|Justice Hines and Justice Melton of the Georgia Supreme Court|
(C) Curtis Compton / AJC / Cox Communications
A damage award of up to ten (10%) percent of the underlying money judgment, may be awarded against an appellant who seeks an appeal for delay only. A penalty of $2,500 may be imposed by the Georgia Supreme Court, pursuant to Georgia Supreme Court Rule 6 and similar $2,500 penalty may be imposed by the Georgia Court of Appeals under its Rule 15.
I. APPELLATE COURT AUTHORITY TO
AWARD PENALTIES AND FEES
In an appellate setting there are three (3) authorities that authorize the imposition of damages or penalties for frivolous appeals. Those authorities are: (1) OCGA § 5-6-6, (2) Supreme Court Rule 6, and (3) Court of Appeals Rule 15. If there is a money judgment in the lower court, OCGA § 5-6-6 damages, ten (10%) percent of the lower court judgment, may be sought in either the Supreme Court or the Court of Appeals for defense against a frivolous appeal. Warnock v. Davis, 267 Ga. 336, 478 S.E.2d 124 (1996). If the judgment appealed is not a money judgment, the appellee party must resort to Rule 6 in the Supreme Court or Rule 15 in the Court of Appeals to obtain a frivolous appeal penalty.
A. OCGA § 5-6-6: The 10% Appeal Penalty
Under OCGA § 5-6-6 an appellant whom the appellate court determines brought an appeal solely for delay may be fined ten (10%) percent of the judgment for damages for prosecuting a frivolous appeal.
OCGA § 5-6-6 states in its entirety:
When in the opinion of the court the case was taken up for delay only, 10 percent damages may be awarded by the appellate court upon any judgment for a sum certain which has been affirmed. The award shall be entered in the remittitur.
The ten (10%) percent damage rule has been the law of Georgia since at least 1908. Moore & Jester v. Smith Machine Co., 4 Ga. App. 151, 60 S.E. 1035, 1036 (1908). In 1908 the Court of Appeals initially wrote of this rule:
If, after reviewing the whole matter, we believe that the plaintiff in error is presenting a bona fide contest over a colorable matter, though his view of the law may not in fact be well founded, or that he is seeking a ruling upon an open or doubtful question, damages will be refused. But, when the record discloses that the plaintiff in error has no just case, that no new question of law is involved, and the record is full of those things which every judge and every lawyer recognizes as indicia of an attempt to fight merely for time, justice demands that we overcome any personal hesitancy we may have, and that we add an award of damages to the judgment of affirmance. Id.
OCGA § 5-6-6 establishes the requisite elements for assessing damages for a frivolous appeal: (1) the appellate court must find that the appeal was filed for delay only, and (2) that there is a money judgment for a sum certain in the lower court upon which a 10% can be calculated. Warnock v. Davis, supra; Hatchett v. Hatchett, 240 Ga. 103, 239 S.E.2d 512(1977); Atlanta Gas Light Co. v. Slaton, 117 Ga. App. 317, 160 S.E.2d 414 (1968). Before the award is made, the Court must be completely satisfied that the appeal was initiated solely for the purpose of delay before ordering a penalty. Warnock v. Davis, supra; Stone v. Cook, 190 Ga. App. 11, 378 S.E.2d 142 (1989); Rackard v. Merritt, 114 Ga. App. 743, 152 S.E.2d 701 (1966).
Regardless of whether a case lacks merit, an appellant will not be sanctioned unless it is clearly apparent that the appeal was brought only to evade a judgment. Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940). While non-meritorious, if an appeal is not so palpably without merit as to profess no other conclusion than it was filed to delay or evade judgment, then sanctioning under OCGA § 5-6-6 is precluded. Taylor v. Bentley, 166 Ga. App. 887, 305 S.E.2d 617 (1983); ALE-8-One of America, Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506, 305 S.E. 2d 14 (1983); Great Atl. & Pac. Tea Co., Inc. v. Burgess, 157 Ga. App. 632, 278 S.E.2d 174 (1981).
Some cases decided under OCGA § 5-6-6 are listed in the endnotes. 
B. Supreme Court Rule 6
The Georgia Supreme Court may sanction parties and appellate counsel up to $2,500.00 in penalties for a frivolous appeal. The Rule states as follows:
Rule 6. Frivolous Appeal. The Court may, with or without a motion, impose a penalty not to exceed $2,500 against any party and/or party's counsel in any civil case in which there is a direct appeal, application for discretionary appeal, application for interlocutory appeal, petition for certiorari, or motion which the Court determines to be frivolous. The party or party's counsel may respond to such a motion within 10 days or, if no motion was filed, file a motion for reconsideration within 10 days of receipt of the order. The imposition of such penalty shall constitute a money judgment in favor of Appellee against appellant or appellant's counsel or in favor of appellant against Appellee or apple’s counsel, as the Court directs. Upon filing of the remittitur in the trial court, the penalty may be collected as are other money judgments.
Rule 6 shows that the target of fees now has at least 10 days to respond to a Rule 6 motion and it is now quite clear that the client, not the Court or some other party, is entitled to the proceeds of any Rule 6 award.
It is interesting to note that the next Supreme Court Rule, Rule 7 Sanctions, allows the Supreme Court to hold the appellate attorney in contempt and/or seek a revocation to the appellate attorney’s Bar license. “Breach of any of these Rules may subject the offender to contempt and/or revocation of his or her the license to practice law.” Id.
In perhaps the poster child case for the imposition of Rule 6 frivolous appeal fees, the Supreme Court awarded $2,500.00 against Morton Rolleston, Morton Rolleston, Jr. Living Trust v. Kennedy, 277 Ga. 541, 591 S.E.2d 834 (2004). After Rolleston lost every conceivable argument in Living Trust v. Kennedy, supra, he appealed substantially the same issues in Morton Rolleston, Jr., Living Trust v. Estate of Sims, et. al., (2 cases), 280 Ga. 32, 622 S.E.2d 849 (2005).
Since the Supreme Court determined that the second appeal was a naked appeal with no issues and that all issues had previously been determined against the Trust in the prior appeal, the Supreme Court imposed the maximum appeal penalties for both cases. That is, the Supreme Court imposed a $2,500.00 penalty for Case No. S0581899 and a $2,500.00 penalty for the appeal of Case No. S0581900.
Chief Justice Sears concurred specially in supporting the award of $5,000.00 of sanctions writing:
Morton Rolleston fully deserves the sanctions imposed by the majority in this case, as his frivolous and reprehensible conduct has caused needless hardship for his opponents in this litigation. In my opinion, however, Rolleston has also disgraced the legal profession generally, and has thereby forfeited the privilege of practicing law in this state. Accordingly, this court should utilize its inherent authority to order that he be disbarred. Rolleston v. Sims, supra, at 33.
While Justice Sears did not cite Rule 7, Morton Rolleston, Jr., was disbarred in 2007. In the Matter of Moreton Rolleston, Jr., 282 Ga. 513, 651 S.E.2d 739 (2007).
C. Court of Appeals Rule 15
The Court of Appeals Rule analogous to Supreme Court Rule 6 is Rule 15. Court of Appeals Rule 15 provides as follows:
Rule 15. No Prosecution, Frivolous Appeals and Penalties.
(a) On the call of the case for argument, if the appellant does not appear, and has not filed a brief, the Court may dismiss the appeal for want of prosecution.
(b) The panel of the Court ruling on a case, with or without motion, may by majority vote impose a penalty not to exceed $2,500.00 against any party and/or party's counsel in any civil case in which there is a direct appeal, application for discretionary appeal, application for interlocutory appeal, or motion which is determined to be frivolous.
(c) The imposition of such penalty shall constitute a money judgment in favor of appellee against appellant or appellant's counsel or in favor of appellant against appellee or apple’s counsel, as the Court directs. Upon filing of the remittitur in the trial court, the penalty may be collected as are other money judgments.
Subsection (a) provides for the dismissal of the appeal, if the appellant does not appear at oral argument or an Appellant’s Brief was not filed. Rule 15(b) sets the monetary amount and Rule 15(c) provides that the penalty may be collected as money judgment upon remittitur.
Recent cases decided under Rule 15 are listed in the endnotes .
D. Recent Decisions Concerning “Frivolous Appeals”
1. Frivolous Confirmation Action Appeal
Confirmation actions post foreclosure may now draw penalties. As the number of foreclosures continues to rise the number of deficiency confirmation judgments, OCGA § 44-14-161, rises with that number. The Court of Appeals, perhaps tired of writing on the same non-meritorious issues, has recently issues stern warnings about appeals of confirmation actions. Writing through Judge Mikell, the Court of Appeals imposed frivolous penalties against a promissory note debtor who took an appeal with no substantive basis other than the bank sued on the promissory note without proceeding (before or after the action on the note) against the secured collateral. The Court wrote:
We [the Court of Appeals] now reiterate the rule for the benefit of the bench and bar: [a] creditor who holds a promissory note secured by deed is not put to the election of remedies as to whether he shall pursue upon the note or exercise the power of sale contained in the deed, but he may do either, or 'pursue both remedies concurrently until the debt is satisfied.'" DuPree v. Sun Trust Bank, 305 Ga. App. 507, 699 S.E.2d 846, 847 (2010).
2. Frivolous Appeal Over Breached Settlement Agreement
In a case where the Court of Appeals found no basis for appealing the breach of a settlement agreement, the Court of Appeals awarded a frivolous appeal penalty against the attorneys who appealed (apparently their own breach) the breach of a mutual settlement agreement. The agreement between one firm, appellant, and the other firm, appellee, called for multiple installments of the payment of attorneys' fees (presumably from dividing the fee associated with the recovery in a case). When the first payment made by appellant to appellee was dishonored, appellee immediately sued for enforcement. Judgment granted to Appellee. The Court of Appeals found the appeal to be frivolous writing:
Appellee has requested that this court impose sanctions for frivolous appeal against appellant. Court of Appeals Rule 15(b) provides that this court may impose a penalty not to exceed $2,500.00 against any party and/or any party's counsel in a civil case in which there is a direct appeal which is determined to be frivolous. "When the law is indisputably clear concerning the issues raised on appeal, this court may impose frivolous penalties." Because appellants here "had no valid reason to anticipate reversal of the trial court's orders, we conclude that this appeal was brought only for the purposes of delight [, and,] therefore, assess a penalty for frivolous appeal against [appellant] in the amount of [$2,500.00]." The trial court is hereby directed to enter judgment for $2,500.00 penalty against appellant and in favor of appellee upon the return of the remittitur. Henderson v. Schklar, 303 Ga. App. 875, 695 S.E.2d 323, 326 (2010).
3. Frivolous Appeal Penalties against a Court Clerk
In a strongly worded opinion, the Court of Appeals, Presiding Judge Smith, upheld an OCGA § 9-15-14 Award against Cathelene T. Robinson, the Clerk of the Superior Court of Fulton County, for failure to timely transmit a record to the Georgia Court of Appeals and for filing frivolous defenses to the claim. Robinson v. Glass, 302 Ga. App. 742, 691 S.E.2d 620 (2010).
Cathelene T. Robinson, the clerk of the Superior Court of Fulton County, appeals a trial court order awarding attorney fees under OCGA § 9-15-14 in a mandamus petition filed by Stuart D. Glass to compel Robinson to transmit a record to this court. Because Robinson's office did not follow the statutory procedure, failed to transmit the record in a timely fashion, and interposed frivolous contentions in its answer, the trial court correctly found that Robinson's position was " unsupported by a sufficient factual or legal basis" and caused Glass to incur unnecessary trouble and expense. We therefore affirm.
As the trial court noted in its order, in March 1995 Glass appealed an adverse decision of the Atlanta Civil Service Board to Fulton County Superior Court. In June 2007, the superior court affirmed the board's decision, and Glass filed an application for [302 Ga.App. 743] discretionary appeal with this court. That application was granted on July 18, 2007, and on July 24, 2007, Glass filed his notice of appeal.
After three months passed with no preparation of the record or bill of costs, Glass's counsel began telephoning the Fulton County Superior Court clerk's office. He testified that he made approximately five telephone calls, that an assistant clerk promised him each time that she would check on the status of the record, and that no one ever called him back. On January 8, 2008, counsel prepared a letter to the supervisor of the Appeals Section inquiring about the status of the record. This letter was never answered. After receiving no response to his letter, Glass filed a petition for mandamus on February 2, 2008.
Robinson answered, asserting that Glass had failed to state a claim, that he had no right to seek relief, that he had adequate remedies at law, and that his claims were barred by laches and mootness. She also denied knowledge of the law's requirements. Robinson moved to have the petition dismissed as moot, claiming that " [f]or reasons beyond the scope of this motion, the record did not get prepared due to a lack of communication." Finally, she alleged that Glass was stubbornly litigious for refusing to pay court costs. But the bill of costs is dated February 26, 2008, five days after Glass filed his petition for mandamus, and it was promptly paid by Glass's counsel.
[ * * * ]
Second, the construction urged by Robinson would thwart the purposes of OCGA § 9-15-14. A public officer that refuses or neglects to obey a plain statutory mandate for almost six months, thereby forcing a citizen to go to the trouble and expense of filing a mandamus petition in order to obtain what he is entitled to by law, and furthermore files an answer denying that the citizen is entitled to relief, should not be able to escape responsibility for his or her inaction by belatedly complying with the law a few days before a scheduled hearing. We have held, in the context of frivolous appeal penalties under Court of Appeals Rule 15, that public officials have a particular responsibility to ensure that they have a reasonable basis for their positions in litigation, because they represent " a government agency spending the taxpayers' money...." Fulton County Bd. of Tax Assessors v. Harmon Bros. Charter Svc., 261 Ga.App. 534, 538, 583 S.E.2d 179 (2003); see also Ferdinand v. City of East Point, 301 Ga.App. 333, 340(6), 687 S.E.2d 617 (2009).
The judgment of the trial court is therefore affirmed. Glass, supra, 691 S.E.2d 623.
4. Fulton Tax Commissioner Appeal to Avoid Payment Frivolous
In a rare showing of awarding 10 percent penalties pursuant to OCGA § 5-6-6 and the maximum frivolous appeal penalty pursuant to Court of Appeals Rule 15(b) against both the Fulton County Tax Commissioner and Fulton County, the Court of Appeals sanctioned the Tax Commissioner’s direct appeal of $2.8 million dollar award. The Court of Appeals indicated that it was a straight forward (if not old, it was pending since 2004) collection issue that was making its second appearance in the Court of Appeals. The trial court found in favor of the City of East Point and Fulton County and the Tax Commissioner would simply not pay the award. On review, the Court of Appeals imposed a 10% penalty and the maximum penalties allowed under Court of Appeals Rule 15. Arthur Ferdinand, Tax Commissioner of Fulton County and Fulton County v. the City of East Point, 301 Ga. App. 333, 687 S.E.2d 617 (2009).
5. Frivolous Penalties against Insurance Company and its Counsel
In an unusual direct award of frivolous appeal penalties against an insurance company and its lawyers, the Court of Appeals, through Presiding Judge Smith, found Transportation Insurance Company's conduct both at the trial court and on appeal "egregious." Transportation Insurance Company v. Piedmont Construction Group, LLC, 301 Ga. App. 17, 686 S.E.2d 824 (2009). The Court of Appeals awarded frivolous appeal penalties both under OCGA § 5-6-6 and Court of Appeals Rule 15(b). The facts and holding of Transportation Insurance Company, supra, are as follows:
In the main appeal presented here, Transportation Insurance Company denied not only coverage but a defense under a policy of liability insurance issued to a general contractor, based upon a novel and radical interpretation of a single Georgia case. This egregious conduct warrants not only affirmance but the imposition of penalties for frivolous appeal. Only the fact that the trial court did not enter a judgment for a sum certain prevents the assessment of an additional ten percent penalty under OCGA § 5-6-6.
The main issue in this case concerns the issue of coverage under a Comprehensive General Liability (CGL) insurance policy issued by Transportation Insurance Company (Transportation) to Piedmont Construction Group, LLC (Piedmont). A fire extensively damaged a building at Middle Georgia College [Page 826] while Piedmont was performing renovation work in the building, and when the Board of Regents of the University System of Georgia sued Piedmont for damages to the building, Piedmont sought coverage under the policy. Transportation denied both coverage and a defense based upon the business-risk exclusion in the policy, and Piedmont filed a third-party claim against it.
[ * * * ]
Finally, we conclude that the conduct of Transportation throughout this litigation and on this appeal requires the assessment of frivolous appeal penalties under Court of Appeals Rule 15(b). Despite receiving an exhaustive, thoroughly sourced, and detailed order from the trial court explaining every aspect of its ruling, Transportation proceeded with an appeal not only of coverage in this action but even its duty to undertake a defense of Piedmont. The trial court warned Transportation that this was not a " close case," and we agree.
As the briefs of appellee and amici show, Transportation in effect sought a radical change in long-standing Georgia law regarding business-risk exclusions, without acknowledging that its interpretation would accomplish such a change-in fact asserting that its radical interpretation was the law. The weakness of Transportation's position is highlighted by its reliance on a misreading of a single Georgia decision while ignoring the substantial body of law in opposition, as well as its failure to present any evidence below to support its factual contentions. Appellant's appeal in the face of controlling law as to which there was " no reasonable doubt" justifies the award of attorney fees under Court of Appeals Rule 15(b). See Enviro Pro v. Emanuel County, 265 Ga.App. 309, 315(4), 593 S.E.2d 673 (2004). [301 Ga.App. 24] In addition, ignoring a trial court's warnings regarding the lack of merit of a claim supports an assessment of frivolous appeal penalties. In Pitts Properties v. Auburn Bank, 274 Ga.App. 538, 618 S.E.2d 171 (2005), the trial court expressly warned appellants, " This is a frivolous action. (You) should not be in court." (Punctuation omitted.) Id. Because " [a]ppellants ignored the trial court's fully justified warning and prosecuted this wholly frivolous appeal," id. at 538-539, 618 S.E.2d 171, we imposed the then-maximum penalty allowed by Court of Appeals Rule 15(b) in full against each appellant and against their appellate counsel as [Page 830] well. Id. See also Austin v. Austin, 292 Ga.App. 335-336, 664 S.E.2d 780 (2008).
In Case No. A09A1200, therefore, we assess frivolous appeal penalties pursuant to Court of Appeals Rule 15(b), in the amount of $2,500 against appellant and $2,500 against its appellate counsel. Upon return of the remittitur, the trial court is directed to enter a $5,000 judgment in favor of Piedmont Construction Group, LLC in the form of a $2,500 penalty against Transportation Insurance Company and a $2,500 penalty against its appellate counsel. Transportation, supra, 686 S.E.2d 825-830.
This case stands, perhaps, as the archtype of a frivolous appeal. The Court of Appeals not only sanctioned the client and counsel but postulated that if a monetary judgment has been awarded, it would have thrown the proverbial 10% penalty at the client also.
II. JURISDICTIONAL LIMITATIONS ON
REVIEW OF ATTORNEY'S FEE AWARDS
Awards of attorney’s fees in the trial court may not necessarily be subject to direct review by appellate courts in Georgia. If the “frivolous litigation” award is based on conduct at the trial court level and the trial court enters an attorney’s fees award in the trial court pursuant to OCGA § 9-15-14, appellate counsel needs to be aware that such an award is not subject to direct review. An OCGA § 9-15-14 award may only be reviewed by the grant of a discretionary application made pursuant to OCGA § 5-6-35. Haggard v. Hd. of Regents, 257 Ga. 524, 526 (4) (a), 360 S.E.2d 566 (1987); Rolleston v. Huie; 198 Ga. App. 49, 5.2 (4) , 400 S.E.2d 349(1990).
An award of attorneys fees received pursuant to OCGA § 51-7-80 to 85 (malicious prosecution) is subject to direct appeal, unless the amount of fees in question is below $10,000. Awards less than $10,000 are reviewed by discretionary appeal only. OCGA § 5-6-35(6).
While an award of attorneys fees granted under OCGA § 13-6-11, is subject to direct review on appeal, appellate counsel should be aware such an award is difficult to overturn. An award under OCGA § 13-6-11, is subject to the appellate review standard of “whether there is any evidence to support the award.” Roofers Edge, Inc. v. Standard Building Company, Inc., 295 Ga.App.294, 671 S.E.2d 310 (2008); D& H Constr. Co. v. City of Woodstock, 284 Ga.App. 314, 318(2), 643 S.E.2d 826 (2007). Appellate counsel is cautioned to present a significant evidential argument to challenge an OCGA § 13-6-11 award on appeal or risk appellate sanctions for a frivolous appeal.
The appellate challenges to an award of attorneys fees under OCGA § 9-11-68, (Georgia’s Offer of Judgment) may continue to evolve since the Supreme Court found the statute constitutional less than a year ago. Smith v. Baptiste, et al., 287 Ga. 23, 694 S.E.2d 83 (2010). It may be that the litigation in this area in the future will turn on whether the offer was a “good faith,” offer, whether the offer was made within in the strict parameters of the statute or whether, factually, the final outcome [“the amount obtained by Plaintiff is less than 75 percent of such offer of settlement . . . or if Plaintiff recovers a judgment greater than 125 percent of such offer of settlement . . .” OCGA § 9-11-68 (b)(1) and (2)], fits within the strict factual parameters of the Offer of Judgment Statute. If, factually, the award of fees (which may be quite substantial to the non-prevailing party) is supported under the statute, appellate counsel should be cautioned that the statute commands the trial court with “shall.” The trial court must award fees [[t]he court shall order the payment of fees. . . OCGA § 9-11-68 (d)(1)], if the offer and ultimate outcome fall within the mandatory language of the Offer of Judgment Statute. Thus, on appeal an appellate court would review the award on an “any evidence,” standard and appellate counsel may risk sanctions for a completely non-meritorious challenge to an award of fees dictated by OCGA § 9-11-68.
III. ETHICS ON APPEAL
In 2000, the Georgia Supreme Court rewrote the Rules of Professional Conduct. Those Rules apply not only to the conduct of attorneys in the trial court, but also apply on appeal. Pretermitting the pecuniary loss that counsel and his or her client may suffer from prosecuting a frivolous or baseless appeal, a frivolous appeal may run afoul of the ethical Rules. For example, at a bare minimum, an appeal should not be filed to: 1) merely delay the final outcome, 2) merely harass the other side, or 3) to proffer an unwarranted or legally unsupported claim. A violation may be punished by a public reprimand.
The Georgia Rules of Professional Conduct and Enforcement, admonish lawyers to only pursue meritorious or “good faith” claims on appeal. Rule 3.1 states:
In the representation of a client, a lawyer shall not:
(a) file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another;
(b) knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law.
The maximum penalty for a violation of this Rule is a public reprimand.
 The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.
 The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person, or, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.
 It is not ethically improper for a lawyer to file a lawsuit before complete factual support for the claim has been established provided that the lawyer determines that a reasonable lawyer would conclude that there is a reasonable possibility that facts supporting the cause of action can be established after the filing of the claim; and provided further that the lawyer is not required by rules of procedure. or otherwise to represent that the cause of action has an adequate factual basis. If after filing it is discovered that the lawsuit has no merit, the lawyer will dismiss the lawsuit or in the alternative withdraw.
 The decision of a court that a claim is not meritorious is not necessarily conclusive of a violation of this Rule.
Appellate counsel should be aware that appeals now bear the real risk to their clients concerning the imposition of money damages under OCGA § 5-6-6 the ten (10%) percent monetary penalty. Counsel and clients risk frivolous penalties of $2,500.00 under Supreme Court Rule 6 and Court of Appeals Rule 15.
Attorneys should carefully examine the arguments they present on appeal. Gone are the days when any matter was subject to direct appeal with no review of whether the appeal had any merit to it at all. Attorneys are charged not only to use their sound judgment concerning prosecuting an appeal, but also to conform their conduct to the Georgia Rules of Professional Conduct.
[This Article is a Paper I prepared for Mr. Justice Hines for a State Bar Presentation.]
Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Atlanta, GA 30084
In Austin v. Austin, 292 Ga. App. 335, 664 S.E.2d 780 (2008) the Court of Appeals fined Richard Austin, appellant, 10 percent of the underlying judgment for $3,000.00. It is interesting to note that the Court of Appeals split the penalty, in its opinion, against the appellate attorney and the appellant. The award against the attorney, in addition to the client, was justified based on the trial court’s statement (quoted in the opinion), “[T]he trial court warned the appellant ‘needs to understand real seriously that he’s exposed to big money damages here, and he’s exposed to attorney’s fees, [292 Ga. App. 336] and he’s exposed to some serious damages to property interests. So…having said that, be warned. Don’t come in here and start saying I didn’t know…’ ” ‘As we observed in remarkably similar situation in Pitts Properties v. Auburn Bank, 274 Ga. App. 538-539, 618 S.E.2d 171 (2005), appellant ‘ignored the trial court’s fully justified warning and prosecuted this wholly frivolous appeal. ‘” Austin, supra, at 336.
In Realty Lenders, Inc. v. Levine, et. al. 286 Ga.App 326, 649 S.E. 2d 333 (2007), the Court of Appeals denied a request for OCGA § 5-6-6 damages even though they found the appeal was meritless. Even though much of the appellant appeal was meritless, the appellant avoided fees under OCGA § 5-6-6 because Appellee argued for certain points in the appeal that were “never raised before or ruled upon by the trial court.” Thus, partially defeating the theory of a frivolous appeal.
The Georgia Court of Appeals imposed a $2,000.00 penalty against the client and a $2,000.00 penalty against appellate counsel, pursuant to Court of Appeals Rule 15. [Those] penalties were imposed for appellate counsel bringing a second appeal with no new appellate argument(s) to the Court of Appeals. A special master affirmed a settlement agreement client appeals and lost. Upon remittitur affirming the same issue in the trial court client appealed again and this penalty was imposed. Ruskin, et al. v. AAF - McQuay, Inc., et al., 294 Ga.App. 842, 670 S.E.2d 517 (2008).
In opposing a $1,000.00 penalty, pursuant to Court of Appeals Rule 15, against a serial civil filer, the Court of Appeals wrote "In 2006, eight years after losing his two 1988 judgments in Forsyth County, Crane filed in Gwinnett County a motion seeking a new trial for the two 1998 Forsyth County judgments. [ * * * ] This is at least the tenth time Crane has argued to this court that the summary disposition of his state court case on a motion to dismiss or motion for summary judgment has deprived him of his federal amendment right to a jury trial. "[I]nasmuch as Crane continues undeterred to plague this court with frivolous appeals on grounds previously rejected, we once again impose a penalty against Crane for frivolous appeals under a Court of Appeals Rule 15(b)" given his previous unsuccessful attempts on these very same issues, Crane could have no reasonable basis for believing this appeal would result in reversal of the trial court's judgment." [Cite submitted] Crane v. Poteat, et al., 282 Ga. 182, 638 S.E.2d 335 (2006).