leave. The victim testified that when she tried to leave the house, she was injured, bleeding, and frightened, but did not remember much about the attack because she was “in shock.” As she approached the front door, Reynolds knocked her down, and she fell face-down into a coffee table. Blood poured from the victim’s face, and she thought that “he had knocked [her] eye ball out because [she] couldn’t see.” Reynolds followed the victim into her bedroom, where she had run, and as the victim kneeled on her hands and knees, stood over her and threatened to kill her, himself, and her children. Reynolds then forced the victim to walk through a trail to a wooded area behind her house, where he again had her get on her hands and knees as he sat nearby holding the gun. Reynolds again threatened to kill himself, but the victim feared that he was planning to kill her while they were in the deserted area.

After a while, Reynolds forced the victim, who was bloodied and lightheaded, to get up and led her back to her house, where he forced her at gunpoint to swallow several unidentified pills, telling her that she was going to “kill [herself] tonight.” The victim testified that she was not positive, but believed they were prescription sleeping pills. Reynolds then told her that he was going to get a souvenir and “started . . . cutting [her] hair all the way around” until he had a “long . . . ponytail.” Reynolds continued to hold the gun on the victim, and after he made her lie down on the couch, she fell asleep. He woke her and gave her a glass containing a cloudy liquid, which he said was pain medication and forced the victim to drink it. At some point, the victim either went back to sleep or lost consciousness; when she awakened several hours later, Reynolds was gone and she went to a neighbor’s house for help.

When police responded, they found blood throughout the house, including “quite a bit” on a coffee table, a blood smear on the microwave, drops and smears of blood on the carpet, and drops along the dresser top in the master bedroom. According to an officer, “there were hand prints smeared in the blood [on] the hallway walls where someone had gone up and down the hallway, . . . and also on the carpet, on the tile, on the doorways, [and] through the doors.” There was also blood on several items of clothing, and some of the victim’s hair was scattered in the room. Police discovered a note that Reynolds had written apologizing to the victim and saying that he was going to kill himself. The victim told police about the assault, including that Reynolds had repeatedly beaten her with his fists, and slammed her into the walls and furniture. Her treating doctor at the emergency room testified that “it was difficult to count the fractures” to her face, and characterized her injury as a “smash injury,” which required extensive surgery to reconstruct her damaged face. The doctor testified that the “screws and wires” used to repair the victim’s face were permanent. He further testified that it was impossible for the injury to have been caused by a single blow.

1. Contrary to Reynolds’ argument otherwise, we find the evidence sufficient to sustain his convictions for aggravated battery and aggravated assault. Under OCGA § 16-5-24 (a), a person commits the offense of aggravated battery when he maliciously causes bodily harm to another by rendering a member of the victim’s body useless. The disfigurement of the victim’s face met this element of the crime. See generally Cook v. State, 255 Ga. 565, 578 (16) (340 SE2d 843) (1986). Likewise, the evidence also supports Reynolds’ conviction for aggravated assault. See OCGA § 16-5-21 (a) (2) (a person commits the offense of aggravated assault when he or she assaults with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury).

Reynolds contends that the State failed to introduce evidence sufficient to show asportation under the standard announced in Garza v. State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008). We do not agree.

The standard in Garza provides for the assessment of four factors:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

(Citations omitted.) Henderson v. State, 285 Ga. 240, 244-245 (5) (675 SE2d 28) (2009). Not all of the four factors must favor the state in order to prove asportation. See Abernathy v. State, 299 Ga. App. 897, 900 (1) (685 SE2d 734) (2009).

Here, Reynolds forced the severely injured victim at gunpoint to leave her house, walk through a trail behind the house to a secluded wooded area, made her kneel on the ground on her hands and knees, and for a significant period of time threatened to kill her or her children as she begged for her life. His actions were not a necessary or inherent part of the assault or battery. Reynolds’ actions further isolated the victim, thereby creating additional danger to her and removing her from the possibility of rescue or escape, and reinforced his control over her. Under these circumstances, the movement at issue was sufficient evidence of asportation as contemplated by Garza.

2. Reynolds contends the trial court should have merged the aggravated assault, aggravated battery, and kidnapping with serious injury counts.

Reynolds was charged with aggravated battery for “intentionally and maliciously” causing “bodily harm to . . . [the victim], by depriving [the victim] of a member of [her] body, by rendering. . . [it] useless, or by seriously disfiguring” her by “beating her face.” He was charged with aggravated assault for making “an assault upon the person of [the victim] with a firearm, a deadly weapon or object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The kidnapping with bodily injury count charged that Reynolds did “abduct or steal away” the victim and during the crime “cause[d] bodily injury” to the victim “by beating her about the face and/or body.”

OCGA § 16-1-6 (1) states that a crime is “included in a crime charged in the indictment or accusation” when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [the other crime]” or if the included crime “differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person ... or a lesser kind of culpability suffices to establish its commission.” Id. at (2). “[T]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Punctuation and footnote omitted.) Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006).

With respect to the aggravated assault and aggravated battery count, whereas the aggravated assault required proof that Reynolds assaulted the victim using a deadly weapon, aggravated battery required proof that he maliciously caused bodily harm to the victim by rendering a member of her body useless. Likewise, the kidnapping count required asportation of the victim. The offenses were distinct, with each requiring proof of a fact which the other did not; thus, the crimes did not merge legally or factually. See Goss v. State, 289 Ga. App. 734, 738 (3) (a) (658 SE2d 168) (2008).

Decided June 24, 2011

Reconsideration denied July 22, 2011.

Jeffrey L. Grube, for appellant.

Kelly R. Burke, District Attorney, Katherine K. Lumsden, T. Rabb Wilkerson III, Venita S. McCoy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       We note initially that the 2009 amendment to OCGA § 16-5-40 to provide that slight movement is sufficient evidence of asportation, as long as the movement is not incidental to another offense, applies to crimes committed on or after the amended statute’s effective date of July 1, 2009, and, therefore, is not applicable in the present case. See OCGA § 16-5-40 (b) (1) (2009); Wilkinson v. State, 298 Ga. App. 190, 195 (1) (d), n. 2 (679 SE2d 766) (2009).


author: McFADDEN, Judge.

text:
    A11A0445.
    STOLTE et al. v. FAGAN et al.
    (714 SE2d 339)
   McFADDEN, Judge.

Kerry Stolte and her husband, Scott Ross (together, “Stolte”) appeal the defense verdict in favor of dentist M. James Fagan III and his practice (together, “Fagan”) in this malpractice case. Stolte argues that in closing argument, defense counsel improperly referred to Fagan’s reputation and that the trial court should have stricken four jurors for cause. Because Stolte acquiesced in the trial court’s remedy for one reference to reputation and waived her objection to another, and because Stolte has not shown that she was required to exhaust her peremptory strikes, we affirm the verdict.

1. Fifty-one minutes into his closing argument, as he was winding up, defense counsel said, “This is a very serious matter. [Fagan’s] conduct, his reputation, his treatment, his care [have] been called into question this week.” Stolte’s counsel approached the bench to object, and the attorneys engaged in an unrecorded, sidebar conference. The trial court sustained the objection and instructed defense counsel to move on. Defense counsel resumed his closing argument and, within seconds, said:

Jim Fagan has dedicated his entire professional career to treating patients — to treating dental patients. Getting up, going to the office, to treat the patient, to do a root canal, to do an extraction, to doing whatever needs to be done; and he’s been there for his patients. Patients everyday in this town, the town we all live in, trust Jim Fagan for extractions, for dental implants, putting prosthetic teeth in, they trust him for root canals, they trust him for cleanings.
Every day people sit down in those three examination chairs and say: Dr. Fagan, here I am. Make me better. Take out that tooth. Perform that root canal. Put a crown on my tooth. Build me a bridge so I can get out of pain and get better.
If the patients of Atlanta, the patients of Sandy Springs, the patients of Georgia, can trust Jim Fagan and find him to be a reasonable person and entrust him with their mouth [s] and trust him to do the things that need to be done from a dental standard of care point, you can trust him, too.

A minute and a half later, counsel finished his closing argument. The court then called a 15-minute break.

During the recess, Stolte’s attorney objected again, arguing that defense counsel’s closing told the jurors that they should return a defense verdict because a plaintiffs’ verdict would damage Fagan’s reputation. Stolte’s attorney asked the court to immediately instruct the jury that it should not concern itself with the impact of a plaintiffs’ verdict on Fagan’s reputation. He emphasized that he wanted the court to give the instruction at that time rather than later in the general charge. The trial court declined to give any instruction at that time, but agreed to include the word “reputation” when it gave its general charge on the impermissible consideration of sympathy, favor and bias. Plaintiffs’ counsel insisted that the charge should be given at that time. Plaintiffs’ counsel then completed his closing argument (including telling the jury that it should not be concerned with the issue of a party’s reputation).

In the general charge, the trial court instructed the jury:

The law does not permit jurors in arriving at the verdict to be governed by sympathy, favor, bias, or prejudice. You may not, therefore, render a verdict in this case based on reputation or character of the parties or sympathy, favor or bias for either party or prejudice against either party. You should decide this case based upon circumstances as presented to you at the trial and not by the reputation or character of the parties.

(Emphasis supplied.)

Stolte argues that OCGA § 9-10-185 required the trial court to rebuke defense counsel, to instruct the jury to disregard his statements, which were not based on evidence, and to give a curative instruction immediately. However, Stolte acquiesced in the trial court’s response to the reference to Fagan’s reputation by failing to complain when the court sustained her objection and instructed defense counsel to move on. Mote v. State, 297 Ga. App. 13, 16 (2) (676 SE2d 379) (2009). She did not ask for a rebuke of counsel at that time, nor did she ask for a curative instruction to be given at that time. “We will not reverse a trial court for not taking an action that was not requested at trial.” (Citation and punctuation omitted.) Booker v. Older Americans Council of Middle Ga., 278 Ga. App. 407, 409 (1) (629 SE2d 69) (2006).

Stolte did not contemporaneously object to defense counsel’s comment that the jury could trust Fagan. Rather, she waited until counsel finished the closing argument and the court had taken a 15-minute break to raise the issue again. “[B]oth the Supreme Court and this court have consistently held that. . . objections based upon improper closing argument are untimely when first made after the closing argument has concluded.” Hamilton v. Shumpert, 299 Ga. App. 137, 143-144 (3) (682 SE2d 159) (2009). See also Whitley v. Gwinnett County, 221 Ga. App. 18, 24 (10) (470 SE2d 724) (1996) (“Pretermitting the propriety of [references in opening and closing arguments to defendant’s unblemished record and fine reputation], because the record shows that [appellant] failed to contemporaneously object to them, her argument is waived on appeal.”); Vega v. La Movida, Inc., 294 Ga. App. 311, 316 (3) (670 SE2d 116) (2008) (holding that the time to object is when the impropriety occurs at trial). Therefore, Stolte has waived any objection to the comment that the jury could trust Fagan.

2. Stolte asserts that the court should have stricken for cause four prospective jurors, and because it did not, she was forced to use her peremptory strikes on those jurors. Whether or not the trial court should have stricken these jurors for cause, this enumeration of error does not require reversal.

For years, this court and the Supreme Court have held that

where the record does not show that a party has to exhaust his peremptory strikes in order to exclude a juror properly challenged for cause, the error is not harmful. A party could cure the result of a challenge for cause improperly overruled by striking the juror peremptorily. Only if a party must deplete his peremptory strikes to exclude an improperly seated juror is he considered harmed.

Sheffield v. Lewis, 246 Ga. 19, 22 (II) (268 SE2d 615) (1980). See also Robinson v. Murray, 198 Ga. 690 (1) (32 SE2d 496) (1944); Ethridge v. State, 163 Ga. 186, 191 (136 SE 72) (1926); Ellison v. Nat. By-Products, 153 Ga. App. 475, 476 (265 SE2d 829) (1980); Bridges v. State, 242 Ga. 251, 252 (3) (248 SE2d 647) (1978); Felker v. Johnson, 53 Ga. App. 390, 395-396 (186 SE 144) (1936); Ford v. State, 12 Ga. App. 228, 232 (76 SE 1079) (1913). Compare Meintzer v. Weinberg, 212 Ga. App. 307, 307-308 (1) (441 SE2d 774) (1994) (holding that because all the plaintiffs’ peremptory challenges were exhausted in striking jurors, including one juror who should have been stricken for cause, new trial was required).

The Supreme Court has created an exception. In a 1986 murder and armed robbery appeal, Harris v. State, 255 Ga. 464, 464-465 (2) (339 SE2d 712) (1986), the Supreme Court announced a new rule that “[t]he defendant’s use of his peremptory strikes will... no longer play a role in our evaluation of the harm caused by the refusal to strike an unqualified juror.” The court approved “the rule proposed by Justice Gregory in his special concurrence in Blankenship v. State, 247 Ga. 590, 597 (277 SE2d 505) (1981),” a death penalty case. Id. at 465. The Harris court did not explain its reasons for adopting the new rule beyond stating that the “true determination of the harm caused by a trial court’s refusal to strike an unqualified juror would require omniscience.” Harris, supra. The court also wrote that a defendant is entitled to a panel of 42 qualified jurors, indicating that Harris, like Blankenship, faced the death penalty, although he was sentenced to life. See OCGA § 15-12-160 (when state announces intention to seek death penalty, trial court “shall have impaneled 42 jurors from which the defense and state may strike jurors”).

The exception created in Harris has been extended to criminal cases not involving the death penalty. See Park v. State, 260 Ga. App. 879, 882 (1) (581 SE2d 393) (2003). But it has not been extended to civil cases. See Guoth v. Hamilton, 273 Ga. App. 435, 440 (1) (615 SE2d 239) (2005) (acknowledging that the Harris rule has not been applied to civil cases, but holding that it was irrelevant as the appellant had exhausted all of his peremptory strikes). Indeed, in Wallace v. State, 275 Ga. 879, 881 (3) & n. 11 (572 SE2d 579) (2002), the Supreme Court applied the Harris rule and overruled “all cases that have relied upon the old rule, including Upshaw v. State, 249 Ga. App. 741, 744 (549 SE2d 526) (2001); McKenye v. State, 247 Ga. App. 536 (544 SE2d 490) (2001); McGriff v. State, 232 Ga. App. 546 (502 SE2d 482) (1998).” Conspicuously absent from the list of cases being overruled in Wallace were any civil cases decided since Harris and applying the old rule, such as Daniel v. Bi-Lo, Inc., 178 Ga. App. 849, 852 (1) (344 SE2d 707) (1986), and Green v. Wilcox, 206 Ga. App. 192 (424 SE2d 801) (1992).

As recently as 2007, after Wallace and long after Harris were decided, we held that when the record does not show that a civil litigant has exhausted all of his peremptory strikes, he has failed to show error in the trial court’s refusal to disqualify certain jurors for cause. Steele v. Atlanta Maternal-Fetal Medicine, 283 Ga. App. 274, 277-278 (3) (641 SE2d 257) (2007). Compare Sellers v. Burrowes, 283 Ga. App. 505 (642 SE2d 145) (2007) (holding that appellant was entitled to a new trial because the trial court erred in declining to dismiss a juror for cause and appellant had exhausted his peremptory strikes). For these reasons, we conclude that the rule remains that in civil cases, a trial court’s improper refusal to strike a juror for cause will constitute harm only if a party has exhausted his peremptory strikes.

Decided May 11, 2011

Reconsideration denied July 22, 2011

Lamar, Archer & Cofrin, Robert C. Lamar, Keith A. Pittman, for appellants.

Hall, Booth, Smith & Slover, Terrell W. Benton III, Dean T. Cleaveland, for appellees.

In this case, the record does not show that Stolte was required to exhaust her peremptory strikes to exclude jurors she claims should have been stricken for cause. Consequently, Stolte has not shown that she was harmed by any error.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: Mikell, Judge.

text:
    A11A1114.
    BENYARD v. THE STATE.
    (714 SE2d 746)
   Mikell, Judge.

Condell Benyard, convicted following a bench trial of possession of a firearm by a convicted felon, attempting to elude police officers, and a taillight violation, appeals from the trial court’s denial of his motion for new trial, contending that the evidence was insufficient to support his conviction of possession of a firearm by a convicted felon. Finding no error, we affirm.

Under Jackson v. Virginia, the sufficiency of the evidence is measured by determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” It is solely within the purview of the factfinder to weigh conflicting evidence and judge the credibility of the witnesses.

So viewed, the evidence showed that, late in the evening of November 10, 2007, Police Officer Victor Singleton was on patrol in Albany, when he noticed a vehicle with a dealer’s tag and no tag light. He requested that a marked unit pull the car over for a traffic stop. Police Officer Dara Salter responded in a marked unit and attempted to pull over the Cadillac driven by Benyard. The Cadillac was traveling east on 7th Avenue in Albany when it veered to the right and crashed on the railroad tracks. Before coming to rest, the Cadillac tilted up on two wheels on the passenger’s side and then fell back down. Officer Salter had also observed the dealer tag and the inoperative tag light. Officer Salter approached the driver’s side of the Cadillac and saw that Benyard appeared to be unconscious. She further observed that his right arm was wrapped around the stock of what appeared to the officer to be an AK-47 rifle. Officer Salter grabbed the rifle and secured it in the trunk of her vehicle. Officer Singleton observed Officer Salter remove the rifle from the driver’s side of the Cadillac. At this point, Benyard was still in the Cadillac’s driver’s seat. Police Officer Pete Patel also responded to the scene and found passenger Nikita McGriff conscious and sitting in the passenger side floorboard of the Cadillac, facing the passenger door. Officer Patel assisted McGriff out of the car and observed a .9 millimeter handgun underneath McGriff s buttocks. When Officer Patel first approached the Cadillac, he observed Officer Salter pulling a big gun “from where [Benyard] was sitting at.” The rifle was loaded, with a bullet in the chamber and additional rounds in the magazine. A certified copy of Benyard’s 1998 conviction of a 1997 armed robbery was entered into evidence.

Benyard’s brother, Ricky Benyard, testified that sometime in October 2007, he observed Nikita McGriff near Condell Benyard’s house trying to sell handguns, although he did not observe any guns. On November 10, 2007, Ricky Benyard also saw Condell Benyard give McGriff a ride in the Cadillac.

Condell Benyard testified that, on November 10, 2007, he offered McGriff a ride home. He went into his girlfriend’s house to tell her this and when he came back out, McGriff was already in the Cadillac. Benyard did not see McGriff put anything into the car. Benyard, who had no driver’s license, saw the blue lights of the police car, but did not stop. Also, Benyard testified that McGriff pulled a handgun on him and told him not to stop the car. According to Benyard, he stopped at the light at 7th Avenue and Jefferson, but, due to problems with his blood sugar, he had no recollection of anything else that occurred until he woke up in the hospital. Although Benyard acknowledged that the rifle was large and would have been hard to hide, he denied that he possessed it or had any knowledge that the gun was in the car. Benyard’s theory was that McGriff had obtained the rifle from the rear seat and placed it under his arm while the car was tilting and coming to rest on the train tracks.

Decided July 22, 2011.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Steven H. Lee, Assistant District Attorney, for appellee.

We conclude that any rational trier of fact could have found the essential elements of OCGA § 16-11-131 (b) beyond a reasonable doubt.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       (Emphasis omitted.) 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 24-9-80; Cantrell v. State, 231 Ga. App. 629 (500 SE2d 386) (1998).

        Jackson v. Virginia, supra; accord Driscoll v. State, 295 Ga. App. 5, 7-8 (1) (b) (670 SE2d 824) (2008).


author: MIKELL, Judge.

text:
    A11A1228.
    FOSTER v. THE STATE.
    (714 SE2d 748)
   MIKELL, Judge.

After a jury trial, Russell Foster was convicted of committing second-degree forgery and tampering with evidence, and was sentenced to two years to serve and ten years on probation. Foster appeals the trial court’s denial of his motion for new trial, contending that the evidence was insufficient to sustain his conviction. We find no reversible error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the charged offense.

Viewed in the light most favorable to the verdict, the evidence reveals that co-defendant Anderson Terrell entered a bank in Newton County and attempted to pass a forged check. Terrell was approached inside by an officer, whom he told that he had been given a moving job, and had been dropped off to cash a check for payment in case the job ran late. He described the vehicle, an older brown van, that had driven him to the Newton County bank. Law enforcement quickly located the van and performed a traffic stop. Foster was a passenger in the van, which was driven by co-defendant William Williams. As the traffic stop was initiated, Foster was seen throwing something out of the vehicle, which was later recovered and discovered to be a plastic bag containing an envelope with a check made out to Foster on the account of the City of Social Circle. That check was also a forgery.

Foster was arrested and taken to the Covington Police Department where he was read his Miranda warning. Foster waived his rights under Miranda and gave an audio statement to Captain Craig Treadwell. During the interview, Foster testified that a man named “Vette” from his neighborhood asked him if he wanted “to make some money,” and Foster got into the car with him. Foster went on to explain that Vette drove him around town before meeting Williams, who fed him two meals and put him up in a hotel for a night before he was driven to the Newton County bank. In this audio statement, which was played for the jury, Foster admits throwing the envelope out the window at the direction of the driver, but never admits knowledge of the contents of the envelope.

1. Foster contends the evidence was not sufficient to enable a rational trier of fact to find him guilty beyond a reasonable doubt of the offense of forgery in the second degree because the state failed to prove the statutory knowledge requirement. We disagree.

OCGA § 16-9-2 (a) provides that a person commits the offense of forgery in the second degree

when with the intent to defraud he knowingly makes, alters or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority.

(Emphasis supplied.)

Knowledge may be proved by circumstantial evidence. To support a verdict, the circumstantial evidence must exclude other reasonable hypotheses, but it need not exclude every inference or hypothesis except that of defendant’s guilt. Foster asserts that he was unaware of the contents of the envelope when he complied with the driver’s request to throw it out the window once the traffic stop was instigated. Foster argues that it is a reasonable inference that he was a victim of a common scam described during trial by Officer Seabolt, one of the arresting officers, where a scout identifies poor or homeless individuals with identification for use in fraudulent check cashing schemes, such as the one at issue in this case. However, we find the circumstances in the case sub judice (including evidence that Foster got into the van after being asked if he wanted to make some money, that he accepted two meals and a night in a hotel from Williams and that he threw the envelope containing the forged check out the van window as the traffic stop was being instigated) sufficient to authorize a rational trier of fact to determine beyond a reasonable doubt that Foster knowingly possessed the forged check with the intent to defraud.

2. Foster next contends that his tampering with the evidence conviction must be reversed because the state failed to prove the element of intent as required by OCGA § 16-10-94 (a). That Code section provides:

A person commits the offense of tampering with evidence when, with the intent to prevent the apprehension or cause the wrongful apprehension of any person or to obstruct the prosecution or defense of any person, he knowingly destroys, alters, conceals or disguises physical evidence or makes devises, prepares, or plants false evidence.

(Emphasis supplied.) Although there is not a presumption that Foster acted with criminal intent, the jury was entitled to “find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which [Foster was] prosecuted.” The intent with which an act is done is

peculiarly a question of fact for determination by the trier of fact and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.

Decided July 22, 2011.

Albert P. Hopkins III, for appellant.

Layla H. Zon, District Attorney, Warren S. Summers, Sr., Assistant District Attorney, for appellee.

Thus, the evidence that Foster threw the envelope containing the forged check out the van window as soon as the traffic stop was instigated was sufficient for the jury to infer that he had the requisite intent to commit the crime of tampering with the evidence.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

        Davis v. State, 264 Ga. App. 128, 130 (1) (589 SE2d 700) (2003); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Nelson v. State, 302 Ga. App. 583, 584 (1) (691 SE2d 363) (2010); see also Johnson v. State, 211 Ga. App. 151, 152 (438 SE2d 657) (1993) (“[FJorgery and each individual factual element thereof are capable of proof by direct and/or circumstantial evidence.”) (citations omitted).

        Johnson, supra.

        Floyd v. State, 251 Ga. App. 346, 349 (1) (553 SE2d 658) (2001) (Conviction for second degree forgery affirmed when the evidence showed that check stuffed into passenger door of defendant’s automobile was drawn on the same account as forged check cashed by defendant shortly before), compare Nelson, supra at 585 (1) (Evidence was insufficient to support defendant’s conviction for second degree forgery when it revealed only that defendant merely possessed a counterfeit hill, but did not prove intent to defraud).

       OCGA § 16-2-6.

       (Citation and punctuation omitted.) House v. State, 306 Ga. App. 154, 155 (701 SE2d 606) (2010).

        Taylor v. State, 260 Ga. App. 890, 891 (1) (b) (581 SE2d 386) (2003) (Evidence that defendant reached onto pool table and tried to slide a bag of marijuana into pool table pocket was sufficient to support conviction for attempting to tamper with evidence).


author: PHIPPS, Presiding Judge.

text:
    A11A0078.
    GREENE v. GREENE et al.
    (714 SE2d 650)
   PHIPPS, Presiding Judge.

Lynette Greene, individually and in her capacity as executrix of her deceased husband Lloyd Greene’s estate, sought a declaratory judgment regarding a 1994 deed which conveyed real property to her and her husband. The trial court entered an order declaring (1) that the deed conveyed to Lynette and Lloyd Greene a joint tenancy with a right of survivorship; and (2) that Lynette Greene was the “sole owner” of the property. Ernest Greene, an heir under Lloyd Greene’s will, appealed to the Supreme Court of Georgia, which transferred the case to this Court. For reasons that follow, we reverse the trial court’s declaration that the deed conveyed a joint tenancy with a right of survivorship, but we affirm the court’s declaration regarding Lynette Greene’s ownership of the property.

“The construction of a deed, including the determination of the nature of the estate conveyed, is a question of law for the court.” We review the trial court’s construction de novo. “In construing a deed, the court’s overriding goal is to ascertain and give effect to the intent of the parties.” Generally, the parties’ intent is determined solely from the text of the deed. Where the language in the deed is unambiguous, a court must enforce the deed as written.

The deed in this case provided that Lloyd and Lynette Greene took the property “as tenants in common, for and during their joint lives, and, upon the death of either of them, then to the survivor of them, in fee simple, together with every contingent remainder and right of reversion, and to the heirs and assigns of said survivor.” This language accomplished two things. First, it conveyed to Lloyd and Lynette Greene a life estate in the property, as tenants in common; this life estate terminated upon the death of either of them. Second, the language of the deed conveyed a fee simple estate in remainder to the surviving grantee. Accordingly, upon Lloyd Greene’s death, the Greenes’ life estate in the property ended and fee simple title to the property vested in Lynette Greene.

OCGA § 44-6-190, which Ernest Greene cites, does not require a different result. Pertinently, that Code section provides:

Deeds or other instruments of title, . . . taking effect after January 1, 1977, may create a joint interest with survivorship in two or more persons. Any instrument of title in favor of two or more persons shall be construed to create interests in common without survivorship between or among the owners unless the instrument expressly refers to the takers as “joint tenants,” “joint tenants and not as tenants in common,” or “joint tenants with survi-vorship” or as taking “jointly with survivorship.” Any instrument using one of the forms of expression referred to in the preceding sentence or language essentially the same as one of these forms of expression shall create a joint tenancy estate [subject to severance under certain circumstances]. . . .

Thus, by its terms, OCGA § 44-6-190 concerns conveyances to two or more persons. The deed at issue here conveyed the life estate to two persons (Lloyd and Lynette Greene) as tenants in common, in compliance with OCGA § 44-6-190. The deed conveyed the estate in remainder, however, to only one person (either Lloyd or Lynette Greene, whoever survived the other). Because the deed did not convey that interest in the property to two or more persons, OCGA § 44-6-190 does not apply.

Ernest Greene also asserts that Lloyd Greene attempted, in his will, to devise his interest in the property to his heirs, and Ernest Greene urges that the deed be construed as having passed Lloyd Greene’s interest in the property to his estate. We find no merit in this argument. When the life estate conveyed by the deed terminated upon Lloyd Greene’s death, no interest in the property passed to his estate, and any attempt by Lloyd Greene to so devise the property in his will was of no effect.

Ernest Greene advocates for a construction of the deed that is contrary to the deed’s language. His proposed construction would treat the interests conveyed to Lloyd and Lynette Greene as fee simple interests rather than life estates, and would ignore the provision conveying a fee simple interest to the surviving grantee upon the other grantee’s death. The court properly rejected Ernest Greene’s proposed construction. But in declaring that the deed conveyed a joint tenancy to Lloyd and Lynette Greene, the court also construed the deed in a manner contrary to its terms, ignoring the provision granting the Greenes a tenancy in common for their joint lives. Instead, the deed should have been construed to convey first a life estate and then an estate in remainder, so as to give effect to all of its provisions.

Decided July 11, 2011

Reconsideration denied July 25, 2011

Ernest Greene, pro se.

Andrew & Threlkeld, Reid A. Threlkeld, Paul H. Threlkeld, for appellees.

Thus, construing the deed to have conveyed to Lynette Greene a fee simple estate in the property upon Lloyd Greene’s death, we affirm that part of the order declaring that Lynette Greene was the “sole owner” of the property; and, for the reasons set forth above, we reverse that part of the order declaring that the deed conveyed a joint tenancy to Lloyd and Lynette Greene.

Judgment affirmed in part and reversed in part.

Andrews and McFadden, JJ., concur.

        Imerys Marble Co. v. J. M. Huber Corp., 276 Ga. 401, 403 (4) (577 SE2d 555) (2003) (footnote omitted).

        Second Refuge Church &c. v. Lollar, 282 Ga. 721, 724 (2) (653 SE2d 462) (2007).

       Id. at 724-725 (2) (footnote omitted).

       Id. at 725 (2).

       Id.

       See OCGA §§ 44-6-80; 44-6-81.

       Compare Raulerson v. Smithwick, 263 Ga. 805, 806 (440 SE2d 164) (1994) (holding that where an instrument grants a life estate to two or more persons for their joint lives, the estate does not terminate as to the survivor until the survivor’s death, provided the deed or other instrument does not contain specific limiting language directing an earlier termination of the estate granted).

       See OCGA § 44-6-60 (a).

       See generally Williams v. Studstill, 251 Ga. 466, 468-469 (306 SE2d 633) (1983) (discussing transfer of property to two persons to be held by them as tenants in common until one died, at which point the survivor took a fee simple, as conveying to the grantees life estates and contingent remainder interests in fee simple; noting that this was not the same interest as a joint tenancy); Daniel F. Hinkel, 1 Pindar’s Georgia Real Estate Law and Procedure, §§ 7-57, 7-73 (6th ed. 2004).

       OCGA § 44-6-190 (a).

       See Price v. Price, 286 Ga. 753, 754 (1) (692 SE2d 601) (2010). See also Hinkel, 1 Pindar’s Georgia Real Estate Law and Procedure, § 7-49.

       See Harbin v. Harbin, 261 Ga. App. 244, 245-246 (1) (582 SE2d 131) (2003) (an attempted devise of property in a will was of no effect where, pursuant to the terms of the deed granting the decedent title to the property, his title vested in another grantee upon his death).

       See OCGA § 44-6-21 (where a deed expressly limits its conveyance to an estate less than a fee simple, the courts shall not by construction increase such estate into a fee); Cole v. Thrasher, 246 Ga. 683, 684 (272 SE2d 696) (1980) (construing language in deed to reflect grantor’s express intent to convey particular estate or interest described therein, where there would not otherwise have been any reason for inclusion of language in deed). See generally Taylor v. Smith, 221 Ga. 55, 56 (2) (142 SE2d 918) (1965).

       See generally Cole, supra (terms of the whole instrument should be construed together to give effect to entire deed and uphold intention of grantor); Licker v. Harkleroad, 252 Ga. App. 872, 874 (2) (a) (558 SE2d 31) (2001) (the construction which will uphold a deed in whole and in every part is to be preferred).

       See OCGA § 44-6-20 (a fee simple estate is one in which the owner is entitled to the entire property with unconditional power of disposition during his or her life and which descends to his or her heirs and legal representatives upon his or her death intestate).


author: Phipps, Presiding Judge.

text:
    A11A0459.
    KITCHIN et al. v. REIDELBERGER et al.
    (714 SE2d 361)
   Phipps, Presiding Judge.

In May 2007, a hill on property owned by Roger Reidelberger collapsed during construction of a retaining wall by Andy Strange Grading, Inc. The owners of adjacent property, Thomas and Deborah Kitchin, brought an action against Reidelberger and Andy Strange Grading asserting claims for negligence, trespass, and nuisance in connection with the collapse. Reidelberger counterclaimed for trespass and nuisance. A jury found in favor of Reidelberger and Andy Strange Grading on the Kitchins’ claims, and awarded Reidelberger compensatory damages, punitive damages, and attorney fees on his counterclaim. The trial court entered judgment on this verdict and denied the Kitchins’ motion for new trial.

On appeal, the Kitchins enumerate as error the following rulings of the trial court: the court’s decision to allow Reidelberger to testify as an expert witness; the court’s charge to the jury on damages; and the court’s decision to allow the jury, after it had returned a verdict, to reconsider whether to award punitive damages to Reidelberger. For the following reasons, we affirm.

1. The Kitchins contend that the court erred in allowing Reidel-berger to testify as an expert witness regarding excavation. At trial, they objected to the court’s ruling on the ground that Reidelberger had limited excavation experience and had not worked in that business for 20 years. On appeal, the Kitchins contend only that they did not receive sufficient notice of Reidelberger’s intent to offer himself as an expert, such that they could challenge his qualifications under OCGA § 24-9-67.1. Because the Kitchins did not object at trial on that ground, any claim of error based thereon has been waived.

2. The Kitchins argue that the court erred by charging the jury:

I charge you a nuisance may damage a landowner. Where the nuisance is permanent and non-abatable, the measure of damages is the diminution in value of the land; however, if the nuisance or trespass can be abated, the cost to restore the premises to the pre-damaged condition is a more equitable measure of damages and may be used rather than the diminution in the market value. Where a nuisance is abatable which deprives the owner of use of his land, he can recover the diminution of the rental value of the land.

The Kitchins’ counsel objected to this language during the charge conference but did not object to it after the charge was given to the jury or at any other time before the jury returned its verdict. The Kitchins thus may not complain on appeal of the damages charge. And although the Kitchins argue that the charge was confusing, the charge accurately set forth the types of damages that could be awarded in a nuisance action; to the extent there was any error in the cited charge, it was not so harmful as to be reversible in the absence of an objection.

3. The Kitchins assert in their brief that the court allowed the jury “to reconsider punitive damages after the jury had rendered a verdict finding that punitive damages were not proven by clear and convincing evidence, and then with no further evidence being presented to the jury, render [ ] an inconsistent verdict awarding punitive damages.” They contend that this was error.

The jury initially returned a verdict that did not award punitive damages, but the trial court did not accept that verdict because it awarded attorney fees to Andy Strange Grading although that party had not sought such an award, and because it awarded certain damages to Reidelberger based on a determination that the Kitchins were obligated to abate the nuisance, a question that the parties had stipulated was a question for the court. The court directed the jury to recommence its deliberations and instructed the jury that, in doing so, it was “authorized to reconsider the verdict in its entirety, including punitive damages.” The jury subsequently returned a verdict that included an award of punitive damages to Reidelberger.

“[I]t is not error for a trial judge not to receive an improper or imperfect verdict, and to cause the jury to retire and put their verdict in proper form.” If a judge is not satisfied that a verdict as returned is proper, before receiving the verdict he or she may require the jury to recommence deliberations and correct its verdict under proper instructions from the court.

Here, after the jury reached its initial verdict, the parties agreed that the court should direct the jury to recommence deliberations. The Kitchins did not object when the court thereafter instructed the jury regarding further deliberations. Only after the jury returned the subsequent verdict, which awarded punitive damages, did the Kitch-ins’ counsel state that he took “exception to pretty much everything that’s happened to this point.”

“[I]t is the responsibility of the complaining party to object to the procedure at the time the trial judge makes the decision to require the jury to return to the jury room.” Under these circumstances, this claim of error provides no basis for reversal. The fact that the court instructed the jury that it could change its verdict regarding punitive damages, and the fact that the jury changed its verdict, do not require a different result.

4. In the argument portion of their appellate brief, the Kitchins complain of rulings by the trial court other than those enumerated as error. An appealing party, however, may not use its brief to expand its enumerations of error by arguing the incorrectness of a trial court ruling not mentioned in the enumerations of error.

Decided July 7, 2011

Reconsideration denied July 25, 2011

Douglas R. Daum, for appellants.

Michael J. Anderson, for appellees.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       See Francis v. Francis, 279 Ga. 248, 249 (611 SE2d 45) (2005) (objecting on specific grounds at trial waives the grounds not asserted).

       See OCGA § 5-5-24 (a); Sims v. GT Architecture Contractors Corp., 292 Ga. App. 94, 97 (2) (663 SE2d 797) (2008) (regarding a claim that the trial court gave an erroneous jury instruction, “an objection made at a charge conference before the charge is given does not preserve a charging issue for appellate review”) (punctuation and footnote omitted); see also Thompson v. Princell, 304 Ga. App. 256, 261 (b) (696 SE2d 91) (2010).

       See City of Gainesville v. Waters, 258 Ga. App. 555, 557 (2) (574 SE2d 638) (2002).

       See OCGA § 5-5-24 (c).

        LeBrook, Inc. v. Jefferson, 210 Ga. App. 650, 652 (5) (437 SE2d 360) (1993) (citation and punctuation omitted); see Lowery v. Morton, 200 Ga. 227, 229 (36 SE2d 661) (1946).

       See Ballard v. Turner, 147 Ga. App. 584, 586 (3) (249 SE2d 637) (1978); see also Biggers v. Biggers, 250 Ga. 248, 251 (2) (297 SE2d 257) (1982).

        Wilder v. Wilder, 229 Ga. 102, 103-104 (189 SE2d 695) (1972); see Neiman-Marcus v. Gammage, 191 Ga. App. 510, 511 (382 SE2d 208) (1989).

       See generally Neiman-Marcus, supra at 510-511.

        Felix v. State, 271 Ga. 534, 539, n. 6 (523 SE2d 1) (1999).


author: Andrews, Judge.

text:
    A11A0954.
    PUCKETTE v. JOHN BAILEY PONTIAC-BUICK-GMC TRUCK, INC.
    (714 SE2d 750)
   Andrews, Judge.

On appeal from the entry of judgment on a jury verdict in his favor concerning his claims for breach of contract against John Bailey Pontiac-Buick-GMC Truck, Inc. (“Bailey”), Bryan Puckette argues that the trial court erred when it granted Bailey’s motion for directed verdict as to his claims for punitive damages and attorney fees. We find no error and affirm.

“The jury is the final arbiter of the facts, and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict.” (Citation and punctuation omitted.) Wilmock, Inc. v. French, 185 Ga. App. 259, 261 (1) (363 SE2d 789) (1987). In order to prevail on a motion for directed verdict, however, the movant must show that “there is no conflict in the evidence as to any material issue” and that the evidence introduced, “with all reasonable deductions therefrom,” demanded the verdict sought. South Fulton Medical Center v. Poe, 224 Ga. App. 107, 108 (1) (480 SE2d 40) (1996); see also OCGA § 9-11-50 (a).

So viewed, the record shows that in October 2005, Puckette brought in his 2003 GMC truck to Bailey for repairs. During a serviceman’s test drive of the truck, a deer ran out from the side of the road and into the truck, resulting in substantial damage to the right side of the truck and additional damage on the hood and left side. Puckette wanted to trade in the truck for a new one, but the parties could not agree on its value. Puckette wanted a Blue Book retail price of between $21,000 and $22,000, but Bailey offered only $13,000 — $3,000 less than the Blue Book trade-in price. The serviceman obtained a repair estimate concerning the right-side damage from a subcontractor in the amount of $1,783.61. Puckette refused this offer and did not pick up the truck, which remained driveable.

On December 29, Bailey wrote Puckette that it was willing to fix the damage on the truck’s right side and to pay for a four-day rental, but that the company needed to know his intentions by January 6, 2006, in order to avoid imposing storage charges of $10 a day. Puckette did not respond to this letter. Instead, he waited until March 20 to retrieve the truck, taking it to another dealer for repairs. Puckette testified that the truck had been missing from the lot at times during October and that 242 miles had been put on it from the time he brought it in. Puckette also testified, however, that he had gone onto the lot to remove the truck’s license plate at some point during November.

Puckette’s insurer covered the second dealer’s repairs to the right side of the car in the amount of $2,836.62 but refused to cover the damage to the hood and left side of the truck. In the months that followed, Puckette returned three more times to Bailey, which fixed some but not all of the problems Puckette had identified, including clicking noises in the dash, groans from the transmission, malfunctioning door speakers, a protruding spring in the driver’s seat, and a broken fuel gauge. As Puckette sought to resolve these problems, he rented a car from his sister at the agreed price of $75 per day, with his total rental bill apparently amounting to approximately $13,000.

Puckette later sued Bailey for breach of contract and warranty, negligence, fraud, bailment, and conversion. Puckette later withdrew the fraud claim. Puckette’s counsel testified as to his hourly rate, its reasonableness, and the total hours billed on the case, but did not provide an itemized statement of his fees and expenses. At the conclusion of Puckette’s evidence, Bailey moved for a directed verdict. The trial court heard argument on the motion and granted it as to punitive damages and attorney fees, but authorized Puckette to present rebuttal evidence. Puckette’s counsel stated that he would offer rebuttal evidence only as to “what [the trial court had] left me in the case,” and later introduced rebuttal evidence concerning the failed trade-in. When Bailey renewed its motion for directed verdict, the trial court confirmed its earlier ruling.

The jury found in Bailey’s favor on Puckette’s conversion claim, but awarded Puckette $11,502.60 as to his remaining claims for breach of contract and warranty, negligence, and bailment.

1. Puckette first argues that the trial court erred in granting Bailey’s motion for directed verdict before the evidence was closed. As OCGA § 9-11-50 (a) provides, however, a motion for directed verdict may be made at the close of an opponent’s evidence. Given that Puckette failed to proffer additional evidence on the question of attorney fees and that the trial court confirmed its original ruling after he had been given an opportunity to present rebuttal evidence, Puckette cannot show that he was harmed by any of the trial court’s rulings. See Johns v. State, 253 Ga. App. 207, 209 (558 SE2d 426) (2001) (error alleged to have arisen from exclusion of testimony required a proffer to preserve the issue for appellate review).

2. Although parties to a contract are generally responsible for their own attorney fees, OCGA § 13-6-11 allows for recovery of such fees only where there is “bad faith” in the underlying transaction, or where a party has been “stubbornly litigious” prior to the filing of the action so as to cause “unnecessary trouble and expense.” Id.; Chong v. Reebaa Constr. Co., 292 Ga. App. 750 (665 SE2d 435) (2008) (OCGA § 13-6-11 does not apply to conduct in defending the litigation). “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.” (Punctuation omitted.) M & H Constr. Co. v. North Fulton Dev. Corp., 238 Ga. App. 713, 714 (1) (519 SE2d 287) (1999).

Here, Puckette withdrew his fraud claim, and the jury rejected his conversion claim. “Mere failure to pay a just debt is insufficient to support an award of attorney fees under OCGA § 13-6-11.” M & H Constr., 238 Ga. App. at 715 (1). The evidence was also conflicting as to the extent of the damage caused by the collision with the deer. Although Puckette testified that the collision caused damage to the hood and left side of the truck as well as its right side, his photographs purporting to prove this were taken years after the event, and a serviceman testified that the flaws on the hood and left side were so small as to be visible only at very close range. It follows that Bailey’s failures to repair Puckette’s truck to his satisfaction or to agree on a trade-in price could not have justified the submission of attorney fees to this jury. Id. (affirming trial court’s grant of motion for j.n.o.v. concerning fees where the only issue upon which damages were awarded was a contract claim).

3. As Puckette correctly points out, the trial court erred in stating that punitive damages could be awarded only if Bailey had acted in bad faith. As Puckette concedes, however, punitive damages may not be recovered for breach of contract, and even gross negligence is inadequate to support a punitive damages award. This record does not raise a reasonable issue as to whether Bailey’s acts amounted to “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). It follows that the trial court did not err when it granted a directed verdict as to punitive damages. Howard v. Alamo Corp., 216 Ga. App. 525 (455 SE2d 308) (1995) (affirming grant of summary judgment on punitive damages where no evidence supported a finding that a hotel committed willful or wanton misconduct).

Decided July 25, 2011.

Clifford H. Hardwick, for appellant.

Drew, Eckl & Farnham, Douglas G. Smith, Jr., for appellee.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.