O'Neal v. Crawford Cnty.

339 Ga.App. 687

792 S.E.2d 498

O'Neal

v.Crawford County, Georgia

A16A0912

Court of Appeals of Georgia.

November 15, 2016

Reconsideration Denied November 29, 2016

Duke Riley Groover, Macon, Bonnie Michelle Smith, Warner Robins, for Appellant.

Duke Riley Groover, Macon, Natalie Diane Stroud, for Appellee.

Doyle, Chief Judge.

Crawford County Coroner David Allen O'Neal filed a declaratory judgment/mandamus action against Crawford County ("the County"). After granting summary judgment to the County, the trial court assessed attorney fees against O'Neal and his counsel pursuant to OCGA § 9–1–14 (a) and (b), awarding the County not only its attorneys' fees and expenses, but also requiring that O'Neal and his counsel repay the attorney fees he incurred and that were paid directly to his attorney by the County on his behalf. In this discretionary appeal, O'Neal argues that the trial court erred by requiring him to repay the County for the sums it paid to his attorney.¹ For the reasons that follow, we reverse in part and affirm in part.

O'Neal is the long-time coroner for the County. The record shows that in 2013, he requested the County to increase his budget to allow for a County owned vehicle,² nicer office accommodations "as any other elected official," and home internet and phone service. The County took his requests under advisement and in April, 2014, O'Neal formally requested the County approve funding of an independent attorney as he was considering bringing a cause of action against the County. The Board of Commissioners voted to approve his request for "funding of an independent attorney."³ , and paid O'Neal's legal fees directly to his attorney.

O'Neal then filed his petition for declaratory judgment, a writ of mandamus, injunctive relief, and judicial review, seeking to compel the County to provide him with certain items, including contingent expenses, a vehicle, a secure office, and internet, telephone, and fax services at his home, citing a local act.⁴ The County moved for summary judgment, and the trial court granted the motion as to all counts, finding that O'Neal's petition was "meritless and frivolous." In its order, the trial court noted that "[m]andamus will issue against a public official only where a petitioner has demonstrated a clear legal right to relief or a gross abuse of discretion."⁵ Because the County was vested with discretion in providing any supplies, the trial court found that O'Neal could prove neither a clear legal right nor an abuse of discretion. The court also found that O'Neal improperly brought the action against the County rather than its individual Board members. Further, the court castigated O'Neal for his "utter fail[ure]" to respond to the motion for summary judgment or to submit admissible evidence to prove his case, and it invited the County to seek attorney fees and costs as authorized by OCGA § 9–15–14.

Accepting the trial court's invitation, the County moved for attorney fees under OCGA § 9–15–14 (a) and (b), seeking payment of its own attorney fees and to recoup the payments it made to O'Neal's attorney. Following a hearing, the trial court entered a lengthy order requiring O'Neal to pay $106,670.68 in attorney fees pursuant to OCGA § 9–15–14 (a) and (b), including $36,183 to reimburse the County for money it paid to O'Neal's attorney.⁶ The trial court noted that permitting the recoupment of such attorney fees as an expense of litigation was "a question of first impression," but concluded that such an interpretation was consonant with the purpose of OCGA § 9–15–14 to punish or deter and also to recompense litigants.

O'Neal filed an application for discretionary review of the trial court's ruling permitting the County to recoup the money it paid to O'Neal's attorney. This Court granted the application, and this appeal followed.

1. In his appellate brief, O'Neal challenges the entire $106,670.68 attorney fee award, including both the portion the County paid for its own attorneys and that portion it paid directly to O'Neal's attorney. In his application for discretionary review, however, O'Neal challenged only that portion of the award permitting the County to recoup the fees paid to his attorney. In discretionary appeals, review is "limited to the errors actually enumerated in the application."⁷ Accordingly, we need address only that portion of the award requiring O'Neal to repay the County the attorney fees it paid directly to O'Neal's attorney.

We note, however, even if O'Neal had not waived his argument that the trial court erred by requiring him to pay the County for the fees it paid to its own attorneys, his argument is premised on a contention that the County entered into an agreement to pay its own attorney fees. Because he has failed to provide any proof in the record showing such an agreement, and the record supports the trial court's findings that O'Neal violated OCGA § 9–15–14 (a) and (b) and the fees and expenses incurred by the County were reasonable and necessary, this argument is without merit, and we affirm the trial court's grant of summary judgment as to the award to the County encompassing its own attorney fees and expenses.

2. O'Neal contends that the trial court erred by permitting the County to recoup the attorney fees it paid directly to his attorney because he and the County entered into an agreement that it would do so, citing Rivergate Corp. v. McIntosh⁸ for the general principle that parties are free to contract about any subject matter, and courts will enforce the agreement as written unless it is prohibited by statute or public policy.⁹ O'Neal is correct that parties are free to contract about any subject matter and agreements to pay for another's attorneys fees, and expenses of litigation are enforceable.¹⁰ The County, however, vehemently denies that it entered into any contract to pay legal fees, contending there was no consideration for any such agreement, and thus no contract as a matter of law.

Pretermitting whether there was sufficient consideration to form a valid contract, however, the trial court improperly allowed the County to recoup attorney fees paid to O'Neal's attorney pursuant to County approval as an expense of litigation. OCGA § 9–15–14 provides in relevant part:

(a) In any civil action in any court of record of this [S]tate, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other

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