In Georgia domestic actions, as with all legal areas, spouses and parents at times seek to assert claims or defenses which existing authorities do not expressly support or which contravene settled law. The party asserting those novel claims or defenses typically expects to lose at the trial court level and then hopefully obtain a reversal on appeal. As part of the initial failure, that party also should expect to face a demand for payment of the opposing side’s attorney fees incurred as a result of allegedly frivolous claims or defenses. This article explores the principal statutory means to combat those frivolous litigation charges.

Georgia law allows trial courts in domestic and other actions to assess attorney’s fees against a party for pursuing frivolous litigation in two contexts. First, “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.”(1) Second, a court “may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action … [if] 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…”(2) In both situations, however, no fees may be assessed against a party “as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority.”(3)

The success or failure of the statutory defense to a frivolous litigation charge accordingly will hinge on whether the party’s cited statute, rule, or case suffices as “some recognized precedential or persuasive authority” within the meaning of the statute. The nature and degree of precedential authority will vary depending on whether controlling authority already exists as to the point at issue.

If controlling authority does not exist, the party asserting the novel claim or defense should be able to rely on almost any statute or published appellate decision which arguably supports her position.(4) In that regard, a novel claim or defense supported by interpretation of a statute will suffice where the statute does not speak explicitly to the issue at hand, has not previously been interpreted with respect to that issue, and finds some support for the party’s argument gleaned from the text or purpose of the statute(5)

In situations where an argument seemingly contravenes existing controlling authority, approved sources of precedential or persuasive authorities supporting a party’s novel claim or defense have included: an order entered by another trial court of the same level in a different case, relying on some published appellate authority(6); the concurring or dissenting opinion of an appellate judge(7); and published opinions from other jurisdictions, particularly those of the highest courts in other states.(8) The fact that the party asserting the novel claim or defense must lose at the trial court level will not preclude application of the defense of a good faith attempt to establish a new theory of law, because “[w]here there is binding precedent, there is no other way to bring about a change in the law except to file an action the party knows will not be successful in the trial court.”(9)

(1) O.C.G.A. § 9-15-14(a).

(2) O.C.G.A. § 9-15-14(b).

(3) O.C.G.A. § 9-15-14(c) (emphasis added). See also Naar v. Naar, A19A0560, *6-7 (Ga. Ct. App., April 29, 2019).

(4) Brown v. Gadson, 298 Ga.App. 660, 661, 680 S.E.2d 682 (2009).

(5) Gibson Constr. Co. v. GAA Acquisitions I, 314 Ga.App. 674, 677, 725 S.E.2d 806 (2012).

(6) Renton v. Watson, 319 Ga. App. 896, 904-905, 739 S.E.2d 19 (2013).

(7) See, e.g., Naar, supra, at *9; Executive Excellence, LLC v. Martin Brothers Investments, LLC, 309 Ga.App. 279, 288-289 (2011); and Colquitt v. Network Rental, Inc., 195 Ga.App. 244 (1990). See also Hawkins v. State, 637 S.E.2d 422, 423(1) (Ga. Ct. App., 2006).

(8) Hill v. Burnett, A18A1655, (1)(a) (Ga. Ct. App., March 7, 2019).

(9) Naar, supra, at *10.

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