Multibank 2009-1 RES-ADC Venture, LLC v. Savannah River Club, LLC ( 2014 )

Andrews, Presiding Judge.

Multibank 2009-1 RES-ADC Venture, LLC (“Multibank”) first filed the underlying complaint for breach of promissory note and guaranty agreements against Savannah River Club, LLC, Gerard M. Koehn, Steven L. Stamm, John Visser, Frank Montagna, Goldridge Group, LLP, and MV Developments (collectively “SRC”) in the United States District Court for the Northern District of Georgia and later filed a suggestion of lack of jurisdiction in that court. The district court concluded that it lacked subject matter jurisdiction and dismissed the case without prejudice. Multibank refiled its complaint in the Superior Court of Gwinnett County. The Gwinnett County trial court thereafter granted Multibank’s motion for summary judgment on its claims for breach of promissory note and guaranty agreements, dismissed SRC’s counterclaim for setoff recoupment of damages, and denied Multibank’s motion for summary judgment on SRC’s counterclaim for OCGA § 13-6-11 bad faith attorney fees in the federal litigation of the case.

Multibank appeals from that portion of the trial court’s order denyingit summary judgment as to SRC’s counterclaim for OCGA § 13-6-11 attorney fees. Pertinently, Multibank argues that fees expended in a prior litigation are not recoverable under OCGA § 13-6-11. We agree. It is well settled that “a party cannot recover fees under authority of OCGA § 13-6-11 to the extent that the fees are expended in a prior legal proceeding.” In re Estate of Tapley, 312 Ga. App. 234, 237-238 (4) (718 SE2d 92) (2011). Here, the federal case was dismissed and re-filed in superior court. There was no remand.

Decided March 24, 2014. Schulten, Ward & Turner, Kevin L. Ward, J. Zachary Zimmerman, for appellant. McGee & Oxford, James J. Brissette, for appellees.

Judgment reversed.

Dillard and McMillian, JJ., concur.