Post by Jim on Mar 2, 2009 7:02:17 GMT -5
263 Ga. App. 239; Mary A. Stearns P.C. v. Williams-Murphy; 587 SE2d 247 This is an appeal from a March 24, 2003 order of the Superior Court of Bartow County in which respondent Mary A. Stearns ("Stearns") was ordered to release a file relating to her representation of a former client, Laura E. Williams-Murphy ("Williams-Murphy"), in an ongoing suit and holding Stearns in contempt for disobeying an earlier court order instructing her to release the file. In several enumerations which run together as to substance, Stearns claims error in the superior court's rulings. For the reasons that follow, we affirm the judgment of the court below.
OCGA § 9--11--60,
OCGA § 9--11--26 (b).
OCGA § 15--19--14 (a).
181 Ga. App. 281; GILBERT v. E & W CONSTRUCTION CO., INC.; 351 SE2d 523
OCGA § 9-11-37 (d) (1), which provides, in pertinent part, as follows: "In lieu of any order, or in addition thereto, the court shall require the party failing to act or the attorney advising him, or both, to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." (Emphasis supplied.) It has previously been held that "[w]hat are reasonable attorney fees are a matter of proof as a general rule." Citibank v. Hill, 161 Ga. App. 186, 187
214 Ga. App. 29; MITCHAM v. BLALOCK; 447 SE2d 83
On the contrary, plaintiff's attorney explained (in a letter to the trial court) that his client could not come up with $1,286.25 on such short notice. Under these circumstances and in light of our holding in Division 2 of this opinion, we find dismissal of plaintiff's complaint pursuant to OCGA § 9-11-37 (b) (2) (C) too harsh a sanction. See Campbell v. Gormley, 185 Ga. 65, 66 (2) (194 S.E. 177). Consequently, the trial court erred in dismissing plaintiff's complaint because plaintiff failed to obey the trial court's order to pay attorney fees in the amount of $1,286.25 within ten days of March 1, 1993. See Serwitz v. Gen. Elec. Credit Corp., 184 Ga. App. 632, 633 (362 S.E.2d 439).
261 Ga. App. 370; Cotting v. Cotting; 582 SE2d 527In Case No. A03A0540, Mr. Cotting challenges the $7,000 fee award in the enforcement action. In Case No. A03A0541, he appeals the award in the modification action. He argues that the three statutes cited by Mrs. Cotting --- OCGA §§ 9-15-14, 9-11-37 (a) (4) (B), and 19-6-2 --- do not support an attorney fee award in either case. Although we cannot address most of Mr. Cotting's arguments on the merits, we agree that the orders, as written, cannot stand
1. OCGA § 9-15-14 authorizes, and in some cases requires, a trial court to award attorney fees to a party forced to defend against groundless and frivolous litigation. Mrs. Cotting asserts that the frivolous nature of the enforcement action supports the $7,000 fee award.
The trial court, however, did not include any factual findings in its order granting those fees. And "[w]hen a judgment awards legal fees or expenses of litigation under OCGA § 9-15-14, but contains no findings by the trial court of conduct that would authorize the award, that portion of the judgment must be vacated."(fn1) To the extent the May 20, 2002 fee award rests on OCGA § 9-15-14, therefore, we must vacate the award and remand this case to the trial court for appropriate findings of fact.(fn2)
2. Furthermore, even if the trial court based its May 20, 2002 award on OCGA § 19-6-2 or § 9-11-37 (a) (4) (B), remand is necessary. Under OCGA § 19-6-2, a court may award attorney fees in an action "for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation." OCGA § 9-11-37 (a) (4) (B), on the other hand, relates to fees generated during discovery. Pursuant to that provision, a trial court that denies a motion to compel may order
3. As in Case No. A03A0540, the May 20, 2002 fee order in the modification action is skeletal. To the extent the award relies on OCGA § 9-15-14, therefore, we must vacate and remand for factual findings.(fn6)
4. Finally, we must reverse any portion of the fee award based on OCGA § 19-6-2 or § 9-11-37 (a) (4) (B). Unlike the enforcement action, this case focuses solely on custody modification and has no contempt allegations. It thus falls outside the parameters of OCGA § 19-6-2, which does not authorize an attorney fee award in a custody modification suit.(fn7) Furthermore, the record lacks any evidence that the parties actively conducted discovery or filed motions to compel in this case before the dismissal.(fn8) The discovery sanctions in OCGA § 9-11-37(a) (4) (B), therefore, do not support a fee award in the modification action.
2008-GA-0924.100; McFARLAND & McFARLAND, P.C. v. HOLTZCLAW;
Despite McFarland's assertions to the contrary, there is no requirement that a trial court hold a hearing on every motion for discovery sanctions. See OCGA § 9-11-37 (d); Ryland Group v. Daley, 245 Ga. App. 496, 501 (4) (537 S.E.2d 732) (2000). Rather, a trial court is obligated to hold a hearing on a motion for discovery sanctions only where it is contemplating the "imposition of the ultimate sanction of dismissal or default judgment," for a party's willful failure to comply with the trial court's discovery order. Hernandez, supra, 200 Ga. App. at 369-370. In such cases, the court must afford the party against whom the sanctions are sought notice and the opportunity for a hearing, thereby affording that party a chance to demonstrate that its conduct was not willful. Id. See also GMC v. Conkle, 226 Ga. App. 34, 42 (1) (a) (486 S.E.2d 180) (1997) ("Punishment should not be imposed on a party to a civil case for conduct which is ancillary to the merits of the case and which occurs during the life of the case without a consideration of the nonmovant's defense of its conduct.") These holdings, however, do not support the proposition that one seeking discovery sanctions must be afforded, as a matter of right, a hearing on the issue of whether they are entitled to such sanctions. And McFarland's brief offers no argument, legal or otherwise, as to why we should find the existence of such a right. Accordingly, McFarland's sole claim of error is without merit.
See OCGA § 9-11-37 (d) (A trial court need not award attorney fees and expenses where it finds that a party's failure to comply with a discovery order "was substantially justified.")
280 Ga. 750; McGAHEE v. ROGERS;
2. When Ms. Rogers filed her amended motion which included the prayer for attorney's fees, she did not cite any statutory authority for seeking such an award. Now, on appeal, she contends that she was relying on OCGA § 19-6-2 and that the trial court's award is premised on that statute. Under that provision, however, "an award of attorney's fees depends on the parties' financial circumstances, not their wrongdoing. [Cit.]" Gomes v. Gomes, 278 Ga. 568, 569 (604 SE2d 486) (2004). The trial court's award of attorney's fees to Ms. Rogers is not predicated on economic standing, but on McGahee's "stubborn stance" which "forced the unnecessary expansion and increased expense of this proceeding. . . ." This language is not consistent with an award of attorney's fees under OCGA § 19-6-2. Compare Mixon v. Mixon, 278 Ga. 446 (2) (603 S.E.2d 287) (2004). Instead, the wording clearly indicates an award under OCGA § 9-15-14 (b), which authorizes
Here, attorney's fees under OCGA § 9-15-14 (b) were not authorized because the trial court never provided proper notice to McGahee that such an award was under consideration. Williams v. Cooper, 280 Ga. 145, 146 (1) (625 S.E.2d 754) (2006). Moreover, there is simply no evidence of any "improper conduct" on his part which unnecessarily expanded the proceeding. He asserted the discharge in bankruptcy defense from the outset. The first appeal was brought by Ms. Rogers because the trial court erroneously held that it had no jurisdiction to determine whether the debts were discharged. Accordingly, Rogers v. McGahee, supra, was a necessary expansion of the proceedings attributable to her, and not an unnecessary expansion attributable to him. Moreover, attorney's fees incurred in connection with appellate proceedings are not recoverable under OCGA § 9-15-14. Department of Transp. v. Franco's Pizza & Delicatessen, 200 Ga. App. 723, 728 (5) (409 S.E.2d 281) (1991), overruled on other grounds, White v. Fulton County, 264 Ga. 393, 394 (1) (444 S.E.2d 734) (1994). After remand and return of the case to the trial court, McGahee was justified in maintaining a "stubborn stance" with regard to his discharge in bankruptcy defense, since, for the reasons discussed in Division 1, he was entitled to prevail on that defense. Therefore, the trial court erred in awarding attorney's fees pursuant to OCGA § 9-15-14 (b).
The question thus arises whether the case should be remanded so that the trial court can consider an award of attorney's fees under OCGA § 19-6-2. That statute is authority for an award of attorney's fees "where a finding of contempt is authorized. [Cits.]" Brown v. Brown, 237 Ga. 122, 124 (2) (227 S.E.2d 14) (1976), overruled on other grounds, Ensley v. Ensley, 239 Ga. 860, 864 (238 S.E.2d 920) (1977). Thus, an award of attorney's fees under OCGA § 19-6-2 in this case would require a "determin[ation] whether [McGahee] violated [the divorce decree]." Todd v. Casciano, 256 Ga. App. 631, 638 (3) (569 S.E.2d 566) (2002). For the reasons discussed in Division 1, however, a finding that he was in contempt for violating the decree was not authorized. Therefore, an award of attorney's fees based upon a finding that he was in contempt would likewise be unauthorized. See Knott v. Knott, supra at 381 (1). Accordingly, there is no basis for remanding for reconsideration of awarding attorney's fees to Ms. Rogers.
Judgment reversed. All the Justices concur.
OCGA § 9--11--60,
OCGA § 9--11--26 (b).
OCGA § 15--19--14 (a).
181 Ga. App. 281; GILBERT v. E & W CONSTRUCTION CO., INC.; 351 SE2d 523
OCGA § 9-11-37 (d) (1), which provides, in pertinent part, as follows: "In lieu of any order, or in addition thereto, the court shall require the party failing to act or the attorney advising him, or both, to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." (Emphasis supplied.) It has previously been held that "[w]hat are reasonable attorney fees are a matter of proof as a general rule." Citibank v. Hill, 161 Ga. App. 186, 187
214 Ga. App. 29; MITCHAM v. BLALOCK; 447 SE2d 83
On the contrary, plaintiff's attorney explained (in a letter to the trial court) that his client could not come up with $1,286.25 on such short notice. Under these circumstances and in light of our holding in Division 2 of this opinion, we find dismissal of plaintiff's complaint pursuant to OCGA § 9-11-37 (b) (2) (C) too harsh a sanction. See Campbell v. Gormley, 185 Ga. 65, 66 (2) (194 S.E. 177). Consequently, the trial court erred in dismissing plaintiff's complaint because plaintiff failed to obey the trial court's order to pay attorney fees in the amount of $1,286.25 within ten days of March 1, 1993. See Serwitz v. Gen. Elec. Credit Corp., 184 Ga. App. 632, 633 (362 S.E.2d 439).
261 Ga. App. 370; Cotting v. Cotting; 582 SE2d 527In Case No. A03A0540, Mr. Cotting challenges the $7,000 fee award in the enforcement action. In Case No. A03A0541, he appeals the award in the modification action. He argues that the three statutes cited by Mrs. Cotting --- OCGA §§ 9-15-14, 9-11-37 (a) (4) (B), and 19-6-2 --- do not support an attorney fee award in either case. Although we cannot address most of Mr. Cotting's arguments on the merits, we agree that the orders, as written, cannot stand
1. OCGA § 9-15-14 authorizes, and in some cases requires, a trial court to award attorney fees to a party forced to defend against groundless and frivolous litigation. Mrs. Cotting asserts that the frivolous nature of the enforcement action supports the $7,000 fee award.
The trial court, however, did not include any factual findings in its order granting those fees. And "[w]hen a judgment awards legal fees or expenses of litigation under OCGA § 9-15-14, but contains no findings by the trial court of conduct that would authorize the award, that portion of the judgment must be vacated."(fn1) To the extent the May 20, 2002 fee award rests on OCGA § 9-15-14, therefore, we must vacate the award and remand this case to the trial court for appropriate findings of fact.(fn2)
2. Furthermore, even if the trial court based its May 20, 2002 award on OCGA § 19-6-2 or § 9-11-37 (a) (4) (B), remand is necessary. Under OCGA § 19-6-2, a court may award attorney fees in an action "for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation." OCGA § 9-11-37 (a) (4) (B), on the other hand, relates to fees generated during discovery. Pursuant to that provision, a trial court that denies a motion to compel may order
3. As in Case No. A03A0540, the May 20, 2002 fee order in the modification action is skeletal. To the extent the award relies on OCGA § 9-15-14, therefore, we must vacate and remand for factual findings.(fn6)
4. Finally, we must reverse any portion of the fee award based on OCGA § 19-6-2 or § 9-11-37 (a) (4) (B). Unlike the enforcement action, this case focuses solely on custody modification and has no contempt allegations. It thus falls outside the parameters of OCGA § 19-6-2, which does not authorize an attorney fee award in a custody modification suit.(fn7) Furthermore, the record lacks any evidence that the parties actively conducted discovery or filed motions to compel in this case before the dismissal.(fn8) The discovery sanctions in OCGA § 9-11-37(a) (4) (B), therefore, do not support a fee award in the modification action.
2008-GA-0924.100; McFARLAND & McFARLAND, P.C. v. HOLTZCLAW;
Despite McFarland's assertions to the contrary, there is no requirement that a trial court hold a hearing on every motion for discovery sanctions. See OCGA § 9-11-37 (d); Ryland Group v. Daley, 245 Ga. App. 496, 501 (4) (537 S.E.2d 732) (2000). Rather, a trial court is obligated to hold a hearing on a motion for discovery sanctions only where it is contemplating the "imposition of the ultimate sanction of dismissal or default judgment," for a party's willful failure to comply with the trial court's discovery order. Hernandez, supra, 200 Ga. App. at 369-370. In such cases, the court must afford the party against whom the sanctions are sought notice and the opportunity for a hearing, thereby affording that party a chance to demonstrate that its conduct was not willful. Id. See also GMC v. Conkle, 226 Ga. App. 34, 42 (1) (a) (486 S.E.2d 180) (1997) ("Punishment should not be imposed on a party to a civil case for conduct which is ancillary to the merits of the case and which occurs during the life of the case without a consideration of the nonmovant's defense of its conduct.") These holdings, however, do not support the proposition that one seeking discovery sanctions must be afforded, as a matter of right, a hearing on the issue of whether they are entitled to such sanctions. And McFarland's brief offers no argument, legal or otherwise, as to why we should find the existence of such a right. Accordingly, McFarland's sole claim of error is without merit.
See OCGA § 9-11-37 (d) (A trial court need not award attorney fees and expenses where it finds that a party's failure to comply with a discovery order "was substantially justified.")
280 Ga. 750; McGAHEE v. ROGERS;
2. When Ms. Rogers filed her amended motion which included the prayer for attorney's fees, she did not cite any statutory authority for seeking such an award. Now, on appeal, she contends that she was relying on OCGA § 19-6-2 and that the trial court's award is premised on that statute. Under that provision, however, "an award of attorney's fees depends on the parties' financial circumstances, not their wrongdoing. [Cit.]" Gomes v. Gomes, 278 Ga. 568, 569 (604 SE2d 486) (2004). The trial court's award of attorney's fees to Ms. Rogers is not predicated on economic standing, but on McGahee's "stubborn stance" which "forced the unnecessary expansion and increased expense of this proceeding. . . ." This language is not consistent with an award of attorney's fees under OCGA § 19-6-2. Compare Mixon v. Mixon, 278 Ga. 446 (2) (603 S.E.2d 287) (2004). Instead, the wording clearly indicates an award under OCGA § 9-15-14 (b), which authorizes
Here, attorney's fees under OCGA § 9-15-14 (b) were not authorized because the trial court never provided proper notice to McGahee that such an award was under consideration. Williams v. Cooper, 280 Ga. 145, 146 (1) (625 S.E.2d 754) (2006). Moreover, there is simply no evidence of any "improper conduct" on his part which unnecessarily expanded the proceeding. He asserted the discharge in bankruptcy defense from the outset. The first appeal was brought by Ms. Rogers because the trial court erroneously held that it had no jurisdiction to determine whether the debts were discharged. Accordingly, Rogers v. McGahee, supra, was a necessary expansion of the proceedings attributable to her, and not an unnecessary expansion attributable to him. Moreover, attorney's fees incurred in connection with appellate proceedings are not recoverable under OCGA § 9-15-14. Department of Transp. v. Franco's Pizza & Delicatessen, 200 Ga. App. 723, 728 (5) (409 S.E.2d 281) (1991), overruled on other grounds, White v. Fulton County, 264 Ga. 393, 394 (1) (444 S.E.2d 734) (1994). After remand and return of the case to the trial court, McGahee was justified in maintaining a "stubborn stance" with regard to his discharge in bankruptcy defense, since, for the reasons discussed in Division 1, he was entitled to prevail on that defense. Therefore, the trial court erred in awarding attorney's fees pursuant to OCGA § 9-15-14 (b).
The question thus arises whether the case should be remanded so that the trial court can consider an award of attorney's fees under OCGA § 19-6-2. That statute is authority for an award of attorney's fees "where a finding of contempt is authorized. [Cits.]" Brown v. Brown, 237 Ga. 122, 124 (2) (227 S.E.2d 14) (1976), overruled on other grounds, Ensley v. Ensley, 239 Ga. 860, 864 (238 S.E.2d 920) (1977). Thus, an award of attorney's fees under OCGA § 19-6-2 in this case would require a "determin[ation] whether [McGahee] violated [the divorce decree]." Todd v. Casciano, 256 Ga. App. 631, 638 (3) (569 S.E.2d 566) (2002). For the reasons discussed in Division 1, however, a finding that he was in contempt for violating the decree was not authorized. Therefore, an award of attorney's fees based upon a finding that he was in contempt would likewise be unauthorized. See Knott v. Knott, supra at 381 (1). Accordingly, there is no basis for remanding for reconsideration of awarding attorney's fees to Ms. Rogers.
Judgment reversed. All the Justices concur.
