The general rule is that “an award of attorney fees and expenses of litigation are not available to a prevailing party unless authorized by statute or contract.” Cary v. Guiragossian, 270 Ga. 192, 195(4), 508 S.E.2d 403 (1998). Georgia law generally follows federal law, allowing the Court to sanction parties and their attorneys for frivolous claims, defenses or other positions. O.C.G.A. § 9-15-14(a) and (b) provide:
(a) In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney’s fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party’s attorney, or against both in such manner as is just.
(b) The court may assess reasonable and necessary attorney’s 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 defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.
In Estate of Ferrell, 363 Ga. App. 8 (2022), Alvin Ferrell filed a petition to probate his mother’s Will in solemn form. His siblings, Jerry and Larry, filed a caveat contesting the Will. Following a hearing, the Probate Court dismissed the caveat and admitted the Will for probate because “the Caveators failed to offer evidence supporting their challenge or rebutting the witness testimony provided by the Appellant.” Alvin then filed a motion for attorney’s fees “because the Caveators lacked any justiciable issue of law or fact, or alternatively, the Caveators’ claims lacked substantial justification, were interposed for harassment, and unnecessarily expanded the proceeding.” The probate court denied the motion and an appeal followed concerning whether attorney’s fees should have been awarded.
The Court of Appeals reversed, finding that attorney’s fees should have been considered. Under subsection (a) of OCGA § 9-15-14 The Court ” must affirm an award under subsection (a) if there is any evidence to support it.” Subsection (b) is reviewed “for abuse of discretion.”
The Court of Appeals found that “Caveators raised three primary grounds for contesting the Decedent’s will: (1) the Decedent lacked testamentary capacity, (2) the Appellant exerted undue influence on the Decedent, and (3) the Appellant “caused the `rush to death’ of the Decedent.” But the Caveators produced no evidence demonstrating the factual merit of their claims. There was no transcript but the Probate Court’s Order included detailed findings of fact. It stated that none of the testimony Caveators offered “even remotely suggested that Decedent was coerced, did not know the object of her bounty, or that she was unable to come up with a distribution scheme of her property.”
Thus, “the [probate] court’s order [dismissing the caveat] is clear that the court found no justiciable issue of law or fact that supported the [Caveators’] position.
The case was reversed and remanded for an evidentiary hearing on the amount of reasonable fees incurred by the Appellant.
