This paper was delivered to the Summer Seminar for Georgia Superior Court Judges sponsored by the Institute for Continuing Judicial Education of Georgia on July 20, 1999 at St. Simons Island, Georgia.

James W. Penland was born in Atlanta, Georgia in 1950. He Graduated from Druid Hills High School in 1968. He received his Bachelor of Arts from Emory University in 1972 with a major in Economics and his Juris Doctor from Emory University Law School in 1975. After graduation, he started practicing law with the firm of Rose & Stern which eventually evolved into Macey & Sikes through a series of mergers. In 1982, he founded the law firm of Brock & Penland. Since 1990, Mr. Penland has been practicing as a sole practitioner. His office is at 3756 Lavista Road in the Northlake area of DeKalb County. Mr. Penland's practice includes family law, bankruptcy law, and civil litigation.

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them. (Orig. Code 1862, §2883; Code 1868, §2891; Code 1873, §2942; Code 1882, §2942; Civil Code 1895, §3796; Civil Code 1910, § 4392; Code 1933, §20-1404; Ga. L. 1984, p.22, §13. O.C.G.A. §13-6-11.)

O.C.G.A. §13-6-11 is Georgia's expression of the American rule for the award of attorney's fees and other expenses of litigation. The American rule has been that expenses for defending or prosecuting a suit are generally unavailable unless authorized by a specific statute. O.C.G.A. § 13-6-11 is Georgia's general statute providing plaintiff's expense of litigation.

The true focus of the Georgia exception is to punish a defendant who has acted in bad faith by having to pay the other side's attorney's fees. Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 241 (1971). In all cases where a litigant seeks to recover attorney’s fees and expenses of litigation, a litigant must establish a legal basis for the claim. The legal basis may arise out of statute or contract. While statutory exceptions to Georgia’s general rule for attorney's fees exist under many other statutes, this paper focuses on the general rule expressed in O.C.G.A. §13-6-11.

The Code section has a general rule and an exception, four operative requirements to trigger the exception, and three clauses describing the conduct of the defendant that triggers the exception:

1. [General Rule] Each litigant bears its own expenses
2. [Exception] Unless:

Georgia law is clear that each party bears its own litigation expenses unless the case fits within some contractual or statutory exception. Judges cannot simply decide to tax a party's expenses to the other party on a whim or arbitrarily decision to make things fair. For example, a trial court cannot summarily award attorney fees to a litigant for merely opposing a motion or litigating a case. Kyle v. King, 138 Ga. App. 612, 226 S.E.2d 767 (1976); Madden v. Bellew, 195 Ga. App. 131, 393 S.E.2d 31 (1990). Attorney's fees cannot be awarded as a punishment for criminal contempt under O.C.G.A. § 13-6-11. General Teamsters Local Union No. 528 v. Allied Foods, Inc., 228 Ga. 479 at 531, 186 S.E.2d 527 (1971); Ragsdale v. Bryan, 235 Ga. 58 at 59, 218 S.E.2d 809 (1975). Attorney's fees may be awarded under O.C.G.A. § 13-6-11 in a civil contempt. G.I.R. Systems, Inc. v. Lance, 228 Ga. App. 329, 491 S.E.2d 530 (1997), Compare, Rolleston v. Cherry, Georgia Court of Appeal case no. A99A0789, 1999 WL 199244 (April 12, 1999).

The Code section does not create an independent cause of action. It is a remedial statute, ancillary to the primary cause of action, and entirely compensatory. It merely establishes the circumstances in which a plaintiff may recover the expense of litigation as an additional element of his damages. Brown v. Baker, 197 Ga. App. 485, 398 S.E.2d 797 (1990). O.C.G.A. §13-6-11 is available in actions at law and equity including actions in contract and in tort. C & S Nat. Bank v. Haskins, 254 Ga. 131, 137(4), 327 S.E.2d 192 (1985); Candler v. Wickes Lumber Co., 195 Ga.App. 239, 393 S.E.2d 99 (1990). Expenses of litigation are not recoverable unless other elements of damages are also recoverable. Unless the plaintiff prevails on some damage claim, no attorney’s fees are recoverable. Connell v. Houser, 189 Ga. App. 158, 375 S.E.2d 136 (1988); Barnett v. Morrow, 196 Ga. App. 201, 396 S.E.2d 11 (1990). If a plaintiff brings a dual cause of action and prevails on only one of the two causes, the only attorney's fees recoverable are those based upon the expense of proving the successful action. In a case where election of remedies is required, attorney's fees are not available based upon the mooted remedy. Barnett v. Morrow, 196 Ga. App. 201, 396 S.E.2d 11 (1990). However, there are some exceptions to this rule in "bad faith" cases as is explained later in this paper.

The damages under this section are compensatory. Bankers Fid. Life Ins. Co. v. Oliver, 106 Ga. App. 305, 126 S.E.2d 887 (1962). The section is not limited to the recovery of attorney's fees and costs alone. Instead, it incorporated the broader term, expenses of litigation. All expenses of the litigation proximately related to the pending claim should be recoverable, including expenses of in-house counsel and travel necessitated by the litigation. Salsbury Labs, Inc. v. Merieus Labs, Inc., 735 F. Supp 1555 (M.D. Ga. 1989, aff'd., 908 F.2d 706 (11^th Cir. 1990).

This section is inapplicable where the attorney's fees sought arise out of a separate legal proceeding. Expenses of a prior proceeding cannot be recovered in a subsequent proceeding under O.C.G.A. §13-6-11. Randolph v. Merchants & Mechanics Banking & Loan Co., 58 Ga. App. 566, 199 S.E. 549 (1938); Easley v. Clement, 259 Ga. 107, 376 S.E.2d 860 (1989).

With some exceptions wherein bad faith is involved, expenses of litigation are recoverable only for the amount attributable to the prevailing claim. Southern Cellular v. Banks, 209 Ga. App. 401, 433 S.E.2d 606 (1993). For example, in United Companies Lending Corp. v. Peacock, 267 Ga. 145, 475 S.E.2d 601 (1996), the plaintiff prevailed only on one count of a six count complaint. The plaintiff proved the lump amount of fees and expenses incurred to work on all six counts of the complaint, but did not prove the amount of attorney's fees attributable solely to the claim on which they prevailed. The Supreme Court reversed and remanded for a hearing to limit the award of attorney's fees to the amount based upon the prevailing claim. In Huggins v. Chapin, 1998 WL 564284, the Court of Appeals reversed and remanded an attorney's fee case arising under the Georgia Securities Act O.C.G.A. § 10-5-14(a) for additional findings of fact or another hearing to separate out the attorney's fees associated with the prevailing claims.

O.C.G.A. §13-6-11 is not available to the defendant unless the defendant has an independent counterclaim against the Plaintiff, in which case the defendant may recover only the expenses of the prevailing counterclaim. Beall v. E. H. H. Construction, Inc., 193 Ga. App. 544, 388 S.E.2d 342 (1989); Davis v. Knight, 195 Ga.App. 726, 394 S.E.2d 634 (1990). The Code section is not available to defendant to convert suit to damages for bringing the complaint against the defendant. The defendant may use the section to recover attorney's fees for a viable counterclaim. International Indemnity Co. v. Regional Employer Service, Inc., 1999 WL 459986, Ga. App. Case No. A99A0665 July 8, 1999. The defendant cannot recover for the costs of defending against the plaintiff's complaint, but may only recover the expenses incurred in prosecuting its independent counterclaims. Eways v. Georgia R.R. Bank, 806 F.2d 991 (11^th Cir. 1986).

To recover expenses of litigation under O.C.G.A. §13-6-11, the plaintiff must first prevail in the action and then must prove the defendant has acted improperly in one of the manners described in the Code section. Plaintiff need only establish the existence of one of these conditions to recover attorney's fees. Any one will do. Gordon v. Ogden, 154 Ga. App. 641, 269 S.E.2d 499 (1980); National Serv. Indus., Inc. v. Hartford Accident & Indem. Co., 661 F. 2d 458 (5^th Cir. 1981).

Case law has grouped the three types of bad acts into two types of cases: Type 1, the "bad faith" cases and Type 2, the "Stubbornly litigious [Conduct Clause 2] unnecessary trouble and expense" [Conduct Clause 3] cases. There is no real distinction between the treatment and meaning of the terms in conduct clauses 2 and 3, "stubbornly litigious" and "unnecessary trouble and expense." Different rules apply for type of case. The "bad faith" cases and the "unnecessary trouble/stubbornly litigious" cases have a different measure of damages. In the "unnecessary trouble/stubbornly litigious" cases, only expenses arising out of the present action may be recovered. Allston v. Stubbs, 170 Ga. App. 417, 317 S.E.2d 272 (1984). Of those expenses, only that portion of the attorney's fees that are allocable to establish liability are recoverable. Luller v. Moister, 248 Ga. 287, 282 S.E.2d 889 (1989). On the other hand, in the "bad faith" cases, all of the expenses of the litigation may be recovered. "Bad faith" attorney's fees are not apportioned. The award of attorney's fees is not limited only to those attorney's fees attributable to the claims on which the plaintiffs prevailed. A party acting in bad faith should pay the full price for losing. Crocker v. Stevens, 210 Ga. App. 231, 435 S.E.2d 690, U.S. cert. den., 511 U.S. 1053, 114 S.Ct. 1613, 128 L.Ed.2d 340 (1994). The existence of a bona fide controversy defeats a "stubbornly litigious / unnecessary trouble and expense" claim, however, if there is bad faith in the underlying transaction, the existence of a bona fide controversy does not defeat the claim for attorney's fees. Fidelity Nat'l. Bank v. Kneller, 194 Ga. App. 55, 390 S.E.2d 55 (1989); Windermere v. Bettes, 211 Ga. App 177, 438 S.E.2d 406 (1993). That is, unless the defendant wins. The plaintiff must win something to get any attorney's fees.

"Bad faith" attorney's fees are awarded when the defendant acted in bad faith in the transactions out of which the case arose. "Bad faith" under this section refers to conduct occurring at a time prior to the institution of the action. Brannon Enter, Inc. v. Deaton, 159 Ga. App. 685, 285 S.E.2d 58 (1981). "Bad faith" attorney's fees cannot be grounded on the conduct of the defendant in defending the case. Trader's Ins. Co. v. Mann, 118 Ga. 381, 45 S.E. 426 (1903); Brown v. Baker, 197 Ga. App. 466, 398 S.E.2d 797 (1990). The "bad faith" referred to in the Code section refers solely to the "bad faith" of the defendant in the underlying transaction. The "bad faith" in this context is not the refusal to pay, but "bad faith" conduct in the transaction out of which the cause of action arose. Fine & Block v. Evans, 201 Ga. App. 294, 411 S.E.2d 73 (1991). Evidence of the defendant's conduct subsequent to the formation and breach of the alleged agreement is irrelevant. Albert v. Albert, 164 Ga. App.723, 298 S.E.2d 612 (1982). Bad faith and misconduct arising out of the conduct of parties and counsel in litigating the case are exclusively the subject of the abusive litigation statutes found at O.C.G.A. § 9-15-14 and O.C.G.A. § 51-7-80.

"Bad faith" is not defined in O.C.G.A. § 13-6-11. There is no Pattern Jury Instruction defining "bad faith", though the term appears several times in the Pattern book. The Georgia definition of "bad faith" is a matter of common law and standard statutory construction of the plain meaning of the term. O.C.G.A. §1-3-1. Black Law Dictionary defines bad faith to mean "the opposite of 'Good Faith', generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motives." Black's Law Dictionary, Rev. 4^th ed. 1968, p. 176. "Good Faith" is defined in the analogous abusive litigation chapter or the Code at O.C.G.A. §51-7-80(4):

Case law suggests bad faith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will. Bad faith warranting an award of attorney's fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in defendant's carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff. Burlington Air Express v. Ga.-Pacific Corp., 217 Ga.App. 312, 313, 457 S.E.2d 219 (1995). Bad faith other than mere refusal to pay a just debt is sufficient, provided it is not prompted by an honest mistake as to one's rights or duties but by some interested or sinister motive. Citizens & Southern Trust Co. v. Hicks, 216 Ga.App. 338, 339(2), 454 S.E.2d 207 (1995). Defendants can be held liable for attorney's fees if they committed the breach in bad faith. It equated this with sinister motive. Bad faith prompted by some interested motive is also sufficient. Jennings Enterprises, Inc., v. Carte, 224 Ga.App. 538, 481 S.E.2d 541 (1977) Glen Restaurant, Inc., v. West, 173 Ga.. App. 204, 325 S.E.2d 781 (1984).

Examples are helpful in interpreting the boundaries of the term "bad faith. The defendant was found to be in "bad faith" in the following examples: The court found retention of earnest money by a seller after recision of a real estate sales contract to be "bad faith". New York Ins., Co. v. Willett, 183 Ga. App. 767, 360 S.E.2d 37 (1987). A manufacture's actual knowledge prior to sale to consumer of a product from which it could have reasonably foreseen an injury of the specific type sustained a "bad faith" award of litigation expenses. Ford Motor Company v. Stubblefield, 171 Ga. App. 681, 319 S.E.2d 340 (1994). In an action for trespass and damage to trees, evidence that a power corporation exceeded a condemnation order by cutting trees outside the right-of-way was sufficient to support a jury finding of "bad faith" and the award of attorney's fees. Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 436 S.E.2d 14 (1993). Use of sham documents in the course of a lending transaction with plaintiff borrower was "bad faith". Crawford v. Crump, 223 Ga. App. 119, 476 S.E.2d 855 (1996). Trespass, as an intentional tort will support a claim for litigation expenses under the theory that the intention evokes that "bad faith" necessary for recovery under O.C.G.A. §13-6-11. Tanner v. Gilliland, 186 Ga. App. 377, 367 S.E.2d 257 (1988). Refusal to deliver title after purchase of truck was sufficient. I.M.C. Motor Express, Inc., v. Cochran, 180 Ga. App. 822, 348 S.E.2d 750 (1986). Failure to remedy the seepage of methane from a landfill to an adjoining property resulted in "bad faith" liability. Warner Robbins v. Holt, 220 Ga. App. 794, 470 S.E.2d 238 (1996).

An examples of a case finding acts not to be "bad faith" is Macon-Bibb County Water & Sewerage Auth. V. Tuttle/White constructors, Inc., 530 F. Supp. 1048 (M.D. Ga. 1981), where disagreement as to certain terms and conditions of a contractual relationship was found not sufficient to evidence any bad faith. Failure to pay a debt because of an honest mistake as to contract terms is not bad faith and is not stubborn litigiousness. M & H Construction Co., Inc. v. North Fulton Development Corp., Georgia Appeals case nos. A99A0598 and A99A0599, 1999 WL 374100 (June 10, 1999)

"Bad Faith" can be inferred in an action sounding in tort means if there was bad faith in the transaction out of which the case arose. City of Atlanta v. Murphy, 194 Ga. App. 652, 391 S.E.2d 474 (1990). Defendants can be held liable for plaintiff's attorney's fees in a breach of contract action if they committed the breach in bad faith. Young v. A. L. Anthony Grading Co., Inc., 225 Ga. App. 592, 484 S.E.2d 318 (1997).

The case law has essentially merged the conduct of being "stubbornly litigious" [Conduct Clause 1] and "causing unnecessary trouble and expense" [Conduct Clause 2] into one test of whether or not the defendant forced plaintiff to sue where no bona fide controversy exists. Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 308 S.E.2d 564 (1983). Recovery for "stubborn litigiousness" is not authorized where there is a bona fide controversy. If there is a bona fide controversy, there can be no stubborn litigiousness as a matter of law. A bona fide dispute as to part of a claim precludes a finding of stubborn litigiousness. Gaston v. Mullins, 168 Ga.App. 371, 372(1), 309 S.E.2d 166 (1983). That is a very practical principle, for were it otherwise, the task of separating out the litigation expense relating exclusively to the points which should have been conceded without lawsuit would itself be costly, time-consuming, and frequently impossible. Candler v. Wickes Lumber Co., 195 Ga.App. 239, 393 S.E.2d 99 (1990). The denial of plaintiff's summary judgment precludes later stubbornly litigious or unnecessary trouble and expense attorney's fees because it establishes the existence of a bona fide controversy. Colquitt v. Network Rental, Inc., 195 Ga. App 244, 393 S.E.2d 28 (1990). Forcing a plaintiff to litigate when no bona fide controversy exists causes unnecessary trouble and expense. Rogers v. Georgia Ports Auth., 185 Ga. App 325, 359 S.E. 2d 855, cert. den. 183 Ga. App. 906, 398 S.E.2d 855 (1987). Clements v. Barnes, 197 Ga. App 120, 397 S.E.2d 560 (1990). Existence of a genuine dispute or bona fide controversy precludes the award of "unnecessary trouble and expense" litigation expenses. "It may be assumed that every suit causes the plaintiff some trouble and expense, but this is not what the statute has in mind. One of the provisions of the Bill of Rights contained in the Constitution of this State declares that 'No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this state, in person, [or] by attorney, or both." This is a privilege to the defendant as well as to the plaintiff. Where there is a bona fide controversy for the tribunals to settle, and the parties cannot adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation." Rogers v. Moore, 207 Ga. 161, 60 S.E.2d 369 (1950). Thus, if the defendant has a bona fide dispute to the plaintiff's claim, there can be no litigation expense award for "unnecessary trouble and expense."

Where a purchaser sues to recover damages for breach of contract or, in the alternative, to obtain specific performance, and where there is no bona fide dispute as to the existence of the indebtedness, but there is a bona fide dispute as to the claim for specific performance, it cannot be said that the seller has been stubbornly litigious. Gaston v. Mullins, 168 Ga. App. 371, 309 S.E.2d 166 (1983).

The Supreme Court and the Court of Appeals are in conflict as to whether the mere refusal to pay a claim results in attorney's fees.

The Supreme Court stated in Pferdmengs, Preyer & Co. v. Butler Stevens & Co., 117 Ga. 400, 48 S.E. 695 (1903), "The only unnecessary trouble and expense shown by the evidence was the fact that defendants had refused to pay without suit. If this would be sufficient to authorize a finding for attorney's fees, we see no reason why the plaintiff in every case should not recover attorney's fees. The Code has never been so construed. Where there is no bad faith, there must be something more than being put to the expense of a suit to authorize the plaintiff to claim attorney's fees as a part of his damages." This old case has continuing viability. It has never been reversed and has been cited by the Supreme Court in Town of Cimax v. Burnside, 150 Ga. 556, 104 S.E. 435, 437 (1920); Mallard v. Curran, 123 Ga. 872, 51 S.E. 712 (1905); and in Latham v. Falulk, 265 Ga. 107, 454 S.E.2d 136 (1995).

The Court of Appeals cases take a stricter approach, allowing attorney's fee awards in cases where there is no denial of liability where the plaintiff sues. Under the Supreme Court's view, the mere refusal to pay a disputed claim is not the equivalent of stubborn litigiousness or the causing of unnecessary trouble and expense. Buffalo Cab Co. v. Williams, 126 Ga. App. 522, 191 S.E.2d 317 (1972); D. H. Overmeyer Co. v. Nelson-Brantley Glass Co., Inc., 119 Ga. App 599, 168 S.E.2d 176 ( 1969); Palmer v. Howse, 133 Ga. App. 619, 212 S.E.2d 2 (1974). For the Court of Appeals, however, the failure to pay an undisputed claim is the equivalent of causing the plaintiff unnecessary trouble and expense. Brannon Enterprises, Inc., v. Deaton, 159 Ga. App. 685, 285 S.E.2d 58 (1981). Crotty v. Crotty, 219 Ga. App. 408, 465 S.E.2d 517 (1995). The Court of Appeals did not address the "something more than being put to the trouble of suit," found in the Georgia Supreme Court Pferdmengs, Preyer & Co. v. Butler Stevens & Co. line of cases.

Damages in the nature of expenses of litigation must be especially pleaded and prayed for. Davis v. Macon Tel. Publishing Co., 93 Ga. App. 633, 92 S.E.2d 619 (1956); Carroll v. Johnson, 144 Ga. App. 633, 242 S.E.2d 296 (1978); Williams v. Binnion, 227 Ga. App. 893, 490 S.E.2d 217 (1997). Plaintiff must make out a proper case for litigation expenses, which must be supported by evidence. Davis v. Foman, 144 Ga. App. 14, 240 S.E.2d 383 (1979). The best practice is clearly to allege the facts that constitute the bad faith. The prayer should state the amount of the relief sought. A general prayer for "such other just and equitable relief as the court may deem proper" is not sufficient to state a claim for attorney's fees. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 329 S.E.2d 900, cert. den. 254 Ga. 349, 331 S.E.2d 879 (1985).

O.C.G.A. § 9-11-8(a)(2)(B) requires a demand for judgment for the relief to which the pleader deems himself entitled. The claim for attorney's fees must be carried over and included in the pretrial order or it will be lost. O.C.G.A. §9-11-16(b). Fussell v. Carl E. Jones Development Co., Inc., 207 Ga. App. 521, 428 S.E.2d 426 (1993).

The jury must be charged on the issue. The Pattern Jury charge is:

Though proper, this charge seems substantially worthless in presenting the jury with a meaningful understanding of the nuances of the law on attorney's fees. Good practice would be to create additional charges to refine the issues of the particular case, emphasizing definitions of the terms in the charge. In particular, a defendant should include a charge to the effect that the existence of a bona fide controversy precludes the "unnecessary trouble and expense and stubbornly litigious" award. In a "bad faith" case, the law applying to bad faith should be given. A definition of "bad faith" should be given. After that an appropriate charge explaining the application of "bad faith" conduct to entitlement to attorney's fees in a "bad faith" contract case would be the holding in Young v. A. L. Anthony Grading Co., 225 Ga. App. 592, 593, 484 S.E.2d 318 (1997):

In an intentional tort case, a charge to the effect that the intent involved in the commission of an intentional tort constitutes sufficient bad faith to support an award under the "bad faith" prong of the statute. A proper charge would be, "Every intentional tort entitles a person so wronged to recover the expenses of litigation including attorneys fees. " See, Stargate Software International, Inc. v. Rumph, 224 Ga. App.873, 878, 482 S.E.2d 498, 503 (1997) and Bibb Distributing Co. v Stewart, Court of Appeals case no. A99A0426, 1999 WL 418241 (5/26/1999).

In addition, charges should be submitted concerning any defenses to the claim such as unclean hands of the plaintiff if fitted to the facts.

Defense summary judgment and motions for directed verdict are also appropriate when the facts and law show the existence of real disputes. Williams Tile & Marble Co., Inc. v. Ra-Lin & Assoc., 206 Ga. App.750, 752, 426 S.E.2d 598 (1992). It is not improper for a judge to refuse to submit an "unnecessary trouble and expense and stubbornly litigious" issue to the jury when a real controversy exists.

The evidence of attorney's fees must be presented as a part of the Plaintiff's primary case and must be proven by evidence showing that the fees are attributable to the claim forming the basis of the recovery. A plaintiff in a non-bad-faith case can only recover the fees attributable solely to the presenting of the plaintiff's main claim and may not recover for the expense of defending a counterclaim. Lineberger v. Williams, 195 Ga. App. 186, 189, 393 S.E. 2d 23, 26 (1990). The Reasonableness of fees may be shown through testimony of another attorney who examined the file. Miner v. Harrison, 205 Ga. App. 523, 422 S.E.2d 899 (Ga.App. 1992). Damage awards must be supported by trial evidence. See, e.g., Tri-State Systems v. Village Outlet, 135 Ga.App. 81, 85(2), 217 S.E.2d 399 (1975). The allowance of attorney's fees must be supported by evidence as to the amount of the fees and cannot be based upon guesswork. Wahnschaff Corp. v. O. E. Clark Paper Box Co., 166 Ga. App. 242, 394 S.E.2d 91 (1983). When a defendant is entitled to attorney's fees for a viable counterclaim, the defendant is entitled to recover the fees attributable solely to prosecuting the counterclaim by separating them out from the other fees in the case. International Indemnity Co. v. Regional Employer Service, Inc., 1999 WL 459986, Ga. App. Case No. A99A0665 July 8, 1999. Compare Lineberger v. Williams, 195 Ga. App. 186, 189, 393 S.E. 2d 23, 26 (1990).

Counsel may present their attorney's fees by "stating them in their place" as long as the opposing party does not object. It has long been the law that "[w]here counsel [make] statements in their place, they may be received without verification unless the same is required by the opposing party at the time." Caldwell v. McWilliams, 65 Ga. 99, 101(3) (1880). See also Cross v. Cook, 147 Ga.App. 695, 696(3), 250 S.E.2d 28 (1978), in which it was stated that "[a]ttorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence. [Cits.]" It is however, error not to allow the opposing side to cross-examine the attorney. Georgia Bldg. Services, Inc. v. Perry, 193 Ga.App. 288, 387 S.E.2d 898, (Ga. App. 1989). If the defense attorney fails to raise the issue of whether a proper evidentiary showing has been made at trial during the trial, the issue cannot be considered on appeal. Owens v. McGhee & Oxford, Georgia Court of Appeals case nos. A99A0269, A99A0270, 1999 WL 330321 (May 26, 1999).

In Hall v. Robinson, 165 Ga. App. 410, 300 S.E.2d 521 (Ga.App. 1983), the Court of Appeals affirmed a case, finding that there was competent evidence establishing the reasonable value of appellee's attorney's fees. Appellee's counsel stated in her place the amount of time she had put in the case and her hourly rate, which she felt to be reasonable for an attorney of her experience. Appellant did not cross-examine appellee's counsel or challenge her testimony in any other manner. The Court of Appeals found her testimony sufficient to establish the reasonable value of appellee's attorney's fees under Altamaha Convalescent Center v. Godwin, 137 Ga.App. 394, 397, 224 S.E.2d 76.

On an award of $35,000 attorney's fees on a judgment with actual damages of $278,622, and punitive damages of $500,000, the Court of Appeals found an award of attorney's fees supported by the evidence upon testimony from the Plaintiff and the statement in place by counsel. Counsel had stated "that through almost ten years of protracted litigation and the earlier appeal process, Plaintiff has incurred $35,000 in attorney's fees." Scriver v. Lister, Ga. Court of Appeals, A98A1414 (FCDR January 11, 1999.)

In First Bank v. Dollar, 159 Ga. App. 815, 285 S.E.2d 203 (1981), The Court of Appeals reversed an attorney's fee award based solely on the testimony of the Plaintiff/Appellee. Appellant did not contest the sufficiency of the evidence of the statutory prerequisite to an award of attorney's fees (bad faith, stubborn litigiousness, causing appellee unnecessary trouble and expense), but maintained that appellee's testimony, that he had agreed to pay his attorneys "[a] third on contingency on the tax", was not sufficient proof of the legal fees to support an award. The court held that "An attorney cannot recover for professional services without proof of their value," citing Price v. Mitchell, 154 Ga.App. 523(6), 268 S.E.2d 743. Generally, a party will proffer the opinion testimony of his present counsel as well as that of other attorneys in an effort to show what constitutes a reasonable attorney's fee in light of the litigation history of the case. See, Bankers Health Life Ins. Co. v. Plumer, 67 Ga.App. 720(2), 21 S.E.2d 515. A party's testimony as to the "approximate" cost of legal fees is insufficient. Price v. Mitchell, supra. Inasmuch as appellee's testimony alone did not give the jury sufficient basis upon which to award a reasonable amount for attorney's fees, it was error to enter judgment on the jury's award of attorney's fees.

While the trial court is authorized to award reasonable attorney's fees based on its expertise, there must be some evidence to support the court's award. Sheppard v. Sheppard, 229 Ga. App. 494, 229 S.E.2d 240 (1997).

An award of attorney's fees is determined upon evidence of the reasonable value of the professional service underlying the claim for attorney's fees. A court may consider a contingent fee agreement and the amount it would have generated as evidence of usual and customary fees in determining both the reasonableness and the amount of an award of attorney's fees. The court may determine the amount of the award of attorney's fees on the basis of hourly rates. The trial court is not bound by the fee contract between the parties. Southern Cellular v. Banks, 209 Ga. App. 401, 433 S.E.2d 606 (1993).

In Smith v. Travis Pruitt & Associates, P.C., 265 Ga. 347, 455 S.E.2d 586 (Ga. 1995), the Supreme Court reversed a case in which Appellee's counsel stated in his place that fees in the case "will exceed ten thousand dollars." Although counsel proposed submitting to the trial court documentation of what has been done in the case and how that figure was arrived at, no such documentation was present in the record and there was no evidence of the number of hours spent on the case or the hourly fee charged, no testimony from other attorneys or other evidence to show what constituted a reasonable attorney's fee in light of the litigation history of the case. "In short, the conclusory testimony of [appellee's] counsel is the only evidence of attorney's fees, and it is insufficient." Hughes v. Great Southern Midway, Inc., 265 Ga. 94(1), 454 S.E.2d 130 (1995)".

Good billing records are essential to proof of attorney’s fees. Good objections and cross examination may prevent introduction of bad billing records. Billing records are subject to the same rules as any other evidence. Billing records are subject to the hearsay rule. There must be a proper foundation laid for the records, either based upon the personal knowledge of their preparer or qualification as a business record. The business record exception the hearsay rule (O.C.G.A. §44-3-14) will not automatically make a billing statement into evidentiary support for the proof of the reasonableness and necessity of an attorney's work. Confusion results in this area based upon at least one previous case concerning an award of attorney's fees which indicates that a supervisor's testimony as to the amount, necessity, and reasonableness of the time spent by his employees is sufficient to establish the amount of the attorney's fee award. See, Santora v. American Combustion, Inc., 225 Ga. 771, 485 S.E.2d (1997). Conversely, other cases indicate that it is not sufficient for only the lead attorney on a case to testify as to the time spent by the others who worked on the case. See e.g., Southern Company v. Hamburg, 220 Ga. App. 834, 470 S.E.2d 467 (1996); Southern Cellular Telecom v. Banks, 209 Ga.App. 401, 433 S.E.2d 606 (1993). The question that arises is whether it was the intention of the court in Santora to carve a new exception to the hearsay rule in cases such as this, or whether the facts of the Santora case indicated to the court that the supervisor worked so closely on every part of the case that he or she actually had personal knowledge of the time spent by other employees. The cases do not clearly state how much hearsay is allowable in these attorney's fee cases.

Under common time-keeping practices, attorneys prepare paper time slips that are later edited, collated, and summarized into billing reports and bills. Under this practice, the time slips are the true business record of original entry. The bills and reports are only summaries. Under the rules of evidence, summaries are admissible only if the underlying records are present in court. The issue of the admission and evidentiary value of summaries of time records recording the time of attorneys other than the witness has been raised in several cases. In Southern Company v. Hamburg, 220 Ga. App. 834, 470 S.E.2d 467 (1996) and Southern Company v. Hamburg, 231 Ga. App. 685, 500 S.E.2d 1 (1998), it was determined that such summaries constitute nothing more than hearsay as to the amount of time spent when the expenses listed on such summaries were generated by persons who did not testify at the attorney's fees hearing. Hamburg, 470 S.E.2d at 474. Billing sheets, expense reports and summaries recording time and expenses recorded by persons (primarily attorneys) who are not proffered to authenticate their work constitute nothing more than "hearsay, and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Southern Company v. Hamburg, 231 Ga. App. 685, 500 S.E.2d 1 (1998); Howell Mill/Collier Assoc. v. Pennypacker's, 194 Ga.App. 169, 171(2), 390 S.E.2d 257. Mitcham v. Blalock, 214 Ga.App. 29, 31(2), 32 [ 447 S.E.2d 83].' Citadel Corp. v. All-South Subcontractors, 217 Ga.App. 736, 737(1), 738, 458 S.E.2d 711. Southern Company v. Hamburg, 220 Ga.App. 834, 842(5), 470 S.E.2d 467 .

Careful attention should be paid to the Best Evidence Rule. O.C.G.A. §24-5-4 provides that the best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for. If the only record brought to the court is a copy of the client's bill summarizing the time slips, the document should be rejected under the Best Evidence Rule unless a satisfactory explanation for the absence of the underlying documents is made. A similar issue to this arose in White v. Dillworth, 178 Ga. App. 226, 342 S.E.2d 709 (1986). In that case, a dentist sought to introduce into evidence a purported summary of information concerning his patients and their payment status. The summary was compiled from daily work logs which in turn were created from the records of the individual patients. White, 342 S.E.2d at 710-711. The trial court sustained a best evidence objection to these records. Determining that the original patient records were the primary source of the information contained in the summaries which the dentist sought to introduce, the Court of Appeals determined that the summaries were indeed secondary evidence and inadmissible absent a showing that the primary evidence was inaccessible. Attention should also be paid to O.C.G.A. §§ 24-5-25 and 24-5-26 that state the rules for introducing copies of records.

The requirement that the plaintiff prove the necessity and reasonableness of the attorney’s fees sought necessitates testimony from plaintiff’s counsel. Only the attorney who did or closely supervised the work has true personal knowledge of whether the work was necessary. Likewise, unless two attorneys are working literally elbow to elbow, only the attorney doing the work has personal knowledge of his own work.

This testimonial necessity places the attorney in a difficult practical and ethical position, that of being both advocate and witness. It also gives the adversary attorney a good chance to discredit plaintiff’s counsel if the attorney can be impeached in any way. This is a great time for the defendant’s attorney to use plaintiff’s billing records, correspondence, and pleadings to highlight unreasonable positions, excessive fees, and unclean hands of the plaintiff perpetrated by the plaintiff’s attorney. At the same time, the defendant’s attorney’s intimate knowledge of the rationale for the defense may make the defense attorney a key witness for the defense to justify a litigation strategy and to prove the existence of a bona fide controversy. All attorneys must be wary of the statutes and Canons of Ethics relating to attorneys taking the witness stand.

On appeal the "any evidence" rule applies to factual determinations. Spring Lake Property Owners Ass'n. v. Peacock, 260 Ga. 80, 390 S.E.2d 21 (1990). "When a trial court sits as both judge and jury, the court's findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal. On appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court's conclusion. Our duty is not to weigh evidence de novo, but [merely to] determine if there is any evidence which supports the judgment below. Even in the face of conflicting evidence, the trial court's judgment will be upheld as long as there is 'any evidence' to uphold the lower court's determination." (Citations and punctuation omitted.) Edwards v. Wilson, 185 Ga.App. 514, 515(1), 364 S.E.2d 642." Jennings Enterprises, Inc., v. Carte, 224 Ga.App. 538, 481 S.E.2d 541 (1977).

Lack of clean hands on the plaintiff's part authorized the trial court to exercise its inherent discretion and decline to award attorney's fees. If the plaintiff has acted in bad faith, has been stubbornly litigious, or has caused unnecessary trouble and expense, such factor may be considered by the trial court and will, either standing alone, or in conjunction with other operable facts, constitute some evidence to support a denial of the request for attorney's fees. Crotty v. Crotty, 219 Ga. App. 408, 465 S.E.2d 517 (1995).

Attorney's fees cannot be awarded in a declaratory judgment action because the purpose of the action is "to settle and afford relief from uncertainty and insecurity with respect to rights, status and other relations." O.C.G.A. §9-4-1. Thus, the plaintiff must plead the fact that a bona fide controversy exists is the foundation of the action. The existence of that controversy in a declaratory judgment action precludes plaintiff from seeking attorney's fees under O.C.G.A. §13-6-11. General Hospitals of Humana, Inv. v. Jenkins, 188 Ga. App. 825, 374 S.E.2d 739 (1989).

A great disparity between the amount sought by the plaintiff and the actual recovery may preclude a recovery under O.C.G.A § 13-6-11.

In trying the issue of attorney's fees, the issue of reasonableness of attorney's fees may be affected by the settlement posture of the case. It may be important to the jury to know if one side has made settlement offers that reasonably should have ended the case earlier. An plaintiff's unreasonable refusal to settle may make taxing of subsequent fees unreasonable. Conversely, the defendant's refusal to settle on any terms may be proof of the necessity and reasonableness of plaintiff's fees. Even in a "bad faith" case, the O.C.G.A. §24-2-37 normally prevents the introduction of negotiations seeking a compromise of a dispute from being admissible in evidence. The Code section states:

The purpose of this Code section is to encourage settlements and protect parties who freely engage in negotiations directed toward resolution of lawsuits. Computer Communications Specialists, Inc. v. Hall, 188 Ga. App. 545, 373 S.E.2d 630 (1988). There is a distinction between and offer or proposition to compromise a doubtful of disputed claim under this section and an offer to settle upon certain terms a claim that is unquestioned. The offer of compromise is protected and the offer of settlement is not. An admission made in an offer to settle will be admissible while one made in an offer to compromise will not be admissible. Charter Mtg. Co v. Ahouse, 165 Ga. App. 497, 300 S.E.2d 328 (1983).

Evidence of offers of compromise may be admitted by necessity. "In all cases where the object sought to be proved can be proved without violation of a rule of evidence designed to prohibit prejudice, it should be done so, or where the merit of the evidence clearly outweighs its prejudice." Fred F. French Mfg. Co. v. Long, 169 Ga. App. 702, 314 S.E.2d 666 (1984). "However where the evidence is necessary for some permissible purpose, and the object is not provable by some available means, it is not error to allow other inadmissible evidence." Gordon v. Gordon, 133 Ga.App. 520(1), 211 S.E.2d 374 (1974). If the proffered evidence of negotiations meets these tests, it should be admitted. Holbrook Contracting, Inc. v. Tyner, 181 Ga. App. 838, 354 S.E.2d 22 (1987). In Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157, 30 S.E.2d 411 (1944), the Court held that a conversation between an attorney for the beneficiary and a proper official of the company is admissible for the purpose of illustrating the good or bad faith of the company in refusing to pay the amount claimed, where the evidence negates a claimed effort to compromise. In Fenters v. Fenters, 238 Ga. 131, 231 S.E.2d 741 (1977). In U-Haul Co. v. Ford, 171 Ga. App. 744, 320 S.E.2d 868 (1984), evidence that the plaintiff, in attempting to discuss her claims arising out of an automobile collision, could not get a response from the defendant insurer, though not proper evidence under O.C.G.A. § 24-3-37, were properly admitted under O.C.G.A. § 13-6-11 to show that the defendant acted improperly.

The trier of fact for the main case determines the attorney's fees issues along with the plaintiff's main case. In a jury case, the issue of attorney's fees is a question of fact and must be presented to the jury before the jury is authorized to grant any fees. Stargate Software International, Inc. v. Rumph, 224 Ga. App.873, 878, 482 S.E.2d 498, 503 (1997). The question of whether a refusal to pay a debt constitutes bad faith is a jury issue. Kent v. Brown, Georgia Court of Appeals case nos. A99A0420 and A99A0421, 1999 WL 342327 (May 28, 1999), p 6. The plaintiff must request the fees and the court must charge the statute or the elements of recovery set forth in the statute before the court is authorized to submit the issue of attorney fees under O.C.G.A. §13-6-11 to a jury. MTW Investment Co. v. Alcovy Properties, Inc., 228 Ga. App., 491 S.E.2d 460 (1997).

Code sections 13-6-11, 9-15-14, and 51-7-81 are all mechanisms for moving the burden of attorney's fees to another party. O.C.G.A. §13-6-11 applies only to conduct occurring prior to the litigation. Conduct occurring during the litigation is covered by O.C.G.A. §9-15-14 (a) and (b) covers conduct during the litigation. Stone v. King, 196 Ga. App. 251, 395 S.E.2d 45 (1990). By the practical operation of the statute that requires that the trier of fact assess attorney's fees as a part of the main case, section 13-6-11 can only collect attorney's fees for the time up to the evidence phase of the trial. Sections 9-15-14 and 51-7-81 are decided later so they may cover time for post trial work. Thus, there is overlap between the fees that may be captured. The damages in all of these sections are compensatory and it is simple logic that one can only recover the same damages once from the defendant even if there are multiple grounds under which the fees may be captured.

There is also a liability coverage overlap between O.C.G.A. § 13-6-11 and the abusive litigation sections. The "stubbornly litigious / unnecessary trouble and expense" "no bona fide controversy" prong of O.C.G.A. § 13-6-11 seems to cover some of the same conduct as the "complete absence of any justiciable issue" language of O.C.G.A. § 9-15-14 for the instant when the case is first filed. The conduct may, under certain facts, include the "without substantial justification" conduct described in O.C.G.A. §51-7-81(2). No court has yet addressed the interaction between these provisions with respect to a case with no defense or a default. Does the submission of evidence of attorney's fees and award or denial of an award under O.C.G.A. §13-6-11 collaterally estop a later claim in the case for the same fees under O.C.G.A. §9-15-14 or O.C.G.A. §51-7-81? In Walker v. McLarty, 199 Ga.App. 460, 405 S.E.2d 294 (Ga.App. 1991), the Court of Appeals affirmed a summary judgment denying a claim for abusive litigation in a prior case because the trial judge found that the denial of a summary judgment in the earlier case resulted in a collateral estoppel of appellant's claim in the case at bar. Considering Walker with O.C.G.A. §§51-11-5 and 9-2-44 Collateral estoppel and res judicata are affirmative defenses and must be properly raised in the pleadings and pretrial order. O.C.G.A. §9-11-8(c); O.C.G.A. §9-11-9(e), and , O.C.G.A. §9-11-16.

O.C.G.A. §33-4-6 provided a remedy to provide a penalty and to recover attorney's fees when an insurer acts in bad faith and denies to pay a claim. The remedy is the exclusive remedy for bad faith denial of benefits so that litigation expenses under O.C.G.A. §13-6-11 are not recoverable. McCall v. Allstate Ins. Co., 251 Ga. 869, 310 S.E.2d 513 (1984); Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 448, S.E.2d 275 (1994); United Services Automobile Association v. Carroll, 226 Ga. App. 144, 486 S.E.2d 613 (1997).

O.C.G.A. §§51-12-5. 5.1, and 6 provide the remedies of punitive and exemplary damages. Attorney's fees and expenses of litigation are not punitive or exemplary damages but stand alone and are regulated by § 13-6-11. Dodd v. Slater, 101 Ga. App. 358, 114 S.E.2d 167 (1960). Individual damage items, such as punitive damages awarded as additional damages or expenses of litigation, do not provide the requisite support for each other. They are recoverable only in cases where other elements of damages are recoverable. Cleary v. Southern Motors of Savannah, Inc., 142 Ga. App. 163, 235 S.E.2d 623 (1977).

Adjudication of O.C.G.A. § 13-6-11 requires careful attention to procedure, the statute, and the rules of evidence. Read the statute. The issue should not be considered lightly. Errors on the on the issue of attorney's fees result in a surprising number of reversals and remands each year at the appellate level. Most of the reversals are caused by a failure of the judge to handle the evidentiary issues, either by improperly granting a summary judgment or by failing properly to require proper adherence to the rules of evidence. Several cases have been remanded for more complete findings of fact on bench trials.

At the beginning of the trial, the court should determine whether the issue is properly before the court? Are sufficient facts alleged in the Complaint or Counterclaim to raise the issue of attorney's fees. Does the ad damnum clause contain a proper prayer for attorney's fees?

Is the issue properly set forth in the pretrial order?

Is there a special attorney's fee statute for the cause of action? If so, is the special statute the sole remedy? See, Cagle v. State Farm Rire & Casualty Company, 236 Ga. App. 726, 512 S.E.2d 717 (1999).

In the evidentiary phase of the trial, care must be taken that the defendant has an adequate opportunity to cross-examine the plaintiff's evidence. Often attorneys are hesitant to cross-examine their opposing counsel and do not take their opportunity to do so. It is good practice for the judge to inquire if the defendant wishes to cross-examine the evidence and make any waivers explicit and on the record to prevent later claims that the defendant was not allowed to cross-examine.

Very special care must be made to make sure that the attorney fee claims are supported by first hand evidence and not by hearsay. The cases are clear that unless an attorney worked elbow to elbow with another attorney on a case, an attorney cannot testify as to time spent by another attorney or as to the reasonableness or necessity of another's work without falling afoul of the hearsay rules. Attention must be given to the best evidence rule. A good practice would be to let everyone know at the pretrial conference that the judge will require strict adherence to the rules of evidence on attorney's fees so everyone can be prepared to have all of the necessary attorney witnesses in the courtroom at the appropriate time.

Facts supporting the statutory basis of the claim must be presented by proper evidence. What conduct is the basis for the action? Is it Bad Faith, no bona fide defense, or both? When did the predicate conduct occur? Be careful to exclude evidence of conduct that occurred after the filing of the case. Such conduct is simply irrelevant and is punished by the sanctions against abusive litigation, not O.C.G.A. § 13-6-11.

If the case is bench tried, use the statute to formulate your findings of fact. Make a specific finding for each clause and rule. Remember that O.C.G.A. § 13-6-11 is a statute that punishes misconduct. If there is no misconduct, no fees should be granted. Be sure to list the specific acts that constitute the predicate misconduct. List the evidence proving the acts.

If the case is tried before a Jury, charge the statute. The issue must be decided as a part of the main case and the jury verdict. Solicit additional charges that conform to the facts of the case. Insure that there are proper verdict forms suited to the issues

O.C.G.A. § 13-16-11 can be a minefield for both judges and litigants. Often attorney's fees can be the lion's share of a verdict. The Code section is highly technical and requires careful attention if the facts of the case support the inclusion of the claim in the case. The section must be pled, proven, and defended carefully, conforming to the rules of evidence. Awards under this Code section can be very large. The remedy of damages under O.C.G.A. § 13-6-11 should be treated as a major issue on equal standing with any other count of the complaint. It should be adjudicated and litigated in the very same careful manner as the main cause of action is handled. Attorneys who pay close attention to the Code section will certainly have a major advantage over those who think the Code section is a side chapter to the case. Those who fail to take the Code section seriously run a tremendous risk of failure, whether as plaintiffs seeking an award, as defendants opposing an award, or as judges avoiding reversals. O.C.G.A. § 13-6-11 is serious business.