(Code 1981, §9-15-14, enacted by Ga. L. 1986, p. 1591, § 1; Ga. L. 1987, p. 397, § 1; Ga. L. 1989, p. 437, § 1; Ga. L. 1994, p. 856, § 2; Ga. L. 1997, p. 689, § 1; Ga. L. 2001, p. 967, § 1.)
Cross references.- Duty of lawyer to client, Rules and Regulations for the Organization and Government of the State Bar of Georgia, EC 7-4.
Law reviews.- For annual survey of law of torts, see 38 Mercer L. Rev. 351 (1986). For annual survey of trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For article, "On with the Old!," see 24 Ga. St. B.J. 13 (1987). For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B.J. 29 (1987). For article, "Nonjudicial Foreclosures in Georgia Revisited," see 24 Ga. St. B.J. 43 (1987). For article, "The Torok Tort: Recovery for Abusive Litigation," see 23 Ga. St. B.J. 84 (1987). For article, "Litigators on Trial: Professionalism Implications of Yost v. Torok," see 23 Ga. St. B.J. 88 (1987). For article, "Battling the Many-Headed Hydra: Abusive Litigation Law in Georgia," see 25 Ga. St. B.J. 65 (1988). For article, "Yost v. Torok: Taking Legal Ethics Seriously," see 4 Ga. St. U.L. Rev. 23 (1988). For article, "Setting the Fee When the Client Discharges a Contingent Fee Attorney," see 41 Emory L.J. 367 (1992). For annual survey on legal ethics, see 44 Mercer L. Rev. 281 (1992). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 1 (1997). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For survey article on domestic relations cases for the period from June 1, 2002, through May 31, 2003, see 55 Mercer L. Rev. 223 (2003). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006). For article, "Of Frivolous Litigation and Runaway Juries: A View from the Bench," see 41 Ga. L. Rev. 431 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey on appellate practice and procedure, see 61 Mercer L. Rev. 31 (2009). For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For annual survey on domestic relations law, see 64 Mercer L. Rev. 121 (2012). For annual survey on legal ethics, see 64 Mercer L. Rev. 189 (2012). For annual survey on trial practice and procedure, see 64 Mercer L. Rev. 305 (2012). For article, "Division of Labor: The Modernization of the Supreme Court of Georgia and Concomitant Workload Reduction Measures in the Court of Appeals," see 30 Ga. St. U.L. Rev. 925 (2014). For article on domestic relations, see 66 Mercer L. Rev. 65 (2014). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015). For annual survey on domestic relations, see 69 Mercer L. Rev. 83 (2017). For annual survey on legal ethics, see 69 Mercer L. Rev. 157 (2017). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For article, "A Constitutional Counterpunch to Georgia's Anti-SLAPP Statute," see 69 Mercer L. Rev. 407 (2019). For annual survey on domestic relations, see 71 Mercer L. Rev. 83 (2019). For note, "Abusive Litigation in Georgia: Deterrence and Compensation," see 3 Ga. St. U.L. Rev. 303 (1987). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).
JUDICIAL DECISIONSANALYSIS
General Consideration
Purpose.
- Damages authorized by O.C.G.A. § 9-15-14 and, to a lesser extent, those authorized by Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), are intended not merely to punish or deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with claims, defenses, or other positions with respect to which there exists such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Ferguson v. City of Doraville, 186 Ga. App. 430, 367 S.E.2d 551, cert. denied, 186 Ga. App. 918, 367 S.E.2d 551 (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 376 S.E.2d 860 (1989).
O.C.G.A. § 9-15-14 does not create a tort claim for "abusive litigation," which would be pleaded pursuant to the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, and submitted to a jury for the resolution of disputed questions of fact, the statute merely makes substantive and procedural provision for a trial court, sitting as the trier of fact, to make an award of attorney's fees and expenses of litigation as a sanction against certain enumerated abuses. Deavours v. Hog Mt. Creations, Inc., 207 Ga. App. 557, 428 S.E.2d 388 (1993), aff'd in part rev'd in part on other grounds, 263 Ga. 796, 439 S.E.2d 643 (1994).
Limited scope of section.
- Now that the common law action has been codified in O.C.G.A. § 51-7-80 et seq., O.C.G.A. § 9-15-14 remains effective only when the claim is for attorneys' fees or expenses of litigation. Westinghouse Credit Corp. v. Hall, 144 Bankr. 568 (S.D. Ga. 1992).
No constitutional mandate that attorney's fees be awarded only pursuant to O.C.G.A. § 9-15-14 or O.C.G.A. § 13-6-11. - Trial court erred in finding that the Tort Reform Act of 2005, O.C.G.A. § 9-11-68, violated Ga. Const. 1983, Art. I, Sec. I, Para. XII, since the court permitted the recovery of attorney's fees absent the prerequisite showings of either O.C.G.A. § 9-15-14 or O.C.G.A. § 13-6-11 because there was no constitutional requirement that attorney's fees be awarded only pursuant to § 9-15-14 or § 13-6-11; in Georgia, attorney's fees are recoverable when authorized by some statutory provision or by contract, and § 9-11-68 is such a statutory provision authorizing the recovery of attorney's fees under specific circumstances. Smith v. Baptiste, 287 Ga. 23, 694 S.E.2d 83 (2010).
Implicit in the language of O.C.G.A. § 9-15-14 is that a court of record of Georgia may impose reasonable and necessary attorney fees and expenses of litigation for proceedings before that court, which were brought for purposes of harassment or delay or lacked substantial justification. McNair v. McNair, 343 Ga. App. 41, 805 S.E.2d 655 (2017).
Construction with O.C.G.A. § 13-6-11. - O.C.G.A. § 9-15-14 applies to conduct occurring during the litigation and permits an attorney fees award for frivolous claims, and O.C.G.A. § 13-6-11 permits an award of attorney fees if the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense and applies to conduct arising from the underlying transaction; O.C.G.A. § 13-6-11 has been held to require that a party acting in bad faith pay the full price for losing. Trotter v. Summerour, 273 Ga. App. 263, 614 S.E.2d 887 (2005).
Any party entitled to recover.
- O.C.G.A. § 9-15-14 does not limit recovery to a certain party, but permits any party to recover from another party who has "unnecessarily expanded the proceeding by ... improper conduct, including, but not limited to, abuses of discovery." Betallic, Inc. v. Deavours, 263 Ga. 796, 439 S.E.2d 643 (1994).
Pro se parties may not recover.
- In a dismissal for failure to prosecute, a trial court erred in awarding attorney fees to pro se defendants under O.C.G.A. § 9-15-14. Chrysler Financial Services Americas, LLC v. Benjamin, 325 Ga. App. 579, 754 S.E.2d 157 (2014).
Awards not directly to attorney.
- Any award of fees or expenses under O.C.G.A. § 9-15-14(a) "shall be awarded to any party" and not directly to the attorney for the party. The court may, of course, specify the amounts due to each attorney or law firm, but the award itself, as specified in the statute, is for the benefit of the party litigant. Brewer v. Paulk, 296 Ga. App. 26, 673 S.E.2d 545 (2009).
Re-filing did not divest original court of jurisdiction to decide motion.
- Forty-five day period of O.C.G.A. § 9-15-14 provided an exception to post-judgment jurisdiction as a limited "window of opportunity" to seek sanctions; the re-filing of an action after a party had timely moved for attorney's fees but before the original court had the opportunity to rule did not divest the original court of jurisdiction to decide the motion. Harris v. Werner, 278 Ga. App. 166, 628 S.E.2d 230 (2006).
Prevailing party is not perforce entitled to an award of attorney's fees under subsection (a) of O.C.G.A. § 9-15-14. Hyre v. Denise, 214 Ga. App. 552, 449 S.E.2d 120 (1994).
Successful plaintiff was not entitled to award of attorney fees since the plaintiff neither asserted facts giving rise to a claim under O.C.G.A. § 9-15-14 in the plaintiff's motion nor supported the plaintiff's motion with evidence establishing such a claim. Williams v. Binion, 227 Ga. App. 893, 490 S.E.2d 217 (1997).
Applicant is not entitled to attorney fees merely because summary judgment was granted in the applicant's favor. Brown v. Kinser, 218 Ga. App. 385, 461 S.E.2d 564 (1995).
Party's conduct can justify award.
- Party's conduct in litigation is a valid basis for awarding attorney fees and O.C.G.A. § 9-15-14 can provide authority for awarding attorney fees in a contempt action when warranted by a party's conduct. Shooter Alley, Inc. v. City of Doraville, 341 Ga. App. 626, 800 S.E.2d 588 (2017).
Frivolous litigation sanctions.
- Party against whom frivolous litigation sanctions are sought has a right to be heard before such sanctions are imposed. Glass v. Glover, 241 Ga. App. 838, 528 S.E.2d 262 (2000).
Determination of whether fees are frivolous litigation sanction or support award.- Attorneys' fees award to the creditor (the debtor's former spouse) that was related to the debtor's unsuccessful efforts to obtain modifications to the divorce decree was not a domestic support obligation (DSO) as defined in the Bankruptcy Code and, thus, was not a priority claim because there was no express determination by the Georgia state court that the fees were awarded as support based upon the relative financial circumstances of the parties rather than as a sanction for frivolous litigation. Mosely v. Mosely (In re Mosely), 577 Bankr. 419 (Bankr. N.D. Ga. 2017).
Fees for unsuccessful claim not recoverable.
- Trial court must limit sanctions to fees incurred because of sanctionable conduct, so fees incurred in pursuing an unsuccessful claim would not be recoverable. Harkleroad v. Stringer, 231 Ga. App. 464, 499 S.E.2d 379 (1998).
When a construction company's counterclaims alleging abusive litigation under O.C.G.A. §§ 9-15-14 and51-7-80 et seq., alleged in the pleading that the claims constituted "notice" to assert such claims under O.C.G.A. § 51-7-81, the trial court properly determined that the claims were not counterclaims and, accordingly, dismissed the claims for want of subject matter jurisdiction under O.C.G.A. § 9-11-12(h)(3); it was also found that the required notice provided in O.C.G.A. § 51-7-84(b) was not provided prior to the filing of a claim, nor was the prior litigation ended in the defendants' favor, both of which were requirements in order to bring such a claim, and disposing of the claim under a summary judgment analysis, pursuant to O.C.G.A. § 9-11-56, was proper. Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003).
In a homeowner's breach of contract action against a builder, a trial court's refusal to award attorney's fees to the builder was upheld because the builder did not prevail on any of the builder's motions or claims. Sierra-Corral Homes, LLC v. Pourreza, 308 Ga. App. 543, 708 S.E.2d 17 (2011), cert. denied, No. S11C1121, 2011 Ga. LEXIS 584 (Ga. 2011), overruled on other grounds by Bowen v. Savoy, 2020 Ga. LEXIS 133 (Ga. 2020).
Power to award attorney fees sua sponte is contingent.
- While subsection (b) of O.C.G.A. § 9-15-14 vests the trial court with the discretion to award attorney's fees sua sponte, that power is contingent upon the trial court finding lack of substantial justification or unnecessary expansion of the proceeding by improper conduct. Market Ins. Corp. v. IHM, Inc., 192 Ga. App. 441, 385 S.E.2d 307, cert. denied, 192 Ga. App. 902, 385 S.E.2d 307 (1989), overruled on other grounds, Fowler v. Vineyard, 261 Ga. 454, 405 S.E.2d 678 (1991); Hardwick-Morrison Co. v. Mayland, 206 Ga. App. 426, 425 S.E.2d 416 (1992); Montag v. Sutherland, 230 Ga. App. 692, 498 S.E.2d 86 (1998).
Request for attorney's fees proper.
- Homebuyers and their attorney could have discovered that the buyers did not have a valid claim against two people who sold them a house or against the sellers' real estate agent or the agent's brokerage firm by exercising due diligence before suit was filed, and the trial court did not abuse the court's discretion by awarding the sellers, their agent, and the brokerage firm attorney's fees and costs or by ruling that the buyers' attorney was jointly and severally liable for paying that award. Bircoll v. Rosenthal, 267 Ga. App. 431, 600 S.E.2d 388 (2004).
Recovery not available to federal litigants.
- Federal courts interpreting O.C.G.A. § 9-15-14 have found the statute to apply only to courts of record of the State of Georgia; that section is unavailable to civil litigants in federal court. Westinghouse Credit Corp. v. Hall, 144 Bankr. 568 (S.D. Ga. 1992).
O.C.G.A. § 9-15-14 is limited to courts of record of the State of Georgia. Arguably, claims under Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), are also so limited. Majik Mkt. v. Best, 684 F. Supp. 1089 (N.D. Ga. 1987).
O.C.G.A. § 9-15-14 is unavailable to civil litigants in federal court. Bruce v. Wal-Mart Stores, Inc., 699 F. Supp. 905 (N.D. Ga. 1988); Thomas v. Brown, 708 F. Supp. 336 (N.D. Ga. 1989); Edwards v. Associated Bureaus, Inc., 128 F.R.D. 682 (N.D. Ga. 1989).
Amount of award.
- In cases involving O.C.G.A. § 9-15-14(a) or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct; lump sum or unapportioned attorney fees awards are not permitted in Georgia. Shooter Alley, Inc. v. City of Doraville, 341 Ga. App. 626, 800 S.E.2d 588 (2017).
Award of attorney's fees improper.
- Attorney's fees incurred in connection with appellate proceedings are not recoverable under O.C.G.A. § 9-15-14, and thus a trial court's award of attorney's fees to a wife based, in part, on a husband's prior appeal was improper. McGahee v. Rogers, 280 Ga. 750, 632 S.E.2d 657 (2006).
Because there was no evidence that a plaintiff was given an opportunity to challenge the basis on which the fees were assessed in favor of the defendant, that portion of the trial court's judgment that assessed attorney fees had to be vacated, and the matter remanded for an evidentiary hearing regarding whether the defendant was entitled to an award under O.C.G.A. § 9-15-14(b) based on the plaintiff's misconduct, and if so, the amount of the award. Honkan v. Honkan, 283 Ga. App. 522, 642 S.E.2d 154 (2007).
Trial court erred in awarding attorney fees and costs as a sanction against an assisted living facility patient and the patient's counsel for filing suit against the wrong entity; suit had been filed against the entity based on erroneous information received from the DHR, defense counsel failed to provide the patient's counsel with competent evidence that the facility was not the proper defendant until after suit was filed, and there was no evidence that the patient sued the entity for purposes of delay, harassment, or unnecessary expansion of litigation. Wallace v. Noble Vill. at Buckhead Senior Hous., LLC., 292 Ga. App. 307, 664 S.E.2d 292 (2008).
Trial court erred in awarding the defendants attorney fees on grounds that a complaint was frivolous on the complaint's face as the court's grant of summary judgment to the defendants on two of the five claims was reversed on appeal and because the trial court failed to cite O.C.G.A. § 9-15-14 or make the necessary findings, including that the fees were reasonable. Walker v. Walker, 293 Ga. App. 872, 668 S.E.2d 330 (2008).
Record revealed facts supporting justiciable issues of law in the married couple's suit against a clergyman for, inter alia, breach of fiduciary duty/confidential relationship under O.C.G.A. § 23-2-58 and loss of consortium; thus, an award of attorney fees was reversible error and any award that may have been appropriate needed to be reconsidered remembering that the trial court must limit the fees award "to those fees incurred because of [the] sanctionable conduct" and that "lump sum" or unapportioned attorney fees awards are not permitted in Georgia. Brewer v. Paulk, 296 Ga. App. 26, 673 S.E.2d 545 (2009).
Attorney fees award for a father pursuant to O.C.G.A. § 9-15-14(b) was improper because the mother's action seeking a paternity finding and child support was not frivolous despite the parties' artificial insemination agreement which precluded the father's responsibility; although the trial court ruled in the father's favor on the mother's underlying claim, there was no controlling authority directly on the question of the enforceability of an artificial insemination contract at the time the mother filed the claim, and the mother cited authority that arguably supported a different conclusion from that reached by the trial court on the public policy question, specifically Georgia authority precluding parents from waiving by agreement a child's right to support. Brown v. Gadson, 298 Ga. App. 660, 680 S.E.2d 682 (2009).
Trial court erred in awarding a father attorney fees because as parties opposing a claim for attorney fees, the grandparents had a basic right to confront and challenge testimony as to the value and need for legal services and the record did not show that the grandparents were afforded such an opportunity. Srader v. Midkiff, 303 Ga. App. 514, 693 S.E.2d 856 (2010).
Since the superior court's order awarding attorney fees to the teacher did not specify the subsection of O.C.G.A. § 9-15-14 under which the order was made and did not contain the findings necessary to support such an award, the award had to be vacated and the case remanded to the superior court for consideration of the issue under the standards of awards pursuant to § 9-15-14, and to enter an award, if appropriate. Fulton County Sch. Dist. v. Hersh, 320 Ga. App. 808, 740 S.E.2d 760 (2013).
Award of attorney fees under O.C.G.A. § 9-15-14(b) to the ex-husband was vacated because the ex-wife announced the intention to move prior to the instigation of the ex-husband's petition, therefore, the trial court abused the court's discretion by granting the ex-husband's motion for fees under § 9-15-14(b) for that conduct. Regan v. Edwards, 334 Ga. App. 65, 778 S.E.2d 233 (2015).
Uniform Superior Court Rule 6.2 applied to the defendant's motion for attorney's fees under O.C.G.A. § 9-15-14 made after dismissal of the case; thus, when the plaintiffs had not filed a response to the motion, the trial court did not err in refusing to permit testimony at the hearing thereon. Forest Lakes Home Owners Ass'n v. Green Indus., Inc., 218 Ga. App. 890, 463 S.E.2d 723 (1995).
Law of the case rule applied.
- Trial court properly ruled that an attempt to relitigate sanctionability of the conduct was beyond the scope of the remand directive and thus barred by the law of the case rule. Harkleroad v. Stringer, 231 Ga. App. 464, 499 S.E.2d 379 (1998).
As a prior action arising from a real estate contract dispute resolved the issue of attorney fees against an attorney and the attorney's clients pursuant to O.C.G.A. § 9-15-14, that became the law of the case pursuant to O.C.G.A. § 9-11-60(h), such that a second action seeking attorney fees against the attorney was precluded. Fortson v. Hardwick, 297 Ga. App. 603, 677 S.E.2d 784 (2009), cert. denied, No. S09C1447, 2009 Ga. LEXIS 407 (Ga. 2009).
Trial court's improper reference to pending motion required vacation.
- Because the trial court erred in finding that the requirements of class certification under O.C.G.A. § 9-11-23 were moot, concluding that there was no merit to the action, the finding was reversed; further, the case was remanded based on the court's failure to satisfy the specific provisions of § 9-11-23(f)(3) and due to an improper reference to a pending motion for attorney fees under O.C.G.A. § 9-15-14 and unspecified potential conflicts of interest. Gay v. B. H. Transfer Co., 287 Ga. App. 610, 652 S.E.2d 200 (2007).
Nondischargeability of attorney fee awards in bankruptcy.
- Judgments a Georgia court entered, which awarded a Chapter 7 debtor's ex-husband $130,561 pursuant to O.C.G.A. § 9-15-14 to reimburse attorney's fees and litigation costs he incurred in a custody dispute because the debtor filed frivolous claims, were nondischargeable under 11 U.S.C.S § 523 because the debt was owed to a former spouse, the debt was incurred in a domestic relations dispute involving the modification of a judgment in a prior divorce case, and the debt arose from an order of a court of record in accordance with Georgia law. Rackley v. Rackley (In re Rackley), 502 Bankr. 615 (Bankr. N.D. Ga. 2013).
Effect with regard to renewal action.
- Trial court did not err in declining to dismiss the Cobb County, Georgia renewal suit for failure to pay costs in the Fulton County, Georgia action because the defendant had not filed a motion for attorney fees in the original Fulton County suit when the plaintiff filed the renewal suit in Cobb County. Jarman v. Jones, 327 Ga. App. 54, 755 S.E.2d 325 (2014).
Cited in Socolow v. Goodman, 184 Ga. App. 103, 360 S.E.2d 653 (1987); Moore v. Candler Gen. Hosp., 185 Ga. App. 280, 363 S.E.2d 793 (1987); Sackett v. Wilson, 258 Ga. 612, 373 S.E.2d 10 (1988); Southern Ins. Underwriters, Inc. v. Ray, 188 Ga. App. 469, 373 S.E.2d 236 (1988); EVI Equip., Inc. v. Northern Ins. Co., 188 Ga. App. 818, 374 S.E.2d 788 (1988); Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 377 S.E.2d 901 (1989); Lane v. K-Mart Corp., 190 Ga. App. 113, 378 S.E.2d 136 (1989); Getz Exterminators of Ga., Inc. v. Towe, 193 Ga. App. 268, 387 S.E.2d 338 (1989); Bouchard v. Fowler, 193 Ga. App. 697, 388 S.E.2d 874 (1989); Coker v. Mosley, 387 Ga. 135, 387 S.E.2d 135 (1990); Abrahamsen v. McDonald's Corp., 197 Ga. App. 624, 398 S.E.2d 861 (1990); Oran v. Canada Life Assurance Co., 194 Ga. App. 518, 390 S.E.2d 879 (1990); Colquitt v. Network Rental, Inc., 195 Ga. App. 244, 393 S.E.2d 28 (1990); Madden v. Bellew, 195 Ga. App. 131, 393 S.E.2d 31 (1990); Candler v. Wickes Lumber Co., 195 Ga. App. 239, 393 S.E.2d 99 (1990); Stone v. King, 196 Ga. App. 251, 396 S.E.2d 45 (1990); Jones v. Bienert, 197 Ga. App. 554, 398 S.E.2d 830 (1990); Bedford, Kirschner & Venker v. Goodman, 197 Ga. App. 858, 399 S.E.2d 723 (1990); McCorkle v. Bignault, 260 Ga. 758, 399 S.E.2d 916 (1991); Souder v. Webb, 198 Ga. App. 419, 401 S.E.2d 630 (1991); Watkins v. M & M Clays, Inc., 199 Ga. App. 54, 404 S.E.2d 141 (1991); Remler v. Shiver, 200 Ga. App. 391, 408 S.E.2d 139 (1991); Rolleston v. Munford, 201 Ga. App. 219, 410 S.E.2d 801 (1991); Hill v. All Seasons Florist, Inc., 201 Ga. App. 870, 412 S.E.2d 619 (1991); S. Hammond Story Agency, Inc. v. Baer, 202 Ga. App. 281, 414 S.E.2d 287 (1991); Adams v. Moffatt, 204 Ga. App. 314, 419 S.E.2d 318 (1992); All South Mini Storage #2, Ltd. v. Woodcon Constr. Servs., 205 Ga. App. 393, 422 S.E.2d 282 (1992); Jones v. Fulton County, 207 Ga. App. 397, 427 S.E.2d 802 (1993); Keeler v. Keeler, 263 Ga. 151, 430 S.E.2d 5 (1993); Dills v. Bohannon, 208 Ga. App. 531, 431 S.E.2d 123 (1993); In re Farmer, 212 Ga. App. 372, 442 S.E.2d 251 (1994); MacDougald v. Phillips, 213 Ga. App. 575, 445 S.E.2d 357 (1994); Deavours v. Hog Mt. Creations, Ins., 213 Ga. App. 337, 445 S.E.2d 579 (1994); McLain Bldg. Materials, Inc. v. Hicks, 215 Ga. App. 1, 449 S.E.2d 369 (1994); Sacha v. Coffee Butler Serv., Inc., 215 Ga. App. 280, 450 S.E.2d 704 (1994); Cobb County Sch. Dist. v. MAT Factory, Inc., 215 Ga. App. 697, 452 S.E.2d 140 (1994); Moore v. Dixon, 264 Ga. 797, 452 S.E.2d 484 (1994); Department of Transp. v. Hardaway Co., 216 Ga. App. 262, 454 S.E.2d 167 (1995); Bass v. Pearson, 219 Ga. App. 488, 466 S.E.2d 17 (1995); Wrightson v. Wrightson, 266 Ga. 493, 467 S.E.2d 578 (1996); Howard v. Sharpe, 266 Ga. 771, 470 S.E.2d 678 (1996); First Union Nat'l Bank v. Cook, 223 Ga. App. 374, 477 S.E.2d 649 (1996); Campbell v. Department of Cors., 268 Ga. 408, 490 S.E.2d 99 (1997); Sommers v. State Comp. Ins. Fund, 229 Ga. App. 352, 494 S.E.2d 82 (1997); Sellers Bros., Inc. v. Imperial Flowers, Inc., 232 Ga. App. 687, 503 S.E.2d 573 (1998); Great W. Bank v. Southeastern Bank, 234 Ga. App. 420, 507 S.E.2d 191 (1998); Brown v. North Am. Specialty Ins. Co., 235 Ga. App. 299, 508 S.E.2d 741 (1998); In re Carter, 235 Ga. App. 551, 510 S.E.2d 91 (1998); Osofsky v. Board of Mayor & Comm'rs, 237 Ga. App. 404, 515 S.E.2d 413 (1998); Glynn-Brunswick Mem. Hosp. Auth. v. Gibbons, 243 Ga. App. 341, 530 S.E.2d 736 (2000); Greer v. Davis, 244 Ga. App. 317, 534 S.E.2d 853 (2000); Cavin v. Brown, 246 Ga. App. 40, 538 S.E.2d 802 (2000); S & A Indus. v. Bank Atlanta, 247 Ga. App. 377, 543 S.E.2d 743 (2000); Segal v. Dorber, 250 Ga. App. 688, 552 S.E.2d 873 (2001); Evans County Bd. of Comm'rs v. Claxton Enter., 255 Ga. App. 656, 566 S.E.2d 399 (2002); Ellis v. Stanford, 256 Ga. App. 294, 568 S.E.2d 157 (2002); Wehner v. Parris, 258 Ga. App. 772, 574 S.E.2d 921 (2002); Caudell v. Toccoa Inn, Inc., 261 Ga. App. 209, 582 S.E.2d 180 (2003); Cotting v. Cotting, 261 Ga. App. 370, 582 S.E.2d 527 (2003); Sangster v. Dujinski, 264 Ga. App. 213, 590 S.E.2d 202 (2003); Fowler v. Cox, 264 Ga. App. 880, 592 S.E.2d 510 (2003); Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004); Reece v. Smith, 265 Ga. App. 497, 594 S.E.2d 654 (2004); Marlowe v. Colquitt County, 278 Ga. App. 184, 628 S.E.2d 622 (2006); Huffman v. Armenia, 284 Ga. App. 822, 645 S.E.2d 23 (2007); McKesson Corp. v. Green, 286 Ga. App. 110, 648 S.E.2d 457 (2007); Cothran v. Mehosky, 286 Ga. App. 640, 649 S.E.2d 838 (2007); Hendry v. Wells, 286 Ga. App. 774, 650 S.E.2d 338 (2007); Roofers Edge, Inc. v. Std. Bldg. Co., 295 Ga. App. 294, 671 S.E.2d 310 (2008); Mongerson v. Mongerson, 285 Ga. 554, 678 S.E.2d 891 (2009); Simmons v. Simmons, 288 Ga. 670, 706 S.E.2d 456 (2011); Garmon v. State, 317 Ga. App. 634, 732 S.E.2d 289 (2012); Jarvis v. Jarvis, 291 Ga. 818, 733 S.E.2d 747 (2012); Ga. Dep't of Corr. v. Couch, 322 Ga. App. 234, 744 S.E.2d 432 (2013); Canton Plaza, Inc. v. Regions Bank, Inc., 325 Ga. App. 361, 749 S.E.2d 825 (2013); Deal v. Coleman, 294 Ga. 170, 751 S.E.2d 337 (2013); Newton Timber Co., L.L.L.P. v. Monroe County Bd. of Tax Assessors, Ga. , 755 S.E.2d 770 (2014); Sewell v. Cancel, 295 Ga. 235, 759 S.E.2d 485 (2014); Bell v. Waffle House, Inc., 331 Ga. App. 443, 771 S.E.2d 132 (2015); Benedek v. Bd. of Regents of the Univ. Sys. of Ga., 332 Ga. App. 573, 774 S.E.2d 150 (2015); Envision Printing, LLC v. Evans, 336 Ga. App. 635, 786 S.E.2d 250 (2016); Amoakuh v. Issaka, 299 Ga. 132, 786 S.E.2d 678 (2016); Islamkhan v. Khan, 299 Ga. 548, 787 S.E.2d 731 (2016); Cohen v. Rogers, 338 Ga. App. 156, 789 S.E.2d 352 (2016); Rollins v. Rollins, 300 Ga. 485, 796 S.E.2d 721 (2017); Mondy v. Magnolia Advanced Materials, Inc., 341 Ga. App. 141, 797 S.E.2d 506 (2017), aff'd, 815 S.E.2d 70, 2018 Ga. LEXIS 403 (Ga. 2018); Rocker v. First Bank of Dalton, 343 Ga. App. 501, 806 S.E.2d 884 (2017); U-Haul Co. of Arizona v. Rutland, 348 Ga. App. 738, 824 S.E.2d 644 (2019); U-Haul Co. v. Rutland, 348 Ga. App. 738, 824 S.E.2d 644 (2019); Dovel v. Dovel, 352 Ga. App. 423, 834 S.E.2d 918 (2019); Tyner v. Edge, 355 Ga. App. 196, 843 S.E.2d 632 (2020); Brooks v. Hayden, 355 Ga. App. 171, 843 S.E.2d 594 (2020); Spirnak v. Meadows, Ga. App. , 844 S.E.2d 482 (2020); Odion v. Avesis, Inc., 355 Ga. App. 598, 845 S.E.2d 335 (2020).
Procedure
Reservation of issue of attorney's fees required.
- When a party enters into an agreement that by its express language settles all issues raised in a case, that party may no longer maintain an action for attorney's fees. Waters v. Waters, 242 Ga. App. 588, 530 S.E.2d 482 (2000).
Strict compliance required.
- Award of attorney's fees and expenses was vacated since the defendants did not assert the defendants' demand for fees and expenses under O.C.G.A. § 9-15-14 by motion, as is required, but asserted the defendants' demand in the defendants' answer to the plaintiff's complaint. Glass v. Glover, 241 Ga. App. 838, 528 S.E.2d 262 (2000).
Because the superior court's order awarding attorney fees to a party under O.C.G.A. § 9-15-14 failed to include the necessary findings of fact to support the award, specifically identifying the conduct upon which the award was made, the award was vacated. Thus, on remand, if the court determined that fees were warranted, the court should make express findings of fact and conclusions of law as to the statutory basis for the fee award. Panhandle Fire Prot., Inc. v. Batson Cook Co., 288 Ga. App. 194, 653 S.E.2d 802 (2007).
Since the trial court lacked jurisdiction to decide a lessee's motion for clarification as an out-of-term motion to reconsider the original order and such was insufficient to extend the time to file timely a notice of appeal as to such order, the appeals court lacked jurisdiction to consider the appeal; thus, the trial court's clarification order declaring the court's original order granting summary judgment to the lessee on the lessee's specific performance claim, but denying the lessee's breach of contract and attorney-fee claim, and denying the lessor's motion for partial summary judgment on the lessor's claim for reasonable rents was vacated. Masters v. Clark, 269 Ga. App. 537, 604 S.E.2d 556 (2004), appeal dismissed, Clark v. Masters, 297 Ga. App. 794, 678 S.E.2d 538 (2009).
Denial of a wife's alleged claim for attorney fees in a divorce action was upheld on appeal when the wife's sole request for attorney fees came within a motion for contempt the wife filed against the husband and strict compliance with O.C.G.A. § 9-15-14(e) required a claim for attorney fees to be made by motion. Jackson v. Jackson, 282 Ga. 459, 651 S.E.2d 92 (2007).
Timing of request for attorney fees.
- When a trial court grants judgment for a defendant on one count of a multi-count complaint and expressly directs entry of a final judgment under O.C.G.A. § 9-11-54(b), the defendant must move for attorney's fees relating to that claim within 45 days of the judgment. Little v. GMC, 229 Ga. App. 781, 495 S.E.2d 572 (1998).
Voluntary dismissal without prejudice was not a "final termination" of the case and so the 45-day "window of opportunity" for moving for penalties and attorney's fees pursuant to O.C.G.A. § 9-15-14 did not begin to run with the plaintiff's voluntary dismissal of the plaintiff's complaint without prejudice and the plaintiff's motion for penalties and attorney's fees was timely; however, the award of attorney's fees was vacated and the case was remanded since the trial court's judgment contained no findings of conduct that authorized the award. Meister v. Brock, 268 Ga. App. 849, 602 S.E.2d 867 (2004).
As real property contestants failed to file a request for attorney fees pursuant to O.C.G.A. § 9-15-14 within 45 days following a trial court's final disposition in a real property proceeding, the trial court erred in granting the contestants' request because the court lacked jurisdiction to consider the motion; the time for filing the motion began to run when judgment was entered under O.C.G.A. § 5-6-31, and the time when a civil disposition form was filed under O.C.G.A. § 9-11-58(b) had no effect on the timing for purposes of the motion. Horesh v. DeKinder, 295 Ga. App. 826, 673 S.E.2d 311 (2009).
Ex-wife's motion for attorney fees was timely filed because the ex-husband continued to file motions after the September 12 order was entered; on January 16, 2015, the trial court entered an order granting, in part, the husband's motion to set aside, which resolved all pending issues and thus was the final disposition; and the wife's motion filed in November 2014, prior to the trial court's final order on January 16, 2015, was timely as O.C.G.A. § 9-15-14 permitted attorney fees when the motion was filed at any time during the course of the action but not later than 45 days after the final disposition. Kim v. Han, 339 Ga. App. 886, 795 S.E.2d 191 (2016).
Request for attorney's fees proper.
- Party properly moved for an award of attorney's fees under O.C.G.A. § 9-15-14 since the party had not induced the plaintiffs' dismissal of the complaint against the party which was entered incidental to a settlement of the underlying dispute between the plaintiffs and the party's codefendant, and the party's dismissal of the counterclaim without prejudice did not affect the party's rights under that section since the dismissal was not a condition of the plaintiffs' dismissal with prejudice of the plaintiff's claim against the party. Forest Lakes Home Owners Ass'n v. Green Indus., Inc., 218 Ga. App. 890, 463 S.E.2d 723 (1995).
Trial court did not err in granting attorney's fees under O.C.G.A. § 9-15-14(a) since the defendant co-tenant could not defeat partition on the ground that the co-tenant seeking partition acquired an interest illegally from a third person who was not a party to the case. Reece v. Smith, 276 Ga. 404, 577 S.E.2d 583 (2003).
Section pertains only to actions brought in state courts.
- O.C.G.A. § 9-15-14 only pertains to actions brought "in any court of record of this state." Union Carbide Corp. v. Tarancon Corp., 682 F. Supp. 535 (N.D. Ga. 1988).
Abusive litigation counterclaim under Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), like a claim brought under O.C.G.A. § 9-15-14, may not be brought in federal court but, rather, must be limited to actions brought in the state courts of Georgia. Union Carbide Corp. v. Tarancon Corp., 682 F. Supp. 535 (N.D. Ga. 1988).
Given the preference under Georgia law for jury resolution of a claim for fees under O.C.G.A. § 13-6-11, and the open question of whether a jury would award damages to the plaintiff on the plaintiff's breach of contract claim, the defendants' motion for summary judgment on the plaintiff's claim for fees was denied. However, summary judgment was granted in favor of the defendants on the plaintiff's claim for fees under O.C.G.A. § 9-15-14 as that provision was not available to civil litigants in federal court. Jackson v. JHD Dental, LLC, F. Supp. 2d (N.D. Ga. June 14, 2011).
Strategic lawsuits against public participation.
- There is no requirement that a party first seek to invoke O.C.G.A. § 9-15-14 or O.C.G.A. § 51-7-80 before seeking the protections of O.C.G.A. § 9-11-11.1. Hagemann v. City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008).
Necessary evidence demonstrating fee.
- Trial court did not err in granting attorney's fees under subsection (b) of O.C.G.A. § 9-15-14 upon finding that the plaintiff unnecessarily expanded the proceedings by improper conduct; however, ordering an award without conducting a hearing and without important evidence, such as billing records, constituted an abuse of discretion. Hallman v. Emory Univ., 225 Ga. App. 247, 483 S.E.2d 362 (1997).
Attorney fee awarded under O.C.G.A. § 9-15-14 was vacated and the case was remanded as the trial court was ordered to sufficiently determine whether additional facts adduced after the denial of the prevailing party's motion for summary judgment authorized the attorney's fee award. Johnston v. Correale, 285 Ga. App. 870, 648 S.E.2d 180 (2007).
In a child custody matter, a trial court erred in awarding a mother attorney's fees as sanctions under O.C.G.A. § 9-15-14(b) by failing to make findings sufficient to support such an award. Longe v. Fleming, 318 Ga. App. 258, 733 S.E.2d 792 (2012).
In a child visitation dispute, the trial court did not abuse the court's discretion in awarding a father attorney's fees under O.C.G.A. § 9-15-14 because the mother used a motion for contempt to unnecessarily expand what was otherwise an honest disagreement over an ambiguity in the custody order as to which airports could be used to exchange the child after visitation; however, the trial court did err in awarding the amount of $2,832.50 based solely on unsupported assertions made in the briefs. Bankston v. Warbington, 319 Ga. App. 821, 738 S.E.2d 656 (2013).
Awarding to the ex-wife a lump sum attorney fee of $30,000 under O.C.G.A. § 9-15-14 was vacated as the trial court's unapportioned award was improper since the court failed to detail the amounts allegedly excluded and the billing records submitted by the ex-wife's counsel after remand did not delineate or apportion the fees to exclude the amounts related to the litigation of the claims that were reversed in a prior appeal. Sponsler v. Sponsler, 353 Ga. App. 627, 838 S.E.2d 921 (2020).
Findings by court must support award.
- Trial court's order did not contain findings sufficient to award attorney's fees; thus, the portion of the trial court's order awarding attorney's fees in the contempt action the tenant filed against the landlord had to be vacated and the case had to be remanded to determine if an appropriate award could be made. H. J. Russell & Co. v. Manuel, 264 Ga. App. 273, 590 S.E.2d 250 (2003).
Trial court may assess attorney's fees upon the court's own motion but when the court does so under O.C.G.A. § 9-15-14, it is incumbent upon the trial court to specify the conduct upon which the award is made; when a judgment for attorney fees was devoid of such findings, the judgment was vacated and the case was remanded for reconsideration. Mize v. Regions Bank, 265 Ga. App. 635, 595 S.E.2d 324 (2004).
Trial court erred in awarding attorney fees under O.C.G.A. § 9-15-14 without making any findings in support of the award. Robinson v. Williams, 280 Ga. 877, 635 S.E.2d 120 (2006).
Because the trial court failed to make findings sufficient to support an attorney's fee award under either O.C.G.A. § 19-6-2 or O.C.G.A. § 9-15-14(b), this issue had to be remanded for an explanation of the statutory basis for the award and any findings necessary to support the award. Cason v. Cason, 281 Ga. 296, 637 S.E.2d 716 (2006).
Trial court's orders concerning an award under O.C.G.A. § 9-15-14(a) or (b) did not contain the findings necessary to support such an award; neither the original application or the trial court's orders on the subjects mentioned the statute and the trial court concluded only that a motion was filed without justification, that a hearing confirmed its lack of merit, and that an award would fairly compensate the nonmoving party. Interfinancial Midtown, Inc. v. Choate Constr. Co., 284 Ga. App. 747, 644 S.E.2d 281 (2007).
In a divorce case, an award of attorney fees to the wife had to be reversed because the trial court had not specified whether the court was awarding fees under O.C.G.A. § 19-6-2 or O.C.G.A. § 9-15-14 and had not made any findings in support of the court's award. Leggette v. Leggette, 284 Ga. 432, 668 S.E.2d 251 (2008).
Trial court stated that the court was awarding attorney fees and expenses under O.C.G.A. § 9-15-14 against an intervenor in a bond validation proceeding because the intervention was brought for an improper purpose, to extort money from developers. However, the trial court failed to make findings supporting the court's award, requiring remand. Citizens for Ethics in Gov't, LLC v. Atlanta Dev. Auth., 303 Ga. App. 724, 694 S.E.2d 680 (2010), cert. denied, No. S10C1350, 2010 Ga. LEXIS 722 (Ga. 2010).
Award of attorney's fees to a party in a partition action was not authorized under O.C.G.A. § 9-15-14 because the trial court did not make any findings of conduct authorizing an award under that section as required. O'Connor v. Bielski, 288 Ga. 81, 701 S.E.2d 856 (2010).
Trial court erred in awarding a husband attorney fees because the court merely ordered the wife to pay attorney fees to the husband without findings of fact and without any cogent evidence of the work performed by the husband's counsel and the nature thereof. Holloway v. Holloway, 288 Ga. 147, 702 S.E.2d 132 (2010).
Trial court did not abuse the court's discretion by awarding attorney fees under O.C.G.A. § 9-14-15(b), but the trial court's order failed to show how the court apportioned the award to fees generated based solely on the employee's sanctionable behavior. Remand was required for fact finding on this issue. Trotman v. Velociteach Project Mgmt., LLC, 311 Ga. App. 208, 715 S.E.2d 449 (2011), cert. denied, No. S11C1920, 2012 Ga. LEXIS 66 (Ga. 2012).
Trial court erred in awarding the unit owners attorney fees and costs under O.C.G.A. § 9-15-14 as the trial court did not make findings of fact or findings as to conduct authorizing the award. Dan J. Sheehan Co. v. Fairlawn on Jones Homeowners Ass'n, 312 Ga. App. 787, 720 S.E.2d 259 (2011).
Trial court's order failed to make express findings of fact or conclusions of law as to the statutory basis for the court's award of attorney fees to the owner's counsel, and the trial court's order failed to even specify whether the attorney fees were awarded under O.C.G.A. § 9-15-14 at all, much less which subsection of the statute supports the award. As a result, the award of attorney fees was vacated, and the matter was remanded to the trial court for reconsideration of the grant of attorney fees and for the trial court to make express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which authorized the award. Woods v. Hall, 315 Ga. App. 93, 726 S.E.2d 596 (2012).
Trial court did not abuse the court's discretion by awarding fees under O.C.G.A. § 9-15-14 to the defendant based on the frivolous nature of the plaintiff's lawsuit but because the order did not indicate how the trial court apportioned the court's award to fees generated based on the plaintiff's sanctionable conduct, a remand was required. Fedina v. Larichev, 322 Ga. App. 76, 744 S.E.2d 72 (2013).
Trial court erred in failing to specify the statutory grounds upon which the court awarded attorney fees or to make findings of fact specifying the conduct upon which the award was based. Ware v. Am. Recovery Solution Servs., 324 Ga. App. 187, 749 S.E.2d 775 (2013).
Order awarding attorney fees was vacated because the trial court had to reconsider whether the law firm engaged in sanctionable conduct, whether the client's action lacked substantial justification, whether attorney's fees should be awarded under O.C.G.A. § 9-15-14, and for appropriate fact-finding as to the amount, if any, to be assessed. Gibson Law Firm, LLC v. Miller Built Homes, Inc., 327 Ga. App. 688, 761 S.E.2d 95 (2014).
Trial court order awarding attorney fees to a firefighter terminated from employment was vacated because the trial court's order failed to show the complex decision making process necessarily involved in reaching a particular dollar figure and failed to articulate why the amount awarded was $111,590 as opposed to any other amount. City of Albany v. Pait, 335 Ga. App. 215, 780 S.E.2d 103 (2015), cert. denied, No. S16C0634, 2016 Ga. LEXIS 320 (Ga. 2016).
In a post-divorce proceeding, the trial court erred to the extent that the court awarded attorney fees to the ex-wife under O.C.G.A. § 9-4-9 and to the extent that the court's award was procedurally improper under O.C.G.A. § 9-15-14(a) in that the court did not make express findings specifying the abusive conduct for which the award was made. Belcher v. Belcher, 298 Ga. 333, 782 S.E.2d 2 (2016).
Trial court erred in awarding attorney fees under O.C.G.A. § 9-15-14(b) without including any factual findings to underlay the court's conclusion that the ex-husband caused unreasonable delay. Moore v. Hullander, 345 Ga. App. 568, 814 S.E.2d 423 (2018).
In a contempt case arising out of violations of a non-competition order, the trial court's award of attorney fees against the former employee failed to specify the conduct upon which the award was made under O.C.G.A. § 9-15-14(a) or (b), requiring remand; additionally, the trial court awarded the full amount of attorney fees requested, although the employee had prevailed on only two of the claims of contempt. Bailey v. Maner Builders Supply Co., LLC, 348 Ga. App. 882, 825 S.E.2d 377 (2019).
Although the trial court correctly noted that the court was awarding attorney fees under O.C.G.A. § 9-15-14(a), the award was vacated because the court failed to articulate any findings of fact or conclusions of law in support of such an award. Garrett v. Dep't of Human Servs., 355 Ga. App. 714, 845 S.E.2d 742 (2020).
Trial court erred in awarding attorney fees under O.C.G.A. § 9-15-14 without specifying any sanctionable conduct or determining the reasonableness of such fees as a mere five-line ruling failed to make express findings of fact or conclusions of law as to the basis for such award. Lynch v. Lynch, 351 Ga. App. 160, 828 S.E.2d 460 (2019), cert. denied, No. S20C0034, 2020 Ga. LEXIS 191 (Ga. 2020).
Failure to make required findings.
- In a contempt action arising out of a custody dispute, the trial court erred in failing to make findings sufficient to support the award of attorney fees to the ex-wife under O.C.G.A. § 9-15-14(b) or O.C.G.A. § 19-6-2 and, thus, remand for an explanation of the statutory basis for the award and any findings necessary to support the award was required. Cole v. Cole, 333 Ga. App. 753, 777 S.E.2d 39 (2015).
In a child custody proceeding, the trial court erred by awarding fees pursuant to O.C.G.A. § 9-15-14 without holding a hearing to make the necessary findings. Dingle v. Carter, 350 Ga. App. 255, 829 S.E.2d 604 (2019).
Failure to specify basis for award.
- Trial court erred in awarding attorney fees without specifying a statutory or factual basis for the award as there were two plausible statutory bases for the award, O.C.G.A. § 9-15-14 or O.C.G.A. § 19-6-15, and the record contained no statement regarding the amount attributable to the pursuit or defense of claims for which attorney fees were recoverable or how the trial court calculated the court's award, which was less than requested. Hall v. Hall, 335 Ga. App. 208, 780 S.E.2d 787 (2015).
Findings in order awarding attorney fees not clear.
- Award of attorney fees to a mother in a child custody and support proceeding was vacated because although in the modification order the trial court made references to factors that indicate that the award was being made under O.C.G.A. § 9-15-14(b) due to sanctionable conduct, the trial court also referred to the relative financial position of the parties, which would indicate the award was being made under O.C.G..A § 19-6-2; thus, further proceedings on the issue of attorney fees was required. Wilson v. Guerrero, 353 Ga. App. 501, 838 S.E.2d 588 (2020).
Failure to specify subsection award was based on was not fatal.
- While the trial court's order failed to specify which subsection of O.C.G.A. § 9-15-14 the court's order of attorney fees was made, that error was not fatal as the trial court's findings substantially tracked § 9-15-14(a). Williams v. Warren, 322 Ga. App. 599, 745 S.E.2d 809 (2013).
Failure to indicate who was required to pay.
- Order awarding the father attorney fees had to be vacated because the order failed to indicate whether the mother, or the mother's then-attorney, or both were required to pay the award. Long v. Truex, 349 Ga. App. 875, 827 S.E.2d 66 (2019).
Statute not focused on pre-litigation activities.
- Focus of subsections (a) and (b) of O.C.G.A. § 9-15-14 is upon the actions that may be undertaken in connection with the underlying legal proceedings and not upon any pre-litigation actions of one who eventually becomes a party to a civil action. Cobb County v. Sevani, 196 Ga. App. 247, 395 S.E.2d 572, cert. denied, 196 Ga. App. 907, 395 S.E.2d 572 (1990).
Superior court erred in relying upon a condemnor's pre-acquisition activities as authorizing an award of attorney's fees to the condemnee since the condemnor's legal right to condemn the condemnee's property was never challenged in the superior court and the factual issue of "just and adequate compensation" was resolved by the jury, and not by the superior court. Cobb County v. Sevani, 196 Ga. App. 247, 395 S.E.2d 572, cert. denied, 196 Ga. App. 907, 395 S.E.2d 572 (1990).
Motion filed after verdict but before entry of judgment.
- Motion for litigation costs and attorney's fees filed the day after the jury returned the jury's verdict, but before the entry of judgment, was not filed 45 days "after the final disposition of the action" as required by subsection (e) of O.C.G.A. § 9-15-14 and the trial court was without jurisdiction to consider the motion. Marshall v. Ricmar, Inc., 215 Ga. App. 470, 451 S.E.2d 515 (1994).
Forty-five days to move for imposition of attorney's fees.
- Court rejected an appellant's argument that the trial court lacked jurisdiction to render an attorney fee award after the appellant voluntarily dismissed the appellant's lawsuit. O.C.G.A. § 9-15-14(e) authorized a party to move for attorney fees up to 45 days after the final disposition of the action. Hart v. Redmond Reg'l Med. Ctr., 300 Ga. App. 641, 686 S.E.2d 130 (2009).
Request must be at end of legal proceedings.
- Since a motion under O.C.G.A. § 9-15-14 for attorney's fees is the prevailing party's final request in a concluded legal proceeding, a request for attorney's fees contained in a party's initial pleading whereby a legal proceeding is commenced, such as a motion by contempt for violating a custody order, obviously does not qualify. In re M.A.K., 202 Ga. App. 342, 414 S.E.2d 288 (1991).
Post-verdict oral request converted request for fees in counterclaim to motion.
- In a civil suit involving the title of real property, a trial court erred by denying the prevailing parties' oral post-verdict request for an award of attorney fees under O.C.G.A. § 9-15-14(a) as such oral request converted the original request made in a counterclaim to a motion and the opposing party had the opportunity to be heard and argue against the award. Nesbit v. Nesbit, 295 Ga. App. 763, 673 S.E.2d 272 (2009).
Liability for fees following withdrawal.
- Attorneys could not be liable for fees incurred in post-judgment collection as the attorneys had withdrawn long before that phase of the litigation. Harkleroad v. Stringer, 231 Ga. App. 464, 499 S.E.2d 379 (1998).
Notice required.- Proceeding to impose attorney's fees, like any other judicial proceeding, requires proper notice. Green v. Sheppard, 173 Bankr. 799 (Bankr. N.D. Ga. 1994).
Party received sufficient notice.
- Birth mother received sufficient notice that the court was considering imposing attorney fees and litigation expenses against the birth mother as the adoptive mother specifically sought such fees in a motion to enforce the parties' mediated custody agreement and the court, in the court's final order on child support, stated that the court was reserving for later the issue of fees which may be awarded. Butler v. Lee, 336 Ga. App. 102, 783 S.E.2d 704 (2016).
Failure to give notice attorney fees were being considered.
- Trial court erred when the court considered the issue of liability for attorney fees without providing notice that the court was considering an award under O.C.G.A. § 9-15-14 or a hearing on that issue. Barbour v. Sangha, 346 Ga. App. 13, 815 S.E.2d 228 (2018).
Hearing required.
- Party opposing a claim for attorney's fees has a basic right to confront and challenge testimony as to the value and need for services; thus, when an attorney who was ordered to pay attorney's fees was not afforded such an opportunity, the judgment was reversed and remanded for an evidentiary hearing. C.A. Gaslowitz & Assocs. v. ZML Promenade, 230 Ga. App. 405, 496 S.E.2d 470 (1998); Rowan v. Reuss, 246 Ga. App. 139, 539 S.E.2d 241 (2000); Green v. McCart, 273 Ga. 862, 548 S.E.2d 303 (2001).
Remand was required when the trial court awarded a defendant attorney fees under O.C.G.A. § 9-15-14 without a hearing. The trial court's finding that the lawsuit lacked substantial justification was insufficient to support the award; moreover, a hearing was required to enter an award of attorney fees. Note Purchase Co. of Ga., LLC v. Brenda Lee Strickland Realty, Inc., 288 Ga. App. 594, 654 S.E.2d 393 (2007).
When the plaintiff, in the plaintiff's response to the defendant's motion for attorney's fees, specifically objected to the assertions of defendant's counsel regarding defense counsel's calculation of fees, the plaintiff's timely objection was sufficient to preclude a waiver by conduct of the right to an evidentiary hearing, and the trial court erred in entering judgment for the defendants as to the fees without providing the plaintiff an opportunity to confront and challenge the evidence. Munoz v. American Lawyer Media, 236 Ga. App. 462, 512 S.E.2d 347 (1999).
Trial court lacked the power or authority under subsections (d) and (f) of O.C.G.A. § 9-15-14 to make an award without a hearing and evidence as to what reasonable attorney's fees were directly caused by the defendant's improper conduct. Herringdine v. Nalley Equip. Leasing, Ltd., 238 Ga. App. 210, 517 S.E.2d 571 (1999).
Appellant contended that the trial court erred by granting the appellee's motion for attorney's fees under O.C.G.A. § 9-15-14 without conducting a hearing. Although there was no abuse of discretion in the award of attorney's fees, because the appellant persisted in pursuing this action while knowing that the appellant had not obtained personal service on the appellees (see Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527, 360 S.E.2d 566 (1987)), a hearing was required under O.C.G.A. § 9-15-14 on the amount of the award. Sawyer v. Sawyer, 253 Ga. App. 619, 560 S.E.2d 86 (2002).
Award of attorney's fees in a contract case was vacated since the trial court neither conducted a hearing nor included in the order any findings of fact supporting the award; since at least part of the suit may have lacked justification based on a bankruptcy court's determination that the contract sued on was unenforceable, a reversal of the award was unwarranted. MacDonald v. Harris, 266 Ga. App. 287, 597 S.E.2d 125 (2004).
Award of attorney fees under O.C.G.A. § 9-15-14(b) was reversible error because no hearing had been held. Slone v. Myers, 288 Ga. App. 8, 653 S.E.2d 323 (2007), cert. denied, 555 U.S. 881, 129 S. Ct. 196, 172 L. Ed. 2d 140 (2008).
Trial court's assessment of attorney's fees against an attorney who represented a client in an action against a magistrate judge for alleged violations of the client's civil rights was improper because the trial court failed to provide the attorney with notice that the trial court was contemplating the award of attorney fees and did not afford the attorney a hearing where the attorney could challenge the basis upon which the attorney fees were awarded. Wall v. Thurman, 283 Ga. 533, 661 S.E.2d 549 (2008).
Because O.C.G.A. § 9-11-68 did not apply as the statute became effective during the pendency of the litigation, because the trial court failed to include specific findings of fact to support an award of attorney's fees and costs of litigation under O.C.G.A. § 9-15-14, and because neither the first driver nor the first driver's attorney were afforded an opportunity to be heard before sanctions were imposed, the trial court erred in awarding the second driver attorney's fees and costs of litigation. Olarsch v. Newell, 295 Ga. App. 210, 671 S.E.2d 253 (2008).
Trial court erred in awarding a county water authority attorney fees pursuant to O.C.G.A. § 9-15-14 because the trial court failed to hold a required hearing on the motion for attorney fees, to identify the statutory basis under either § 9-15-14(a) or (b) for the award, and to include the requisite findings of conduct that authorize the award. Meacham v. Franklin-Heard County Water Auth., 302 Ga. App. 69, 690 S.E.2d 186 (2009), cert. denied, No. S10C0865, 2010 Ga. LEXIS 427 (Ga. 2010).
Trial court erred in awarding a debtor attorney's fees and expenses under O.C.G.A. § 9-15-14 without holding a hearing on the debtor's motion, allowing the creditor 30 days in which to file a response as required under Ga. Unif. Super. Ct. R. 6.2, and in failing to make findings of fact or explain the statutory basis for the court's award of fees. Unifund CCR Partners v. Mehrlander, 309 Ga. App. 685, 710 S.E.2d 882 (2011).
In a child support modification case, an award of $25,000 attorney fees to the mother under O.C.G.A. § 9-15-14 was improper because the trial court failed to hold an evidentiary hearing and to make the findings required for an award under that statute; if the mother also failed to respond to discovery, an award in the father's favor was proper. Williams v. Becker, 294 Ga. 411, 754 S.E.2d 11 (2014).
Trial court erred by failing to consider a father's motion for attorney's fees and costs because the father requested the same in writing and the trial court had held that a number of the mother's post-trial motions were frivolous and vexatious, but did not mention or rule on the father's longstanding request for fees and costs incurred up to and including trial. Bankston v. Warbington, 332 Ga. App. 29, 771 S.E.2d 726 (2015).
In a child custody and support contempt proceeding, the trial court did not err in finding the mother in contempt but erred in awarding the father attorney's fees under O.C.G.A. § 9-15-14 without holding a hearing regarding reasonable and necessary fees, and erred in awarding fees under O.C.G.A. § 19-6-2, because that section applied only to cases of divorce and alimony. Dingle v. Carter, 350 Ga. App. 255, 829 S.E.2d 604 (2019).
Refusal to permit expert testimony reversible error.
- Since the trial court refused to permit expert testimony that would have corroborated an attorney's belief that the attorney's client was insolvent and unbondable, thereby negating a finding of bad faith, this exclusion of evidence critical to the defense was reversible error. Northen v. Mary Anne Frolick & Assocs., 236 Ga. App. 7, 510 S.E.2d 857 (1999).
Affidavits in opposition.
- When affidavits submitted by the plaintiff in opposition to a motion for attorney's fees contained no citation to legal authority, but merely expressed opinions and legal conclusions regarding the lack of frivolity of the plaintiff's complaint, the affidavits were immaterial. Munoz v. American Lawyer Media, 236 Ga. App. 462, 512 S.E.2d 347 (1999).
Affidavits offerred in support of motion.
- Decision to consider a late-filed affidavit offered in support of a motion for attorney fees under O.C.G.A. § 9-15-14 lies within the sound discretion of the trial court. It does not render the motion void ab initio. Note Purchase Co. of Ga., LLC v. Brenda Lee Strickland Realty, Inc., 288 Ga. App. 594, 654 S.E.2d 393 (2007).
Time limitations.
- An award of attorney's fees under O.C.G.A. § 9-15-14 that was not completed within the time limitations of O.C.G.A. § 34-9-105(b) was a nullity, since, once the time limitation had run, the court was without subject matter jurisdiction. Taylor Timber Co. v. Baker, 226 Ga. App. 211, 485 S.E.2d 819 (1997); Brassfield & Gorrie v. Ogletree, 241 Ga. App. 56, 526 S.E.2d 103 (1999).
Defendant's motion for attorney's fees and expenses was untimely since the motion was not filed until 421 days after final judgment, notwithstanding that the motion was filed within 45 days of the denial of certiorari by the Supreme Court, since an appeal does not extend the time for such a motion. Hewitt v. Walker, 234 Ga. App. 78, 506 S.E.2d 215 (1998).
Litigation expenses and attorney's fees cannot be awarded until claimant has prevailed on the claimant's underlying abusive litigation claim. Williams v. Clark-Atlanta Univ., Inc., 200 Ga. App. 51, 406 S.E.2d 559 (1991).
Claim for abusive litigation and attorney's fees could not be maintained until underlying litigation had concluded. McCullough v. McCullough, 263 Ga. 794, 439 S.E.2d 486 (1994).
"Final disposition of the action," as used in subsection (e) of O.C.G.A. § 9-15-14, means the entry of the final judgment, not the final decision in the case on appeal. Fairburn Banking Co. v. Gafford, 263 Ga. 792, 439 S.E.2d 482 (1994).
The 45-day period for filing a motion for sanctions commenced with entry of the dismissal of an action, which was a final judgment under O.C.G.A. § 5-6-34, and a motion to set aside did not extend that deadline. Gist v. DeKalb Tire Co., 223 Ga. App. 397, 477 S.E.2d 616 (1996).
Attorney's fees not waived by failure to include in pretrial order.
- Defendant did not waive the issue of attorney's fees by failing to include the issue in the parties' pretrial order under O.C.G.A. § 9-11-16, because a motion for attorney's fees under O.C.G.A. § 9-15-14 could be, according to the language of the statute, made at any time during the action but not later than 45 days after judgment. McClure v. McCurry, 329 Ga. App. 342, 765 S.E.2d 30 (2014).
Request for fees was to be by motion, not as a counterclaim.
- Superior court correctly held that a claim for attorney's fees and litigation costs under O.C.G.A. § 9-15-14 must be made by motion, not by answer or counterclaim. Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003).
Request for attorney fees set forth in a counterclaim pleading was not properly construed as an O.C.G.A. § 9-15-14 motion because a trial court could not entertain a § 9-15-14 request asserted only in the form of a counterclaim. Hagemann v. City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008).
Award of attorney's fees for improper conduct, not as offsets to child support and fees.
- Fees under O.C.G.A. § 9-15-14(b) may be awarded in any civil action; consequently, the fees awarded pursuant to O.C.G.A. § 9-15-14(b) are not subject to offset for amounts paid as temporary support and attorney fees. Vakharwala v. Vakharwala, 301 Ga. 251, 799 S.E.2d 797 (2017).
Trial court's order must include findings of conduct that authorize award under O.C.G.A. § 9-15-14, or the order must be vacated. Porter v. Felker, 261 Ga. 421, 405 S.E.2d 31 (1991); Bill Parker & Assocs. v. Rahr, 216 Ga. App. 838, 456 S.E.2d 221 (1995); Katz v. Harris, 217 Ga. App. 287, 457 S.E.2d 239 (1995); Aycock v. RE/MAX of Ga., Inc., 221 Ga. App. 587, 472 S.E.2d 137 (1996); Morris v. Morris, 222 Ga. App. 617, 475 S.E.2d 676 (1996); Shimshi v. A.G. Spanos Dev., Inc., 228 Ga. App. 669, 492 S.E.2d 531 (1997); Newman v. Filsoof, 224 Ga. App. 461, 481 S.E.2d 4 (1997); Nuckols v. Nuckols, 226 Ga. App. 194, 486 S.E.2d 194 (1997); City of Cumming v. Realty Dev. Corp., 268 Ga. 461, 491 S.E.2d 60 (1997); Boomershine Pontiac-GMC Truck, Inc. v. Snapp, 232 Ga. App. 850, 503 S.E.2d 90 (1998); La Petite Academy, Inc. v. Prescott, 234 Ga. App. 32, 506 S.E.2d 183 (1998).
When a judgment awards legal fees or expenses of litigation under O.C.G.A. § 9-15-14, but contains no findings by the trial court or conduct that would authorize the award, that portion of the judgment must be vacated. Wyatt v. Hertz Claim Mgt. Corp., 236 Ga. App. 292, 511 S.E.2d 630 (1999).
Attorney fees award against purchasers under O.C.G.A. § 9-15-14 was not supported by sufficient findings in a processioning action; further, the trial court did not distinguish which part of the attorney fees were spent successfully challenging the western boundary line as set by the processioners, and a justiciable issue as to other boundaries was not completely absent. Hall v. Christian Church of Ga., Inc., 280 Ga. App. 721, 634 S.E.2d 793 (2006).
In a divorce action, wherein the trial court incorporated a mediation settlement agreement entered into by the parties, the trial court erred by awarding one party attorney fees and by awarding witness fees to the mediator without explaining the statutory basis for the award and any findings necessary to support the award. Wilson v. Wilson, 282 Ga. 728, 653 S.E.2d 702 (2007).
Reconsideration of an attorney fee award was required because the trial court's order failed to specify under which subsection the award was made and the specific conduct upon which the award was based, and because the evidence as to the actual costs and reasonableness of those costs was lacking. Reynolds v. Clark, 322 Ga. App. 788, 746 S.E.2d 266 (2013).
State court erred in awarding attorney fees without making express findings of fact or conclusions of law as to the statutory basis for the court's award of attorney fees to the sellers. The court's order failed to even specify whether the attorney fees were awarded under O.C.G.A. § 9-15-14 at all, much less which subsection supported the award. Kinsala v. Hair, 324 Ga. App. 1, 747 S.E.2d 887 (2013).
Order awarding attorney fees failed to contain the factual findings that underlay the trial court's conclusions that the plaintiff's action lacked substantial justification and was baseless and frivolous; further, the trial court did not specify whether either award was made pursuant to O.C.G.A. § 9-15-14(a) or (b); therefore, remand was required. McClure v. McCurry, 329 Ga. App. 342, 765 S.E.2d 30 (2014).
State court denial of award binding on bankruptcy court.
- Creditor's motion to amend the creditor's claim for sanctions against the debtor under O.C.G.A. § 9-15-14 to state a claim under O.C.G.A. § 51-7-81 was denied as the amendment was untimely and inequitable, being filed two years after the debtor had been granted a discharge and the time for filing claims had long since passed. In re Fowler, Bankr. (Bankr. N.D. Ga. July 10, 2006).
Bankruptcy court dismissed a partnership's claim seeking an award of attorneys' fees under O.C.G.A. § 9-15-14 because the partnership failed to allege facts which showed that an award of fees was warranted under § 9-15-14. The partnership's claim that a bank was "stubbornly litigious" and caused the partnership "unnecessary trouble and expense" was not supported by specific facts and was insufficient to support a claim for relief under § 9-15-14. SLW Partners, LP v. State Bank & Trust Co. (In re SLW Partners, LP), Bankr. (Bankr. N.D. Ga. Sept. 28, 2012).
Application
Juvenile court had no authority to impose attorney fees.
- Juvenile court properly concluded that the court had no authority to impose attorney fees under the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., because the juvenile court had not adopted O.C.G.A § 9-15-14, and there was no implicit attorney fee award for frivolous litigation in the former Juvenile Court Code; the Civil Practice Act does not apply to juvenile courts. In re T.M.M.L., 313 Ga. App. 638, 722 S.E.2d 386 (2012).
Attorney's fees denied.
- Taxpayer's request for attorney's fees was denied since there was no evidence that the County Board of Tax Assessors lacked substantial justification in asserting the Board's interpretation of the statute. Fulton County Bd. of Tax Assessors v. Boyajian, 271 Ga. 881, 525 S.E.2d 687 (2000).
Court did not abuse the court's discretion in denying either the husband's request for attorney's fees incurred by him in defending a child custody modification action or the wife's similar request for attorney's fees incurred by her as a result of the parties' inability to reach a settlement since the court granted essential relief requested by the wife in her complaint and granted the husband relief to which the wife had not agreed. Glaza v. Morgan, 248 Ga. App. 623, 548 S.E.2d 389 (2001).
Trial court did not err in denying the wife's motion for attorney's fees regarding the owner's damages action against the wife's husband; while the owner failed to appear for trial after the wife and the husband were forced to expend time and resources preparing a defense to the lawsuit, the wife failed to establish that the owner's claim lacked any justiciable issue of law or fact. Bellah v. Peterson, 259 Ga. App. 182, 576 S.E.2d 585 (2003).
Defendants sought an award of attorneys' fees after summary judgment was granted to the defendants on the breach of contract claims and promissory estoppel claims, and the jury found in defendants' favor as to the fraud claim, but the court properly denied an award of attorneys' fees because the plaintiffs' claim had some factual merit or presented a justiciable issue of law. Rental Equip. Group, LLC v. Maci, LLC, 263 Ga. App. 155, 587 S.E.2d 364 (2003).
Because the main case was before the Court of Appeals of Georgia on direct appeal under O.C.G.A. § 5-6-35(j), the court granted an attorney's application for discretionary appeal of the denial by the trial court of the attorney's motion for attorney's fees pursuant to O.C.G.A. § 9-15-14(a) and (b). After considering the record under the appropriate standards as to each subsection, the trial court did not abuse the court's discretion and the evidence supported the court's denial of the motion. Kilgore v. Sheetz, 268 Ga. App. 761, 603 S.E.2d 24 (2004).
Trial court properly rejected the hospital's claim for additional attorney fees under O.C.G.A. § 9-15-14(a) because the jury could have determined that a doctor simply did not remember signing a contract; the doctor's lack of memory did not preclude a question of fact in the case. Whitaker v. Houston County Hosp. Auth., 272 Ga. App. 870, 613 S.E.2d 664 (2005).
Claim by a plaintiff, who had unsuccessfully asserted in a claim for attorney fees and costs under O.C.G.A. § 9-15-14 that the peer review privilege under O.C.G.A. § 31-7-133(a) was improperly applied, that asserted the same claim against the same parties in an abusive litigation action under O.C.G.A. § 51-7-80 et seq., was barred by collateral estoppel. Freeman v. Wheeler, 277 Ga. App. 753, 627 S.E.2d 86 (2006), overruled on other grounds by Coen v. Aptean, Inc., 2020 Ga. LEXIS 103 (Ga. 2020).
In a negligence suit wherein a train patron was attacked and raped while exiting a train station, and the defending public transportation authority was found to have intentionally made a false response regarding the creation and maintenance of certain documents, the trial court did not abuse the court's discretion by denying the train patron's motion for attorney fees, pursuant to O.C.G.A. § 9-15-14(b), as it was entirely within the discretion of the trial court after considering all the facts and law and there was evidence that the authority's conduct did not expand the proceeding since the documents were destroyed before the discovery was propounded. MARTA v. Doe, 292 Ga. App. 532, 664 S.E.2d 893 (2008).
Property owners alleged a water supply company acted in bad faith, was stubbornly litigious, and caused the owners unnecessary trouble and expense. As litigation between the parties was lengthy and acrimonious; each side accused the other of numerous bad acts; and the trial court considered numerous motions and pleadings and held more than three hearings, the court did not abuse the court's discretion in failing to award fees to the owners on the owners' own motion pursuant to O.C.G.A. § 9-15-14(b). Stewart v. Tricord, LLC, 296 Ga. App. 834, 676 S.E.2d 229 (2009).
There was some evidence from which a jury was authorized to find wrongful eviction including a homeowner's filing of a dispossessory action against the tenant, although the jury ultimately concluded that the tenant was not a tenant but a house guest of the homeowner. Therefore, the trial court did not abuse the court's discretion in denying the defendant an award of attorney fees under O.C.G.A. § 9-15-14(b). Rescigno v. Vesali, 306 Ga. App. 610, 703 S.E.2d 65 (2010).
Trial court did not abuse the court's discretion when the court declined to award the builders fees under O.C.G.A. § 9-15-14 because the trial court did not find that the property owners' allegations were without substantial justification warranting an award under § 9-15-14; in partially denying the builders' motion for summary judgment, the trial court found that there were genuine issues of fact for trial, and in the court's order denying fees, the court also stated that there were no facts revealed at trial that would have changed the court's decision on summary judgment. O'Leary v. Whitehall Constr., 288 Ga. 790, 708 S.E.2d 353 (2011).
Trial court did not abuse the court's discretion in denying a motion for attorney fees filed by a homeowners' association because the proceedings were hard fought, and the feelings of the parties were intense. Campbell v. Landings Ass'n, 311 Ga. App. 476, 716 S.E.2d 543 (2011).
Appellate court correctly concluded that the appellants were not entitled to recover expenses and fees under O.C.G.A. § 9-15-14(a) or (b) because the appellants were not parties to the action. Workman v. RL BB ACQ I-GA CVL, LLC, 303 Ga. 693, 814 S.E.2d 696 (2018).
Attorney's fees improperly denied.
- Trial court erred in denying a shooting club's motion for attorney's fees under O.C.G.A. § 9-15-14(a) or (b) after the club successfully obtained a writ of mandamus requiring the county to reissue the club's building permit since: (1) there was testimony at the appeal to the board of commissioners that the building permit was legal when the permit was issued; (2) at the hearing on the motion for attorney's fees, there was testimony that the chair of the board of commissioners told a witness that "the County Commission really would prefer to make the courts the bad guys rather than themselves"; (3) the club introduced deposition testimony in which the county commissioners could not articulate a legally cognizable reason to justify their revocation of the building permit; (4) the county did not put up any evidence and called no witnesses to testify at either the hearing on the petition for mandamus or the hearing on the request for attorney's fees; and (5) the trial court clearly found no justiciable issue of law or fact that supported the county's position. Southland Outdoors, Inc. v. Putnam County, 265 Ga. App. 399, 593 S.E.2d 940 (2004).
Trial court erred when the court denied the company president's motion for attorney fees on the basis that the employee's fraudulent inducement claim presented no justiciable issue of law or fact as the employee failed to present any evidence showing that the claim for fraudulent inducement had any merit because the employee's own testimony contradicted the position taken in that claim. Omni Builders Risk v. Bennett, Ga. App. , S.E.2d (Nov. 21, 2013).
Given the petitioner's admissions and the other evidence showing that the petitioner had no basis for seeking a temporary protective order for stalking, the trial court erred in denying the respondent's motion for attorney fees under O.C.G.A. § 9-15-14(a). Durrance v. Schad, 345 Ga. App. 826, 815 S.E.2d 164 (2018).
Award of expenses improper when spouse expanded litigation in domestic litigation.
- Although the trial court found that the ex-wife's behavior in alienating the children, the wife's refusal to allow the ex-husband to visit with the children, and the wife's unfounded allegations of child abuse had greatly expanded the litigation, were substantially lacking in justification, and were interposed for delay and harassment, and those findings were supported by the record, the trial court did not go on to make a finding as to how the award for expenses was limited to the prohibited conduct; thus, the award had to be vacated to the extent expenses other than attorney fees were awarded. Rowles v. Rowles, 351 Ga. App. 246, 830 S.E.2d 589 (2019), cert. denied, No. S19C1535, 2020 Ga. LEXIS 156 (Ga. 2020).
Award of fees was improper.
- Trial court erred in awarding attorney's fees to inmates who had filed an action against a county due to inadequate medical care in the county jail, pursuant to O.C.G.A. § 9-15-14(b), since there was no finding that the county's arguments lacked substantial justification, there was no finding that the issues asserted by the county were baseless, and there was no right to attorney's fees merely because the county appealed the ruling. DeKalb County v. Adams, 263 Ga. App. 201, 587 S.E.2d 302 (2003).
In an administratrix's action against a stepfather's estate to set aside a deed that the administratrix's mother conveyed to the stepfather, a court erred in awarding attorney's fees to the estate pursuant to O.C.G.A. § 9-15-14(b) because there was no evidence that, in bringing suit, the administratrix's unnecessarily expanded the proceedings, harassed the estate, or otherwise engaged in improper conduct. Doster v. Bates, 266 Ga. App. 194, 596 S.E.2d 699 (2004).
Award of attorney fees to ex-husband was reversed as attorney fees were not authorized in an action seeking a change of custody by the noncustodial parent, even if child support was also sought; there was nothing in the record to suggest that the attorney fees were awarded under O.C.G.A. § 9-15-14 as the trial court did not rule on the ex-husband's motion seeking an amendment to the order to include reference to § 9-15-14 and seeking findings of fact to support the order. Thornton v. Intveldt, 272 Ga. App. 906, 614 S.E.2d 175 (2005).
Trial court erred by granting a husband's motion for attorney fees pursuant to O.C.G.A. § 9-15-14 without holding a hearing; further, it was illogical for the trial court to hold that the wife's motion for a new trial was frivolous while simultaneously granting the wife's motion for reconsideration of the final order posing similar arguments. Fox-Korucu v. Korucu, 279 Ga. 769, 621 S.E.2d 460 (2005).
Trial court committed reversible error by not apportioning a welder's attorney fees between those incurred in defending against the frivolous claims and those fees incurred in defending against the non-frivolous claims before entering an attorney fees award. Trotter v. Summerour, 273 Ga. App. 263, 614 S.E.2d 887 (2005).
Insured was not entitled to recover attorney's fees or the expenses of litigation from an insurance company because the insured's complaint for breach of contract, tortious interference with a contract, and punitive damages failed to state any underlying claim under which relief could have been granted the insured. Perry v. Unum Life Ins. Co. of Am., 353 F. Supp. 2d 1237 (N.D. Ga. 2005).
Trial court erred in failing to consider an award of attorney fees under O.C.G.A. § 9-15-14(b) to the apartment complex owners in an action by a tenant, alleging that the owners were negligent in not repairing a window pane which allowed an intruder to enter and to commit the criminal acts against the tenant as the trial court had expressly found that there was no evidence that the owners' attorneys had participated in spoliation of a rape kit; accordingly, the trial court's denial as premature of the owners' motion for fees upon the tenant's request for spoliation sanctions was error. Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 618 S.E.2d 650 (2005).
Award of attorney fees to the estate, if predicated on O.C.G.A. § 9-15-14(b), was erroneous as the findings necessary to support such an award were not made; further, if the attorney's fee were based on O.C.G.A. § 19-6-2, it was also erroneous as there was no evidence of the parties' financial circumstances that authorized such an award. Findley v. Findley, 280 Ga. 454, 629 S.E.2d 222 (2006).
Trial court erred in awarding attorney fees to a publisher, absent a statutory basis for the award and evidence as to the reasonableness of the award; hence, the award was vacated and remand was ordered for the trial court to hold an evidentiary hearing on the amount and reasonableness of the fees. In re Serpentfoot, 285 Ga. App. 325, 646 S.E.2d 267 (2007), cert. denied, No. S07C1397, 2007 Ga. LEXIS 661 (Ga. 2007).
Award of attorney fees under O.C.G.A. § 9-15-14 had to be vacated and remanded for reconsideration since the trial court had not made findings of fact and conclusions of law supporting the award as such findings and conclusions were mandatory and did not have to be requested under O.C.G.A. § 9-11-52(a); furthermore, the lack of findings of fact and conclusions of law in the trial court's order overcame the presumption of regularity of all proceedings in a court of competent jurisdiction. Gilchrist v. Gilchrist, 287 Ga. App. 133, 650 S.E.2d 795 (2007).
In an election contest, the election winner was not entitled to attorney fees under O.C.G.A. § 9-15-14(a). Given the language of O.C.G.A. § 21-2-385(a) as to who could mail ballots for a voter, the complaint could not be described as lacking any justiciable issue of law or fact, and a sufficient number of ballots could have been found invalid so as to change the election result. Kendall v. Delaney, 283 Ga. 34, 656 S.E.2d 812 (2008).
Property owner's interpretation of O.C.G.A. § 22-1-11 was not so devoid of a justiciable issue or so lacking in substantial justification that it could not be reasonably believed that a court would accept that interpretation, such that an award of attorney fees against the owner pursuant to O.C.G.A. § 9-15-14(a) and (b) could not stand. Fox v. City of Cumming, 298 Ga. App. 134, 679 S.E.2d 365 (2009).
Trial court erred in holding an attorney in criminal contempt for violating an injunction and in ordering the attorney to pay a fine, costs, and attorney fees under O.C.G.A. § 9-15-14 because the attorney did not violate a receivership order; the receivership order did not apply directly to the attorney, and the attorney, personally, neither filed the notice of lien nor took action to have the lien filed, but the attorney's client filed the lien pro se on the advice of another attorney. Cabiness v. Lambros, 303 Ga. App. 253, 692 S.E.2d 817 (2010).
Evidence was insufficient to support the trial court's award of attorney fees pursuant to O.C.G.A. § 9-15-14(b) because the record was devoid of any evidence of the actual cost and reasonableness of a seller's attorney fees. Murray v. DeKalb Farmers Mkt., Inc., 305 Ga. App. 523, 699 S.E.2d 842 (2010).
Trial court erred in awarding attorney fees to an injured employee because initially allowing a subrogation lien viability hearing only after a liability award and subsequently sanctioning the employee's employer and its workers' compensation insurer for refusing to withdraw their lien on this basis was an abuse of discretion. Austell HealthCare, Inc. v. Scott, 308 Ga. App. 393, 707 S.E.2d 599 (2011).
Attorney fee award to sellers in a dispute between real property buyers and sellers was error under O.C.G.A. § 9-15-14 as there was evidence of mutual mistake to support the buyers' claim for contract reformation; accordingly, it was not lacking in substantial justification and a justiciable issue was presented. Exec. Excellence, LLC v. Martin Bros. Invs., LLC, 309 Ga. App. 279, 710 S.E.2d 169 (2011).
Trial court abused the court's discretion in awarding the insureds' attorney fees under O.C.G.A. § 9-15-14(b) because counsel for a parent and an administrator did not unnecessarily enlarge the proceedings and the proceedings were not interposed for harassment. Kitchens v. Ezell, 315 Ga. App. 444, 726 S.E.2d 461 (2012).
No evidence supported an award of attorney fees in favor of the insureds' under O.C.G.A. § 9-15-14(a) because the position of a parent and an administrator that no settlement was reached was legally supportable; accordingly, the claims of the parent and the administrator were not so devoid of a justiciable issue that it could not be reasonably believed that a court would accept the claims, nor did their opposition to the insureds' motion to enforce a settlement agreement lack substantial justification. Kitchens v. Ezell, 315 Ga. App. 444, 726 S.E.2d 461 (2012).
Trial court's order awarding attorney fees under O.C.G.A. § 9-15-14 was vacated because the order did not include the necessary findings of fact to support the award. Hearn v. Dollar Rent A Car, Inc., 315 Ga. App. 164, 726 S.E.2d 661 (2012).
Because the trial court erred, in part, by granting summary judgment in favor of a rental company and an independent third party administrator, the trial court's attorney fees award under O.C.G.A. § 9-15-14(a) was vacated; without more specific factual findings in the trial court's order, the court of appeals could not determine what portion of the court's award related to the claims for which the court concluded genuine issues of material fact existed. Hearn v. Dollar Rent A Car, Inc., 315 Ga. App. 164, 726 S.E.2d 661 (2012).
Trial court erred by awarding attorney fees against the plaintiff's counsel under O.C.G.A. § 9-15-14(a) and (b) for failing to dismiss the plaintiff's complaint or seek withdrawal immediately after the defendant filed a motion for summary judgment because the trial court erroneously relied on case law that was distinguishable from the facts involving the plaintiff's injury at a condominium unit that the plaintiff was visiting, which was being leased to a sibling without permission. Michelman v. Fairington Park Condo. Ass'n, 322 Ga. App. 316, 744 S.E.2d 839 (2013).
Trial court abused the court's discretion by awarding a father attorney fees under O.C.G.A. § 9-15-14 because the record established that the father voluntarily engaged in settlement negotiations with the mother, and the mother's failure to accept the validity of an informal, undocumented at-home paternity test did not render the mother's efforts to reach an agreement with the father substantially frivolous. Patterson v. Hragyil, 322 Ga. App. 329, 744 S.E.2d 851 (2013).
Trial court erred in awarding the son attorney fees in an action praying for cancellation of a deed and alleging fraud, undue influence, inadequate consideration, and improper recordation because no evidence supported the trial court's finding that the daughters defended the action without a lawful basis for doing so. Williams v. Warren, 322 Ga. App. 599, 745 S.E.2d 809 (2013).
Because the ex-husband had a factual basis for filing a motion to dismiss or, in the alternative, to modify the protective order as the husband had abided by the terms of the protective order, the purpose of the protective order had been accomplished, there was no longer any threat of family violence, and the restrictions in the protective order had created an undue burden on the husband's ability to obtain available employment as a law enforcement or security officer, the trial court erred in finding that the husband's motion lacked any justiciable issue of law or fact and the award of attorney fees to the wife could not stand. Dalenberg v. Dalenberg, 325 Ga. App. 833, 755 S.E.2d 228 (2014).
Because the ex-husband had a factual basis for filing a motion to dismiss or, in the alternative, to modify the protective order, and there was no evidentiary basis for the trial court's conclusion that the husband knew that the husband's Georgia Peace Officer Standards and Training certification would likely be revoked as a result of the prior termination of the husband's employment as a law enforcement officer or that the husband had misrepresented the ability to return to law enforcement, the husband's motion was not interposed for the purposes of harassment and the trial court erred in awarding attorney fees to the ex-wife. Dalenberg v. Dalenberg, 325 Ga. App. 833, 755 S.E.2d 228 (2014).
Trial court erred in awarding attorney fees to the employee without considering a potential setoff for amounts received from the employee's settlement with the employer's counsel and counsel's law firm and the amounts received from an insurance company pursuant to cost of defense payments made under the company's insurance policy. LabMD, Inc. v. Savera, 331 Ga. App. 463, 771 S.E.2d 148 (2015).
Trial court did not abuse the court's discretion by denying the plaintiff's motion for attorney fees pursuant to O.C.G.A. § 9-15-14(a) because there was evidence to support the trial court's finding that the defendant's admissions did not rise to the level of showing a complete absence of any justiciable issue of law or fact, and that the defense was not substantially frivolous. Chadwick v. Brazell, 331 Ga. App. 373, 771 S.E.2d 75 (2015).
Trial court did not err in dismissing the condominium association's counterclaim seeking to collect on an assessment of litigation fees and costs against two former association members who had unsuccessfully sued the association as the former members' lawsuit did not result solely from the former members' conduct without reference also to the conduct of the association because the former members' claims were based on the conduct of the association with respect to the association's response to and management of various mold and moisture issues. City Heights Condo. Ass'n v. Bombara, 337 Ga. App. 679, 788 S.E.2d 563 (2016).
Trial court did not err in dismissing the condominium association's counterclaim seeking to collect on an assessment of litigation fees and costs against two former association members who had unsuccessfully sued the association because the association had already obtained a judgment for the money to which it was entitled to as a result of having to defend against a claim the trial court determined lacked substantial justification; and the former members' remaining claims, while not ultimately successful, were sufficiently justified that the trial court did not penalize the former members for bringing them. City Heights Condo. Ass'n v. Bombara, 337 Ga. App. 679, 788 S.E.2d 563 (2016).
Putative wife's claim for divorce was not frivolous entitling the putative husband to an award of attorney fees as the wife's claim that the parties' Greek ceremony constituted a marriage ceremony, during which the parties exchanged vows and rings and after which they held themselves out as husband and wife, even though it was not performed by an officiant did not entirely lack a legal or factual basis. Russell v. Sparmer, 339 Ga. App. 207, 793 S.E.2d 501 (2016).
Although the ex-wife's motion for attorney fees was timely, the trial court's bare findings that the ex-husband's actions lacked substantial justification were insufficient to support the award of fees; thus, the fee award had to be vacated. Kim v. Han, 339 Ga. App. 886, 795 S.E.2d 191 (2016).
When the plaintiffs alleged that the pension board wrongfully disbursed their deceased father's pension benefits, the trial court erred in awarding attorney fees to the board as the plaintiffs' claims were not frivolous, the plaintiffs did not lack substantial justification for bringing the plaintiffs' claims, and the plaintiffs' claims did not suffer from a complete absence of any justiciable issue of law or fact because, although the board prevailed, it was not unreasonable for the plaintiffs to argue that the change-in-beneficiary form was effective when the form was received by the board; and the plaintiffs cited authority that arguably supported the plaintiffs' claim. Shoenthal v. DeKalb County Employees Retirement System Pension Board, 343 Ga. App. 27, 805 S.E.2d 650 (2017).
Trial court abused the court's discretion in awarding the buyer attorney fees based on a finding that the part-owner's equitable claims lacked justification as the part-owner presented evidence that created a legitimate factual dispute as to whether the buyer was a bona fide purchaser for value, including the buyer's interrogatory responses showing the buyer failed to confirm ownership of the business and evidence that the buyer asked the selling-partner about the other person's signature on the lease, showing constructive notice that someone else had an interest in the business. Furthermore, since the buyer did not actually prevail on the part-owner's unjust enrichment claim, the trial court abused the court's discretion in awarding the buyer attorney fees for defending against that claim. Lee v. Park, 341 Ga. App. 350, 800 S.E.2d 29 (2017).
Award of attorney fees to the former guardians could not stand because the father's initial filing was not done in the absence of any justiciable issue of law or fact. In the Interest of M. F., 345 Ga. App. 550, 813 S.E.2d 786 (2018).
Although a landlord's abusive litigation notice letter under O.C.G.A. § 51-7-84(a) was insufficient to give notice to the lessee's managing partner individually, the trial court erred in awarding attorney's fees to the partner under O.C.G.A. § 9-15-14 because under the circumstances of the case there was a justiciable issue as to whether the notice letters were served properly. Dunwoody Plaza Partners, LLC v. Markowitz, 346 Ga. App. 516, 816 S.E.2d 450 (2018).
Trial court erred by denying the defendant's motions for a directed verdict or JNOV on the issue of attorney fees under O.C.G.A. § 13-6-11 because the jury found no bad faith in the underlying quiet title action between the parties and the mere fact that the defendant's action had caused an issue which later required litigation to correct did not in and of itself provide a basis for an award; plus, any conduct during litigation could not support an award under § 13-6-11. Bowen v. Laird, 348 Ga. App. 1, 821 S.E.2d 105 (2018).
Former husband could not seek modification of his $2,000 monthly alimony obligation to his former wife, although he was 88 years old and had only $2,953 income per month, because the parties had waived their right to seek modification in the divorce agreement; however, an award of attorney fees to the wife under O.C.G.A. § 9-15-14(b) was an abuse of discretion because the husband had conceded that his argument was barred by the waiver but sought a change in the law. Naar v. Naar, 350 Ga. App. 21, 827 S.E.2d 711 (2019), cert. denied, No. S19C1229, 2019 Ga. LEXIS 856 (Ga. 2019).
Trial court did not err to the extent that the court awarded the respondent attorney fees under O.C.G.A. § 9-15-14(a) as to the petitioner's claims for custody and parenting time/visitation because the petitioner premised the arguments as to parenting time/visitation and custody on new theories of law based on some recognized persuasive authority and Georgia courts often considered law and decisions from other jurisdictions as persuasive authority. Hill v. Burnett, 349 Ga. App. 260, 825 S.E.2d 617 (2019).
Trial court erred in awarding the ex-wife attorney fees because the ex-husband's motion to recuse was not without substantial justification since the record showed that the trial court overlooked well-established law to incarcerate the ex-husband in violation of his due process rights when it entered an impermissible self-executing contempt order, which provided for his imprisonment without affording him a hearing to determine whether his failure to purge contempt was willful. McLaws v. Drew, 355 Ga. App. 162, 843 S.E.2d 440 (2020).
In an action to domesticate a foreign judgment appointing a guardian for an adult ward, the trial court had no authority to impose the attorney fee and expenses against the ward's daughter because the daughter was not properly made a party to the petition to domesticate the guardianship order. Carruthers v. Chan, 354 Ga. App. 826, 841 S.E.2d 475 (2020).
Award of fees was proper.
- Based on the plain and unambiguous language of O.C.G.A. § 9-15-14, no error was found in the trial court's inclusion in the court's award of attorney's fees to a wife, the fees she incurred for appellate proceedings that occurred during the pendency of the divorce proceedings. Kautter v. Kautter, 286 Ga. 16, 685 S.E.2d 266 (2009).
Trial court's award of attorney fees in favor of a seller pursuant to O.C.G.A. § 9-15-14(b) was proper because the trial court gave the buyer ample opportunity to challenge both the cost and reasonableness of the seller's attorney fees, but the buyer did not challenge either the amount or the reasonableness of such fees, and the buyer did not object to the trial court's method of determining the amount of the seller's attorney fees or otherwise request a hearing on the matter; therefore, the buyer acquiesced in the trial court's procedure and could not complain of the procedure. Murray v. DeKalb Farmers Mkt., Inc., 305 Ga. App. 523, 699 S.E.2d 842 (2010).
Trial court did not err in ordering the mother and the mother's attorney to pay the grandmother's attorney's fees related to a contempt motion as both the mother and the attorney knew that the visitation order contained a typographical error, referring to "respondent" instead of "petitioner," and that their claims were made in bad faith. In re Singleton, 323 Ga. App. 396, 744 S.E.2d 912 (2013).
Trial court did not err in granting the law clerks' motion for attorney fees as a sanction due to the county's opposition to the clerks' motion to confirm an arbitration award with respect to the clerks' group-pay grievance that was resolved in the clerks' favor as the county's argument lacked a justiciable issue of law and lacked substantial justification. Fulton County v. Lord, 323 Ga. App. 384, 746 S.E.2d 188 (2013).
Attorney fee award related to the wife's contempt motion was supported by the trial court's findings in the supplemental order, which specified that the award was made pursuant to O.C.G.A. § 9-15-14, because the husband lacked substantial justification to refuse to honor the prior agreement the parties reached in open court. McCarthy v. Ashment-McCarthy, 295 Ga. 231, 758 S.E.2d 306 (2014).
Trial court did not abuse the court's discretion in awarding attorney fees to the husband after finding that the wife's written motion lacked substantial justification. McLendon v. McLendon, 297 Ga. 779, 778 S.E.2d 213 (2015).
Trial court's award of attorney fees was proper based on the Department of Transportation's use of a fundamentally flawed appraisal in support of the declaration of taking and the DOT taking of a baseless position in the litigation. Shiv Aban, Inc. v. Ga. DOT, 336 Ga. App. 804, 784 S.E.2d 134 (2016).
Wife failed to raise a meritorious challenge to the decree awarding the husband attorney fees as the award contained a discussion of the wife's unauthorized attempts to amend the pleadings and consolidated pretrial order, thereby unnecessarily expanding the proceedings. Horton v. Horton, 299 Ga. 46, 785 S.E.2d 891 (2016).
Trial court did not err in awarding the mother attorney fees after the father turned a simple litigation complex. Dallow v. Dallow, 299 Ga. 762, 791 S.E.2d 20 (2016).
Fee award to the county for the county's own attorney fees was upheld because the former coroner failed to provide any proof showing that the county agreed to pay the county's own attorney fees and the record supported the trial court's findings that the coroner violated O.C.G.A. § 9-15-14(a) and (b), and the fees and expenses incurred by the county were reasonable and necessary. O'Neal v. Crawford County, 339 Ga. App. 687, 792 S.E.2d 498 (2016).
Contempt order requiring the plaintiff to pay $ 17,296.53 in attorney fees and litigation costs under O.C.G.A. § 9-15-14 was affirmed on appeal because the trial court expressly stated that the amount was intended to prevent future violations of, and to coerce compliance with, the injunction issued against the plaintiff and no case law prohibited such a civil contempt sanction. Shooter Alley, Inc. v. City of Doraville, 341 Ga. App. 626, 800 S.E.2d 588 (2017).
Trial court did not err in assessing attorney fees against a borrower and the borrower's counsel in favor of the lender because the borrower and counsel knew or should have known that the lawsuit against the lender for wrongful foreclosure and related claims was substantially groundless and sanctions against the borrower and the borrower's counsel were warranted to punish, deter and to recompense the litigants. Ettrick v. SunTrust Mortg., Inc., 349 Ga. App. 703, 824 S.E.2d 727 (2019).
Because the special master found that the creditor's action to quiet title was brought in bad faith, was stubbornly litigious, and unnecessarily expanded the scope of the proceedings, and the trial court found that the creditor's refusal to cancel the security deed even after direction to do so from the special master lacked substantial justification, those findings were sufficient to justify the award of attorney fees against the creditor, the creditor's law firm, and its attorney. CB Lending, LLC v. Strategic Property Consulting Group, LLC, 353 Ga. App. 114, 834 S.E.2d 618 (2019).
Trial court was not precluded from awarding attorney fees to the ex-wife pursuant to O.C.G.A. § 19-6-2 because she remarried and her entitlement to and ability to seek alimony discontinued as the trial court considered both parties regarding their financial circumstances at the hearing, made specific findings concerning the ex-husband's assertions regarding his inability to pay his court-ordered obligations and overall financial circumstances, and his contempt. McCarthy v. Ashment, 353 Ga. App. 270, 835 S.E.2d 745 (2019).
Attorney's fees award in frivolous action.
- Trial court did not err in awarding attorney fees against the ex-husband because the record supported the trial court's finding that the petition for declaratory judgment filed by the ex-husband, seeking verification of the ex-wife's health status before paying alimony, was frivolous at best and malicious at worse. Belcher v. Belcher, 346 Ga. App. 141, 816 S.E.2d 82 (2018).
Award of more than actual fees billed was proper.
- Hindu temple's serial filing of civil complaints against individuals lawfully reporting alleged unlawful credit card fraud activity by the temple violated the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, and an award of attorney's fees under O.C.G.A. § 9-15-14 for the reasonable value of the individuals' attorney's services was proper. The trial court was not limited in making the award to the amount that the attorney actually billed the clients. Hindu Temple & Cmty. Ctr. of the High Desert, Inc. v. Raghunathan, 311 Ga. App. 109, 714 S.E.2d 628 (2011), cert. dismissed, No. S11C1887, 2012 Ga. LEXIS 49 (Ga. 2012).
Lump sum award not permissible.
- Trial court erred in awarding the ex-wife a lump sum of attorney fees when an award was only permitted for fees related to sanctionable conduct. Belcher v. Belcher, 346 Ga. App. 141, 816 S.E.2d 82 (2018).
Award of hourly fees to two county salaried attorneys was proper.
- In awarding attorney's fees for vexatious litigation under O.C.G.A. § 9-15-14(b), a trial court did not err in awarding $250 per hour and $225 per hour for two county attorneys, although the attorneys were not paid hourly but were salaried employees; there was no evidence that this was not a reasonable fee given these attorneys' experience. Jones v. Unified Gov't of Athens-Clarke County, 312 Ga. App. 214, 718 S.E.2d 74 (2011), cert. denied, No. S12C0387, 2012 Ga. LEXIS 228 (Ga. 2012).
Violation by attorney justifying award.
- When, in a divorce proceeding, the husband's attorney violated O.C.G.A. § 9-11-67 and pertinent court rules by making an improper deposit of funds in the court, the court properly awarded attorney's fees paid to the wife personally by the husband's attorney either on the basis that the actions of the latter constituted contempt, or as a sua sponte award of attorney's fees. Cohen v. Feldman, 219 Ga. App. 90, 464 S.E.2d 237 (1995), overruled on other grounds by Williams v. Cooper, 280 Ga. 145, 625 S.E.2d 754 (2006).
When the plaintiff, an attorney, did not make any specific allegations of malpractice against the plaintiff's former counsel in a divorce action until the plaintiff responded to the defendant's motion for summary judgment, even then never demonstrating any legal basis for the plaintiff's claim that a particular communication constituted a breach of confidentiality, and since the plaintiff's action was brought for purposes of harassment, it was not an abuse of discretion for the court to award attorney's fees against the plaintiff. Cagle v. Davis, 236 Ga. App. 657, 513 S.E.2d 16 (1999).
Section does not apply to federal bankruptcy proceedings.
- O.C.G.A. § 9-15-14 does not authorize an award for attorney's fees or expenses for proceedings before a federal bankruptcy court; application of the statute is limited to courts of record when the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, applies. Harkleroad v. Stringer, 231 Ga. App. 464, 499 S.E.2d 379 (1998).
Bankruptcy court denied a Chapter 13 debtor's ex-wife's request for reimbursement of attorneys' fees she incurred to obtain a judgment against the debtor which found that a state court's award of attorneys' fees in her divorce action was a debt in the nature of support that was nondischargeable under 11 U.S.C. § 523(a)(5) and was entitled to priority under 11 U.S.C. § 507(a)(1). Nothing in the state court's order awarding the ex-wife attorneys' fees allowed her to recover additional fees for enforcing the order, and there was no merit to the ex-wife's claims that she was entitled to the additional fees under O.C.G.A. § 19-6-2, and under O.C.G.A. § 9-15-14 because the debtor had acted in bad faith. Owoade-Taylor v. Babatunde (In re Babatunde), Bankr. (Bankr. N.D. Ga. Oct. 10, 2012).
Applicability.
- Because O.C.G.A. § 9-11-11.1, the anti-SLAPP statute, was not intended to immunize from the consequences of abusive litigation a party who asserted a claim with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, the statute did not apply to a county's claim for attorney's fees under O.C.G.A. § 9-15-14, after the county was granted summary judgment on a property buyer's complaint alleging that the buyer was entitled to a written verification of zoning compliance; hence, the trial court did not err in denying the county's motion to dismiss the county's request. EarthResources, LLC v. Morgan County, 281 Ga. 396, 638 S.E.2d 325 (2006).
O.C.G.A.
§ 9-15-14 does not authorize award to nonparties. - It was error for a trial court to award a hospital attorney fees and expenses incurred in resisting a subpoena issued in a lawsuit to which the hospital was not a party because: (1) under O.C.G.A. § 9-15-14(d), such fees and expenses awarded under § 9-15-14 could not exceed amounts reasonable and necessary to defend or assert the rights of a party, meaning a party to the litigation; and (2) the hospital was not a party to the case in which the subpoena was issued. Reeves v. Upson Reg'l Med. Ctr., 315 Ga. App. 582, 726 S.E.2d 544 (2012).
There is no reason to think that "party," as that term is used in O.C.G.A. § 9-15-14(d), regarding an award of attorney fees, means anything other than a named party to litigation, and attorney's fees, and expenses incurred by a nonparty in the defense or assertion of the nonparty's own rights were not, by definition, fees and expenses "which are reasonable and necessary for defending or asserting the rights of a party," so attorney's fees and expenses under § 9-15-14(b) generally could not be awarded to a nonparty and, to the extent Slone v. Myers, 288 Ga. App. 8 (653 S.E.2d 323) (2007) held otherwise, it was overruled. Reeves v. Upson Reg'l Med. Ctr., 315 Ga. App. 582, 726 S.E.2d 544 (2012).
Alleged alter ego of corporate plaintiff was not a "party" in the case and the court was without authority to impose attorney's fees against that alter ego. Steven E. Marshall, Bldr., Inc. v. Scherer, 206 Ga. App. 156, 424 S.E.2d 841 (1992).
When county commissioners sought litigation costs under O.C.G.A. § 9-15-14 against a citizen against whom they obtained summary judgment on the 45th day following judgment, that did not extend the citizen's time within which to seek attorney's fees against the commissioners for seeking sanctions against the citizen under the same statute. Trammel v. Clayton County Bd. of Comm'rs, 250 Ga. App. 310, 551 S.E.2d 412 (2001).
Ongoing estate administration did not affect award of attorney fees.
- Probate court's judgment finding a caveat to a will meritless and awarding attorney's fees was final and appealable, even though administration of the estate was ongoing. Dismer v. Luke, 228 Ga. App. 638, 492 S.E.2d 562 (1997).
Fees to be assessed against executor, not estate.
- Since the probate court found that an executor kept an estate open without legitimate reason, disregarded court orders, breached the executor's fiduciary duty to the estate, and unnecessarily expanded the proceedings once a petition for accounting had been filed, such that an award of attorney fees to the petitioner was warranted under O.C.G.A. § 9-15-14(b), those fees had to be assessed against the executor, not the estate. In re Estate of Holtzclaw, 293 Ga. App. 577, 667 S.E.2d 432 (2008).
Fee awarded when surety claim brought in bad faith.
- Trial court properly awarded the surety company a bad faith attorney fee award and struck the counterclaim because the purchaser's bad faith counterclaim against the surety company as a corporate surety was not only brought under an inapplicable statute, namely O.C.G.A. § 13-6-11, but failed to meet the basic pleading requirements under § 13-6-11. Hicks v. Gabor, 354 Ga. App. 714, 841 S.E.2d 42 (2020).
Award not mandated whenever party prevails on abusive litigation claim.
- Although subsection (a) of O.C.G.A. § 9-15-14 requires the award of attorney's fees and litigation expenses upon a proper determination, it does not mandate an award whenever a party prevails on an abusive litigation claim. Subsection (f) of § 9-15-14 vests the trial court, without a jury, with responsibility for determining whether an award should be made. Deljou v. Sharp Boylston Mgt. Co., 194 Ga. App. 505, 391 S.E.2d 27 (1990).
Effect of failure to grant summary judgment.
- Trial court's award to a party whose motion for summary judgment was denied must be vacated except in unusual cases when the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney's fees. Felker v. Fenlason, 201 Ga. App. 207, 410 S.E.2d 326 (1991).
Sanctions against the plaintiff pursuant to O.C.G.A. § 9-15-14 were improperly assessed after the trial court denied the defendant's motion for summary judgment and, after hearing all the facts which had been presented to the jury, denied the defendant's motion for a directed verdict. Gantt v. Bennett, 231 Ga. App. 238, 499 S.E.2d 75 (1998).
In a HOA's action against homeowners for violation of a garage storage covenant, in which it was determined that the owners were not bound by the covenant under O.C.G.A. § 44-3-226(a) or O.C.G.A. § 44-5-60(d)(4), and the HOA dismissed the HOA's remaining claim, the owners were the prevailing parties entitled to attorney fees under the declaration; however, the trial court did not err in denying attorney fees under O.C.G.A. § 9-15-14(b) given the denial of summary judgment. Marino v. Clary Lakes Homeowners Ass'n, 331 Ga. App. 204, 770 S.E.2d 289 (2015).
Effect of denial of directed verdict.
- In considering an award under O.C.G.A. § 9-15-14, a trial court is not necessarily bound by the denial of a motion for a directed verdict. Atwood v. Southeast Bedding Co., 236 Ga. App. 116, 511 S.E.2d 232 (1999).
Attorney's fees improper following grant of interlocutory injunction.
- Trial court erred in granting attorney's fees under subsection (a) of O.C.G.A. § 9-15-14 because the grant of an interlocutory injunction was a determination that there was a substantial likelihood of success on the merits and was equivalent to denial of a motion for summary judgment so that the subsection did not apply. Hallman v. Emory Univ., 225 Ga. App. 247, 483 S.E.2d 362 (1997).
Clear lack of adversity in interpleader action.
- Since there is no evidence that the lack of adversity was not clear when the plaintiff brought the plaintiff's interpleader action, and the plaintiff's conduct in bringing the action falls within the criteria of O.C.G.A. § 9-15-14, the defendants were entitled to attorney's fees. Citizens & S. Trust Co. v. Trust Co. Bank, 262 Ga. 345, 417 S.E.2d 148 (1992).
Adjudication of claims.
- Claims asserted pursuant to O.C.G.A. § 9-15-14 are to be adjudicated by the trial court without a jury. Ferguson v. City of Doraville, 186 Ga. App. 430, 367 S.E.2d 551, cert. denied, 186 Ga. App. 918, 367 S.E.2d 551 (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 376 S.E.2d 860 (1989).
When final disposition occurred.
- When, on appeal by caveators from summary judgment in favor of the proponents of a will, the decision was affirmed and, after remittitur, the superior court entered an order admitting the will to probate, final disposition of the action for the purposes of O.C.G.A. § 9-15-14 occurred when that order was entered, not when the summary judgment motion was granted. McConnell v. Moore, 232 Ga. App. 700, 503 S.E.2d 593 (1998).
Section inapplicable when all claims mutually dismissed.
- In providing in subsection (e) of O.C.G.A. § 9-15-14 that a party could move for attorney's fees and expenses within 45 days of "final disposition" of a case, the legislature certainly did not mean to include per se a case when the claiming party has induced or achieved, by mutual dismissal of all then-pending claims or counterclaims, a dismissal with prejudice of the other's claims, actions, or defenses, particularly if the claiming party achieved the other's agreement to dismiss with prejudice by consenting to and proclaiming by court order that the "mutual dismissals . . . are a fair and reasonable settlement of all claims in this action under all the facts and circumstances of this case. . . ." Hunter v. Schroeder, 186 Ga. App. 799, 368 S.E.2d 561 (1988).
Following dismissal, witness seeking fees brings separate suit.
- Following a dismissal of a case with prejudice, an expert witness brought a motion to compel the plaintiffs to pay the witness's fees. The court properly dismissed the motion on the ground that the court no longer had jurisdiction of the matter. The proper remedy was to bring a separate suit. Ramos v. Vourtsanis, 187 Ga. App. 69, 369 S.E.2d 344 (1988).
Contempt.
- Any prohibition against an award of attorney's fees in a contempt action is limited to criminal contempt actions if it exists at all. Minor v. Minor, 257 Ga. 706, 362 S.E.2d 208 (1987).
Imposition of attorney's fees for failure to comply with a contempt order did not constitute improper punishment. Wright v. Stuart, 229 Ga. App. 50, 494 S.E.2d 212 (1997).
Condemnation proceedings.
- O.C.G.A. § 9-15-14, read in conjunction with Ga. Const. 1983, Art. I, Sec. III, Para. I, permits trial courts to award attorney's fees to condemnees in eminent domain cases. DOT v. Woods, 269 Ga. 53, 494 S.E.2d 507 (1998).
Fees were not recoverable in a condemnation case based on the fact that the jury awarded the condemnee nearly twice what the condemnor had offered to pay. DOT v. Woods, 269 Ga. 53, 494 S.E.2d 507 (1998).
When a city continued to pursue condemnation until after the special master made its award and after the condemnees filed an appeal as to valuation issues, and at that point elected to redesign the project and to dismiss its condemnation proceeding, because that decision resulted in a financial detriment to the condemnees, the trial court could, in the exercise of the court's discretion, find that the city was liable for attorney's fees under subsection (b) of O.C.G.A. § 9-15-14. McKemie v. City of Griffin, 272 Ga. 843, 536 S.E.2d 66 (2000), affirming, in part, City of Griffin v. McKemie, 240 Ga. App. 180, 522 S.E.2d 288 (1999).
Eminent domain actions.
- Lessee's motion for attorney's fees pursuant to O.C.G.A. § 9-15-14(b) against the state in an eminent domain action was improperly denied; although the trial court concluded that the state was justified in bringing the action, the court failed to address whether the state bore some responsibility for unnecessarily expanding the proceedings by entering into a settlement with the owner of the property in question. Lamar Co., LLC v. State, 256 Ga. App. 524, 568 S.E.2d 752 (2002).
In a suit brought by a purchaser seeking damages for wrongful foreclosure of certain real property after two foreclosure sales, the trial court erred in granting the second foreclosing bank attorney fees under O.C.G.A. § 9-15-14 based on frivolous litigation since the second bank had knowledge of the purchaser's acquisition of the property via the first foreclosure, therefore, the purchaser's suit did not lack substantial justification as to the second bank and the second's bank failure to provide proper notice of the sale to the purchaser. Roylston v. Bank of Am., N.A., 290 Ga. App. 556, 660 S.E.2d 412 (2008).
Award to judge improper.
- Trial court erred when the court awarded a judge attorney's fees for defending a suit the county had been forced to file against the judge. Spalding County v. Cramer, 262 Ga. 843, 426 S.E.2d 149 (1993).
Judge was only entitled to recover reasonable attorney fees for the counterclaims that lacked legal justification. Heiskell v. Roberts, 295 Ga. 795, 764 S.E.2d 368 (2014).
Judge who found attorney in contempt recused.
- Affidavit in support of recusal was legally sufficient in a situation in which the judge who found an attorney in contempt in the underlying case was to hear a claim against the same attorney for costs and attorney's fees under O.C.G.A. § 9-15-14. Houston v. Cavanagh, 199 Ga. App. 387, 405 S.E.2d 105, cert. denied, 199 Ga. App. 906, 405 S.E.2d 105 (1991).
Attorney's fees not recoverable in commitment proceedings.
- There is no statutory authority for the award of attorney's fees to a patient who was ordered discharged in involuntary commitment proceedings under O.C.G.A. Ch. 3, T. 37. Georgia Mental Health Inst. v. Brady, 263 Ga. 591, 436 S.E.2d 219 (1993).
Inapplicable to municipal ordinance violations as quasi-criminal cases.
- Prosecution for violation of a city or county ordinance is a "quasi-criminal" case having the nature of a criminal case, and when a party convicted of an ordinance violation files a petition for certiorari in superior court seeking review of the conviction, the proceeding in superior court is criminal and not civil, and the cost and fees provisions of O.C.G.A. § 9-15-14 are inapplicable. DeKalb County v. Gerard, 207 Ga. App. 43, 427 S.E.2d 36 (1993).
O.C.G.A. § 9-15-14 does not authorize the award against nonparties. Allstate Ins. Co. v. Reynolds, 210 Ga. App. 318, 436 S.E.2d 56 (1993); Swafford v. Bradford, 225 Ga. App. 486, 484 S.E.2d 300 (1997).
Pre-disposition counterclaim premature.
- Word "may" in subsection (e) of O.C.G.A. § 9-15-14 means that the litigant is only authorized to seek an award after the case is concluded, when the basis for an award has matured, and such an award may not be sought by counterclaim filed prior to the final disposition of the action. Hutchison v. Divorce & Custody Law Ctr., 207 Ga. App. 421, 427 S.E.2d 784 (1993); Generali - United States Branch v. Owens, 218 Ga. App. 584, 462 S.E.2d 464 (1995); Swafford v. Bradford, 225 Ga. App. 486, 484 S.E.2d 300 (1997).
Sanctions.
- Trial court misconstrued the clear terms of O.C.G.A. § 9-15-14 by concluding that the jury should decide whether sanctions should be awarded for bringing frivolous litigation. Dismer v. Luke, 228 Ga. App. 638, 492 S.E.2d 562 (1997).
Because a valid general release entered into by a home buyer and home builder effectuated a binding accord and satisfaction barring any future claims between the parties, and absent evidence to void the release based on fraud, the buyer's filed claims in a subsequent suit filed against the home builder were properly summarily dismissed; thus, assessment of attorney fees was not an abuse of discretion and a penalty for filing a frivolous appeal was ordered. Pacheco v. Charles Crews Custom Homes, Inc., 289 Ga. App. 773, 658 S.E.2d 396 (2008).
Failure to determine what fees related to sanctionable conduct.
- Judgment of liability for attorney fees against an ex-husband under O.C.G.A. § 9-15-14 was affirmed but the judgment was vacated and the case remanded because the trial court erred in awarding fees under that Code section without determining what fees were related specifically to sanctionable conduct. Reid v. Reid, 348 Ga. App. 550, 823 S.E.2d 860 (2019), cert. denied, No. S19C0832, 2019 Ga. LEXIS 689 (Ga. 2019).
Sanctionable conduct occurring during litigation.
- Award of attorney fees was reversed because the record was clear that the property owner sought attorney fees pursuant to O.C.G.A. § 13-6-11, and the civil court made the court's award explicitly under that Code section, but the allegedly sanctionable conduct cited occurred as part of the litigation, namely, in the 30 days leading up to trial; therefore, a fee award under § 13-6-11 was not authorized because that Code section addressed conduct arising from the underlying transaction. Cheatham Fletcher Scott Architects, P.C. v. Hull 2000, LLLP, 352 Ga. App. 691, 835 S.E.2d 644 (2019).
Award excludable as sanction under insurance policy.
- It was not error for the trial court to conclude that an award of attorney's fees under O.C.G.A. § 9-15-14 was a sanction within the meaning of the exclusion contained in the attorney's insurance policy. Dixon v. Home Indem. Co., 206 Ga. App. 623, 426 S.E.2d 381 (1992).
Justification issue found.
- When the record revealed hotly contested versions of what the parties considered to have transpired in a complex real estate transaction, given that the law requires only slight circumstances to establish fraud and conspiracy, the trial judge was authorized to find as a matter of law that the plaintiffs had pierced an essential element of the defendant's abusive litigation claim and were thus entitled to a grant of summary judgment thereon. Seckinger v. Holtzendorf, 200 Ga. App. 604, 409 S.E.2d 76, cert. denied, 200 Ga. App. 897, 409 S.E.2d 76 (1991).
Although most of the claims by real property sellers warranted an attorney fee award to the buyers pursuant to O.C.G.A. § 9-15-14, as some claims were deemed lacking in substantial justification, there was sufficient justification to support the allegations of slander of title claims based on certain statements; accordingly, a remand for determination of which portion of the fees were allocable to which claims was warranted under § 9-15-14(d). Exec. Excellence, LLC v. Martin Bros. Invs., LLC, 309 Ga. App. 279, 710 S.E.2d 169 (2011).
Sanction award based on attorney misconduct but dismissal unauthorized.
- With regard to the landowners' declaratory judgment, mandamus, and injunctive relief suit seeking damages against a town and the town's officials alleging the unconstitutionality and invalidity of an overlay zoning district, the evidence of misconduct by the landowners' counsel in seeking an interlocutory injunction was sufficient to support the trial court's sanction award to the town and established that the trial court's award was not an abuse of discretion since the trial court's finding that the landowners' counsel knowingly and willfully presented an inaccurate and false survey in an effort to defraud the court, subvert justice, and gain an unfair advantage was a finding constituting a sufficient specification of the conduct which entitled the town to attorney's fees and costs. However, the trial court erred by dismissing the landowners' complaint based on the sanction order as dismissal of an action was not an authorized remedy under the sanction statute of O.C.G.A. § 9-15-14. Century Ctr. at Braselton, LLC v. Town of Braselton, 285 Ga. 380, 677 S.E.2d 106 (2009).
Improper conduct of opposing party or counsel.
- In exercising judicial discretion whether to award attorney's fees under subsection (b) of O.C.G.A. § 9-15-14, the trial court could consider as one factor whether the opposing party or opposing counsel also contributed to the unnecessary expansion of the proceeding by any relevant form of improper conduct. Hyre v. Denise, 214 Ga. App. 552, 449 S.E.2d 120 (1994).
After entering judgment for the defendant in an action for grandparent's visitation, the trial court abused the court's discretion in deciding the defendant's motion for attorney's fees without properly reviewing the defendant's claim that the grandparents harassed the defendant or unnecessarily expanded the proceedings by other improper conduct. McKeen v. McKeen, 224 Ga. App. 410, 481 S.E.2d 236 (1997).
Attorney's fees were properly awarded to the plaintiff in a trespass action since the defendant was responsible for both the court's and the plaintiff's difficulty in locating the defendant for service of process and other proceedings and because the defendant also was the attorney of record; the fact that the defendant was out of the country at certain times did not excuse the defendant's failure to appear or take actions as the defendant did not seek or obtain permission for the defendant's absences. Hipple v. Simpson Paper Co., 234 Ga. App. 516, 507 S.E.2d 156 (1998).
Award of attorney's fees for improper conduct.
- In domestic dispute over visitation rights, an award of attorney's fees was appropriate under subsection (b) of O.C.G.A. § 9-15-14 based on the defendant's resistance to being deposed and the defendant's failure to timely disclose to the trial court that the defendant and the defendant's daughter had relocated out of state. Hall v. Hall, 241 Ga. App. 690, 527 S.E.2d 288 (1999).
Trial court properly exercised the court's discretion in awarding attorney's fees under O.C.G.A. § 9-14-15(b) as the court made an award based on the finding that during the divorce proceedings, the husband refused to comply with the wife's multiple requests for production of documents, filed extraordinary motions, rejected multiple settlement offers, and moved to reopen discovery six months after discovery had concluded; although the husband argued that such events did not occur or that the events were justifiable, the trial court was authorized to resolve conflicts in the evidence. Carson v. Carson, 277 Ga. 335, 588 S.E.2d 735 (2003).
Based on conduct by a husband during the litigation with the wife in a manner intended to prevent completion of the case, to harass and annoy the wife, and to cause the wife's attorney fees to increase, sufficient evidence was presented supporting an attorney fee award under O.C.G.A. § 9-15-14(b); moreover, the wife's counsel's statement as to the reasonableness of the attorney's fees was sufficient and the husband's failure to question the wife's counsel or seek more information waived any complaint regarding those issues. Taylor v. Taylor, 282 Ga. 113, 646 S.E.2d 238 (2007).
Since the evidence supported the trial court's findings that a former spouse had unreasonably extended the litigation by denying being represented by an attorney and by refusing to acknowledge the attorney's authority to enter into a settlement agreement, under O.C.G.A. § 9-15-14, the other spouse was properly awarded the attorney fees incurred in enforcing the agreement. Ford v. Hanna, 293 Ga. App. 863, 668 S.E.2d 271 (2008).
Fact that a personal representative prolonged administration of the estate so the personal representative could wrongfully have the estate's primary asset, a house, conveyed to the personal representative entitled the beneficiary to litigation expenses, including attorney fees, under O.C.G.A. §§ 9-15-14(b) and13-6-11. In re Estate of Zeigler, 295 Ga. App. 156, 671 S.E.2d 218 (2008).
Although the trial court did not abuse the court's discretion in determining that the appellants' actions in introducing irrelevant character evidence about which counsel had been admonished were sanctionable, the award of attorneys' fees was vacated because the trial court did not receive evidence as to the actual costs and reasonableness of the fees, and the appellee failed to present evidence - and the trial court failed to find - that the attorneys' fees were the result of the appellants' sanctionable trial conduct. Connolly v. Smock, 338 Ga. App. 754, 791 S.E.2d 853 (2016).
Trial court's award of $ 98,385 in attorney fees and expenses pursuant to O.C.G.A. § 9-15-14(b) was affirmed based on the husband's egregious and improper behavior and abuse of the discovery process, but the additional award of $ 60,000 for misconduct pursuant to O.C.G.A. § 19-6-2 was reversed since such an award had to be a part of alimony and the parties' prenuptial agreement barred the wife from receiving alimony. Vakharwala v. Vakharwala, 301 Ga. 251, 799 S.E.2d 797 (2017).
In a divorce action, the trial court erred to the extent the court awarded attorney fees and costs to the wife incurred before the husband engaged in sanctionable conduct as the sanctionable conduct underlying the award was the husband's assertion of defenses to a contempt action that lacked substantial justification. Cook v. Campbell-Cook, 349 Ga. App. 325, 826 S.E.2d 155 (2019).
Bad faith insurance claims.
- In an insured's suit asserting claims for breach of contract and bad faith breach of contract under O.C.G.A. §§ 9-2-20 and33-4-6 in connection with an insurer's denial of the insured's claim for proceeds of a disability insurance policy, the parent corporation of the insurer, which administered the insurer's policies, was not liable upon the insured's claim for attorney fees and expenses under O.C.G.A. § 9-15-14 because even if the insured had succeeded on its underlying claims against the parent, § 33-4-6 provides the exclusive remedy for fees and costs in cases involving bad faith refusal to pay insurance proceeds. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).
Harassing a cosigner to pay debt.
- When a jury could reasonably infer from the evidence that, by pursuing an action against a cosigner, a bank had sought to harass or intimidate the cosigner into paying one or more debts for which the cosigner had no arguable legal responsibility, a recovery of damages for substantially frivolous, substantially groundless, or substantially vexatious litigation would clearly be authorized. Whatley v. Bank S., 185 Ga. App. 896, 366 S.E.2d 182, cert. denied, 185 Ga. App. 911, 366 S.E.2d 182 (1988).
Failure of a party to agree to telephonic depositions cannot form the basis of an award of attorney's fees and expenses when there was no evidence of the inappropriateness of the refusal at the time thereof. Ingram v. Star Touch Communications, Inc., 215 Ga. App. 329, 450 S.E.2d 334 (1994).
Willful concealment of important document.
- In an action for breach of an employment contract, the trial court did not abuse the court's discretion by awarding $75,000 in legal fees and expenses against the defendant when the court found that the defendant willfully attempted to conceal a document which could have had a major impact on the litigation. Santora v. American Combustion, Inc., 225 Ga. App. 771, 485 S.E.2d 34 (1997).
Summary judgment denial does not preclude award.
- Denial of summary judgment does not preclude as a matter of law the exercise of the trial court's discretion under O.C.G.A. § 9-15-14 to award litigation costs and attorney's fees for frivolous actions and defenses upon the trial of the case. Porter v. Felker, 261 Ga. 421, 405 S.E.2d 31 (1991).
Denial of the accountants' motion for summary judgment in their clients' negligence suit against the accountants did not require reversal of the trial court's judgment awarding the accountants damages under Yost v. Torak, 256 Ga. 92, 344 S.E.2d 414 (1986) since denial of the motion was not a determination whether the suit lacked substantial justification as the trial court was never required to address or otherwise foresee facts authorizing the grant of attorney fees under Yost regarding the merits of the complaint. Ansa Mufflers Corp. v. Worthington, 201 Ga. App. 602, 411 S.E.2d 573 (1991).
Summary judgment denial precludes award.
- Denial of a defendant's motion for summary judgment on the main claim constitutes a binding determination that the claim did not lack substantial justification so as to render the claim frivolous, groundless, or vexatious, and as a result the defendant is not entitled to an award of damages under Yost v. Torak, 256 Ga. 92, 344 S.E.2d 414 (1986) or O.C.G.A. § 9-15-14. Contractors' Bldg. Supply, Inc. v. Gwinnett Sash & Door, Inc., 199 Ga. App. 38, 403 S.E.2d 844 (1991).
Award of attorney's fees to a party whose motion for summary judgment was denied was reversed since the suit was not an unusual case in which the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney's fees. Hamm v. Willis, 201 Ga. App. 723, 411 S.E.2d 771 (1991).
Compensatory or punitive damages not authorized.
- O.C.G.A. § 9-15-14 speaks only to an award of reasonable and necessary attorney's fees and litigation expenses; the statute does not authorize the trial court to impose compensatory or punitive damages. Green v. Sheppard, 173 Bankr. 799 (Bankr. N.D. Ga. 1994).
Reasonable and necessary fees permitted only.
- Attorney fee award to the wife was vacated, in part, because the fee award was based in part on billing records not made available for review; thus, remand was necessary for the trial court to determine the amount of reasonable and necessary attorney fees and to indicate the basis for the award and to hold a hearing if supplemental evidence was needed to make the required determination. Cook v. Campbell-Cook, 349 Ga. App. 325, 826 S.E.2d 155 (2019).
Assessment of fees.
- In assessing attorney's fees against a party, or the party's attorney, pursuant to O.C.G.A. § 9-15-14, the trial judge must make an independent determination concerning the reasonableness and necessity of the fees and the trial judge cannot make such a determination unless evidence of the value of the legal services is presented. Duncan v. Cropsey, 210 Ga. App. 814, 437 S.E.2d 787 (1993).
Fees for litigation against client.
- Court erred in denying the firm's request for legal fees for services provided to themselves in litigation against the client. Harkleroad v. Stringer, 231 Ga. App. 464, 499 S.E.2d 379 (1998).
Comparable components in an award of attorneys' fees.
- Personal time spent by attorneys in the attorneys' own defense was not a compensable component in an award of attorneys' fees since the attorneys were in fact the defendants in the case, did not appear as counsel of record, and had engaged independent attorneys to represent them. Moore v. Harris, 201 Ga. App. 248, 410 S.E.2d 804 (1991).
Defendant's claim asserted as compulsory counterclaim.
- Under Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), a defendant's claim for abusive litigation is an independent claim for damages but the claim must be asserted as a compulsory counterclaim without regard to whether the claimant is the plaintiff or the defendant in the original suit. Vogtle v. Coleman, 259 Ga. 115, 376 S.E.2d 861 (1989).
Attorney's fees for an offer of settlement.
- Because the plaintiff asserted a claim for punitive damages, and such claim was pending at the time the offer of settlement was made, the defendant was required to state with particularity the amount proposed to settle that claim, which the defendant failed to do, thus, the defendant's offer did not meet the requirements of O.C.G.A. § 9-11-68(a), and the trial court did not err in ruling that the defendant could not recover attorney fees for an offer of settlement pursuant to that Code section. Chadwick v. Brazell, 331 Ga. App. 373, 771 S.E.2d 75 (2015).
Award of attorney's fees was proper if suit was not justified.
- Trial court properly dismissed the appellee city from the action because there was no basis for the action against the city; because the appellant could have made this determination with a minimum amount of diligence, the award of attorney's fees to the appellee city was affirmed. Stancil v. Gwinnett County, 259 Ga. 507, 384 S.E.2d 666 (1989).
When a landlord sued a tenant for rent that accrued after the landlord locked the tenant out, the jury had evidence from which the jury could find that the dispossessory warrant and claim for unpaid rent was used as a device to extract money from the tenant and to harass the tenant, and that the tenant therefore had a viable claim under O.C.G.A. § 9-15-14. Swift Loan & Fin. Co. v. Duncan, 195 Ga. App. 556, 394 S.E.2d 356 (1990).
When there was no ambiguity in a contract which could result in a verdict for the plaintiff, and under the other facts of the case, the trial court did not abuse the court's discretion in finding the suit lacked substantial justification, that is, that the suit was substantially groundless. Brunswick Floors, Inc. v. Carter, 199 Ga. App. 110, 403 S.E.2d 855 (1991), cert. denied, 199 Ga. App. 905, 403 S.E.2d 855 (1991).
In a legal malpractice action filed subsequent to the running of the four-year statute of limitations, when there was no evidence giving rise to factual merit in the plaintiff's claim that the limitations statute was tolled due to fraud, and when there existed no justiciable issue of law as to such claim, the trial court erred in denying the defendant attorney's motion for attorney's fees. Brown v. Kinser, 218 Ga. App. 385, 461 S.E.2d 564 (1995).
When both the plaintiff and the plaintiff's counsel were put on notice by a letter from the defendant's counsel that the plaintiff's car was not damaged as the result of a collision with the defendant's vehicle but as the result of a previous, unrelated, collision, the plaintiff's action lacked substantial justification or any justiciable issue of law or fact and the defendant was entitled to attorney's fees. Gibbs v. Abiose, 235 Ga. App. 214, 508 S.E.2d 690 (1998).
When the trial court found that the defendant's testimony concerning the defendant's inspection damages received from the plaintiff did not provide a reasonable basis under O.C.G.A. § 11-2-714 (breach in regard to accepted goods) for proving damages, that portions of the defendant's testimony were "arbitrary" and others were irreconcilably inconsistent with the remainder of the defendant's testimony, the court's conclusion that this defense and counterclaim lacked substantial justification, was void of any justiciable issue of law or fact, and that it was "interposed . . . for delay or harassment and to intentionally and unnecessarily expand the proceeding" justified the court's award of attorney's fees in favor of the plaintiff. Atwood v. Southeast Bedding Co., 236 Ga. App. 116, 511 S.E.2d 232 (1999).
Record was sufficient to show that the plaintiff knew when the plaintiff filed the suit that the financial institution's refusal to cancel the instrument was based on a bona fide controversy and a good faith belief that the debt had not been paid and, therefore, the plaintiff had no cause of action for the damages the plaintiff sought for alleged violation of O.C.G.A. § 44-14-3; thus, the trial court did not abuse the court's discretion when the court awarded attorney's fees to the financial institution pursuant to O.C.G.A. § 9-15-14(b). Tahamtan v. Chase Manhattan Mortg. Corp., 252 Ga. App. 113, 555 S.E.2d 76 (2001).
In a proceeding seeking confirmation of an arbitrator's award in a home construction dispute, it was not error for a trial court to award a builder attorney's fees under O.C.G.A. § 9-15-14(b) against homeowners who presented no factual or legal issues even approaching any of the statutory grounds, under O.C.G.A. § 9-9-13(b), for vacating an arbitration award and unnecessarily expanded the confirmation proceeding by moving to vacate the award and objecting to the addition of their surety as a party, and the arbitrator's failure to award attorney's fees in no way restricted the trial court's authority to do so. Marchelletta v. Seay Constr. Servs., 265 Ga. App. 23, 593 S.E.2d 64 (2004).
In a case in which a lessee sought attorney's fees from a lessor pursuant to O.C.G.A. §§ 9-15-14 and13-6-11, the lessor unsuccessfully appealed the district court's award of attorney's fees. Not only had the lessee submitted evidence to support the award of attorney's fees, but the district court found that the lessor had been stubbornly litigious and had asserted baseless claims and defenses. Cargill Ltd. v. Jennings, F.3d (11th Cir. Jan. 22, 2009)(Unpublished).
Attorney's fees were properly awarded under O.C.G.A. § 9-15-14(a) in an election contest because the contestor did not present any evidence showing a factual basis to cast doubt on the counting of a single vote, but instead presented website information, which had nothing to do with any miscounting of votes or the mishandling of any absentee ballots. Davis v. Dunn, 286 Ga. 582, 690 S.E.2d 389 (2010).
Trial court erred to the extent that the court awarded the respondent attorney fees under O.C.G.A. § 9-15-14(a) as to the petitioner's legitimation claim involving a same sex relationship because the petitioner cited no law from any jurisdiction for the proposition that a person of either gender may petition to legitimate a child absent a biological relationship, and Georgia law made no provision for such situation. Hill v. Burnett, 349 Ga. App. 260, 825 S.E.2d 617 (2019).
Award proper under "any evidence" standard.
- Award of attorney fees under O.C.G.A. § 9-15-14(a) was proper under the "any evidence" standard because there was evidence in the record supporting the trial court's findings as to the lack of predicate acts supporting racketeering claims and the lack of evidence of damages; thus, the appellate court did not need to reach the issue of whether the award was justified under § 9-15-14(b). Slone v. Myers, 288 Ga. App. 8, 653 S.E.2d 323 (2007), cert. denied, 555 U.S. 881, 129 S. Ct. 196, 172 L. Ed. 2d 140 (2008).
In a dispute between a county and a county state court judge over a supplement to the judge's salary, the judge was entitled to attorney's fees for defending against frivolous counterclaims; the evidence introduced at a hearing at which counsel testified and was subject to cross-examination supported the trial court's findings allocating fees between the frivolous counterclaims and a non-frivolous counterclaim for reimbursement. Heiskell v. Roberts, 342 Ga. App. 109, 802 S.E.2d 385 (2017).
Award of litigation expenses and attorney's fees justified.
- In an action seeking sanctions for abuse of litigation, the trial court erred in denying the plaintiff's motion under subsections (a) and (b) of O.C.G.A. § 9-15-14 after the evidence showed that the tactics employed by the defendants warranted sanctions. Harkleroad & Hermance, P.C. v. Stringer, 220 Ga. App. 906, 472 S.E.2d 308 (1996).
County's reliance, as a defense to a developer's mandamus and inverse condemnation claim, on the memo of the county's expert, asserting that the developer had to comply with a list of road improvements contained in the memo, which improvements were not required by the county's ordinance, supported a trial court's award of attorney fees for the developer. Rabun County v. Mt. Creek Estates, LLC, 280 Ga. 855, 632 S.E.2d 140 (2006).
Pre-judgment interest proper.
- Trial court did not err in awarding pre-judgment interest under O.C.G.A. § 51-12-14 because there remained a balance on an attorney's fees award under O.C.G.A. § 9-15-14, that survived the appeal and that was not paid by the insurer, and was no longer subsumed in a later judgment. To the extent that Restina v. Crawford, 205 Ga. App. 887 (1992) required that set-offs of prior settlements with other joint tortfeasors had to be considered in determining if the demand had been equaled or exceeded for the imposition of pre-judgment interest such language is disapproved. Sec. Life Ins. Co. v. St. Paul Marine & Fire Ins. Co., 263 Ga. App. 525, 588 S.E.2d 319 (2003).
Lender was entitled to recover attorney's fees for action to reform note that the lender erroneously marked as paid since the borrowers never disputed that the debt had not been paid in full. Gibson v. Decatur Fed. Sav. & Loan Ass'n, 235 Ga. App. 160, 508 S.E.2d 788 (1998).
Award of fees and expenses not reversed.
- There was no basis to reverse the award of attorney's fees and expenses when at most the award could be construed to include an award for both fees and expenses during the lower court proceedings and the subsequent proceedings before the court and when the trial court sought to clarify any ambiguity in the award by stating that the award did not include fees and expenses arising out of the appeal. Castro v. Cambridge Square Towne Houses, Inc., 204 Ga. App. 746, 420 S.E.2d 588, cert. denied, 204 Ga. App. 921, 420 S.E.2d 588 (1992).
Award of attorney's fees and expenses would not be reversed since there was evidence to support the trial court's ruling that the plaintiff failed to present a justiciable issue of law as required by subsection (a) of O.C.G.A. § 9-15-14 and that the trial court did not abuse the court's discretion in awarding fees under subsection (b). Kinard v. Worldcom, Inc., 244 Ga. App. 614, 536 S.E.2d 536 (2000), overruled on other grounds, Thompson v. Allstate Ins. Co., 285 Ga. 24, 673 S.E.2d 227 (Ga. 2009).
Award mandatory when judgment encompasses grounds.
- When the trial court judgment is encompassed within the grounds for awarding such expenses, the award of attorney's fees and expenses of litigation is mandatory. Fabe v. Floyd, 199 Ga. App. 322, 405 S.E.2d 265, cert. denied, 199 Ga. App. 906, 405 S.E.2d 265 (1991).
Award of attorney's fees not justified when arguable support for action.
- County superintendent of election and winning candidates were not entitled to attorney's fees under O.C.G.A. § 9-15-14 since there was arguable support for the contestants' interpretation of the statute under which the contestants brought the action and the statute had not previously been interpreted by any court. Ellis v. Johnson, 263 Ga. 514, 435 S.E.2d 923 (1993).
In a domestic dispute over visitation rights, since the defendant's motion to dismiss asserted an arguably meritorious position, there was not a "complete absence of any justiciable issue of law or fact," and the trial court erred in awarding attorney's fees under subsection (a) of O.C.G.A. § 9-15-14. Hall v. Hall, 241 Ga. App. 690, 527 S.E.2d 288 (1999).
Award of fees to third party defendant.
- In a suit when a mortgage company employee who was a third-party defendant was awarded attorney fees against a borrower, there was no merit to the borrower's argument that the employee should have filed a motion to sever instead of a motion to dismiss. This argument failed to take into account what actually occurred, which was that the borrower voluntarily dismissed the borrower's third-party complaint only after the employee filed a motion to dismiss, thereby retaining the option of refiling the complaint against the employee in a separate action and subjecting the employee to defending the same allegations twice. However, an evidentiary hearing on the award was required. McCray v. Fannie Mae, 292 Ga. App. 156, 663 S.E.2d 736 (2008).
Sanctions justified.
- Nominal sanctions in an amount closely tied to the direct expenses incurred by the county and the defendant due to the plaintiffs' unnecessarily expanding the proceeding were justified. Hill v. Doe, 239 Ga. App. 869, 522 S.E.2d 471 (1999).
Sanctions unjustified.
- When an attorney did not solely rely on the attorney's client's claims of insolvency, but required the client to verify the client's financial situation with the attorney's accountant, and when there was no evidence that the attorney delayed the proceedings to accomplish diversion of the client's assets, sanctions imposed against the attorney could not stand. Northen v. Mary Anne Frolick & Assocs., 236 Ga. App. 7, 510 S.E.2d 857 (1999).
Children of incompetent ward were not entitled to recover costs and attorney's fees from the guardian since the children had unsuccessfully moved to hold the guardian, who was the ward's second wife, in contempt for her alleged failure to comply with a property settlement agreement as there was no "complete absence" of a justiciable issue of law or fact concerning the guardian's defense. Head v. Head, 234 Ga. App. 469, 507 S.E.2d 214 (1998).
Pro se parent seeking visitation modification not responsible for fees.
- Although a parent, who was acting pro se in prosecuting a petition to modify visitation, may have been slower than an attorney, this was not a finding which showed that the parent "unnecessarily expanded the proceeding by other improper conduct" as contemplated by O.C.G.A. § 9-15-14(b). Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009).
Award of fees in child custody cases.
- Full amount of attorney's fees award of $35,000 to a father in a child custody dispute was justified by the trial court's findings under either O.C.G.A. § 9-15-14 or O.C.G.A. § 19-9-3(g); therefore, the trial court was not required to allocate the amount the court was awarding under each statute. Taylor v. Taylor, 293 Ga. 615, 748 S.E.2d 873 (2013).
In a custody case, the superior court did not abuse the court's discretion by awarding attorney fees to the child's biological father under O.C.G.A. § 9-15-14(b) because the mother insisted on a paternity test even though she had stipulated that he was the father; evaded service; hid the child from the father for 18 months; and made dubious allegations of sexual molestation. However, the trial court's award of $68,500 failed to show the process involved in reaching that figure, necessitating remand. Smith v. Pearce, 334 Ga. App. 84, 778 S.E.2d 248 (2015), cert. denied, No. S16C0247, 2016 Ga. LEXIS 33 (Ga. 2016).
In a custody modification case, the trial court's award of attorney's fees to the mother was reversed because, given the appellate court's decision, she did not prevail, and the trial court failed to address the reasonableness of the fees, failed to specify the potentially sanctionable conduct under O.C.G.A. § 19-9-3(g), failed to identify the subsection of O.C.G.A. § 9-15-14 relied on, and failed to hold an evidentiary hearing. Wilson v. Perkins, 344 Ga. App. 869, 811 S.E.2d 518 (2018).
Trial court correctly dismissed a grandmother's claim for grandparent visitation for lack of jurisdiction under O.C.G.A. § 19-7-3(c)(2) and awarded attorneys' fees against her under O.C.G.A. § 9-15-14(b) because her action was filed during the same year as the parents' divorce action in which custody was determined, which was prohibited by statute. Gnam v. Livingston, 353 Ga. App. 701, 839 S.E.2d 200 (2020).
Award proper in divorce action.
- Trial court's award of $60,000 attorney's fees to a wife under O.C.G.A. § 9-15-14 was upheld based on the trial court's order, which recounted several instances of the husband's misconduct during the litigation and found that they caused numerous delays, extra motions, and extra conversations, and forced the wife's counsel to make multiple requests for documents and answers and to go to otherwise unnecessary efforts to obtain needed documents. The award was also proper under O.C.G.A. § 19-6-2(a)(1) to ensure effective representation of both spouses. Miller v. Miller, 288 Ga. 274, 705 S.E.2d 839 (2010).
Contempt in divorce action.
- In a contempt case brought by a former wife to enforce a divorce decree's requirement that the husband refinance two properties in his name alone, the trial court's award of attorney fees and expenses was vacated and the case remanded for the trial court to identify the statutory basis for the award and to include the requisite findings of fact supporting the award. Borotkanics v. Humphrey, 344 Ga. App. 875, 811 S.E.2d 523 (2018).
Award not sustainable under O.C.G.A. § 9-15-14(b) but proper under O.C.G.A. § 19-6-2. - Trial court did not abuse the court's discretion by awarding the husband's attorney fees under O.C.G.A. § 19-6-2, despite the award not being sustainable under O.C.G.A. § 9-15-14(b), because the record showed that the court carefully considered the parties' relative financial positions, their obligations under the final decree, and the substantial costs incurred by both parties, and awarded the husband substantially less than the total amount of fees claimed to have been incurred in the litigation. Hoard v. Beveridge, 298 Ga. 728, 783 S.E.2d 629 (2016).
Improper to award attorney's fees for motion for new trial challenging factual findings.
- Trial court abused the court's discretion in awarding litigation-abusive attorney fees under O.C.G.A. § 9-15-14 in connection with a father's motion for a new trial challenging the factual findings of the trial court; the mother's contention that a motion for a new trial was not an available remedy in a custody court was not sustainable. Eldridge v. Ireland, 259 Ga. App. 44, 576 S.E.2d 44 (2002).
Award unauthorized in lieu of inadequate proof of reasonableness of attorney's bill.
- In a couple's suit for the negligent construction of a swimming pool, the trial court abused the court's discretion by awarding the couple attorney fees, pursuant to O.C.G.A. § 9-15-14(b), against the contractor as the couple's counsel presented an inadequate time sheet that was merely a half-page summary of 49 hours spent by the attorney in various activities that were not detailed. The summary did not offer any further break down of the time expended by the attorney and the time sheet attached to the affidavit did not break down the time by hours expended nor provided any detailing regarding the activities conducted by the attorney. Dave Lucas Co. v. Lewis, 293 Ga. App. 288, 666 S.E.2d 576 (2008).
Clerk of court liable for attorney's fees to litigant for failure to prepare and transmit record.
- Clerk of court was liable to a litigant for attorney's fees under O.C.G.A. § 9-15-14 based on the clerk's failure to prepare and transmit the record in the litigant's case to the appellate court as required by O.C.G.A. § 5-6-43 until six months after the record should have been prepared, and then only when the litigant filed a petition for mandamus, to which the clerk interposed meritless defenses. Robinson v. Glass, 302 Ga. App. 742, 691 S.E.2d 620 (2010).
Award against county in employment case proper.
- Employee, a fire chief whose termination was reversed by a hearing officer, was entitled to a writ of mandamus reinstating the employee to the employee's former position after the county refused to abide by the hearing officer's decision. The employee was also entitled to reasonable attorney fees and expenses of litigation under O.C.G.A. § 9-15-14(b). Ellis v. Caldwell, 290 Ga. 336, 720 S.E.2d 628 (2012).
Airline expense not recoverable in a sanction award.
- In a child visitation dispute, a trial court erred by awarding the father $1,468 for airline ticket expenses incurred as a result of the visitation dispute because that was not an expense of litigation recoverable in a sanction award pursuant to O.C.G.A. § 9-15-14(b). Bankston v. Warbington, 319 Ga. App. 821, 738 S.E.2d 656 (2013).
Award nondischargeable in bankruptcy.- Award of attorney's fees to a Chapter 7 debtor's former spouse under Georgia's abusive litigation provision was nondischargeable since the award was made by the state court directly to the former spouse and the award was in connection with defending the former spouse's rights under the divorce decree. It made no difference that it was the debtor who initiated the proceedings that led to the award. Howerton v. Howerton (In re Howerton), Bankr. (Bankr. N.D. Ga. July 19, 2013).
Appeals
"Court of record."
- Court of appeals is not a "court of record" within the meaning of O.C.G.A. § 9-15-14. Style Craft Homes, Inc. v. Chapman, 226 Ga. App. 634, 487 S.E.2d 32 (1997).
Trial court lacks authority to award fees and expenses in appellate proceedings.
- Trial court does not have authority, pursuant to O.C.G.A. § 9-15-14, to require the payment of reasonable and necessary attorney's fees and expenses of litigation for proceedings before an appellate court of this state. DOT v. Franco's Pizza & Delicatessen, Inc., 200 Ga. App. 723, 409 S.E.2d 281, cert. denied, 200 Ga. App. 895, 409 S.E.2d 281 (1991), overruled on other grounds, 264 Ga. 393, 444 S.E.2d 734 (1994); Bankhead v. Moss, 210 Ga. App. 508, 436 S.E.2d 723 (1993).
O.C.G.A. § 9-15-14 provides no authority pursuant to which a trial court can award attorney's fees and expenses of litigation for proceedings before appellate courts. Castro v. Cambridge Square Towne Houses, Inc., 204 Ga. App. 746, 420 S.E.2d 588, cert. denied, 204 Ga. App. 921, 420 S.E.2d 588 (1992); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998).
Trial court lacks authority to award fees and expenses in appellate proceedings.
- O.C.G.A. § 9-15-14 does not authorize an award for the expenses of litigation incurred during proceedings before an appellate court of this state. Harkleroad v. Stringer, 231 Ga. App. 464, 499 S.E.2d 379 (1998).
Improper consideration of prior court's proceedings.
- Trial court abused the court's discretion in awarding bad faith attorney fees to appellees for defending a testator's will against a filed caveat because the findings of the trial court included events that occurred prior to the appellees' appeal to the superior court, namely, occurrences in the probate court, and the remainder of the findings were not supported by the record. McNair v. McNair, 343 Ga. App. 41, 805 S.E.2d 655 (2017).
Direct appeal from an award of attorney fees under O.C.G.A. § 9-15-14 was not properly before the Court of Appeals after the directly appealable judgment was dismissed. Roberts v. Pearce, 232 Ga. App. 417, 501 S.E.2d 555 (1998); Burns v. Howard, 239 Ga. App. 315, 520 S.E.2d 491 (1999).
Award upheld.
- Trial court did not abuse the court's discretion in awarding attorney fees and costs (O.C.G.A. § 9-15-14) payable by the plaintiff's attorney because the order spanned 22 pages and included more than 40 findings to support the defendant's request based on defending a duplicative lawsuit filed by the plaintiff's attorney in another county when a suit was already pending. Cohen v. Rogers, 341 Ga. App. 146, 798 S.E.2d 701 (2017), cert. denied, No. S17C1483, 2018 Ga. LEXIS 161 (Ga. 2018).
Appellate review of awards.
- When reviewing awards under O.C.G.A. § 9-15-14(b), trial judges have broad discretion in controlling discovery, including imposition of sanctions; hence, the appellate courts will not reverse a trial court's decision on such matters absent a clear abuse of discretion. Doe v. HGI Realty, Inc., 254 Ga. App. 181, 561 S.E.2d 450 (2002).
Because a grandparent was not aggrieved by an attorney-fee award entered pursuant to O.C.G.A. § 9-15-14(b), that grandparent lacked standing to appeal the award and the appeals court lacked jurisdiction to address the award. In the Interest of J.R.P., 287 Ga. App. 621, 652 S.E.2d 206 (2007), cert. denied, 2008 Ga. LEXIS 207 (Ga. 2008).
When a developer argued that the trial court improperly awarded attorney fees under O.C.G.A. § 9-15-14(a), but the award was also made under § 9-15-14(b), and the developer did not contest the latter award specifically, the award could be sustained on independent grounds and addressing the error raised would be purely advisory. Prime Home Props., LLC v. Rockdale County Bd. of Health, 290 Ga. App. 698, 660 S.E.2d 44 (2008), cert. denied, No. S08C1330, 2008 Ga. LEXIS 685 (Ga. 2008).
Trial court had authority under O.C.G.A. § 9-15-14(a) to order the petitioner, rather than the petitioner's lawyer, to pay the respondent's attorney fees and expenses in a child custody case involving same sex partners because the assessment was just since the trial court found that it could not be said the petitioner reasonably relied on existing Georgia legal precedent in bringing the action. Hill v. Burnett, 349 Ga. App. 260, 825 S.E.2d 617 (2019).
Order enforcing an executed settlement agreement and denying the motion to dismiss the appeal was upheld because it was undisputed that the only attorney fees in question were those sought by the brother in a post-judgment motion under O.C.G.A. § 9-15-14 and the trial court's reservation of the issue did not render the judgment non-final but, rather, that judgment enforcing the settlement agreement was final and directly appealable. Miller v. Miller, Ga. App. , 846 S.E.2d 429 (2020).
When application to appeal award required.
- Effective July 1, 1986, O.C.G.A. § 5-6-35 was amended to require applications to appeal awards of attorney's fees or expenses of litigation under O.C.G.A. § 9-15-14, and a direct appeal will be dismissed for failure to comply with that statute. Martin v. Outz, 257 Ga. 211, 357 S.E.2d 91 (1987); Bowles v. Lovett, 190 Ga. App. 650, 379 S.E.2d 805 (1989).
When application for appeal not required.
- Judgment awarding attorney's fees and costs of litigation pursuant to O.C.G.A. § 9-15-14 may be reviewed on direct appeal, when it is appealed as part of a judgment that is directly appealable. The application required by O.C.G.A. § 5-6-35 need not be filed on the separate costs and fees issue. Haggard v. Board of Regents, 257 Ga. 524, 360 S.E.2d 566 (1987); Mitcham v. Blalock, 268 Ga. 644, 491 S.E.2d 782 (1997).
Appeals from awards of attorney fees or expenses of litigation under O.C.G.A. § 9-15-14 require application for appellate review. Lacking such an application, the appellate court is without jurisdiction to entertain the appeal and the appeal must be dismissed. Loveless v. Pickering, 187 Ga. App. 49, 369 S.E.2d 281, cert. denied, 187 Ga. App. 908, 369 S.E.2d 281 (1988); Morris v. Morris, 226 Ga. App. 799, 487 S.E.2d 528 (1997).
When the appellee city sought to dismiss the appellant's appeal from the award of attorney's fees because the appellant did not file an application as required by subsection (a)(10) of O.C.G.A. § 9-15-14 for an appeal from an award of attorney's fees pursuant to that section, an application was not necessary to appeal the award of attorney's fees since this was appealed along with other matters directly appealable. Stancil v. Gwinnett County, 259 Ga. 507, 384 S.E.2d 666 (1989).
When a debtor paid a promissory note and demanded that the creditor record the note's satisfaction, but the creditor sued the debtor on the note four years later, a trial court properly found the debtor was entitled to an award of attorney fees under O.C.G.A. § 9-15-14(b); however, the trial court did not adequately explain how the court arrived at the amount the court awarded and, because the court had ruled against the debtor on some of the counterclaims against the creditor and therefore those counterclaims could not serve as the basis for an award of attorney fees, it was necessary to remand the matter to the trial court for further findings. Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 620 S.E.2d 463 (2005).
In a dispute between a creditor and a debtor over the enforcement of a settlement agreement, the trial court's award of attorney fees to the creditor for fees incurred in enforcing the settlement was not supported by any findings required under O.C.G.A. § 9-15-14(a) or (b), so this issue had to be remanded for such findings. DeRossett Enters. v. GE Capital Corp., 275 Ga. App. 728, 621 S.E.2d 755 (2005).
Litigator was subject to a trial court's commands and sanctions concerning litigation in which the litigator had been involved, whether or not the litigator or the firm had already withdrawn at the time of a finding under O.C.G.A. § 9-15-14; award of attorneys fees against a law firm for a frivolous lawsuit was supported by sufficient findings that the law firm had notice of both the plaintiff's intention to seek fees and the hearing at which fees were assessed. Andrew, Merritt, Reilly & Smith, LLP v. Remote Accounting Solutions, Inc., 277 Ga. App. 245, 626 S.E.2d 204 (2006).
Award of attorney fees or expenses of litigation made pursuant to O.C.G.A. § 9-15-14 could be appealed without filing the application for discretionary review required by O.C.G.A. § 5-6-35(a)(10) when the underlying judgment in the case is pending. Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011).
Attorney fees properly awarded following dismissal.
- Trial court properly awarded attorney fees and expenses to a welder for the costs spent defending against frivolous claims raised in an injured party's original suit, which had been voluntarily dismissed; as the injured party properly renewed the suit, the deadline for filing the attorney fee motion on the original suit did not begin to run until the final disposition of the renewed suit. Trotter v. Summerour, 273 Ga. App. 263, 614 S.E.2d 887 (2005).
Since, in the context of a contempt matter brought against the client, a husband's attorney was never given proper notice of the possibility that the attorney fees hearing could have resulted in an award against the attorney pursuant to O.C.G.A. § 9-15-14(b), the award was improper; a claim for attorney fees under O.C.G.A. § 19-6-2 was not considered a realistic opportunity to contest the need for legal services forming the basis of an O.C.G.A. § 9-15-14(b) award because the basis for an award of fees under the two statutes was different. Williams v. Cooper, 280 Ga. 145, 625 S.E.2d 754 (2006).
No issue on appeal when section not invoked.
- Absent indication that the appellee ever invoked O.C.G.A. § 9-15-14 or that the trial court ever granted attorney's fees to the appellee under that section, no issue concerning the appellee's recovery of attorney's fees under that section was presented for review. Covington v. Countryside Inv. Co., 263 Ga. 125, 428 S.E.2d 562 (1993).
Procedure for appeal.
- Party aggrieved by a post-judgment award under O.C.G.A. § 9-15-14 is required to comply with the discretionary appeal procedure of O.C.G.A. § 5-6-35 only in those instances when no direct appeal has been otherwise taken from the underlying judgment. However, in those instances when a direct appeal has been taken from the underlying judgment, a party may also appeal directly from the post-judgment award under § 9-15-14 without regard to the discretionary appeal procedures of § 5-6-35. Rolleston v. Huie, 198 Ga. App. 49, 400 S.E.2d 349 (1990), cert. denied, 198 Ga. App. 898, 400 S.E.2d 349 (1991).
Appellant required to follow both discretionary and interlocutory procedures.
- Because a driver seeking review of an order of attorney's fees against the driver, entered under O.C.G.A. § 9-15-14, after the driver opposed a motion to transfer venue, properly followed O.C.G.A. § 5-6-35(a)(10) in seeking discretionary review, but did not comply with O.C.G.A. § 5-6-34(b) governing interlocutory appeals, the appeal was dismissed. Eidson v. Croutch, 337 Ga. App. 542, 788 S.E.2d 129 (2016).
Appeal from an award of expenses of litigation under O.C.G.A. § 9-15-14 is discretionary when not appealed as part of a judgment that is directly appealable. Cheeley-Towns v. Rapid Group, Inc., 212 Ga. App. 183, 441 S.E.2d 452 (1994).
When a debtor paid a promissory note and demanded that the creditor record the note's satisfaction, but the creditor sued the debtor on the note four years later, it was not an abuse of discretion for a trial court to find that the debtor was entitled to an award of attorney fees under O.C.G.A. § 9-15-14(b) as the creditor's only defense to the creditor's liability to the debtor, under O.C.G.A. § 44-14-3(c), was a clearly meritless argument that the notice requirements of O.C.G.A. § 44-14-3(c.1) applied; § 44-14-3(c) specifically provided that no other section of § 44-14-3 was to be construed to limit the liquidated damages a creditor owed a debtor for violating § 44-14-3(c) and, thus, the creditor's argument lacked substantial justification. Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 620 S.E.2d 463 (2005).
Trial court erred in a breach of contract case by failing to set forth any findings of fact, conclusions of law, or the statutory subsection to support an award of attorneys fees and costs granted to an asphalt company in the amount of $600,000 as a result of the company successfully moving to exclude evidence under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702). The trial court's two page order merely reciting the company's successful motion was too vague and conclusionary to permit any meaningful appellate review of the award of attorney fees and expenses of litigation under O.C.G.A. § 9-15-14. Ga. Dep't of Transp. v. Douglas Asphalt Co., 295 Ga. App. 421, 671 S.E.2d 899 (2009).
Post-judgment motions for fees does not toll time to appeal from final judgment.
- Supreme court was without jurisdiction to review the propriety or substance of the trial court's order denying the property owners' motion for new trial because the owners failed to timely file a notice of appeal in regard to that order and the builders' post-judgment motions for fees under O.C.G.A. §§ 9-11-68 and9-15-14 did not toll the time for the owners' to appeal from the order denying the owners' motion for new trial; the trial court entered a final judgment on October 4, 2007, and the owners' filing of a motion for new trial tolled the time for appeal under O.C.G.A. § 5-6-38(a), but as soon as the trial court issued the court's order disposing of the motion for new trial, the thirty-day time period to file a notice of appeal began to run, and the owners' filed the motion for new trial on March 9, 2009. O'Leary v. Whitehall Constr., 288 Ga. 790, 708 S.E.2d 353 (2011).
Inapplicable to post-judgment proceedings.
- In a post-judgment discovery dispute, an award of attorney's fees under O.C.G.A. § 9-15-14(b) was error because that statute did not apply to post-judgment discovery; however, the case was remanded to consider whether fees were appropriate under O.C.G.A. § 9-11-37(a)(4)(A), in connection with the grant of a protective order to the judgment debtor. CEI Servs. v. Sosebee, 344 Ga. App. 508, 811 S.E.2d 20 (2018), overruled on other grounds, Workman v. RL BB ACQ I-GA CVL, LLC, 303 Ga. 693, 814 S.E.2d 696 (2018).
Pending motion when final judgment entered does not extend time for appeal.
- Hospital's motion to dismiss an appeal was granted because the order granting summary judgment was a final judgment since the order concluded the case and the fact that the ancillary issue of the cost award under O.C.G.A. § 9-11-4(d) remained pending did not prevent the judgment from being final for purposes of O.C.G.A. §§ 5-6-34(a)(1) and5-6-38(a); thus, the appeal was untimely since the appeal was brought outside of the 30-day time frame from the trial court's entry of judgment. Edokpolor v. Grady Mem. Hosp. Corp., 338 Ga. App. 704, 791 S.E.2d 589 (2016).
Standards of review.
- Because an award of attorney's fees and expenses of litigation is mandatory under subsection (a) of O.C.G.A. § 9-15-14, the standard of review by an appellate court is the "any evidence" rule. Haggard v. Board of Regents, 257 Ga. 524, 360 S.E.2d 566 (1987).
Because an award of attorney's fees and expenses of litigation is discretionary under subsection (b) of O.C.G.A. § 9-15-14, the standard of review by an appellate court is whether the lower court abused the court's discretion in making the award. Haggard v. Board of Regents, 257 Ga. 524, 360 S.E.2d 566 (1987); Atlanta Propeller Serv., Inc. v. Hoffman GMBH & Co., 191 Ga. App. 529, 382 S.E.2d 109, cert. denied, 191 Ga. App. 921, 382 S.E.2d 109 (1989).
In determining whether a trial court erroneously assessed attorney's fees under subsection (b) of O.C.G.A. § 9-15-14, the standard of review is an "abuse of discretion." Griffiths v. Phenix Supply Co., 192 Ga. App. 651, 385 S.E.2d 789 (1989).
Award of attorney's fees pursuant to subsection (b) of O.C.G.A. § 9-15-14 is discretionary and the standard of review is an abuse of discretion. Haywood v. Aerospec, Inc., 193 Ga. App. 479, 388 S.E.2d 367, cert. denied, 193 Ga. App. 910, 388 S.E.2d 367 (1989).
Standard of review for motions under subsection (a) of O.C.G.A. § 9-15-14 is the "any evidence" rule, and the standard of review for motions under subsection (b) of § 9-15-14 is the "abuse of discretion" rule. Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 406 S.E.2d 121 (1991).
Standard of review for awards of attorney's fees and expenses of litigation is the "any evidence" standard. Covrig v. Miller, 199 Ga. App. 864, 406 S.E.2d 239 (1991).
Authority of superior court sitting in appellate capacity.
- O.C.G.A. § 9-15-14 authorizes a superior court to assess attorney's fees against a party or that party's counsel who has prosecuted a frivolous appeal from a workers' compensation award of the Administrative Law Judge or the full board in the superior court. Contract Harvesters v. Clark, 211 Ga. App. 297, 439 S.E.2d 30 (1993); Vulcan Materials Co. v. Pritchett, 227 Ga. App. 530, 489 S.E.2d 558 (1997).
O.C.G.A. § 9-15-14 provided authority for the imposition of sanctions for an appeal to the superior court in a proceeding which resulted in no money award. Osofsky v. Board of Mayor & Comm'rs, 237 Ga. App. 404, 515 S.E.2d 413 (1998).
Arbitration of attorney's fees incurred on appeal.
- Contractor, who successfully defended an arbitration award on appeal, was not limited to then seeking attorney's fees for frivolous litigation before the trial court pursuant to O.C.G.A. § 9-15-14 but could submit the appellate fee dispute to arbitration as the issue of attorney's fees was governed by the arbitration provision in a contract between the contractor and a county. Yates Paving & Grading Co. v. Bryan County, 265 Ga. App. 578, 594 S.E.2d 756 (2004).
Review of merits prohibited.
- Court of Appeals would not address the merits of the appellee's motion for attorney's fees under O.C.G.A. § 9-15-14 for such a motion properly addresses itself to the trial court for disposition. Chrysler Corp. v. Marinari, 182 Ga. App. 399, 355 S.E.2d 719 (1987).
Trial court properly awarded attorney fees and expenses to a welder as an injured party failed to show that the injured party was justified in seeking punitive damages or attorney fees based on a difficult welding job and the case did not involve special circumstances of aggravation or outrage; further, the injured party failed to show that the party had information that led the party to believe that the party was entitled to punitive damages or attorney fees. Trotter v. Summerour, 273 Ga. App. 263, 614 S.E.2d 887 (2005).
Award of attorney fees in client's claim against real estate broker was appropriate.
- When a business broker's client sought attorney fees against the broker, under O.C.G.A. § 9-15-14(b), after the broker sued the client for a commission, such an award was proper because many of the broker's claims lacked substantial justification as only five of the 16 counts filed survived for submission to the jury as many were duplicative or lacked any basis in law or fact, and the broker's counsel engaged in improper conduct which unnecessarily expanded the proceeding. Bienert v. Dickerson, 276 Ga. App. 621, 624 S.E.2d 245 (2005).
Improper service.
- Although a former employer failed to properly serve papers, including a summary judgment motion, on the former employee's counsel at counsel's new address, despite a change of address having been provided, pursuant to Ga. Ct. App. R. 1(a) and Ga. Ct. App. R. 6, the appellate court denied the employee's motion to dismiss the appeal and, instead, the court reviewed the matter on the merits; the improper service was asserted as a ground for an award of attorney fees, pursuant to O.C.G.A. § 9-15-14, and such award would be subject to appellate review under O.C.G.A. § 5-6-35(a)(10). Whimsical Expressions, Inc. v. Brown, 275 Ga. App. 420, 620 S.E.2d 635 (2005).
Appeal did not address attorney's fee award.
- Defendant's challenge of award of attorney's fees to plaintiff based on the frivolous nature of the defendant's adverse possession defense to an ejectment action was not properly before the court of appeals because the defendant's appeal was from the dismissal of the defendant's prior appeal rather than from the underlying claim. Boveland v. YWCA, 227 Ga. App. 241, 489 S.E.2d 35 (1997).
Decision on discretionary appeal had res judicata effect.
- As property owners' application for a discretionary appeal as to the trial court's order that awarded a business entity attorney fees was previously denied, that decision was res judicata with respect to the issue of the fees; accordingly, the owners could not seek a second review by appealing the award of fees. Elrod v. Sunflower Meadows Dev., LLC, 322 Ga. App. 666, 745 S.E.2d 846 (2013).
Appeal from order awarding sanction.
- Order imposing a monetary sanction for wilfully failing to attend a scheduled post-judgment deposition was in the nature of an award for frivolous litigation and required an application for discretionary appeal. Bonnell v. Amtex, Inc., 217 Ga. App. 378, 457 S.E.2d 590 (1995).
Order imposing a sanction for unnecessarily expanding a proceeding was in the nature of an award for frivolous litigation within the purview of subsection (b) of O.C.G.A. § 9-15-14 and, as such, was not directly appealable, but required an application pursuant to discretionary appeal procedures. Hill v. Doe, 239 Ga. App. 869, 522 S.E.2d 471 (1999).
Award reviewable on direct appeal.
- Award of attorney fees under both subsections (a) and (b) of O.C.G.A. § 9-15-14 was reviewable on direct appeal along with a judgment under O.C.G.A. § 51-7-83, relating to the measure of damages for abusive litigation. Hallman v. Emory Univ., 225 Ga. App. 247, 483 S.E.2d 362 (1997).
Remand for determination of attorney fees required.
- Remand on the issue of attorney fees was necessary because it was unclear whether any part of the award flowed from the husband's litigation of remedies for contempt that was reversed. Sponsler v. Sponsler, 301 Ga. 600, 800 S.E.2d 564 (2017).
Failure to ensure award included only fees based on sanctioned conduct.
- Trial court erred by awarding the adoptive mother an unapportioned or lump sum award of fees without indicating how that award was apportioned to include only fees and expenses generated based on the birth mother's sanctionable conduct. Butler v. Lee, 336 Ga. App. 102, 783 S.E.2d 704 (2016).
RESEARCH REFERENCES
ALR.
- Attorney's fees: obduracy as basis for state-court award, 49 A.L.R.4th 825.
Attorneys' fees: cost of services provided by paralegals or the like as compensable element of award in state court, 73 A.L.R.4th 938.
Validity, construction, and application of state vexatious litigant statutes, 45 A.L.R.6th 493.
Application of Anti-SLAPP ("Strategic Lawsuit Against Public Participation") statutes to real estate development, land use, and zoning disputes, 64 A.L.R.6th 365.
Application of anti-SLAPP ("Strategic Lawsuit Against Public Participation") statutes to invasion of privacy claim, 85 A.L.R.6th 475.