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Cheatham Fletcher Scott Architects, P.C. v. Hull 2000, LLLP

Court of Appeals of Georgia, Fourth Division

October 29, 2019

CHEATHAM FLETCHER SCOTT ARCHITECTS, P.C.
v.
HULL 2000, LLLP. CHEATHAM FLETCHER SCOTT ARCHITECTS, P.C.
v.
HULL 2000, LLLP.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          DOYLE, PRESIDING JUDGE

         These consolidated appeals arise from a defense verdict following a consolidated bench trial on two separate but related breach of contract actions. In 2014, defendant Hull 2000, LLLP ("Hull"), hired plaintiff Cheatham Fletcher Scott Architects, P. C. ("CFS"), to perform architectural and interior design services to assist Hull in building a "hospitality house" in Augusta. Following a dispute about fee payment, CFS sued Hull in the Civil Court of Richmond County, [1] filing two actions based on the two separate design agreements. Civil Action No. 301021 (now Court of Appeals Case No. A19A1557 or "Interior Design Case") asserted claims seeking (a) payment of fees for interior design services, (b) foreclosure of a claim of lien (abandoned at trial), and (c) attorney fees; Civil Action No. 301022 (now Court of Appeals Case No. A19A1558 or "Architectural Design Case") asserted related claims for (a) payment of fees for architectural design services, (b) foreclosure of a claim of lien (abandoned at trial), and (c) attorney fees.

         In Case No. A19A1557, Hull filed an answer and counterclaim seeking recoupment of additional money spent to hire another firm to do the interior design work CFS allegedly failed to complete. In Case No. A19A1558, Hull filed an answer and counterclaim seeking recoupment of money it had to spend to build a $55, 000 brick wall to comply with changes CFS allegedly adopted before the local Historic Preservation Commission without Hull's permission. In both cases, Hull also counterclaimed for attorney fees.

         Following a joint bench trial on both cases, the civil court entered an order consolidating its factual findings and conclusions of law, and entering separate judgments as follows: in the Interior Design Case (Case No. A19A1557), against CFS and in favor of Hull in the principal amount of $8, 300 plus $7, 500 in attorney fees; and in the Architectural Design Case (Case No. A19A1558), against CFS and in favor of Hull in the principal amount of $44, 000 plus $7, 500 in attorney fees. CFS now appeals, and for the reasons that follow, we affirm in part and reverse in part in Case No. A19A0557, and vacate the judgment in Case No. A19A1558 and remand with direction.

         Case No. A19A0557

         In this case, CFS contends that the civil court erred by (1) awarding Hull attorney fees of $7, 500 pursuant to OCGA § 13-6-11, (2) finding in favor of Hull on its substantive counterclaim, (3) denying CFS's right to have the final closing argument, and (4) finding that Hull had not breached its agreement with CFS.

         1. Attorney fee award to Hull.

         Hull's counterclaim sought an attorney fee award under OCGA § 13-6-11 based on CFS's alleged bad faith, stubborn litigiousness, and conduct causing Hull unnecessary trouble and expense. The civil court's order awarded Hull $7, 500 pursuant to OCGA § 13-6-11 based on the fact that Hull had moved for summary judgment on CFS's lien claim on the ground that CFS did not comply with a statutory notice requirement, [2] and CFS did not abandon its flawed lien claim until the day of the trial. We note that CFS's response to the summary judgment motion was not due until the day it withdrew its claim.[3]Nevertheless, pretermitting whether this could be considered sanctionable conduct, the trial court's attorney fee award was improper because it was predicated on misconduct that occurred in the course of the litigation, as opposed to in the underlying transaction.[4]

[T]wo statutes, OCGA § 9-15-14 and § 13-6-11, . . . allow for awards of attorney fees based on entirely different categories of sanctionable conduct. On the one hand, OCGA § 9-15-14 applies to conduct occurring during the litigation. OCGA § 13-6-11, on the other hand, permits an award of attorney fees where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. It applies to conduct arising from the underlying transaction.[5]

         The record is clear that Hull sought attorney fees pursuant to OCGA § 13-6-11, and the civil court made its award explicitly under that Code section. But the allegedly sanctionable conduct cited by the civil court in its order occurred as part of the litigation, i.e., in the 30 days leading up to trial. Therefore, a fee award under OCGA § 13-6-11 was not authorized because that Code section addresses conduct that arises from the underlying transaction, and we reverse the award in this case.[6]

         2. Challenge to $8, 300 counterclaim award in favor of Hull.

         CFS next assigns as error the award to Hull on its counterclaim for breach of contract, challenging the sufficiency of the evidence.

On appellate review of a bench trial, the factual findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. In bench trials, the judge sits as trier of fact, and the court's findings are analogous to a jury's verdict and should not be disturbed if there is any evidence to support them.[7]

         And "[w]e construe the evidence in favor of the judgment."[8]

         So viewed, the record shows that Hull hired CFS to provide interior design services for a hospitality house Hull desired to build to host guests for the 2015 Masters golf tournament. The interior design services included work such as producing a furniture plan, establishing a budget for furniture and fixtures, selecting finish and hard surface materials, selecting lighting, coordinating closet designs, and coordinating kitchen appliance selection and installation. CFS initially proposed a flat fee of $45, 000 for its services, but later agreed to a reduced fee of $35, 000. The agreement was not reduced to a single formal written document; rather, it was memorialized by a letter, telephone calls, and other correspondence.

         After CFS began some of this work, Hull was not satisfied with the choices made or services provided by CFS, and CFS ultimately elected not to perform any more interior design services for the project. CFS sent Hull an invoice for 30 percent of the agreed-upon fee, estimating that it had performed 30 percent of the interior ...


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