Trial Notebook : Frivolous appeal to Superior Court and Court of Appeals

O.C.G.A. § 9-15-14(b) provides: "The court may assess reasonable and necessary attorney fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defendant in action, or any part thereof, that lacked substantial justification or that the action, or any part thereof was interposed for delay or harassment … As used in this Code section, 'lacked substantial justification' means substantially frivolous, substantially groundless, or substantially vexatious." Also, O.C.G.A. § 9-15-14(h) expressly provides that, "When a case is appealed from the magistrate court, the appellate may seek litigation expenses incurred below if the appeal lacks substantial justification." Although an "appeal for a decision of a magistrate court is [itself] 'a de novo investigation[,]' [cites]." Howe v. Roberts, 259 Ga. 617, 385 S.E.2d 276 (1989). We conclude that O.C.G.A. § 9-15-14 may be applied when the Superior Court is sitting in an appellate capacity. Every court has power "[t]o control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, and every matter appertaining thereto [the period]. All cited in Contract Harvesters v. Clark, 211 Ga. App. 297, 439 S.E.2d 30 (1993).

Reasonableness

Whether or not reasonable grounds exists is an issue of fact for the board to determine. See American Motorist Insurance Co., v. Corbett, 144 Ga. App. 854, 242 S.E.2d 748 (1978).

Fees may not be awarded when the matter was contested on reasonable grounds. See Pacific Employers Insurance Co., v. Peck, 129 Ga. App. 439, 200 S.E.2d 151 (1973).

For failure to timely controvert. See Georgia Power Company v. Safford, 171 Ga. App. 387, 319 S.E.2d 537 (1984).

Reasonable grounds. See Carroll v. Dan River Mills, 169 Ga. App. 558, 313 S.E.2d 741 (1984).

Fees for failure to controvert within 21 days of the incident. The term without reasonable grounds might be case to the issue for failure to controvert. See O.C.G.A. §34-9-221, See Moon v. Cook & Co., 170 Ga. App. 569, 317 S.E.2d 642 (1984).

Before attorney's fees may be assessed, there must be some evidence as to their reasonableness. Anything to the contrary is overruled. See Copelan v. Burrell 174 Ga. App. 63, 329 S.E.2d 174 (1985).

In calculating attorney fees; the penalties assessed may be included in the calculating as "compensation" benefits. See Hardee's v. Bailey, 180 Ga. App. 332, 349 S.E.2d 211 (1986).

Evidence needed to establish amount due to claimant's attorney. See Hardee's v. Bailey, 180 Ga. App. 332, 349 S.E.2d 211 (1986).

Weeks

"An award of attorney's fees pursuant to O.C.G.A. § 34-9-108 must be predicated upon a determination that the employer acted, in whole or in part, without reasonable grounds. Whether reasonable grounds exist is an issue for the trier of fact to determine." American Motorists Ins. Co. v. Corbett, 144 Ga. App. 845, 242 S.E.2d 748 (1978). Assessment of attorney's fees is discretionary with the Board. Grier v. Proctor, 195 Ga. App. 116, 393 S.E.2d 18 (1990).

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