FIFTH DIVISION

MCFADDEN, C. J.,

RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

June 16, 2021

In the Court of Appeals of Georgia

A21A0506. DOUGLAS R. WILSON et al v. REDMOND

CONSTRUCTION, INC.

A21A0507. REDMOND CONSTRUCTION, INC. v. DOUGLASR.

WILSON et al.

RICKMAN, Presiding Judge.

Douglas Wilson and Denise Wilson sued Redmond Construction, Inc.

(“Redmond”) for breach of contract and the negligent construction of a driveway.

Redmond moved for partial summary judgment on the Wilsons’ claims for attorney

fees and litigation expenses. The trial court granted the motion, and the Wilsons

appeal this order in Case No. A21A0506. Redmond cross-appeals in Case No.

A21A0507, arguing that the trial court erred when, in an earlier order, it denied

Redmond’s motion to exclude the testimony of the Wilsons’ expert witness. We

affirm the grant of summary judgment on the Wilsons’ claims for attorney fees in
Case No. A21A0506, and we affirm in part, vacate in part, and remand in Case No.

A21A0507.

Summary judgment is proper when there is no genuine issue of material

fact and the movant is entitled to judgment as a matter of law. OCGA §

9-11-56 (c). A de novo standard of review applies to an appeal from a

grant of summary judgment, and we view the evidence, and all

reasonable conclusions and inferences drawn from it, in the light most

favorable to the nonmovant.

(Citation and punctuation omitted.) Hunsucker v. Belford, 304 Ga. App. 200, 200

(695 SE2d 405) (2010).

So viewed, the Wilsons contracted Redmond to construct a new home and its

driveway, andRedmond hired a subcontractor to construct the driveway. The Wilsons

moved into the home after it was completed and soon noticed that there were cracks,

pitting, and holes in the driveway and that the driveway was not leveled, which

caused standing water. The Wilsons notified Redmond about the driveway’s

problems, andRedmond ultimately replaced landings near the driveway thatresolved

an issue with standing water, but other issues remained. The Wilsons continued to

request that Redmond fix the driveway. Redmond sentsomeone to pressure wash the

driveway in order to identify the alleged weak and deteriorating areas, but the

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Wilsons alleged that caused more damage. Redmond proposed filling the driveway’s

cracks with silicone or epoxy and adding a new top coat of concrete refinishing to

resurface and strengthen the driveway, but the Wilsons rejected these proposals. 

The Wilsons hired a civil engineer to inspect the driveway’s concrete, and the

engineer identified several alleged defects in the driveway’s construction and

recommended completely replacing the driveway. Redmond also retained its own

expert, who prepared a report and recommended grinding away the driveway’s

superficial paste and replacing it with a self-leveling concrete dressing to resolve the

leveling issues and cure the aesthetic issues. The Wilsons sued Redmond, alleging

negligent construction and breach of contract. The Wilsons also alleged that they

were entitled to attorney fees and costs because there was no bona fide dispute as to

Redmond’s liability and Redmond caused the Wilsons unnecessary trouble and

expense, acted in bad faith, and were stubbornly litigious. Redmond filed a notice of

non-party fault under OCGA § 51-12-33,

1

alleging thatRedmond’ssubcontractorwas

wholly or partially at fault with respect to the Wilsons’ claims. 

1

“The statutory scheme [of OCGA § 51-12-33] is designed to apportion

damages among ‘all persons or entities who contributed to the alleged injury or

damages’—even persons who are not and could not be made parties to the lawsuit.”

(Citation and punctuation omitted.) Martin v. Six Flags Over Georgia II, L.P., 301

Ga. 323, 337 (III) (801 SE2d 24) (2017).

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Redmond then filed a motion for partial summary judgment on the Wilsons’

claims for attorney fees under OCGA § 13-6-11, arguing that: (1) because bona fide

controversies existed as to both liability and damages, it was entitled to summary

judgment as to any claims that it was stubbornly litigious or caused the Wilsons

unnecessary trouble and expense; and (2) there was no evidence that it acted in bath

faith. In addition to introducing the depositions of the parties and their experts,

Redmond also introduced an estimate from its expert, who estimated that his

proposed solution would cost approximately $12,250.00 as well as the Wilsons’

responses to interrogatories wherein they indicated that the total cost to repair the

driveway in accordance with their proposal would cost $58,392.40. The trial court

granted Redmond’s motion for partialsummary judgment, finding that: (1) the record

showed that there was a controversy over causation and/or apportionment involving

Redmond’s subcontractor and there was a controversy related to the appropriate

remedy and cost of repair; and (2) that the Wilsons proffered no evidence of a

dishonest purpose, moral obliquity, conscious doing of wrong or ill will on the part

of Redmond to support a finding of bad faith. The Wilsons directly appealed.

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Case No. A21A0506

The Wilsons argue that the trial court erred in granting summary judgment on

their claims for OCGA § 13-6-11 attorney fees.

2 OCGA § 13-6-11 “authorizes the

finder of fact to make an award of attorney fees and other expenses of litigation where

(1) the plaintiff specially pleads and praysfor such an award, and (2) the finder of fact

finds that the defendant acted in bad faith in the underlying transaction or that, after

the transaction on which the cause of action is predicated, the defendant was

stubbornly litigious or caused the plaintiff unnecessary trouble and expense.” Horton

v. Dennis, 325 Ga. App. 212, 216 (750 SE2d 493) (2013).

1. The Wilsons contend that the trial court erred in granting summary judgment

on their claims for attorney fees and expenses of litigation because the evidence

showed that Redmond acted in bad faith, or, in the alternative, at least created a

genuine issue of material fact on this issue. We disagree.

“Bad faith warranting an award of attorney fees must have arisen out of the

transaction on which the cause of action is predicated. It may be found in how [a]

2

 Under OCGA § 13-6-11, “[t]he expenses of litigation generally shall not be

allowed as a part of the damages; but where the plaintiff hasspecially 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.”

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defendant acted in his dealing with the plaintiff.” (Citation and punctuation omitted.)

City of Gainesville v. Waters, 258 Ga. App. 555, 559 (4) (574 SE2d 638) (2002).

“Moreover, we have noted that there may be bad faith in carrying out the provisions

of the contract sufficient to support the award.” (Citation and punctuation omitted.)

Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 706 (2) (e) (774

SE2d 755) (2015). “Bad faith cannot be prompted by an honest mistake as to one’s

rights or duties but must result from some interested or sinister motive. 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.” (Citation and punctuation omitted.)

MARTA v. Mitchell, 289 Ga. App. 1, 4 (659 SE2d 605) (2007).

Here, the Wilsons contend that Redmond’s bad faith is shown by its stubborn

litigiousness, denial of liability, and its alleged intention not to repair or replace the

driveway. But, as noted above, bad faith warranting an award of attorney fees must

have arisen out of the transaction on which the cause of action is predicated. And in

that regard, Douglas Wilson testified in his deposition that Redmond’s owner and the

Wilsons discussed the driveway’s issues, that Redmond replaced landings near the

driveway which fixed a leveling issue that caused standing water, and that although

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the Wilsons testified that Redmond “didn’t see it as a problem,” Redmond’s owner

nonetheless visited the house and ultimately “whether to appease us or what, he

started talking about a top coat.” Additionally, Redmond’s owner testified that he sent

someone to pressure wash the driveway in order to check its surface, and he also

testified that the Wilsons dismissed Redmond’s plan to fill in the driveway’s cracks

with silicone. Thus, the record showsthat Redmond attempted to address the alleged

problems with the driveway, which supports the trial court’s finding that there was

no evidence of bad faith in the underlying transaction. See C & H Dev., LLC v.

Franklin County, 294 Ga. App. 792, 795 (2) (670 SE2d 491) (2008); Garrett v.

Women’s Health Care of Gwinnett, P.C., 243 Ga. App 53, 55 (1) (532 SE2d 164)

(2000) (affirming grant of summary judgment to defendant on plaintiff’s OCGA § 13-

6-11 claim for bad faith attorney feesin breach of contract and fraud case and finding

that there was no evidence that the defendant “acted through ill will or furtive design

with regard to the performance of the contract” where the defendant relied upon the

calculations of a corporate accountant in calculating bonus payments due under a

contract and where the accountant “clearly believed that his method of calculation

was appropriate, and there [was] no evidence that [the defendant] had reason to

believe otherwise”); see also M & H Constr. Co. v. North Fulton Dev. Corp., 238 Ga.

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App. 713, 715 (1) (519 SE2d 287) (1999) (affirming trial court’s grant of j.n.o.v. on

OCGA § 13-6-11 attorney fees claim in breach of contract case where most of the

evidence relied upon by the plaintiff arose from the financial disputes between the

parties and at most amounted to a failure to pay a debt, which was insufficient to

support an award of attorney fees). 

2. The Wilsons also argue that the trial court erred in granting the motion for

summary judgment on the issue of attorney fees because the evidence in the record

indicated that a bona fide controversy did not exist, and in the alternative, there were

genuine issues of material fact remaining as to whether a bona fide controversy

existed. We disagree.

When the “basis for a recovery of attorney fees is either stubborn litigiousness

or the causing of unnecessary trouble and expense, an award under OCGA § 13-6-11

is authorized where the evidence reveals that no bona fide controversy or genuine

dispute existed—whether of law or fact, on liability or amount of damages, or on any

comparable issue.” (Citation and punctuation omitted.) Horton, 325 Ga. App. at 216.

“A mere refusal to pay a disputed claim is not the equivalent of stubborn

litigiousness.” (Citation and punctuation omitted.) Id.

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Here, the Wilsons argue that “the record evidence reflects that there was no

bona fide controversy that there were problems with the defective driveway” and that

forcing them to resort to filing their lawsuit in the absence of a bona fide controversy

caused them unnecessary trouble and expense entitling them to an award of attorney

fees under OCGA § 13-6-11. The Wilsons contend that both parties’ expert witnesses

testified “consistent with the [Wilsons’] ongoing complaints that the subject driveway

was defective.” But the parties presented conflicting evidence on the nature of the

damage to the driveway, the required repairs, the costs of repairs, and whether

Redmond or itssubcontractor wasliable. Additionally, it is undisputed thatRedmond

attempted to make some repairsto the driveway, some of which the Wilsons accepted

and some of which they rejected. Based on the record in this case, the trial court was

authorized to conclude that a bona fide controversy existed between the parties,

thereby precluding an attorney fees award under OCGA § 13-6-11 for stubborn

litigiousness or causing unnecessary trouble and expense. See Rivers v. South Auction

& Realty, 351 Ga. App. 179, 185 (4) (a) (830 SE2d 636) (2019) (affirming denial of

OCGA § 13-6-11 attorney fees based on stubborn litigiousness, causing unnecessary

trouble and expense, and bad faith in a case involving the cancelled closing of a home

sale where the defendants and plaintiff presented conflicting evidence regarding the

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nature of damages and where it was undisputed that one of the defendants attempted

to make repairs on the home and extended the closing date to avoid cancellation); C

&H Dev., LLC, 294 Ga. App. at 795 (2) (affirming grant of summary judgment to the

defendant where, in the absence of bad faith, there was not “any evidence” to support

the plaintiff’s OCGA § 13-6-11 attorney fees claim when a bona fide controversy

existed between the parties) (citation and punctuation omitted).

Case No. A21A0507

In this cross-appeal, Redmond contends that the trial court erred in denying its

motion to exclude the testimony of the Wilsons’ expert witness. In its motion,

Redmond argued, among other things, that the expert’s testimony that improper

jointing caused shrinkage cracking was not reliable and that the Wilsons’ expert’s

testimony that there were “probably” “clay-type soils” underneath the driveway that

caused a drainage problem had unreliable methodology. 

Under OCGA § 24-7-702 (b), “the testimony of a qualified expert is admissible

if (1) it is ‘based upon sufficient facts or data’; (2) it is ‘the product of reliable

principles and methods’; and (3) the expert witness ‘has applied the principles and

methodsreliably to the facts of the case.’” Emory Univ. v. Willcox, 355 Ga. App. 542,

542 (1) (844 SE2d 889) (2020) (quoting OCGA § 24-7-702 (b)). “Under OCGA §

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24-7-702, it is the role of the trial court to act as a gatekeeper of expert testimony.”

(Citation and punctuation omitted.) Id. at 543 (1). “In this role, the trial court

‘assesses both the witness’ qualifications to testify in a particular area of expertise

and the relevancy and reliability of the proffered testimony.’” (Citation and

punctuation omitted.) Id. In doing this, the trial court considers whether:

(1) the expert is qualified to testify competently regarding the matters he

intends to address; (2) the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined by the sort of inquiry

mandated in Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579

(113 SCt 2786, 125 LEd 2d 469) (1993); and (3) the testimony assists

the trier of fact, through the application of scientific, technical, or

specialized expertise, to understand the evidence or to determine a fact

in issue. While there is inevitably some overlap among the basic

requirements—qualification,reliability, and helpfulness—they remain

distinct concepts and the courts must take care not to conflate them.

(Citation and punctuation omitted.) Id. “In making this assessment, however, the trial

court may not exclude an otherwise sufficient expert opinion simply because it

believesthat the opinion is not — in its view —particularly strong or persuasive. The

weight to be given to admissible expert testimony is a matter for the jury.” (Citation

and punctuation omitted) Id. “Whether expert testimony ought to be admitted under

OCGA § 24-7-702 is a question committed to the sound discretion of the trial court.

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We will not disturb the trial court’s determination absent a manifest abuse of

discretion.” (Citation and punctuation omitted.) Allen v. CFYC Constr., LLC, 354 Ga.

App. 890, 892 (1) (842 SE2d 297) (2020).

3. Redmond argues that the trial court did not consider whether the Wilsons’

expert’s causation opinion met the criteria set forth in OCGA § 24-7-702 or in

Daubert. We agree. 

[W]hen a party offers expert testimony and the opposing party raises a

Daubert challenge, the trial court must make certain that an expert,

whether basing testimony upon professional studies or personal

experience, employsin the courtroomthe same level of intellectualrigor

that characterizes the practice of an expert in the relevant field. . . .

Daubert requires the trial court to act as a gatekeeper to insure that

speculative and unreliable opinions do not reach the jury. As a

gatekeeper the court must do a preliminary assessment of whether the

reasoning or methodology underlying the testimony is scientifically

valid and of whether that reasoning or methodology properly can be

applied to the facts in issue.

(Citation and punctuation omitted; emphasis supplied.) McClain v. Metabolife Intl.,

Inc., 401 F3d 1233, 1237 (II) (11th Cir. 2005)).3“The trial court has broad discretion

3

 Under OCGA § 24-7-702 (f), 

[i]t isthe intent of the legislature that, in all civil proceedings, the courts

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in deciding how to assess the reliability of expert testimony.” Smith v. CSX Transp.,

Inc., 343 Ga. App. 508, 512 (1) (b) (806 SE2d 890) (2017). Id. “This discretion

affords the trial court considerable leeway in deciding which tests or factors to use

to assess the reliability of an expert’s methodology.” (Citation and punctuation

omitted.) Id.

Here, the trial court’sruling addressed the reliability of the following opinions

of the Wilsons’ expert: (1) there was improper jointing in the driveway, (2) the

necessary joint spacing in standard residential driveways, (3) the cracks in the

Wilsons’ driveway were defects and the driveway needed to be replaced, (4) the

Wilsons’ driveway likely had a drainage issue due to clay-type soils, and (5) uneven

or poorly compacted soils underneath the Wilsons’ driveway can lead to a differential

settlement or enhanced thermal restraint and can lead to future cracking. But the trial

court did not address Redmond’s motion to exclude the Wilsons’ expert’s opinion

of the State of Georgia not be viewed as open to expert evidence that

would not be admissible in other states. Therefore, in interpreting and

applying this Code section, the courts of this state may draw from the

opinions of the United States Supreme Court in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U. S. 579 (1993); General Electric Co. v.

Joiner, 522 U. S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526

U. S. 137 (1999); and other cases in federal courts applying the

standards announced by the United States Supreme Court in these cases.

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that the improper joint spacing caused the driveway’s cracking. Accordingly, the trial

court abused its discretion by failing to act asthe gatekeeper on the Wilsons’ expert’s

testimony that the improper joint spacing caused the driveway’s cracking, and we

vacate in part and remand for the trial court to perform its gatekeeping function and

to analyze the Wilsons’ expert’stestimony on thisissue under OCGA § 24-7-702 and

Daubert. See An v. Active Pest Control South, Inc., 313 Ga. App. 110, 111 (720 SE2d

222) (2011) (vacating an award of summary judgment and remanding for the trial

court to rule on motions to exclude the opinions of expert witnesses, which had not

been ruled upon).

4. Redmond next argues that the trial court abused its discretion by failing to

consider whether the Wilsons’ expert employed a reliable methodology to conclude

that clay needed to be removed from the Wilsons’ driveway site and replaced with

two feet of sand. We disagree.

Generally,reliabilityis examined through consideration of many factors,

including whether a theory or technique can be tested, whether it has

been subjected to peer review and publication, the known or potential

rate of error for the theory or technique, the general degree of

acceptance in the relevantscientific or professional community, and the

expert’s range of experience and training.

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(Citation and punctuation omitted.) Cash v. LG Electronics, Inc., 342 Ga. App. 735,

737 (1) (804 SE2d 713) (2017). “This is not an exhaustive list of factors, and courts

may consider themin a ‘flexible’manner.” (Citation omitted.) Id. “The trial courtmay

not exclude an otherwise sufficient expert‘simply because it believesthat the opinion

is not—in its view—particularly strong or persuasive. The weight to be given to

admissible expert testimony is a matter for the jury.’” (Citation omitted.) Id. 

Here, the Wilsons’ expert testified in his deposition that there was a drainage

issue caused by “clay-type soils” under the driveway and that Redmond should have

replaced the clay with two feet of sand. The Wilsons’ expert further testified that he

knew that clay was present under the driveway because the report prepared by

Redmond’s expert, which he reviewed, referenced clay underneath the driveway and

that the clay was probably in the original soil underneath the driveway and that clay

would naturally exist in the area where the driveway was built. In its order denying

Redmond’s motion, the trial court found that “the methodology by which [the

Wilsons’ expert] reache[d] his conclusions appear[ed] to this [C]ourt to be

sufficiently reliable to survive this motion . . . [the Wilsons’ expert] detailed the bases

for his opinions as they related to the factual circumstances in the case, including but

not limited to: his opinion that . . . the driveway had a drainage issue due to its ‘clay15
type soils’ under it[.]” So, the Wilsons’ expert explained his methodology, the court

reviewed it and found it sufficient, and we conclude that the trial court’s order

adequately demonstratesthat the trial court performed itsrole as gatekeeper asto this

opinion. See Georgia Dept. of Transp. v. Miller, 300 Ga. App. 857, 863 (2) (c) (686

SE2d 455) (2009); CSX Transp., Inc. v. McDowell, 294 Ga. App. 871, 873 (1) (a)

(670 SE2d 543) (2008).

Additionally, any contentions that the Wilsons’ expert misread Redmond’s

expert’s report and drew erroneous conclusions go to the weight, rather than the

admissibility of the evidence. See Quiet Technology DC-8 v. Hurel-Dubois UK Ltd.,

326 F3d 1333, 1345 (II) (C) (11th Cir. 2003) (the identification of a flaw in generally

reliable scientific evidence is the role of cross-examination and any such inadequacy

goes to the weight, rather than the admissibility of the evidence); Old Republic Nat.

Title Ins. Co. v. RM Kids, LLC, 337 Ga. App 638, 646-647 (4) (788 SE2d 542) (2016)

(affirming trial court’s order denying motion to exclude expert testimony allegedly

not based on reliable data or recognized methodology where the expert was properly

qualified and the facts relied upon were within the bounds of evidence; questions

about whether there was sufficient knowledge upon which to base an opinion went

to the weight and credibility of the testimony, not its admissibility); Emory Univ., 355

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Ga. App. at 544 (1) (“[A] trial court’s gatekeeper role under Daubert is not intended

to supplant the adversarialsystem or the role of the jury. Quite the contrary, vigorous

cross-examination, presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.”) (quoting Quiet Technology DC-8, 326 F3d at 1341 (II) (A)

(punctuation omitted)). So, Redmond has not shown that the trial court abused its

discretion in denying its motion to exclude this opinion evidence on this basis, and

we affirm the trial court’s ruling on this issue.

Judgment in Case No. A21A0506 affirmed. Judgment in Case No. A21A0507

affirmed in part, vacated in part, and remanded. McFadden, C. J., and Senior

Appellate Judge Herbert E. Phipps concur.

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