                               SECOND DIVISION
                                DILLARD, C. J.,
                             REESE 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


                                                                  September 29, 2017




In the Court of Appeals of Georgia
 A17A0961. ROBERT H. MCNAIR, AS CO-EXECUTOR OF THE
     ESTATE OF W. O. MCNAIR v. RICHARD “RICHIE”
     HAROLD MCNAIR et al.

      REESE, Judge.

       In the third appearance of this case before this Court, Robert H. McNair (“the

Appellant”) appeals the award of attorney fees against him individually,1 in relation

to the jury trial on his petition contesting the will of Hazel McNair (“H. McNair”).2

For the reasons set forth infra, we reverse.


      1
         This matter is before this Court from our grant of an application for
discretionary appeal.
      2
        Previously, this matter came before this Court on the Appellant’s appeal of
the judgment on a jury verdict allowing the will of H. McNair to be probated in
solemn form. The appeal was initially transferred to the Supreme Court of Georgia,
which transferred the matter back to this Court, finding that “this appeal does not
concern the validity or meaning of the will of [H. McNair].” This Court dismissed the
appeal based on the lack of jurisdiction.
        The following are the pertinent facts from the record. Upon the death of H.

McNair, her will dated September 17, 2001, was filed for probate in solemn form in

the Turner County Probate Court in November 2011. Two co-executors, Richard

McNair and Penny Thompson (“the Appellees”), were appointed under H. McNair’s

will.

        H. McNair’s brother, W. O. McNair, filed a caveat to the probate of her will.

The Appellant, W. O. McNair’s son, filed an affidavit with the caveat. After a

hearing, the probate court issued an order on June 12, 2013, denying the petition to

probate the will in solemn form. The Appellees filed a notice of appeal of the probate

court’s order in the Superior Court of Turner County on June 21, 2013.

        W. O. McNair passed away on July 27, 2013. His will appointed three co-

executors: W. O. McNair, Jr., Thompson, and the Appellant.3 Prior to the trial in

superior court regarding H. McNair’s will, the Appellees filed a motion to substitute

parties. After a hearing,4 the superior court entered an order substituting the three

named co-executors of W. O. McNair’s estate in place of W. O. McNair. The appeal

of the probate court’s order was tried before a jury on September 15 and 16, 2014,

        3
            W. O. McNair’s will is not part of the record.
        4
            There is no hearing transcript in the record on the motion to substitute parties.

                                               2
and resulted in a jury verdict to probate H. McNair’s will, dated September 17, 2001,

in solemn form. The superior court entered a judgment on the verdict.5

      After the jury trial, the Appellees filed a motion for attorney fees against the

Appellant,6 pursuant to OCGA § 9-15-14 (b).7 After a hearing, the superior court

awarded attorney fees against the Appellant in the amount of $22,099.75 under

OCGA § 9-15-14, without specifying the subsection.




      5
        This Court dismissed the Appellant’s appeal from the verdict. See footnote
2, supra.
      6
      The Appellees did not seek attorney fees from the Appellant’s co-executors,
Thompson and W. O. McNair, Jr.
      7
        OCGA § 9-15-14 (b) states:
      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 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 available
      under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used
      in this Code section, “lacked substantial justification” means
      substantially frivolous, substantially groundless, or substantially
      vexatious.

                                           3
       1. As an initial matter, “an order awarding attorney fees pursuant to [OCGA §

9-15-14] must specifically state whether the award is made under OCGA § 9-15-14

(a) or (b).”8

       [T]he court must make express findings of fact and conclusions of law
       as to the statutory basis for any such award and the conduct which
       would authorize it. Specificity in the award is important because the
       standards of appellate review are different under each subsection: the
       standard under subsection (a) is the any evidence rule; the standard
       under subsection (b) is abuse of discretion.9


       As noted above, the award of attorney fees here fails to identify the subsection

of the statute under which the superior court awarded the attorney fees. However, the


       8
      Landry v. Walsh, ___ Ga. App. ___ (2) (801 SE2d 553) (2017) (Case Nos.
A17A0449, A17A0450) (citation omitted). In contrast, OCGA § 9-15-14 (a) states:
    In any civil action in any court of record of this state, 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. 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.
       9
      Fulton County School Dist. v. Hersh, 320 Ga. App. 808, 814-815 (2) (740
SE2d 760) (2013) (citations and punctuation omitted).

                                           4
superior court’s order stated that the Appellant’s claim “was interposed for delay and

harassment and the caveat pursued lacked substantial justification, was substantially

frivolous and substantially groundless.”

      We find that the language used by the trial court is similar to the wording of

OCGA § 9-15-14 (b).10 Also, the trial court conducted an evidentiary hearing

pursuant to OCGA § 9-15-14 to address the Appellees’ motion for attorney fees under

subsection (b).11 Based on the language contained in the order awarding attorney fees,

which tracked the language in OCGA § 9-14-15 (b), and the transcript of the

evidentiary hearing, we conclude that the superior court awarded attorney fees under

OCGA § 9-15-14 (b).12


      10
         See Ellis v. Caldwell, 290 Ga. 336, 339-340 (2) (a) (720 SE2d 628) (2012)
(The trial court’s use of the language “unnecessarily litigious” in awarding attorney
fees pursuant to OCGA § 9-15-14 was sufficient to identify the conduct as falling
under OCGA § 9-15-14 (b).); see also Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60,
64 (2) (537 SE2d 670) (2000) (“There is no magic in nomenclature, and we judge
pleadings, motions and orders not by their name but by their function and substance,
being always mindful to construe such documents in a manner compatible with the
best interests of justice.”) (footnote omitted).
      11
        See Ellis, 290 Ga. at 340 (2) (b) (A party is entitled to an evidentiary hearing
to “confront and challenge the value and the need for legal services claimed” under
OCGA § 9-15-14 (b) prior to the award of attorney fees.).
      12
          See Kim v. Han, 339 Ga. App. 886, 889 (2) (795 SE2d 191) (2016) (Despite
the trial court’s failure to identify under which subsection of OCGA § 9-15-14 it

                                           5
      Therefore, we will review the Appellant’s claims using the abuse of discretion

standard.13 With this guiding principle in mind, we now turn to the Appellant’s

specific claims of error.

      2. The Appellant argues that the superior court erred in awarding the Appellees

attorney fees for defending H. McNair’s will against the caveat filed by W. O.

McNair. We agree.

      The Appellees sought attorney fees, pursuant to OCGA § 9-15-14 (b), alleging

the Appellant brought the caveat on behalf of his father for the purposes of “delay and

harassment” while they sought to probate the will of H. McNair. “Implicit in the

language of [OCGA] § 9-15-14 is that a court of record of this state may impose

reasonable and necessary attorney fees and expenses of litigation for proceedings

before that court, which were brought for purposes of harassment or delay or lacked

substantial justification.”14


awarded attorney fees, the language in the order tracked the language in OCGA § 9-
15-14 (b).); see also Williams v. Warren, 322 Ga. App. 599, 602 (1) (745 SE2d 809)
(2013) (Because the trial court’s findings substantially tracked OCGA § 9-15-14 (a),
the failure to specify the subsection was not fatal to the award.).
      13
           See Ellis, 290 Ga. at 339-340 (2) (a).
      14
         Dept. of Transp. v. Franco’s Pizza & Delicatessen, 200 Ga. App. 723, 728
(5) (409 SE2d 281) (1991), overruled on other grounds, White v. Fulton County, 264

                                            6
      (a) In the order awarding attorney fees to the Appellees, the superior court

made several findings of fact based on conduct that occurred while this case was

under the jurisdiction of the Turner County Probate Court, prior to the appeal of the

probate court’s order to the superior court. For example, in its findings of fact, the

superior court stated that “[t]he parties initially agreed to have the case heard in

Superior Court in the interests of judicial economy, but after a Superior Court hearing

was requested by [the Appellees] (after the six month discovery time allowed in

Superior Court ha[d] expired), the attorney for [the Appellant] notified the

[Appellees] that his client had ‘changed his mind.’” This finding of fact mirrors the

assertion made in the Appellees’ motion for attorney fees, which references a letter

written by the Appellant’s attorney dated August 9, 2012, while this matter was still

pending in the probate court.

      The superior court’s order also references a letter written to the Appellant from

his attorney dated February 22, 2012, that discusses the delay of the case. In addition,

the order states that “[i]t took seven (7) months to come up with a [hearing] date that

was satisfactory with the [Appellant]” due to numerous conflicts claimed by his

attorney. The superior court also found that a bill for legal services provided in the

Ga. 393 (444 SE2d 734) (1994) (emphasis in original).

                                           7
probate court by the attorney for W. O. McNair was paid by W. O. McNair’s estate,

even though the payment receipt listed the Appellant as the attorney’s client. The

order, however, does not indicate how the payment of the bill by the estate constituted

sanctionable conduct by the Appellant under OCGA § 9-15-14 (b).

       Pretermitting whether the Appellant’s conduct authorized the award of attorney

fees, this conduct occurred prior to the June 21, 2013 appeal of the probate court’s

order to the superior court. Therefore, it was improper for the superior court to

consider such conduct in its award of attorney fees.

       Moreover, the Appellant prevailed on the caveat to the will in the probate

court. It follows that the Appellees were not entitled to any attorney fees arising from

their unsuccessful effort to probate the will in the probate court.

       Thus, the award of attorney fees arising from conduct occurring in the probate

court must be reversed.15

       (b) In addition, the only reference to potentially sanctionable conduct by the

Appellant in the superior court’s order for attorney fees is its finding that the

Appellant’s counsel filed “a series of motions requiring multiple hearings which

resulted in the case being delayed until a jury trial could be held in the fall of 2014[.]”

       15
            See Dept. of Transp., 200 Ga. App. at 728 (5).

                                            8
However, the court did not identify the motions, address their merit, or state their

outcome in its order. We find that the court’s findings of sanctionable conduct in the

superior court are not supported by the record.

      The Appellees appealed this matter to the superior court on June 21, 2013. On

January 14, 2014, the superior court issued a notice of a de novo hearing on their

appeal. Ten days later, the Appellant’s attorney filed an entry of appearance, a motion

for continuance so that he could prepare for the case, a demand for a jury trial, and

an objection to the notice of the de novo hearing. In addition, on February 13, 2014,

the Appellant filed a motion to recuse the judge assigned to the case.16

      Around the same time, the Appellees also retained additional counsel, as

reflected in an entry of appearance filed February 12, 2014, yet they filed no

responses to the Appellant’s motions.

      There is nothing in the record to show that the motions filed by the Appellant’s

counsel lacked merit or were frivolous. Further, there is no evidence to support a

finding that the Appellant conducted himself improperly in the superior court,



      16
        The judge recused herself on February 18, 2014, and a new judge was
appointed the next day. Thus, it does not appear that the Appellant’s filing of the
motion to recuse was frivolous or delayed the trial in the superior court.

                                          9
unnecessarily expanded the proceedings, or harassed the Appellees.17 Significantly,

the fact that the Appellant prevailed on his caveat in the probate court demonstrates

that his challenge to the will did not lack substantial justification, was not

substantially frivolous, and was not substantially groundless.

      Even though the Appellant prevailed on his caveat in the probate court, he

failed to successfully defend the caveat on appeal in the superior court. Although the

Appellees prevailed at trial, an award of attorney fees under OCGA § 9-15-14 (b) is

not automatic.18

      No [one] is bound to forego litigation at the expense of yielding rights
      apparently well founded. Where there is a bona fide controversy for the


      17
        See Doster v. Bates, 266 Ga. App. 194, 197 (2) (596 SE2d 699) (2004)
(award of attorney fees under OCGA § 9-15-14 (b) reversed because the record
contained no evidence of unnecessary expansion, harassment or other improper
conduct).
      18
          See Harkleroad v. Stringer, 231 Ga. App. 464, 472 (6) (a) (499 SE2d 379)
(1998) (“A trial court must limit sanctions to those fees incurred because of
sanctionable conduct, so fees incurred in pursuing an unsuccessful claim would not
be recoverable.”) (footnote omitted); see also Coker v. Mosley, 259 Ga. 781, 782 (2)
(c) (387 SE2d 135) (1990) (Merely defending an action brought against a party is
insufficient to authorize an award of legal fees under OCGA § 9-15-14.); Stewart v.
Tricord, LLC, 296 Ga. App. 834, 836 (1) (676 SE2d 229) (2009) (The trial court did
not abuse its discretion by denying the award of attorney fees under OCGA § 9-15-14
(b), although the record reflected lengthy, acrimonious litigation between the
parties.).

                                         10
      tribunals to settle, and the parties cannot adjust it amicably, there should
      be no burdening of one with the counsel fees of the other, unless there
      has been wanton or excessive indulgence in litigation.19


      Because the findings of the trial court include events that occurred prior to the

Appellees’ appeal to the superior court, and the remainder of the findings are not

supported by the record, we conclude that the trial court abused its discretion in

awarding attorney fees under OCGA § 9-15-14 (b).20

      3. In view of our holding in Division 2, supra, we need not address the

Appellant’s remaining claims of error.21

      Judgment reversed. Dillard, C. J., and Bethel, J., concur.




      19
       Carpet Transport v. Dixie Truck Tire Co., 185 Ga. App. 181, 183 (1) (363
SE2d 840) (1987) (citation and punctuation omitted; emphasis in original).
      20
         See The Gibson Law Firm v. Miller Built Homes Inc., 327 Ga. App. 688,
690-691 (2) (761 SE2d 95) (2014) (Because the record did not support the findings
of sanctionable conduct in the trial court’s order, the award of attorney fees pursuant
to OCGA § 9-15-14 (b) was improper.).
      21
        See Doster, 266 Ga. App. at 197 (3) (“In view of our holding . . . , we need
not address [the Appellant’s] remaining enumerations of error.”).

                                           11
