Cohen v. Rogers

798 S.E.2d 701, 341 Ga. App. 146, 2017 WL 1025287, 2017 Ga. App. LEXIS 147

• Court: Court of Appeals of Georgia
• Decided: March 16, 2017
• Docket: A16A1858
• Status: Published

Opinions

MERCIER, Judge.

Joseph Rogers, Jr., sued his former employee, Mye Brindle in the Superior Court of Cobb County, seeking injunctive relief regarding video and other photographic depictions Brindle allegedly obtained of him without his consent, and asserting claims for invasion of privacy, intentional infliction of emotional distress, and unjust enrichment. In a separate suit, Brindle sued Rogers in the State Court of Fulton County, asserting claims of battery, intentional infliction of emotional distress, and Georgia Racketeer Influenced and Corrupt Organizations Act violations. After Brindle voluntarily dismissed the Fulton County case, the Fulton County court granted Rogers’s motion for attorney fees and litigation expenses pursuant to OCGA § 9-15-14 (b), ordering Brindle andher attorney, David Cohen, to pay $142,656.82 in attorney fees and litigation expenses. Brindle and Cohen filed separate appeals from that ruling. In those appeals, which we consolidated, this Court vacated the fee award and remanded the case for the trial court to determine what award, if any, should be assessed for conduct undertaken in that court. Cohen v. Rogers, 328 Ga. App. XXIV (Case No. A14A0201) (July 16, 2014) (unpublished) (“Cohenl”). On remand, after conducting additional evidentiary hearings, the trial court found that Rogers was entitled to recover attorney fees and litigation expenses as a result of Cohen’s conduct in that court, and entered an award of $198,383.52 against Cohen; the court found the evidence insufficient to warrant an award against Brindle.

In this appeal, Cohen asserts two enumerations of error, namely, that the trial court erred by: (1) “declining to reconsider whether sanctionable conduct occurred,” and (2) entering the order granting the fees and expenses, because the conduct before that court was not sanctionable, the court failed to specify which fees were attributable to which conduct and made an improper lump sum award, and Rogers failed to submit adequate proof to support the award. F or the reasons that follow, we affirm.

OCGA § 9-15-14 (b) pertinently provides:

The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action ... 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[.]

1. Cohen contends that the trial court erred after remand by “declining to reconsider whether sanctionable conduct occurred.” This contention is without merit.

In Cohen I, this Court vacated the award of fees and expenses under OCGA § 9-15-14 (b), determined that the trial court erred in awarding fees related to appellate and pre-litigation conduct, and remanded the case with direction to the Fulton County court. Slip op., p. 4. We directed the trial court “to make express findings of facts and conclusions of law as to the basis for an award of reasonable and necessary attorney fees and expenses of litigation for conduct undertaken before that court, pursuant to OCGA § 9-15-14, specifying . . . the amount of such award, if any” Slip op., pp. 4-5.

After remand, Rogers filed a renewed motion for attorney fees. The fee request included the amount of fees previously awarded, subtracted fees for work done before the Fulton County suit was filed, subtracted fees for work related to specified appellate proceedings, and added fees for post-remittitur work on Rogers’s renewed attorney fee motion. Cohen argues on appeal that the trial court erred by declining to revisit the issue of liability for a fee award, contending that this Court directed the trial court to first consider whether any sanctionable conduct occurred before that court and, if so, only then should it consider the amount of the award.

We agree with Cohen that the trial court was required to determine upon remand whether conduct before that court authorized an award of fees. In Cohen I, this Court did not affirm the determination of liability in the trial court’s first fee award; rather, it vacated that award in its entirety and remanded for the trial court “to determine what award, if any, should be assessed under OCGA § 9-15-14 (b) for conduct undertaken in that court.” Slip op., at p. 2 (emphasis supplied). We did not address the issue of whether conduct before the trial court was sanctionable because we vacated the entire award and remanded the case for the trial court to make those findings anew.

Regardless of the trial court’s stated interpretation at the evi-dentiary hearing of this Court’s opinion in Cohen I, its written order indicates that it did in fact reconsider the issue of liability In contrast to the vacated order, the trial court on remand found that Brin die had done nothing to justify the entry of a fee award against her personally, and then found Cohen liable for certain fees and expenses. Thus, this contention presents no basis for reversal.

2. Cohen contends that the trial court erred by granting Rogers’s renewed motion for attorney fees and litigation expenses because the trial court awarded fees for “proper litigation conduct,” “fail[ed] to specify the sanctionable conduct and fees attributable to each sanc-tionable act, ma[de] an improper ‘lump sum’ award, and rel[ied] on inadequate evidence.” We disagree.

We utilize an abuse of discretion standard of review when examining an award of attorney fees made pursuant to OCGA § 9-15-14 (b). See Mitcham v. Blalock, 268 Ga. 644, 647 (5) (491 SE2d 782) (1997) (overruled on other grounds by Felix v. State, 271 Ga. 534, 537 (523 SE2d 1) (1999)); Haggard v. Bd. of Regents of Univ. System of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987). Under an abuse of discretion standard of review, we are to “review the trial court’s legal holdings de novo, and we uphold the trial court’s factual findings as long as they are not clearly erroneous, which means there is some evidence in the record to support them.” Lawrence v. Lawrence, 286 Ga. 309, 310 (1) (687 SE2d 421) (2009).

(a) Did the trial court abuse its discretion in finding sanctionable conduct?

The trial court’s order spans 22 pages and includes more than 40 findings of facts. Rogers sought attorney fees and expenses for the costs incurred in defending Cohen’s continuation of a duplicative lawsuit in Fulton County, when a suit was already pending in Cobb County The trial court was tasked with determining whether, among other things, the filing of the Fulton County suit was undertaken for the purpose of circumventing the order of a court in another jurisdiction, thereby causing greater inconvenience, harassment, and embarrassment to Rogers and unnecessarily expanding the proceedings.

Notwithstanding the exceptionally detailed order of the trial court setting out its findings of fact and conclusions of law regarding the conduct that gave rise to the award of fees and expenses, Cohen reduces the forty-plus findings of fact down to three distinct instances of conduct it alleges formed the basis for the trial court’s award of fees and expenses. Specifically, he asserts that the filing of the complaint, opposing the sealing of the record, and delaying the voluntary dismissal of the Fulton County complaint did not constitute sanction-able conduct. Cohen refers to a few of the facts surrounding each of those instances and points out why, in his opinion, the facts do not support the award. But this approach ignores the extensive factual findings of the trial court and the applicable standard of review.

Athorough examination of all of the trial court’s findings of facts, rather than an isolated review of only a few of those facts, reveals a different situation from the one Cohen describes. A comprehensive review of the findings includes the following. In July 2012, Rogers received a letter from Cohen that, among other things, advised that the matter was “best resolved early [and] outside of public litigation,” and suggested that protracted litigation could result in, among other things, media attention, criminal charges, lengthy incarceration, divorce, and the destruction of families. On September 14, 2012, Rogers filed an action in Cobb County along with a motion to seal the record, and the complaint and motion to seal were served on Cohen, who was counsel for Brindle, on September 17,2012. On the same day that Cohen received Rogers’s complaint and motion to seal, Cohen represented Brindle in a hearing on the motion to seal in Cobb County

On September 19, 2012, Cohen filed an action in Fulton County on Brindle’s behalf. In the verified complaint, Brindle asserted that she had in her possession the very information that Rogers sought to have filed under seal in Cobb County After the conclusion of a hearing in the Cobb County action, the parties informed the trial judge that they believed they could reach a consent agreement on sealing the record. However, in the early morning hours of September 28, 2012, before the terms of the consent order were finalized, Cohen and Brindle went to the City of Atlanta Police Department, where Brindle reported that Rogers had committed certain sexual offenses against her. The Atlanta Police Department generated an incident report based on Brindle’s statements. Cohen did not notify counsel for Rogers that a police report had been generated and, later that day (September 28), the parties finalized a consent agreement sealing the record in Cobb County The consent order was entered the same day

In early October 2012, the parties tried to reach a consent agreement to seal the record in the Fulton County action. However, when those negotiations failed, Rogers filed an emergency motion to place the Fulton County case under seal. On October 8, 2012, the Fulton County court entered an order temporarily sealing the record. On October 9, 2012, counsel for Brindle filed a brief opposing Rogers’s motion to seal the record. One of Brindle’s arguments in the brief was that the motion to seal was moot because Brindle had reported her accusations to the Atlanta Police Department. This was the first time counsel for Rogers, or the trial court, was made aware that Brindle had disclosed her allegations to police or that an incident report existed.

After making these extensive findings of fact (and others), all supported by the record, the trial court reached a conclusion. “The only [discernible] purposes of the filing of [the Fulton County] suit and opposing sealing the record w[ere] to delay the sealing and cause greater inconvenience, harassment and embarrassment to Defendant Rogers, and such conduct greatly and unnecessarily expanded the proceedings.” A review of the record reveals ample evidence to support the trial court’s findings, such that the trial court did not abuse its discretion in finding an award warranted pursuant to OCGA § 9-15-14 (b).

Although Cohen addresses the cited conduct as separate and distinct acts, this approach distorts the findings of the trial court. The trial court did not consider each act in isolation, but instead considered them together, finding, for example, that the purpose of Cohen’s conduct with respect to both the “filing of this suit and opposing sealing the record was to . . . cause greater inconvenience, harassment and embarrassment to Defendant Rogers, and such conduct greatly and unnecessarily expanded the proceedings.” (Emphasis supplied.) Notably, whether Cohen made plausible arguments to the trial court as to why the record should not be sealed in Fulton County is irrelevant to our consideration under an abuse of discretion standard. Pursuant to that standard, we are charged with examining the record to see if the factual findings of the trial court are supported by some evidence and whether the court abused its discretion in awarding fees. See Lawrence, 286 Ga. at 310 (1). A review of the record supports the trial court’s finding that the filing of the duplicative Fulton County suit and Cohen’s opposition to sealing the record in the Fulton County case, considered together, amounted to conduct designed to harass Rogers and to unnecessarily expand the proceedings.

Cohen further contends that the delay in voluntarily dismissing the Fulton County case was not sanctionable conduct. The trial court referenced the delay in connection with its finding that the Fulton County action was brought for an impermissible purpose. For Cohen to tease this finding out as separate and distinct conduct again mischaracterizes the trial court’s findings. The record sufficiently supports the trial court’s findings, and there was no abuse of discretion.

It is important to note that the trial court found that had Rogers not been successful in his renewed motion for fees, he would not have been entitled to fees for the work he spent in pursuing the motion. As the trial court noted, OCGA § 9-15-14 (d) states clearly that “[ajttor-ney’s fees and expenses of litigation incurred in obtaining an order of court pursuant to this Code section may also be assessed by the court and included in its order.” The trial court then found that because it was granting the renewed fee motion, Rogers had in fact obtained an order of the court pursuant to OCGA § 9-15-14, and was thus entitled to an award of attorney fees and expenses of litigation incurred in obtaining said order. OCGA § 9-15-14 (d). Because the trial court did not abuse its discretion in granting Rogers’s renewed fee motion, it was not an abuse of discretion for the trial court to award fees in pursuing the motion.

A correct application of the abuse of discretion standard of review reveals that there is evidence in the record to support the trial court’s factual findings. See Lawrence, 286 Ga. at 310 (1). It is not the role of this Court to ignore or reform the findings of fact made by the trial court. A proper application of the abuse of discretion standard demands that we affirm the holdings of the trial court if there is some evidence in the record to support them, regardless of whether judges on this Court would have made those same findings. In other words, we may not substitute our judgment or opinion for those of the factfinder if there was sufficient evidence to support them. There being evidence to support the trial court’s findings of fact and, as de novo review of the trial court’s legal holdings reveals no error, the judgment of the trial court must be affirmed.

(b) Was the trial court’s order sufficiently specific and supported by adequate proof ?

As set out above, OCGA § 9-15-14 (b) authorizes the court to

assess reasonable and necessary attorney’s fees and expenses of litigation... if... it finds that an attorney or party brought or defended an action, or any part thereof, that . . . was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct[.]

“Attorney’s fees and expenses of litigation awarded under [OCGA § 9-15-14] shall not exceed amounts which are reasonable and necessary for defending or asserting the rights of a party” OCGA § 9-15-14 (d). The award must be supported by “sufficient proof of the actual costs and the reasonableness of those costs.” Hindu Temple and Community Center of the High Desert v. Raghunathan, 311 Ga. App. 109, 117-118 (3) (714 SE2d 628) (2011). “[W]hen a trial court decides in its discretion to award such attorney fees and costs, it is incumbent upon the court to specify the conduct upon which the award is made.” Hall v. Monroe County, 271 Ga. App. 895, 897 (2) (611 SE2d 120) (2005) (punctuation omitted). To permit meaningful appellate review of an award of fees and expenses, the trial court’s order cannot be “too vague and conclusory,” such as where it fails to cite examples of conduct that authorize the award. La Petite Academy v. Prescott, 234 Ga.App. 32, 34 (2) (506 SE2d 183) (1998). The trial court need not cite “specific testimony, argument of counsel, or any other specific factual reference” in its order awarding fees under OCGA § 9-15-14; it is only required to specify the conduct upon which the award is made. Century Center at Braselton v. Town of Braselton, 285 Ga. 380, 381 (1) (677 SE2d 106) (2009).

In the 22-page order at issue in this appeal, the trial court specified the conduct upon which the award was made, and cited sufficient proof of the fees and expenses and their reasonableness. The order pertinently included the following findings: additional hearings were held regarding attorney fees; Rogers’s counsel testified as to the amount and reasonableness of the fees incurred by Rogers and to the conduct of Cohen in the action that caused those fees; Rogers’s counsel was cross-examined for several hours; Rogers’s counsel testified about the specific dollar amounts of fees initially awarded, the specific dollar amounts attributable to work disapproved of in Cohen I, and the resulting dollar amount of fees sought; Rogers’s counsel’s affidavits included dollar amounts incurred on specified dates; Rogers’s counsel established his personal knowledge of the fee entries and the legal work done on Rogers’s behalf; and evidence showed the amounts of the fees incurred since the return of the remittitur, the hourly rates the attorneys charged Rogers, and how those rates compared to the customary rates for similar cases in the applicable market. In the order, the court: listed the specific nature of the legal activities engaged in by Rogers’s counsel, including the types of activities and the proceedings for which they were performed; included several pages of fees that were not allowed, listing the attorneys’ names, the dates the fees were incurred, and the amounts billed; and included its calculations, showing how it arrived at the total award of $198,383.52.

In its conclusions of law, the trial court correctly stated that it was required to limit the fee award to those fees incurred because of sanctionable conduct. See Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 242 (2) (d) (620 SE2d 463) (2005). It also explained why Cohen, and not Brindle, was responsible for the fees and expenses. The court concluded that, except for fees sought in three categories (to wit, fees for time spent on the unsuccessful motion for contempt, fees for services not explained in sufficient detail, and fees and expenses that appeared to be related to the Cobb County case or related to nonlegal tasks), the fees and expenses Rogers sought “were reasonable and necessarily related to the Fulton Action and resulted from either the conduct of Cohen in bringing this action and then unnecessarily prolonging the proceedings, or were incurred pursuing an attorney fee award pursuant to OCGA § 9-15-14.” See OCGA § 9-15-14 (d) (the trial court has discretion to award fees incurred in pursuing a fee award).

The purpose of th[is] statutory subsection[ ] is twofold: to both punish and deter litigation abuses and to recompense litigants who are forced to expend resources in contending with abusive litigation. In light of this dual purpose, we conclude that to the extent one party may receive the benefit of an attorney’s willingness to accept the risk of defending his or her client for an amount less than the actual value of the services ultimately rendered, the most faithful construction of OCGA § 9-15-14 is one that does not reward the offending party This is particularly true in light of the fact that, as a necessary predicate to having issued the award, the trial court must determine that the fees were unwarranted and amassed solely as a result of abusive conduct by the party against whom they were assessed.

Hindu Temple, 311 Ga. App. at 118-119 (3).

We are not persuaded by Cohen’s contention that the court’s findings are not sufficiently specific to support an award. To the contrary, the court’s detailed order does in fact “permit... meaningful appellate review of the award of attorney fees and expenses.” Ga. Dept. of Transp. v. Douglas Asphalt Co., 295 Ga.App. 421, 424 (1) (671 SE2d 899) (2009) (punctuation omitted); see La Petite Academy, 234 Ga. App. at 34 (2). We agree with the statement of the Supreme Court in Fox v. Vice, 563 U. S. 826 (131 SCt 2205, 180 LE2d 45) (2011) (which involved attorney fee awards in civil rights cases — awards that are reviewed on appeal for abuse of discretion): the goal in shifting attorney fees “is to do rough justice, not to achieve auditing perfection.” Id. at 838 (II).

The trial court did not abuse its discretion in awarding to Rogers the reasonable value of his attorneys’ services and litigation expenses. See Hindu Temple, 311 Ga. App. at 119 (3); see generally Haggard, 257 Ga. at 527 (4) (c).

Judgment affirmed.

Miller, P. J., Ellington, P. J., Branch, McMil-lian, Reese and Self, JJ., concur. Barnes, P. J., and McFadden, P. J., concur in part and dissent in part.