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FLEETWOOD MOTOR HOMES OF PENNSYLVANIA, INC. v. McGEHEE.
73512.
POPE, Judge.
Breach of warranty. Bibb State Court. Before Judge Phillips.
Appellee Charles McGehee is an 80-year-old graduate of Harvard University who retired from a successful business career approxImately 8 years ago. In June 1982 he purchased a new 1981 Fleetwood Motor Home for $26,935. After many problems with the vehicle, and following many attempts to correct these problems, appellee filed suit against appellant Fleetwood Motor Homes of Pennsylvania, Inc. (the manufacturer), Tall Paul's Camper and Awning (the dealer) and General Motors Corporation (the manufacturer of the engine and chassis), alleging breach of warranties and fraud and seeking compensatory and punitive damages and attorney fees. The jury returned a verdict for appellee only on his breach of warranty count against appellant Fleetwood and awarded him $1,500. Appellee then filed a motion to amend the verdict, seeking $15,186.07 in attorney fees and costs under the Magnuson-Moss Warranty -- Federal Trade Commission Improvement Act, 15 USCA 2301 et seq. The sole issue raised on appeal is whether the trial court erred in awarding appellee $15,000 in attorney fees pursuant to 15 USCA 2310 (d) (2). We affirm.
1. Appellant argues first that the trial court abused its discretion because the amount of attorney fees awarded was excessive when compared to the actual warranty damages proved and when compared to the actual recovery. Conceding that it can find no cases under the Magnuson-Moss Act in which the appellate tribunal either reduced or increased the trial court's award of attorney fees, appellant nevertheless would have this court adopt what can best be described as a proportionality formula, which would require the trial court to use the result or success of the litigation, as measured by the amount of damages awarded, in determining attorney fees under 2310 (d) (2).
In Drouin v. Fleetwood Enterprises, 163 Cal.App.3d 486 (209 Cal.Rptr. 623) (1985), the defendant also argued that the amount of attorney fees awarded was excessive when compared to plaintiff's recovery. The court disagreed and held that "[t]itle 15 United States Code section 2310 (d) (2), clearly provides that [attorney] fees be calculated upon 'actual time expended.' The Senate Report concerning this language makes its purpose clear: 'It should be noted that an attorney's fee is to be based upon actual time expended rather than being tied to any percentage of the recovery. This requirement is designed to make the pursuit of consumer rights involving inexpensive consumer products economically feasible.' (Sen. Rep. No. 93-151, 1st Sess. (1973) pp. 23-24.) We believe this rationale applies with equal force to purchases of products which may not be 'inexpensive.' " Drouin, supra at 493.
" 'A court has few duties of a more delicate nature than that of fixing counsel fees. The degree of delicacy increases when the matter becomes one of review on appeal. The principle of law, which is easy to state but difficult at times to apply, is that only in the case of clear abuse of discretion by the trier may we interfere.' [Cits.]" Hanks, supra at 1170; see also Levy v. Aiken, 164 Ga. App. 750 (298 SE2d 305) (1982); see generally Cohutta Mills v. Bunch, 166 Ga. App. 395 (2) (304 SE2d 431) (1983).
Both of plaintiff's attorneys in the case sub judice testified concerning the amount of time expended and expenses incurred in preparing this case for trial. The total dollar amount, excluding one and one-half days of trial time for Mr. Henson and three days of trial time for Mr. Harris, derived from this testimony was in excess of $15,000. We find, therefore, that the trial court did not abuse its discretion in awarding attorney fees in favor of plaintiff for the amount set forth. Cf. City of College Park v. Grunden, 171 Ga. App. 814 (321 SE2d 371) (1984); see generally Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747 (266 SE2d 531) (1980).
2. We have examined appellant's remaining enumeration and find it also to be without merit. The record shows that the trial court initially charged the jury on the issue of attorney fees under both OCGA 13-6-11 and 15 USCA 2310 (d) (2). Following objections by and discussions with various trial counsel, and upon request by the jury for clarification on the issue of attorney fees, the trial court recharged the jury and omitted any reference to 2310 (d) (2). Nevertheless, appellant now argues that the trial court was precluded from deciding the issue of attorney fees under the Magnuson-Moss Act because it had submitted that issue to the jury for its consideration and the jury had refused to award any attorney fees under either the federal or state statute.
We note first that appellant apparently recognizes that any argument that there is a relationship between the award of "bad faith" attorney fees under OCGA 13-6-11 and the award of attorney fees under 15 USCA 2310 (d) (2) is clearly specious. Moreover, we are not persuaded, as appellant apparently is, that the jury did in fact consider and reject an award of attorney fees under 2310 (d) (2), nor are we persuaded that the charge as a whole precluded the trial court from considering attorney fees under the Magnuson-Moss Act. The decision to award or not to award attorney fees under the act, being placed solely in the discretion of the trial court, clearly was not a matter for the jury's consideration. Since appellant has cited no authority to the contrary in support of this enumeration, we affirm. See Morrison v. Dept. of Transp., 166 Ga. App. 144 (4) (303 SE2d 501) (1983).
Kenneth M. Henson, Jr., William C. Harris, for appellee.
Thomas C. James III, for appellant.
DECIDED FEBRUARY 25, 1987 -- REHEARING DENIED MARCH 13, 1987 -- CERT. APPLIED FOR.
Thursday May 21 13:40 EDT


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