Deavours v. Hog Mountain Creations, Inc.

Court of Appeals of Georgia

Deavours v. Hog Mountain Creations, Inc.

445 S.E.2d 579, 213 Ga. App. 337, 94 Fulton County D. Rep. 2055, 1994 Ga. App. LEXIS 557

CourtCourt of Appeals of Georgia

DecidedMay 27, 1994

DocketA92A1694, A92A1697

StatusPublished

Cited by1 cases

This text of 445 S.E.2d 579 (Deavours v. Hog Mountain Creations, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Deavours v. Hog Mountain Creations, Inc., 445 S.E.2d 579, 213 Ga. App. 337, 94 Fulton County D. Rep. 2055, 1994 Ga. App. LEXIS 557 (Ga. Ct. App. 1994).

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Opinion

Smith, Judge.

In Betallic, Inc. v. Deavours, 263 Ga. 796 (439 SE2d 643) (1994), the Supreme Court affirmed in part and reversed in part the judgment rendered by this court in Deavours v. Hog Mt. Creations, 207 Ga. App. 557 (428 SE2d 388) (1993), and directed that we take such further action as may be necessary to give effect to the Supreme Court’s opinion.

In Deavours, supra, the trial court granted an award of attorney fees and expenses of litigation to appellee-defendants based on their initial counterclaims for such an award pursuant to OCGA § 9-15-14. Construing OCGA § 9-15-14, we held that a claim for attorney fees and expenses of litigation for abusive litigation under OCGA § 9-15-14 must be made by motion within 45 days after the case is concluded. Since the motion made by appellee in this case was untimely, we reversed the trial court’s award of attorney fees to appellee. In Betallic, the Supreme Court agreed with our construction of OCGA § 9-15-14, but disagreed with that portion of our opinion quoting In the Interest of M. A. K., 202 Ga. App. 342 (1) (414 SE2d 288) (1991), stating that a claim for litigation costs and attorney fees under OCGA § 9-15-14 was available only to a “prevailing party.”

Accordingly, that portion of our opinion in Deavours, supra, as well as in M. A. K., supra, is disapproved. The judgment of the Supreme Court is made the judgment of this court.

Judgment reversed in Case No. A92A1694. Appeal dismissed in Case No. A92A1697.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews, Johnson and Blackburn, JJ., concur.

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Smith, Judge.

In Betallic, Inc. v. Deavours, 263 Ga. 796 (439 SE2d 643) (1994), the Supreme Court affirmed in part and reversed in part the judgment rendered by this court in Deavours v. Hog Mt. Creations, 207 Ga. App. 557 (428 SE2d 388) (1993), and directed that we take such further action as may be necessary to give effect to the Supreme Court’s opinion.

In Deavours, supra, the trial court granted an award of attorney fees and expenses of litigation to appellee-defendants based on their initial counterclaims for such an award pursuant to OCGA § 9-15-14. Construing OCGA § 9-15-14, we held that a claim for attorney fees and expenses of litigation for abusive litigation under OCGA § 9-15-14 must be made by motion within 45 days after the case is concluded. Since the motion made by appellee in this case was untimely, we reversed the trial court’s award of attorney fees to appellee. In Betallic, the Supreme Court agreed with our construction of OCGA § 9-15-14, but disagreed with that portion of our opinion quoting In the Interest of M. A. K., 202 Ga. App. 342 (1) (414 SE2d 288) (1991), stating that a claim for litigation costs and attorney fees under OCGA § 9-15-14 was available only to a “prevailing party.”

Accordingly, that portion of our opinion in Deavours, supra, as well as in M. A. K., supra, is disapproved. The judgment of the Supreme Court is made the judgment of this court.

Judgment reversed in Case No. A92A1694. Appeal dismissed in Case No. A92A1697.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews, Johnson and Blackburn, JJ., concur.

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445 S.E.2d 579, 213 Ga. App. 337, 94 Fulton County D. Rep. 2055, 1994 Ga. App. LEXIS 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deavours-v-hog-mountain-creations-inc-gactapp-1994.

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