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Graybill v. Attaway Construction & Associates, LLC

Court of Appeals of Georgia, Fourth Division

June 19, 2017

GRAYBILL
v.
ATTAWAY CONSTRUCTION & ASSOCIATES, LLC.

          DILLARD, P. J., RAY and SELF, JJ.

          SELF, JUDGE.

         In this contract dispute, homeowner Brannon Graybill ("Graybill") sued contractor Attaway Construction & Associates, LLC ("Attaway") for damages related to work Attaway performed during the remodeling of Graybill's residence. Following a bench trial, the Superior Court of Columbia County entered judgment in Attaway's favor, including an award of attorney fees pursuant to OCGA § 13-6-11. Graybill appeals and, for the reasons that follow, we affirm in part and reverse in part.

         Evidence adduced at trial revealed that Graybill and Attaway entered into an October 1, 2014 contract for residential remodeling work at Graybill's residence. The contract listed the cost of the work as $175, 000; Graybill testified that the $175, 000 represented a comprehensive fixed price for the project, [1] while Attaway asserted that the project would cost "approximately $225, 000 on a cost plus 12% basis." Attaway also stated that Graybill executed the contract to obtain a loan for $175, 000 and that he would pay any difference between the contract price and the total cost out of pocket.

         Based upon the parties' agreement, drawings were prepared and subsequently modified on multiple occasions. During the course of the remodeling project, Graybill and his wife chose more expensive and higher-quality materials than were originally budgeted. As the cost of the project escalated, and Attaway sought additional payments, the parties' relationship soured. Ultimately, Graybill paid Attaway $213, 979 and paid $52, 231.73 directly to some of Attaway's subcontractors. However, Graybill refused to pay two of Attaway's applications for payment totaling $43, 540.05, after which Attaway issued a July 8, 2015 "Suspension of Construction for Non-Payment." On August 21, 2015, Graybill sued Attaway for breach of contract and negligent construction, and Attaway counterclaimed for, among other things, breach of contract, quantum meruit, fraud, [2] and attorney fees pursuant to OCGA § 13-6-11. Graybill waived his right to a jury trial and, following a bench trial, the trial court entered judgment in favor of Attaway for $43, 540.05 in damages plus interest and $57, 156.62 in attorney fees and expenses. This appeal followed.

         1. In his first enumeration of error, Graybill contends the trial court erroneously refused his "right to present oral closing argument" and his right to a concluding argument. However, we need not consider Graybill's enumeration because he waived the alleged error.

         Near the conclusion of the bench trial, the trial court asked counsel for both parties, "[d]o y'all want to argue it this afternoon, or what do you want - do you want to submit it, or do you want to send me a brief or what?" Graybill's counsel responded that he could complete his argument in "ten minutes" and that he had prepared two bench briefs for the trial court, while Attaway's counsel stated he had not seen the bench briefs and suggested that "each side submit their proposed findings and conclusions of law[;] [t]hat would be our argument." Graybill's counsel resisted Attaway's counsel's suggestion, saying "I would prefer not to. I'd prefer to argue it, Your Honor."

          What followed was an extended colloquy between counsel and the trial court concerning whether the parties wished to argue the case personally or by post-trial briefing. During that discussion, Graybill's counsel repeated his desire "to close today" rather than submit briefs in lieu of argument. The trial court responded that it would allow the parties to submit post-trial briefs "and that will stand for your argument, unless . . . someone objects, " but added that "if you want to argue, I've got all night." Graybill's counsel then stated:

[GRAYBILL'S COUNSEL]: Well, we're - we're going to do what you tell us to do. What are you telling us? Would you have preferred to do a bench brief?
THE COURT: Without objection, then, what I'm going to ask you to argue - is to argue the case in the way of - of a letter -
[GRAYBILL'S COUNSEL]: Okay.
THE COURT: - or brief -
[GRAYBILL'S COUNSEL]: Sure.
THE COURT: - and incorporate - and that would incorporate your authority.
[GRAYBILL'S COUNSEL]: May we put a limit on that?
THE COURT: A page limit?
[GRAYBILL'S COUNSEL]: Yes, sir.

         However, Graybill's counsel then said, "Well, . . . I object then. I want to orally argue the case[, ]" to which the trial court replied,

THE COURT: Okay, argue it. That's fine, we'll stay and we'll argue it.
[GRAYBILL'S COUNSEL]: I mean, you know, it's - - that's what I - - that's what I want to do.
THE COURT: And if you - - all right, you argue it, and then if you all - - all right, that will be fine. You argue it. I'll take care of everything after that.
[GRAYBILL'S COUNSEL]: Sure.

         Attaway's counsel then asked to reserve argument in the form of a written brief, which led to additional discussion in view of Graybill's counsel's statement that he wanted to waive opening and ...


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