Springside Condominium v. Harpagon Co.

• Decision Date: 19 May 2009
• Docket Number: No. A09A0663.,A09A0663.
• Citation: 298 Ga. App. 39,679 S.E.2d 85
• Parties: SPRINGSIDE CONDOMINIUM ASSOCIATION, INC. v. The HARPAGON COMPANY, LLC.
• Court: Georgia Court of Appeals

679 S.E.2d 85

298 Ga. App. 39

SPRINGSIDE CONDOMINIUM ASSOCIATION, INC. v. The HARPAGON COMPANY, LLC.

No. A09A0663.

Court of Appeals of Georgia.

May 19, 2009.

Lipshutz, Greenblatt & King, Randall M. Lipshutz, Atlanta, for appellant.

Proctor Hutchins, Robert J. Proctor, Bradley A. Hutchins, Adam C. Caskey, Atlanta, appellee.

SMITH, Presiding Judge.

Springside Condominium Association, Inc. (the Association) appeals from the trial court's order denying its request for attorney fees incurred in defending a judgment on appeal. For the reasons outlined below, we vacate the trial judge's order and remand this case for him to hold a hearing on the issue of attorney fees.

This case began when Harpagon Company, LLC (Harpagon) filed a petition to quiet title to remove a lien for unpaid assessments filed by the Association. At issue was whether Harpagon was liable for condominium assessments from the date of its purchase at a tax sale through the date the owner's right to redeem the property expired. Harpagon Co. v. Davis, 283 Ga. 410, 658 S.E.2d 633 (2008). The Association filed a counterclaim for the amount of unpaid assessments as well as reasonable attorney fees actually incurred. The Association prevailed on its counterclaim below, and Harpagon's subsequent appeal to the Georgia Supreme Court was dismissed because Harpagon failed to comply with the mandatory discretionary appeal procedures for judgments in an amount less than $10,000. Id. at 412, 658 S.E.2d 633.

After the remittitur was returned to the superior court, the Association filed a motion to recover attorney fees incurred on appeal under the Georgia Condominium Act. See OCGA § 44-3-109(b)(3). The Association also requested a hearing on its motion. Harpagon opposed the motion by arguing that the Association was not entitled to recover appellate fees generally. Harpagon also joined in the Association's request for a hearing to determine the amount of reasonable attorney fees incurred by the Association, to the extent that the trial court determined that the Association could recover attorney fees incurred on appeal.

Without first holding a hearing, the superior court denied the motion in the following order:

The Defendant asks the Court to award attorney fees incurred in defending against an appeal of the final judgment in this case. The judgment has since been satisfied.

In its Motion, the Defendant has cited no direct authority for awarding attorney fees in the instant case. In addition, the Court finds that this is not an appropriate case for an attorney fee award. The Motion is thus DENIED.

1. The Association asserts that the trial court erred by concluding that it was not entitled to recover attorney fees incurred on appeal and in failing to hold a hearing on the amount of attorney fees incurred. We agree.

"Generally an award of attorney fees is not available unless supported by statute or contract." (Citation, punctuation and footnote omitted.) Sinkwich v. Conner, 288 Ga.App. 320, 321, 654 S.E.2d 182 (2007). "We note that neither OCGA § 9-15-14(b) nor OCGA § 13-6-11 authorizes a trial court to award expenses of litigation for proceedings before the appellate courts, because these statutes base the award of litigation expenses upon conduct that occurred at the trial court level." (Citations and footnote omitted.) In re Estate of Zeigler, 295 Ga.App. 156, 161(2)(d), 671 S.E.2d 218 (2008). A party can, however, recover attorney fees incurred on appeal when attorney fees in general are authorized by other statutes. See id. (appellate attorney fees authorized in breach of trust actions under OCGA § 53-12-193(a)(4)); Evans County Bd. of Commissioners v. Claxton Enterprise, 255 Ga.App. 656, 659(3), 566 S.E.2d 399 (2002) (appellate attorney fees can be recovered in Open Meetings Act cases under OCGA § 50-14-5(b)).

The Georgia Condominium Act provides that "[t]o the extent that the condominium instruments provide, ... the lien for assessments shall also include ... [t]he costs of collection, including court costs, ... and reasonable attorney's fees actually incurred." OCGA § 44-3-109(b)(3). It further provides that "[...