Cohen v. Rogers

• Decision Date: 16 March 2017
• Docket Number: A16A1858
• Citation: 341 Ga.App. 146,798 S.E.2d 701
• Parties: COHEN v. ROGERS.
• Court: Georgia Court of Appeals

341 Ga.App. 146

798 S.E.2d 701

COHEN

v.ROGERS.

A16A1858

Court of Appeals of Georgia.

March 16, 2017

Thomas E. Cauthorn III, Tiana Scogin Mykkeltvedt, Michael Brian Terry, Atlanta, for Appellant.

David Patrick Conley, Jeffrey Alan Daxe, Robert D. Ingram, Marietta, for Appellee.

Mercier, Judge.

Joseph Rogers, Jr. sued his former employee, Mye Brindle in the Superior Court of Cobb County, seeking injunctive relief regarding video and other photographic depictions Brindle allegedly obtained of him without his consent, and asserting claims for invasion of privacy, intentional infliction of emotional distress, and unjust enrichment. In a separate suit, Brindle sued Rogers in the State Court of Fulton County, asserting claims of battery, intentional infliction of emotional distress, and Georgia RICO violations. After Brindle voluntarily dismissed the Fulton County case, the Fulton County court granted Rogers's motion for attorney fees and litigation expenses pursuant to OCGA § 9-15-14 (b), ordering Brindle and her attorney, David Cohen, to pay $142,656.82 in attorney fees and litigation expenses. Brindle and Cohen filed separate appeals from that ruling. In those appeals, which we consolidated, this Court vacated the fee award and remanded the case for the trial court to determine what award, if any, should be assessed for conduct undertaken in that court. Cohen v. Rogers , Case No. A14A0201 (decided July 16, 2014) (unpublished) ("Cohen I "). On remand, after conducting additional evidentiary hearings, the trial court found that Rogers was entitled to recover attorney fees and litigation expenses as a result of Cohen's conduct in that court, and entered an award of $198,383.52 against Cohen; the court found the evidence insufficient to warrant an award against Brindle.

In this appeal, Cohen asserts two enumerations of error, namely, that the trial court erred by: (1) "declining to reconsider whether sanctionable conduct occurred," and (2) entering the order granting the fees and expenses, because the conduct before that court was not sanctionable, the court failed to specify which fees were attributable to which conduct and made an improper lump sum award, and Rogers failed to submit adequate proof to support the award. For the reasons that follow, we affirm.

OCGA § 9-15-14 (b) pertinently provides:

The court may assess reasonable and necessary attorney's fees and expenses of litigation in any civil action ... 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.

1. Cohen contends that the trial court erred after remand by "declining to reconsider whether sanctionable conduct occurred." This contention is without merit.

In Cohen I , this Court vacated the award of fees and expenses under OCGA § 9-15-14 (b), determined that the trial court erred in awarding fees related to appellate and pre-litigation conduct, and remanded the case with direction to the Fulton County court. Opinion, p. 4. We directed the trial court "to make express findings of facts and conclusions of law as to the basis for an award of reasonable and necessary attorney fees and expenses of litigation for conduct undertaken before that court, pursuant to OCGA § 9-15-14, specifying the amount of such award, if any." Opinion, pp. 4–5.

After remand, Rogers filed a renewed motion for attorney fees. The fee request included the amount of fees previously awarded, subtracted fees for work done before the Fulton County suit was filed, subtracted fees for work related to specified appellate proceedings, and added fees for post-remittitur work on Rogers's renewed attorney fee motion. Cohen argues on appeal that the trial court erred by declining to revisit the issue of liability for a fee award, contending that this Court directed the trial court to first consider whether any sanctionable conduct occurred before that court and, if so, only then should it consider the amount of the award.

We agree with Cohen that the trial court was required to determine upon remand whether conduct before that court authorized an award of fees. In Cohen I , this Court did not affirm the determination of liability in the trial court's first fee award; rather, it vacated that award in its entirety and remanded for the trial court "to determine what award, if any, should be assessed under OCGA § 9-15-14 (b) for conduct undertaken in that court." Id. at p. 2 (emphasis supplied). We did not address the issue of whether conduct before the trial court was sanctionable because we vacated the entire award and remanded the case for the trial court to make those findings anew.

Regardless of the trial court's stated interpretation at the evidentiary hearing of this Court's opinion in Cohen I , its written order indicates that it did in fact reconsider the issue of liability. In contrast to the vacated order, the trial court on remand found that Brindle had done nothing to justify the entry of a fee award against her personally, and then found Cohen liable for certain fees and expenses. Thus, this contention presents no basis for reversal.

2. Cohen contends that the trial court erred by granting Rogers's renewed motion for attorney fees and litigation expenses because the trial court awarded fees for "proper litigation conduct," "fail[ed] to specify the sanctionable conduct and fees attributable to each sanctionable act, ma[de] an improper ‘lump sum’ award, and rel[ied] on inadequate evidence." We disagree.

We utilize an abuse of discretion standard of review when examining an award of attorney fees made pursuant to OCGA § 9-15-14 (b). See Mitcham v. Blalock , 268 Ga. 644, 647 (5), 491 S.E.2d 782 (1997) (overruled on other grounds); Haggard v. Bd. of Regents of Univ. System of Georgia , 257 Ga. 524, 526 (4) (c), 360 S.E.2d 566 (1987). Under an abuse of discretion standard of review, we are to "review the trial court's legal holdings de novo, and we uphold the trial court's factual findings as long as they are not clearly erroneous, which means there is some evidence in the record to support them." Lawrence v. Lawrence , 286 Ga. 309, 310 (1), 687 S.E.2d 421 (2009).

(a) Did the trial court abuse its discretion in finding sanctionable conduct?

The trial court's order spans 22 pages and includes more than 40 findings of facts. Rogers sought attorney fees and expenses for the costs incurred in defending Cohen's continuation of a duplicative lawsuit in Fulton County, when a suit was already pending in Cobb County. The trial court was tasked with determining whether, among other things, the filing of the Fulton County suit was undertaken for the purpose of circumventing the order of a court in another jurisdiction, thereby causing greater inconvenience, harassment, and embarrassment to Rogers and unnecessarily expanding the proceedings.

Notwithstanding the exceptionally detailed order of the trial court setting out its findings of fact and conclusions of law regarding the conduct that gave rise to the award of fees and expenses, Cohen reduces the forty-plus findings of fact down to three distinct instances of conduct it alleges formed the basis for the trial court's award of fees and expenses. Specifically, he asserts that the filing of the complaint, opposing the sealing of the record, and delaying the voluntary dismissal of the Fulton County complaint did not constitute sanctionable conduct. Cohen refers to a few of the facts surrounding each of those instances and points out why, in his opinion, the facts do not support the award. But this approach ignores the extensive factual findings of the trial court and the applicable standard of review.

A thorough examination of all of the trial court's findings of facts, rather than an isolated review of only a few of those facts, reveals a different situation from the one Cohen describes. A comprehensive review of the findings includes the following. In July 2012, Rogers received a letter from Cohen that, among other things, advised that the matter was "best resolved early [and] outside of public litigation," and suggested that protracted litigation could result in, among other things, media attention, criminal charges, lengthy incarceration, divorce, and the destruction of families; On September 14, 2012, Rogers filed an action in Cobb County along with a motion to seal the record, and the complaint and motion to seal were served on Cohen, who was counsel for Brindle, on September 17, 2012. On the same day that Cohen received Rogers's complaint and motion to seal, Cohen represented Brindle in a hearing on the motion to seal in Cobb County.

On September 19, 2012, Cohen filed an action in Fulton County on Brindle's behalf. In the verified complaint, Brindle asserted that she had in her possession the very information that Rogers sought to have filed under seal in Cobb County. After the conclusion of a hearing in the Cobb County action, the parties informed the trial judge that they believed they could reach a consent agreement on sealing the record. However, in the early morning hours of September 28, 2012, before the terms of the consent order were finalized, Cohen and Brindle went to the City of Atlanta Police Department, where Brindle reported that Rogers had committed certain sexual offenses against her. The Atlanta Police Department generated an incident report based on Brindle's statements. Cohen did not notify counsel for Rogers that a police report had been generated and, later that day (September 28), the parties finalized a consent agreement sealing the record in Cobb County. The consent order was entered the same day.

In early October 2012, the parties tried to reach a consent agreement to seal the record in the Fulton County action. However, when those...