NEWMAN v. FILSOOF (1997)

Ruth Newman filed an action against Lena Pichulik and another to recover under a promissory note.   Pichulik denied the material allegations of the complaint and asserted a motion for attorney fees and expenses of litigation, claiming that the complaint's allegations reveal expiration of the 20-year statute of limitation and that the promissory note attached to the complaint reveals that the note was satisfied on August 18, 1975.   Two days after this motion was filed, Newman filed a voluntary dismissal of her complaint without prejudice.   Pichulik's attorney filed his affidavit and a $2,621 attorney fee and expenses bill for the services he rendered.   Pichulik's attorney later supplemented this affidavit by filing another affidavit, deposing that “Pichulik seeks to recover $3,321.00 in connection with her Motion as an award of reasonable and necessary attorneys' fees and expenses of litigation․”

The trial court granted Pichulik's motion for attorney fees and expenses of litigation under OCGA § 9-15-14(a) and (b).   We granted this discretionary appeal because the trial court did not enter findings of conduct that authorize such an award as required by Porter v. Felker, 261 Ga. 421, 422(3), 405 S.E.2d 31.   Held:

 1. In Porter v. Felker, 261 Ga. 421, 405 S.E.2d 31, supra, the Georgia Supreme Court held that the “trial court's order must include findings of conduct that authorize an award under OCGA § 9-15-14, or the order must be vacated.  Coker v. Mosley, 259 Ga. 781, 782, 387 S.E.2d 135 (1990).”   Id. at 422(3), 405 S.E.2d 31, supra.   Applying this rule in the case sub judice, the trial court did not include findings of conduct in its order which authorize an award under OCGA § 9-15-14(a) and (b).   The trial court's judgment must therefore be vacated and the case sub judice remanded for further consideration of Pichulik's motion for attorney fees and expenses of litigation.   See MacDougald v. Phillips, 213 Ga.App. 575, 576(1), 445 S.E.2d 357, and Hardwick-Morrison Co. v. Mayland, 206 Ga.App. 426, 427, 425 S.E.2d 416.

 2. Pichulik has filed a motion for this Court to assess damages and penalties for frivolous appeals pursuant to OCGA § 5-6-6 and Court of Appeals Rule 15(b).   Although the face of Newman's complaint indicates that her action had no basis in law or fact, we cannot say with certainty that this conclusion is accurate;  that the trial court's order granting Pichulik's motion for attorney fees and expenses of litigation is based on such a conclusion, or that the trial court's order granting Pichulik's motion for attorney fees and expenses of litigation is otherwise supportable as a matter of law and fact.   Under these circumstances, and in light of the disposition of this appeal, it is not obvious that Newman and her attorney filed this appeal solely to interpose delay.  Moss v. Rutzke, 223 Ga.App. 58, 59(2), 476 S.E.2d 770.   Consequently, Pichulik's motion for this Court to assess damages and penalties for frivolous appeals pursuant to OCGA § 5-6-6 and Court of Appeals Rule 15(b) is hereby denied.

Judgment vacated and case remanded with direction;  motion to assess damages and penalties for frivolous appeal denied.

McMURRAY, Presiding Judge.

RUFFIN, J., and HAROLD R. BANKE, Senior Appellate Judge, concur.