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McClure v. McCurry

Court of Appeals of Georgia

October 22, 2014

McCLURE
v.
McCURRY et al

Attorney fees. Cherokee Superior Court. Before Judge Mills.

William L. Colvin, for appellant.

Flint, Connolly & Walker, Douglas H. Flint, for appellees.

PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.

OPINION

Phipps, Chief Judge.

After they were sued in 2008 by David McClure d/b/a McClure Contracting, Riverstone Professional Building, LLC obtained summary judgment, and Chris McCurry obtained a favorable jury verdict. Subsequently, citing OCGA § 9-15-14, the trial court granted attorney fees to Riverstone Professional Building and McCurry. In this appeal, McClure challenges the awards of attorney fees, setting forth these grounds: (i) the issue of attorney fees was not included in the pretrial order; (ii) the order awarding the attorney fees failed to contain required elements; and (iii) McCurry was denied summary judgment and a directed verdict. We find that the first ground presents no basis for disturbing either award. Regarding the

Page 31

second ground, we agree with McClure -- the trial court's order does not contain elements required for substantive review; therefore, we do not reach the merits of the third ground. We affirm in part, vacate in part, and remand the case with direction.

1. McClure challenges the propriety of the awards, pointing out that the issue of attorney fees was not included in the pretrial order. This challenge is unavailing.

OCGA § 9-11-16, which concerns pretrial orders, provides that " [u]pon the motion of any party, or upon its own motion, the court shall direct the attorneys for the parties to appear before it for a conference" [1] and " shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues for trial." [2] Accordingly, this court has recognized that the issue of attorney fees and litigation expenses -- where pursued, for instance, under OCGA § 13-6-11 -- may be waived, if not included in the pretrial order.[3] " The question of whether attorney fees are appropriate under [OCGA § 13-6-11] is for the jury." [4]

But the appellees' motion in this case was expressly premised upon OCGA § 9-15-14, which statute sets forth procedural provisions [329 Ga.App. 343] for the recovery of attorney fees and litigation expenses upon the grounds delineated therein.[5] As this court has held,

[subsection] (f) provides that " an award of reasonable and necessary attorney's fees or expenses of litigation under this Code section shall be determined by the court without a jury and shall be made by an order of court... ." (Emphasis supplied.) There is no ambiguity in the statute; the legislature clearly intended for the court, not a jury, to determine whether fees and costs should be awarded under OCGA § 9-15-14.[6]

Regarding the timing of a movant's request, OCGA § 9-15-14 (e) provides: " Attorney's fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action."

As McClure acknowledges in his brief, the appellees " filed their Motion ... during the pendency of [the] action." Hence, the appellees' motion was timely filed. McClure cites no authority for his argument that the appellees' quest for attorney fees was subsequently lost for failure to include it in the pretrial order, and we find none. Moreover, McClure's argument disregards the plain language of OCGA § 9-15-14 that allows for the filing of a motion even after the trial, ...


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