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Heiskell v. Roberts

Court of Appeals of Georgia, Fifth Division

June 27, 2017

HEISKELL et al.
v.
ROBERTS.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         This case stems from a dispute between a former state court judge and a county and its former sole commissioner about the judge's compensation. The county and commissioner (together, "the county") appeal a superior court order entered upon remand from our Supreme Court.

         Before us are the trial court's rulings in favor of the former judge on cross motions for summary judgment on the county's claim for reimbursement of his salary supplement and two rulings in favor of the former judge on attorney fees. As to the salary supplement, we affirm because the county has not shown that the supplement was paid with a total absence or want of power. Consequently we also affirm the award of attorney fees to the former judge under the rule that when "an official, acting in his official capacity, is required to hire outside counsel to assert a legal position the local government attorney . . . will not assert, and the official is successful in asserting his or her position, the local government must pay the official's attorney fees." Gwinnett County v. Yates, 265 Ga. 504, 508 (2) (458 S.E.2d 791) (1995). And we also affirm, as supported by sufficient evidence, the amount of OCGA § 9-15-14 (a) attorney fees awarded to the former judge for defending against the counterclaims the Supreme Court found to be frivolous.

         The former judge, Bruce Roberts, filed suit against Walker County and its sole commissioner at the relevant time, Bebe Heiskell, claiming that, because the county paid him a smaller supplement than his predecessor, it underpaid him for the 15 months that he served as judge of the State Court of Walker County. The county denied that it had underpaid him, denied Roberts's request to pay his legal fees in connection with the case, and filed counterclaims alleging, among other things, that it actually had overpaid Roberts and was entitled to reimbursement for the overpayments. On cross-motions for summary judgment, the trial court granted Roberts's claim for mandamus and ordered the county to pay him $78, 878.55 in unpaid salary; dismissed the counterclaims as barred by judicial immunity; and ordered it to pay Roberts's attorney fees.

          In Heiskell v. Roberts, 295 Ga. 795 (764 S.E.2d 368) (2014) ("Heiskell 1"), our Supreme Court held that the trial court erred in granting summary judgment on the mandamus claim to Roberts instead of to the county, in dismissing the county's counterclaim for reimbursement, and in granting attorney fees to Roberts based on these erroneous rulings. The court further held that the county's other counterclaims "totally lacked legal justification, " id. at 803 (4) (b), and that the trial court correctly dismissed them and correctly ruled that the county could be required to pay attorney fees to Roberts under OCGA § 9-15-14 for defending against those claims. Based on these holdings, the Supreme Court affirmed in part, reversed in part, and remanded the case for the entry of a more limited attorney fees award and to allow the county the opportunity to pursue its counterclaim for reimbursement.

         On remand, the trial court granted summary judgment to Roberts and denied summary judgment to the county on its counterclaim for reimbursement, ruled that Roberts is entitled to attorney fees in an amount to be determined for defending that counterclaim, and entered a new attorney fees award in Roberts's favor under OCGA § 9-15-14 for defending against the frivolous counterclaims. The county now appeals.

         We find that the trial court correctly granted Roberts summary judgment on the reimbursement counterclaim because the county has not shown that the payment of Roberts's salary supplement was done with a total absence or want of power. And because Roberts successfully asserted his position on this claim, the trial court did not err in finding that Roberts is entitled to attorney fees for defending against this counterclaim. Finally, as evidence supports the amount of the award of OCGA § 9-15-14 (a) attorney fees to Roberts for defending against the counterclaims the Supreme Court found to be frivolous, we affirm that award.

         1. Relevant facts.

According to our Supreme Court, these are the relevant facts:
In 2010, Judge C. Donald Peppers, Sr., of the State Court of Walker County was reelected to a four-year term of office that started on January 1, 2011. Effective June 30, 2011, Judge Peppers retired after 26 years in office; at the time he retired, he was allegedly making $172, 102.80 per year, although a portion of his salary was reimbursed by Catoosa County for his service as a part-time judge in that neighboring county. On September 16, 2011, Governor Nathan Deal announced that he would appoint Bruce Roberts to fill the vacancy.
On September 30, 2011, Roberts met with Bebe Heiskell, Walker County's sole commissioner. Heiskell informed Roberts that the base salary for the state court judge position was $60, 000 per year, see Ga. L. 1994, p. 3726, § 1, but she allegedly offered to pay him at the rate of $100, 000 per year, slightly more than the $94, 000 that he was making in his previous job. Roberts requested $110, 000, but Heiskell declined, citing budget constraints. Roberts was sworn into office on October 3, 2011. He stood for election in the next nonpartisan general election in July 2012, but he lost, meaning that his term of office would end on the last day of 2012. During the period following his defeat, Roberts dismissed about 60 traffic cases. The county paid Roberts at an annualized rate of $100, 000 for the 15-month period that he held office.
On October 25, 2012, Roberts filed a complaint for mandamus and other relief against Commissioner Heiskell (in her official capacity) and Walker County. Roberts sought to recover the difference between what he was being paid and what Judge Peppers would have been paid for the same period based on the provision of Art. VI, Sec. VII, Para. V of the Georgia Constitution of 1983 that says: "An incumbent's salary, allowance, or supplement shall not be decreased during the incumbent's term of office." Roberts also asked for the county to provide him with legal representation, but the county did not do so. Appellants filed an answer and counterclaims for breach of contract, "intentional infliction of monetary damages, " and intentional infliction of emotional distress, all based on Roberts's dismissal of the traffic cases. Appellants later added a counterclaim seeking reimbursement of all salary paid to Roberts at an annualized rate greater than $60, 000; the alleged overpayments totaled about $50, 000.
Roberts filed a motion for summary judgment, and Appellants filed a cross-motion for partial summary judgment. After a hearing, the trial court entered an order on October 30, 2013, granting Roberts's mandamus claim and directing Commissioner Heiskell to pay him $78, 878.55 from county funds for "salary due and unpaid, " dismissing Appellants' counterclaims as barred by judicial immunity, and requiring Appellants to pay Roberts's attorney fees based in part on Gwinnett County v. Yates, 265 Ga. 504 (458 S.E.2d 791) (1995), and in part on OCGA § 9-15-14.1 The court also dismissed Walker County as a defendant with respect to Roberts's mandamus claim, but left the county as a defendant on Roberts's claim for attorney fees based on Appellants' counterclaims.

Heiskell, 295 Ga. at 796-797 (1) (footnotes omitted).

         As described above, the Supreme Court affirmed the trial court's decision in part, reversed it in part, and remanded the case for further proceedings. On remand, the trial court awarded Roberts $30, 800 in attorney fees and $772.24 in expenses under OCGA § 9-15-14 for defending against the frivolous counterclaims. The trial court granted summary judgment to Roberts on the reimbursement counterclaim and ...


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