02.14.2011 plaintiff's objection to defendant sheridan's 9-15-14 motion - midland v....
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JILL SHERIDAN http://www.jilliansheridan.comIN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA MIDLAND FUNDING, LLC ASSIGNEE OF CHASE BANK (USA) N.A. Plaintiff vs. JILL SHERIDAN Defendant PLAINTIFF'SRESPONSECIVIL ACTION FILE NO. 10-C-07271 - S4TO DEFENDANT'S MOTION FOR ATTORNEY FEESCOMES NOW Plaintiff and responds that Defendant's Motion for Attorney Fees should be denied and as grounds therefor shows the Court the following:STATEMENT OF THE CASEPlaintiff disagrees with Defendant's statement of the procedural history of thisTRANSCRIPT
IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
MIDLAND FUNDING, LLC ASSIGNEE OF CHASE BANK (USA) N.A.
Plaintiff
vs. CIVIL ACTION FILE NO. 10-C-07271 - S4
JILL SHERIDAN
Defendant
PLAINTIFF'S R~SPONSE TO DEFENDANT'S MOTION FOR ATTORNEY FEES
COMES NOW Plaintiff and responds that Defendant's Motion for
Attorney Fees should be denied and as grounds therefor shows the
Court the following:
STATEMENT OF THE CASE
Plaintiff disagrees with Defendant's statement of the
procedural history of this case and will attempt to give the
Court a clear chronology of events rather than dwelling on
irrelevancies such as the Plaintiff's counsel's handling of
appeals cases involving parties unrelated to either the Defendant
or the Plaintiff in this action.
Plaintiff filed this action on account on May 5, 2010.
Defendant was served with the summons and complaint on June 14,
2010. Defendant filed its answer and counterclaim on June 14,
2010. The parties exchanged discovery requests and responses. On
December 6, 2010, Defendant filed her Motion to Compel and/or
Motion in Limine, but did not notice the motion for hearing, as
the court had previously set trial for December 9.
At the call of the action for trial, Plaintiff rested
without presenting evidence and moved the Court to strike or
dismiss the Defendant's Counterclaim. The Court declined to do so
but indicated it would enter a judgment for the Defendant as to
Plaintiff's lawsuit.
At that time, there stands before the Court the Defendant's
Plaintiff's Motion for attorney fees and expenses of litigation.
ARGUMENT AND CITATIONS OF LAW
1. Plaintiff's action was not so devoid of merit as to require
an award under O.C.G.A. § 9-15-14.
It is patent that there did not exist in this case "a
complete absence of any justiciable of law or fact that it could
not be reasonably believed that a Court would accept the asserted
claim". O.C.G.A. § 9-15-14(a). Defendant's filing completely
ignores the fact that the case was forced to trial by Defendant's
improper counterclaim for attorney fees.
Defendant's Counterclaim is based solely on Plaintiff's
alleged negligent and/or malicious conduct in bringing this
action to collect a debt which has allegedly already been paid,
See Defendant's Counterclaim, ~~. 9-11, and requested an award of
attorney fees and expenses of litigation pursuant to O.C.G.A. §
9-15-14. However, a counterclaim is not the proper vehicle for
doing so. In Deavours v. Hog Mountain Creations, Inc. , 207
Ga.App. 557, 428 S.E.2d 388 (1993), the Court of Appeals held
that O.C.G.A. 9-15-14 requires that an award of attorney fees for
bringing an action must be requested by motion, rather than by
counterclaim. This portion of the Court's opinion was upheld by
the Supreme Court in Betallic, Inc. v. Deavours, 263 Ga. 796, 439
S.E.2d 643 (1994).
Defendant also alleged that Plaintiff "has been stubbornly
litigious in this matter, has acted in bad faith, and has forced
Defendant to incur unnecessary trouble and expense", tracking
the language of O.C.G.A. § 13-6-11. However, attorney fees under
this code section are not available to a defendant in the absence
of a viable independent counterclaim asserting a claim for relief
independent of the assertion of the plaintiff's harassment,
litigiousness and bad faith in bringing suit. Alcovy Properties,
Inc. v. MTW Investment Co., 212 Ga. App. 102, 441 S.E.2d 288
(1994). In White v. Lance H. Herndon, Inc., 203 Ga.App. 580, 417
S.E.2d 383 (1992), a defendant whose counterclaim was dismissed
prior to submission of the case to the jury appealed the trial
court's refusal to submit to the jury the issue of defendant's
recovery of attorney fees and expenses. The Court of Appeals
affirmed, holding that since "Appellant does not contend that his
independent counterclaim against appellee was viable, it follows
that the trial court correctly refused to submit to the jury the
issue of his entitlement to a recovery under O.C.G.A. § 13-6-11."
203 Ga.App. at 581, 417 S.E.2d at 385. See also Ramsey v.
Phillips, 131 Ga. 440(2), 62 S.E. 527 (1908) ("There is no law by
which every case brought by a plaintiff can be turned into a
damage suit by the defendant against the plaintiff for bringing
it, while it is still pending.") The Defendants insistence on
maintaining a counterclaim which was in itself frivolous is the
sole cause of the protracted nature of this litigation.
Therefore, the Defendant is not entitled to attorney's fees
regardless of the outcome of this case.
2. Defendant cannot recover attorney fees as an unrepresented
party.
Defendant seeks to recover fees paid to an attorney who
moved to withdraw from representation less than ten (10) days
after the filing of the answer in this case. "[P]ro se litigants
who are not attorneys cannot recover attorney fees because of the
lack of any meaningful standard for calculating the amount of the
award." JarAllah v. American Culinary Federation, Inc., 242
Ga.App. 595, 596, 529 S.E.2d 919, 921 (2000). Compare Harkleroad
v. Stringer 231 Ga.App. 464, 499 S.E.2d 379 (1998) (law firm
which sued former client to collect fees could recover additional
fees under O.C.G.A. § 9-15-14); But cf. Kay v. Ehrler, 499 u.s.
432 (1991) (attorney who represented self could not be awarded
fees under federal civil rights statute). As there is no
competent proof of record that any fees paid were reasonable and
necessary, the Defendant's motion should be denied.
3. An evidentiary hearing is necessary to determine the
reasonableness of the fees claimed.
If the Court finds that the Defendant's motion is entitled
to consideration, it must hold "an evidentiary hearing at which
[plaintiff] might confront and challenge the need for legal
services claimed." Boomershine Pontiac-GMC Truck, Inc. v. Snapp,
232 Ga.App. 850, 530 S.E.2d 90 (1998). On the other hand, if the
Court finds that no fees are to be awarded, then Defendant's
Motion may be denied without a hearing. Evers v. Evers, 277 Ga.
132, 587 S.E.2d 22 (2003).
CONCLUSION
For the foregoing reasons, Defendant's Motion should be
denied.
ames T. Freaney Attorney for Plaintiff Georgia Bar No. 274902
Frederick J. Hanna & Associates, P.C. 1427 Roswell Road Marietta, GA 30062 (770) 988-9055
CERTIFICATE OF SERVICE
This is to certify that I have this date served a copy of the foregoing RESPONSE by depositing a copy of same in the United States mail, postage prepaid, addressed as follows:
Jill Sheridan 3266 Stonewall Drive Kennesaw GA 30152
This the day of February 2011.
h)~ James T. Freaney Attorney for Plaintiff Georgia Bar No. 274902
Frederick J. Hanna & Associates, P.C. 1427 Roswell Road Marietta, GA 30062 (770) 988-9055
IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
MIDLAND FUNDING, LLC ASSIGNEE OF CHASE BANK (USA) N.A.
Plaintiff
vs.
JILL SHERIDAN
Defendant
FINAL ORDER
CIVIL ACTION FILE NO . 10- C- 07271 - S4
There i s before the Court Defendant' s Motion for Attorney Fees. Upon consideration of the evidence and argument, the briefs and the entire record in this case, it is hereby ORDERED that said Motion is DENIED. Defendant ' s Counterclaim, raising the identical claims as those made by Defendant's Motion, is DISMISSED. The court having previously rendered judgment for Defendant as to Plaintiff's Complaint, the Clerk is directed to close this case .
SO ORDERED this the
Prepared and presented by:
James T. Freaney Attorney for Plaintiff Georgia Bar No. 274902
day of , 2011 . --------------------
Joseph C. Iannazzone , Judge, State Court of Gwinnett County
Frederick J. Hanna & Associates, P.C. 1427 Roswell Road Marietta, GA 30062 (770) 988 - 9055
,_· __ 1
FREDERICK J. HANNA & ASSOCIATES, P.e. Attorneys At Law
1427 Roswell Road Marietta, GA 30062
JILL SHERIDAN 3266 STONEWALL DR KENNESAW GA 301 52
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