Modi v. India-American Cultural Ass'n

897 S.E.2d 86

MODI

v.INDIA-AMERICAN CULTURAL ASSOCIATION.

A23A1569

Court of Appeals of Georgia.

January 10, 2024

Reconsideration Denied January 30, 2024

Girish Modi, for Appellant.

Leo Kogan, Atlanta, for Appellee.

Brown, Judge.

Girish Modi appeals, pro se from the trial court’s award of $65,000 in attorney fees and costs to India-American Cultural Association ("IACA") pursuant to OCGA § 9-15-14. In Modi’s prior, appeal, we affirmed the trial court’s dismissal of Modi’s complaint and grant of summary judgment to IACA. Modi v. India-American Cultural Assn. 367 Ga. App. 572, 886 S.E.2d 378 (2023) ("Modi II"). However, due to Modi’s filing of a bankruptcy petition and the automatic_; stay triggered thereby, we remanded the portion of the appeal involving the attorney fees award, so the trial court could enter a stay pending the resolution of Modi’s bankruptcy proceedings. Id. at 573-574 (1), 886 S.E.2d 378. As we explained, "to the extent a bankruptcy stay applies, this Court will remand the appeal to the trial court until the stay of proceedings is lifted, at which time the appellant may reinstitute the appeal by filing a new notice of appeal in the trial court within 30 days of the date of the entry of the order in the bankruptcy court lifting the stay." Id. at 573 (1), 886 S.E.2d 378. The bankruptcy court granted Modi’s request to voluntarily dismiss his petition on April 18, 2023, and Modi timely filed a new notice of appeal from the attorney fees award. For the reasons explained below, we affirm in part, vacate in part, and remand the case with direction.

In another prior, related appeal, Modi v. India-American Cultural, Association, 362 Ga. App. XXVIII (December 7, 2021) (unpublished) ("Modi I"), this Court included the following background:

IACA is a non-profit community organization based in Cobb County intended to promote Indian culture. Modi is a member of IACA in good standing. As relevant here, Modi[, proceeding pro se] filed suit seeking declaratory and injunctive relief against IACA based on, alleged violations of the organization’s bylaws and IRS rules, as well as violations of Modi’s, and other similarly situated individuals’, First Amendment rights of free speech and association. The crux of Modi’s complaint was that he ‘wanted IACA to stick to its original mission of promoting Indian culture only and stop mixing religion with culture because it’s like mixing oil with water.’ He further alleged that IACA had recently modified its bylaws, without the approval of a majority of its members, mandating that candidates for the board attest that they file income tax in Georgia "thus preventing a free and fair election process." Modi sought class certification of the action.

Modi filed a motion seeking an interlocutory injunction enjoining IACA from conducting its business without proper amendments to its bylaws pending the outcome of his suit. Following a hearing on April 28,2021, the trial court entered an order bn May 5, 2021, denying Modi’s request for an interlocutory injunction.

(Punctuation and footnote omitted.) Slip op. at 2-3. Modi appealed this order, and we affirmed. Id. at 1. We concluded, inter alia, that Modi’s claims were derivative in nature, and "[b]ecause Modi failed to make a proper demand necessary to bring such a derivative claim, the trial court did not err in finding that he lacked standing to pursue the action." Id. at 11 (2) (c).

In March 2022, the trial court held a hearing on IACA’s motion to dismiss Modi’s third amended complaint.¹ At the end of the hearing, the trial court orally granted IACA’s motion and asked IACA’s counsel to draft a proposed order.² According to the trial court, before it could enter a written order, Modi filed his fourth amended complaint and then "proceeded to submit at least eight (8) filings over the course of the next two weeks." In his fourth amended complaint, Modi alleged many of the same issues related to the Ways IACA conducts its business, and brought a

derivative suit seek[ing] declaratory and injunctive relief against IACA for alleged violations of its current bylaws and breach of fiduciary duties by … Managers … towards its members and Corporation’s failure to provide internal accountability mechanisms that resulted in deprivation of members’ natural, inherent, contractual and universal rights of pursuit of happiness in IAGA organized events participation.

(Punctuation and footnote omitted.)

On May 9, 2022, the trial court entered an order panting IACA’s motion to stay and enter a bill of peace. IACA then filed a motion to dismiss, for summary judgment, and for attorney fees under OCGA § 9-15-14. Following a hearing in July 2022, the trial court entered an 18-page order dismissing Modi’s complaint for failure to state a claim, granting summary judgment to IACA, and awarding attorney fees to IACA in the amount of $65,000. In Modi II, we affirmed the dismissal of Modi’s complaint because "the appellate record does not contain the fourth amended complaint or the evidence the trial court relied upon in granting summary judgment to IACA, which included multiple affidavits," and "[i]n the absence of [these], Modi cannot show that the trial court erred in dismissing the complaint or in panting summary judgment." (Footnotes omitted.) 367 Ga. App. at 575 (3), 886 S.E.2d 378.

In this appeal from the attorney fees award following the dismissal of Modi’s petition in bankruptcy, Modi again fails to designate much of the record below for inclusion in the appellate record. Most importantly, the appellate record does not include a transcript of the July 2022 hearing on the motion for attorney fees. Accordingly, our ability to review Modi’s enumerations is limited.³

1. Modi again contends that dismissal of his lawsuit was improper, but the only thing before us in the current appeal is the award of attorney fees to IACA. As stated, this Court affirmed the dismissal, and it is the law of the case. See OCGA § 9-11-60 (h) ("any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be"). See also Hall v. Hill, 366 Ga. App. 285, 291 (1) (b), 882 S.E.2d 34 (2022) ("Under the law of the case doctrine, any issue that was raised and resolved in an earlier appeal is the law of the case and is binding on this Court.") (citation and punctuation omitted).

[1] 2. Modi asserts that the trial court "ignored" and improperly denied his motion to recuse, asking this Court to sanction the trial judge. The record contains "Plaintiff's Motion for Appointment of New Judge for 2nd November 2022 Hearing," which was filed on October 10, 2022. In a November 14, 2022 order, the trial court denied the motion "on the merits" and because it was not served on IACA. Thus, the motion and ensuing order were filed after the trial court's order dismissing Modi's suit and awarding attorney fees and after Modi filed his notice of appeal from that order. As such, Modi could not enumerate this subsequent ruling as error in Modi I. See Hester v. Human, 211 Ga. App. 351, 352 (1), 439 S.E.2d 50 (1993). Compare Murphy v. Murphy, 328 Ga. App. 767, 769 (1) (b), 759 S.E.2d 909 (2014), (in direct appeal from final judgment a party may enumerate as error prior or contemporaneous rulings entered prior to notice of appeal). Our partial remand of the case in Modi I — and Modi's subsequently filed notice of appeal in the current appeal — does not confer jurisdiction over the order denying his motion to recuse. We remanded only that "portion of the appeal involving [the trial court's award] of attorney fees" with direction that Modi could "re-institute his appeal of the attorney fees award." Modi I, 367 Ga. App. at 573-574 (1), 886 S.E.2d 378. Accordingly, the enumeration of error which complains of the recusal order may not be considered.

3. As to the award of attorney fees, Modi contends that (a) the award was not authorized because IACA failed to file a separate motion seeking fees and costs; (b) the trial court was divested of jurisdiction to enter the attorney fee award because he voluntarily dismissed his complaint; (c) the award is "fraudulent" because IACA's insurance was covering the expenses of the lawsuit; (d) the trial court's order fails to specify whether the award was made under subsection (a) or (b) of OCGA § 9-15-14; and (e) the trial court failed to support its award with specific findings of fact and awarded an impermissible lump.

The Trial Court's Award of Attorney Fees

In its detailed, 18-page order, the trial court found that

throughout his dozens of filings, Plaintiff has repeatedly set forth arguments, allegations, and claims he could not have possibly believed would be accepted by this Court and/or that were substantially frivolous, substantially groundless or substantially vexatious. Further, a substantial portion of these filings could have only been submitted to delay the proceedings and/or to harass. Examples of Plaintiff's sanctionable conduct include, but are not limited to, the following.

(Punctuation omitted.) Over the next three pages of its order, the trial court describes instances of sanctionable conduct including, inter alia, (1), Modi's argument/claim that IACA could not assert failure to state a claim as an affirmative defense because " ‘failure to state a claim is a negative defense, which cannot be included with affirmative defenses in an Answer' "; (2) Modi's repeated attempts to bring a freedom of religion claim under the First Amendment of the United States Constitution despite being "repeatedly placed on notice that the Freedom Exercise clauses of the Constitution constrain governments, not private actors such as [IACA]"; (3) Modi's repeated failure to take steps to establish standing despite repeatedly being placed on notice that his various amended complaints/claims presented standing issues; and (4) Modi's attempt to...