Appeals: Viewed in the Context
of OCGA § 51-7-80 and 9-15-14
George H. Carley
Justice, Supreme Court of Georgia

I. Appeals

A. Jurisdictional Problems

Prior to the enactment of OCGA § 51-7-80 (April 3, 1989), "abusive litigation" was a common law tort, the substantive elements and procedural aspects of which were governed by Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986). After April 3, 1989, Yost, Supra, and its progeny have little or no precedential value. The exclusive remedy for damages from abusive litigation is OCGA § 51-7-80, et. seq., and the remedy for attorney's fees in a frivolous setting is, generally, OCGA § 9-15-14. Deavours v. Hog Mountain Creations, Inc., 207 Ga. App. 557, 428 S.E.2d 388, 389 (1993), aff'd in part, rev'd in part on other grounds, 263 Ga. 796, 439 S.E.2d 463 (1994).

The General Assembly's legislation in the area of abusive litigation not only provided remedies in the context of abusive litigation, it also provided that appeals of abusive litigation judgments, awards and grants of attorney's fees motions would be subject to the somewhat more difficult discretionary appeal procedures in OCGA § 5-6-35(a)(8).

Only a final OCGA § 51-7-80 order is directly appealable. OCGA § 5-6-34(a)(1). If an order in an abusive litigation case is interlocutory, an appeal may be taken from that order, if a proper application for a Certificate of Immediate Review is obtained within ten (10) days of the issuance of the order, an application is timely filed, and the appellate court grants the application. OCGA § 5-6-34(b). It is possible that an abusive litigation order falling within the "collateral order" test may be directly appealable. To fit within these parameters the order must: 1) completely and conclusively resolve the "issue" appealed; 2) concern an issue which is "substantially separate" from the basic issues presented in the complaint; and, 3) result in the loss of an important right and be "effectively reviewable on appeal." DOT v. Hardaway Co., 216 Ga. App. 262, 454 S.E.2d 167, 169 (1995).

Standing alone, the appeal of an award of attorney's fees made pursuant to OCGA § 9-15-14 is not directly appealable, regardless of the amount awarded. Haggard v. Bd. Of Regents, 257 Ga. 524, 526 (4) (a), 360 S.E.2d 566 (1987); Rolleston v. Huie, 198 Ga. App. 49, 52 (4), 400 S.E.2d 349 (1990). It is appealable only through the application for discretionary appeal provided in OCGA § 5-6-35(10) (appeal of award of attorney's fee, by discretionary appeal only). Any award of OCGA § 51-7-80 damages in an amount less than $10,000 is also appealable only by discretionary appeal. OCGA § 5-6-35(6). If a party unsuccessfully attacks the underlying award of damages or attorney's fees in the trial court pursuant to OCGA § 9-11-60, an appeal of the order denying the motion to set aside would be subject to the grant of an application for discretionary appeal. OCGA § 5-6-35(a)(8).

B. Trial Court Jurisdiction

Appeals under OCGA § 9-15-14, present some interesting jurisdictional problems for the uninitiated counselor or the busy trial court that fails to examine its continuing jurisdiction before ruling on an OCGA § 9-15-14 motion for attorney's fees.

A motion for attorney's fees under OCGA § 9-15-14 may brought at anytime, but not later than forty-five (45) days after the issuance of the final order in the case. Prior to the change in the statute, a motion for attorney's fees must have been brought within forty-five (45) days after the entry of the final order. Effective April 5, 1994, such a motion may now be made at any time, "but not later than 45 days after the final disposition of the action..." Moore v. Dixon, 264 Ga. 797, 452 S.E.2d 484, 486 (1994). An anomalous situation may develop where, appellant (having had attorney's fees awarded against him in the trial court) files both a discretionary appeal, pursuant to OCGA § 5-6-35, and a motion for reconsideration in the trial court (given there is no guarantee his appeal will be granted). While the filing of the application for discretionary appeal acts as supersedeas, OCGA § 5-6-35(h), this area of the law apparently still generates confusion.

In the recent case of Nest Investments, Inc. v. Tzavaras, 221 Ga. App. 282, 471 S.E.2d 223 (1996), the trial court entered an order awarding attorney's fees against the appellant. Appellant immediately filed an application for a discretionary appeal and shortly thereafter filed a motion to reconsider the award of attorney's fees. The trial court granted the motion to reconsider and vacate its award of OCGA § 9-15-14 attorney's fees. Appellant, apparently pleased with its success in the trial court on its motion for reconsideration, withdrew its application for a discretionary appeal.

Not surprisingly, the now former appellee appealed. The Court of Appeals held that the trial court "did not have jurisdiction" to vacate its award of attorney's fees, because the mere filing of the application for discretionary appeal "acts as supersedeas" thereby divesting it of any further authority over the case. Id., at 224. Although the costs need not be paid, until the application is granted, the supersedeas attaches immediately upon filing. Id.

Once jurisdiction over a case attaches in either the Supreme Court or the Court of Appeals, the trial court below is completely without jurisdiction to award attorney's fees pursuant to OCGA § 9-15-14, for matters occurring on or during the appeal. DOT v. Franco's Pizza & Deli, 200 Ga. App. 723, 409 S.E.2d 281 (1991), overruled on other grounds by White v. Fulton County, 264 Ga. App. 393, 444 S.E.2d 734 (1994). Appellate courts have mechanisms, OCGA § 5-6-6 Supreme Court Rule 8 and Court of Appeals Rule 15, to punish abusive litigation and frivolous appeals that are before them. An anomalous situation would result if both the appellate court and trial court could concurrently punish for the same act on appeal. See also Castro v. Cambridge Square Towne Houses, Inc., 204 Ga. App. 746, 420 S.E.2d 588 (1992) (An award of attorney's fees for the hearings conducted in the trial court immediately before and after the appeal, but not in connection with the appeal itself, was upheld).

C. Appellate Court Jurisdiction

In an appellate setting there are three (3) authorities which authorize the imposition of damages or penalties for frivolous appeals. They are: (1) OCGA § 5-6-6; (2) Supreme Court Rule 8, and (3) Court of Appeals Rule 15. Where there is a money judgment in the lower court, OCGA § 5-6-6 is applicable and may be sought in either the Supreme Court or the Court of Appeals. See Warnock v. Davis, 267 Ga. 336 (2), ___ S.E.2d ___ (1996). An appellee in the Supreme Court may invoke Rule 8 only when there is no money judgment on appeal. In the Court of Appeals, Rule 15 and OCGA § 5-6-6 may be simultaneously invoked where there is a money judgment. Without a money judgment, however, only Rule 15 is applicable in the Court of Appeals.

Under OCGA § 5-6-6 an appellant whom the appellate court determines brought an appeal solely for delay may be fined 10% of the judgment for damages for a frivolous appeal. See Warnock v. Davis, supra. Supreme Court Rule 8 provides for the imposition of a penalty up to $1,000 against an appellant and/or his counsel for frivolous appeal. (Emphasis supplied). Rule 15 of the Court of Appeals also provides for a penalty of up to $1,000 against a party and/or party's counsel (the appellant or the appellee) where there is a direct appeal, application for discretionary appeal, application for interlocutory appeal or motion which the appellate court deems frivolous. (Emphasis supplied).

OCGA § 5-6-6 states in its entirety:

When in the opinion of the court the case was taken up for delay only, 10 percent damages may be awarded by the appellate court upon any judgment for a sum certain which has been affirmed. The award shall be entered in the remittitur.

OCGA § 5-6-6 establishes the requisite elements for assessing damages for a frivolous appeal: (1) the appellate court must find that the appeal was filed for delay only; and (2) that there is a money judgment for a sum certain in the lower court. Warnock v. Davis, supra; Hatchett v. Hatchett, 240 Ga. 103, 239 S.E.2d 512 (1977); Atlanta Gas Light Co. v. Slaton, 117 Ga. App. 317, 160 S.E.2d 414 (1968). Generally, under OCGA § 5-6-6 the court must be completely satisfied that the appeal was initiated solely for the purpose of delay before ordering a penalty. Warnock v. Davis, supra; Stone v. Cook, 190 Ga. App. 11, 378 S.E.2d 142 (1989); Rackard v. Merritt, 114 Ga. App. 743, 152 S.E.2d 701 (1966); Gutherie v. Rowan, 34 Ga. App. 671, 131 S.E. 93 (1925); Majette v. Strickland, 30 Ga. App. 624, 118 S.E. 477 (1923). Regardless of whether a case lacks merit, an appellant will not be sanctioned unless it is clearly apparent that the appeal was brought to evade a judgment. Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940). Although non-meritorious, if an appeal is not so palpably without merit as to profess no other conclusion than it was filed to delay or evade judgment, then sanctioning under OCGA § 5-6-6 is precluded. Taylor v. Bentley, 166 Ga. App. 887, 305 S.E.2d 617 (1983); ALE-8-One of Am, Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506, 305 S.E. 2d 14 (1983); Great Atl. & Pac. Tea Co., Inc. v. Burgess, 157 Ga. App. 632, 278 S.E.2d 174 (1981).

In Moore v. Smith Machine Co., 4 Ga. App. 151, 60 S.E. 2d 1035 (1908), an early case awarding damages under OCGA § 5-6-6, the Court of Appeals set forth a procedure to be followed in determining whether an award of damages is appropriate. That procedure is:

When a motion for damages is filed, [the Court] will carefully examine the record and will pass upon the motion in the light of the entire history of the case as there presented. If after reviewing the whole matter [the Court] believe[s] that the plaintiff in error is presenting a bona fide contest over a colorable matter, though his view of the law may not in fact be well grounded, or that he is seeking a ruling upon an open or doubtful question , damages will be refused. But when the record disclosed that the plaintiff in error has no just case, that no new question of law is involved, and the record is full of those things which every judge and every lawyer recognizes as indicia of an attempt to fight merely for time, justice demands that [the Court] overcome any personal hesitancy that [it] may have, and that [it] add an award of damages to the judgment of affirmance.

Id., at 154; Thompson Enterprises v. Coskrey, 168 Ga. App. 181, 308 S.E.2d 399 (1983).

Supreme Court Rule 8 provides as follows:

The Court may, with or without motion, impose a penalty not to exceed $1,000 against an appellant or appellant's counsel in any civil case in which there is a direct appeal, application for discretionary appeal, application for interlocutory appeal, petition for certiorari, or motion which the Court determines to be frivolous. The rule applies only to those cases in which there is no money judgment.

Supreme Court Rule 8 states that the penalty is inapplicable where there is a money judgment. Where there is a money judgment from which the appellant is appealing, an appellee must invoke OCGA § 5-6-6 to recover damages for a frivolous appeal.

Court of Appeals Rule 15, subparts (b) and (c), provides as follows:

(b) Penalty for Frivolous Appeal or Motion.

The panel of the Court ruling on a case, with or without motion, may by majority vote impose a penalty not to exceed $1000 against any party and/or party's counsel in any civil case in which there is a direct appeal, application for discretionary appeal, application for interlocutory appeal, or motion which is determined to be frivolous.

(c) Money Judgment.

The imposition of such penalty shall constitute a money judgment in favor of appellee against appellant. Upon filing of the remittitur in the trial court, the penalty may be collected as are other money judgments.

Subsection (c) provides that penalties imposed against an appellant pursuant to Subsection (b) constitutes a money judgment in favor of the appellee. On the other hand, Subsection (c) does not provide the same for penalties imposed against an appellee pursuant to Subsection (b).

1. Appeals Deemed Frivolous

The following cases are examples of appeals that the appellate courts have deemed frivolous:

C & F Bonding Co. v. State, ___ Ga. App. ____, ___ S.E.2d ___ (January 3, 1997) (A96A2438) (Appellant could not have reasonably expected to prevail on appeal under any theory. $500 penalty assessed); Jefferson Consultants, Inc. v. Jefferies, 222 Ga. App. 379, 474 S.E.2d 262 (July 30, 1996) (A96A1159) (Appellee appealed $118,000 judgment awarded against him for negligent land survey. Appeal found to be solely for delay; 10% penalty imposed); Cook v. Rowland, 212 Ga. App. 835, 472 S.E.2d 441 (1996) (Attorney who defaulted on promissory note he signed was found in contempt of court for failing to cooperate with post-judgment discovery. Appeal found to be purely for delay and frivolous. 10% penalty imposed); Griswold v. Columbus Fin. Co., 220 Ga. App. 803, 470 S.E.2d 256 (1996) (Debtor's appeal found to be frivolous where no valid defense raised. Sanctions and $1,000 penalty imposed); Stringer v. Harkleroad & Hermance, 218 Ga. App. 701, 463 S.E.2d 152 (1995) (OCGA § 5-6-6) (Appeal found to lack merit and to be interposed for delay; appellant unable to cite a single case to support his claims; 10% delay damages of $49,519.00 awarded); Malin Trucking Inc. v. Progressive Casualty Inc. Co., 212 Ga. App. 273, 441 S.E.2d 684 (1994) (OCGA § 5-6-6); T.L. Rogers Oil Co. v. Sommers, 203 Ga. App. 404, 417 S.E.2d 44 (1992) (OCGA § 5-6-6); Stolle v. State Farm Auto, Mut. Ins. Co., 206 Ga. App. 235 (1992) (Court of Appeals Rule 15(b), formerly Rule 26(b)); Smitherman v. Mary House Ministries, Inc., 200 Ga. App. 116, 407 S.E.2d 58 (1991) (Court of Appeals Rule 15(b), formerly Rule 26(b)); Webb v. Sheu, 201 Ga. App. 769, 412 S.E.2d 289 (1991) (OCGA § 5-6-6); Suchnick v. So. Gen. Ins. Co., 196 Ga. App. 687 (1990) (Court of Appeals Rule 15(b), formerly Rule 26 (b)); White v. Hardegree, 190 Ga. App. 275, 378 S.E.2d 877 (1989) (Court of Appeals Rule 15(b), formerly Rule 26(b)); Bradbury v. Meade Corp., Mead Prod. Div., 174 Ga. App. 601, 330 S.E.2d 801 (1985) (OCGA § 5-6-6); St. Amour v. Roberts, 170 Ga. App. 717, 318 S.E.2d 313 (1984) (OCGA § 5-6-6); Ray v. Standard Fire Ins. Co. of Alabama, 168 Ga. App. 116, 308 S.E.2d 221 (1983) (OCGA § 5-6-6); Burleson v. Jordon, 163 Ga. App. 496, 295 S.E.2d 335 (1982) (OCGA § 5-6-6, formerly Code § 6-1801); Egerton v. Jolly, 133 Ga. App. 805, 212 S.E.2d 462 (1975); (OCGA § 5-6-6); Pinkerton & Laws Co. v. Robert & Co. Assocs., 129 Ga. App. 881, 201 S.E.2d 654 (1973) (OCGA § 5-6-6); Craton v. Hackney, 91 Ga. 192 (1892) (OCGA § 5-6-6, formerly Code § 4286).

2. Appeals Deemed Not Frivolous

The following represent cases where damages or sanctions were not imposed:

Gorham v. Turner Outdoor Ad., Ltd., 199 Ga. App. 712, 405 S.E.2d 900 (1991) (OCGA § 5-6-6); Stacy v. Caldwell, 186 Ga. App. 293, 367 S.E.2d 73 (1988); Harrell v. Thompson, 182 Ga. App. 470, 473(6), 356 S.E.2d 69 (1987). Getz Services, Inc. v. Perlow, 173 Ga. App. 532, 327 S.E.2d 761 (1985) ($55,000 judgment for a negligent termite inspection. The appeal was found to be not meritorious, however, it was "not so palpably without merit as to admit of no other conclusion than it was filed for the purpose of delay."); Taurus Productions, Inc., Ltd. v. Maryland Sound Ind., Inc., 155 Ga. App. 147, 270 S.E.2d 337 (1980) (OCGA § 5-6-6); Pippin v. Brigadier Industries Corp., 150 Ga. App. 401, 258 S.E.2d 18 (1979) (OCGA § 5-6-6); Stripling v. Calhoun, 98 Ga. App. 354, 105 S.E.2d 923 (1958) (OCGA § 5-6-6).

II. Ethics on Appeal

In addition to the potential pecuniary losses an appellant (and/or appellee under Court of Appeals Rule 15) may incur on appeal, there are ethical considerations for an attorney contemplating filing an appeal. An attorney, ethically, should not assist in an appeal that is totally groundless and meritless, simply because the client urges him or her to do so or agrees to pay all costs associated with the appeal. Beyond the very real danger of monetary sanctions now being imposed against the attorney personally for the appeal (Supreme Court Rule 8; Court of Appeals Rule 15), the Rules and Regulations of the State Bar of Georgia provide ethical guidance to the attorney concerning whether to bring an appeal. The Rules and Regulations that provide that guidance include EC 7-4, 7-5, 7-8 and 7-22 and DR 101 and 102.

The Georgia State Bar Rules and Regulations mirror the Model Code of Professional Responsibility. The relevant Ethical Considerations ("EC") and Disciplinary Rules ("DR") are as follows: EC 7-4, 7-5, 7-8; and DR 7-101 and 7-102:

EC 7-4. The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail. His conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.

EC 7-5. A lawyer as adviser has a duty to advise the client as to various forms of dispute resolution. When a matter is likely to involve litigation, a lawyer has a duty to inform the client of forms of dispute resolution which might constitute reasonable alternatives to litigation. A lawyer as adviser furthers the interest of his client by giving his professional opinion as to what he believes would likely be the ultimate decision of the courts on the matter at hand and by informing his client of the practical effect of such decision. He may continue in the representation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the lawyer so long as he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position. A lawyer should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor.

EC 7-8. A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. Advice of a lawyer to his client need not be confined to purely legal considerations. A lawyer should advise his client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective viewpoint. In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible. He may emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions. In the final analysis, however, the lawyer should always remember that the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client and not for himself. In the event that the client in a nonadjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Directory Rules, the lawyer may withdraw from the employment.

EC 7-22. Respect for judicial rulings is essential to the proper administration of justice; however, a litigant or his lawyer may, in good faith and within the framework of the law, take steps to test the correctness of a ruling of a tribunal.

The DR rules are as follows:

DR 7-101. Representing a Client Zealously.

(B) In his representation of a client, a lawyer may: (1) where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client;

DR 7-102. Representing a Client Within the Bounds of the Law.

(A) In his representation of a client, a lawyer shall not:

(2) knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

Given the EC's, DR's, Rule 8 and Rule 15, should an attorney appeal or not? The thoughtful appellate attorney will always consider balancing the ethical considerations of a proposed appeal with his duty to his client and his duty to the court, before merely filing an appeal. Since the issues that may give rise to an appeal in Georgia are legion, this duty may only be discharged by the attorney's careful examination of the issues to be addressed on appeal, the status of the existing law as it affects those issues, the entire record in the court below, the trial court's decision and reasoning for its decision and the party's actions during the entire judicial process. Only by weighing all these factors against an attorney's duties will he or she always be certain that an appeal filed and pursued is not merely interposed for delay and frivolous.

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