Pritchett v. Rainey

131 Ga. App. 521 (1974)

206 S.E.2d 726

PRITCHETT v. RAINEY.

48837.

Court of Appeals of Georgia.

Submitted January 7, 1974.

Decided April 2, 1974.

Clifton, Helms & Dodd, Marshall L. Helms, Jr., for appellant.

William E. Otwell, for appellee.

BELL, Chief Judge.

Plaintiff brought a two-count complaint. He made a motion for summary judgment as to Count 1. The motion was denied and the denial was certified for direct appeal. Held:

As plaintiff has failed to enumerate any error on the trial court's omission to make an order under CPA § 56 (d) (Code Ann. § 81A-156 (d)), specifying whether certain facts appear without substantial controversy, we can only determine whether the court erred in denying the motion as to the whole count. Smith v. Allen, 115 Ga. App. 80, *522 81 (153 SE2d 648). In Count 1, plaintiff sought to recover an alleged balance due of $5,452 on a real estate sales contract plus $2,000 for expenses of litigation due to defendant's bad faith and stubborn litigiousness. Whether a plaintiff is entitled to recover expenses of litigation is solely a question for determination by a jury. Code § 20-1404; Patterson & Co. v. Peterson, 15 Ga. App. 680 (84 SE 163). As plaintiff's motion goes to the whole count, the jury issue of expenses of litigation alone requires an affirmance of the denial of his motion. Additionally, the pleadings and affidavits show that there is a genuine material question of fact as to whether plaintiff is entitled to the amount claimed to be due on the sales contract, to wit: $5,452.

Judgment affirmed. Quillian and Stolz, JJ., concur.