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McNair v. McNair

Court of Appeals of Georgia, Second Division

September 29, 2017

ROBERT H. MCNAIR, AS CO-EXECUTOR OF THE ESTATE OF W. O. MCNAIR
v.
RICHARD "RICHIE" HAROLD MCNAIR et al.

          DILLARD, C. J., REESE and BETHEL, JJ.

          REESE, JUDGE.

         In the third appearance of this case before this Court, Robert H. McNair ("the Appellant") appeals the award of attorney fees against him individually, [1] in relation to the jury trial on his petition contesting the will of Hazel McNair ("H. McNair").[2]For the reasons set forth infra, we reverse.

         The 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.

         H. 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.

         W. O. McNair passed away on July 27, 2013. His will appointed three co-executors: W. O. McNair, Jr., Thompson, and the Appellant.[3] Prior to the trial in superior court regarding H. McNair's will, the Appellees filed a motion to substitute parties. After a hearing, [4] 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.[5]

         After the jury trial, the Appellees filed a motion for attorney fees against the Appellant, [6] pursuant to OCGA § 9-15-14 (b).[7] 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.

         1. As 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 (b)."[8]

[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.[9]

         As 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."

         We find that the language used by the trial court is similar to the wording of OCGA § 9-15-14 (b).[10] 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).[11] 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 (b).[12]

         Therefore, we will review the Appellant's claims using the abuse of discretion standard.[13] With this guiding principle in mind, we now turn to the Appellant's specific claims of error.

         2. The 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.

         The 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 substantial justification."[14]

         (a) In 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.

         The 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 ...


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