Jones v. Unified Gov't of Athens-Clarke Cnty., A11A1324.

• Decision Date: 27 February 2012
• Docket Number: No. A11A1324.,A11A1324.
• Citation: 718 S.E.2d 74,312 Ga.App. 214,11 FCDR 3353,11 FCDR 3468
• Parties: JONES et al. v. UNIFIED GOVERNMENT OF ATHENS–CLARKE COUNTY.
• Court: Georgia Court of Appeals

11 FCDR 3353

11 FCDR 3468

312 Ga.App. 214

718 S.E.2d 74

JONES et al.

v.UNIFIED GOVERNMENT OF ATHENS–CLARKE COUNTY.

No. A11A1324.

Court of Appeals of Georgia.

Oct. 21, 2011.Certiorari Denied Feb. 27, 2012.

Charles Anthony Jones, Jr., for appellants.

William C. Berryman, Jr., Amy S. Gellins, for appellee.

DOYLE, Judge.

Robert Manlove and William Hoffman filed suit against the Unified Government of Athens–Clarke County, Georgia (“the County”), and the trial court dismissed the case.¹ The plaintiffs and their attorney, Charles A. Jones, Jr., appeal the trial court's failure to recuse and the imposition of attorney fees and costs against them pursuant to OCGA § 9–15–14(b). We affirm, for the reasons that follow.

The record shows that the plaintiffs filed an action for declaratory judgment on January 24, 2008, challenging the constitutionality of a county noise ordinance. On February 19, 2008, the plaintiffs filed a motion to recuse the trial court, and the assigned judge transferred the matter to another judge, who denied the motion on March 21, 2008.

On March 19, 2008, the County filed a motion to dismiss on the basis that the plaintiffs lacked standing. On March 27, 2008, the County filed a motion for protective order and to stay discovery pending resolution of its motion to dismiss. In addition, the County argued that some of the discovery requests were objectionable and oppressive, including the plaintiffs' deposition subpoena to County Commissioner David Lynn.² The trial court granted the motion for protective order on April 1, 2008, and awarded attorney fees and costs to the County, with the amount to be determined following the ruling on the motion to dismiss.

On July 11, 2008, the trial court granted the County's motion to dismiss the lawsuit, holding that the plaintiffs lacked standing. In the order, the trial court noted that “[d]ismissal of the claims also renders further orders on Defendant's Motion for a Protective Order and to Stay Discovery unnecessary.” ³ The plaintiffs filed a notice of appeal to the Supreme Court on July 14, 2008. Thereafter, on July 25, 2008, the plaintiffs filed a motion to strike the protective order, and on July 31, 2008, the County filed a motion for attorney fees and costs pursuant to the July 11 protective order.

On June 15, 2009, the Supreme Court affirmed the trial court's dismissal of the case, holding that the plaintiffs lacked standing to pursue their claims. ⁴ The County subsequently filed a motion for attorney fees and costs pursuant to OCGA § 9–15–14(b) on August 25, 2008. Following a hearing, the trial court granted the motion on August 26, 2010, and ordered Jones to pay the County $9,145 in fees and costs.⁵

1. The plaintiffs and Jones argue that the trial court erred by failing to recuse from this case. There is no merit to this enumeration.

On February 19, 2008, the plaintiffs filed a motion to recuse the trial court pursuant to Canon 3(E)(1)(c) of the Code of Judicial Conduct on the basis that the assigned trial judge was married to the County municipal judge “who adjudicates ... alleged violations of the (noise) ordinance under challenge here.” ⁶ On February 27, 2008, the assigned judge transferred the matter to another judge, who denied the motion on March 21, 2008, concluding that the motion was untimely, and that Canon 3(E)(1)(c) did not apply because the municipal judge was not a party.

Pretermitting whether the February 2008 motion to recuse was timely or had merit, the plaintiffs waived appellate review of the order denying their motion to recuse by failing to enumerate it as error in their appeal to the Supreme Court regarding the dismissal of this case.⁷ “A judgment is conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” ⁸ The plaintiffs could have raised the denial of their motion to recuse in their appeal to the Supreme Court,⁹ but elected not to do so, and their failure to do so precludes them from challenging the recusal order now.¹⁰

Propst v. Morgan,¹¹ relied upon by the plaintiffs, does not require a different result. In that case, Morgan filed a motion to recuse, which the trial court denied, and Morgan did not seek an interlocutory appeal. ¹² Morgan then appealed the trial court's subsequent dismissal of the final judgment in his case under OCGA § 5–6–48(c). On appeal, this Court held that the motion to recuse was timely filed and sufficient to require transfer to another judge for a decision, and we vacated the trial court's judgment and remanded the case for further proceedings.¹³ The Supreme Court affirmed, noting the line of cases holding that “if a party files a motion to recuse a trial judge and the motion is denied, but it is later determined that the judge should have been disqualified to act in the case, all proceedings after the filing of the motion to recuse are invalid and of no effect.” ¹⁴ The Court concluded that because

[a] trial judge's dismissal of an appeal under OCGA § 5–6–48(c) requires a significant exercise of discretion based on findings of fact[,] ... in those rare cases in which an appeal is dismissed under OCGA § 5–6–48(c) by a trial judge who previously denied a recusal motion, an appellate court should consider the merits of the recusal motion before considering the merits of the trial judge's dismissal ruling.¹⁵

The instant case is factually distinguishable. In Propst, Morgan appealed the recusal motion at the same time he appealed the dismissal. In the instant case, the plaintiffs appealed the dismissal order and elected not to challenge the recusal order in that appeal. Thus, they have waived their right to challenge the recusal order in this subsequent appeal.¹⁶

2. In several enumerations of error, Jones challenges the attorney fee award to the County entered pursuant to OCGA § 9–15–14(b), which authorizes a trial court to

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, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

“OCGA § 9–15–14(b) is discretionary[,] and the standard of review is abuse of discretion.” ¹⁷

(a) Jones argues that the trial court abused its discretion by verbally announcing its decision to impose fees against Jones before allowing him to cross-examine the witnesses against him. But because Jones elected not to include a transcript of the attorney fee motion hearing, this claim of error fails.¹⁸

The portion of the transcript designated by the County, which begins with the trial court's ruling, reflects that the trial court orally announced its factual findings and decision to award fees to the County pursuant to OCGA § 9–15–14(b), and then the Court asked the parties whether “the [trial court had] overlooked anything in announcing its decision.” Jones responded that, “For us [,] we will just object to not being permitted to cross-examine the affiants, the attorneys in this case.” The trial court then stated, “Okay. Well, have at it. The [c]ourt has not written a ruling now, so have it [sic] please. I didn't hear any further suggestion of—but if you want to take it on—take them, I'll be glad to hear for it and reconsider any ruling that the [c]ourt has announced that is called—based on any evidence you bring forward.” Jones proceeded to cross-examine Amy Gellins, one of the attorneys for the County; the record does not include a recordation of the cross-examination.¹⁹ In its subsequent order granting the County's request for attorney fees and costs, the trial court stated that following Jones's objection at the hearing, “Jones cross-examined Ms. Gellins, but elected not to cross-examine Mr. Berryman. Mr. Jones brought forward no evidence through cross-examination which would alter the [c]ourt's findings and rulings.”

Clearly, Jones had the right to cross-examine the County's witnesses, ²⁰ and the trial court erred to the extent that it failed to permit him to do so before announcing its verbal ruling.²¹ Nevertheless, Jones has not demonstrated that he was harmed by this action. The record indicates that once Jones objected, the trial court allowed him to cross-examine the witness(es), and it considered the evidence adduced therein and concluded that it did not alter the court's findings. Jones's omission from the appellate record of the transcript of the specifics of his cross-examination of Gellins necessarily precludes a finding of harm. “Because harm as well as error must be shown to warrant reversal, this enumeration is without merit.” ²²

(b) Jones contends that “[t]he trial court abused its discretion by issuing sanctions under OCGA § 9–15–14 because this case is not frivolous litigation.” This enumeration is without merit.

Jones's failure to include the transcript of the motion hearing on appeal is fatal to this claim.

It is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. Thus, to the extent that evidence was presented at the attorney fees hearing beyond what can be gleaned from the [remaining evidence in the record], it is not available for us to consider. Where the transcript is necessary[,] and appella...