Bankston v. Warbington
319 Ga. App. 821
| Ga. Ct. App. | 2013Background
- Bankston appeals a OCGA § 9-15-14(b) sanctions award to Warbington for his response to a contempt motion over visitation provisions.
- Trial court found the contempt motion lacked substantial justification, was interposed for harassment, and unnecessarily expanded the proceedings, awarding $2,832.50 in attorney fees and $1,468 for airline tickets.
- The court affirmed the sanction but vacated the attorney-fees amount and remanded for reconsideration; the airline-ticket award was reversed.
- Bankston argued the court should have dismissed the motion due to timeliness; the court declined and ruled the brief timely delivered though not filed promptly.
- Record lacked evidence of the actual attorney fees; the court’s award was based on argument rather than proof, and Bankston did not acquiesce in a waiver of a hearing.
- The decision was issued February 20, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sanctions under 9-15-14(b) justified | Bankston contends no basis for sanctions. | Warbington asserts the contempt motion was harassing and lacked substantial justification. | Sanctions proper; no abuse of discretion. |
| Waiver of evidentiary hearing for fees | Bankston did not waive the right to a hearing. | Bankston agreed the court could consider without a hearing. | Bankston waived the right to an evidentiary hearing. |
| Amount of attorney fees supported by record | There was no evidence establishing the actual fees incurred. | Warbington's costs were justified under the statute. | Vacate amount and remand for proper proof of fees. |
| Recovery of airline-ticket expenses under 9-15-14(b) | Airline-ticket costs were incurred due to the visitation dispute and are recoverable. | Ticket expenses are not recoverable as litigation expenses under 9-15-14(b). | Reversed as to airline-ticket expense. |
Key Cases Cited
- Century Center at Braselton v. Town of Braselton, 285 Ga. 380 (2009) (sanctions standard abuse of discretion; substan tial justification inquiry)
- Murray v. DeKalb Farmers Market, 305 Ga. App. 523 (2010) (evidentiary hearing waiver; method of determining fees under 9-15-14(b))
- Ellis v. Caldwell, 290 Ga. 336 (2012) (necessity of evidentiary hearing on attorney fees; due notice)
- Dave Lucas Co. v. Lewis, 293 Ga. App. 288 (2008) (requirement to prove actual costs and reasonableness)
- Johnston v. Correale, 285 Ga. App. 870 (2007) (prevailing party must prove actual cost and reasonableness)