I. Fees and Expenses Concerning Frivolous Appeals

A. Appellate Court Authority to Make Awards

In an appellate setting there are three (3) authorities that authorize the imposition of damages or penalties for frivolous appeals. They are: (1) OCGA § 5-6-6, (2) Supreme Court Rule 6, [formerly Rule 8] and (3) Court of Appeals Rule 15. If there is a money judgment in the lower court, OCGA § 5-6-6 damages (10%) may be sought in either the Supreme Court or the Court of Appeals. Warnock v. Davis, 267 Ga. 336, 478 S.E.2d 124 (1996). If there is no money judgment, appellee must resort to Rule 15 in the Court of Appeals and/or Rule 6 in the Supreme Court.

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. Supreme Court Rule 6 provides for the imposition of a penalty up to $1,000 against an appellant and/or his counsel for frivolous appeal. 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.

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). While 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 a recent Court of Appeals case, the Court declined to award a 10% penalty on a monetary amount appealed, even though it upheld all of the trial court's rulings. The Court applied what might be considered a subjective standard (whether the Court of Appeals believes the appeal was taken solely for the purposes of delay). In Mitchell Motors, the Court of Appeals did not believe the appeal was prosecuted only for delay thus it declined to award a 10% penalty under OCGA 5-6-6. Mitchell Motors, Inc. v. Barnett, 249 Ga.App. 639, 549 S.E.2d 445 (2000).

In Moore v. Smith Machine Co., 4 Ga. App. 151, 60 S.E. 2d 1035 (1908), an early case awarding damages under the forerunner of OCGA § 5-6-6, the Court of Appeals set forth a written 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, 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 thing 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).

There are cases that award the 10% penalty, but it is difficult to draw a bright line between facts that will draw a penalty and facts that will not.

In Johnson v. Nelson-Rives Realty, Inc., 245 Ga. App. 638, 538 S.E.2d 536 (2000), the Court of Appeals awarded $2,694.00 in appellate penalties on a commercial dispossessory judgment of $26,946.00. The Court found that the appeal was taken for delay only. The Dissent pointed out in that case that the merits of the case were not reached merely because no transcript was filed by the appellee. Thus, the Dissent argued one could not know whether the underlying argument on the merits was frivolous. Since many appeals of a sum certain (without a transcript) have not drawn a § 5-6-6 penalty, it is not possible to say state that the award was solely based on the lack of a transcript. Whether it is little guidance to the practitioner, the fact of the matter is that each case turns on its own facts and application of § 5-6-6 as the Court of Appeals Panel sees it or the full Court in the Supreme Court. As a matter of practice though, it is important to remember that either Court will not award OCGA § 5-6-6 on its own motion, but only on a motion by the appellee.

The Rule concerning Frivolous Appeals to the Supreme Court is Rule 6. To the initiated, it was former Rule 8. On September 1, 2001, the Georgia Supreme Court renumbered its Rules and the appellate penalty rule (while remaining substantively the same) became Rule 6.

Supreme Court Rule 6 provides as follows:

RULE 6. FRIVOLOUS APPEAL The Court may, with or without a motion, impose a penalty not to exceed $1,000 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, petition for certiorari, or motion which the Court determines to be frivolous. The party or party's counsel may respond to such a motion within 10 days or, if no motion was filed, file a motion for reconsideration within 10 days of receipt of the order. This rule applies only to those cases in which there has been no money judgment, as money judgments are subject to the penalties outlined in OCGA 5-6-6. The imposition of such penalty shall constitute a money judgment in favor of appellee against appellant or appellant's counsel or in favor of appellant against appellee or appellee's counsel, as the Court directs. Upon filing of the remittitur in the trial court, the penalty may be collected as are other money judgments.

Former Supreme Court Rule 8 stated 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.

The most apparent change is that the target of a penalty motion has at least 10 days to respond to a Rule 6 motion. Additionally, it is now quite clear that the Movant, not the Court or some other party, is entitled to the any Rule 6 award.

Rule 6 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.

In a recent case decided under Supreme Court Rule 8, the appellant, Sheriff of Sumter County, was Ordered by Mandamus in the trial court to turn over public records about inmates and the Appellee, the Sumter Free Press, was awarded $2,000 in attorney's fees for fees incurred at the trial court level. On appeal, even though the Georgia Supreme Court found all of the Sheriff’s appellate arguments to be unavailing, it declined to award Appellee a frivolous appeal penalty under Rule 8. Howard v. Sumter Free Press, Inc., 272 Ga. 521, 531 S.E.2d 698 (2000). Thus, the absence of any merit to the appellant's appeal does not necessarily guarantee an award of a Rule 8 [now Rule 6] penalty.

The Court of Appeals analogous Rule is Rule 15. Court of Appeals Rule 15, in pertinent subparts (b) and (c), provides as follows:

Penalty for Frivolous Appeal or Motion. The panel of the Court ruling on a case, with or without motion, may be 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 to which is determined to be frivolous. 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).

B. Limitations on Trial Court Jurisdiction To Make

Any Award Concerning Appellate Fees and Expenses

Appeals under OCGA § 9-15-14, present some interesting jurisdictional problems for the busy lawyer or 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 seeking attorneys fees, must be filed during the pendancy of the case or within forty-five (45) days of the final disposition of the case (which means at the trial level and not on appeal) or the trial court will not have jurisdiction to hear the motion. Gist v. DeKalb Tire Co., Inc., 223 Ga. App. 397, 477 S.E.2d 616 (1996); Fairburn Banking Co. v. Gafford, 263 Ga. 792, 439 S.E.2d 482 (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). The filing of an Application for Discretionary Appeal acts as supersedeas, OCGA § 5-6-35(h).

In 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 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 filing of the application for discretionary appeal "acts as supersedeas" thereby divesting it of any further authority over the case. Id., at 224.

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 283 (1991), overruled on other grounds by White v. Fulton County, 264 Ga. App. 393, 444 S.E.2d 734 (1994).

In an unusual case, the Court of Appeals held that OCGA § 13-6-11 damages may not be awarded for the "attorney's fees and expenses of litigation incurred as a result of defending an appeal after a jury verdict has been rendered." Kent v. David G. Brown, P.E., 248 Ga.App. 447, 545 S.E.2d 598 (2001). Kent lost in the trial court and appealed. The appeal was affirmed and returned on Remittitur to the trial court. After the case was returned to the trial court, Brown filed a motion (in the trial court) for attorney's fees under OCGA § 13-6-11. Surprisingly, and notwithstanding the plain language of the statute, "the trial court ruled that Brown was entitled to recover reasonable expenses of litigation incurred as a result of Kent's appeal. The issue was then tried before a jury (and Brown was awarded $15,150 in attorney's fees defending the appeal)." In Kent, supra, the Court of Appeals made clear that the jurisdiction for § 13-6-11 motions ends at the trial court (and they additionally restated that § 9-15-14 does not extend to appeals). For any recovery to be had for appellate defense, litigants must resort to § 5-6-6 (which allows only a maximum of 10% of the underlying award) or Court of Appeals Rule 15.

The practical effect the Kent ruling, though quite sound based on the language of the statutes, is that litigants are at less risk of fees on appeal than in the trial court. The reason is that the mechanisms for award of fees on appeal do not allow awards of the actual amounts incurred, as does the trial court fee machinery. For example, in Kent, the most Brown could have received from the Court of Appeals would be 10% of the initial jury award or a maximum of $1,000 under Court of Appeals Rule 15. Whereas, if all of the activity complained of had occurred at the trial court level, there would be no limit on the attorney's fees that could be recovered. However, regardless of the activity on appeal (whether frivolous or not) the limitations are either 10% of the underlying award or a maximum of $1,000 in either appellate court.

Jurisdictional Limitations on Review

of Attorney's Fee Awards

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.

Only a final OCGA § 51-7-80 Order is directly appealable. OCGA § 5-6-34(a)(1). If an award in an abusive litigation case is interlocutory, an appeal may be taken from that order, but only if a proper application for a Certificate of Immediate Review is obtained within ten (10) days of the issuance of the Order.

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. Hd. of Regents, 257 Ga. 524, 526 (4) (a), 360 S.E.2d 566 (1987); Rolleston v. Huie; 198 Ga. App. 49, 5.2 (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).

II. Overview of Ethics on Appeal

Aside from the potential pecuniary losses an appellant (and/or appellee under Court of Appeals Rule 15) may suffer on appeal, there are ethical considerations for an attorney contemplating filing an appeal. An attorney, 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 danger of monetary sanctions now being imposed against the attorney personally for the appeal (Supreme Court Rule 8 [now Rule 6]; Court of Appeals Rule 15), the Rules and Regulations of the State Bar of Georgia and the Model Code of Professional Responsibility provide ethical guidance to the attorney concerning whether to bring an appeal.

The Rules and Regulations of the Model Code of Professional Responsibility, which provide guidance for the appellate advocate are: Rule 3.1, 3.2 and 3.3. They provide as follows:

Rule 3.1 Meritorious Claims and Contentions.

In the representation of a client, a lawyer shall not: (a) file suit, assert a position, conduct a defense, delay a trial or take other action on behalf of the client when the lawyer knows when it is obvious that such action would serve merely to harass or maliciously injure another; (b) knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law. The maximum penalty for a violation of this Rule is a public reprimand.

Rule 3.2 Expediting Litigation.

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. The maximum penalty for a violation of this Rule is a public reprimand.

Rule 3.3 Candor toward the Tribunal.

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

...

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

The maximum penalty for a violation of this Rule is disbarment.

Given the Rule 6 and Rule 15, and Rules 3.1, 3.2 and 3.3. of the Model Code 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 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 genuine and not merely interposed for delay.