Attorney fees. Fulton Superior Court. Before Judge Dempsey.
Robbins Ross Alloy Belinfante Littlefield, Joshua B. Belinfante, for appellant.
McLain & Merritt, Robert B. Hill, Ernest L. Beaton IV, for appellee.
Andrews, Presiding Judge.
LabMD, Inc. appeals an order by the Superior Court of Fulton County granting attorney fees to Adnan Tabrez Savera, M.D., pursuant to OCGA § 9-15-14. LabMD does not contend that the trial court's award was not authorized by the evidence; rather, it claims simply that the amount of the trial court's award should be reduced because it failed to apply a setoff and included sums that were not attributable to LabMD's sanctionable conduct. Finding that the trial court failed to consider certain factors which could influence the amount of its award, we affirm in part, vacate the trial court's order, and remand for further proceedings.
Relevant to the issues in this appeal, the trial court found that LabMD hired Dr. Savera in 2006 as its medical director and chief genitourinary pathologist. On January 22, 2010, Dr. Savera tendered 90 days' notice of his resignation from LabMD as required by his employment contract. After Dr. Savera provided his notice, he continued working for LabMD but was terminated by LabMD on April 12, 2010 -- ten days shy of the conclusion of his 90-day notice term. On the same date, LabMD filed a complaint against Dr. Savera alleging that Dr. Savera breached certain restrictive covenants in his employment contract. In five subsequent amended complaints, LabMD asserted additional causes of action against Dr. Savera, including: (i) breach of contract for failure to maintain regular working hours; (ii) breach of fiduciary duty; (iii) misappropriation of trade secrets; [331 Ga.App. 464] (iv) violation of the Federal Computer Fraud and Abuse Act (18 U.S.C. § 1030); (v) violation of the Georgia Computer Systems Protection Act (OCGA § 16-9-93); (vi) trespass; and (vii) punitive damages. Of the eight claims asserted against Dr. Savera, two were abandoned by LabMD (breach of contract [restrictive covenants] and breach of contract [working hours]), four were dismissed by the trial court on summary judgment (misappropriation of trade secrets, federal computer crimes, trespass, and, with one exception, breach of fiduciary duty), and one was dismissed by the trial court on Dr. Savera's motion for directed verdict during trial (punitive damages). A jury returned verdicts in favor of Dr. Savera on LabMD's remaining claims.
Following trial, Dr. Savera filed a motion for attorney fees against LabMD and LabMD's counsel pursuant to OCGA § 9-15-14 (a) and (b). In his motion, Dr. Savera alleged that he incurred attorney fees totaling $315,493.92 and that each of LabMD's causes of action " had no justiciable issue of law or fact; lacked substantial justification; were presented purely for purposes of harassing [Dr. Savera]; and were substantially frivolous, groundless and vexatious." After receiving additional briefing, the trial court conducted a hearing on Dr. Savera's motion. In addition to argument of counsel, the trial court received testimony from two of Dr. Savera's attorneys as well as affidavits and invoices from the attorneys.
In its order granting Dr. Savera's motion, the trial court initially found that Dr. Savera incurred attorney fees totaling $320,062.21. However, the trial court examined each of LabMD's eight causes of action and determined that five of them were frivolous and lacked substantial justification. As a result, the trial court apportioned Dr. Savera's attorney fees only to those causes of action it found to be frivolous, which resulted in an award of attorney fees in the amount of $168,257.18. This appeal followed.
OCGA § 9-15-14 (a) provides:
In any civil action in any court of record of this state, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not [331 Ga.App. 465] be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney's fees and expenses so awarded shall be assessed against ...