Aaron Michelman v. Fairington Park Condominium Association, Inc.

• Court: Court of Appeals of Georgia
• Decided: June 18, 2013
• Docket: A13A0377
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, 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 18, 2013

In the Court of Appeals of Georgia A13A0377. MICHELMAN et al. v. FAIRINGTON PARK CONDOMINIUM ASSOCIATION, INC.

BOGGS, Judge.

In this discretionary appeal, Aaron Michelman and Monge and Associates, PC

(collectively “plaintiff’s counsel”) appeal from the trial court’s award of attorney fees

against them under OCGA § 9-15-14 (a) and (b). Plaintiff’s counsel contends that the

trial court erred by awarding fees under OCGA § 9-15-14. For the reasons explained

below, we agree and reverse.

Subsection (a) of OCGA § 9-15-14 “provides for attorney[] fees when a party

asserts a position for which there is a complete absence of any justiciable issue of law

or fact; subsection (b) provides for an award when a party’s position lacks substantial

justification.” (Punctuation omitted.) Fulton County Bd. of Tax Assessors v. Boyajian, 271 Ga. 881 (2) (525 SE2d 687) (2000). And the Supreme Court of Georgia has

recognized that “[a]s a practical matter, it is difficult to distinguish between these two

standards for awarding attorney[] fees.” Id. We must “affirm an award under

subsection (a) if there is any evidence to support it, while we review subsection (b)

awards for abuse of discretion.” (Citations and footnote omitted.) Fox v. City of

Cumming, 298 Ga. App. 134, 135 (679 SE2d 365) (2009). With regard to the “any

evidence” standard of review for subsection (a), if “evidence relevant to the question

of attorney fees consists of the state of the law, we make our own assessment of that

evidence and decide for ourselves whether the claim asserted below presented a

justiciable issue of law.” (Citations and punctuation omitted.) Renton v. Watson, 319

Ga. App. 896, 904 (4) (739 SE2d 19) (2013). Finally, “we must keep in mind that

OCGA § 9-15-14 (a) is intended to discourage the bringing of frivolous claims, not

the presentation of questions of first impression about which reasonable minds might

disagree or the assertion of novel legal theories that find arguable, albeit limited,

support in the existing case law and statutes.” (Citations and punctuation omitted.)

Id. at 905 (4).

In this case, the trial court granted attorney fees under subsection (a) and (b)

based upon its conclusion that this court’s opinion in Gomez v. Julian LeCraw & Co.,

2 269 Ga. App. 576 (604 SE2d 532) (2004), “is indistinguishable from the case at bar.”

In Gomez, the injured plaintiff and her husband were living in an apartment with her

cousin. Id. The cousin’s lease with the property owner provided that “the apartment

shall be occupied only by the persons named in the resident’s rental application.

Substitution or addition of any residents will be allowed only with prior written

consent of management.” (Punctuation omitted.) Id. Although the plaintiff was living

in the apartment with her cousin, her name did not appear on the lease and there was

no evidence the owner or the management company was aware of or consented to her

living in the apartment. Id. We held that the plaintiff was a trespasser, based upon a

special contract in which the property owner precluded a person such as the plaintiff

from living on the property without prior consent. Id. at 578 (1) (a). We noted that in

the absence of such a special contract, “the landlord has no right to forbid a person

to go upon the premises in the possession of a tenant, by the latter’s permission and

for a lawful purpose.” (Citation, punctuation and footnote omitted.) Id.

In this case, the plaintiff was injured in a common area while visiting his sister,

a tenant of the owner of a unit in Fairington Park condominiums. According to the

affidavit of the President of the Fairington Park Condominium Association (“the

Condo Association”), “the Association does not own any common areas.” Instead,

3 they are owned by the unit owners as tenants-in-common. Pursuant to the Fairington

Park Condominium Declaration, the Condo Association is responsible for

maintaining and keeping in good repair the common areas of the condominium

complex. The Condominium Declaration also provides that all unit owners, who are

members of the Condo Association by virtue of their unit ownership, are obligated

to abide by the terms and provisions of the Condominium Declaration. One of these

provisions required unit owners to obtain permission from the Condominium Board

before leasing a unit. It is undisputed that the unit owner did not obtain permission

to lease the unit occupied by the plaintiff’s sister.

Based upon these facts, we conclude that our decision in Gomez, supra, is

arguably distinguishable on the ground that the tenant here rented the unit from the

property owner and there was no special agreement between the unit owner and the

tenant precluding a visitor such as the plaintiff. While the unit owner may have had

a separate agreement with the Condo Association to obtain approval for all leases, the

Condo Association did not own the property, and there was no special agreement

between the Condo Association and the tenant.

Gomez can also be distinguished on the ground that the plaintiff was a visitor,

not an unapproved tenant. The general rule stated in Gomez is that a “landlord has no

4 right to forbid a person to go upon the premises in the possession of a tenant, by the

latter’s permission and for a lawful purpose.” (Citation, punctuation and footnote

omitted.) Id. at 577 (1). Gomez distinguished the general rule because “Gomez was

not merely visiting her cousin’s apartment. . . . She lived there and . . . considered

herself to be a tenant.” Id. at 577 (1) (a). When she fell, “she was on the premises as

a resident, be it improperly, not as a guest.” Id. at 578 (1) (a).

Based upon these grounds distinguishing our opinion in Gomez, the trial court

erred by awarding attorney fees against plaintiff’s counsel for failing to dismiss the

plaintiff’s complaint1 or seek withdrawal immediately after the Condo Association

filed a motion for summary judgment relying upon our decision in Gomez, supra. See

Renton, supra, 319 Ga. App. at 905-906 (reversing trial court’s award of attorney fees

under OCGA § 9-15-14 (a)); Fox, supra, 298 Ga. App. at 136 (same under (a) and

(b)).

Judgment reversed. Doyle, P. J., and McFadden, J., concur.

1 Plaintiff’s counsel subsequently dismissed the case without prejudice following a hearing on the motion for summary judgment but before the trial court ruled. While we reverse the trial court’s award of attorney fees under OCGA § 9-15- 14, nothing in this opinion should be construed as a ruling on the merits of the plaintiff’s claim. We decide only that the trial court’s award of attorney fees under OCGA § 9-15-14 cannot be sustained.