Steve Bishop v. Michael W. Goins

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, 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
December 29, 2017
In the Court of Appeals of Georgia
A17A2058. BISHOP v. GOINS et al.
A17A2059. BISHOP et al. v. POWELL et al.
ELLINGTON, Presiding Judge.
In 2015, Steve and Jodi Bishop appealed from stalking protective orders that
the Superior Court of Jasper County entered on petitions filed by their neighbors,
Bernie and Michael Goins and Jana and Keith Powell (collectively, “the petitioners”).
This Court consolidated the cases and affirmed the orders in an unpublished
decision.1 The petitioners then filed motions for costs and attorney fees incurred in
the appellate proceedings. The trial court granted the petitioners’ motions for costs
and attorney fees. This Court granted the Bishops’ applications for discretionary
1
Case No. A16A0895, Bishop v. Goins; Case No. A16A0896, Bishop v. Goins; Case
No. A16A0897, Bishop et al. v. Powell et al., decided September 8, 2016.
appeal of the attorney fee awards to consider whether OCGA § 16-5-94 (d) (3)
authorizes such awards in connection with appellate proceedings. Finding that it does,
as explained below, we affirm.
As explained in detail in our September 8, 2016 decision, the record shows that
the Bishops had contentious relationships with the petitioners, who lived on the same
street in Monticello as the Bishops. The petitioners, acting pro se, obtained twelve-
month stalking protective orders against the Bishops in 2014.2 The Bishops did not
appeal from those orders.
One year later, the petitioners moved for a three-year extension of the
protective orders. At a hearing, the petitioners presented evidence to show that both
Steve and Jodi Bishop violated the twelve-month orders during the time that they
2
See OCGA § 16-5-94 (d) (“The [trial] court may grant a protective order or
approve a consent agreement to bring about a cessation of conduct constituting stalking.”).
A person commits the offense of stalking when he or she follows, places
under surveillance, or contacts another person at or about a place or places
without the consent of the other person for the purpose of harassing and
intimidating the other person.
OCGA § 16-5-90 (a) (1). The statute further provides that
the term “harassing and intimidating” means a knowing and willful course of
conduct directed at a specific person which causes emotional distress by
placing such person in reasonable fear for such person’s safety or the safety
of a member of his or her immediate family, by establishing a pattern of
harassing and intimidating behavior, and which serves no legitimate purpose.
Id.
2
were in effect. The trial court entered three-year protective orders against the Bishops
on November 10, 2015. After the Bishops filed notices of appeal from those orders,
the petitioners hired attorney Hays McQueen to handle the appeals.
This Court concluded that the petitioners had presented reasonable evidence
that the Bishops engaged in continued stalking after the entry of the twelve-month
protective orders and, therefore, that the trial court did not abuse its discretion in
extending the orders for three years under OCGA § 16-5-94 (d). After this Court
affirmed the orders, the petitioners filed motions for costs and attorney fees under
OCGA § 16-5-94 (d) (3). The motions expressly sought to recoup attorney fees
expended when the cases were on appeal to this Court. The trial court granted the
motions, awarding the Goinses $4,907.06 in attorney fees against Steve Bishop and
awarding the Powells $4,873.90 against both Jodi and Steve Bishop.
1. The Bishops contend that the trial court erred in failing to grant their motion
to dismiss the petitioners’ motions for costs and attorney fees. This Court affirmed
the stalking protective orders on September 8, 2016; the Powells filed their motion
for costs and attorney fees in the trial court on October 3, and the Goinses filed their
motion on October 5, 2016; the clerk of the trial court filed the remittiturs from this
Court on October 17, 2016. The Bishops argue that, because the petitioners’ filed
3
their motions for costs and attorney fees before the filing of the remittiturs, the
motions were not properly before the trial court “and any proceedings relative thereto
were a nullity.”
When a case is remanded from an appellate court to the trial court, the trial
court reacquires jurisdiction of a case on the date that its clerk files the remittitur of
the appellate court. Marsh v. Way, 255 Ga. 284 (1) (336 SE2d 795) (1985).3 Although
the trial court may be initially without jurisdiction to entertain a motion that is filed
before the trial court is re-invested with jurisdiction by the filing of the remittitur,
however, this does not mean that such a prematurely-filed motion may not be
considered by the trial court. Id. As the Supreme Court explained, when a trial court
acts on a motion after the filing of the remittitur, it is reasonable to conclude that the
trial court adopts that motion as a pending matter. Id. To hold that the trial court could
not properly consider a motion unless the movant takes “the redundant and
3
See also Hagan v. Robert & Co. Assocs., 222 Ga. 469, 470-471 (1) (150 SE2d 663)
(1966) (The jurisdiction of an appellate court over a case ends when its remittitur is
transmitted to and filed in the trial court, and the trial court is thereby reinvested with
jurisdiction over the case for all purposes to which such remittitur related.), abrogated by
Jackson v. State, 286 Ga. 407, 408 (688 SE2d 351) (2010); Marsh v. Way, 173 Ga. App.
399, 401 (2) (326 SE2d 499) (1985) (“[T]he date on which the trial court is re-invested
with jurisdiction of a case upon remand from the appellate court is the date of the actual
filing of the remittitur in the trial court[.]”) (citation omitted), affirmed, Marsh v. Way, 255
Ga. 284 (1) (336 SE2d 795) (1985).
4
perfunctory step of refiling the motion would place form over substance[.]” (Citation
and punctuation omitted.) Id. Moreover, the Supreme Court explained, a trial court
is authorized to hear motions orally presented to it during hearings. Id. Where the trial
court’s order stated that a motion was presented and argued at a hearing, “[t]he
motion, therefore, was effectively presented to the trial court.” (Citations and
punctuation omitted.) Id. at 284-285 (1) (citations omitted).
Here, the trial court entered its ruling on the petitioners’ motions for costs and
attorney fees on May 12, 2017, after it was re-invested with jurisdiction by the filing
of the remittitur. The Bishops’ argument lacks merit.
2. The Bishops contend that OCGA § 16-5-94 (d) (3) does not authorize the
award of costs and attorney fees incurred in connection with a litigant’s exercise of
the right to directly appeal the granting of a stalking protective order. We review a
trial court’s decision whether to award attorney fees for an abuse of discretion. Odum
v. Russell, _ Ga. App. _ (2) (802 SE2d 829) (2017) (fees awarded under OCGA §§
19-6-2 (a) and 19-9-3 (g)); de Louis v. Sheppard, 277 Ga. App. 768, 771 (3) (627
SE2d 846) (2006) (fees awarded under OCGA § 16-5-94 (d)).
“As a general rule, Georgia law does not provide for the award of attorney fees
even to a prevailing party unless authorized by statute or by contract.” Suarez v.
5
Halbert, 246 Ga. App. 822, 824 (543 SE2d 733) (2000). See Cason v. Cason, 281 Ga.
296, 299 (2) (637 SE2d 716) (2006) (accord); Cary v. Guiragossian, 270 Ga. 192,
195 (4) (508 SE2d 403) (1998) (accord). A determination of whether appellate fees
authorized by statute may be awarded turns on the language of the statute permitting
the recovery of attorney fees. Kautter v. Kautter, 286 Ga. 16, 19-20 (4) (c) (685 SE2d
266) (2009). The statute invoked by the petitioners, OCGA § 16-5-94 (d), provides,
in relevant part, that a “court may grant a protective order or approve a consent
agreement to bring about a cessation of conduct constituting stalking. Orders or
agreements may . . . [a]ward costs and attorney’s fees to either party[.]” OCGA § 16-
5-94 (d) (3).
When we interpret any statute, we necessarily begin our analysis with
familiar and binding canons of construction. In considering the meaning
of a statute, our charge as an appellate court is to presume that the
General Assembly meant what it said and said what it meant. Toward
that end, we must afford the statutory text its plain and ordinary
meaning, consider the text contextually, read the text in its most natural
and reasonable way, as an ordinary speaker of the English language
would, and seek to avoid a construction that makes some language mere
surplusage. And when the language of a statute is plain and susceptible
to only one natural and reasonable construction, courts must construe
the statute accordingly. Finally, because any statute that provides for the
6
award of attorney fees is in derogation of common law, it must be
strictly construed against the award of such damages.
(Punctuation and footnotes omitted.) Kemp v. Kemp, 337 Ga. App. 627, 632-633 (788
SE2d 517) (2016) (construing attorney fee provision in OCGA § 53-12-302). OCGA
§ 16-5-94 (d) provides that a stalking protective order may award costs and attorney
fees; it does not expressly provide that a separate order issued post-appeal may award
costs and appellate attorney fees.
Our appellate courts have held that some attorney fee statutes authorize an
award of appellate attorney fees and that other statutes do not. We have held that
“neither OCGA § 9-15-14 (b) nor OCGA § 13-6-11 authorizes a trial court to award
expenses of litigation for proceedings before the appellate courts, because these
statutes base the award of litigation expenses upon conduct that occurred at the trial
court level.” (Citation and punctuation omitted.) Springside Condo. Assn. Inc. v.
Harpagon Co. LLC, 298 Ga. App. 39, 40 (1) (679 SE2d 85) (2009).4
4
See In re Estate of Zeigler, 295 Ga. App. 156, 161 (2) (d) (671 SE2d 218) (2008)
(accord); OCGA §§ 9-15-14 (b) (“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,
7
In some statutes, on the other hand, the General Assembly expressly included
fees for legal services incurred during an appeal.5 The Supreme Court of Georgia has
interpreted a statute that gives the trial court the discretion to award fees “at any time”
during a case to include an award of appellate attorney fees.6 A party can even
including, but not limited to, abuses of discovery procedures[.]”); 13-6-11 (“The expenses
of litigation generally shall not be allowed as a part of the damages; but where the plaintiff
has specially pleaded and has made prayer therefor and where the defendant has acted in
bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and
expense, the jury may allow them.”); see also Kautter v. Kautter, 286 Ga. at 19-20 (4) (c)
(“Attorney fees incurred in connection with appellate proceedings are not recoverable
under OCGA § 9-15-14 because implicit in the language of that statute is that a court of
record of this state 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.”) (citation and punctuation omitted;
emphasis in original); cf. OCGA § 9-11-68 (b) (expressly limiting an award of fees under
the statute to those incurred from the date of the rejection of an offer of settlement through
the entry of judgment).
5
See Yates Paving & Grading Co. v. Bryan County, 265 Ga. App. 578, 582-584
(594 SE2d 756) (2004) (Appellate attorney fees may be recovered under the Georgia
Prompt Pay Act, pursuant to OCGA § 13-11-8, which provides in pertinent part, “[i]n any
action to enforce a claim under [the Act], the prevailing party is entitled to recover a
reasonable fee for the services of its attorney including but not limited to trial and appeal
and arbitration[.]”).
6
Kautter v. Kautter, 286 Ga. at 19-20 (4) (c) (Appellate attorney fees may be
recovered under OCGA § 19-6-2 (a), which provides in pertinent part, “[t]he grant of
attorney’s fees as a part of the expenses of litigation, made at any time during the pendency
of the litigation [of an action] for alimony, divorce and alimony, or contempt of court
arising out of either an alimony case or a divorce and alimony case . . . shall be . . . [w]ithin
the sound discretion of the court.”).
8
recover attorney fees incurred on appeal when attorney fees in general are statutorily
authorized. Evans County Bd. of Commrs. v. Claxton Enter., 255 Ga. App. 656, 659
(3) (566 SE2d 399) (2002). In Evans County, we noted that nothing in the fee
provision under the Open Meetings Act expressly limited recovery of attorney fees
to those incurred in trial court litigation. Id.7 We noted that the General Assembly
used the term “proceeding,” which can apply “to a court of any level,” and inferred
that the recovery of fees was not intended to apply to litigation only in the trial court.
Id. Then, we reasoned that the Act was intended to protect the public from closed-
door politics and that, because permitting recovery of fees and costs incurred on
appeal encourages private enforcement of the Act’s provisions, making appellate fees
compensable would further the purpose of the Act. Id. at 659-660 (3).8
7
See OCGA § 50-14-5 (b) (In any action brought to enforce the provisions of the
Open Meetings Act, “in which the court determines that an agency acted without
substantial justification in not complying with [the Act], the court shall, unless it finds that
special circumstances exist, assess in favor of the complaining party reasonable attorney’s
fees and other litigation costs reasonably incurred. Whether the position of the complaining
party was substantially justified shall be determined on the basis of the record as a whole
which is made in the proceeding for which fees and other expenses are sought.”).
8
See also Springside Condo. Assn. Inc. v. Harpagon Co. LLC, 298 Ga. App. at 40
(1) (Appellate attorney fees may be recovered under the Georgia Condominium Act,
pursuant to OCGA § 44-3-109 (b) (3), which provides, “[t]o the extent that the
condominium instruments provide, the personal obligation of the unit owner and the lien
for assessments shall also include . . . [t]he costs of collection, including court costs . . .
9
Similarly, in this case, nothing in the fee provision at issue expressly limits
recovery of attorney fees to those incurred in trial court litigation. And we conclude
that making appellate fees compensable would further the purpose of the Act, which
is to deter harassing and intimidating behavior and to protect victims from harm, by
enabling a stalking victim to defend a protective order on appeal.9 For these reasons,
we conclude that the trial court did not abuse its discretion in awarding costs and
attorney fees incurred by the petitioners on appeal.10
Judgments affirmed. Andrews and Rickman, JJ., concur.
and reasonable attorney’s fees actually incurred.”); In re Estate of Zeigler, 295 Ga. App.
at 161 (2) (d) (Appellate attorney fees could be recovered in a breach of trust action,
pursuant to former OCGA § 53-12-193 (a) (4), which provided: “a trustee who commits
a breach of trust is personally chargeable with any damages resulting from the breach of
trust including but not limited to[,] . . . [i]n the discretion of the court, expenses of
litigation, including reasonable attorney’s fees incurred by the beneficiary in bringing an
action on the breach or threat to commit a breach.”).
9
See n. 2, supra.
10
We note that the Bishops challenged only the trial court’s authority to award
appellate attorney fees; they did not challenge as unreasonable the specific amounts
awarded.
10