section 13-6-11 award of attorney fees in Georgia

2026Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) ( 475 SE2d 601 ) (1996) (“A prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim[s].”). 3 settlement proceeds, improperly disbursed the proceeds, and converted funds belonging to him.

2026Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) ( 475 SE2d 601 ) (1996) (“A prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim[s].”). 3 settlement proceeds, improperly disbursed the proceeds, and converted funds belonging to him.

2026Consequently, “because both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury’s determination, a trial court is not authorized to grant summary judgment in favor of a claimant therefor.” Covington 11 Square Assoc. v. Ingles Markets, 287 Ga. 445, 446 ( 696 SE2d 649 ) (2010).

2026Consequently, “because both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury’s determination, a trial court is not authorized to grant summary judgment in favor of a claimant therefor.” Covington 11 Square Assoc. v. Ingles Markets, 287 Ga. 445, 446 ( 696 SE2d 649 ) (2010).

2020See Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 ( 390 SE2d 31 ) (1990) (“The question of attorney fees under OCGA § 13-6-11 is a question for the jury.”).

2020See Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 ( 390 SE2d 31 ) (1990) (“The question of attorney fees under OCGA § 13-6-11 is a question for the jury.”).

2025See also Forsyth County v. Martin, 279 Ga. 215 ( 610 SE2d 512 ) (2005) (affirming award of attorney fees under OCGA § 13-6-11 in action for mandamus, declaratory, and injunctive relief).

2025See also Forsyth County v. Martin, 279 Ga. 215 ( 610 SE2d 512 ) (2005) (affirming award of attorney fees under OCGA § 13-6-11 in action for mandamus, declaratory, and injunctive relief).

2020Moreover, in deciding Byers, this Court relied solely on Sanders in holding that “a plaintiff-in-counterclaim cannot recover attorney’s fees under OCGA § 13-6-11 unless he asserts a counterclaim which is an independent claim that arose separately from or after the plaintiff’s claim.” 285 Ga. at 540 (6).

2020In Byers, we relied on a Court of Appeals decision, Sanders v. Brown, 257 Ga. App. 566 ( 571 SE2d 532 ) (2002), in holding that “a plaintiff-in-counterclaim cannot recover attorney’s fees under OCGA § 13-6-11 unless he asserts a counterclaim which is an independent claim that arose separately from or after the plaintiff’s claim.”2 285 Ga. at 540 (6).

2025Sotter v. Stephens, 291 Ga. 79, 83-84 ( 727 SE2d 484 ) (2012) (“[I]f the judgment reserves the issue of attorney fees under OCGA § 13-6-11, then one cannot claim that the case is no longer pending in the court below as required by OCGA § 5-6-34 (a) (1).”) (punctuation omitted).

2025Sotter v. Stephens, 291 Ga. 79, 83-84 ( 727 SE2d 484 ) (2012) (“[I]f the judgment reserves the issue of attorney fees under OCGA § 13-6-11, then one cannot claim that the case is no longer pending in the court below as required by OCGA § 5-6-34 (a) (1).”) (punctuation omitted).

2023There is, then, a bona fide controversy, recovery of attorney fees under OCGA § 13-6-11 is not authorized, absent a finding of bad faith.” (punctuation omitted)). 36 See Horton, 325 Ga. App. at 217 (“Like an order granting a defendant’s motion for summary judgment or for a directed verdict, a determination that there is not any evidence to support an award under OCGA § 13-6-11, based on stubborn litigiousness or the causing of unnecessary trouble and expense, is subject to de novo review.”). 20 controversy.37 Accordingly, the trial court did not err in granting summary judgment as to this part

2022Nonetheless, a factfinder “may award attorney fees under OCGA § 13-6-11 if there is no bona fide controversy as to liability, even if there is a bona fide controversy as to damages.” Daniel v. Smith, 266 Ga. App. 637, 641 (3) ( 597 SE2d 432 ) (2004); Horton v. Dennis, 325 Ga. App. 212, 216 ( 750 SE2d 493 ) (2013) (same). 28 Millennium Constr.

2020In Byers, we relied on a Court of Appeals decision, Sanders v. Brown, 257 Ga. App. 566 ( 571 SE2d 532 ) (2002), in holding that “a plaintiff-in-counterclaim cannot recover attorney’s fees under OCGA § 13-6-11 unless he asserts a counterclaim which is an independent claim that arose separately from or after the plaintiff’s claim.”2 285 Ga. at 540 (6).

2020In Byers, we relied on a Court of Appeals decision, Sanders v. Brown, 257 Ga. App. 566 ( 571 SE2d 532 ) (2002), in holding that “a plaintiff-in-counterclaim cannot recover attorney’s fees under OCGA § 13-6-11 unless he asserts a counterclaim which is an independent claim that arose separately from or after the plaintiff’s claim.”2 285 Ga. at 540 (6).

2026Attorney fees ATG Sports and ATG-RAM contest the sufficiency of the evidence supporting the jury’s award of attorney fees under OCGA § 13-6-11, which authorizes such an award where a defendant has acted in bad faith. “[T]he element of bad faith that will support a claim for litigation expenses under OCGA § 13-6-11 must relate to the acts in the transaction itself prior to the litigation, not to the conduct during or motive with which a party proceeds in the litigation.” Fresh Floors v. Forrest Cambridge Apts., 257 Ga. App. 270, 271 ( 570 SE2d 590 ) (2002).

2026Attorney fees ATG Sports and ATG-RAM contest the sufficiency of the evidence supporting the jury’s award of attorney fees under OCGA § 13-6-11, which authorizes such an award where a defendant has acted in bad faith. “[T]he element of bad faith that will support a claim for litigation expenses under OCGA § 13-6-11 must relate to the acts in the transaction itself prior to the litigation, not to the conduct during or motive with which a party proceeds in the litigation.” Fresh Floors v. Forrest Cambridge Apts., 257 Ga. App. 270, 271 ( 570 SE2d 590 ) (2002).

2014See United Companies Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) ( 475 SE2d 601 ) (1996); Monterrey Mexican Restaurant of Wise, Inc. v. Leon, 282 Ga. App. 439, 453 (6) (d) ( 638 SE2d 879 ) (2006) (attorney fees under OCGA § 13-6-11 can only be awarded on the claims on which the plaintiff prevailed).

2014See United Companies Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) ( 475 SE2d 601 ) (1996); Monterrey Mexican Restaurant of Wise, Inc. v. Leon, 282 Ga. App. 439, 453 (6) (d) ( 638 SE2d 879 ) (2006) (attorney fees under OCGA § 13-6-11 can only be awarded on the claims on which the plaintiff prevailed).

2006Co. v. McClung, 261 Ga. App. 789 ( 584 SE2d 61 ) (2003); see also Gardner v. Kinney, 230 Ga. App. 771, 772 ( 498 SE2d 312 ) (1998) (a defendant may. seek attorney fees pursuant to OCGA § 13-6-11 when he has asserted an independent counterclaim for relief); Clayton, supra, 257 Ga. at 655 (5) (a) (party may recover attorney fees pursuant to OCGA § 13-6-11 in an action for specific performance).

2006Co. v. McClung, 261 Ga. App. 789 ( 584 SE2d 61 ) (2003); see also Gardner v. Kinney, 230 Ga. App. 771, 772 ( 498 SE2d 312 ) (1998) (a defendant may. seek attorney fees pursuant to OCGA § 13-6-11 when he has asserted an independent counterclaim for relief); Clayton, supra, 257 Ga. at 655 (5) (a) (party may recover attorney fees pursuant to OCGA § 13-6-11 in an action for specific performance).

2024Accordingly, the trial court here was without authority to grant attorney fees pursuant to OCGA § 13-6-11 on summary judgment[.] (Citations, punctuation, and footnote omitted.) Sherman v. Dickey, 322 Ga. App. 228, 233-234 (2) ( 744 SE2d 408 ) (2013).

2024Accordingly, the trial court here was without authority to grant attorney fees pursuant to OCGA § 13-6-11 on summary judgment[.] (Citations, punctuation, and footnote omitted.) Sherman v. Dickey, 322 Ga. App. 228, 233-234 (2) ( 744 SE2d 408 ) (2013).

2025See Dimambro Northend Assocs. v. Williams, 169 Ga. App. 219, 225 (6) ( 312 SE2d 386 ) (1983) (where a bona fide controversy existed; the evidence did not demand a verdict for either side; and there was no evidence of bad faith, stubborn litigiousness, or unnecessary trouble and expense, an award for attorneys’ fees under OCGA § 13-6-11 was not supported).

2025See Dimambro Northend Assocs. v. Williams, 169 Ga. App. 219, 225 (6) ( 312 SE2d 386 ) (1983) (where a bona fide controversy existed; the evidence did not demand a verdict for either side; and there was no evidence of bad faith, stubborn litigiousness, or unnecessary trouble and expense, an award for attorneys’ fees under OCGA § 13-6-11 was not supported).

2025Co. of America, 308 Ga. 404, 410 ( 841 SE2d 729 ) (2020) (holding that party was entitled to seek attorney fees under OCGA § 13-6-11 based on claim for breach of contract asserted in counterclaim); Traders’ Ins.

2025Co. of America, 308 Ga. 404, 410 ( 841 SE2d 729 ) (2020) (holding that party was entitled to seek attorney fees under OCGA § 13-6-11 based on claim for breach of contract asserted in counterclaim); Traders’ Ins.

2025See Kammerer Real Estate Holdings v. Forsyth County Bd. of Commissioners, 302 Ga. 284, 287 (4) ( 806 SE2d 561 ) (2017) (“a claim for attorney fees under OCGA § 13-6-11 is a derivative claim”).

2025See Kammerer Real Estate Holdings v. Forsyth County Bd. of Commissioners, 302 Ga. 284, 287 (4) ( 806 SE2d 561 ) (2017) (“a claim for attorney fees under OCGA § 13-6-11 is a derivative claim”).

2013“Questions as to whether the defendant has acted in bad faith [for the purpose of awarding attorney fees under OCGA § 13-6-11] are generally for the jury to decide.” Merlino v. City of Atlanta, 283 Ga. 186, 191 (4) ( 657 SE2d 859 ) (2008).

2013“Questions as to whether the defendant has acted in bad faith [for the purpose of awarding attorney fees under OCGA § 13-6-11] are generally for the jury to decide.” Merlino v. City of Atlanta, 283 Ga. 186, 191 (4) ( 657 SE2d 859 ) (2008).

2023See also City of Hoschton v. Horizon Communities, 287 Ga. 567, 569 (697 SE2d 824) (2010) (“An award of attorney fees under OCGA § 13-6-11 will be affirmed if there is any evidence to support it.”).

2023See also City of Hoschton v. Horizon Communities, 287 Ga. 567, 569 (697 SE2d 824) (2010) (“An award of attorney fees under OCGA § 13-6-11 will be affirmed if there is any evidence to support it.”).

2026Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) ( 475 SE2d 601 ) (1996) (“A prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim[s].”); Davis v. Johnson, 280 Ga. App. 318, 322 ( 634 SE2d 108 ) (2006) (“[A]ttorney fees awarded under OCGA § 13-6-11 are ancillary and recoverable only when a plaintiff prevails on an underlying claim or remedy[.]”).

2026Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) ( 475 SE2d 601 ) (1996) (“A prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim[s].”); Davis v. Johnson, 280 Ga. App. 318, 322 ( 634 SE2d 108 ) (2006) (“[A]ttorney fees awarded under OCGA § 13-6-11 are ancillary and recoverable only when a plaintiff prevails on an underlying claim or remedy[.]”).

2019Brown v. Kent, 274 Ga. 849, 850-851 ( 561 SE2d 89 ) (2002), aff’mg Kent v. Brown, 248 Ga. App. 447, 449-450 (1) ( 545 SE2d 598 ) (2001). “[E]ven a finding that the [Caldwells] acted in bad faith would not authorize an award of appellate attorney fees under OCGA § 13-6-11.” Jennings v. McIntosh County Board of Comm., 269 Ga. App. 421, 424 (2) ( 604 SE2d 263 ) (2004).

2019Brown v. Kent, 274 Ga. 849, 850-851 ( 561 SE2d 89 ) (2002), aff’mg Kent v. Brown, 248 Ga. App. 447, 449-450 (1) ( 545 SE2d 598 ) (2001). “[E]ven a finding that the [Caldwells] acted in bad faith would not authorize an award of appellate attorney fees under OCGA § 13-6-11.” Jennings v. McIntosh County Board of Comm., 269 Ga. App. 421, 424 (2) ( 604 SE2d 263 ) (2004).

2020See Tyler v. Lincoln, 272 Ga. 118, 121 (2) ( 572 SE2d 180 ) (2000) (holding that the plaintiff was not entitled to summary 14 judgment on his claim for attorney fees under OCGA § 13-6-11 because genuine issues of material fact existed on the plaintiff’s substantive claims).

2018See Tookes v. Murray , 297 Ga. App. 765 , 768 (2), 678 S.E.2d 209 (2009) (the determination of whether a tort was sufficiently aggravating to authorize punitive damages is generally a jury question); Tyler v. Lincoln , 272 Ga. 118 , 121 (2), 527 S.E.2d 180 (2000) (recognizing that the failure to ameliorate a continuing trespass authorizes the jury to consider the facts and circumstances of the case and award attorney fees pursuant to OCGA § 13-6-11 when appropriate). 1 This is the second appearance of this case before this Court.

2019Co ., 315 Ga. App. 587 , 590 (1) (a), n.6, 726 S.E.2d 779 (2012) (Because no claim survived, the derivative claim for punitive damages and attorney fees also fails).

2019Co ., 315 Ga. App. 587 , 590 (1) (a), n.6, 726 S.E.2d 779 (2012) (Because no claim survived, the derivative claim for punitive damages and attorney fees also fails).

2017Compare Benchmark Builders v. Schultz, 289 Ga. 329, 330 (1) ( 711 SE2d 639 ) (2011) (Court of Appeals erred in relying on waiver to affirm award under OCGA § 13-6-11). 5 Similarly, we need not decide whether Attaway “set forth any facts showing that [Graybill has] been stubbornly litigious.” Byers, 285 Ga. at 540 (6). 6 Similarly, Attaway argues in its briefing to this Court that “[wjhether [Graybill] is liable under the theory of quantum meruit, breach of contract, or both, the amount of damages owed to [Attaway] is the same.” 7 Indeed, Graybill states he “does not challenge the factual findi

2017Compare Benchmark Builders v. Schultz, 289 Ga. 329, 330 (1) ( 711 SE2d 639 ) (2011) (Court of Appeals erred in relying on waiver to affirm award under OCGA § 13-6-11). 5 Similarly, we need not decide whether Attaway “set forth any facts showing that [Graybill has] been stubbornly litigious.” Byers, 285 Ga. at 540 (6). 6 Similarly, Attaway argues in its briefing to this Court that “[wjhether [Graybill] is liable under the theory of quantum meruit, breach of contract, or both, the amount of damages owed to [Attaway] is the same.” 7 Indeed, Graybill states he “does not challenge the factual findi

2013Co. v. Bowen, 245 Ga. 676, 677 ( 266 SE2d 796 ) (1980) (At the appellate level, “ ‘[t]he proper rule is that the judgment [for attorney fees pursuant to OCGA § 13-6-11, on the ground of bad faith] should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense.’ ”) (citation and punctuation omitted); Myers v. Myers, 195 Ga. App. 529, 532 (7) ( 394 SE2d 374 ) (1990) (physical precedent only) (“Recovery of attorney fees for stubborn litigiousness is not authorized where there is a ‘bona fide controversy.’ ”) (citation, punctu

2013Co. v. Bowen, 245 Ga. 676, 677 ( 266 SE2d 796 ) (1980) (At the appellate level, “ ‘[t]he proper rule is that the judgment [for attorney fees pursuant to OCGA § 13-6-11, on the ground of bad faith] should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense.’ ”) (citation and punctuation omitted); Myers v. Myers, 195 Ga. App. 529, 532 (7) ( 394 SE2d 374 ) (1990) (physical precedent only) (“Recovery of attorney fees for stubborn litigiousness is not authorized where there is a ‘bona fide controversy.’ ”) (citation, punctu

2021See Couch, 295 Ga. at 475 (2) (a) (contrasting awards under OCGA § 13-6-11 with awards under former OCGA § 9-11-68 (b), which “are not identified as ‘damages’; they relate entirely to conduct during the course of the litigation; and they are determined post-judgment by the court rather than during trial by the jury”). 22 to his or her percentage of fault”), and (b) (“the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall . . . apportion its award of damages among the persons who are liable according to the percentage of fault of each person” (emphas

2021See Couch, 295 Ga. at 475 (2) (a) (contrasting awards under OCGA § 13-6-11 with awards under former OCGA § 9-11-68 (b), which “are not identified as ‘damages’; they relate entirely to conduct during the course of the litigation; and they are determined post-judgment by the court rather than during trial by the jury.” (citation and punctuation omitted)). 22 determination of the total amount of damages to be awarded, if any, shall . . . apportion its award of damages among the persons who are liable according to the percentage of fault of each person”) (emphasis supplied).

2019We note that the Supreme Court of Georgia has “expressly held that a county is subject to a fee award under OCGA § 13-6-11[] and . . . that attorney fees under that statute may be recoverable in an inverse condemnation proceeding.” Pribeagu v. Gwinnett County, 336 Ga. App. 753, 759-760 (3) ( 785 SE2d 567 ) (2016), citing Forsyth County v. Martin, 279 Ga. 215, 219 (2) (a) ( 610 SE2d 512 ) (2005) & Dept. of Transp. v. Edwards, 267 Ga. 733, 737 (1) (b) ( 482 SE2d 260 ) (1997). 13

2019We note that the Supreme Court of Georgia has “expressly held that a county is subject to a fee award under OCGA § 13-6-11[] and . . . that attorney fees under that statute may be recoverable in an inverse condemnation proceeding.” Pribeagu v. Gwinnett County, 336 Ga. App. 753, 759-760 (3) ( 785 SE2d 567 ) (2016), citing Forsyth County v. Martin, 279 Ga. 215, 219 (2) (a) ( 610 SE2d 512 ) (2005) & Dept. of Transp. v. Edwards, 267 Ga. 733, 737 (1) (b) ( 482 SE2d 260 ) (1997). 13

2013See also Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (3) ( 466 SE2d 27 ) (1995) (Whether to award litigation expenses under OCGA § 13-6-11 “is a question for the jury and an award will be upheld if any evidence is presented to support the award.

2013See also Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (3) ( 466 SE2d 27 ) (1995) (Whether to award litigation expenses under OCGA § 13-6-11 “is a question for the jury and an award will be upheld if any evidence is presented to support the award.

2026Corp., 217 Ga. App. 312, 313 ( 457 SE2d 219 ) (1995) (“[D]espite the existence of a bona fide controversy as to liability, a factfinder may find that defendant acted in the most atrocious bad faith in his dealing with the plaintiff.”) (citation modified).

2026Corp., 217 Ga. App. 312, 313 ( 457 SE2d 219 ) (1995) (“[D]espite the existence of a bona fide controversy as to liability, a factfinder may find that defendant acted in the most atrocious bad faith in his dealing with the plaintiff.”) (citation modified).

2019Ga. Motor Trucking Assn. v. Ga. Dept. of Revenue , 301 Ga. 354 , 367 (B), 801 S.E.2d 9 (2017) ; see also Kammerer Real Estate Holdings, LLC v. Forsyth County Bd. of Commrs. , 302 Ga. 284 , 287 (4), 806 S.E.2d 561 (2017) ("[A] claim for attorney fees under OCGA § 13-6-11 is a derivative claim[.]"); Racette v. Bank of America, N.A. , 318 Ga. App. 171 , 181 (6), 733 S.E.2d 457 (2012) (claim for punitive damages is derivative of a plaintiff's substantive claims); *235 Wright v. Apartment Investment Mgmt.

2019Ga. Motor Trucking Assn. v. Ga. Dept. of Revenue , 301 Ga. 354 , 367 (B), 801 S.E.2d 9 (2017) ; see also Kammerer Real Estate Holdings, LLC v. Forsyth County Bd. of Commrs. , 302 Ga. 284 , 287 (4), 806 S.E.2d 561 (2017) ("[A] claim for attorney fees under OCGA § 13-6-11 is a derivative claim[.]"); Racette v. Bank of America, N.A. , 318 Ga. App. 171 , 181 (6), 733 S.E.2d 457 (2012) (claim for punitive damages is derivative of a plaintiff's substantive claims); *235 Wright v. Apartment Investment Mgmt.

2018"The question of attorney fees under OCGA § 13-6-11 is a question for the jury." KDS Properties v. Sims , 234 Ga.App. 395 , 400 (5), 506 S.E.2d 903 (1998).

2018"The question of attorney fees under OCGA § 13-6-11 is a question for the jury." KDS Properties v. Sims , 234 Ga.App. 395 , 400 (5), 506 S.E.2d 903 (1998).