Ettrick v. Suntrust Mortgage, Inc.
824 S.E.2d 727
Ga. Ct. App.2019Background
- Raquel Ettrick defaulted on a SunTrust mortgage; SunTrust foreclosed and later removed personal property from the home.
- Ettrick sued SunTrust alleging wrongful foreclosure, fraud, breach of contract, trespass/wrongful eviction, and related claims.
- The trial court granted summary judgment to SunTrust in Feb 2016; this Court affirmed on appeal in Feb 2017 under Court of Appeals Rule 36.
- After remand, SunTrust moved for attorney fees under OCGA § 9-15-14; Ettrick moved to set aside the summary judgment based on purportedly "new" evidence and sought sanctions against SunTrust for conduct during removal of property.
- The trial court held an evidentiary hearing (transcript not in record), denied Ettrick’s motions, and awarded SunTrust attorney fees against Ettrick and her counsel jointly and severally under OCGA § 9-15-14(b).
- Ettrick appealed the denial of relief and the fee award; this Court affirmed, finding no reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in refusing to set aside its prior summary judgment based on "newly discovered" evidence | Ettrick argued there was newly discovered evidence warranting setting aside summary judgment | SunTrust argued the asserted evidence did not change the merits and prior summary judgment was valid (and this Court already affirmed) | Court rejected Ettrick's claim as meritless and affirmed denial |
| Whether the trial court erred by denying sanctions against SunTrust for filing/withdrawing a motion for supersedeas bond | Ettrick contended SunTrust’s conduct warranted sanctions | SunTrust disputed misconduct and procedurally defended its actions | Court found no reversible error in denying sanction request |
| Whether attorney fees under OCGA § 9-15-14(b) were properly awarded | Ettrick argued fees were improper and counsel claimed lack of notice she could be personally sanctioned | SunTrust argued the suit (or parts) lacked substantial justification and fees are authorized against parties or counsel | Court affirmed fee award under § 9-15-14(b) as within trial court discretion and supported by factual findings |
| Whether mediation statements (confidential) improperly considered vitiated the fee award | Ettrick contended a mediator’s confidential remark was improperly relied upon | SunTrust relied on other factual bases for sanctions; trial court did not base holding solely on the mediator remark | Court held any erroneous consideration of the mediation remark was harmless because the award rested on independent findings |
Key Cases Cited
- O’Keefe v. O’Keefe, 285 Ga. 805 (Ga. 2009) (§ 9-15-14 remedies serve to punish/deter and to recompense victims of abusive litigation)
- Haggard v. Board of Regents of University System of Georgia, 257 Ga. 524 (Ga. 1987) (standards of review for § 9-15-14 awards)
- Cohen v. Rogers, 341 Ga. App. 146 (Ga. Ct. App. 2017) (appellate review of § 9-15-14 discretionary awards)
- Andrew, Merritt, Reilly & Smith v. Remote Accounting Solutions, 277 Ga. App. 245 (Ga. Ct. App. 2006) (absence of transcript requires presumption that evidence supports trial court findings)
- Brunswick Floors v. Carter, 199 Ga. App. 110 (Ga. Ct. App. 1991) (support for upholding fee awards when record supports court findings)
- Wall v. Thurman, 283 Ga. 533 (Ga. 2008) (notice and opportunity required before imposing § 9-15-14 sanctions on a person)
- McConnell v. McConnell, 231 Ga. 219 (Ga. 1973) (appellate affirmance in absence of transcript where trial court conducted hearing)
- Leadership Preparatory Academy v. Butler, 336 Ga. App. 275 (Ga. Ct. App. 2016) (affirmance principles when transcript is absent)
- Atlanta Public Schools v. Diamond, 261 Ga. App. 641 (Ga. Ct. App. 2003) (procedural considerations when sanctions and notice issues raised)
- Carden v. Carden, 266 Ga. App. 149 (Ga. Ct. App. 2004) (harmless-error analysis regarding improperly considered evidence)
- Goss v. Mathis, 188 Ga. App. 702 (Ga. Ct. App. 1988) (mediation confidentiality and related evidentiary issues)
- Martini v. Nixon, 185 Ga. App. 328 (Ga. Ct. App. 1987) (mediation confidentiality principles)