Rolleston v. Huite

Sognier, Judge,

concurring specially.

I concur fully in Divisions 1 through 4, but concur specially with regard to Division 5 and its discussion of the attorney fees award.

The trial court based its award of attorney fees on both paragraphs (a) and (b) of OCGA § 9-15-14. As I discussed more fully in my concurring opinion in Lane v. K-Mart Corp., 190 Ga. App. 113, 115-116 (378 SE2d 136) (1989), paragraph (a) compels the award of attorney fees only when a claim has merit neither in fact nor in law. As a result, notwithstanding the “any evidence” standard of review enunciated in Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987), when considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law. In the case at bar, we effectively engaged in that analysis in our discussion in Division 2 of the merits of the underlying claim. Had we found the claim asserted by appellant constituted a “good faith attempt to establish a new theory of law” as described in OCGA § 9-15-14 (c), the award of attorney fees could not be sustained. Since I agree that the claim advanced below did not meet that standard, I concur in the judgment in Division 5.