Unifund CCR Partners v. Mehrlander
309 Ga. App. 685
Ga. Ct. App.2011Background
- Unifund CCR Partners obtained a default judgment against Mehrlander and garnished her assets.
- Mehrlander moved to set aside the default judgment and pursued a counterclaim for malicious garnishment.
- Unifund consented to setting aside the default judgment and dismissed its garnishment action.
- Mehrlander filed a motion for attorney fees and litigation expenses under OCGA § 9-15-14(a)-(b) within 45 days of denial of her counterclaim.
- The trial court awarded fees and costs without a hearing, before Mehrlander and Unifund could fully brief the motion, and without findings of fact or conclusions of law.
- The trial court later attempted to vacate the award, but this occurred after the court had lost jurisdiction and the appeal was granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the award complied with 30-day response rule | Mehrlander argues the court erred by awarding before the 30-day response period elapsed. | Unifund contends the court should have allowed a hearing and timely response before ruling. | Award vacated; remand for hearing and proper briefing. |
| Whether a hearing and findings of fact were required | Mehrlander contends an evidentiary hearing and factual findings were necessary to support the award. | Unifund asserts no explicit requirement for a hearing or findings in the order as issued. | Remand for evidentiary hearing and explicit findings of fact and conclusions of law. |
| Whether the trial court abused its discretion in awarding fees without proper procedure | Mehrlander maintains the decision was improper given lack of procedure and findings. | Unifund maintains the award was within the court's discretion under OCGA § 9-15-14. | Remand with direction to conduct hearing and to justify award with statutory basis and findings. |
Key Cases Cited
- Rescigno v. Vesali, 306 Ga.App. 610 (Ga. App. 2010) (hearing required for attorney-fees awards; standard of review)
- Wallace v. Noble Village at Buckhead Senior Housing, 292 Ga.App. 307 (Ga. App. 2008) (guidance on timing and briefing for fee motions)
- C.A. Gaslowitz & Assocs. v. ZML Promenade, L.L.C., 230 Ga.App. 405 (Ga. App. 1998) (necessity of court findings and procedural due process in fee awards)
- Evers v. Evers, 277 Ga. 132 (Ga. 2003) (statutory basis and findings required to support attorney-fees awards)
- Sawyer v. Sawyer, 253 Ga.App. 619 (Ga. App. 2002) (hearing required on attorney-fees issue)
- Cotting v. Cotting, 261 Ga.App. 370 (Ga. App. 2003) (clarification on basis for fee awards on remand)
- DeRossett Enters. v. Gen. Electric Capital Corp., 275 Ga.App. 728 (Ga. App. 2005) (need for factual findings identifying conduct giving rise to award)
- Meacham v. Franklin-Heard County Water Auth., 302 Ga.App. 69 (Ga. App. 2009) (remand when statutory basis or conduct for award is unclear)
- Note Purchase Co. of Ga. v. Brenda Lee Strickland Realty, 288 Ga.App. 594 (Ga. App. 2007) (remand for hearing and findings as to statutory basis)
- Green v. McCart, 273 Ga. 862 (Ga. 2001) (need for articulating basis for fee award)
- Moore v. Moore, 307 Ga.App. 889 (Ga. App. 2011) (context for appellate review of fee awards)