We will not consider a theory of recovery raised for the first time on appeal Comolli v. Comolli Granite Co., 233 Ga. 461 ( 211 S.E.2d 750) (1975). See also Delta Air Lines v. Isaacs, 141 Ga. App. 209 ( 233 S.E.2d 212) (1977). Although the issue of punitive damages is not mentioned in the trial court's order under CPA § 54 (b) (Code Ann. § 81A-154 (b)), we will nonetheless consider it in the interest of judicial economy.
Finally, without a dispute as to liability, “the raising at trial of a dispute as to the amount of liability, without more, will not satisfy the bona fide controversy requirement.” Delta Air Lines v. Isaacs, 141 Ga.App. 209, 211–212(3), 233 S.E.2d 212 (1977). See also Daniel v. Smith, 266 Ga.App. 637, 638–639(1), 597 S.E.2d 432 (2004).
Our research indicates that a jury may award attorney fees under OCGA § 13-6-11 if there is no bona fide controversy as to liability, even if there is a bona fide controversy as to damages. See Southern R. Co. v. Crowe, 186 Ga. App. 244, 246-248 (2) ( 366 SE2d 846) (1988); Delta Air Lines v. Isaacs, 141 Ga. App. 209, 211 (3) ( 233 SE2d 212) (1977). Once the threshold for awarding the plaintiff expenses of litigation as compensation for a defendant's stubborn litigiousness or causing unnecessary trouble or expense has been reached, we cannot find any authority for requiring the jury to pro-rate fees between various aspects of a discrete cause of action.
As it is undisputed that BJM failed to bring the instant action within the two-year limitation imposed by the U.S. DOT-approved tariff, the trial court correctly granted summary judgment to Continental. Delta Air Lines v. Isaacs, 141 Ga. App. 209, 210-211 (2) ( 233 S.E.2d 212) (1977). See 14 C.F.R. § 253.5 (b) (1) and (b) (2).
The evidence reveals that the appellant railroad consistently denied all liability for the damage to appellee's property up until the trial of the case, at which point it admitted no bona fide controversy existed as to that liability. In Delta Air Lines v. Isaacs, 141 Ga. App. 209 ( 233 S.E.2d 212) (1977), we held that the trial court properly presented the question of attorney fees to the jury pursuant to OCGA § 13-6-11. "A party may resist settlement of a claim without fear of future liability for attorney fees if the resistance is predicated upon a `bona fide controversy.' [Cit.] However, where a defendant has disclaimed all liability prior to litigation, the raising at trial of a dispute as to the amount of liability, without more, will not satisfy the bona fide controversy requirement.
The jury having elected not to return any monetary general damages, it is improper to award exemplary or punitive damages. Haugabrook v. Taylor, 225 Ga. 317 ( 168 S.E.2d 162); Delta Air Lines v. Isaacs, 141 Ga. App. 209, 212 (4) ( 233 S.E.2d 212). Therefore, it was error for the trial court to enter the judgment of $1,000 punitive damages based upon the verdict of the jury as to Count X of the complaint.
"Mere negligence, although gross, will not alone authorize the recovery of punitive damages." Co-op Cab Co. v. Arnold, 106 Ga. App. 160, 164 ( 126 S.E.2d 689) (1962); also see BLI Const. Co. v. Debari, 135 Ga. App. 299 (2) ( 217 S.E.2d 426) (1976); Delta Air Lines v. Isaacs, 141 Ga. App. 209 ( 233 S.E.2d 212) (1977). The judgment is affirmed with direction that the award of punitive damages is stricken.
" Even though aggravating circumstances may exist, "it would nevertheless be improper [to award punitive damages] unless general damages had also been awarded . . . for exemplary damages are `additional damages' (Code § 105-2002) and a claim for them will not lie when general damages are not recovered. Haugabrook v. Taylor, 225 Ga. 317 ( 168 S.E.2d 162)." Delta Air Lines v. Isaacs, 141 Ga. App. 209, 212 ( 233 S.E.2d 212) (1977). The Isaacs case continues to the effect that where the punitive damage award cannot stand upon the damages granted, and there is no other general damage award on which it could stand, it must be stricken.
" McCarty v. Nat. Life Acc. Ins. Co., 107 Ga. App. 178 (2) ( 129 S.E.2d 408) (1962); Budd v. Saddler Realty, 150 Ga. App. 148 (1) ( 257 S.E.2d 1) (1979); Delta Air Lines v. Isaacs, 141 Ga. App. 209 ( 233 S.E.2d 212) (1977). In striking Count IV of the complaint and the prayers and exhibits relative thereto, the trial court determined there were insufficient circumstances to establish appellants' theory that the receipt of said letters was the reason First Federal refused to advance appellants additional funds.
Tift v. Towns, 63 Ga. 237, 242; Buffalo Cab Co. v. Williams, supra; and see Woodson v. Burton, 241 Ga. 130, 131-132 ( 243 S.E.2d 885). We can perceive that there may be cases wherein there is a bona fide controversy and the plaintiff has insisted on far more damages than he was finally determined to be worth, and yet the defendant, despite the fact that there is genuine controversy, has still been guilty of "wanton or excessive indulgence in litigation" beyond that demanded by the nature of the controversy ( Tift, supra), or the defendant may have treated the claim or conducted the litigation itself in bad faith (see Delta Air Lines v. Isaacs, 141 Ga. App. 209, 210-211 (2) ( 233 S.E.2d 212)). In such a case, although there may indeed be "great disparity in the verdict and demand" ( General Refractories, supra), which would certainly indicate that there had been a bona fide controversy at least as to the amount of liability, the defendant may still have been stubbornly litigious within the meaning of Code § 20-1404 ( Tift, supra; Buffalo Cab Co., supra, p. 524).