Shoenthal v. Dekalb Cnty. Emps. Ret. Sys. Pension Bd.

• Decision Date: 28 September 2017
• Docket Number: A17A1065
• Citation: 805 S.E.2d 650
• Parties: SHOENTHAL et al. v. DEKALB COUNTY EMPLOYEES RETIREMENT SYSTEM PENSION BOARD et al.
• Court: Georgia Court of Appeals

343 Ga.App. 27

805 S.E.2d 650

SHOENTHAL et al.

v.DEKALB COUNTY EMPLOYEES RETIREMENT SYSTEM PENSION BOARD et al.

A17A1065

Court of Appeals of Georgia.

September 28, 2017

Christopher Scott Anulewicz, Brooke Walker Gram, Atlanta, for Appellant.

Richard Read Gignilliat, Richard Murray Escoffery, Duluth, Stanford G. Wilson, Sydney S. Hu, Atlanta, for Appellee.

Self, Judge.

In the third appearance of this case before this Court,¹ Rachel and Rebecca Shoenthal (collectively "Plaintiffs"), daughters of the late Judge Elliott Shoenthal, contend that the trial court erred in awarding attorney fees to the DeKalb County Employees Retirement System Pension Board ("the Board") pursuant to OCGA § 9-15-14. We agree and reverse.

The underlying facts as set out in Shoenthal v. Shoenthal , 337 Ga. App. 515, 788 S.E.2d 116 (2016) (hereinafter " Shoenthal II ") are:

On October 25, 2013, about a month before his scheduled surgery, Judge Shoenthal changed the beneficiaries on employer-provided life insurance policies by reducing [his wife Fran's] share of the benefit from 100 percent to 50 percent and designating that each of the Plaintiffs receive 25 percent of the benefit. On the morning of November 18, 2013, Judge Shoenthal e-mailed the clerk of the Board, inquiring

about changing the beneficiaries on his pension plan. Specifically, Judge Shoenthal asked, "[w]hat happens to my pension if I die—does it go to my wife? Can I split it between my wife and my children? Second, if I'm able to split it, what do I need to do to modify the beneficiary?" The clerk responded on November 20, 2013, informing Judge Shoenthal that he could change designated beneficiaries by completing a form available on a county website. Judge Shoenthal replied that he would complete a new beneficiary form.

That same month, Judge Shoenthal told his sister that he had revised his will to reflect his "intention to leave everything to [Plaintiffs] and little to nothing to Fran." At a November 23 lunch, Judge Shoenthal told his sister that he was in the process of changing the beneficiary designation for his pension. On November 25, 2013, Judge Shoenthal completed and signed the change-of-beneficiary form, designating the Plaintiffs as the sole beneficiaries. Judge Shoenthal also handwrote, "I want each of my children to receive 50% of my pension." Attached to the change-of-beneficiary form was a Post-It note containing the Board's address. Judge Shoenthal placed the form on or in his desk. Over the next two days, Judge Shoenthal worked in his office and handled repairs to his car.

Judge Shoenthal had surgery on November 27, was released from the hospital the next day, and died from an embolism

on December 1, 2013. Judge Shoenthal never mailed or delivered the change-of-beneficiary form.

Around the time Judge Shoenthal was released from the hospital, Fran discovered that he had changed or intended to change the beneficiaries on his pension plan. About a week after Judge Shoenthal's death, Fran submitted an application to receive Judge Shoenthal's pension benefits. Later that month, the change-of-beneficiary form was found on or in Judge Shoenthal's desk, and Fran was told about it. On January 1, 2014, the Board began sending monthly pension payments to Fran. A few days later, one of the Plaintiffs hand-delivered the signed change-of-beneficiary form to the Board and requested that it be honored. The Board informed Plaintiffs that it would not recognize the change-of-beneficiary form, but did not provide a reason.

Id. at 516-517, 788 S.E.2d 116. Plaintiffs subsequently sued the Board and their mother, Fran,

alleging that the Board wrongfully disbursed and Fran improperly claimed their deceased father's entire pension benefits when their father had designated that benefits be paid to them. The trial court granted the Board's and Fran's motions for judgment on the pleadings on the ground that Judge Shoenthal did not provide notice to the Board of a change in beneficiaries.

Id. at 516, 788 S.E.2d 116.

We affirmed the trial court, finding that "Judge Shoenthal did not provide written notice to the Board as required by [Section 908 of the] Pension Code,² and thus did not effectuate the change in beneficiaries upon which Plaintiffs' claims rest." Id. at 516, 788 S.E.2d 116. The trial court then granted the Board's motion for attorney fees under OCGA § 9-15-14 (a) and (b), on the ground that Plaintiffs' claims against the Board "suffer from a complete absence of any justiciable issue of law or fact" and that "Plaintiffs lacked substantial justification for bringing this action against [the Board], in that their positions and claims against [the Board] are substantially frivolous and substantially groundless." In awarding $71,318.71 in fees,³ the trial court noted that

[t]here is simply no reasonable interpretation of Section 908 of the Pension Code that could conceivably support Plaintiff's contention that the Pension Board received the requisite written notice that they, and not Defendant Fran Shoenthal, are Judge Shoenthal's beneficiaries under the Pension Plan.

We granted Plaintiffs' application for discretionary review of the award of attorney fees.

Pursuant to OCGA § 9-15-14 (a), the trial court shall award attorney fees when a party asserted a claim, defense or other position with "such a complete absence of any justiciable issue of law or fact" that the party could not reasonably have believed that the court would accept it. We affirm an award under subsection (a) if there is any evidence to support it. Pursuant to OCGA § 9-15-14 (b), the court may award attorney fees if a party brought or defended an action that "lacked substantial justification" or "was interposed for delay or harassment, or if the court finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct." We review a subsection (b) fee award for abuse of discretion.

(Citations and punctuation omitted.) Reynolds v. Clark , 322 Ga. App. 788, 789-90 (1), 746 S.E.2d 266 (2013). "[T]o the extent that the evidence relevant to the question of attorney fees consists of the state of the law, we make our own assessment of that evidence and decide for ourselves whether the claim asserted below presented a justiciable issue of law." (Citations, punctuation and footnote omitted.) Gibson Constr. Co. v. GAA Acquisitions I , 314 Ga. App. 674, 676-677, 725 S.E.2d 806 (2012) ("Generally speaking, an award of attorney fees cannot be sustained if it is based on an argument about the meaning of a statute, where the statute does not speak explicitly to the issue at hand, where the statute has not previously been interpreted with respect to that issue, and where some support for the argument can be gleaned from the text or purpose of the statute."). Moreover, the mere fact that the Board prevailed on its motion for judgment on the pleadings, does not mandate an award of attorney fees. See Brown v. Kinser , 218 Ga. App. 385, 387 (1), 461 S.E.2d 564 (1995) ("applicant is not entitled to attorney fees merely because summary judgment was granted in his favor"). "[F]or purposes of OCGA § 9-15-14, the relevant question is whether some authority arguably supported [Plaintiffs'] position." Russell v. Sparmer , 339 Ga. App. 207, 210 (1), 793 S.E.2d 501 (2016) (physical precedent only), citing Hall v. Hall , 241 Ga. App. 690, 692 (1), 527 S.E.2d 288 (1999) ("where a party asserts an arguably meritorious position, there was not a complete absence of any justiciable issue of law or fact such that an award of attorney fees is appropriate") (punctuation omitted).

The Board contends that the award was warranted because Plaintiffs' claim that the language of the Pension Code was subject to more than one interpretation was unreasonable. In support of this contention, the Board maintains that there is no caselaw addressing the meaning of Section 908 of the Pension Code because "no previous potential claimant has been willing to pursue a claim predicated on a position that is so clearly foreclosed by the plain language of the Pension Code." The Board's argument illustrates one of the classic logical fallacies: appeal to ignorance or an argument from ignorance.⁴ An argument from ignorance is "the mistake that is committed whenever it is argued that a proposition is true simply on the basis that it has not been proved false, or that it is false because it has not been proved true." Alabama-Tombigbee Rivers Coalition v. Kempthorne , 477 F.3d 1250, 1257 (II) (A) (1) (11th Cir. 2007), citing Irving M. Copi & Carl Cohen, Introduction to Logic 93 (8th ed. 1990). The Board mistakenly assumes that the absence of caselaw interpreting Section 908 of the Pension Code proves that Plaintiffs' claim "suffered a complete absence of any justifiable issue of law or fact." This contention ignores that the converse assumption is equally true: The absence of caselaw means that the issue was one of first impression. And, given our analysis in Shoenthal II of Section 908 and Judge Shoenthal's conduct in relation to the change-of-beneficiary form, we believe the latter assumption to be more applicable in this case.

Although we affirmed the trial court's decision in Shoenthal II , our ruling required us to construe Section 908 of the Pension Code. The Board has not cited to, and we are not aware of, another case where we have interpreted this section of the DeKalb County Pension Code or addressed a similar factual scenario. See, e.g., Fox v. City of Cumming , 298 Ga. App. 134, 134-136, 679 S.E.2d 365 (2009) (reversing award of attorney fees where party relied on statute that had not been interpreted by any court and the language of the statute arguably supported the contention). We ultimately concluded that Judge Shoenthal's failure to personally send the change-of-beneficiary form to the Board meant that he did not comply with the relevant section of the Code. However, given the language in the section of the Pension Code that we were called upon...