GOBEIL, J., COOMER and HODGES, JJ.
personal injury case, Marshall Nash sued Daniel Reed for
injuries he sustained when Reed struck him with a car while
Nash was jogging. Reed moved for summary judgment on
Nash's claims for negligence and attorney fees, and the
trial court granted the motion on Nash's claim for
attorney fees but denied it as to the negligence claims. In
Case No. A18A1707, Nash appeals the trial court's ruling
on his claim for attorney fees. In Case No. A18A1708, Reed
cross-appeals the ruling on the negligence claims. We have
consolidated these cases for decision. For the reasons below,
we reverse summary judgment on Nash's claim for bad-faith
attorney fees, affirm summary judgment on his attorney fees
claim premised on stubborn litigiousness, and affirm the
denial of summary judgment on his negligence claims.
prevail on a motion for summary judgment, the moving party
must demonstrate that there is no genuine issue of material
fact, so that the party is entitled to judgment as a matter
of law . . . ." (Citations and punctuation omitted.)
Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697
S.E.2d 779) (2010). Trial court rulings on summary judgment
"enjoy no presumption of correctness on appeal, and an
appellate court must satisfy itself de novo that the
requirements of OCGA § 9-11-56 (c) have been
met." Id. at 624 (1) (a). In making that
determination, "we must view the evidence, and all
reasonable inferences drawn therefrom, in the light most
favorable to the nonmovant." (Citation and punctuation
viewed, the record shows that Nash was wearing headphones and
listening to music while jogging on Moore's Mill Road
near its intersection with Northside Drive. Reed was driving
about 35 m.p.h. on Moore's Mill in the same direction. As
he approached the intersection, Reed saw Nash near the middle
of the street and slowed to about 25 m.p.h. Reed did not
think that Nash saw him, and he admits that he did not know
the direction in which Nash was going.
crossed the intersection without honking or waiting for Nash
to get out of the way. In an attempt to get around Nash, Reed
drove across double-yellow lines into oncoming traffic,
knowing that traffic laws generally prohibit him from doing
so. As he was returning to his lane, Reed struck Nash,
breaking his leg. Reed testified that he "made an
educated decision on how to avoid [Nash]" and that he
would "do it again." Minutes later, the police
arrived. Nash told an officer that Reed ran a red light; Reed
testified that he had a green light. Although an officer on
the scene cited Nash for "Dart[ing] Into Traffic,"
the State dismissed the citation.
sued Reed for negligence, negligence per se, and OCGA §
13-6-11 attorney fees. Reed answered the lawsuit and moved
for summary judgment. Reed argues that he did not strike
Nash; instead, he claims, Nash struck him. He also argues
that Nash violated several traffic laws, eliminating any
liability Reed may otherwise have had.
trial court granted summary judgment to Reed on Nash's
attorney fees claim but denied it on the remaining claims.
Nash appeals the grant of summary judgment on the attorney
fees claim, and Reed cross-appeals the denial of summary
judgment on the remaining claims.
first argues that the trial court erred by granting summary
judgment on his claim under OCGA § 13-6-11 for bad-faith
attorney fees. We agree.
a party may not recover litigation expenses as damages. See
OCGA § 13-6-11. If, however, "the plaintiff has
specially pleaded and has made prayer therefor and where the
defendant has acted in bad faith . . ., the jury may allow
them." Id. "The intent of the law, as
shown by the words, 'the jury may allow them,' is to
leave the matter of expenses of litigation to the jury trying
the case." (Citations omitted.) Covington Square
Assocs. v. Ingles Markets, 287 Ga. 445, 446 (696 S.E.2d
649) (2010); see also Forsyth County v. Martin, 279
Ga. 215, 219 (2) (b) (610 S.E.2d 512) (2005) ("Questions
concerning bad faith . . . are generally questions for the
jury") (citation omitted). On summary judgment,
"[e]ven slight evidence of bad faith can be enough to
create an issue for the jury." (Citation omitted.)
City of Lilburn v. Astra Group, Inc., 286 Ga.App.
568, 571 (649 S.E.2d 813) (2007). That said, "if there
is no evidence of bad faith . . ., a court should grant a
defendant's motion for summary judgment on a claim for
attorney fees." Garrett v. Women's Health Care
of Gwinnett, 243 Ga.App. 53, 55 (1) (532 S.E.2d 164)
faith under OCGA § 13-6-11 "must have arisen out of
how the defendant acted in dealing with the plaintiff."
(Citation omitted.) City of Lilburn, supra, 286
Ga.App. at 571. It "pertains to the transaction . . .
out of which the cause of action arose, not to the
defendant's conduct after the cause of action
arose." (Citation omitted.) Id."Indicative
of whether a party acts in good or bad faith in a given
transaction is his abiding by or failing to comply with a
public law made for the benefit of the opposite party, or
enacted for the protection of the latter's legal
rights." (Citation and punctuation omitted.)
Windermere, Ltd., supra, 211 Ga.App. at 179 (2).
highlights several facts to support his argument that Reed
acted in bad faith. First, Reed saw Nash on the other side of
the intersection and knew that Nash did not see him. Second,
Nash was near the middle of the street, and Reed did not know
where he was going. Third, Reed thought about honking to
alert Nash but decided against it, and Reed admits that he
could have stopped and allowed Nash to finish crossing the
street but chose not to. And fourth, Reed crossed a
double-yellow line in an attempt to get around Nash even
though traffic laws generally prohibit him from doing so.
together, this evidence is sufficient to create a jury issue
on the issue of bad faith. See City of Lilburn,
supra, 286 Ga.App. at 571; see also Young v.
Kitchens, 228 Ga.App. 870, 874 (3) (492 S.E.2d 898)
(1997) ("It is the jury's function to draw an
inference from the evidence when more than one inference can
be drawn.") (citation omitted). Consequently, the trial