                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, 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.
                                http://www.gaappeals.us/rules


                                                                      March 5, 2018




In the Court of Appeals of Georgia
 A17A2125. TANNER MEDICAL CENTER, INC. d/b/a TANNER
     MEDICAL CENTER - VILLA RICA et al. v. VEST
     NEWNAN, LLC d/b/a NEWNAN BEHAVIORAL
     HOSPITAL et al.

      BRANCH, Judge.

      This is the second appearance of this certificate-of-need case before this Court.

In Tanner Med. Center v. Vest Newnan, LLC, 337 Ga. App. 884 (789 SE2d 258)

(2016), we reversed the superior court and affirmed the Department of Community

Health’s denial of a certificate of need to Vest Newnan, LLC (Vest), which had

proposed to establish an inpatient psychiatric hospital in Coweta County. Id. at 893

(3). On remand from our decision, appellants Tanner Medical Center (Tanner) and the

Department moved for attorney fees under OCGA § 31-6-44.1 (c), which provides

that “[a] party responding to an appeal to the superior court [from a final decision of
an administrative agency] shall be entitled to reasonable attorney’s fees and costs if

such party is the prevailing party of such appeal as decided by final order[.]” The

superior court denied appellants’ motion on the grounds that they had not prevailed

in the superior court and that Vest’s constitutional challenge to the Department’s

ruling exempted it from paying appellants’ fees. On this second appeal, appellants

argue that in light of this Court’s reversal of the superior court’s decision to grant

Vest a certificate, they are indeed the “prevailing party” such that they are entitled to

fees under OCGA § 31-6-44.1 (c). We agree and once again reverse.

      This appeal concerns the superior court’s interpretation of a statute, OCGA §

31-6-44.1 (c), which we review de novo. Lakeview Behavioral Health System v. UHS

Peachford, LP, 321 Ga. App. 820, 822 (1) (743 SE2d 492) (2013) (applying de novo

review to a superior court’s interpretation of OCGA § 31-6-44.1 (c)). The undisputed

facts show that in August 2013, Vest submitted an application to the Department for

a certificate of need to establish a 60-bed psychiatric hospital in Coweta County. In

December 2013, the Department denied the certificate on the grounds that Vest had

shown neither a service-specific need nor that existing programs would not be

adversely impacted and that the project was not reasonably consistent with the goals

and objectives of the State Health Plan. Vest then filed an appeal to the superior

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court, including a challenge to the constitutionality of the so-called “service-specific

need rule,”1 which requires an applicant for a new or expanded psychiatric or

substance abuse inpatient program to demonstrate that there is a need for the

proposed service in the planning area. The superior court reversed the Department’s

denial of the certificate on the grounds that the service-specific need rule was

unconstitutional on its face, and that the Department had been arbitrary and

capricious in not taking any notes during its review of Vest’s application, in not

performing any need or adverse impact analysis, and in failing to give Vest notice that

construction costs were material to its application. Tanner, 337 Ga. App. at 886-887.

      We granted appellants’ applications for discretionary review of the superior

court’s decision. Shortly after the docketing of the discretionary appeal, appellants

moved this Court to award them attorney fees “subsequent to reversing or vacating”

      1
        See, e.g., Ga. Comp. R. & Regs. 111-2-2-.26 (3) (a) (“An application for a
new or expanded psychiatric and/or substance abuse inpatient program(s) shall
provide sufficient documentation of the need for such program(s) in the planning
area. In the case of an application for an expanded psychiatric and/or substance abuse
inpatient program, the applicant shall justify the need for the expansion by, at a
minimum, documenting that the expansion program has achieved an occupancy rate
of 80 percent for an adult program or an occupancy rate of 70 percent for a pediatric
program for the most recent 12 months prior to submitting an application, except that
a pediatric program which has obtained an occupancy rate of 65 percent may be
permitted to expand if such program demonstrates clinical reasons why 70 percent
occupancy is not attainable.”) (Emphasis supplied).

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the superior court. On July 12, 2016, we issued our decision, concluding (inter alia)

that the Department had not acted in an arbitrary or capricious manner and that the

evidence supported the Department’s conclusion that Vest “did not meet its burden

of establishing no adverse impact on similar existing programs.” Tanner, 337 Ga.

App. at 889-893, (2) (3). Noting that this result mooted the question of the need rule’s

constitutionality, we reversed the superior court and affirmed the Department’s

decision to deny a certificate to Vest. Id. at 893-894 (3), (4). Two days later, on July

14, 2016, we denied Tanner’s motion for attorney fees. We explained that OCGA §

31-6-44.1 (c) “governs the trial court’s authority to award fees to the prevailing party

following a final order, which, in light of this court’s reversal in part of the trial

court’s judgment, will be issued following the return of the remittitur to the trial

court.” (Emphasis supplied.) None of the parties to these decisions sought review of

any of them in the Supreme Court of Georgia.

      On remand, and in accordance with this Court’s judgment, the superior court

issued an order stating that “[Vest’s] Petition for Judicial Review [is] denied.”

Appellants then moved for attorney fees under OCGA § 31-6-44.1 (c). After a

hearing, the superior court denied the motion on two grounds: (1) appellants were not

the “prevailing parties before this Court” because OCGA § 31-6-44.1 (c) “does not

                                           4
contemplate an award of attorney’s fees through the appellate courts or after remitter”

[sic]; and (2) Vest’s argument as to the unconstitutionality of the need rule

“permeated” the Department’s final decision to deny the certificate such that

appellants could not recover any fees. This appeal followed.2

      1. Tanner and the Department first assert that the trial court erred when it

concluded that because they were not the “prevailing parties” in this matter, they were

not entitled to attorney fees. We agree.

      OCGA § 31-66-44.1 (c) provides:

      (c) A party responding to an appeal [of an administrative agency’s final
      decision] to the superior court shall be entitled to reasonable attorney’s
      fees and costs if such party is the prevailing party of such appeal as
      decided by final order; provided, however, the department shall not be
      required to pay attorney’s fees or costs. This subsection shall not apply


      2
         Appellants filed an application for discretionary appeal, which was granted
because it was properly a direct appeal, as no such application is required to appeal
a post-judgment attorney fee award by the superior court unless that award is made
pursuant to OCGA § 9-15-14. See Kraft v. Dalton, 249 Ga. App. 754, 755, n. 2 (549
SE2d 543) (2001) (no discretionary application is required to appeal a fee award
made under OCGA § 13-6-11); OCGA § 5-6-35 (a) (10) (a discretionary application
is required to appeal a fee award under OCGA § 9-15-14); OCGA § 5-6-35 (j) (when
a direct appeal is initiated “by filing an otherwise timely application for permission
to appeal pursuant to [the discretionary appeal procedure] without also filing a timely
notice of appeal, the appellate court shall have jurisdiction to decide the case and
shall grant the application”).

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      to the portion of attorney’s fees accrued on behalf of a party responding
      to or bringing a challenge to the department’s authority to enact a rule
      or regulation or the department’s jurisdiction or another challenge that
      could not have been raised in the administrative proceeding.


(Emphasis supplied.) And OCGA § 9-11-60 (h) provides that “any ruling by the

Supreme Court or the Court of Appeals in a case shall be binding in all subsequent

proceedings in that case in the lower court and in the Supreme Court or the Court of

Appeals as the case may be.”

      The superior court’s order on remand from this Court denied Vest’s petition,

thus establishing that appellants were the “prevailing parties” of the appeal to

superior court “as decided by final order” of that court. OCGA § 31-66-44.1 (c). As

our order of July 14, 2016 noted, moreover, it was for the trial court, and not this

Court, to order attorney fees to appellants as the prevailing parties — a conclusion

that became law of the case when neither party pursued any further appeal from this

Court’s decision to our Supreme Court. See Fortson v. Hardwick, 297 Ga. App. 603,

604-605 (1) (677 SE2d 784) (2009) (law-of-the-case doctrine applied to bar an action

for bad-faith attorney fees when the Court of Appeals had “expressly” barred that

action in a previous opinion). Our previous order also noted, consistent with the terms

of OCGA § 31-6-44.1 (c), that a fee award in favor of appellants “will be issued

                                          6
following the return of the remittitur to the trial court.” (Emphasis supplied.) This

holding too became law of the case, binding the superior court and the parties in all

further proceedings, including this one, and the trial court erred when it concluded

otherwise.

      2. Appellants also argue that the superior court erred when it held that Vest’s

constitutional arguments “permeated” its petition such that no portion of appellants’

fees could be recovered. Again, we agree.

      Although OCGA § 31-6-44.1 (c) does bar the recovery of fees as to a

“challenge to the department’s authority to enact a rule or regulation or the

department’s jurisdiction or another challenge that could not have been raised in the

administrative proceeding,” our previous decision specifically affirmed the

Department’s denial of the certificate on grounds independent of Vest’s constitutional

challenge to the need rule, thus mooting those issues. Tanner, 337 Ga. App. at 894

(4). The statute also bars recovery only as to “the portion” of a challenge raising a

constitutional issue. OCGA § 31-6-44.1 (c). Further, the evidence presented in

support of appellants’ motion for fees also specifically omitted the portion of fees

incurred as a result of their constitutional challenge.



                                           7
      Given that appellants, having prevailed below, “shall be entitled to reasonable

attorney’s fees and costs” under OCGA § 31-6-44.1 (c), a hearing limited to the

calculation of the specific amount of those fees and costs awaits the superior court on

the second remand of this action. See Heiskell v. Roberts, 342 Ga. App. 109, 117 (4)

(802 SE2d 385) (2017) (a trial court considering the issue of reasonable attorney fees

under OCGA § 9-15-14 is under an “affirmative duty” to “hear evidence” and to

“allow the cross-examination of counsel as to the necessity, reasonableness, and

amount of work done” before imposing an award) (citation and punctuation omitted).

      Judgment reversed and case remanded with direction. McFadden, P. J., and

Bethel, J., concur.




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