Finney v. Department of Corrections

434 S.E.2d 45, 263 Ga. 301, 93 Fulton County D. Rep. 2534, 1993 Ga. LEXIS 533
CourtSupreme Court of Georgia
DecidedJuly 15, 1993
DocketS92G0830
StatusPublished
Cited by15 cases

This text of 434 S.E.2d 45 (Finney v. Department of Corrections) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Finney v. Department of Corrections, 434 S.E.2d 45, 263 Ga. 301, 93 Fulton County D. Rep. 2534, 1993 Ga. LEXIS 533 (Ga. 1993).

Opinions

Carley, Justice.

Appellant in the instant appeal was successful in the pursuit of her claim under OCGA § 45-19-20 et seq., the Fair Employment Practices Act (FEPA). Although she incurred no attorney’s fees, the special master nevertheless awarded her attorney’s fees. On appeal to the superior court, the special master’s award of attorney’s fees was affirmed. The Court of Appeals granted appellee’s application for a discretionary appeal and reversed. Department of Corrections v. Finney, 203 Ga. App. 445 (416 SE2d 805) (1992). This court granted appellant’s petition for a writ of certiorari.

1. Nothing in OCGA § 45-19-38 expressly authorizes a special master to award reasonable attorney’s fees to a successful claimant. Compare OCGA § 45-19-39 (c), which expressly authorizes the superior court, in its discretion, to award “reasonable attorney’s fees and the costs of litigation” in connection with judicial review. However, OCGA § 45-19-38 does implicitly authorize a special master to award reasonable attorney’s fees to a successful claimant. Kilmark v. Bd. of Regents, 175 Ga. App. 857, 870 (5) (334 SE2d 890) (1985). Appellant urges that a successful FEPA claimant who actually incurs no attorney’s fees whatsoever in connection with the special master proceeding should nevertheless be entitled to recover attorney’s fees because federal courts have construed similar federal statutes to authorize such a recovery.

It is undoubtedly true that, in construing FEPA, our courts may seek guidance from federal decisions construing similar federal statutes. Department of Human Resources v. Montgomery, 248 Ga. 465, 467 (2) (284 SE2d 263) (1981). However, it is equally true, and very significant, that FEPA does not track the language of any similar federal statute regarding the recovery of attorney’s fees. Similar federal statutes authorize without limitation the recovery of “a reasonable attorney’s fee.” For example, 42 USC § 1988 provides:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part [302]*302of the costs.

(Emphasis supplied.) Obviously, if there is statutory authority for the unlimited recovery of “a reasonable attorney’s fee,” the private fee arrangement as between the prevailing party and counsel is not determinative as to either the recovery of attorney’s fees or the amount thereof. Blanchard v. Bergeron, 489 U. S. 87 (109 SC 939, 103 LE2d 67) (1989); Blum v. Stenson, 465 U. S. 886 (104 SC 1541, 79 LE2d 891) (1984). The prevailing party is statutorily entitled to “a reasonable attorney’s fee” and

[a]s we understand [42 USC] § 1988’s provision for allowing a “reasonable attorney’s fee,” it contemplates reasonable compensation, in light of all of the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less.

Blanchard v. Bergeron, supra at 93.

Our General Assembly could have authorized the unlimited recovery of “a reasonable attorney’s fee” by a successful FEPA claimant. If it had, the decisions in Blanchard and Blum and other federal cases construing similar federal statutes could then be considered as persuasive authority. However, our General Assembly did not authorize the unlimited recovery of “a reasonable attorney’s fee” by a successful FEPA claimant. To the contrary, it limited a successful FEPA claimant’s recovery by providing that u[a]ny monetary award ordered pursuant to this article [, OCGA § 45-19-20 et seq.,] shall be for actual damages only.” (Emphasis supplied.) OCGA § 45-19-38 (d). Having the federal statutes as a model, the General Assembly’s intent not to authorize a successful FEPA claimant’s unlimited recovery of “a reasonable attorney’s fee,” but to limit a recovery of reasonable attorney’s fees to successful claimants who are contractually obligated to pay counsel, could not have been clearer. An award of attorney’s fees is payable to the successful claimant, not to the successful claimant’s counsel. Counsel is relegated to a recovery pursuant to his or her contractual agreement with the successful claimant. Permitting a recovery of reasonable attorney’s fees by the successful claimant who is not contractually obligated to pay counsel would permit a monetary recovery of more than the “actual damages” incurred and would be in contravention of the express language of OCGA § 45-19-38 (d).

There are policy considerations as to why an award of reasonable attorney’s fees should be authorized for all successful claimants in FEPA cases, regardless of whether attorney’s fees were actually incurred. The purpose of the judiciary is not, however, to determine what FEPA should provide. Our authority extends only to a construe[303]*303tion of FEPA as it was enacted by the General Assembly. The primary rule of statutory construction is to ascertain the legislative intent. The legislative intent to limit a successful FEPA claimant to a recovery of such reasonable'attorney’s fees as were actually incurred is clear. Pursuant to OCGA § 45-19-38, a special master is implicitly authorized to award reasonable attorney’s fees to a successful FEPA claimant who actually incurred attorney’s fees in pursuit of the claim. In no event, however, would the special master be authorized to award attorney’s fees to a successful FEPA claimant who has incurred no attorney’s fees whatsoever. “Any monetary award ordered pursuant to this article [, OCGA § 45-19-20 et seq.,] shall be for actual damages only.” OCGA § 45-19-38 (d).

Accordingly, we hold that, when FEPA is properly construed, appellant in the instant case is not authorized to recover attorney’s fees in connection with the special master proceeding because she incurred none and that no successful claimant in a FEPA case can recover attorney’s fees when none were actually incurred unless and until the General Assembly amends that statute to authorize such a recovery. As the Court of Appeals correctly held, since appellant’s

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Bluebook (online)
434 S.E.2d 45, 263 Ga. 301, 93 Fulton County D. Rep. 2534, 1993 Ga. LEXIS 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finney-v-department-of-corrections-ga-1993.