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Court of Appeals of Georgia.

McCLURE v. McCURRY et al.

No. A14A0893.

Decided: October 22, 2014

William Leonard Colvin, for Appellant.

After they were sued in 2008 by David McClure d/b/a McClure Contracting, Riverstone Professional Building, LLC obtained summary judgment, and Chris McCurry obtained a favorable jury verdict. Subsequently, citing OCGA § 9–15–14, the trial court granted attorney fees to Riverstone Professional Building and McCurry. In this appeal, McClure challenges the awards of attorney fees, setting forth these grounds: (i) the issue of attorney fees was not included in the pre-trial order; (ii) the order awarding the attorney fees failed to contain required elements; and (iii) McCurry was denied summary judgment and a directed verdict. We find that the first ground presents no basis for disturbing either award. Regarding the second ground, we agree with McClure-the trial court's order does not contain elements required for substantive review; therefore, we do not reach the merits of the third ground. We affirm in part, vacate in part, and remand the case with direction.

1. McClure challenges the propriety of the awards, pointing out that the issue of attorney fees was not included in the pretrial order. This challenge is unavailing.

OCGA § 9–11–16, which concerns pretrial orders, provides that “[u]pon the motion of any party, or upon its own motion, the court shall direct the attorneys for the parties to appear before it for a conference”1 and “shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues for trial.”2 Accordingly, this court has recognized that the issue of attorney fees and litigation expenses—where pursued, for instance, under OCGA § 13–6–11—may be waived, if not included in the pretrial order.3 “The question of whether attorney fees are appropriate under [OCGA § 13–6–11] is for the jury.”4

But the appellees' motion in this case was expressly premised upon OCGA § 9–15–14, which statute sets forth procedural provisions for the recovery of attorney fees and litigation expenses upon the grounds delineated therein.5 As this court has held,

[Sub-section] (f) provides that ‘an award of reasonable and necessary attorney's fees or expenses of litigation under this Code section shall be determined by the court without a jury and shall be made by an order of court․’ (Emphasis supplied.) There is no ambiguity in the statute; the legislature clearly intended for the court, not a jury, to determine whether fees and costs should be awarded under OCGA § 9–15–14.6

Regarding the timing of a movant's request, OCGA § 9–15–14(e) provides, “Attorney's fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action .”

As McClure acknowledges in his brief, the appellees “filed their Motion ․ during the pendency of [the] action.” Hence, the appellees' motion was timely filed. McClure cites no authority for his argument that the appellees' quest for attorney fees was subsequently lost for failure to include it in the pretrial order, and we find none. Moreover, McClure's argument disregards the plain language of OCGA § 9–15–14 that allows for the filing of a motion even after the trial, so long as the motion is filed “not later than 45 days after the final disposition of the action.”7

Given the foregoing, the trial court did not err in rejecting this challenge to the motion for attorney fees, and that portion of the order is affirmed.

2. McClure's contention that the trial court's order fails to contain required elements is correct.

It is well settled that an order granting attorney fees under OCGA § 9–15–14 must “contain express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which would authorize [the award].”8 Further, in Williams v. Becker,9 the Supreme Court of Georgia held that where the trial court awards attorney fees under OCGA § 9–15–14, the order must specify “whether the award is made under subsection (a) or (b) or both.”10

In the order here, the trial court recited language from both subsections (a)11 and (b)12 of OCGA § 9–15–14,13 and concluded that “the case against ․ McCurry lacked substantial justification as defined in the code” and that “the action against [Riverstone Professional Building] was substantially baseless and frivolous.”

As McClure points out, the trial court did not include in its order any factual finding(s) that underlay those conclusions. And as the appellees acknowledge in their brief, the trial court did not specify whether either award was made pursuant to OCGA § 9–15–14(a) or (b). Appellees posit, however, that “[b]ecause ‘frivolous' and ‘lacked substantial justification’ are elements of OCGA § 9–15–14(b) and not OCGA § 9–15–14(a), the attorney's fees granted to both Appellees were granted under OCGA § 9–15–14(b).”14 We need not adopt appellees' position, because the order is insufficient for substantive review even if premised upon only OCGA § 9–15–14(b).15

Under the circumstances presented here, the awards of attorney fees to the appellees must be vacated and the case remanded for the trial court to reconsider the issue, then enter an order not inconsistent with this opinion.16 Further, as McClure has aptly pointed out, any grant of attorney fees under OCGA § 9–15–14 to McCurry must particularly take into account Porter v. Felker17 and its progeny,18 given that McCurry's motions for summary judgment and for directed verdict were denied.

Judgment affirmed in part and vacated in part, and case remanded with direction.

PHIPPS, Chief Judge.

ELLINGTON, P. J., and McMILLIAN, J., concur.

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