There are a number of well-settled principles of Georgia law that pertain to the recovery of expenses of litigation and attorney's fees, and the Courts have long held that the expenses of litigation generally shall not be allowed as a part of the damages recoverable by a party except where the other party has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. O.C.G.A. § 13-6-11. It is necessary to show only one of the three statutory conditions of that section to authorize an award. Allen v. Brackett, 165 Ga.App. 415 (1983). An award of attorney fees and expenses of litigation is proper only where provided for by statute or contract, Cary v. Guiragossian, 270 Ga. 192 (1998), and the question of liability for attorney's fees pursuant to O.C.G.A. § 13-6-11 is generally a question of fact for a jury to decide. C&H Development v. Franklin County, 294 Ga.App. 792 (2008).

The statutory bad faith must have arisen out of the transaction on which the cause of action is predicated, rather than the defendant's conduct in defending the case. Trader's Insurance Co. of Chicago v. Mann, 118 Ga. 381 (1903); Allen, 165 Ga.App at 415. 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 or a breach of a known duty with some motive of interest or ill will. Rapid Group, Inc. v. Yellow Cab of Columbus, Inc., 253 Ga.App. 43 (2001).

The Georgia Supreme Court has long held that where there is a bona fide controversy for tribunals to settle and the parties cannot adjust it amicably, there should be no burdening of one party with the attorney's fees of the other unless there has been a wanton or excessive indulgence in litigation. Tift v. Towns, 63 Ga. 237 (1879). The concepts of "stubborn litigiousness" and "causing the plaintiff unnecessary trouble and expense" refer to a defendant's forcing the plaintiff to sue where "no bona fide controversy" exists, Jeff Goolsby Homes Corp. v. Smith, 168 Ga.App. 218 (1983), and attorney's fees are not authorized under O.C.G.A. § 13-6-11 if the evidence shows that a genuine dispute exists, whether of law or fact, on liability or amount of damages, or on any other comparable issue. Nash v. Studdard, 294 Ga.App. 845 (2008). Finally, it was long ago opined that when the only "unnecessary trouble and expense" caused by the defendant is requiring the plaintiff to file suit a recovery may not be had, since to hold otherwise would allow victorious plaintiffs in every case to recover their attorney's fees in contravention of the statute. See Pferdmenges Preyer & Co. v. Butler, Steven & Co., 117 Ga. 400 (1903).