Robert H. McNair, as Co-Executor of the Estate of W.O. McNair v. Richard "Richie" Harold McNair
805 S.E.2d 655
Ga. Ct. App.2017Background
- Hazel McNair’s 2001 will was filed for probate in Turner County Probate Court; W. O. McNair filed a caveat and prevailed in probate, preventing probate in solemn form.
- Appellees (co-executors named in the will) appealed the probate-court result to Turner County Superior Court; W. O. McNair later died and his son Robert H. McNair (Appellant) was substituted as co-executor and represented the caveat on appeal.
- A jury in superior court returned a verdict probating Hazel McNair’s will in solemn form; thereafter Appellees moved for attorney fees from the Appellant under OCGA § 9-15-14.
- The superior court held an evidentiary hearing and awarded $22,099.75 in attorney fees, using findings that the caveat was interposed for delay/harassment and lacked substantial justification.
- On discretionary appeal, the Court of Appeals reviewed whether the award properly invoked OCGA § 9-15-14(b) and whether the record supported sanctionable conduct limited to the superior-court proceedings; it reversed the fee award for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper statutory basis for fee award | Appellees argued fees under OCGA § 9-15-14(b) were warranted for frivolous/delay conduct | Appellant argued court failed to identify subsection and record did not support (b) findings | Court treated award as under § 9-15-14(b) (language and hearing), and reviewed for abuse of discretion but found award improper |
| Consideration of conduct occurring in probate court | Appellees relied on pre-appeal probate-court conduct as sanctionable | Appellant argued pre-appeal conduct (while probate court had jurisdiction) could not justify fees on appeal and he had prevailed in probate court | Court held superior court improperly relied on conduct that occurred before the appeal—such fees must be reversed |
| Sufficiency of superior-court findings of sanctionable conduct | Appellees pointed to motions, delays, and other conduct in superior court to justify fees | Appellant argued motions (continuance, jury demand, recusal) had merit or no record showing frivolousness; no specifics identified by trial court | Court found superior-court findings unsupported by record (motions not shown frivolous; no evidence of harassment/unnecessary expansion); fee award was abuse of discretion |
| Limitation of fees to sanctionable conduct | Appellees sought whole fee award without separating costs tied to non-sanctionable work | Appellant argued fees must be limited to work caused by sanctionable conduct and cannot include fees from unsuccessful earlier proceedings | Court reiterated that fees must be limited to sanctionable conduct and cannot recover costs for successful defense in probate court; reversal required because award exceeded permissible scope |
Key Cases Cited
- Ellis v. Caldwell, 290 Ga. 336 (Georgia 2012) (language tracking § 9-15-14(b) supports fee basis and party entitled to hearing)
- Fulton County School Dist. v. Hersh, 320 Ga. App. 808 (Ga. Ct. App. 2013) (different appellate standards for (a) vs (b); importance of specifying statutory subsection)
- Dept. of Transp. v. Franco’s Pizza & Delicatessen, 200 Ga. App. 723 (Ga. Ct. App. 1991) (limits on awarding fees tied to conduct)
- Doster v. Bates, 266 Ga. App. 194 (Ga. Ct. App. 2004) (reversal where record lacks evidence of harassment or unnecessary expansion)
- Harkleroad v. Stringer, 231 Ga. App. 464 (Ga. Ct. App. 1998) (fees must be limited to those incurred because of sanctionable conduct)
- The Gibson Law Firm v. Miller Built Homes Inc., 327 Ga. App. 688 (Ga. Ct. App. 2014) (vacatur where record did not support findings of sanctionable conduct)