Wade Driggers d/b/a Falcon Constr. Co. v. Campre

Appellant-plaintiff Wade Driggers d/b/a Falcon Construction Company brought the instant damages action against appellee-defendant Julia A. Campre, for breach of contract as to renovation work done on her Savannah home. The plaintiff sought damages in the amount of $146,375, the balance due on a $186,375 renovation contract the defendant signed on December 13, 1997 “December 13 contract”1 . The defendant timely filed her answer averring, among other things, that the December 13 contract was unenforceable as supported only by past consideration. Following a hearing on cross-motions for summary judgment, the superior court issued its order denying each of the parties summary judgment, finding that jury issues remained as to: 1 whether the December 13 contract was supported by consideration adequate to create an enforceable agreement; and 2 if not, whether there should be recovery in quantum meruit. Upon the trial of the case, the jury returned its verdict finding the December 13 contract to be an invalid contract and awarded quantum meruit damages in the amount of $16,482. The plaintiff now appeals the judgment of the superior court entered upon the jury’s verdict, contending that the superior court erred in: a granting defendant’s motion to amend the pretrial order at the close of plaintiff’s evidence for the purpose of adding the affirmative defenses of unconscionability, illegality, and fraud; b denying his motion for directed verdict as to the validity of the December 13 contract as supported by valid consideration; 3 failing to give his request to charge on “bad bargain” as not relieving a party of the duty to perform under a contract; and 4 granting defendant’s motion for directed verdict on its claim for attorney fees under OCGA § 13-6-11. Held:

1. The plaintiff claims that defendant’s belated motion to amend the pretrial order waived her affirmative defenses in that she offered no explanation for her delay. Ostroff v. Coyner, 187 Ga. App. 109, 113 2 369 SE2d 298 1988 ” ‘Generally, a proposed amendment will not be barred . . . because it is offered late in the case so long as the other party is not prejudiced. “ The burden is on the party seeking amendment to show lack of laches or lack of inexcusable delay.” Cit.’ “; see also Hickox v. Dubose, 172 Ga. App. 47, 48 321 SE2d 789 1984.