Anthony Alaimo v. Lawrence Davis,jr., Solely in His Capacity as Enterprise Revenue Chief of the City of Atlanta

• Court: Court of Appeals of Georgia
• Decided: May 15, 2025
• Docket: A25A0020
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., MARKLE and PADGETT, 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. https://www.gaappeals.us/rules

May 15, 2025

In the Court of Appeals of Georgia A25A0020. ALAIMO v. DAVIS.

DOYLE, Presiding Judge.

In this action for in-rem foreclosure brought by Lawrence Davis, Jr., as the

Enterprise Revenue Chief of the City of Atlanta (“the City”), property owner

Anthony Alaimo appeals from an order requiring him to pay $12,142.38 in attorney

fees to the City under OCGA § 9-15-14 (a) and (b). Alaimo contends that the trial

court erred by ruling that his defenses essentially were frivolous and not grounded in

any justiciable issue of law. In light of Alaimo’s undisputed standing to appear in this

statutorily mandated action as an interested party named by the City, his partially

successful evidentiary challenge to the City’s prima facie case, and the lack of any delay in or expansion of the proceedings by his appearance and presentation of

defenses, we reverse.

The record shows that before Alaimo bought certain property on Schoen Steet

in Atlanta, it fell into disrepair. On July 11, 2017, the City sent by certified mail a

notice of inspection and public hearing to the owner, Alaimo’s predecessor in interest,

Crown Point Properties Management Company, LLC (“Crown Point”). The notice,

which was returned to the City unclaimed, stated that the structures on the property

were unfit for habitation, and a hearing was scheduled before the City’s In Rem

Review Board to determine whether to order demolition. The notice of hearing was

also advertised in the Fulton County Daily Report.

On July 13, 2017, the City filed a Lis Pendens Notice against the property in the

Fulton County property records. In August 2017, following the advertised public

hearing, the City made a determination to demolish the structure on the property

because the cost to bring the structure into compliance with the City’s housing code

was approximately 92 percent of the value of the structure. The City’s review board

issued a demolition order to Crown Point following the hearing. When the order went

2 unheeded for more than 30 days, the City proceeded with the demolition in

accordance with the City housing code under OCGA § 36-61-11.1

On November 29, 2017, Crown Point transferred the property to Alaimo by a

warranty deed recorded in January 2018. In July 2018, the City filed a claim of lien

against the property for the demolition costs totaling $36,652. With the lien remaining

unsatisfied, in June 2023, the City filed the present action for in rem foreclosure

against the Schoen Street property, naming Alaimo; Crown Point; Sandtown Land

Trust; Investa Services, LLC; and all others holding any interest in the property. The

petition stated that the applicable in-rem demolition procedures had been followed,

the City had duly incurred demolition costs, and a valid lien existed on the property

for those costs.

The City served Alaimo with the foreclosure petition in late July 2023, and the

next month he filed a timely answer. The answer candidly stated that he lacked

sufficient information to admit or deny the allegations in the petition “except to state

that he is the record title owner of the real property . . . and objects to the [City’s]

1 That Code section provides, in relevant part, that “[a]ny municipality or county may, by ordinance, require the repair, closing, or demolition of dwellings or other structures intended for human habitation which are, as defined in the ordinance, unfit for human habitation . . . .” 3 proposed right to foreclose based on the facts as asserted” in the petition. Alaimo

further asserted that his due process rights were violated because he had not received

notice of the order authorizing demolition, nor was he afforded the opportunity to

participate in the demolition proceeding.2

In January 2024, the parties entered into a consolidated pretrial order

containing the following stipulations: the City properly served notice of the Board’s

demolition order (but not the demolition hearing notice) to all interested parties, and

Alaimo was not an interested party because he had not yet purchased the property;

none of the interested parties complied with the demolition order; and none of the

interested parties redeemed the amount owed under the lien. The pretrial order

stipulated the authenticity of certain documents “evidencing the Demolition Lien,

including the Claim of Lien, Lis Pendens Notice, [as well as] related documentation.”

This list did not explicitly refer to the notice of hearing unsuccessfully sent to

Alaimo’s predecessor in interest (Crown Pointe), which notice Alaimo later contested

at the hearing in this action.

2 Other interested parties were served with the foreclosure petition, but they either did not respond or did not contest the foreclosure. 4 In April 2024, after unsuccessful mediation, Alaimo and the City appeared for

a single-day bench trial on the foreclosure petition. At the trial, Alaimo successfully

objected to the admissibility of two documents based on the lack of any authenticating

witness proffered by the City: a certain claim of lien and a related supporting

document.3 He further challenged the notice of hearing sent to Crown Pointe and

returned as undelivered , but he did not object to most of the City’s documentary

evidence and conceded that he did not have an ownership interest at the relevant time

frame of the demolition proceedings.

After the bench trial, the trial court entered an order finding that the City held

a valid demolition lien with a principle balance of $36,652 and $25,289.88 in interest

accruing at a rate of 12 percent. The court further found that Alaimo lacked standing

to challenge his lack of notice of the demolition proceedings because he was not an

interested party at the time of those proceedings. Accordingly, the trial court

authorized the foreclosure, and based on Alaimo’s failure “to present any justiciable

issue of law,” and presentation of defenses that “were frivolous and lacked substantial

3 The City argued that they were self-authenticating as documents filed in the county property records. It appears from the record that the claim of lien was the same one filed by the City as an exhibit to its foreclosure petition and stipulated to by the parties. 5 justification,” the court awarded the City attorney fees and expenses incurred in

preparation for the bench trial under OCGA § 9-15-14 (a) and (b). Relying on evidence

proffered by the City, the trial court valued those fees at $12,142.38. Alaimo now

appeals.

Alaimo argues that the trial court erred by awarding fees under OCGA § 9-15-14

(a) and (b) because he did not expand the proceedings, he presented justiciable issues

that he reasonably believed could be accepted, and he partially was successful with

respect to certain evidentiary challenges to the City’s documents. We agree.

1. OCGA § 9-15-14 (a). Under this Code section, a trial court is authorized to

award attorney fees if it finds that a party advanced a “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 . . . position.”4

“This Court will affirm a lower court ruling made pursuant to OCGA § 9-15-14 (a) if

there is ‘any evidence’ to support it. However, if the party defending against the

4 OCGA § 9-15-14 (a). 6 motion advances a justiciable issue of law or fact and produces [supporting] evidence

. . . [i]t is error for the trial court to award fees under OCGA § 9-15-14 (a).”5

In support of the award under subsection (a), the court found that Alaimo

“failed to present any justiciable issue of law or fact that [Alaimo] or his counsel could

reasonably believe this Court would accept.” This was based on the fact that Alaimo

did not own the property at the time of the in rem demolition proceedings, so the

court concluded that he lacked standing to contest the notice given by the City in

those proceedings to the proper party, i.e., his predecessor in interest.

As context to his argument, Alaimo correctly points out that the City is the

party with the burden of proof in a statutorily mandated proceeding under OCGA §

48-4-79 and the City’s municipal code. The City brought Alaimo into the action as

mandated by the statute due to his interest as the current property owner. He

participated in the action as a regular part of the statutory proceeding: “any interested

party shall have the right to be heard and to contest the delinquency of the taxes or the

adequacy of the proceedings.”6

5 (Citations omitted.) Brewer v. Paulk, 296 Ga. App. 26, 29 (1) (673 SE2d 545) (2009). 6 (Emphasis supplied.) OCGA § 48-4-79 (a). 7 With respect to Alaimo’s specific defenses, he conceded that he was not a party

to the initial demolition proceeding, but he nevertheless presented a challenge to the

City’s prima facie case in the present action for foreclosure. One of the required

elements is showing that “proper notice ha[d] been given to all interested parties.”7

Seeking to ensure the government meets its burden of proof is not frivolous. The

City’s case was not overwhelming because it did not present any witnesses, and

Alaimo successfully challenged portions of the City’s evidence. Further, the notice

of hearing sent to the owner at the time of the demolition proceeding was returned to

the City as undeliverable , and the trial court itself engaged the City in a colloquy as

to the import of this fact in these proceedings. It asked the City:

So[,] when the City receives notice from the United States Postal Service that its correspondence to an owner or interested party has been returned, what next steps does the City take to ensure that the property owner or anyone who is interested in the property actually received notice? . . . That’s the point of the exercise.

7 OCGA § 48-4-79 (a) (2). 8 Thus, despite not being the owner at the time, Alaimo at least presented a

justiciable issue as to the validity of that notice.8 Alaimo was not obstinate in his legal

position — he stipulated to the authenticity of certain documents as well as his status

as a non-owner at the time of the demolition proceeding. He merely advanced his legal

argument as the current owner of the property challenging the City’s compliance with

the notice requirements under the City’s ordinances and controlling statutes.

Although the trial court ultimately did not agree with his position on the ground of

standing, there was documentation in the record supporting Alaimo’s argument;

therefore, it was not entirely devoid of any justiciable issue that could reasonably be

argued.9 Accordingly, the trial court erred by awarding fees on this ground.

2. OCGA § 9-15-14 (b). This Code section authorizes an attorney fee award if

a trial court finds that a “party brought or defended an action, or any part thereof, that

lacked substantial justification or that the action, or any part thereof, was interposed

8 We do not opine on that issue or the merits of any underlying decision by the trial court. 9 See Brewer, 296 Ga. App. at 31 (1) (b) (“[B]ecause the [party] advanced justiciable issues of law as to those claims and produced evidence to support their position, it was error for the superior court to award attorney fees under OCGA § 9-15-14 (a) with respect to [that party’s] claim.”). 9 for delay or harassment, or if it finds that an attorney or party unnecessarily expanded

the proceeding by other improper conduct . . . .”10 “To the extent the award was

based on OCGA § 9-15-14 (b), it must be sustained unless the trial court abused its

discretion.”11

Here, the trial court found that Alaimo’s defenses “were frivolous and lacked

substantial justification.” In this context, “‘[l]acked substantial justification’ means

substantially frivolous, substantially groundless, or substantially vexatious.”12

As noted above, Alaimo’s defense was supported by some evidence (the

returned notice of hearing sent to his predecessor in interest), and Alaimo challenged

only the City’s ability to establish the prima facie elements required by the foreclosure

statute. Alaimo was an interested party with a statutory right to challenge the validity

of the foreclosure proceeding, and his participation in no way expanded the

proceeding. He did not file any counterclaims, he did not initiate motions practice or

10 OCGA § 9-15-14 (b). 11 (Punctuation omitted.) Exec. Excellence, LLC v. Martin Bros. Investments, LLC, 309 Ga. App. 279, 286 (2) (710 SE2d 169) (2011). 12 (Punctuation omitted.) Lee v. Park, 341 Ga. App. 350, 353 (800 SE2d 29) (2017). 10 drag out discovery, and he did not argue anything beyond the confines of the prima

facie case asserted in the City’s petition. Indeed, the City invited Alaimo’s procedural

argument by resting on its pleading and supporting documentation without presenting

any witnesses or authentication beyond the documents themselves. Based on this

record, Alaimo’s defense had some basis in the evidence, his argument was narrowly

tailored, and he conceded points that were incontrovertible. Accordingly, it was an

abuse of the trial court’s discretion to hold that Alaimo’s defense was substantially

frivolous, groundless, or vexatious such that it lacked substantial justification for

purposes of OCGA § 9-15-14 (b).13

Judgment reversed. Markle and Padgett, JJ., concur.

13 See Lee, 341 Ga. App. at 353-355 (1). See also Kitchens v. Ezell, 315 Ga. App. 444, 452 (2) (726 SE2d 461) (2012) (physical precedent only). 11