SECOND DIVISION BARNES, P. J., MILLER and RAY, 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/
August 20, 2013
In the Court of Appeals of Georgia A13A0635. KINSALA v. HAIR et al.
MILLER, Judge.
William Kinsala sued George and Patricia Hair raising claims of fraud and
misrepresentation in relation to the sale of a vehicle. The magistrate court entered a
judgment in favor of the Hairs, and on appeal to the state court, the state court
affirmed. Following a subsequent hearing, the state court awarded attorney fees to the
Hairs on the basis that Kinsala brought the action to the state court in bad faith, was
stubbornly litigious, and caused the Hairs unnecessary trouble and expense. We
granted Kinsala’s application for discretionary review, and this appeal ensued.
Kinsala contends that the state court lacked jurisdiction to hear an award of fees
under OCGA § 9-15-14, it abused its discretion in awarding fees, and the award was not supported by sufficient evidence. For the following reasons, we reverse and
remand.
On appeal from the entry of judgment in a bench trial, we view the evidence
in the light most favorable to the trial court’s verdict. Cox Interior, Inc. v. Bayland
Properties, LLC, 293 Ga. App. 612, 613 (1) (667 SE2d 452) (2008). So viewed, a
friend of George Hair bought a 1967 Ford Fairlane that he intended to restore. When
George’s friend became sick, he asked George to sell the vehicle for him. George
listed the vehicle on eBay, and Kinsala, who lived in Texas, responded to the
advertisement. Kinsala contacted George and asked about the vehicle’s condition.
Kinsala also contacted someone in Georgia to meet George personally, and this
person also inspected the vehicle for about 45 minutes. George offered to have the
vehicle undergo a more thorough inspection, but Kinsala declined the offer. Although
it was discovered that the vehicle had some rust and some other issues, Kinsala
contacted George and agreed to buy the vehicle.
Kinsala wired money to George Hair and arranged for the transport of the
vehicle. After Kinsala received the vehicle, he inspected it more thoroughly. Kinsala
believed that George made several misrepresentations about the vehicle and requested
that George take the vehicle back and refund his money. When George refused,
2 Kinsala filed suit against the Hairs in the magistrate court, claiming fraud and
misrepresentation. In their answer, the Hairs denied liability, argued that Kinsala’s
claims were groundless and, citing the language of OCGA § 13-16-11, sought
damages and litigation expenses. Following a bench trial, the magistrate court ruled
in favor of the Hairs.
Kinsala appealed the magistrate’s ruling to the state court, and the state court
held a de novo bench trial. Following the presentation of evidence, Patricia Hair
moved to dismiss any claims against her because there was no evidence that she was
involved in the sale of the vehicle. Kinsala stated that he had no objections based on
the evidence. The state court rebuked Kinsala for not dismissing Patricia Hair sooner
since he was aware of all the admissible evidence based on the prior hearing before
the magistrate court. The state court found that Kinsala lacked a good faith basis to
sue Patricia Hair and there was no evidence of damages. Accordingly, the trial court
entered a judgment in favor of the Hairs and ordered a hearing to determine “whether
costs, expenses, and damages sought by the [Hairs] should be awarded.” Following
a hearing, the state court awarded attorney fees and costs to the Hairs in the amount
of $29,404.40. This appeal ensued.
3 We agree with Kinsala that the state court erred in awarding attorney fees in
this case.
1. “Generally, an award of attorney fees is not available in Georgia unless
authorized by statute or contract.” (Footnote and punctuation omitted.) In re
Serpentfoot, 285 Ga. App. 325, 328 (4) (a) (646 SE2d 267) (2007). In this case, the
state court did not specify the statutory basis for the award. The state court merely
stated that “this action was brought against [the Hairs] without just cause and that, in
so doing, [Kinsala] acted in bad faith, was stubbornly litigious and caused [the Hairs]
unnecessary trouble and expense.” The state court’s findings tracked the language
found in OCGA § 13-6-11, which provides that, while litigation expenses are
generally not recoverable, such expenses, including attorney fees, may be recovered
where the plaintiff has specially pled them and where the defendant has (1) acted in
bad faith, (2) been stubbornly litigious, or (3) caused the plaintiff unnecessary trouble
and expense.1
1 Litigation expenses may be available to a defendant who prevails on an independent counterclaim against the plaintiff. Dennis–Smith v. Freeman, 277 Ga. App. 822, 824 (3) (627 SE2d 872) (2006). However, a defendant’s expenses of defending against a claim are not recoverable, and a defendant is barred from “transforming a plaintiff’s case into that defendant’s damage suit for having been sued.” (Citations and punctuation omitted.) Canton Plaza, Inc. v. Regions Bank, Inc., 315 Ga. App. 303, 310 (3) (732 SE2d 449) (2012). In this case, the Hairs did not
4 Although it appears based on discussion at the hearing on attorney fees that
such fees were assessed pursuant to OCGA § 9-15-14,
when a trial court exercises its discretion in assessing attorney fees and costs of litigation under OCGA § 9-15-14, it is incumbent upon the court to specify the conduct upon which the award is made. Indeed, a judgment devoid of such findings must be vacated and the case must be remanded for reconsideration. Furthermore, an order awarding attorney fees pursuant to this statute must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).
(Footnotes and punctuation omitted.) Woods v. Hall, 315 Ga. App. 93, 97 (2) (726
SE2d 596) (2012); see also Bailey v. McNealy, 277 Ga. App. 848, 849 (1) (627 SE2d
893) (2006) (a trial court is required to “make express findings of fact and
conclusions of law as to the statutory basis” for an award of attorney fees under
OCGA § 9-15-14) (citation omitted).
As noted above, the state court’s order awarding attorney fees failed to make
express findings of fact or conclusions of law as to the statutory basis for its award
of attorney fees to the Hairs. “More importantly, the court’s order fails to even specify
whether the attorney fees were awarded under OCGA § 9-15-14 at all, much less
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SECOND DIVISION BARNES, P. J., MILLER and RAY, 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/
August 20, 2013
In the Court of Appeals of Georgia A13A0635. KINSALA v. HAIR et al.
MILLER, Judge.
William Kinsala sued George and Patricia Hair raising claims of fraud and
misrepresentation in relation to the sale of a vehicle. The magistrate court entered a
judgment in favor of the Hairs, and on appeal to the state court, the state court
affirmed. Following a subsequent hearing, the state court awarded attorney fees to the
Hairs on the basis that Kinsala brought the action to the state court in bad faith, was
stubbornly litigious, and caused the Hairs unnecessary trouble and expense. We
granted Kinsala’s application for discretionary review, and this appeal ensued.
Kinsala contends that the state court lacked jurisdiction to hear an award of fees
under OCGA § 9-15-14, it abused its discretion in awarding fees, and the award was not supported by sufficient evidence. For the following reasons, we reverse and
remand.
On appeal from the entry of judgment in a bench trial, we view the evidence
in the light most favorable to the trial court’s verdict. Cox Interior, Inc. v. Bayland
Properties, LLC, 293 Ga. App. 612, 613 (1) (667 SE2d 452) (2008). So viewed, a
friend of George Hair bought a 1967 Ford Fairlane that he intended to restore. When
George’s friend became sick, he asked George to sell the vehicle for him. George
listed the vehicle on eBay, and Kinsala, who lived in Texas, responded to the
advertisement. Kinsala contacted George and asked about the vehicle’s condition.
Kinsala also contacted someone in Georgia to meet George personally, and this
person also inspected the vehicle for about 45 minutes. George offered to have the
vehicle undergo a more thorough inspection, but Kinsala declined the offer. Although
it was discovered that the vehicle had some rust and some other issues, Kinsala
contacted George and agreed to buy the vehicle.
Kinsala wired money to George Hair and arranged for the transport of the
vehicle. After Kinsala received the vehicle, he inspected it more thoroughly. Kinsala
believed that George made several misrepresentations about the vehicle and requested
that George take the vehicle back and refund his money. When George refused,
2 Kinsala filed suit against the Hairs in the magistrate court, claiming fraud and
misrepresentation. In their answer, the Hairs denied liability, argued that Kinsala’s
claims were groundless and, citing the language of OCGA § 13-16-11, sought
damages and litigation expenses. Following a bench trial, the magistrate court ruled
in favor of the Hairs.
Kinsala appealed the magistrate’s ruling to the state court, and the state court
held a de novo bench trial. Following the presentation of evidence, Patricia Hair
moved to dismiss any claims against her because there was no evidence that she was
involved in the sale of the vehicle. Kinsala stated that he had no objections based on
the evidence. The state court rebuked Kinsala for not dismissing Patricia Hair sooner
since he was aware of all the admissible evidence based on the prior hearing before
the magistrate court. The state court found that Kinsala lacked a good faith basis to
sue Patricia Hair and there was no evidence of damages. Accordingly, the trial court
entered a judgment in favor of the Hairs and ordered a hearing to determine “whether
costs, expenses, and damages sought by the [Hairs] should be awarded.” Following
a hearing, the state court awarded attorney fees and costs to the Hairs in the amount
of $29,404.40. This appeal ensued.
3 We agree with Kinsala that the state court erred in awarding attorney fees in
this case.
1. “Generally, an award of attorney fees is not available in Georgia unless
authorized by statute or contract.” (Footnote and punctuation omitted.) In re
Serpentfoot, 285 Ga. App. 325, 328 (4) (a) (646 SE2d 267) (2007). In this case, the
state court did not specify the statutory basis for the award. The state court merely
stated that “this action was brought against [the Hairs] without just cause and that, in
so doing, [Kinsala] acted in bad faith, was stubbornly litigious and caused [the Hairs]
unnecessary trouble and expense.” The state court’s findings tracked the language
found in OCGA § 13-6-11, which provides that, while litigation expenses are
generally not recoverable, such expenses, including attorney fees, may be recovered
where the plaintiff has specially pled them and where the defendant has (1) acted in
bad faith, (2) been stubbornly litigious, or (3) caused the plaintiff unnecessary trouble
and expense.1
1 Litigation expenses may be available to a defendant who prevails on an independent counterclaim against the plaintiff. Dennis–Smith v. Freeman, 277 Ga. App. 822, 824 (3) (627 SE2d 872) (2006). However, a defendant’s expenses of defending against a claim are not recoverable, and a defendant is barred from “transforming a plaintiff’s case into that defendant’s damage suit for having been sued.” (Citations and punctuation omitted.) Canton Plaza, Inc. v. Regions Bank, Inc., 315 Ga. App. 303, 310 (3) (732 SE2d 449) (2012). In this case, the Hairs did not
4 Although it appears based on discussion at the hearing on attorney fees that
such fees were assessed pursuant to OCGA § 9-15-14,
when a trial court exercises its discretion in assessing attorney fees and costs of litigation under OCGA § 9-15-14, it is incumbent upon the court to specify the conduct upon which the award is made. Indeed, a judgment devoid of such findings must be vacated and the case must be remanded for reconsideration. Furthermore, an order awarding attorney fees pursuant to this statute must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).
(Footnotes and punctuation omitted.) Woods v. Hall, 315 Ga. App. 93, 97 (2) (726
SE2d 596) (2012); see also Bailey v. McNealy, 277 Ga. App. 848, 849 (1) (627 SE2d
893) (2006) (a trial court is required to “make express findings of fact and
conclusions of law as to the statutory basis” for an award of attorney fees under
OCGA § 9-15-14) (citation omitted).
As noted above, the state court’s order awarding attorney fees failed to make
express findings of fact or conclusions of law as to the statutory basis for its award
of attorney fees to the Hairs. “More importantly, the court’s order fails to even specify
whether the attorney fees were awarded under OCGA § 9-15-14 at all, much less
assert an independent counterclaim, as their counterclaim was for litigation expenses for having been sued in bad faith. Since success on the Hairs’ counterclaim would amount to a recovery of damages for merely having been sued by Kinsala, the Hairs were precluded from recovering attorney fees under OCGA § 13-6-11. Id.
5 which subsection of the statute supports the award.” Woods, supra, 315 Ga. App. at
97-98 (2). Accordingly, we must vacate the award and remand the case to the state
court for “reconsideration of the grant of attorney fees and to make express findings
of fact and conclusions of law as to the statutory basis for any such award and the
conduct which would authorize it.” (Footnote and punctuation omitted.) Id. at 98 (2);
see also In re Serpentfoot, supra, 285 Ga. App. at 328-329 (4) (a) (vacated award and
remanding for further proceedings where trial court’s findings that appellant was
stubbornly and unreasonably litigious and frivolous did not satisfy requirements of
OCGA § 9-15-14).
2. Given our holding, we need not address Kinsala’s remaining enumerations
of error.
Judgment reversed and remanded. Barnes, P. J., and Ray, J., concur.