Mullinax v. Singleton

Quillian, Judge. E. R. Singleton brought suit against C. A. Mullinax seeking to recover the balance of a contract price for certain construction work on defendant’s home. The defendant answered and counterclaimed on the grounds that due to the plaintiffs failure to properly perform the home improvement work the defendant was damaged. After the utilization of various discovery procedures, the case was tried before a jury which returned a verdict in *705 favor of the defendant for "0 dollars.” From the judgment entered on the verdict, the defendant appeals. Held: Argued September 15, 1976 Decided September 29, 1976. James E. Howard, Charles A. Mullinax, for appellant. Dennis C. O’Brien, for appellee. 1. Since the case has already been tried, the enumeration of error complaining of the denial of defendant’s motion for summary judgment is not meritorious. Patterson v. Castellaw, 119 Ga. App. 712, 718 (168 SE2d 838); John L. Hutcheson &c. Hospital v. Oliver, 120 Ga. App. 547 (2) (171 SE2d 649); Hiller v. Culbreth, 139 Ga. App. 351; Hill v. Willis, 224 Ga. 263 (2) (161 SE2d 281). 2. Under the circumstances here, we find no error harmful to the defendant in refusing to direct a verdict against the plaintiffs claim for attorney fees. 3. The verdict was not without evidence to support it. 4. The remaining enumerations of error are without merit. Judgment affirmed. Deen, P. J., and Webb, J., concur.