IN THE STATE COURT OF CHEROKEE COUNTY

STATE OF GEORGIA

CAPITAL ONE BANK (USA), N.A.,

Plaintiff
CIVIL ACTION
V FILE NO: 08-SC-1031

XXXXX XXXXXX,
Defendant

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO

VACATE AWARD OF ATTORNEY’S FEES

COMES NOW, Defendant xxxxxxxxx, who files her Defendant’s Response

to Plaintiff’s Motion to Vacate Award of Attorney’s Fees, and gives argument

why this Court should DENY the Motion.

According to Plaintiff Motion to Vacate is based upon

1. That I, the Defendant filed a Motion for attorney’s fees.

2. The Plaintiff responded to the Motion with a Rule Nisi
3. That I, the Defendant filed a Motion to Withdraw the Motion
for Attorney’s fees and that Plaintiff “relied upon this
document” in not pursuing a hearing.

Defendant responds only to ¶¶s 2, 3.

 PLAINTIFF’S RESPONSE TO MOTION FOR ATTORNEY’S FEES

Defendant has found no caselaw showing that where an attorney relied

upon a Court to Grant a Motion to Withdraw a Motion was appropriate

grounds to vacate an award of attorney’s fees.

Plaintiff responded to Motion for Attorney’s Fees with a Rule Nisi, an

improper response. Should Plaintiff have prevailed, a defendant requesting return

of attorney’s fees they had incurred be returned would be an entirely different

matter; that is the not scenario here.

Plaintiff had known for two years the Defendant had been a victim of

identity theft, and Plaintiff had advised the Defendant that the matter was closed to

further inquiry, therefore this action should have never been filed. Nevertheless,

the complaint was filed, and thereby vexatious, frivolous litigation begun by

Plaintiff. The Grant of attorneys fees provided for under O.G.C.A. §9-15-14 is a

sanction for such circumstances and is wholly warranted.

Furthermore, Defendant’s Motion for Attorney’s Fees clearly asked only for

the reasonable and necessary fees that it had cost her to defend against the

vexatious, frivolous action. To have a hearing at this late stage for whether or not

Defendant is deserving of attorney’s fees that it cost her to defend herself, is in

itself a frivolous attempt to cost Defendant even more time and expense and must

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be Denied.

The Plaintiff also appears to complain that they relied upon the Motion to

Withdraw Motion for Attorney’s fees. Defendant has a hard time believing that

an attorney has actually portrayed to the Court something so ludicrous. Knowing

full well that the Court could find in favor of Defendant’s Motion for Attorney’s

fees whether or not a Withdrawal has been filed, the proper response would have

been to give a Brief arguing why attorney’s fees should not be granted.

Nevertheless, the Award is justified both statutorily and discretionally, and there

has been no abuse of discretion.

The only reason Defendant Withdrew the Motion for Attorney’s fees is

because she feels ill equipped to handle herself in a hearing without representation;

in other words, she was intimidated by the Rule Nisi filed by Plaintiff. Now,

Defendant realizes that is most probably the reason that a Rule Nisi, rather than a

proper response to the Motion for Attorney’s Fees was filed.

Further, like the improper response to Defendant’s motion for attorney’s

fees, the Plaintiff has again improperly responded to this Court. The proper

response to an award of attorney’s fees, like any other award, is to file Notice of

Appeal, not a motion to vacate on the grounds that the opposing party relied upon

yet another motion filed by a pro se defendant. Defendant has a hard time

imagining any other purpose for opposing legal counsel to file a Rule Nisi rather

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than a real, and proper response.

ARGUMENT AND CITATIONS OF AUTHORITY

An award of attorney’s fees under O.C.G.A. § 9-15-14 is reviewed by the

Appellate Courts for an abuse of discretion. The Appeals Court will not vacate an

award of attorney’s fees when they are granted by statute, the award is reviewed

under the “any evidence” rule; and the “abuse of discretion” rule respectively.

“Attorney fees are recoverable only where authorized by some statutory

provision or by contract. (Cit.) [Cit.]" Glynn County Fed. &c. Credit Union v.

Peagler, 256 Ga. 342, 344 (3) (348 SE2d 628) (1986).

The standard of review for motions under OCGA 9-15-14 (a) is the "any

evidence" rule, and the standard for review for motions under OCGA 9-15-14 (b)

is the "abuse of discretion" rule." Sacha v. Coffee Butler Svc., 215 Ga. App. 280,

282 (2) (450 SE2d 704) (1994). “(N)otwithstanding the ‘any evidence’ standard of

review . . . , when considering an appeal from an award of attorney fees made

under OCGA 9-15-14 (a), we must determine whether the claim asserted below

either had some factual merit or presented a justiciable issue of law.' [Cit.]" Moore

v. Harris, 201 Ga. App. 248, 249 (1) (410 SE2d 804) (1991).

Under subsection (b) the Appellate Court must determine whether the court

abused its discretion in finding that the complaint was "substantially frivolous,

substantially groundless, or substantially vexatious." (Citations and punctuation

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omitted.) Cobb County School Dist. v. MAT Factory, 215 Ga. App. 697, 703 (4)

(452 SE2d 140) (1994).

“It is presumed that when enacting legislation, the General Assembly acts

with full knowledge of the existing state of the law” Price v. City of Snellville, 253

Ga. 166, 167 (317 SE2d 834) (1984); “and in construing acts of the legislature, we

must accord all words (other than words of art) their ordinary significance.” City of

Roswell v. City of Atlanta, 261 Ga. 657 (410 SE2d 28) (1991). Accordingly,

OCGA § 9-15-14 applies to "any civil action,"

“OCGA 9-15-14 (a) provides for a mandatory award” as shown by:

“reasonable and necessary attorney's fees and expenses of litigation shall be

awarded”,1 shall is a must word . The standard of review for this section is the 'any

evidence' rule. “OCGA 9-15-14 (b) is discretionary and the standard of review is

abuse of discretion,” as shown by the word shall. The matter before this

Honorable Court falls under “both standards the record supports” this Court's

award. Haggard v. Bd. of Regents of Univ. System, 257 Ga. 524, 527 (4 c) (360

SE2d 566) (1987).

Further, words that remove a Judge’s discretion when a party has moved for

relief which the Georgia General Assembly has used to show their intentions as a

sanction to the offending party are understood to be “shall” and “must”. The

1
Haggard v. Bd. of Regents of Univ. System, 257 Ga. 524, 527 (4 c) (360 SE2d 566)
(1987)
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word may is a different matter entirely, that leaves the decision solely to the

Judge’s discretion.

See O.C.G.A. § 9-15-14:

(a) In any civil action … reasonable and necessary attorney's fees
and expenses of litigation shall be awarded to any party against
whom another party has asserted a claim, …which there existed
such a complete absence of any justiciable issue of law or fact
…. 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 … other
improper conduct…

In Hutchison v. Divorce & Custody Law Center of Arline Kerman &

Asociates, P.C., et., al., (207 Ga. App. 421) (427 SE2d 784) (1993), the Court

discussed other “plain language” phrases within statute §9-15-14 addressing the

time frame for filing the motion for attorney fees:

“Finally, we cannot avoid the fact that the plain language of that
part of the statute relating to procedure, i.e., subsection (e),
provides for a ‘motion’ and Subsection (b) also refers to
‘motion,” “Subsection (e) also uses the term ‘within,’ …in
referencing the time frame for the request. The word ‘may’
means that the litigant is authorized to seek such an award after
the case is concluded, when the basis for an award has matured.
See generally Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d
430) (1981).

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 The Appellate Court reviews a grant of attorneys fees under O.C.G.A. §9-5-

14(b) for an abuse of discretion, ("OCGA § 9-15-14 (b) is discretionary and the

standard of review is abuse of discretion." (Punctuation omitted.) Hill v. Doe,*fn5

quoting Haggard v. Bd. of Regents &c. of Ga.)

Defendant, the prevailing party against whom a frivolous, vexatious action

was brought, had the right to be granted fees that she otherwise would not have had

to incur, she asked for nothing more than her own expenses. Under O.C.G.A. §9-

15-14(b) “the trial court must limit the fees award to those fees incurred because

of the sanctionable conduct.” (Punctuation omitted.) Trotter v. Summerour, 273

Ga. App. 263, 267 (2) (614 SE2d 887) (2005). See Lawrence v. Direct Mtg.

Lenders Corp., 254 Ga. App. 672, 674 (3) (563 SE2d 533) (2002) at 676 (4) (court

may only award those attorney fees attributable to successful claim).

This Court clearly stated the reasons for the Award of Attorney’s Fees, as

required by the Appellate Court.

When a Court has indicated a basis for its award, such as fees incurred by

the prevailing party, and the party is not seeking damages, a hearing is not

warranted; see Huggins v. Chapin, 233 Ga. App. 109 (503 SE2d 356) (1998) where

the Ruling was vacated and Remanded the court was instructed:

“The court is directed to indicate the basis for its award. If the
court needs supplemental evidence to determine the amount of
attorney fees reasonably attributable to [the] prevailing claim, it
may hold a hearing. Alternatively, if the court concludes it can
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 make the required determination without such evidence, by
further considering the evidence already submitted . . . , it may
do so.”.

This Court clearly made findings in support of the award of attorney’s fees,

the award was authorized, the amount was for expenses incurred and that the

amount was reasonable, citing authority in support of the decision.

CONCLUSION

Defendant has shown that this Court’s Award of Attorney’s fees was not

only justified and proper, but she has also shown that the Appellate Courts will not

vacate and remand the Ruling absent obvious abuse of discretion, or failure to

provide the reasons for the decision.

Defendant in this matter had been a victim of identity theft, then became a

victim of vexatious, frivolous litigation for which cost her $850.00 in attorney’s

fees. She asked for no damages, nothing more than the costs she had incurred.

Further, the defendant has shown that opposing counsel’s Motion to vacate

is the improper response to the award of attorney’s fees. Defendant MOVES this

Honorable Court to DENY Plaintiff’s Motion to Vacate Award.

Respectfully submitted, this 19th day of October, 2009

By: _____________________________
GA 30189

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 CERTIFICATE OF SERVICE

I hereby Certify that I have this 19th day of October, 2009 served a true and correct
copy of Defendant’s Response to Plaintiff’s Motion to Vacate Award of
Attorney’s Fees upon Plaintiff through their counsel on record by causing to be
deposited with USPS, First class Mail, proper postage affixed and mailed as
follows:
Trace Dillon
The Dillon Law Firm, P.C.
2775 Cruse Road, Ste. 201
Lawrenceville, GA 30044
By: ___________________________
GA 30189