Mitcham v. Blalock

• Decision Date: 30 June 1994
• Docket Number: No. A94A0631,A94A0631
• Citation: 447 S.E.2d 83,214 Ga.App. 29
• Parties: MITCHAM v. BLALOCK et al.
• Court: Georgia Court of Appeals

Page 83

447 S.E.2d 83

214 Ga.App. 29

MITCHAM v. BLALOCK et al.

No. A94A0631.

Court of Appeals of Georgia.

June 30, 1994.

Reconsideration Denied July 15, 1994.

Certiorari Denied Oct. 28, 1994.

Land, McKnight & Cohen, Robert H. McKnight, Jr., Atlanta, for appellant.

Bruce C. Bailey, Chattanooga, TN, Michael K. Wolensky, Kutak & Rock, Angela M. Gottsche, Atlanta, Tinkler & Groff, William P. Tinkler, Jr., Decatur, for appellees.

McMURRAY, Presiding Judge.

Michael Mitcham (plaintiff) maintained accounts at Atlanta Securities & Investments, Inc. ("ASI") at a time when William J. Blalock, Charles Lee Bradley, Rollo Fredrick Ingram and John Ringo (defendants) were corporate officers and directors of ASI. However, the value of plaintiff's accounts dwindled under the supervision and control of ASI Investment Broker Fred H. Jones, Jr., and plaintiff filed for arbitration (in accordance with standards set by the National Association of Securities Dealers, Inc.) and alleged that his losses were caused by unlawful, fraudulent and deceitful acts of Jones and careless supervision, control and management of ASI by defendants. The arbitration petition was dismissed as to defendants because of lack of notice and proceeded against Jones and ASI, resulting in a $60,000 award for plaintiff on June 25, 1991. Plaintiff subsequently filed a multi-count action against defendants in the Superior Court of DeKalb County, Georgia, alleging in Count 7 of an amended complaint that defendants are responsible for his losses because they failed to properly control and supervise Jones as required by the Georgia Securities Act of 1973, OCGA § 10-5-14(c). Plaintiff further alleges that defendants are jointly and severally liable for plaintiff's losses under the doctrine of respondeat superior (Counts 8 and 9) and that defendants breached fiduciary duties as corporate officers and directors of ASI (Count 10).

On September 29, 1992, the trial court granted defendant Ingram's motion to compel discovery and directed plaintiff's attorney to "pay $300 to counsel for Defendant Ingram ... within thirty (30) days of the date of this Order, said sum representing the time spent by Defendant Ingram's counsel in Court on Monday, September 28, 1992." The trial court reserved "ruling on the amount of attorneys' fees and expenses to be awarded which were associated with obtaining this Order as requested by counsel for Ingram pursuant to [OCGA] § 9-11-37, pending submission of an affidavit by Defendant Ingram's counsel." The trial court then directed "counsel for Ingram [to] submit said affidavit to the Court by Monday, October 5, 1992, with a copy (via telecopy) to counsel for Plaintiff."

On January 20, 1993, the trial court granted summary judgment in favor of defendant Ingram as to plaintiff's claim under the Georgia Securities Act of 1973 (Count 7) and, on March 1, 1993, the trial court ordered plaintiff to pay "$1286.25 to counsel for Defendant Ingram ... within ten (10) days of the date of this Order, said sum representing the award of the attorneys' fees expenses incurred in obtaining the Order of this Court compelling Plaintiff to submit full and separate answers to Defendant Ingram's First Interrogatories...."

On March 29, 1993, defendant Ingram filed a motion to dismiss plaintiff's complaint or, in the alternative, to hold plaintiff in contempt for failing to pay $1,286.25 in attorney fees within 10 days of the trial court's order of March 1, 1993. The trial court granted this motion, finding "that Plaintiff willfully failed to obey the Order of this Court ... filed March 1, 1993, and after hearing argument of counsel and affording Plaintiff an opportunity to present evidence of poverty and no such evidence being presented, the Court hereby orders and decrees that the complaint against [defendant] Ingram be dismissed with prejudice."

On May 4, 1993, the trial court granted partial summary judgment in favor of defendants Blalock, Bradley and Ringo as to plaintiff's claim under the Georgia Securities Act of 1973 (Count 7). On September 15, 1993, the trial court granted summary judgment in favor of defendants Blalock, Bradley and Ringo as to Counts 8, 9 and 10 of the complaint. This appeal followed. Held:

1. Plaintiff contends the trial court erred in granting summary judgment in favor of defendants as to his claim under the Georgia Securities Act of 1973 (Count 7).

"With respect to the purchase, sale, or offer to purchase or sell a security, no person may sue under [OCGA § 10-5-14] more than two years from the date of the contract for sale or sale, if there is no contract for sale." OCGA § 10-5-14(d). It is undisputed that plaintiff filed the case sub judice on September 16, 1991, and that the last trade Jones executed on plaintiff's behalf was in "mid May of 1989." Further, plaintiff admits (in a brief filed in opposition to summary judgment) that he was aware of the alleged deceitful and fraudulent acts which form the basis of Count 7 of his complaint in "early 1989." It thus appears that plaintiff's claim against defendants under OCGA § 10-5- 14(c), is barred by the applicable two-year statute of limitation. Nonetheless, plaintiff contends that an arbitration claim he allegedly asserted against ASI, Jones and defendants in June 1990 tolled the statute of limitation until the arbitration concluded on June 25, 1991. This contention is without merit.

In Butler v. Glen Oak's Turf, 196 Ga.App. 98, 395 S.E.2d 277 (1990), this court held that the two-year statute of limitation in an employee's tort claim against her employer was tolled during the employee's pursuit of an unsuccessful workers' compensation claim. Id. at 101, 395 S.E.2d 277, supra. In Butler, this court adopted reasoning that the purpose of the statute of limitation was accomplished because the employer was placed on notice of the employee's alleged injuries within the applicable limitation period by virtue of the pending workers' compensation claim. Butler v. Glen Oak's Turf, 196 Ga.App. 98, 99, 395 S.E.2d 277, supra. The same reasoning does not apply in the case sub judice as plaintiff admits (in his complaint) that defendants were dismissed as parties to the arbitration because they were never served with notice of the time, date and location of the arbitration. Under these circumstances, we cannot say that the two-year statute of limitation with regard to plaintiff's claim under OCGA § 10-5-14(c) was tolled during the arbitration against ASI and Jones. Consequently, the trial court did not err in granting summary judgment in favor of defendants as to Count 7 of plaintiff's complaint.

2. Next, plaintiff contends the amount of the attorney fees awarded by the trial court was not supported by sufficient evidence. We agree.

" 'An award of attorney fees is unauthorized if [defendant Ingram] failed to prove the actual costs of the attorney and the reasonableness of those costs. (Cit.)' Fiat Auto U.S.A. v. Hollums, 185 Ga.App. 113, 116(5), 363 S.E.2d 312 (1987)." Southern Cellular Telecom v. Banks, 209 Ga.App. 401, 402, 433 S.E.2d 606 (1993). In the case sub judice, defendant Ingram submitted billing sheets sent to him by his attorney with the affidavit of his attorney, Michael K. Wolensky, in support of his claim for attorney fees. Attorney Wolensky deposed that 13.5 hours of services provided by two attorneys and a paralegal were reasonably worth $1,286.25 and that these services were necessary to press a motion to compel on behalf of defendant Ingram. Attorney Wolensky then deposed that he expended a quarter of an hour (at a rate of $205 per hour) reviewing the motion to compel and he enumerates in his affidavit billings allegedly entered by an "Associate" (11.25 hours at $100 per hour) and a "Paralegal" (2 hours at $55 per hour) in executing the motion to compel. However, differences seem to appear between certain notations explaining services rendered in the billing statements sent to defendant Ingram and explanations for billing what appears to be the same time in attorney Wolensky's affidavit. Further, it is apparent that the statements regarding the billings of the associate attorney and the paralegal were not based upon attorney Wolensky's personal knowledge, but were based upon information given to him by others. Such evidence is hearsay, and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Pennypacker's, 194 Ga.App. 169, 171(2), 390 S.E.2d 257 (1990). Moreover, the time entries in the billing statements in attorney Wolensky's affidavit and the billing statements attached to the affidavit include brief notations that a conference was held; that letters were received, reviewed and written; that telephone calls were conducted; that a conference was conducted between attorney Wolensky and an associate attorney; that research was performed; that a motion and brief were drafted, revised and reviewed; that time was spent in preparation for a hearing; that an order was drafted (apparently for the trial court); that time was spent waiting at the courthouse and traveling to the courthouse and that an associate attorney reviewed local rules of court. "Such broad statements fail to demonstrate the function or substance of the task with sufficient particularity to permit the court to distinguish between time and expenses attributable to the successful [motion to compel discovery] and time and expenses attributable to ... other [aspects of defendant Ingram's defense]." Southern Cellular Telecom v. Banks, 209 Ga.App. 401, 402, 433 S.E.2d 606, supra. Additionally, there is no indication that attorney Wolensky, the associate attorney who purportedly billed out most of the hours relevant to defendant Ingram's motion to compel or the paralegal who was attributed with two hours of pertinent billings were made available for cross-examination.

"A determination of the amount of an award of...