Hallman v. Emory University

• Decision Date: 06 March 1997
• Docket Number: No. A97A0256,A97A0256
• Citation: 225 Ga.App. 247,483 S.E.2d 362
• Parties: , 97 FCDR 1264 HALLMAN v. EMORY UNIVERSITY et al.
• Court: Georgia Court of Appeals

Page 362

483 S.E.2d 362

225 Ga.App. 247, 97 FCDR 1264

HALLMAN v. EMORY UNIVERSITY et al.

No. A97A0256.

Court of Appeals of Georgia.

March 6, 1997.

David J. Farnham, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, J. M. Hudgins, IV, Paul L. Weisbecker, Atlanta, for appellees.

ELDRIDGE, Judge.

Appellant, Dr. Linda Hallman, filed suit in June 1994 against appellees, Emory University, the Emory Clinic, and various University administrators, in an employment dispute. After a lengthy two-day preliminary injunction hearing, an interlocutory injunction against the appellees was granted to appellant on August 5, 1994. After the grant of the interlocutory injunction to appellant, the appellees were very anxious to take appellant's deposition; appellant repeatedly postponed scheduled depositions, cancelled at the last minute, or failed to appear altogether. In August 1995, appellees filed a motion to dismiss or, alternatively, to compel and impose sanctions. The trial court granted the motion to dismiss with prejudice and awarded $1,250 in attorney fees on August 23, 1995. Upon motion for reconsideration, the trial court modified its order of dismissal to make it a dismissal without prejudice on September 25, 1995. On October 9, 1995, appellees made a motion for an award of attorney fees under OCGA §§ 9-15-14(a), (b), and 51-7-81 for abusive litigation, supported only by the affidavit of one of the three counsel involved and without even the hourly billing statements. The trial court on March 9, 1996, entered an award of attorney fees under all statutes without conducting an evidentiary hearing either as to the merits of the motion or as to the hours, reasonableness, amount, necessity or allocation of attorney fees, and specifically found that Counts 2 and 3 of the complaint were filed with malice, authorizing the award of attorney fees under OCGA § 51-7-81, which were awarded based only upon the defense counsel's affidavit and without hearing evidence or allowing cross-examination by appellant's counsel of appellees' counsel regarding the reasonableness and necessity of the $44,240.13 awarded. The trial court ignored some 221 pages of transcript of the interlocutory injunction hearing, as well as the interlocutory injunction order, as such related to Counts 2 and 3 in finding that there was no justiciable issue under either OCGA §§ 9-15-14(a) or 51-7-80 et seq. Appellant challenges on direct appeal the award of attorney fees. However, appellees have moved to dismiss the appeal on jurisdictional grounds. We disagree.

This Court, in Rolleston v. Huie, 198 Ga.App. 49, 51-52, 400 S.E.2d 349 (1990), held that there is no direct appeal from an award of attorney fees under OCGA § 9-15-14 unless it appears that such award was appealed as part of a judgment that is directly appealable. See also Stancil v. Gwinnett County, 259 Ga. 507, 508, 384 S.E.2d 666 (1989); Haggard v. Bd. of Regents, etc., of Ga., 257 Ga. 524, 526(4) (a), 360 S.E.2d 566 (1987).

In Ga. L.1989, p. 408, § 2, the General Assembly created a new cause of action for abusive litigation and codified it as OCGA § 51-7-80 et seq., which became effective on July 1, 1989, and which provided for procedures that were part of the elements of the action. OCGA § 51-7-80 et seq., as a new statutory cause of action, replaced several existing common law actions: malicious use of process; malicious abuse of process; and a claim under Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986). Since OCGA § 51-7-80 et seq. is in derogation of common law, then it must be strictly construed. Kirsch v. Meredith, 211 Ga.App. 823, 825, 440 S.E.2d 702 (1994). Unlike OCGA § 9-15-14, which is a court-imposed sanction for misconduct in litigation, OCGA § 51-7-80 et seq. is an independent cause of action based upon the successful termination of the action upon which it is based and is not procedurally ancillary and post-judgment, as is OCGA § 9-15-14, except when only attorney fees are sought under OCGA § 51-7-83(b). Hutchison v. Divorce & Custody Law Center, etc., 207 Ga.App. 421, 423, 427 S.E.2d 784 (1993). An action for abusive litigation must be brought as a separate and distinct action where damages are sought; however, when only attorney fees in the original abusive litigation are sought, OCGA § 51-7-83(b) provides that "the procedures provided in Code Section 9-15-14 shall be utilized." However, such language does not change an action under OCGA § 51-7-80 et seq. to damages imposed as a sanction under OCGA § 9-15-14, but merely directs which procedures shall be followed under such circumstances. OCGA § 51-7-83(b) provides a cause of action and directs the procedure by which damages are to be sought in order to simplify the action. See generally Stocks v. Glover, 220 Ga.App. 557, 559(2), 469 S.E.2d 677 (1996); McKin v. Gilbert, 208 Ga.App. 788, 791(2), 432 S.E.2d 233 (1993); Talbert v. Allstate Ins. Co., 200 Ga.App. 312, 408 S.E.2d 125 (1991).

Williams v. Clark-Atlanta Univ., 200 Ga.App. 51, 52, 406 S.E.2d 559 (1991), is distinguishable on the law and facts in that the action arose prior to July 1, 1989, the effective date of OCGA § 51-7-80 et seq., so that this statute could not be applied retroactively, and the action was dismissed on the merits and attorney fees were imposed as a judicial sanction under OCGA § 9-15-14. In the case sub judice, the underlying action was dismissed without prejudice, came within OCGA §§ 51-7-80 et seq. and 9-15-14, and attorney fees were imposed both as a judicial sanction and as damages under the abusive litigation action as a final judgment. Under OCGA § 51-7-84(b), a "final termination of the proceeding" means that the case has been finally concluded and has nothing ancillary pending, except when the party may follow the procedures of OCGA § 9-15-14 in bringing a claim for attorney fees from the abusive litigation case within 45 days as an ancillary matter under OCGA § 51-7-83(b). Since OCGA § 51-7-83(b) could not be applied retroactively in Williams v. Clark-Atlanta Univ., supra, then anything stated by this Court regarding the discretionary appeal procedure for attorney fees awarded under such Code section was obiter dicta, because such language was not necessary to the decision of the case.

While the same procedures must be followed under OCGA § 51-7-83(b) as employed under OCGA § 9-15-14, OCGA § 51-7-80 et seq. does not come within the express language of OCGA § 5-6-35(a), which lists cases requiring application for appeal; subsection (a)(10) requires an application for appeals of an award of attorney fees only under OCGA § 9-15-14 and does not require OCGA § 51-7-83(b) to come under such discretionary appeal procedure, even though it involves the same trial procedure. The General Assembly, by enacting Ga. L.1988, p. 1357, § 1, created OCGA § 5-6-35(a)(1) through (10), but the General Assembly neither amended the statute in 1989 when OCGA § 51-7-83(b) was passed, nor did it choose to include OCGA § 51-7-80 et seq. in Ga. L.1991, p. 412, § 1, or Ga. L.1994, p. 347, § 2, when OCGA § 5-6-35 was further amended. Such omission of OCGA § 51-7-80 et seq. from discretionary appeals clearly expresses the legislative intent that this substantive new cause of action should have a right of direct appeal whenever a final judgment has been entered. An award under OCGA § 51-7-83(b) of attorney fees is an award of damages without a jury trial on the merits and constitutes a final judgment that is directly appealable.

To award attorney fees under OCGA § 9-15-14(a) requires the same findings as under OCGA § 51-7-80 et seq. so that there exists an appeal which otherwise would be discretionary under OCGA § 9-15-14, but "may be reviewed on direct appeal, when it is appealed as part of a judgment directly appealable." Haggard v. Bd. of Regents, etc., of Ga., supra at 526 (4) (a), 360 S.E.2d 566; Rolleston v. Huie, supra at 52, 400 S.E.2d 349. Therefore, the award of attorney fees under both OCGA § 9-15-14(a) and (b) is reviewable on direct appeal along with the judgment under OCGA § 51-7-83, and this Court has jurisdiction.

The motion to dismiss is hereby denied.

1. Since appellant's right to a direct appeal rests upon an appeal from a judgment under OCGA § 51-7-80 et seq., then the applicable enumeration of error will be dealt with first. The trial court is alleged to have erred in the granting of attorney fees under OCGA § 51-7-80 et seq., and we agree.

The threshold issue is whether or not an action under OCGA § 51-7-80 et seq. was ripe at the time the trial court entered a judgment based upon such statute. Had the trial court not voided the order dismissing the action with prejudice, such order would have acted as an adjudication on the merits, a "final termination" of the case. However, the trial court vacated such order and substituted for it a dismissal without prejudice, which was not a "final termination" of the case. OCGA § 9-11-41(b). Since OCGA § 51-7-80 et seq. is a statutory cause of action in derogation of common law, then it must be strictly construed against the party seeking to assert the statute. See Heard v. Neighbor Newspapers, 259 Ga. 458, 459(5), 383 S.E.2d 553 (1989). "The abusive litigation tort set forth in OCGA § 51-7-80 et seq. is in derogation of common law, and must be strictly limited to the meaning of the language used, and not extended beyond the plain and explicit statutory terms. Paino v. Connell, 207 Ga.App. 553, 428 S.E.2d 446 (1993)." Kirsch v. Meredith, supra at 825, 440 S.E.2d 702; see also Talbert v. Allstate Ins. Co., supra at 314, 408 S.E.2d 125.

As an essential condition precedent to having a cause of action under OCGA § 51-7-80 et seq., there must be a "final termination of the proceeding," and not a dismissal of the action without prejudice, which action can be refiled timely, because then an abusive litigation action would be premature. Stocks v. Glover, supra at 559, 469 S.E.2d 677; see also ...