Mitcham v. Ingram

455 S.E.2d 846, 216 Ga. App. 889, 95 Fulton County D. Rep. 1023, 1995 Ga. App. LEXIS 309

Opinion

McMurray, Presiding Judge.

This case first appeared via direct appeal in Mitcham v. Blalock, 214 Ga. App. 29 (447 SE2d 83), where the judgment of the trial court was reversed in part and the case was remanded for further proceedings on plaintiff Michael Mitcham’s claim against defendant Rollo Frederick Ingram. While this direct appeal was pending, the trial court entered an award of attorney fees and expenses pursuant to OCGA § 9-15-14 in favor of defendant Ingram predicated, at least in part, on the erroneous dismissal of certain claims plaintiff asserted against defendant Ingram. Held:

We granted this discretionary appeal because the trial court’s OCGA § 9-15-14 award is clearly connected (at least in part) to the merits of plaintiff’s claim against defendant Ingram. Accordingly, in order to avoid the anomalous possibility that the OCGA § 9-15-14 award in favor of defendant Ingram will be allowed to stand notwithstanding reversal of the underlying judgment upon which the award is predicated, Mitcham v. Blalock, 214 Ga. App. 29, supra, we hereby vacate the judgment and remand the case sub judice to the trial court with direction that the trial court vacate the OCGA § 9-15-14 award so as to prevent such an anomalous possibility. Rolleston v. Huie, 198 Ga. App. 49, 51 (4) (400 SE2d 349). See Fairburn Banking Co. v. Gafford, 263 Ga. 792, 794 (439 SE2d 482).

Judgment vacated and case remanded.

Pope, P. J., and Smith, J., concur. Decided March 13, 1995 Reconsideration denied March 28, 1995. Robert H. McKnight, Jr., for appellant. Bruce C. Bailey, Michael K. Wolensky, Kutak & Rock, Angela M. Gottsche, Tinkler & Groff, William P. Tinkler, Jr., for appellee. Charles L. Bradley, pro se.