Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nugent v. A1 American Refrigeration, LLC

Court of Appeals of Georgia, First Division

June 6, 2018

NUGENT et al.
v.
A1 AMERICAN REFRIGERATION, LLC.

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          Reese, Judge.

         Dorothy 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, we affirm.

         The salient facts are as follows. On September 25, 2015, A1 American Refrigeration, LLC ("A1") filed suit against Nugent and Wells Fargo Bank, N.A., [1]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), [2] 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 prejudgment interest.

         The parties engaged in discovery, [3] 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.

         After a 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 (b).[4] 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 justification."[5]

         This 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.[6] With these guiding principles in mind, we turn now to Nugent's specific claims of error.

         1. 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.

         It is well settled that an appeal may be dismissed "[w]here the questions presented have become moot."[7] "The voluntary payment of the judgment by an appellant renders moot the issues sought to be determined on appeal."[8]

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 review.[9]

         In the 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.[10] Even though her filing of the notice of appeal served as supersedeas while the appeal was pending, she paid the judgment.[11]Therefore, Nugent's appeal as to this enumerated error is moot.[12]

         2. Nugent asserts that the trial court erred in denying her motion for attorney fees and costs. We disagree.

         An award under OCGA § 9-15-14 (b) is within the discretion of the trial court and is not automatic.[13] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.