Bowen v. Ken-Mar Construction Co.

Shulman, Judge. The first appearance of this case before this court resulted in the affirmance of the judgment with the exception of the award of attorney fees. 152 Ga. App. 568 (263 SE2d 463). On certiorari, the Supreme Court reversed this court’s judgment (Ken-Mar Const. Co. v. Bowen, 245 Ga. 676 (266 SE2d796) (1980)), and remanded the case for reconsideration of the fourth division of this court’s opinion, the division dealing with the award of attorney fees. 1. In compliance with the direction of the Supreme Court, we have reconsidered the attorney fees issue of this case in light of the rule stated in Colonial Life & Acc. Ins. Co. v. McClain, 243 Ga. 263, 265 (253 SE2d 745): “The proper rule is that the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense.” In view of evidence that appellant’s financing was of doubtful adequacy from the outset of the project and of the inference to be drawn from that evidence, it cannot be said that the award of attorney fees is wholly without evidentiary support. Similarly, it may be inferred from the evidence adduced at trial that appellant’s chief defense was that the house appellee was building cost too much. Under those circumstances, we are not prepared to say as a matter of law that there was a reasonable defense. Therefore, applying the rule stated in Colonial Life, supra, the award of attorney fees must be affirmed. 2. The Supreme Court’s reversal of our first decision in this case did not concern the first three divisions thereof. Accordingly, we reaffirm the holdings of the first three divisions of the opinion appearing at 152 Ga. App. 568 (263 SE2d 463) and adopt them as the holdings of this opinion. Judgment affirmed. Deen, C. J, and Carley, J., concur.