NUGENT et al.
A1 AMERICAN REFRIGERATION, LLC.
BARNES, P. J., MCMILLIAN and REESE, JJ.
Nugent appeals the award of attorney fees against her, and
the denial of her motion for attorney fees, in relation to a
lawsuit filed against her. For the reasons set forth infra,
salient facts are as follows. On September 25, 2015, A1
American Refrigeration, LLC ("A1") filed suit
against Nugent and Wells Fargo Bank, N.A., claiming,
conversion, money had and received, fraud, negligence, breach
of fiduciary duty, negligent misrepresentation, and seeking
attorney fees, costs and litigation expenses, and punitive
damages. Nugent filed an answer, denying A1's claims. In
November 2015, Nugent sent A1 a letter, pursuant to OCGA
§ 51-7-84 (a),  seeking dismissal of the lawsuit against
her. A1 responded to Nugent in December 2015, declining to
dismiss the lawsuit and stating "[u]nless and until
[Nugent] presents evidence which definitively establishes
that A1's claims against her lack merit, there is no
obligation to withdraw or dismiss said claims." In April
2016, A1 filed an amended complaint, adding a claim for
parties engaged in discovery,  and, on September 30, 2016, A1
dismissed its lawsuit without prejudice. On November 14,
2016, Nugent filed a motion for attorney fees and expenses.
A1 opposed the motion and filed a cross-motion for attorney
fees and expenses.
hearing, the trial court denied Nugent's motion and
granted A1's motion for attorney fees and expenses in the
amount of $8, 250 under OCGA § 9-15-14 (a) and
Nugent filed a motion for reconsideration, which the trial
court denied. We granted discretionary review.
Subsection (a) of OCGA § 9-15-14 requires an award of
attorney fees when a party asserts "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 be reasonably believed that a court would accept
the asserted claim, defense, or other position."
Subsection (b), among other things, gives discretion to a
trial court to award attorney fees when a party brings or
defends an action "that lacked substantial
Court will affirm an award under OCGA § 9-15-14 (a) if
there is any evidence to support it, whereas we review an
award under OCGA § 9-15-14 (b) for abuse of
discretion. With these guiding principles in mind, we
turn now to Nugent's specific claims of error.
Nugent argues that the trial court erred by failing to
identify, as the basis for the award, the specific
sanctionable conduct, show the breakdown of the amount of
attorney fees that were attributable to the sanctioned
conduct, and provide the applicable subsection of OCGA §
9-14-15. A1 asserts that Nugent has already paid the $8, 250
attorney fee award and, therefore, this appeal is moot.
well settled that an appeal may be dismissed "[w]here
the questions presented have become moot." "The
voluntary payment of the judgment by an
appellant renders moot the issues sought to be
determined on appeal."
As a general rule, any voluntary act by a party, with
knowledge of the facts, by which he expressly or impliedly
recognizes the validity and correctness of a judgment against
him, will operate as a waiver of his right to bring error to
reverse it, as where he receives affirmative relief under the
judgment or takes a position inconsistent with his right of
present case, the record does not show a payment by Nugent of
attorney fees to A1. However, Nugent stated in her reply
brief that she involuntarily paid A1 the attorney fees and
"was compelled to pay money by the court order and by a
letter written by A1's [c]ounsel, which demanded payment
of the judgment immediately or threatened to impose interest
in accordance with Georgia law." The trial court's
order awarding attorney fees did not indicate when the award
was to be paid, and neither party contests that the $8, 250
award was paid to A1 by Nugent. Based on the above, we find
that Nugent has taken a position inconsistent with her right
to appeal the trial court's $8, 250 award of attorney
fees. Even though her filing of the notice of
appeal served as supersedeas while the appeal was pending,
she paid the judgment.Therefore, Nugent's appeal as to
this enumerated error is moot.
Nugent asserts that the trial court erred in denying her
motion for attorney fees and costs. We disagree.
award under OCGA § 9-15-14 (b) is within the discretion
of the trial court and is not automatic. Further,
"trial judges have broad discretion in controlling
discovery, including imposition of sanctions, and appellate
courts will not reverse a trial court's decision on ...