[Cits.]" Fontaine Condo. Assn. v. Schnacke, 230 Ga. App. 469, 471 (3) ( 496 SE2d 553) (1998) (vacating trial court's award of attorney fees after it denied jury trial thereon). Consistent with this precedent, the Court of Appeals has correctly held that, because both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury's determination, a trial court is not authorized to grant summary judgment in favor of a claimant therefor.

However, a consolidation of the interlocutory hearing into a final hearing cannot be done by the trial court without a written order over objection from the parties that they are not ready to proceed on the merits of the case. Brevard Fed. Sav. Loan Ass'n v. Ford Mountain Invs., 261 Ga. 619, 620(1) ( 409 S.E.2d 36) (1991) (issues for jury determination on the underlying contract dispute); Fontaine Condominium Ass'n v. Schnacke, 230 Ga. App. 469, 470(1) ( 496 S.E.2d 553) (1998) (TRO consolidated into final hearing on the merits over objection). This case was not a consolidated hearing on the merits but was an interlocutory injunction hearing pursuant to a rule nisi order so that such cases do not apply and the parties are entitled to a jury trial on the underlying restrictive covenant case.

See, e.g., Bldg. Mat'ls Wholesale, Inc. v. Triad Drywall, LLC, 287 Ga.App. 772, 778, 653 S.E.2d 115 (2007) ("Because litigation expenses (costs and attorney fees) are wholly ancillary, they are not recoverable when no damages are awarded." (quotation marks omitted)); 4WD Parts Ctr., Inc. v. Mackendrick, 260 Ga.App. 340, 345, 579 S.E.2d 772 (2003) ("Attorney fees are not recoverable under OCGA § 13-6-11 where there is no award of damages or other relief on any underlying claim."); Fontaine Condo. Ass'n v. Schnacke, 230 Ga. App. 469, 470, 496 S.E.2d 553 (1998) (stating that "recovery of attorney fees [is] generally foreclosed unless damages [are] recovered"); George F. Brown Sons, Inc. v. Knowles, 196 Ga.App. 594, 595, 396 S.E.2d 501 (1990) ("Since damages are not recoverable, appellee is not entitled to attorney fees."); see also Credle v. East Bay Holding Co., 263 Ga. 907, 907, 440 S.E.2d 20 (1994) (stating, in bid contest case, that "attorney fees could be recovered, not as an inherent part of the damages incurred by a frustrated bidder, but by establishing the requirements of the particular statute that authorizes attorney fees" (quotation marks and citation omitted)). Thus, even where attorneys' fees are recoverable under O.C.G.A. § 13-6-11, they are ancillary to a plaintiffs damages claim and require proof of an additional element.