David M. Cohen v. Joseph Rogers, Jr.

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

Opinion

WHOLE COURT

NOTICE: Motions for reconsideration m us t 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

March 16, 2017

In the Court of Appeals of Georgia A16A1858. COHEN v. ROGERS.

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 RICO 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 and her 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 Cohen v. Rogers, Case No. A14A0201 (decided July 16, 2014) (unpublished) (“Cohen I”).

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. For 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.

2 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. Opinion, 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.” Opinion, 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.

3 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.” Id. 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 evidentiary 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 Brindle 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

4 attributable to each sanctionable 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); Haggard v.

Bd. of Regents of Univ. System of Georgia, 257 Ga. 524, 526 (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

5 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 sanctionable 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.

A thorough 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,

6 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

7 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

8 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, supra. 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.

9 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 “[a]ttorney’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.

10 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, supra. 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 fact finder 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

11 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 & Cmty. Ctr. &c. 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, Inc. 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, LLC 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

12 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 attorney’s 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.

13 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 (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 non-legal 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 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

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 & Cmty. Ctr. &c., supra at 118-119.

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)

(672 SE2d 899) (2009); see La Petite Academy, Inc. supra. We agree with the

statement of the Supreme Court in Fox v. Vice, 563 U. S. 826 (131 S. Ct. 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).

15 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 & Cmty.

Ctr. &c., supra; see generally Haggard v. Board of Regents, 257 Ga. 524, 527 (4) (c)

(360 SE2d 566) (1987).

Judgment affirmed. Miller, P. J., Ellington, P. J., Branch, McMillian, Reese

and Self, JJ., Concur. Barnes, P. J., and McFadden, P. J., concur in part and

dissent in part.

16 A16A1858. COHEN v. ROGERS.

BARNES, Presiding Judge, concurring in part and dissenting in part.

Because the trial court abused its discretion by disregarding the express

direction of this Court, I must respectfully dissent to Division 2 of the majority opinion

affirming the trial court’s award of almost $200,000 in attorney fees to Rogers.1 The

trial court abused its discretion in finding that the actions of Cohen were sanctionable,

and to the extent there was any sanctionable conduct, erred in the amount of fees

awarded.

The Fulton County action was active for 21 days. In our previous opinion

vacating the first award of $142,656 in attorney fees and expenses of litigation under

OCGA § 9-15-14 (b), we found that the trial court erred in awarding fees related to

appellate and prelitigation conduct. We directed the trial court to “make express

findings of fact and conclusions of law as to the basis for an award . . . for conduct

undertaken before that court, pursuant to OCGA § 9-15-14 . . . .” Brindle v. Rogers,

328 Ga. App. XXIV (Case No. A14A0676) (2014). But instead of focusing on the

conduct before it that justified a fee award, as directed, the trial court essentially

entered the same order but raised the award to $198,382. Even under the deferential

1 I concur fully in Division 1. abuse of discretion standard of review, an attorney fee award of almost $10,000 for

each of the 21 days the case was pending abuses that discretion. The findings and

conclusions in the award on appeal are “too vague and conclusory to permit any

meaningful appellate review of the award,” and instead of affirming, this Court should

reverse. See Georgia Dept. of Transp. v. Douglas Asphalt Co., 295 Ga. App. 421,

424 (1) (672 SE2d 899) (2009) (citation and punctuation omitted).

In response to this Court’s directive to make express findings of fact and

conclusions of law about conduct before that court that served as the basis for an

award of fees, if any, the trial court singled out one of Brindle’s three attorneys,

Cohen, and concluded that he filed the Fulton County suit “for delay and harassment

and unnecessarily expanded the proceedings,” which echoes the standards in OCGA

§ 9-15-14 (b). It concluded that “[t]he only discernable purposes of the filing of this

suit and opposing sealing the record was to delay the sealing and cause greater

inconvenience, harassment and embarrassment to Defendant Rogers, and such

conduct greatly and unnecessarily expanded the proceedings.”

The conclusion that the only discernable purpose for filing the Fulton suit was

to delay the sealing, inconvenience and embarrass Rogers, and unnecessarily expand

the proceeding is contradicted by the evidence in the record, for the reasons described

2 infra. As to Brindle’s refusal to consent to sealing the Fulton County record, neither

the trial court nor the majority has acknowledged that parties cannot simply agree to

seal the court record from public view, as also discussed infra.

By affirming this fee award, this Court abdicates its responsibility to look at the

entire record to determine whether the trial court abused its discretion. The trial court

erred in granting the motion, and erred in the amount of the award. A summary of that

review follows.

In 2012, Mye Brindle, through her attorneys David Cohen and John Butters,

brought sexual harassment claims against Joseph Rogers, Jr. While the opposing

parties were attending a confidential mediation of these claims, Rogers’ attorneys filed

a John Doe lawsuit in Cobb County alleging extortion. Before Brindle was served with

the Cobb County lawsuit, Brindle filed suit against Rogers in Fulton County for her

sexual harassment claims. Twenty-one days after filing, Brindle dismissed her Fulton

County suit.

Rogers moved for attorney fees in Fulton County, and the Fulton County trial

court initially awarded Rogers $142,656 in attorney fees and expenses of litigation

under OCGA § 9-15-14 (b) against Brindle and one of her three attorneys, David

Cohen. This Court granted Brindle and Cohen’s applications for discretionary appeal,

3 vacated the fee award, and remanded the case for further proceedings in an

unpublished opinion. Brindle v. Rogers, 328 Ga. App. XXIV (Case No. A14A0676)

(2014).

Following additional hearings on Rogers’ renewed motion for fees, the trial

court awarded him an additional $55,726, for a total award of $198,382 in fees and

expenses, but against only Cohen, not Brindle. We granted Cohen’s application for

discretionary appeal, and he argues that the trial court abused its discretion by

declining to reconsider the issue of liability for the fee award and by awarding fees and

expenses to Rogers. This Court should reverse the award.

1. Under the common law, an award of attorney fees is generally not allowed as

part of damages. Because any statute awarding attorney fees is in derogation of

common law, it must be strictly construed against the award of such damages.

(Footnotes and punctuation omitted.) Doster v. Bates, 266 Ga. App. 194, 195 (1) (596

SE2d 699) (2004).

Under the American Rule generally applicable in our legal system parties are responsible for their own attorney fees and expenses of litigation (Vogtle v. Coleman, 259 Ga. 115 (376 SE2d 861) [(1989)]), but legislation has provided some exceptions to this rule. In this state, the major exceptions to the American Rule arise in cases when a party has asserted unwarranted claims, engaged in improper defensive tactics,

4 acted in bad faith, been stubbornly litigious, or has caused unnecessary trouble and expense. In these circumstances, the General Assembly has enacted legislation that allows the awards of attorney fees and expenses of litigation to the aggrieved party under OCGA §§ 51-7-81 and 9-15-14.

Williams v. Binion, 227 Ga. App. 893 (1) (490 SE2d 217) (1997).

The trial court here awarded fees and expenses under OCGA § 9-15-14 (b),

which authorizes a trial court in its discretion to award fees if an action lacked

substantial justification — defined in the statute as “substantially frivolous,

substantially groundless, or substantially vexatious” — or if a party or attorney

unnecessarily expanded the proceeding by other improper conduct, such as discovery

abuse.2 We review such an award for abuse of discretion. Haggard v. Board of

Regents, 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987).

When a trial court exercises 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).

2 In contrast, OCGA § 9-15-14 (a) directs a mandatory fee award for asserting “a claim, defense, or other 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 claim, defense, or other position.” We review awards under this subsection under the “any evidence” standard. Williams v. Warren, 322 Ga. App. 599, 602 (1) (745 SE2d 809) (2013).

5 For example, an award of fees to a defendant “for having to defend himself against the

spurious claims and groundless [c]omplaint initially filed by the [p]laintiff” was

insufficient to affirm the fee award. Johnston v. Correale, 285 Ga. App. 870, 870-871

(1) (648 SE2d 180) (2007). To permit meaningful appellate review, the trial court’s fee

award must point out examples of the respondent’s conduct that support the award

under the standards set forth in OCGA § 9-15-14. La Petite Academy v. Prescott, 234

Ga. App. 32, 34 (2) (506 SE2d 183) (1998). But 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. Century Center at Braselton v. Town of

Braselton, 285 Ga. 380, 381 (1) (677 SE2d 106) (2009) (evidence of misconduct by

respondent’s counsel in seeking an interlocutory injunction was sufficient to support

fee award and established that trial court did not abuse discretion).

For purposes of this appeal, the relevant facts are that Brindle previously

worked for Rogers. In the summer of 2012, she resigned and her attorney sent Rogers

a letter contending that Brindle had employment-related sexual harassment claims

against him that were documented by audio and video recordings. Following the

receipt of the letter, Rogers’ counsel requested and obtained a face-to-face meeting

with Brindle’s attorneys on August 2, 2012. Rogers then asked Brindle to engage in

6 formal mediation proceedings and selected the mediator. The parties and their counsel

signed a contract agreeing that “[a]ll that occurs during the mediation process shall be

confidential and may not be recorded and shall not be revealed in any subsequent legal

proceedings or otherwise.”

During the mediation proceedings on September 14, 2012, after Brindle’s

counsel upon request named a dollar figure for settlement purposes, Rogers filed a

John Doe suit in Cobb County, where Brindle resided, for extortion, invasion of

privacy, and intentional infliction of emotional distress related to the recordings.

Rogers moved the Cobb County court to seal the case, but on September 19, 2012,

the court denied the motion, finding it moot because Rogers had included sufficient

information within the John Doe complaint for his identity to be determined.

Also on September 19, 2012, Brindle filed suit against Rogers in his resident

county of Fulton, raising her employment-related claims. Later that day, Rogers filed

an amended complaint in Cobb County, using his and Brindle’s real names and asking

the Cobb County court to take possession of and limit access to certain evidence in

the case. He also filed another motion to seal the record. Rogers was personally

served with the Fulton County complaint on September 20, 2012.

7 Litigation proceeded in both Cobb and Fulton Counties for 21 days. For

example, on September 24, 2012, the Cobb County court held a hearing on Rogers’

second motion to seal the record, but suspended it when the parties informed the court

that they were attempting to negotiate a consent order that would address both the

motion to seal and other matters. On September 28, 2012, the Cobb County trial court

signed a consent order providing that the parties agreed that the case should be kept

under seal and that they would not file dispositive motions until they completed

discovery, which could be used in either the Cobb County or the Fulton County

actions. Brindle agreed to waive service, and both parties agreed about how to handle

certain discovery issues. The Cobb County consent order specified that the parties

were “not attempting by this Order to address what information may be disseminated

[in the civil action] pending in the State Court of Fulton County,” and provided that

the order would remain in effect until further court order or discovery ended,

whichever came first.

A week later, on October 5, 2012, Rogers moved the Fulton County court to

seal its record. On October 9, the Fulton County court issued an order temporarily

sealing the record and setting a motion hearing on the next day. At the end of that

hearing, the trial court announced that it was granting Rogers’ motion to seal the

8 record and directed Rogers to draft an order containing certain findings. Brindle

dismissed her Fulton County suit without prejudice the next day, October 10, 2012,

then filed an answer and counterclaim in the Cobb County suit that mirrored her Fulton

County complaint.3

On November 26, 2012, Rogers filed a motion in the Fulton County court

seeking an award of attorney fees and expenses of litigation under OCGA § 9-15-14

(a) and (b). Rogers argued that he was entitled to a mandatory fee award under OCGA

§ 9-15-14 (a) because Brindle filed suit in Fulton County instead of a counterclaim in

3 The trial court’s fee award insinuates that Cohen was responsible for leaking news of the suit to the media in violation of the order sealing the record. But no judge has ever found that Brindle or her counsel leaked that information. To the contrary, a reporter from the paper that first broke the story said in an affidavit that she found out about the case from a male caller who was not one of Brindle’s lawyers. Rogers’ counsel told the Cobb County court that a reporter from the Fulton County Daily Report who called for comment said he had received a copy of the Fulton County complaint through the mail in an unmarked envelope and did not know who sent it. And after Rogers filed a motion for contempt in Cobb for violating the order sealing the record and the Cobb court issued an order directing Brindle and her counsel to show cause why they should not be adjudged in civil contempt for violating the sealing order, Rogers withdrew his motion for contempt in January 2012 without obtaining a ruling on whether Brindle or her counsel gave information to the media while that case was sealed. In Fulton County, Rogers’ motion for contempt was never ruled on; in fact, in the fee award at issue here, the trial court disallowed $43,994 for services connected with Rogers’ motion for contempt. Both the Fulton and Cobb courts ultimately lifted the sealing orders upon Rogers’ request. The litigation in Cobb County continues. See Cohen v. Rogers, 338 Ga. App. 156 (789 SE2d 352) (2016), cert. denied, Feb. 2, 2016..

9 Cobb County, and was entitled to a discretionary award of fees under OCGA § 9-15-

14 (b) because Brindle declined to consent to sealing the record in Fulton County, she

failed to notify him via email of her dismissal without prejudice, she filed an application

to appeal the order sealing the record that was not under seal, and she filed a

premature notice of direct appeal. Brindle opposed the motion for fees, and the parties

filed additional material addressing the motion.

In May 2013, the Fulton County court held a two-day hearing on Rogers’

motion for fees and expenses. In an order issued on May 23, 2013, the court awarded

Rogers $142,656.82 in attorney fees and expenses of litigation against both Brindle and

Cohen under OCGA § 9-15-14 (b). Brindle and Cohen sought and were granted an

application for discretionary appeal of the fee award. In the unpublished opinion

referred to previously, 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 prelitigation conduct, and remanded the case to the Fulton County court

for further proceedings. Cohen v. Rogers, Case No. A14A0202. 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

10 undertaken before that court, pursuant to OCGA § 9-15-14, specifying the amount of

such award, if any.” Opinion, pp. 4-5.

After remand, the case was assigned to a different judge. Rogers filed a renewed

motion for attorney fees, arguing that because this Court vacated but did not reverse

the trial court’s fee award, the issue of liability had been decided and was the law of

the case. The requested fee award of $257,871 included $133,526 (the amount of fees

previously awarded), minus $9,130 for work done before suit was filed and in the

appellate court, plus $124,345 for post-remittitur work on Rogers’ renewed attorney

fee motion and expenses.

Brindle and Cohen separately opposed the renewed motion for fees and

expenses in November 2014. Cohen requested an evidentiary hearing, to which Rogers

objected; the trial court set a hearing; and the parties filed pre-hearing briefs on

February 16, 2015.

On the first day of the hearing in February 2015, the trial court said it would not

reconsider the issue of Cohen’s liability for sanctions but would consider evidence

regarding the amount of the fee award. The parties filed more pleadings and evidence,

and in April 2015 the trial court held the second day of the post-remittitur hearing.

After additional briefing in August and October 2015, the trial court issued a thorough

11 and detailed order in March 2016 granting Rogers’ renewed motion for fees and

expenses under OCGA § 9-15-14 (b), but against only Cohen.

The trial court held first that, contrary to the initial fee award, nothing Brindle

herself had done warranted a fee award against her individually, and denied Rogers’

motion for an award of fees and expenses against Brindle. The court then concluded

that, other than fees sought in three discrete categories, $198,383 of the attorney fees

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.” The order did not address the conduct of

Brindle’s other two counsel of record, Butters and Hylton Dupree.

This Court granted Cohen’s application for a discretionary appeal of the fee

award against him.

Considering the trial court’s liability determination, while we accept the trial

court’s factual findings unless they are clearly erroneous, we must review for abuse

of discretion the trial court’s award of over $198,000 in attorney fees against Cohen

alone. Haggard, 257 Ga. at 527 (4) (c). “[A]lthough ‘abuse of discretion’ is a

deferential standard of review, it is not toothless,” and it is less deferential than the

12 “clearly erroneous” test. Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012)

(citation and punctuation omitted.)

As previously discussed, an award of fees is warranted if the trial court finds

that an attorney brought an action that “lacked substantial justification” or was

“interposed for delay or harassment,” or “unnecessarily expanded the proceeding by

other improper conduct.” OCGA § 9-15-14 (b).

In its conclusions of law resulting in an award to Rogers of $198,383 in fees and

expenses, the trial court stated in a footnote that Cohen’s conduct related to the July

2012 letter “or any other conduct outside the proceedings before this Court while this

action was pending” was not sanctionable, but that “such conduct outside this Court

serves as circumstantial evidence that conduct in this Court was undertaken for an

improper purpose.” (Emphasis in original.) While the trial court in this footnote clearly

intended to indicate its compliance with this Court’s mandate to consider only conduct

before that court, the order itself belies that compliance by basing the award on

conduct that was not before it, as discussed further infra. Additionally, the trial court

added facts related to a contempt motion Rogers withdrew before it was ruled on and

a show-cause order related to media leaks that the court never ruled on.

13 The trial court made 40 findings of fact related to conduct that began with the

demand letter, covered proceedings in Cobb, the media, and the appellate courts, and

continued through the post-remittitur briefs and hearings. The first thirty facts echoed

those in the first order, with two completely new findings: that in October 2012, the

trial court had entered a show-cause order “directing counsel and the parties to

disclose any role they may have had in the leaking of pleadings to the press,” and that

in December 2012, Rogers filed a motion for contempt alleging that Brindle and her

counsel violated the court’s order sealing the record, although no hearing was held on

the motion.

The trial court also added to the previous order a truncated quotation between

the trial court and Butters from the hearing on Rogers’ motion to seal, the fact that

Brindle filed an answer and counterclaim in the Cobb County suit after dismissing this

lawsuit, identified Cohen, rather than“Brindle and her counsel,” as having filed the

Supreme Court application, and the fact that the Supreme Court emailed Brindle’s

application and exhibits to a reporter who had received an anonymous tip, resulting in

public disclosure of the sealed documents.4

4 Also new are eight findings of fact recounting the proceedings related to the fee motion, both before and after this Court’s remittitur.

14 The order also lists 18 categories of legal activity by Rogers’ counsel for which

Rogers sought an award, omitting the previously included category of researching the

demand letter and adding the activities associated with the unsuccessful motion for

contempt and the extensive post-remittitur work on Rogers’ renewed fee motion

seeking an additional $124,345 in legal fees.

The only conduct that occurred before the trial court in Fulton County

consisted of filing the complaint, opposing sealing the record, delaying the dismissal

of the suit after acknowledging service in Cobb County, and opposing and appealing

the fee motion. The trial court abused its discretion in awarding fees based on each of

these categories of actions.5

(a) Filing the complaint. The Fulton County court reviewed proceedings

occurring before suit was filed, after it was dismissed, and before other courts. After

reviewing Cohen’s conduct before suit was filed and in other courts, the trial court

determined that conduct that did not take place before the Fulton County court

5 We note that Cohen was only one of three lawyers who represented Brindle, and not the only lawyer who argued in opposition to Rogers’ motion to seal the record in Fulton County. While Rogers outlines in his appellate brief some of the reasons he thinks only Cohen is responsible for paying his fees, the trial court’s order contains no explanation for singling him out.

15 constituted circumstantial evidence that Cohen’s conduct in Fulton was undertaken for

an improper purpose. This conduct, the court said, led it to conclude that “the only

logical purpose” for filing in Fulton County and declining to agree to seal the record

was “to avoid the Cobb Consent Order sealing the record, and to maintain and make

good on a threat, as expressed in his July 16, 2012 . . . letter, to publicly embarrass

Rogers.”

But the Cobb consent order sealing the record and addressing discovery matters

was entered on September 28, 2012, nine days after Brindle filed her complaint in

Fulton County. Therefore, Brindle could not have filed suit in Fulton County to avoid

complying with the Cobb County consent order, and the trial court abused its

discretion in so finding.

Cohen also argues that the Cobb suit was a nullity when he filed in Fulton

County because the Cobb suit only identified the parties by pseudonyms. Therefore,

he asserts, filing suit in Fulton County — where the alleged acts forming the basis for

her complaint occurred — was not conduct lacking substantial justification under

OCGA § 9-15-14 (b). In September 2012, whether a complaint filed under a

pseudonym could be “pending” was not settled law. While our Supreme Court held

in 1983 that “pleadings may be amended to substitute a named party plaintiff when suit

16 is filed in the name of a party which is not a legal entity . . . but is reasonably

recognizable as a misnomer,” Block v. Voyager Life Ins. Co., 251 Ga. 162 (1) (303

SE2d 742) (1983), a “John Doe” plaintiff is not a misnomer. We previously held under

the uninsured motorist statute, OCGA § 33-7-11, that a plaintiff cannot sue a John Doe

motorist unless the motorist is unknown. Kannady v. State Farm Mut. Auto. Ins. Co.,

214 Ga. App. 492 (448 SE2d 374) (1994).

Whether a suit brought by an anonymous plaintiff was a nullity that could not

be revived by amendment after the statute of limitation had run was addressed in July

2014, in Doe v. Archdiocese of Atlanta, 328 Ga. App. 324 (761 SE2d 864) (2014).

This Court in Doe reversed a trial court’s dismissal of such a suit. After

acknowledging that “[i]n general, Georgia law mandates that parties to a lawsuit

identify themselves in their respective pleadings,” we “reject[ed] the [defendant’s]

overly rigid argument that, because Doe was not publicly identified, her complaint

failed to import a natural person and should be treated as a nullity.” Id. at 327 (1).

Absent controlling authority to the contrary when Brindle filed her complaint,

her argument that Rogers’ first-filed Cobb County John Doe complaint was a nullity

“was not substantially frivolous, substantially groundless, or substantially vexatious.”

See Patterson v. Hragyil, 322 Ga. App. 329, 333 (1) (744 SE2d 851) (2013)

17 (reversing fee award for plaintiff, whose failure to accept informal paternity test did not

render substantially frivolous her continued efforts to reach agreement with alleged

father). See also Brown v. Gadson, 298 Ga. App. 660, 661 (680 SE2d 682) (2009)

(claims for a paternity ruling and for child support did not lack substantial justification,

even though plaintiff did not prevail on her argument); DeKalb County v. Adams, 263

Ga. App. 201, 203-204 (587 SE2d 302) (2003) (although county’s argument — that

the court lacked authority to enforce its civil contempt order after the parties’

settlement agreement expired — had been decided against it, the argument did not lack

substantial justification and did not support fee award); OCGA § 9-15-14 (c) (“No

attorney or party shall be assessed attorney[] fees as to any claim or defense which the

court determines was asserted by said attorney or party in a good faith attempt to

establish a new theory of law in Georgia if such new theory of law is based on some

recognized precedential or persuasive authority.”)

Further, “OCGA § 9-15-14 (b) does not specifically authorize an award of

attorney fees based upon a finding that litigation was instituted for an ‘improper

purpose’ or a finding that a party has acted in bad faith.” Citizens for Ethics in

Government v. Atlanta Development Auth., 303 Ga. App. 724, 738 (5) (694 SE2d

680) (2010) (footnote omitted). Finally, “an action is not a ‘pending’ suit until after

18 service of process is perfected.” Steve A. Martin Agency v. PlantersFIRST Corp.,

297 Ga. App. 780, 781 (1) (678 SE2d 186) (2009).

Thus, when Brindle filed her complaint in Fulton County, nothing was

“pending” in Cobb County that required her to file a compulsory counterclaim in

Cobb. 6 Accordingly, the trial court also abused its discretion by finding that, because

Cohen “did not wait and file a counterclaim in the Cobb Action at a time he believed

it was ripe, instead of proceeding to file the Fulton Action,” his conduct in filing the

Fulton County complaint lacked substantial justification, unnecessarily expanded the

proceedings, or was undertaken for delay.

(b) Opposing sealing the record. The trial court found that Cohen had

consented to sealing the record in Cobb County, but took “a contradictory and

inconsistent position in this Court by refusing to consent and opposing Rogers’

efforts to seal the Fulton Action.” And, the trial court held, Cohen’s dismissal of the

Fulton County case the day after the Fulton County court orally announced its

decision to seal the record “further evidences that the Fulton Action was brought

6 “A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” OCGA § 9-11-13 (a).

19 solely for the purpose of avoiding the sealing order in the Cobb Action.” Thus,

Cohen’s only purpose for refusing to consent to sealing the record, the trial court held,

was “to delay the sealing and cause greater inconvenience, harassment and

embarrassment to Defendant Rogers, and such conduct greatly and unnecessarily

expanded the proceedings.” The court concluded that, because Cohen’s reasons for

refusing to consent to Rogers’ motion to seal the record in Fulton County were

“contradictory and inconsistent” with his consent to seal the record in Cobb County,

his refusal to consent to seal the Fulton County record unnecessarily expanded the

proceedings and justified a fee award under OCGA § 9-15-14 (b).

During the October 9, 2012, hearing, Rogers argued that his privacy interests

outweighed the public’s interest, and pointed out Brindle’s consent to seal the record

in Cobb County. Cohen and one of Brindle’s other two attorneys, John Butters,

argued on Brindle’s behalf in opposition to the motion to seal the Fulton County

record. Butters explained that Brindle would not consent to seal the record in Fulton

County but did in Cobb County because the litigants were in different postures and

the causes of action were different. The Cobb County case belonged to Rogers,

Butters argued, and Brindle did not care that Rogers wanted to seal his lawsuit against

her, whom Butters described as a victim, because Brindle intended to proceed with her

20 suit in Fulton County. Butters also pointed out that the Cobb County order contained

no finding that Rogers’ privacy interest outweighed the public’s interest in open court

records, which was necessary for a proper order sealing a record.

Additionally, he argued, the areas of agreement in each venue varied. For

example, Butters argued, Rogers would not agree in Fulton County to forego filing

dispositive motions until after discovery was completed, as he had in the time-limited

Cobb County consent order. Brindle’s lawyers noted that Rogers had been aware of

the existence of that evidence since receiving Cohen’s letter months before, and no

legal emergency existed that required immediate action.7 Butters told the trial court that

Brindle had always agreed not to disseminate any of the recordings at issue to anyone,

and Cohen noted that the existence of the case was already public, per the Cobb

County trial court’s order denying Rogers’ motion to seal the John Doe case.

7 Brindle moved this Court to supplement the appellate record with a written order entered by a different Fulton County trial court on November 30, 2016, dismissing indictments against Brindle, Butters, and Cohen for conspiracy to commit theft by extortion and crimes of unlawful surveillance. Rogers referred in his post- hearing trial court brief to an investigation of “Brindle and Cohen’s” video evidence by the Fulton County District Attorney’s Public Integrity Unit, and responded to the motion to supplement with a copy of the State’s December 8, 2016, notice of appeal of that order. However, “[w]e are not authorized to consider that [evidence] as we are limited to the record in the case sub judice.” Tingle v. Arnold, 129 Ga. App. 134, 139 (199 SE2d 260) (1973).

21 Brindle’s opposition to Rogers’ motion to seal the record was not frivolous and

did not lack substantial justification. An order sealing the record must be supported

by a finding that the public’s interest in open records is outweighed by the party’s

privacy interest. In re Motion of the Atlanta-Journal-Constitution, 271 Ga. 436, 438

(519 SE2d 909) (1999). See also Uniform Superior Court Rule 21 (“All court records

are public and are to be available for public inspection unless public access is limited

by law or by the procedure set forth below.”8

In the State of Georgia, the public and the press have traditionally enjoyed a right of access to court records. Public access protects litigants both present and future, because justice faces its gravest threat when courts dispense it secretly. Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.

Atlanta Journal v. Long, 258 Ga. 410, 411(1) (369 SE2d 755) (1988).

“Although the rule creates a presumption that all court records are to be open,

it also provides for a limitation on that right when the privacy of a party clearly

outweighs the public right to know.” Savannah College of Art & Design v. School of

Visual Arts, 270 Ga. 791, 792 (515 SE2d 370) (1999).While the subject matter of the

8 “The Uniform Rules for the Superior Courts shall be applicable in State Courts.” Uniform State Court Rules, Note.

22 recordings and the claims against Rogers is sensitive, a party’s embarrassment is not

a sufficient ground upon which to seal court records.

By their nature, civil lawsuits quite often cause litigants to experience an invasion of privacy and resulting embarrassment, yet that fact alone does not permit trial courts to routinely seal court records. In an order sealing a court record, a trial court must set forth factual findings that explain how a privacy invasion that may be suffered by a party or parties seeking to seal a record differs from the type of privacy invasion that is suffered by all parties in civil suits. Otherwise, the trial court is not justified in closing the record from public scrutiny.

In re Motion of the Atlanta-Journal-Constitution, 271 Ga. at 438 (footnote omitted)

(reversing order to seal that failed to set forth factual findings explaining how that

movant’s privacy invasion differed from that suffered by all parties in civil suits).

Thus, regardless of whether Brindle consented to seal the record or not, the trial

court in this case was required to hold a hearing and enter an order containing findings

of fact establishing whether Rogers’ interest in maintaining his privacy exceeded the

public’s interest in open court records. In re Motion of the

Atlanta-Journal-Constitution, 271 Ga. at 438. The trial court must also specify what

part of the record is sealed, as well as the duration of the sealing and the reasons.

Atlanta Journal v. Long, 258 Ga. at 411 (1) (reversing order to seal certain

23 prejudgment records in suit against the Catholic Diocese of Savannah and denial of

newspapers’ motion for access to records).

Reviewing the record as a whole and considering the ongoing, fast-paced,

intertwined but distinctive proceedings in the Fulton and Cobb County cases, the trial

court abused its discretion in finding that Cohen’s failure to consent to sealing the

record in Fulton County, conduct undertaken in conjunction with his co-counsel,

lacked substantial justification or was interposed for delay. See Ingram v. Star Touch

Communications, 215 Ga. App. 329, 330 (1) (450 SE2d 334) (1994) (“Absent

extraordinary circumstances, . . . the failure of a party to agree to telephonic

depositions cannot form the basis of an award of attorney fees and expenses under

OCGA § 9-15-14. Such a decision is a matter of tactics, strategy and advocacy based

upon factors which may change during the course of the litigation.”)

(c) Delaying the dismissal. The trial court found that, because Brindle agreed

to acknowledge service in Cobb County as part of the consent order entered in that

court on September 28, 2012, Cohen’s subsequent delay in dismissing the Fulton

County case was sanctionable conduct because it unnecessarily expanded the

proceedings. The Fulton County case was dismissed without prejudice on October

10, 2012.

24 As is obvious from the limited recitation of proceedings in the Fulton and Cobb

actions, litigation before both courts moved quickly after Rogers filed the Cobb

County complaint. Lawyers for both sides were filing motions, responding to motions,

preparing for hearings, attending hearings, and drafting and reviewing proposed orders

seemingly nonstop for weeks at a time. The trial court’s conclusion that delaying the

dismissal for 12 days after agreeing to waive service — 7 business days, excluding

weekends and the Columbus Day holiday — unnecessarily expanded the proceedings

and was “substantially frivolous, substantially groundless, or substantially vexatious”

that justified the attorney fee award was an abuse of discretion under OCGA § 9-15-14

(b).

2. Additionally, even if the trial court did not abuse its discretion in finding

Cohen’s conduct sanctionable, it erred in the amount of fees awarded. In the fee order

on appeal, the trial court found that Rogers was entitled to fees for all of the time his

counsel spent pursuing his fee motion, including the time spent to obtain the first, now-

vacated, award. The trial court stated, “The fact that Cohen and Brindle chose to

strenuously oppose the Initial Fee Motion, appeal the Order Granting Fees, and fully

re-litigate the fee issue in this Court on remand does not negate Rogers’ entitlement to

fees.”

25 “[I]n awards under OCGA § 9-15-14 (b), “the trial court must limit the fees

award to those fees incurred because of the sanctionable conduct.” (Punctuation

omitted.) Trotter v. Summerour, [273 Ga. App. 263, 267 (2) (614 SE2d 887) (2005)].”

Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 242 (2) (d) (620

SE2d 463) (2005) (Footnotes omitted.). Here, Brindle’s opposition to the motion for

fees and the first fee award resulted in this Court vacating that award, and her

continued opposition to the motion after the case returned to the Fulton County court

were completely successful as to her personally. But neither the evidence nor the trial

court’s order reveals how much time Rogers’ counsel spent in his initially

unsuccessful pursuit of a fee award, much of which was surely repeated after remand

to reach $124,000 more fees.

Additionally, despite submitting at least five affidavits including hundreds of

pages of somewhat itemized bills and testifying at length during the evidentiary hearing,

Rogers failed to support his claims that he incurred almost $200,000 of necessary legal

fees because of sanctionable conduct attributed solely to Cohen,9 evidence about the

fees incurred for conduct before the Fulton County court is insufficient to sustain this

award. The calculations in the order begin with Rogers’s total fee request of $257,871.

9 The second fee affidavit appears to be the first one in the record.

26 Rogers derived that request by subtracting two sums from the vacated award of

$142,656, purportedly in compliance with this Court’s direction, then adding $124,345

for post-remand fee litigation, which includes at least $40,000 to prepare visual aids

to use during the post-remand hearings. The trial court then deducted various sums

from the award, and concluded that the remaining lump sum of $198,383 in fees was

incurred for Cohen’s conduct that violated the statute.

It is impossible to tell from the trial court order or from Rogers’ evidence how

much time his lawyers spent on any particular category of conduct. While Rogers

complains in his brief about “micro-apportionment” and warns of trial courts

becoming “green-eyeshade accountants,” the act requires the movant to prove how

much he paid his counsel for each sanctionable act. See OCGA § 9-15-14 (d).

A review of the affidavits and bills Rogers submitted to support his motion for

fees reveal unresolvable factual discrepancies. For example, in the January 2015 “Sixth

Affidavit of [Rogers’ Counsel,” counsel stated that all fees billed before September

29, 2012 had been removed from the total amount sought.10 But “all fees billed” before

that date were not removed, as the affidavit then indicates by the following sentence:

10 The Cobb trial court entered the consent order, which included agreements about discovery, motions timing, document confidentiality, and sealing that record, on September 28, 2012. Brindle also agreed to waive personal service.

27 Prior to September 29, 2012, the only fees remaining which have been sought for reimbursement, [sic] pertain to the investigative and legal research work done to address the defenses to Ms. Brindle’s accusations contained in the extortion letter of July 16, 2012, which then was used in our arguments supporting the sealing of the Fulton Action.

Rogers’ counsel conceded during cross-examination during the evidentiary hearing

that some of the more than $250,000 sought included work done pre-filing, in response

to the demand letter, and those fees were permissible because he used that research

in his motion to seal the record.

None of the billing records submitted detail the pre-litigation research to which

Rogers’ counsel refers in both the affidavit and his testimony. The only entries in the

September 2012 bill add up to about $8,800, which is then subtracted from the total

amount sought. Perhaps those fees are detailed in the Cobb billing records, but the trial

court granted Rogers’ motion to quash Brindle’s notice to produce those bills.

Another review reveals numerous redactions in the bills’ line items. Rogers

defends those redactions as necessary to maintain attorney-client privilege and avoid

revealing his strategy to Brindle related to the Cobb lawsuit he brought against her. In

other words, Rogers wants reimbursement for undocumented research time but argues

28 that he need not be required to show the subject matter of the research because it is

confidential.

For the foregoing reasons, I respectfully concur in part and dissent in part from

the majority opinion.

29 A16A1858. COHEN v. ROGERS.

MCFADDEN, Presiding Judge, concurring in part and dissenting in part.

I concur in Division 1. I agree with Presiding Judge Barnes’s dissent in Division

2. I write separately to emphasize that the State Court of Fulton County failed to

comply with our earlier opinion: it failed to set out sufficient findings about conduct

“before that court.” Brindle v. Rogers, 328 Ga. App. XXIV, at 4 (1) (Case No.

A14A0676) (2014) (emphasis in original). I write also to address the standard of

review: the Fulton County court’s order is premised on a misreading of OCGA § 9-15-

14 (b) and so is, to that extent, subject to de novo review.

1. Failure to comply with our earlier opinion.

Our earlier opinion charged the Fulton County court to enter findings on remand

about conduct “before that court.” Brindle, supra at 4 (1) (emphasis in original).

Because the Fulton County court failed to meet that charge, we must reverse and

remand.

We “vacate[d] the [prior] award and remand[ed] the case for the [Fulton

County] court to make express findings of fact 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 conduct which would authorize the award and the amount of such award, if any.”

Brindle, supra at 4-5 (1) (citations omitted; emphasis in original). Because the findings

and specifications now before us are “too vague and conclusory to permit any

meaningful appellate review of the award,” we must again remand for further findings.

See Georgia Dept. of Transp. v. Douglas Asphalt Co., 295 Ga. App. 421, 424 (1)

(672 SE2d 899) (2009) (citation and punctuation omitted).

I note at the outset that it is doubtful that any findings could justify anything

close to the six-figure amounts the Fulton County court has been awarding. This

litigation has swollen to near-Jarndycian proportions, but its bulk is in the State Court

of Cobb County. I don’t see how its Fulton County tendril can sustain anything close

to what has been awarded. The Cobb County action was filed on September 14, 2012,

and continues to this day. The Fulton County action was filed on September 29, 2012,

and dismissed on October 10, 2012 — 21 days later. The award now before us is for

$198,383.52. That’s nearly $10,000 a day. Even allowing for fees incurred seeking

fees, it is difficult to imagine how such an award could be “reasonable and necessary.”

See OCGA § 9-15-14 (d).

So setting out findings that would authorize us to hold, after “meaningful

appellate review,” that this award is “reasonable and necessary” was a daunting

2 challenge. See OCGA § 9-15-14 (d); Douglas Asphalt Co., supra, 295 Ga. App. at

424 (1). It was all the more daunting, the appellant tells us, because the appellee’s fee

records are not broken down by sanctionable acts. The appellee’s defense of the order

does not rise to the challenge.

And the order suggests that the trial court was well and truly daunted. It recites

that the “[l]egal activity engaged in by Rogers’[s] counsel, for which an award is

sought, includes but is not limited to the following[.]” (Emphasis supplied.) (The

italicized language, of course, contributes less than nothing to meaningful appellate

review.) There follows a list of 18 tasks. But the list sets out no dates, no

specifications of time spent, no hourly rates, and no identifications of the persons who

performed the tasks. Most importantly for purposes of our review, there is nothing to

enable us to determine whether the tasks related to proceedings in the Fulton court or

in the Cobb County court.

From the starting point of Rogers’s $257,871.52 fee request, the award is

derived by deducting amounts set out in three more lists. Each entry on those lists

provides the name and initials of an attorney, a date, and an amount billed — nothing

else. The lists break down the deductions into three categories. For each list we are

provided a “Total Deduction for this Category.” The categories and their total

3 deductions are: “Time Spent on the Motion for Contempt,” $43,994.50; “Services Not

Explained in Sufficient Detail,” $14,231.50; and “Other Fees and Expenses

Disallowed,” $1,262.00. The award of $198,383.52 is the remainder of Rogers’s total

fee request minus those deductions. The category “Other Fees and Expenses

Disallowed” is composed of tasks that are “related in whole or in part to proceeding

in the Cobb [a]ction or appear related to nonlegal tasks, such as contact with the

media.”

So the Fulton County court’s compliance with our direction that on remand it

“make express findings of fact and conclusions of law” sufficient to ensure that the

award is only “for conduct undertaken before that court,” Brindle, supra at 4 (1)

(emphasis in original), consists of conclusory statements. There is no explanation of

the amounts allocated to pre-litigation activities and litigation in the Supreme Court. As

to the Cobb County court — where the bulk of this litigation has taken place — we

have only a bald assertion that the fees properly allocated are some unspecified amount

less than $1,262.

That is not remotely sufficient. It does not enable us to perform a “meaningful

appellate review” of whether the amount of the award is “reasonable and necessary.”

Douglas Asphalt, supra at 424 (1). The award cannot be sustained.

4 2. Standard of review.

As the majority correctly observes, it is well settled that we review fee awards

under subsection (b) of OCGA § 9-15-14 for abuse of discretion; and abuse of

discretion is a deferential standard of review. But as the majority also correctly

observes, even under that standard, we review legal holdings de novo. And as we have

written about subsection (a) in particular, the applicability of OCGA § 9-15-14

sometimes depends “upon an assessment of the state of the law at the time a party

advanced a legal argument that, another party now contends, forms the basis for an

award of attorney fees. Such an assessment of the state of the law, we think, itself

presents a question of law, and we usually do not defer to trial courts about pure

questions of law.” Gibson Constr. Co. v. GAA Acquisitions I, LLC, 314 Ga. App.

674, 676 (725 SE2d 806) (2012) (citation omitted).

The Fulton County court relies on the clause of subsection (b) of OCGA § 9-

15-14 that authorizes a fee award because an “action, or any part thereof, was

interposed for delay or harassment[.]” The Fulton County court finds in that clause

authority to sanction a party on the basis of purpose, motivations, or intent —

regardless of the action’s legal merit. That clause does appear, at first glance, to

authorize an award regardless of legal merits; unlike subsection (a) and unlike the two

5 clauses of subsection (b) that parallel it, it contains no express requirement of “a

complete absence of any justiciable issue of law or fact,” of “lack[ ] [of] substantial

justification,” or of “improper conduct.” See OCGA § 9-15-14 (a), (b).

But the clause cannot be construed so broadly. Such a construction would

render the authority to impose fees wholly unconstrained. Almost any motion,

pleading, or argument will to some degree subject the opposing party to delay or

harassment. And the Fulton County court’s overbroad reading of subsection (b) is

foreclosed by the subsection that follows:

No attorney or party shall be assessed attorney’s fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedental or persuasive authority.

OCGA § 9-15-14 (c). Per force, neither may fees be assessed for claims or defenses

solidly grounded on settled law or assessed on the basis of ad hoc standards. A

subjective evaluation of motivation is not enough.

So the analysis in Judge Barnes’s dissent of the merits of appellant’s legal

arguments, of the legal justification for appellant’s actions, and of the Fulton County

court’s criticism of those arguments and actions are all on point. As Judge Barnes ably

6 demonstrates, appellant’s actions and arguments were solidly grounded on settled law

— or as to one issue, grounded on a fair argument about a then-unsettled question of

law. The sanctions order must therefore be reversed.

As Judge Barnes explains in her dissent, appellant had a legitimate basis for

arguing that because the Cobb County action was a “John Doe” action, it was a nullity.

I add that it was wholly proper for appellant to aggressively and creatively resist

appellee’s amazingly successful effort to shift the focus of this case to whether Brindle

subjected Rogers to what he calls “sextortion,” instead of whether Rogers subjected

Brindle to sexual harassment.

A central conceit of Rogers’s claim is that the demand letter was extortion. That

contention is entirely without merit. “Under Georgia law, threats to take legal action

provide no basis for duress and are not actionable in tort.” Mobley v. Coast House,

Ltd., 182 Ga. App. 305, 307 (355 SE2d 686) (1987) (citation omitted). It is of no

consequence that — as such letters often do — the demand letter emphasized the

collateral benefits of settlement. “‘[T]hreats’ associated with institution of a civil suit

cannot and do not constitute duress and are not actionable in court.” Id.

I add also that in sanctioning appellant for “circumventing” an order entered by

another court and for refusing to consent to an extension of that order, the Fulton

7 court would add new uncertainty to the practice of law. I am aware of no authority

delineating any such duties, at least not in this or any similar context. And I would hold

that the trial court erred in undertaking — without citation of authority — to create

such duties. If appellees violated the Cobb County consent order, the remedy is in the

Cobb County court.

And I would hold unwarranted appellee’s reliance on OCGA § 16-11-62, which

criminalizes unlawful eavesdropping or surveillance. Georgia follows the one-party

consent rule. See State v. Birge, 240 Ga. 501 (241 SE2d 213) (1978); Mitchell v.

State, 239 Ga. 3, 4-5 (235 SE2d 509) (1977) (plurality). It is true that we have held that

there are some instances in which the consent of a single party may not insulate that

party from prosecution for a video recording. Gavin v. State, 292 Ga. App. 402, 404-

406 (664 SE2d 797) (2008). But “Gavin does not hold and cannot be reasonably

understood to hold that the participant’s exception set forth in OCGA § 16-11-66 (a)

has no application to video recordings that satisfy the criteria of that statutory

exception.” State v. Madison, 311 Ga. App. 31, 34 (2) (a) (714 SE2d 714) (2011).

Even if Brindle had violated OCGA § 16-11-62, that would not give Rogers a

cause of action. See Gobran Auto Sales v. Bell, 335 Ga. App. 873, 877 (2) (783 SE2d

389) (2016) (finding no private cause of action for violation of penal statute where

8 statute did not expressly provide for such cause of action). At most Rogers could

seek exclusion of the video recording from evidence. See Ransom v. Ransom, 253

Ga. 656, 659 (3) (324 SE2d 437) (1985). And that evidentiary issue may well have

been mooted by Rogers’s deposition testimony.

And I would vacate the Fulton County court’s holding that appellant could be

sanctioned for reporting Rogers’s conduct to the police or for failing to disclose that

report during negotiations. Criminal charges may not be used as bargaining chips in

negotiations about civil cases. On remand, I would direct the Fulton County court,

before reentering any such finding, to carefully consider Rule 3.4 (h) of the Georgia

Rules of Professional Conduct, see Bar Rule 4-102 (d), which provides that a lawyer

shall not “present, participate in presenting or threaten to present criminal charges

solely to obtain an advantage in a civil matter.”

Finally — given the unchallenged representation by appellant’s counsel that

there has never been any attempt to make the recordings public and that the recordings

have never been released except to law enforcement, the court, and counsel — I am

bemused by the extent of the Fulton County court’s solicitude for Rogers’s claims of

embarrassment. Rogers entered into a long-term adulterous relationship with a much-

younger woman who, as his employee, was in his power. Whether Brindle truly

9 consented to the relationship or was coerced is a central issue in the underlying case.

Unless and until that issue is resolved in Rogers’s favor, he may not be compensated

for his bruised feelings.