EMANUEL, et al.
MILLER, P. J., DOYLE and REESE, JJ.
Miller, Presiding Judge.
the second appearance of this case before this Court. In
Kautz v. Powell, 297 Ga. 283 (773 S.E.2d 690) (2015)
(Kautz I), the Supreme Court of Georgia reversed
this Court and the trial court by finding that Kelly D. Kautz
had authority to terminate the City Attorney when she was
mayor of the City of Snellville. Id. at 284. On
remand, the trial court awarded Kautz the attorney fees she
incurred in successfully pursuing her appeal in Kautz
I. In this case, Dave Emanuel, in his official capacity
as Council Member, along with the other city council members
(collectively the "City"), appeal from the trial
court's award of fees, alleging that an award of
appellate attorney fees is not permitted. For the reasons
that follow, we conclude that Kautz was entitled to an award
of reasonable fees for the work done on appeal which was
necessitated by her inability to obtain the relief requested
from the trial court. Accordingly, we affirm the trial
court's award of appellate attorney fees to Kautz.
the facts surrounding the various disputes between Kautz and
the City are lengthy and have sparked three separate appeals,
facts relevant to the present appeal are simple. Due to a
conflict of interest between Kautz and the City Attorney that
she was seeking to terminate, Kautz, in her official
capacity, retained independent counsel to litigate the issue
of her authority to terminate the City Attorney. After
prevailing in Kautz I, Kautz moved for attorney fees
in the trial court. It is undisputed that the City and Kautz
reached a resolution concerning payment of fees incurred by
Kautz at the trial level. At issue in this appeal are solely
the attorney fees billed for the successful appellate work in
Kautz I. The trial court held hearings, heard
testimony, and ultimately awarded Kautz $52, 005.00 in
appellate fees and $8, 094.45 in appellate expenses.
City contends that the trial court erred in awarding fees
incurred for appellate work to Kautz. We disagree.
[W]here, as here, an official, acting in [her] official
capacity, is required to hire outside counsel to assert a
legal position the local government attorney cannot (because
of a conflict in representing the local government) or will
not assert, and the official is successful in asserting his
or her position, the local government must pay the
official's attorney fees. This is not because of any bad
faith or improper conduct on the part of the local government
. . . Rather, attorney fees in this instance are simply an
expense of government operation.
Gwinnett County. v. Yates, 265 Ga. 504, 508-509 (2)
(458 S.E.2d 791) (1995). This Court has specifically found
this rule to apply to municipal government officials.
City of Stockbridge v. Stuart, 329 Ga.App. 323, 329
(3) (765 S.E.2d 16) (2014). The City does not dispute that
Kautz was acting in her official capacity in pursuing
Kautz I, that she prevailed in Kautz I, or
that a conflict existed which prevented the City Attorney
from representing Kautz. Thus, the only question is whether
fees are available for work done on appeal.
conclude that Kautz is entitled to fees for her appeal. The
purpose of Yates fees is to reimburse a government
official for "an expense of government operation."
Yates, supra, 25 Ga. at 509 (2). "[T]he
official's entitlement to attorney fees depends on [her]
success in asserting [her] position in court."
Heiskell v. Roberts, 295 Ga. 795, 803 (4) (764
S.E.2d 368) (2014). Although Kautz was unsuccessful before
the trial court, she ultimately prevailed in her appeal. To
award her attorney fees for trial but not for the appeal,
where she was successful in asserting her position, would
both contravene the language of Yates and disregard
the fundamental purpose of Yates fees.
Jennings v. McIntosh County. Bd. of Comm'rs, 276
Ga. 842, 847 (5) (583 S.E.2d 839) (2003), our Supreme Court
cited Yates and concluded that the county official
was entitled to fees because she prevailed on her principal
claim. In a seemingly incongruous footnote in
Jennings, however, the Court made a passing
reference that "Jennings is incorrect in her assertion
in argument that her award of costs should include her
attorney fees in bringing this appeal." See id. fn. 8
(relying on David G. Brown, P.E. v. Kent, 274 Ga.
849 (561 S.E.2d 89) (2002)).
the footnote in Jennings to be limited to the facts
of that case, and we do not interpret it to dictate the
outcome of the case before us. First, the Court in
Jennings relied on Boswell v. Bramlett, 274
Ga. 50 (549 S.E.2d 100) (2001), a case procedurally
indistinguishable from the instant case, in which the county
official lost in the trial court but prevailed on appeal. In
Boswell, our Supreme Court expressly stated that the
government official was entitled to attorney fees. 274 Ga. at
52-53 (3). Additionally, neither Yates nor
Boswell, which are cited in the text of the
Jennings opinion, explicitly confined the award of
fees to those incurred at the trial level. See
Jennings, supra, at 844 (5); Boswell,
supra, 272 Ga. at 53 (3); Yates, supra, 265 Ga. at
509 (2). Moreover, the Jennings footnote cites to a
case that involved an award of fees under OCGA §
13-6-11. See David G. Brown, supra, 274 Ga. at 90.
That statute addresses permissible fees when a defendant has
acted in bad faith, has been stubbornly litigious, or has
caused the plaintiff unnecessary trouble and expense. See
OCGA § 13-6-11. As our case involves fees under
Yates, which serves an entirely different purpose
than the fees in § 13-6-11, we do not construe this
footnote to render appellate fees inapplicable in Kautz's
case. See Yates, 265 Ga. at 508-509 (2) (recognizing
that purpose of awarding fees has nothing to do with bad
faith or improper conduct on the part of the governmental
rule in Yates is clear: attorney fees are proper
when the county official prevails in a suit that is part of
the government expense. That the official prevailed on
appeal, rather than before the trial court, does not negate
that the attorney fees incurred are an expense of government
operations. Following the reasoning of Yates and
Boswell, we thus conclude that Kautz is entitled to
an award of reasonable attorney fees for the work done on
next turn to whether the amount of fees is reasonable. The
appellants argue that the amount of fees is not reasonable,
and the trial court abused its discretion in awarding that
amount. We find no error.
review the trial court's assessment of reasonable fees
for abuse of discretion. See City of Stockbridge v.
Stuart, 329 Ga.App. 323, 329 (3) (765 S.E.2d 16) (2014).
the trial court considered expert testimony about the
reasonable and customary hourly rate, and concluded that $150
per hour was a reasonable amount. Counsel submitted copies of
their invoices, and the parties stipulated that the invoices
were correct. To show the amount awarded was unreasonable,
appellants argue only that there were three law firms
involved in solely a minimal amount of work, but they cite no
case law in support of their position. Based on the invoices
submitted by Kautz's attorneys, the trial court concluded
that the work provided was "reasonable, necessary and
valuable, " but significantly reduced the award of fees
from the nearly $100, 000 requested to $52, 005. The