341 Ga. App. 626
Ga. Ct. App.2017Background
- Shooter Alley operated an adult entertainment venue; property was annexed by Doraville, which has adult-entertainment ordinances.
- Shooter Alley sued the City challenging those ordinances; the trial court granted the City's motion on the pleadings, dismissed Shooter Alley’s claims, and entered a permanent injunction against Shooter Alley.
- The City later moved for criminal and civil contempt, alleging multiple violations of the injunction; the trial court found Shooter Alley in criminal contempt (fined $15,000) and imposed a prospective civil contempt fine ($10,000 per future violation).
- The trial court awarded the City $17,296.53 in attorney fees and litigation costs under OCGA § 9-15-14(a) and (b) for prosecuting the civil contempt motion; Shooter Alley appealed.
- The Court of Appeals affirmed: it sustained the fee award under § 9-15-14, held Shooter Alley waived a separate evidentiary hearing on fees, and declined to consider Shooter Alley’s constitutional/prior-restraint arguments as unpreserved in the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of civil contempt sanction and awarding fees | Civil contempt here improperly punishes future/uncommitted conduct; criminal contempt cannot support fee awards | Contempt remedies can be civil or criminal depending on relief; fees may be awarded for litigating contempt under § 9-15-14 | Court: Civil contempt fine here was coercive (valid); fees available under § 9-15-14 based on litigating conduct, not as criminal-contempt punishment |
| Requirement of evidentiary hearing on fees | Trial court erred by not holding a hearing and awarding unreasonable fees | Shooter Alley waived hearing by failing to respond and by litigating without objecting; court provided opportunity to contest fees | Court: Hearing generally required but Shooter Alley waived it by conduct; fees supported by City affidavit |
| Apportionment / lump-sum fee award | Lump-sum/unallocated award impermissible; court should separate fees for past violations vs prospective enforcement | Trial court found all contempt-phase positions lacked substantial justification and tied fees to that conduct | Court: Award upheld because trial court determined the same sanctionable conduct warranted fees across contempt proceedings; lump-sum acceptable here given findings |
| Constitutional challenges to injunction / prior restraint | Injunction is an impermissible prior restraint, overbroad, statute unconstitutional as applied | Issues were not timely raised below; trial court did not rule on them | Court: Declined to reach constitutional/prior-restraint arguments — law of the case from Supreme Court transfer: issues unpreserved and precluded |
Key Cases Cited
- Shiv Aban, Inc. v. Georgia Dep’t of Transp., 336 Ga. App. 804 (discussing standard of review for § 9-15-14 awards)
- Grantham v. Universal Tax Sys., Inc., 217 Ga. App. 676 (contempt remedy characterized by court’s remedial action)
- Carey Canada, Inc. v. Hinely, 257 Ga. 150 (distinguishing criminal and civil contempt)
- Hardman v. Hardman, 295 Ga. 732 (rejecting anticipatory breach theory for contempt)
- Murtagh v. Emory Univ., 321 Ga. App. 411 (awarding prospective fines to induce compliance and affirming fee awards under separate authority)
- Minor v. Minor, 257 Ga. 706 (§ 9-15-14 can support fee awards in contempt actions based on litigation conduct)
- Moore v. Moore, 307 Ga. App. 889 (hearing required to award attorney fees absent waiver)
- Williams v. Becker, 294 Ga. 411 (party may waive right to a separate fee hearing by conduct)
- Razavi v. Merchant, 330 Ga. App. 407 (fee awards must be limited to fees caused by sanctionable conduct; lump-sum generally disfavored)
- Tavakolian v. Agio Corp., 304 Ga. App. 660 (waiver of evidentiary hearing by failure to object)
- Armstrong v. Lawyers Title Ins. Corp., 138 Ga. App. 727 (law-of-the-case principles on preserved issues)
- Stephens v. Tate, 147 Ga. App. 366 (preclusion where issues not passed on below)
- Watson v. Frnka, 266 Ga. App. 64 (same)