Multibank 2009-1 Res-Adc Venture, LLC v. Savannah River Club, LLC

• Court: Court of Appeals of Georgia
• Decided: March 24, 2014
• Docket: A13A1995
• Status: Published

Opinion

THIRD DIVISION ANDREWS, P. J., DILLARD and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must 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 24, 2014

In the Court of Appeals of Georgia A13A1995. MULTIBANK 2009-1 RES-ADC VENTURE, LLC v. SAVANNAH RIVER CLUB, LLC et al.

ANDREWS, Presiding Judge.

Multibank 2009-1 RES-ADC Venture, LLC (“Multibank”) first filed the

underlying complaint for breach of promissory note and guaranty agreements against

Savannah River Club, LLC, Gerard M. Koehn, Steven L. Stamm, John Visser, Frank

Montagna, Goldridge Group, LLP, and MV Developments (collectively “SRC”) in

the United States District Court for the Northern District of Georgia and later filed

a suggestion of lack of jurisdiction in that court. The district court concluded that it

lacked subject matter jurisdiction and dismissed the case without prejudice.

Multibank refiled its complaint in the Superior Court of Gwinnett County. The

Gwinnett County trial court thereafter granted Multibank’s motion for summary judgment on its claims for breach of promissory note and guaranty agreements,

dismissed SRC’s counterclaim for setoff recoupment of damages, and denied

Multibank’s motion for summary judgment on SRC’s counterclaim for OCGA § 13-6-

11 bad faith attorney fees in the federal litigation of the case.

Multibank appeals from that portion of the trial court’s order denying it

summary judgment as to SRC’s counterclaim for OCGA § 13-6-11 attorney fees.

Pertinently, Multibank argues that fees expended in a prior litigation are not

recoverable under OCGA § 13-6-11. We agree. It is well-settled that “a party cannot

recover fees under authority of OCGA § 13-6-11 to the extent that the fees are

expended in a prior legal proceeding.” In Re Estate of Opal Mae Tapley, 312 Ga.

App. 234, 237-238 (4) (718 SE2d 92) (2011). Here, the federal case was dismissed

and re-filed in superior court. There was no remand.

Judgment reversed. Dillard and McMillian, JJ., concur.