Hagemann v

City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008). 9-15-14 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). 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 420 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). 9-15-14 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 421 Procedure (Cont’d) 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). 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). 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 9-15-14 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 collec- 422 tion 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). 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). 9-15-14 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 423 Procedure (Cont’d) 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). 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 9-15-14 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 424 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). 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). 9-15-14 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 425 Procedure (Cont’d) 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, No. 03-92256-MGD, 2006 Bankr. LEXIS 2322 (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.