Fairburn Banking Co. v. Gafford
| Decision Date | 07 February 1994 |
| Docket Number | No. S93A1269,S93A1269 |
| Citation | 439 S.E.2d 482,263 Ga. 792 |
| Parties | FAIRBURN BANKING CO. v. GAFFORD et al. |
| Court | Georgia Supreme Court |
Kirby G. Bailey, The Bailey Law Offices, P.C., Decatur, for Fairburn Banking Co.
E.A. Crudup, Jr., Crudup & Hendricks, Covington, for Jerry Bruce Gafford.
After this court affirmed without opinion the judgment against appellant (Fairburn Banking Co. v. Gafford, 262 Ga. XXVIII (1992)), appellees filed a motion in the trial court for attorney fees pursuant to OCGA § 9-15-14 on the ground that appellant's original complaint lacked substantial justification. The trial court granted the motion, interpreting the Code section to permit a motion for attorney fees to be made within 45 days of the final disposition of the case on appeal. To decide whether the phrase "final disposition of the action," as used in OCGA § 9-15-14(e), 1 means the final judgment of the trial court or the final decision in the case on appeal, we granted appellant's application for discretionary appeal. 2
Appellant contends that the phrase "final disposition" in the statute should be considered to be synonymous with the phrase "final judgment" as it is used in OCGA § 5-6-34(a)(1), "that is to say, where the case is no longer pending in the court below...." Appellees argue, on the other hand, that the phrase "final disposition" refers to the completion of the underlying litigation through the appellate process. In support of that argument, appellees assert that the filing of a notice of appeal suspends the trial court's power to take further steps to enforce the judgment.
After consideration of both positions, we find the position advanced by appellant to be more appropriate and to be more consistent with other statutory provisions. With regard to the latter, we note that OCGA § 9-15-14 has been held not to authorize the imposition of attorney fees and expenses of litigation for proceedings before an appellate court of this state because there is another statute, OCGA § 5-6-6, which provides for the imposition of damages and penalties for conduct before an appellate court. Dept. of Trans. v. Franco's Pizza, 200 Ga.App. 723(5), 409 S.E.2d 281 (1991). That being so, the possibility that one party may engage in conduct during the appellate process which would entitle the second party to an award of attorney fees is no reason to permit the second party to wait to file a motion for attorney fees in the trial court until after the appeal is over. In light of this court's holding in Betallic, supra, that an award under the Code section is not limited to the prevailing party, there is also no need to wait for an appeal to conclude so that the trial court can be sure which party will prevail. There are issues such as discovery disputes which occur during litigation which might well warrant an award to the non-prevailing party and will be unaffected by the appellate process. Furthermore, appellees' concern about the trial court's loss of jurisdiction after the filing of a notice of appeal is unfounded: while a trial court is without jurisdiction to modify or enforce a judgment during the period of supersedeas, it has jurisdiction to consider other matters in the case and even to conduct a trial, subject to the peril that a decision...
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FULTON COUNTY TAX COM'R v. General Motors
...is correct as to attorney fees regarding the original action up to and including the consent judgment. See Fairburn Banking Co. v. Gafford, 263 Ga. 792, 793, 439 S.E.2d 482 (1994); Gist v. DeKalb Tire Co., 223 Ga.App. 397, 477 S.E.2d 616 (1997). However, such cases do not deal with ancillar......
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SDM Invs. Grp., LLC v. HBN Media, Inc.
...constitutes a form of ‘final judgment’ under the appellate practice act." (punctuation omitted)).29 See Fairburn Banking Co. v. Gafford , 263 Ga. 792, 794, 439 S.E.2d 482 (1994) ("[T]here is a ‘window of opportunity’ for seeking attorney fees under OCGA § 9-15-14 which begins with the entry......
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Trammel v. CLAYTON COUNTY BD.
...entry of final judgment by filing the order granting summary judgment on January 4, 2000, in the trial court. Fairburn Banking Co. v. Gafford, 263 Ga. 792, 439 S.E.2d 482 (1994). Under OCGA §§ 5-6-34(a)(1) and 9-11-56(h), the entry of final judgment granting the total summary judgment const......
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Rollins v. Rollins
...appeal, but also sanctions under OCGA § 5–6–6, Supreme Court Rule 6, or Court of Appeals Rule 15 (b). See Fairburn Banking Co. v. Gafford , 263 Ga. 792, 793, 439 S.E.2d 482 (1994) ; Department of Transp. v. Franco's Pizza & Delicatessen , 200 Ga.App. 723, 728 (5), 409 S.E.2d 281 (1991), ove......