ROBERT H. MCNAIR, AS CO-EXECUTOR OF THE ESTATE OF W. O. MCNAIR
RICHARD "RICHIE" HAROLD MCNAIR et al.
DILLARD, C. J., REESE and BETHEL, JJ.
third appearance of this case before this Court, Robert H.
McNair ("the Appellant") appeals the award of
attorney fees against him individually,  in relation to
the jury trial on his petition contesting the will of Hazel
McNair ("H. McNair").For the reasons set forth infra,
following are the pertinent facts from the record. Upon the
death of H. McNair, her will dated September 17, 2001, was
filed for probate in solemn form in the Turner County Probate
Court in November 2011. Two co-executors, Richard McNair and
Penny Thompson ("the Appellees"), were appointed
under H. McNair's will.
McNair's brother, W. O. McNair, filed a caveat to the
probate of her will. The Appellant, W. O. McNair's son,
filed an affidavit with the caveat. After a hearing, the
probate court issued an order on June 12, 2013, denying the
petition to probate the will in solemn form. The Appellees
filed a notice of appeal of the probate court's order in
the Superior Court of Turner County on June 21, 2013.
McNair passed away on July 27, 2013. His will appointed three
co-executors: W. O. McNair, Jr., Thompson, and the
Appellant. Prior to the trial in superior court
regarding H. McNair's will, the Appellees filed a motion
to substitute parties. After a hearing,  the superior
court entered an order substituting the three named
co-executors of W. O. McNair's estate in place of W. O.
McNair. The appeal of the probate court's order was tried
before a jury on September 15 and 16, 2014, and resulted in a
jury verdict to probate H. McNair's will, dated September
17, 2001, in solemn form. The superior court entered a
judgment on the verdict.
the jury trial, the Appellees filed a motion for attorney
fees against the Appellant,  pursuant to OCGA § 9-15-14
After a hearing, the superior court awarded attorney fees
against the Appellant in the amount of $22, 099.75 under OCGA
§ 9-15-14, without specifying the subsection.
an initial matter, "an order awarding attorney fees
pursuant to [OCGA § 9-15-14] must specifically state
whether the award is made under OCGA § 9-15-14 (a) or
[T]he court must make express findings of fact and
conclusions of law as to the statutory basis for any such
award and the conduct which would authorize it. Specificity
in the award is important because the standards of appellate
review are different under each subsection: the standard
under subsection (a) is the any evidence rule; the standard
under subsection (b) is abuse of discretion.
noted above, the award of attorney fees here fails to
identify the subsection of the statute under which the
superior court awarded the attorney fees. However, the
superior court's order stated that the Appellant's
claim "was interposed for delay and harassment and the
caveat pursued lacked substantial justification, was
substantially frivolous and substantially groundless."
that the language used by the trial court is similar to the
wording of OCGA § 9-15-14 (b). Also, the trial court
conducted an evidentiary hearing pursuant to OCGA §
9-15-14 to address the Appellees' motion for attorney
fees under subsection (b). Based on the language
contained in the order awarding attorney fees, which tracked
the language in OCGA § 9-14-15 (b), and the transcript
of the evidentiary hearing, we conclude that the superior
court awarded attorney fees under OCGA § 9-15-14
we will review the Appellant's claims using the abuse of
discretion standard. With this guiding principle in mind, we
now turn to the Appellant's specific claims of error.
Appellant argues that the superior court erred in awarding
the Appellees attorney fees for defending H. McNair's
will against the caveat filed by W. O. McNair. We agree.
Appellees sought attorney fees, pursuant to OCGA §
9-15-14 (b), alleging the Appellant brought the caveat on
behalf of his father for the purposes of "delay and
harassment" while they sought to probate the will of H.
McNair. "Implicit in the language of [OCGA] §
9-15-14 is that a court of record of this state may impose
reasonable and necessary attorney fees and expenses of
litigation for proceedings before that court, which
were brought for purposes of harassment or delay or lacked
the order awarding attorney fees to the Appellees, the
superior court made several findings of fact based on conduct
that occurred while this case was under the jurisdiction of
the Turner County Probate Court, prior to the appeal of the
probate court's order to the superior court. For example,
in its findings of fact, the superior court stated that
"[t]he parties initially agreed to have the case heard
in Superior Court in the interests of judicial economy, but
after a Superior Court hearing was requested by [the
Appellees] (after the six month discovery time allowed in
Superior Court ha[d] expired), the attorney for [the
Appellant] notified the [Appellees] that his client had
'changed his mind.'" This finding of fact
mirrors the assertion made in the Appellees' motion for
attorney fees, which references a letter written by the
Appellant's attorney dated August 9, 2012, while this
matter was still pending in the probate court.
superior court's order also references a letter written
to the Appellant from his attorney dated February 22, 2012,
that discusses the delay of the case. In addition, the order
states that "[i]t took seven (7) months to come up with
a [hearing] date that was satisfactory with the
[Appellant]" due to numerous conflicts claimed by his
attorney. The superior court also found that a bill for legal
services provided in the probate court by the attorney for W.
O. McNair was paid by W. O. McNair's estate, even though
the payment receipt listed the Appellant as the
attorney's client. The ...