315 Ga. App. 618
Ga. Ct. App.2012Background
- Water's Edge sued Louis and Joann Reliford for violating a restrictive covenant by not finishing a structure on their property.
- Relifords were served but did not answer, causing default on Feb. 22, 2011.
- Water's Edge amended the complaint on Apr. 4, 2011 to seek attorney fees under OCGA § 13-6-11.
- Default judgment was entered May 3, 2011 enjoining continued violation and ordering tearing down the structure.
- An evidentiary hearing on attorney fees was held but not transcribed; trial court denied fees.
- On appeal, Water's Edge challenges the denial of attorney fees under OCGA § 13-6-11 and argues transcript is unnecessary for review; the court must review the fee issue on the record available.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Water's Edge is entitled to attorney fees under OCGA § 13-6-11. | Water's Edge contends Relifords acted in bad faith or caused unnecessary trouble and expense. | Relifords argue no bad faith, stubborn litigiousness, or unnecessary trouble. | No reversal; trial court’s factual finding on lack of bad faith/expense stands. |
| Whether the absence of a transcript precludes review of the fee issue. | Record lacks transcript but Water's Edge insists review is possible from the order. | Without transcript, appellate review is not possible under the record rule. | Affirm that lack of transcript requires presuming the trial court's findings are correct. |
| Whether Water's Edge could obtain a default-judgment on attorney fees when not pleaded in the original complaint. | Original complaint sought equitable relief; amended complaint later sought fees; default on fees should be allowed. | OCGA § 9-11-54(c)(1) limits relief to what is prayed for; amended pleading cannot widen scope. | Default judgment on fees not allowed; trial court properly held hearing to determine entitlement. |
| Whether the trial court correctly limited the relief to what was prayed in the complaint under OCGA § 9-11-54(c)(1). | Since fees were prayed for in the amended complaint, they should be awarded. | Relief in default cannot exceed that prayed for, especially when amended after default. | No error; the relief was limited, and the court conducted an evidentiary determination. |
| Whether the Relifords’ conduct justified an award of attorney fees under OCGA § 13-6-11. | Bad faith or unnecessary trouble should support fees. | No evidence of bad faith or unnecessary expense proven. | Court supported trial court’s finding that there was no basis for an award. |
Key Cases Cited
- Fresh Floors v. Forrest Cambridge Apartments, 257 Ga.App. 270 (Ga. App. 2002) (fees may be awarded when pleadings seek them and default follows)
- Floyd v. First Union Nat. Bank of Ga., 203 Ga.App. 788 (Ga. App. 1992) (fees and expenses may be awarded in appropriate default circumstances)
- Hartford Ins. Co. v. Mobley, 164 Ga.App. 363 (Ga. App. 1982) (early authority on costs and expenses in default context)
- Brannon Enterprises v. Deaton, 159 Ga.App. 685 (Ga. App. 1981) (limits on award of fees in default judgments)
- EnduraCare Therapy Mgmt. v. Drake, 298 Ga.App. 809 (Ga. App. 2009) (amended pleadings do not admit new factual allegations on default)
- Jayson v. Gardocki, 221 Ga.App. 455 (Ga. App. 1996) (amended complaints may introduce new fee claims not admitted by default)
- Ga. Farm Bureau Mut. Ins. Co. v. Williamson, 124 Ga.App. 549 (Ga. App. 1971) (default relief limited to relief prayed for in complaint)
- Orkin Exterminating Co. v. Townsend, 136 Ga.App. 50 (Ga. App. 1975) (non-responsive pleading admissibility in default context)
- Rice v. Lost Mountain Homeowners Assn., 269 Ga. App. 351 (Ga. App. 2004) (trial court acts as trier of fact in fee proceedings)
- City of Hoschton v. Horizon Communities, 287 Ga. 567 (Ga. 2010) (any evidence standard of review for fee awards)
- Royal v. Blackwell, 289 Ga. 473 (Ga. 2011) (fees under OCGA § 13-6-11 depend on bad faith/stubborn litigiousness)
- Covington Square Assocs. v. Ingles Markets, 287 Ga. 445 (Ga. 2010) (guides review of fee awards in equity)
- Stamps v. Nelson, 290 Ga.App. 277 (Ga. App. 2008) (default judgment limitations and scope)
- Sanders v. Daniel, 302 Ga.App. 350 (Ga. App. 2010) (evidentiary record required for fee appeal)