NUGENT Et Al. v. A1 AMERICAN REFRIGERATION, LLC. , 346 Ga. App. 147 ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 6, 2018
In the Court of Appeals of Georgia
A18A0448. NUGENT et al. v. A1 AMERICAN REFRIGERATION,
LLC.
REESE, Judge.
Dorothy Nugent appeals the award of attorney fees against her, and the denial
of her motion for attorney fees, in relation to a lawsuit filed against her. For the
reasons set forth infra, we affirm.
The salient facts are as follows. On September 25, 2015, A1 American
Refrigeration, LLC (“A1”) filed suit against Nugent and Wells Fargo Bank, N.A.,1
claiming, conversion, money had and received, fraud, negligence, breach of fiduciary
duty, negligent misrepresentation, and seeking attorney fees, costs and litigation
expenses, and punitive damages. Nugent filed an answer, denying A1’s claims. In
1
Wells Fargo Bank, N.A. is not a party to this appeal.
November 2015, Nugent sent A1 a letter, pursuant to OCGA § 51-7-84 (a),2 seeking
dismissal of the lawsuit against her. A1 responded to Nugent in December 2015,
declining to dismiss the lawsuit and stating “[u]nless and until [Nugent] presents
evidence which definitively establishes that A1’s claims against her lack merit, there
is no obligation to withdraw or dismiss said claims.” In April 2016, A1 filed an
amended complaint, adding a claim for prejudgment interest.
The parties engaged in discovery,3 and, on September 30, 2016, A1 dismissed
its lawsuit without prejudice. On November 14, 2016, Nugent filed a motion for
attorney fees and expenses. A1 opposed the motion and filed a cross-motion for
attorney fees and expenses.
2
OCGA § 51-7-84 (a) states in pertinent part,
[a]s a condition precedent to any claim for abusive litigation, the person
injured by such act shall give written notice by registered or certified
mail or statutory overnight delivery or some other means evidencing
receipt by the addressee to any person against whom such injured person
intends to assert a claim for abusive litigation and shall thereby give the
person against whom an abusive litigation claim is contemplated an
opportunity to voluntarily withdraw, abandon, discontinue, or dismiss
the civil proceeding, claim, defense, motion, appeal, civil process, or
other position.
3
No depositions are part of the appellate record.
2
After a hearing, the trial court denied Nugent’s motion and granted A1’s
motion for attorney fees and expenses in the amount of $8,250 under OCGA § 9-15-
14 (a) and (b).4 Nugent filed a motion for reconsideration, which the trial court
denied. We granted discretionary review.
4
OCGA § 9-15-14 (a) states:
In any civil action in any court of record of this state, reasonable and
necessary attorney’s fees and expenses of litigation shall be awarded to
any party against whom another party has asserted a claim, defense, or
other position 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,
defense, or other position. Attorney’s fees and expenses so awarded
shall be assessed against the party asserting such claim, defense, or other
position, or against that party’s attorney, or against both in such manner
as is just.
OCGA § 9-15-14 (b) states:
The court may assess reasonable and necessary attorney’s fees and
expenses of litigation in any civil action in any court of record if, upon
the motion of any party or the court itself, it finds that an attorney or
party brought or defended an action, or any part thereof, that lacked
substantial justification or that the action, or any part thereof, was
interposed for delay or harassment, or if it finds that an attorney or party
unnecessarily expanded the proceeding by other improper conduct,
including, but not limited to, abuses of discovery procedures available
under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used
in this Code section, “lacked substantial justification” means
substantially frivolous, substantially groundless, or substantially
vexatious.
3
Subsection (a) of OCGA § 9-15-14 requires an award of attorney
fees when a party asserts “a claim, defense, or other position 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, defense, or other position.” Subsection
(b), among other things, gives discretion to a trial court to award
attorney fees when a party brings or defends an action “that lacked
substantial justification.”5
This Court will affirm an award under OCGA § 9-15-14 (a) if there is any evidence
to support it, whereas we review an award under OCGA § 9-15-14 (b) for abuse of
discretion.6 With these guiding principles in mind, we turn now to Nugent’s specific
claims of error.
1. Nugent argues that the trial court erred by failing to identify, as the basis for
the award, the specific sanctionable conduct, show the breakdown of the amount of
attorney fees that were attributable to the sanctioned conduct, and provide the
applicable subsection of OCGA § 9-14-15. A1 asserts that Nugent has already paid
the $8,250 attorney fee award and, therefore, this appeal is moot.
5
Shiv Aban, Inc. v. Ga. Dept. of Transp., 336 Ga. App. 804, 814 (2) (784 SE2d
134) (2016) (citation omitted).
6
Id. at 814-815 (2).
4
It is well settled that an appeal may be dismissed “[w]here the questions
presented have become moot.”7 “The voluntary payment of the judgment by an
appellant renders moot the issues sought to be determined on appeal.”8
As a general rule, any voluntary act by a party, with knowledge of the
facts, by which he expressly or impliedly recognizes the validity and
correctness of a judgment against him, will operate as a waiver of his
right to bring error to reverse it, as where he receives affirmative relief
under the judgment or takes a position inconsistent with his right of
review.9
In the present case, the record does not show a payment by Nugent of attorney
fees to A1. However, Nugent stated in her reply brief that she involuntarily paid A1
the attorney fees and “was compelled to pay money by the court order and by a letter
written by A1’s [c]ounsel, which demanded payment of the judgment immediately or
threatened to impose interest in accordance with Georgia law.” The trial court’s order
awarding attorney fees did not indicate when the award was to be paid, and neither
party contests that the $8,250 award was paid to A1 by Nugent. Based on the above,
7
OCGA § 5-6-48 (b) (3).
8
Claxton Enterprise v. Evans County Bd. of Commrs., 249 Ga. App. 870, 872
(1) (549 SE2d 830) (2001) (citation and punctuation omitted; emphasis in original).
9
Id. (citation and punctuation omitted).
5
we find that Nugent has taken a position inconsistent with her right to appeal the trial
court’s $8,250 award of attorney fees.10 Even though her filing of the notice of appeal
served as supersedeas while the appeal was pending, she paid the judgment.11
Therefore, Nugent’s appeal as to this enumerated error is moot.12
2. Nugent asserts that the trial court erred in denying her motion for attorney
fees and costs. We disagree.
An award under OCGA § 9-15-14 (b) is within the discretion of the trial court
and is not automatic.13 Further, “trial judges have broad discretion in controlling
10
Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 480 (1)
(a) (382 SE2d 150) (1989) (“Acquiescence completely deprives [a party] of the right
to complain further; [s]he has agreed that the trial court’s ruling was correct by
submitting to it.”) (citations and punctuation omitted); see also J & F Car Care Svc.
v. Russell Corp., 166 Ga. App. 888 (305 SE2d 504) (1983) (“The principle is well
established that, no matter how erroneous a ruling may be, a litigant may not submit
or acquiesce in such ruling and still complain of the same.”) (citation omitted).
11
See OCGA § 5-6-46 (a).
12
See Imperial Body Works v. Nat. Claims Svc., 158 Ga. App. 241, 243 (2)
(279 SE2d 534) (1981) (Finding that the Appellant’s argument that it involuntarily
paid a judgment unpersuasive because it failed to utilize the supersedeas
automatically generated by law.).
13
See Coker v. Mosley, 259 Ga. 781, 782 (2) (c) (387 SE2d 135) (1990)
(Merely defending an action brought against a party is insufficient to authorize an
award of legal fees under OCGA § 9-15-14.); Stewart v. Tricord, LLC, 296 Ga. App.
834, 836 (1) (676 SE2d 229) (2009) (The trial court did not abuse its discretion by
6
discovery, including imposition of sanctions, and appellate courts will not reverse a
trial court’s decision on such matters unless there has been a clear abuse of
discretion.”14
No one is bound to forego litigation at the expense of yielding rights
apparently well founded. Where there is a bona fide controversy for the
tribunals to settle, and the parties cannot adjust it amicably, there should
be no burdening of one with the counsel fees of the other, unless there
has been wanton or excessive indulgence in litigation.15
The appellate record shows that in a brief time period, the parties conducted
discovery and intensely litigated this matter. Based on our review of the record, the
trial court did not abuse its discretion in denying Nugent’s motion for attorney fees
and costs.16
Judgment affirmed. Barnes, P. J., and McMillian, J., concur.
failing to award attorney fees under OCGA § 9-15-14 (b), although the record
reflected lengthy, acrimonious litigation between the parties.).
14
Doe v. Hgi Realty, 254 Ga. App. 181, 184 (561 SE2d 450) (2002) (citation
omitted).
15
McNair v. McNair, 343 Ga. App. 41, 46 (2) (805 SE2d 655) (2017)
(punctuation, footnotes, and emphasis omitted).
16
See Campbell v. The Landings Assn., 311 Ga. App. 476, 483 (6) (716 SE2d
543) (2011) (Despite the contentiousness of the litigation, the trial court did not abuse
its discretion by denying the request for attorney fees.).
7