FOURTH DIVISION

DILLARD, P. J.,

BROWN and PADGETT, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

May 24, 2024

In the Court of Appeals of Georgia

A24A0159. SCRUDDER, BASS, QUILLIAN, HORLOCK,

LAZARUS & ADELE, LLP v. BARKEN et al.

DILLARD, Presiding Judge.

In this discretionary appeal, Scrudder, Bass, Quillian, Horlock, Lazarus &

Adele, LLP (“the Firm”) challenges the trial court’s order granting attorney fees and

litigation expenses under OCGA § 9-15-14 (b) to Rhonda Barken, the sole heir and

administratrix of the Estate of Daniel James Barken. The Firm argues the trial court

erred by (1) applying a negligence standard to sua sponte impose sanctions under

OCGA § 9-15-14 (b); (2) punishing the Firm when there is a lack of evidence to
support sanctions; and (3) imposing an excessivepenaltynottailored to the sanctioned

conduct.

1

 For the following reasons, we reverse.

In January 2012, Barken’s husband was struck and killed by another vehicle

while driving his motorcycle in a reversible lane in Atlanta. Barken proceeded to file

suit against the City of Atlanta and two public works employees: Ann Green, a traffic

systems operator during the time in question, and Kevin Billups, a traffic supervisor.2

Barken assertedthe defendants failed to inspect andmaintain a traffic signal governing

the flow of traffic in the reversible lane, thus causing or contributing to the accident

that killed her husband. The City’s law department and an outside law firm jointly

represented all three defendants.

During the ensuing discovery process, Barken obtained three service requests

regarding malfunctioning lane lights at the relevant location.Green ostensibly created

1 Oral argument was held in this case on January 9, 2024, and is archived on the

Court’s website. See Court of Appeals of Georgia, Oral Argument, Case No. A24A0159

(Jan. 9, 2024), available at http://vimeo.com/901673974.

2 Barken initially sued the at-fault driver, the City, and four placeholder defendants.

After the at-fault driver was discharged in bankruptcy, Barken dismissed the suit and filed

a renewal action against the City, 21 City employees, and five John Doe defendants.

Following the trial court’s order on the parties’ joint motion to dismiss, only the City,

Green, and Billups remained.

2
the service requests on September 14, September 15, and December 2, 2011—only

months before the fatal collision. As a result, Green was later asked about these

specific service requests—and service requests in general—in a 2017 deposition.3

According to Green, a service request is an inspection notation or an initiation

ofservice when a constituent calls the City with a concern, at which point a technician

goes out to inspect the problem. If work is required (e.g., a signal bulb needs to be

changed), a work order is then created; andwhen the work is complete, both the work

order and service request are closed.

As part of her job duties at the time, Green created service requests using

specific computer software and then contacted the technician assigned to the relevant

City quadrant to notify them of the problem (so they could inspect the issue). Green

would also note in the system when the technician was contacted and then, separately,

when they arrived on the scene. If the technician reported that the reported issue

requiredwork to fix it, Green would then create a work order.AndGreen testified that

when a signal was out on a reversible lane, this was considered an emergency situation

3Green did not do anything to prepare for her 2017 deposition, including any review

of documents. She also had no involvement in collecting documents produced for the case.

3
and was required to be coded that way. She was then shown the service requests

relevant to this case.

The first service request—from September 14th—reflectedGreen’s name and

the unique identification number she usedwithin the service-request software system.

She responded to questions about this request as follows:

Q: Does this tell you that you input information into this service

request?

A:It tells me that my name was utilized to create that request, yes.

Q: And I know this was six years ago and I assume you don’t have

any specific independent recollection sitting down to the computer on .

. . September 14th and inputting any of this information here; is that

correct?

A: That is correct.

Q: So unless somebody else logged in with your [identification]

number, you assume this is information that you put into this form?

A: Yes, sir.

Q: The request type is TC902. Do you knowwhat that standsfor?

4
A: TC902 represents a non-emergency request.

Q: And then it says, just below that non-emergency, [‘]signal

repair[’]; correct?

A: That is correct.

Q: Why would TC902 non-emergency signal repair be typed in at

that spot?

A: I have no idea.

Q: Is that something you would have made a determination about

if you were creating this form?

A: Absolutely not.

Q: Why not? Why do you say that?

A: Because this — according to the location here, it’s a lane light

request.

Q: So tell me why those two things don’t match up if that’s what

you’re saying?

5
A: Because according to our work practices, lane lights, especially

with a bulb X or a checkmark or the LEDS that are at the location could

be impeding traffic and it requires immediate attention.

Green also agreed the September 14th service request indicated in the comments that

the red X lane light was out, accompanied by her initials, as follows:

Q: Do you know why [the request] says AMG?

A: It has my initials.

Q: So is that how you typically would end a comment like that?

A: That’s my trademark, yes.

Q: Looking at that and seeing AMG, are you at least reasonably

certain that those comments were typed by you?

A: I cannot say, sir.

Q: You don’t know. It was either somebody using your

[identification number] and signing off with your initials or it was you?

Those are the two options; right?

A: That is correct.

6
Green was then asked about the September 15th service request, which she

thought might be a duplicate of the previous day’s request. She testified about that

request as follows:

A: I wouldn’t have repeated this work twice. I would have done it

once and created a work order to task the first order, [the September

14th] service request, not the second one.

To me this second service request is redundant. You know, it’s

duplication, so the same issue hasn’t been resolved. So it wouldn’t have

been created. I wouldn’t have created a second service request for the

same location with the same issue.

Q: But that did happen; right?

A: According to here, yes.

Q: And can you tell us why that happened?

A: No, sir.

Despite Green’s testimony about the standard procedures for service requests

and the creation of work orders, there was no indication of any work order ever being

created for either of the September service requests. There also was no work order

7
created for the December 2nd service request, though it was also coded as a nonemergency. Green further testified that it was impossible to determine from the

service requests when the information was entered into the service-request software

system (whether on the date of the request or at a later time)—though she later

equivocated and said she would have to ask the IT department.

Following Green’s deposition, Barken requested two years’ worth of time

sheets for approximately 16 City employees in the traffic division. And on January 3,

2018, the City produced roughly 4,500 pages ofrecords, includingGreen’s attendance

records, which showed that she was not at work on September 15 or December 2,

2011—two of the three service request dates. On January 29, 2018, about three weeks

after the attendance records were produced, the outside law firm that had been

representing the defendants was substituted with Scrudder, Bass, Quillian, Horlock,

Lazarus & Adele, LLP.

More than four years after the Firm took over representation ofthe defendants,

the case was called to trial on March 1, 2022. But just before opening statements were

to begin on March 2, the Firm informed the trial court it had just become aware of a

8
conflict that precluded it from continuing to represent all three defendants.4 And out

of concern for client confidentiality, the Firm did not give many particulars about the

nature of the conflict. Butwhen asked to estimate “a point in time”when the conflict

arose, the Firm responded that “the conflict, itself, although we were unaware of it,

would have arisen multiple years ago.” But the Firm did not believe the conflict

predated the filing of the renewal action in 2016, and it said the information provided

to it that morning was “brand new.”So, immediately after learning ofthe conflict, the

Firm investigated its legal and ethical obligations.

The Firm then requested a continuance (so each client could acquire

appropriate representation), explaining that it had done its “due diligence and only

became aware of this conflict, which is very, very different, just today,” and was

unaware of“what could have been done previously to have found out this information

beyondwhat we have done already”because the information it received that morning

was entirely new. Nevertheless, the trial court noted that—in the absence of any

information about the nature of the conflict—it was unable to determine whether

4 The attorney appearing on behalf of the City of Atlanta Law Department also

indicated that he now had the same conflict, though he was unsure whether the conflict

applied to the entire Department.

9
withdrawal was required under the Georgia Rules of Professional Conduct. The court

then continued the case for five days and advised it would “entertain a substitution

of counsel in the interim period,”though it did notintend to further continue the trial.

Two days later, the Firm filed an emergency motion to withdraw,

asserting—without any additional details—that, on the morning of March 2, 2022, it

“learned of new information from [its] clients” giving rise to a conflict which

precluded its continued representation. And when the trial resumed, the trial court

held a hearing on the emergency motion, during which the Firm said only preliminary

stepswere taken to secure newcounsel forthe defendants. The Firm again refused to

disclose the basis for the conflict of interest on the grounds of client confidentiality

and requested to be heard by the court in camera to provide additional information.

But the court refused this request, claiming that it would“create[ ] the possibility that

the [c]ourt might need to be disqualified from a case that has been on my docket since

2016, and that is not going to happen.” 

The trial court declared a mistrial, but decided—on its own motion—to

“proceedwith hearing the issue ofrepayment of plaintiff’s expenses for preparing for

trial against counsel” under OCGA § 9-15-14 (b). The trial court then opened

10
discovery so Barken could investigate the conflict of interest and file any brief or

affidavits related to the court’s motion.

During this discovery process, Barken learned that—during jury

selection—Green reviewed her 2017 deposition and decided to log in to her employee

portal to view her attendance records for the dates in question because she was

concerned about the information contained in the relevant service requests.5In doing

so, Green realized that she was not at work on two of the three dates at issue and

brought this information to the Firm’s attention.In doing so, Green relayed her belief

5 The portal provided the same information contained in the attendance records that

the City turned over in January 2018, but Green testified it did not occur to her to check her

attendance records—or even that it was possible to check as far back as 2011—until March

2, 2022. She further testified that she could not have checked her attendance records prior

to her deposition in 2017 because public-works management at that time would not permit

it. When Green was asked whether it would have been possible for her to access the

information that led her to become suspicious of the relevant service requests prior to

March 2, 2022, she indicated it would not have been possible because she believes “some

paperwork is being hidden.”Along these lines, Green also indicated that when she became

concerned about the service requests in 2022, she went for the first time to look for

dispatch log sheets that she would have maintained in her position during the time in

question, but the logs for September 2011 through January 2012 were no longer stored in

the control center with all other dispatch logs—which she could not explain.Andwhen she

was asked why she had not previously looked for these dispatch logs, Green explained that

her focus at the time of her 2017 deposition was on her new employment position in a

different City department, and it was her assumption that City Law Department attorneys

would have looked for the log sheets.

11
that someone else created the service requests using her identification number and

initials “to make it look as if I was at work on the days I was off.” Even so, she agreed

it was possible to be absent on the days in question and still have entered information

into the system when she returned at a later date. But contrary to some of her 2017

testimony, Green said in her 2022 deposition testimony that the service requests

reflect “in real time” when they are initiated in the system and the initiation or

creation date cannot be altered later, though other dates within a service request can

be altered.

Green refused to speculate as towhy someone would possibly forge documents

using her initials, but then suggested that it may have been another employee who did

not like her. But she admitted that, prior to March 2, 2022, she had never been

concerned about anyone forging documents using her information. Even so, Green

explained that anyone in the department has the ability to create a service request

using another employee’s unique identification number in the software system; but

she did not have any idea as to who might have used her identification number on the

occasions in question.

12
The trial court conducted an evidentiary hearing in October 2022, and

explained that the case was rescheduled for trial the following February, but that it

would still proceedwithconsidering sanctions under OCGA§ 9-15-14 (b).And during

the hearing, the Firm explained it interpreted Green’s 2017 deposition testimony

regarding the service requests as her saying that it had been “many, many years; I

don’t recollect. I’ve got some questions; this looks a little funny I’m not sure[,]” but

she “never at any point . . . said [‘]I don’t believe I did this. I believe somebody else

did it.[’]” And in support, the Firm played Green’s 2022 video deposition, during

which she indicated that she had no concern someone was using her identification

number to place false information in service requests until March 2, 2022.As a result,

the Firm maintained it was not until Green questioned the authenticity of the service

requests—the validity of which the City would rely upon in its defense—that an

irreconcilable conflict arose. Nevertheless, the trial court decided to sanction the

Firm, and then heard testimony from three of Barken’s attorneys as to their fees and

litigation expenses.

The case went on to settle that same month, after which the trial court issued

its ruling on the OCGA § 9-15-14 (b) fees. In its order, the court concluded that

13
Green’s 2017 deposition “shows that it was plainly contemplated by Ms. Green in

2017 that she was uncertain as to the origin of entries that appear to have been created

under her name,” and her testimony “goes beyond mere uncertainty . . . and clearly

raised a significant question as of September . . . 2017, as to whether Ms. Green

created the two service requests.” The court further noted that the Firm possessed

the facts and documents underlying the conflict since its entry into the case in 2018,

and so the conflict “plainly could and should have been discovered prior to trial.”

In ruling against the Firm, the trial court explicitly noted that the disclosure of

the conflict was not what it found improper, but was instead the “overall conduct

surrounding the disclosure.”Specifically, the court took issuewith the Firm’s failure

to timely disclose an apparent conflict to the point of a mistrial because the necessary

disclosure occurred after a jury was selected.And the court ultimately concluded that

the failure to disclose the conflict prior to trial “constituted a failure to act with a

minimum level of diligence,” amounting to improper conduct that unnecessarily

expanded the proceedings.

The trial court rejected the Firm’s argument that opposing counsel needed to

prepare for trial regardless of the mistrial, speculating that “it is more likely than not

14
that all, or substantially all, of the trial preparations done in anticipation of the March

1, 2022 trial, would need to be redone, or at a minimum, carefully reconsidered and

evaluated, considering the year-long delay,” and given that the defenses “have been

substantially altered.” The court then awarded Barken $584,082.45, which covered

all of the fees and costs associated with trial preparation and the OCGA § 9-15-14

motion. We granted the Firm’s application for discretionary review, and this appeal

follows.

1. The Firm argues the trial court erred by applying a negligence standard to sua

sponte impose sanctions under OCGA § 9-15-14 (b). And in a separate enumeration

of error, the Firm contends there is insufficient evidence to support the trial court’s

award. We agree the trial court’s findings of fact amount to, at most, potential

negligence by the Firm and do not satisfy the standard used to award sanctions under

OCGA § 9-15-14 (b)—unnecessarily expanding the proceedings through improper

conduct.

As our Supreme Court has explained, if a lawyer has a conflict of interest, he or

she “must (at a minimum) disclose it to his client, and in some instances, he must

15
withdraw from the representation.”

6

 Indeed, under Georgia’s Rules of Professional

Conduct, a lawyer shall not “continue to represent a client if there is a significant risk

that the . . . lawyer’s duties to another client . . . will materially and adversely affect

the representation of the client,” except if the client provides informed consent that

is confirmed in writing.7 But these rules further provide that informed consent is not

permissible if, inter alia, the representation “includes the assertion of a claim by one

client against another client represented by the lawyer in the same or substantially

related proceeding.”

8

In this case, the Firm maintains that a conflict of interest arose on March 2,

2022, for which informed consent was not permissible; and because continued

representationwouldviolate theRules ofProfessional Conduct, it immediately sought

6 Croy v. Whitfield Cnty., 301 Ga. 380, 385 (2) (801 SE2d 892) (2017).

7 Ga. R. of Prof’l Conduct 1.7 (a); see Ga. R. of Prof’l Conduct 1.7 (b) (“If client

informed consent is permissible a lawyer may represent a client notwithstanding a

significant risk of material and adverse effect if each affected client or former client gives

informed consent, confirmed in writing, to the representation after: (1) consultation with

the lawyer, pursuant toRule 1.0 (c); (2) having received in writing reasonable and adequate

information about the material risks of and reasonable available alternatives to the

representation; and (3) having been given the opportunity to consult with independent

counsel.”).

8

 Ga. R. of Prof’l Conduct 1.7 (c) (2).

16
to withdraw. Importantly, there is no contention the Firm was not required to

immediately withdraw from representation or that there was a waivable conflict of

interest.9So, with the foregoing in mind, we turn now to OCGA § 9-15-14 (b), under

which the trial court awarded fees due to the timing of the Firm’s discovery of the

conflict and subsequent withdrawal.

In looking to the text of OCGA § 9-15-14 (b), we necessarily begin our analysis

with “familiar and binding canonsof construction.”

10And in considering the meaning

of this statute, our charge is to “presume that the General Assembly meant what it

said and said what it meant.”

11 Toward that end, we must afford the statutory text its

plain and ordinary meaning,12consider the text contextually,13read the text “in its

9

It is also undisputed that a written confirmation of informed consent signed by

Green earlier in the proceedings was no longer effective once the instant conflict was

discovered.

10 Holcomb v. Long, 329 Ga. App. 515, 517 (1) (765 SE2d 687) (2014); accord In the

Interest of L. T., 325 Ga. App. 590, 591 (754 SE2d 380) (2014).

11 Deal v. Coleman, 294 Ga. 170, 172 (1) () (751 SE2d 337) (2013) (punctuation

omitted); accord Holcomb, 329 Ga. App. at 517 (1).

12 See Holcomb, 329 Ga. App. at 517 (1); accord Deal, 294 Ga. at 172 (1) (a); see also

Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015) (“A

statute draws it meaning, of course, from its text.” (punctuation and citation omitted));

Chan v. Ellis, 296 Ga. 838, 839 (770 SE2d 851) (2015) (same); State v. Able, 321 Ga. App.

632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in

17
most natural and reasonable way, as an ordinary speaker of the English language

would,”14and seek to “avoid a construction that makes some language mere

surplusage.”

15

In sum, when the language of a statute is “plain and susceptible of only

one natural and reasonable construction, courts must construe the statute

accordingly.”

16

accordance with the original and/or plain meaning of the text at issue (and all that the text

fairly implies) . . . .”); Singletary v. State, 310 Ga.App. 570, 572 (713 SE2d 698) (2011) (“In

construing these statutes, we apply the fundamental rules of statutory construction that

require us to construe the statutes according to their terms, [and] to give words their plain

and ordinary meaning . . . .” (punctuation omitted)).

13 See Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 10 (133 SCt 2247, 186

LE2d 239) (2013) (Scalia, J) (“Words that can have more than one meaning are given

content, however, by their surroundings.”(punctuation omitted)); Deal, 294 Ga. at 172 (1)

(a) (“[W]e must view the statutory text in the context in which it appears[.]”); accord

Hendry v. Hendry, 292 Ga. 1, 3 (1) (734 SE2d 46) (2012); Holcomb, 329 Ga. App. at 517 (1);

see also Tibbles, 297 Ga. at 558 (1) (“The common and customary usages of the words are

important, but so is their context.” (punctuation and citation omitted)); Chan, 296 Ga. at

839 (1) (same).

14 Deal, 294 Ga. at 172-73 (1) (a); accord Holcomb, 329 Ga. App. at 518 (1).

15 In the Interest of L.T., 325 Ga. App. at 592 (punctuation omitted); accord Holcomb,

329 Ga. App. at 518 (1).

16 Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); see also Deal, 294 Ga. at

173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its

plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

18
OCGA § 9-15-14 (b) authorizes an award of attorney fees when, among other

things, a party “unnecessarily expanded the proceedings through improper conduct or

acted to cause delay.”

17And an award of damages under this code section is “intended

not only to sanction or deter litigation abuses but also to recompense litigants who are

forced to expend their resources in contending with abusive litigation.”

18

So, when

considering whether to award fees under OCGA § 9-15-14 (b), “the conduct of the

party against whom an award is sought, and the conduct of that party’s counsel, are

considered along with the impact of that conduct on the attorney fees incurred by the

opposing party.”

19 And we review a trial court’s award of fees under Section 9-15-14

only for an abuse of discretion.20

17 Moore v.Hullander, 345 Ga.App. 568, 572 (2) (c)(814 SE2d 423) (2018) (emphasis

supplied).

18 Connolly v. Smock, 338 Ga. App. 754, 757 (1) (791 SE2d 853) (2016) (punctuation

omitted) (emphasis supplied); accord Riddell v. Riddell, 293 Ga. 249, 250 (744 SE2d 793)

(2013); Moon v. Moon, 277 Ga. 375, 379 (6) (589 SE2d 76) (2003); Joe & James Props., LLC

v. City of Atlanta, 368 Ga. App. 302, 308 (3) (890 SE2d 21) (2023), cert. denied (Dec. 19,

2023).

19 Williams v. Cooper, 280 Ga. 145, 147 (1) (625 SE2d 754) (2006); accord Richardson

v. Locklyn, 339 Ga. App. 457, 462 (793 SE2d 640) (2016).

20 Moore, 345 Ga. App. at 572 (2) (c).

19
Here, in awarding OCGA § 9-15-14 (b) fees against the Firm, the trial court

relied solely on Bircoll v.Rosenthal

21

for the proposition that the “failure to investigate

and a failure to act ‘with a minimum amount of diligence’ pre-suit”supports an award

of attorney fees as “improper conduct.” But Bircoll is wholly inapposite because the

pre-suit failure to investigate in that case led to the plaintiffs filing suit when “they

should have known that their claims had no substantial basis.”

22And importantly, the

award of OCGA § 9-15-14 (b) fees in Bircoll was based on the portion of the statute

permitting such an award when “an action, or any part thereof, . . . lacked substantial

justification,”23

not on allegations of improper conduct.Even so, the trial court in this

case concluded “the [Bircoll] principle requiring a minimum amount of diligence

[was] applicable” because the Firm’s conduct “was improper and unnecessarily

expanded the proceedings.” Specifically, the court found that the Firm failed “to

disclose a conflict that they knewor should have known” prior to the point of needing

to declare a mistrial when “the facts and documents that appear to underlie the

21

 267 Ga. App. 431 (600 SE2d 388) (2004).

22

Id. at 439 (2) (c).

23

Id. at 431 (punctuation omitted), quoting OCGA § 9-15-14 (b).

20
conflict plainly could and should have been discovered prior to trial.” In doing so, the

trial court abused its discretion in awarding attorney fees under OCGA § 9-15-14 (b)

because the facts are insufficient to support an award for unnecessarily expanding the

proceedings by improper conduct.24

Once again, an award under OCGA § 9-15-14 (b) is directed at, inter alia,

addressing abusive litigation or,25as the statute plainly says, “improper conduct.”

26

To that end, we have affirmed awards under OCGA § 9-15-14 (b) for unnecessarily

expanding proceedings through improper conduct when (1) a witness disregards

24 For this same reason, we are not persuaded by Barken’s argument that our

Supreme Court’s decision in Stancil v. Gwinnett County, 259 Ga. 507 (384 SE2d 666)

(1989), supports the trial court’s award.

25 Riddell, 293 Ga. at 250; Moon, 277 Ga. at 379 (6). See generally Abusive, Oxford

English Dictionary (2nd ed. 1989)(“1. Wrongly used, perverted, misapplied, improper[.]”

(emphasis supplied)), available at https://www.oed.com/oedv2/00000978 (last accessed

May 1, 2024).

26 See generally Improper, Oxford English Dictionary (2nd ed. 1989) (“1. Not truly or

strictly belonging to the thing under consideration; not in accordance with truth, fact,

reason, or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong. . . . 3. Not in

accordancewith goodmanners, modesty, or decorum; unbecoming, unseemly;indecorous,

indecent.”), available at https://www.oed.com/oedv2/00113490 (last accessed May 1,

2024).

21
repeated trial court instructions to avoid mention of a particular topic in testimony;27

(2) counsel and a party prolong litigation so as to deprive another party of property in

the interim;

28

(3) a party turns “simple litigation into a complex one” by, inter alia,

filing repeated motions to dismiss, sending overwhelming discovery requests,

threatening criminal prosecution, and taking other actions that abuse the litigation

process;29and (4) a public official or government entity forces a citizen into court

27 See Connolly, 338 Ga.App. at 757 (1) (affirming a trial court’s grant of attorney fees

under OCGA § 9-15-14 (b) when,“[i]n determining that Appellants’ conduct was

improper, the trial court found that prior to the subject testimony, it had admonished

[appellant’s] counsel that it would not allow irrelevant character evidence of the parties’

statements or activities, andwould not permit the parties to impugn each other’s character

in front of the jury” (punctuation omitted)); Corey v. Clear Channel Outdoor, Inc., 299 Ga.

App. 487, 495 (4) (683 SE2d 27) (2009) (physical precedent only) (affirming award under

OCGA § 9-15-14 (b) when trial court concluded a party engaged in improper conduct and

unnecessarily expanded proceedings by mentioning a topic the court had repeatedly

instructed was not to be mentioned in testimony).

28 See In re Estate of Zeigler, 295 Ga. App. 156, 160 (2) (d) (671 SE2d 218) (2008)

(holding trial court did not abuse its discretion in awarding fees under OCGA § 9-15-14 (b)

for unnecessarily expanding proceeding by improper conduct when “[t]he probate court

found that [executrix] and [her attorney] had conducted themselves in a manner to prolong

administration ofthe estate so as to give [executrix] the opportunity to sell the house, citing

among other conduct [executrix’s] request for a continuance of the hearing on the petition

to remove her as executrix and her sale of the house during the period in which the hearing

was continued”).

29 See Dallow v. Dallow, 299 Ga. 762, 777–78 (5) (791 SE2d 20) (2016) (holding that

award of fees under OCGA§ 9-15-14 (b) was supported by findings that appellant filed five

22
unnecessarily.30 Conversely, we have explained there is no improper conduct

motions to dismiss appellee’s complaint for modification; sent appellee 517 requests to

admit; requested appointment of a guardian ad litem six weeks before the trial was

scheduled to start; threatened appellee with prosecution for criminal interference with

custody and with arrest from her job; and made threats in connection with a settlement

proposal that would have required appellee to pay appellant’s lawyer $55,000); see also

Smith v. Pearce, 334 Ga. App. 84, 93 (5) (a) (778 SE2d 248) (2015) (holding trial court did

not abuse its discretion by awarding OCGA § 9-15-14 (b) fees when appellant (1) insisted

appellee submit to a paternity test despite having already done one and appellant’s

stipulation appellee was the father; (2) evading service and filing multiple unsuccessful

motions to dismiss based on lack of service; (3) hiding the child from appellee for 18 months

before insisting on supervised visitation; (4) seeking a psychological evaluation of appellee

two weeks before original trial date; and (5) making dubious allegations that appellee

sexually molested the child and refusing to back down after appellee was cleared of

suspicion); Bienert v. Dickerson, 276 Ga. App. 621, 626–27 (4) (b) (624 SE2d 245) (2005)

(listing the numerous points of evidentiary support for trial court’s award of fees under

OCGA§ 9-15-14 (b) for engaging in “improper conduct which unnecessarily expanded the

proceeding,” including failing to turn over key evidence, engaging in ex parte

communications with a mediator, filing discovery requests after the close of discovery,

filing redundant counts and amendments even after the court ruled on them, and

surreptitiously recording conversations with opposing counsel which resulted in extensive

correspondence and briefing of the issue).

30 See Robinson v. Glass, 302 Ga. App. 742, 746 (691 SE2d 620) (2010) (holding that

an award under OCGA§ 9-15-14 (b) was authorized because “[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 lawa fewdays before a scheduled hearing”); see also McKemie

v. City of Griffin, 272 Ga. 843, 844 (3) (537 SE2d 66) (2000) (holding that an award under

OCGA § 9-15-14 (b) might be authorized because the city “continued to pursue the

condemnation until after the special master made its award and after the condemnees filed

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sufficient to support an award under OCGA § 9-15-14 (b) when (1) a pro se litigant

operates more slowly than an attorney would in litigating a case,31and (2) a party

maintains a defense from the outset, which results in appellate proceedings by the

other party based on the trial court’s erroneous ruling as to that defense.32

It is clear, then, from both the plain language of OCGA § 9-15-14 (b) and our

caselawthat even if the Firm had discovered a conflict existed prior to March 2, 2022,

this is not conduct rising to the level of warranting fees under the statute for

an appeal as to value and non-value issues” but then “elected to redesign the project and

to dismiss its condemnation proceeding,” and “[a]lthough dismissal was financially

beneficial to the City, it also resulted in a financial detriment to the condemnees, whowere

required to incur attorney fees to enforce their constitutional right to receive just and

adequate compensation for their property”).

31See Moore v. Moore-McKinney, 297 Ga. App. 703, 711-12 (4) (678 SE2d 152) (2009)

(“Although [appellant], whowas acting pro se, may have been slower than an attorney, this

is not a finding which shows that he unnecessarily expanded the proceeding by other

improper conduct as contemplated by OCGA § 9-15-14 (b).” (punctuation omitted)).

32 See McGahee v. Rogers, 280 Ga. 750, 754 (2) (632 SE2d 657) (2006) (“[T]here is

simply no evidence of any ‘improper conduct’ on [appellant’s] part which unnecessarily

expandedthe proceeding.He assertedthe discharge in bankruptcy defense fromthe outset.

The first appeal was brought by [appellee] because the trial court erroneously held that it

had no jurisdiction to determine whether the debts were discharged. Accordingly, [the first

appeal] was a necessary expansion of the proceedings attributable to [appellee], and not an

unnecessary expansion attributable to [appellant]. Moreover, attorney’s fees incurred in

connection with appellate proceedings are not recoverable under OCGA § 9-15-14.”).

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“improper conduct.” Our conclusion might very well be different if there were

evidence the Firm knew a conflict existed but deliberately waited until the day of trial

to withdraw as a means of prolonging litigation, but that is not what the evidence

shows or what the trial court found occurred.

Additionally, and importantly, the trial court rejected the Firm’s request to

hear evidence in camera as to why the conflict of interest could not have been

discovered prior to March 2, 2022. In doing so,the trial court erred in suggesting that

it could not hear such evidence without risking disqualification.33 As a result, because

the Firm did not engage in improper conduct as contemplated by OCGA§ 9-15-14 (b),

the trial court abused its discretion by awarding fees against it on this basis, and we

reverse.

33 See Hill, Kertscher & Wharton, LLP v. Moody, 308 Ga. 74, 81 (3) (839 SE2d 535)

(2020) (explaining that a trial court must “protect against disclosure of the mental

impressions, conclusions, opinions, or legal theories of an attorney or other representative

of a party concerning the litigation, including, if necessary, through in camera review”

(citation & punctuation omitted)); Howard v. State, 279 Ga. 166, 170 (611 SE2d 3) (2005)

(noting that “after an in-camera inspection, the trial court determined that no confidential

communications were implicated” through attorney-client privilege).

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2. Because we conclude the trial court erred in awarding fees under OCGA §

9-15-14 (b) in Division 1, we need not address the Firm’s remaining arguments as to

the amount of fees the court awarded.

For all these reasons, we reverse the trial court’s judgment as to the Firm.34

Judgment reversed. Brown and Padgett, JJ., concur.

34 The trial court awarded fees to Barken under OCGA § 9-15-14 (b) against both the

Firm and the City of Atlanta; but the City is not a party to this appeal, did not file an

appellate brief, and did not join the Firm’s brief.

We thank the Georgia Municipal Association for its thoughtful amicus brief.

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