Krieger v. Walton County Board of Commissioners

525 S.E.2d 147, 241 Ga. App. 373, 99 Fulton County D. Rep. 4216, 1999 Ga. App. LEXIS 1486
CourtCourt of Appeals of Georgia
DecidedNovember 12, 1999
DocketA99A1088
StatusPublished

This text of 525 S.E.2d 147 (Krieger v. Walton County Board of Commissioners) 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
Krieger v. Walton County Board of Commissioners, 525 S.E.2d 147, 241 Ga. App. 373, 99 Fulton County D. Rep. 4216, 1999 Ga. App. LEXIS 1486 (Ga. Ct. App. 1999).

Opinion

Smith, Judge.

This is the second appearance of this case in the appellate courts of Georgia. In Krieger v. Walton County Bd. of Commrs., 269 Ga. 678 (506 SE2d 366) (1998), the Supreme Court affirmed in part and reversed in part the trial court’s ruling in favor of the board in the suit brought by John Krieger, Chairman of the Board of Commissioners of Walton County, against the Walton County Board of Commissioners and the six district commissioners. In that action, Krieger challenged a number of actions taken by the board, which Krieger characterized as attempts to strip him of the duties vested in his position. Id. at 679. The Superior Court of Walton County granted judgment in favor of the board as to all issues. Krieger appealed to the Supreme Court, which generally upheld the authority of the board to act as it did, concluding that “neither the constitution nor general laws prohibit!] the board from assuming authority over county personnel matters.” Id. at 684. The Supreme Court held, however, that because local legislation governed two specific actions, the board could not assume the power to hire, supervise, and fire county employees without first amending the local legislation. Id.

After the Supreme Court’s ruling, Krieger filed an application in the trial court for attorney fees and costs of litigation, claiming the Supreme Court had ruled in his favor. The trial court denied the application, and Krieger appeals,1 raising six enumerations of error.

[374]*3741. The record shows that when the suit was filed, the county attorney for Walton County declined to participate in the litigation, and the board voted to authorize the hiring of private defense counsel. A resolution was passed authorizing attorney fees and costs incurred in defending the suit to be paid by the board. In Krieger’s first two enumerations of error, he maintains that the board lacked authority to employ outside counsel and pay attorney fees for defending this action.

An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § 5-6-40. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. [Cits.]

Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999). In his notice of appeal, Krieger specifies that the order appealed from is the order entered on October 30, 1998, denying his application for attorney fees and costs. But that order recites expressly that the trial court has not approved the payment of any attorney fees or costs in this case. And it is clear that the trial court made no rulings regarding the authority of the board to employ outside counsel. Since the trial court did not rule on those matters, Krieger’s first two enumerations present nothing for review.

2. Krieger next enumerates as error the trial court’s denial of his request for attorney fees. Even if we agreed with Krieger’s characterization of himself as the “prevailing party” in the underlying lawsuit, “[a]s a general rule, Georgia law does not provide for the award of attorney fees to the prevailing party unless authorized by statute or contract.” (Citation and footnote omitted.) Indus. Distrib. Group v. Waite, 268 Ga. 115, 116 (1) (485 SE2d 792) (1997). Krieger’s application for attorney fees includes no citation of authority for such an award. In its order, the trial court indicated that Krieger asked the court for attorney fees “pursuant to Guhl v. Williams, 237 Ga. 586 [(229 SE2d 382) (1976)].” But we agree with the trial court that Guhl has no application to the facts of this case. Guhl also involved a dispute about proposals diminishing the power of the commission chairman. But unlike this case, the chairman and the board of commissioners in Guhl “agreed to resolve their dispute in the courts, and the county attorney was authorized and instructed to institute an action for declaratory judgment to resolve the legal issue.” Id. at 587.

The trial court’s order also states that “[i]n the alternative, [Krieger] asked that Walton County be ordered to pay his attorneys [375]*375fees and cost of litigation pursuant to OCGA § 13-6-11.” The trial court found no basis for granting Krieger’s request under that statute. We agree with the trial court that even if OCGA § 13-6-11 applies here, Krieger has not shown the bad faith or stubborn litigiousness on the part of the board that would support an award of fees and costs. The board had a reasonable defense to Krieger’s action, as shown by the fact that its actions were upheld by the Supreme Court, with exceptions as to the form of two of those actions.2 “A plaintiff may not recover expenses of litigation for stubborn litigiousness where a bona fide controversy exists.” (Citations and punctuation omitted.) Homeland Communities v. Rahall & Fryer, P.C., 235 Ga. App. 440, 443 (4) (509 SE2d 714) (1998). It can hardly have been bad faith on the part of the board to assert a position that ultimately prevailed on a majority of the issues.

The trial court’s order also recites that Krieger sought attorney fees under OCGA § 9-15-14. Although Krieger purported to base his motion for attorney fees upon OCGA § 9-15-14, the trial court’s order, shows that this issue was never argued. We agree with the trial court that because Krieger apparently abandoned this theory and made no showing that the board’s actions were frivolous, this request was without merit.

Appellees address in their briefs the issue of whether Krieger is entitled to seek attorney fees under OCGA § 45-9-21 (a), which allows governing bodies to undertake the defense of suits filed against government employees and officials arising out of the performance of their duties. We need not address this issue because Krie-ger has stated in his brief that he “does not claim that he has a right to recover attorneys’ fees under OCGA § 45-9-21.”

Because Krieger has shown no statute or contract authorizing an award of attorney fees to him (and because we cannot agree with him that he is the “prevailing party”), the trial court did not err in denying his request for an award of attorney fees and costs of litigation.

3. We find no reference in the record of the proceedings below to the issue raised by Krieger’s enumeration of error in this court that the trial court should have enjoined the payment of appellees’ attorneys because of violations of the State Open Meetings Act, OCGA §§ 50-14-1 through 50-14-6, and local law.3

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Related

Industrial Distribution Group, Inc. v. Waite
485 S.E.2d 792 (Supreme Court of Georgia, 1997)
Eickhoff v. Eickhoff
435 S.E.2d 914 (Supreme Court of Georgia, 1993)
Homeland Communities, Inc. v. Rahall & Fryer, P. C.
509 S.E.2d 714 (Court of Appeals of Georgia, 1998)
Padilla v. Melendez
491 S.E.2d 905 (Court of Appeals of Georgia, 1997)
Krieger v. Walton County Board of Commissioners
506 S.E.2d 366 (Supreme Court of Georgia, 1998)
Felix v. State
523 S.E.2d 1 (Supreme Court of Georgia, 1999)
Guhl v. Williams
229 S.E.2d 382 (Supreme Court of Georgia, 1976)

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Bluebook (online)
525 S.E.2d 147, 241 Ga. App. 373, 99 Fulton County D. Rep. 4216, 1999 Ga. App. LEXIS 1486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krieger-v-walton-county-board-of-commissioners-gactapp-1999.