345 Ga. App. 826
Ga. Ct. App.2018Background
- In June 2017, after a dispute about incomplete home repairs, Schad (a Jasper County building inspector) came to Durrance’s workplace in uniform and a county truck; the encounter escalated into a heated argument and Schad was later served with a trespass warrant.
- Schad filed a pro se petition for a stalking temporary protective order (TPO) against Durrance two days later, alleging she made threatening statements and put him in reasonable fear.
- The stalking hearing was continued; Schad voluntarily dismissed the petition before a merits ruling.
- Durrance moved for costs and attorney fees under OCGA § 16-5-94 and OCGA § 9-15-14 (a) and (b); the trial court denied the motion after an evidentiary hearing.
- On appeal, the Court of Appeals affirmed denial under OCGA § 16-5-94 (discretion to award fees exists only when an order or consent agreement is entered) but reversed as to OCGA § 9-15-14(a), finding Schad’s stalking claim lacked any factual support and thus fees must be awarded.
Issues
| Issue | Plaintiff's Argument (Durrance) | Defendant's Argument (Schad) | Held |
|---|---|---|---|
| Whether trial court erred by denying fees under OCGA § 16-5-94 | §16-5-94 authorizes awarding costs and fees after stalking petitions | Trial court properly declined because no protective order or consent agreement was entered | Affirmed: statute permits fees only where court order or consent agreement is entered; petition dismissed before merits |
| Whether trial court erred by denying fees under OCGA § 9-15-14(a) | Schad’s stalking petition lacked any factual or legal merit; fees required for objectively baseless claims | Petition was brought because Schad felt threatened and to protect his employment; dismissal justified | Reversed: evidence showed no factual basis for stalking claim; fees under §9-15-14(a) must be awarded |
| Whether fees under OCGA § 9-15-14(b) should be awarded | Claims for statutory bad-faith litigation relief also appropriate | Trial court discretion to deny under (b) | Not addressed on merits because (a) entitlement resolved in Durrance’s favor |
| Remedy and remand | Award reasonable attorney fees and costs incurred defending against the petition | N/A | Case remanded for evidentiary hearing to determine reasonable fees and costs |
Key Cases Cited
- De Louis v. Sheppard, 277 Ga. App. 768 (trial court may award fees under §16-5-94 only when order or consent agreement entered)
- Deal v. Coleman, 294 Ga. 170 (plain statutory language governs award of fees)
- Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243 (statutory interpretation presumes legislature meant what it said)
- Russell v. Sparmer, 339 Ga. App. 207 (standards for awarding fees under OCGA §9-15-14(a))
- Omni Builders Risk v. Bennett, 325 Ga. App. 293 (no evidence of factual merit requires awarding fees under §9-15-14(a))
- Southland Outdoors, Inc. v. Putnam County, 265 Ga. App. 399 (affirming award of fees where position lacked factual or legal support)
- Brown v. Kinser, 218 Ga. App. 385 (trial court abused discretion by denying fees when no evidentiary merit exists)
- Shiv Aban, Inc. v. Georgia Dep’t of Transp., 336 Ga. App. 804 (fee awards determined by evidence of reasonable value of services)