Brooks v. Hayden, A20A0564

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Dillard, Presiding Judge.
• Citation: 355 Ga.App. 171,843 S.E.2d 594
• Decision Date: 18 May 2020
• Docket Number: A20A0564
• Parties: BROOKS v. HAYDEN.

355 Ga.App. 171
843 S.E.2d 594

BROOKS
v.
HAYDEN.

A20A0564

Court of Appeals of Georgia.

May 18, 2020

843 S.E.2d 595

The Poliard Law Firm, Vickie Samuela Poliard, Morrow, for Appellant.

Douglas Warren Auld, Snellville, for Appellee.

Dillard, Presiding Judge.

843 S.E.2d 596

355 Ga.App. 171

Shantai L. Brooks appeals the trial court's order imposing a 12-month stalking protective order against her (sought by Lania Hayden), and assessing attorney fees. Specifically, Brooks argues that the trial court erred by awarding attorney fees to Hayden without specifying a statutory or factual basis for the award. For the reasons set forth infra , we vacate the attorney-fee award and remand the case with direction.

The record shows that Brooks and Hayden's husband have a child together. On April 19, 2019, Hayden—who is a vascular specialist—filed a petition for relief under the stalking statute against Brooks, alleging that Brooks repeatedly contacted her at her "job and place of business" since 2017. Hayden also alleged, inter alia , that in 2018, Brooks called her work pretending to be a patient with a complaint about her, showed up at her house, was caught on camera sitting outside of her workplace, and followed her to Walmart, where the police were eventually called. Hayden identified numerous other incidents in which Brooks followed or harassed her, including one where—on the day before she filed the stalking petition—Brooks called her at work, asked to speak to a supervisor, eventually showed up at her workplace, and then had to be escorted off the property by security.

On April 26, 2019, the trial court held a hearing on Hayden's petition, and ultimately issued a 12-month stalking protective order, precluding Brooks from contacting Hayden, following her, or placing her under surveillance. At the close of this hearing, Brooks consented to the order. And while neither party requested attorney fees, the trial court, without explanation, awarded Hayden $750 in attorney fees "by order of the court." This appeal follows.

In her sole enumeration of error, Brooks contends that the trial court erred by failing to provide a statutory or factual basis for the attorney-fee award. And because we agree that the trial court erred by not providing any factual basis for the attorney-fee award, this case is vacated and remanded for proceedings consistent with this opinion.

This Court generally applies an abuse-of-discretion standard "in cases involving a claim of error in the decision to award or deny

355 Ga.App. 172

attorney fees."¹ And typically, an award of attorney fees is "not available in Georgia unless authorized by statute or contract."² Indeed, we have held that

[w]hen there is more than one statutory basis for the attorney-fee award and neither the statutory basis for the award nor the findings necessary to support an award is stated in the order and a review of the record does not reveal the basis of the award , the case is remanded for an explanation of the statutory basis for the award and the entry of any findings necessary to support it.³

In this matter, the trial court summarily awarded attorney fees to Hayden sua sponte without providing any statutory basis for the award. The trial court also did not hold an evidentiary hearing at which it could have provided such a basis. Nevertheless, a review of the record reveals that only one attorney-fee statute appears to apply to the facts and circumstances of this case. Specifically, OCGA § 16-5-94 (d) provides, in relevant part, that a "court may grant a protective order or approve a consent agreement to bring about a cessation of conduct constituting stalking," and "[o]rders or agreements may ... [a]ward costs and attorney's fees to

843 S.E.2d 597

either party[.]"⁴ So, under the plain language of OCGA § 16-5-94 (d) (3), "the trial court has the discretion to award costs and attorney fees only whe[n] the petition results in the entry of a court order or a consent agreement designed to end the conduct constituting stalking."⁵

Here, the trial court issued an order designed to end conduct constituting stalking for a period of 12 months, and thus, had the

355 Ga.App. 173

discretion to award attorney fees under OCGA § 16-5-94 (d) (3).⁶ Even so, Brooks suggests that the trial court could have awarded attorney fees under more than one attorney-fee statute, and as a result, it must clarify the statutory basis for the award. But under the facts and circumstances of this case, we disagree.

In her brief, Brooks cites Leggette v. Leggette ,⁷ in which the Supreme Court of Georgia held that "if a trial court fails to make findings of fact sufficient to support an award of attorney fees under either [OCGA] § 19-6-2 or § 9-15-14, the case must be remanded to the trial court for an explanation of the statutory basis for the award and any findings necessary to support it."⁸ But as discussed infra , neither OCGA § 19-6-2 or § 9-15-14 applies in this case. And importantly, the trial court did not make any findings of fact, much less findings sufficient to satisfy either of those statutes. Indeed, Brooks has not identified even one attorney-fee statute with an explanation of how it might apply in this case—including OCGA § 16-5-94 (d) (3). Nevertheless, we will briefly address the inapplicability of the statutes at issue in Leggette to the facts of this case.

While OCGA § 9-15-14 (a) authorizes the award of attorney fees, it provides that

[i]n any civil action in any court of record of this state, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted 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.⁹

355 Ga.App. 174

And here, Brooks did not assert any meritless claims or defenses. To the contrary, she ultimately consented to the protective order at the close of the evidentiary hearing on Hayden's petition. For similar reasons, OCGA § 9-15-14 (b) does not apply because it provides that

[t]he 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

843 S.E.2d 598

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 ....¹⁰

Again, Brooks did not defend against Hayden's petition for a stalking protective order. Instead, she consented to it. And OCGA § 19-6-2 is likewise inapplicable because it authorizes attorney fees only in divorce and alimony cases.¹¹ In short, OCGA § 16-5-94 (d) (3) appears to be the only attorney-fee statute that applies;¹² and as a result, we need not remand this case to clarify the statutory basis for the fee award.¹³

355 Ga.App. 175

Nevertheless, in addition to requiring a statutory basis for an award of attorney fees, we have "repeatedly informed trial courts that they must set forth factual...