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Ettrick v. Suntrust Mortgage, Inc.

Court of Appeals of Georgia, Fourth Division

March 6, 2019

ETTRICK
v.
SUNTRUST MORTGAGE, INC.

          DILLARD, C. J., DOYLE, P. J. and RICKMAN, J.

          RICKMAN, JUDGE.

         Raquel Ettrick appeals from the trial court's order in which it denied her motion to set aside its order granting summary judgment in favor of SunTrust Mortgage, Inc., denied her motion for sanctions against SunTrust, and granted SunTrust's motion for attorney fees pursuant to OCGA § 9-15-14. We find no error and affirm.

         This is the second time this case has been before this Court. In May 2013, after Ettrick defaulted on her mortgage loan issued by SunTrust and SunTrust foreclosed on the property in accordance with the terms of the security deed, Ettrick filed suit against SunTrust and several other defendants, asserting wrongful foreclosure, fraud, breach of contract, trespass/wrongful eviction, and other related claims. The parties attempted to mediate Ettrick's claims, to no avail.

         In February 2016, the trial court granted summary judgment to SunTrust on all counts, noting that Ettrick had abandoned her claim of wrongful foreclosure at the summary judgment hearing. Ettrick appealed the trial court's summary judgment order, and this Court affirmed the order in February 2017 without a written opinion pursuant to Court of Appeals Rule 36.

         In the meantime, SunTrust filed in the trial court a motion for attorney fees against Ettrick pursuant to OCGA § 9-15-14 (a) and (b). After the case was remanded post-appeal, Ettrick filed a motion to set aside the trial court's order granting summary judgment on her claims of trespass/wrongful eviction and moved for sanctions against SunTrust and its counsel for alleged misconduct related to the removal of Ettrick's personal property from the home.

         The trial court considered Ettrick's motions in conjunction with SunTrust's motion for attorney fees during a nearly three-hour long evidentiary hearing, the transcript of which is not included in the appellate record. Following the hearing, the trial court issued a thorough order containing numerous factual findings in which it denied Ettrick's motions and assessed attorney fees against Ettrick and her counsel, jointly and severally, pursuant to OCGA § 9-15-14 (b). This appeal follows.

         1. Ettrick mulishly asserts that the trial court erred in refusing to set aside its order granting summary judgment to SunTrust-an order that this Court previously affirmed-based upon what she characterizes as "newly discovered evidence," despite the fact that her argument remains unchanged. She further contends that the trial court erred in denying her motion for sanctions against SunTrust and its counsel for filing-then quickly withdrawing-a motion for supersedeas bond pending her previous appeal. Suffice it to say that we have carefully reviewed Ettrick's arguments and for a number of reasons, some of which are set out in SunTrust's brief on appeal, we find them to be entirely without merit.

         2. Ettrick argues that the trial court erred in assessing attorney fees against her and her counsel in favor of SunTrust pursuant to OCGA § 9-15-14 (b), and her counsel additionally contends that she (counsel) was not provided notice that she may be personally subject to the sanctions. We disagree.

         (a) The trial court awarded SunTrust attorney fees pursuant to OCGA § 9-15-14 (b). That statute provides, in pertinent part, as follows:

The court may assess reasonable and necessary attorney's fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct . . . As used in this Code section, "lacked substantial justification" means substantially frivolous, substantially groundless, or substantially vexatious.

         It is well established that "[t]he damages authorized by Section 9-15-14 are intended not merely to punish or deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with abusive litigation." (Citation and punctuation omitted.) O'Keefe v. O'Keefe, 285 Ga. 805, 806 (684 S.E.2d 266) (2009). This Court will affirm a trial court's award of attorney fees pursuant to subsection (b) absent an abuse of discretion.[1] See Haggard v. Board of Regents of University System of Georgia, 257 Ga. 524, 526 (4) (c) (360 S.E.2d 566) (1987); Cohen v. Rogers, 341 Ga.App. 146, 157 (1) (798 S.E.2d 701) (2017).

         The trial court limited its assessment of attorney fees to those SunTrust accrued after the failed mediation, beginning in June 2015, through and including the nearly three-hour hearing that resulted in the order that is the subject of this appeal. In support of its award, the trial court stated:

[A]n award of discretionary attorney's fees is warranted under [OCGA ยง 9-15-14 (b)]. In accordance with [subsection (b)], the Court finds that a large portion of [Ettrick's] action lacked substantial justification. The fatal flaws of the lawsuit became apparent after [Ettrick's] deposition on January 15, 2014. Despite deposing that she had not paid the mortgage on the Property for months, had received notices and warnings about foreclosure, had met with attorneys to stop a potential foreclosure but never hired anyone, and had never obtained a loan ...

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