Steven E. Marshall, Builder, Inc. v. Scherer

Cooper, Judge. We granted this discretionary appeal to consider whether the trial court erred in assessing attorney fees against Steven E. Marshall, individually, pursuant to OCGA § 9-15-14. Appellant sued appellee for breach of a construction contract and conversion. At trial, the court directed a verdict in favor of appellant on the breach of contract claim and directed a verdict for appellee on the conversion claim. Appellee then moved the court for an award of attorney fees against appellant, appellant’s trial counsel and Steven E. Marshall (“Marshall”), individually, pursuant to OCGA § 9-15-14. The court granted appellee’s motion, assessing one-half of the award against Marshall and the other half against appellant’s counsel. Appellant enumerates as error the trial court’s award against Marshall, individually, because he was not a party or attorney in the case. Appellee contends that the findings of the trial court demonstrate that Marshall was directing appellant’s activities and that appellant was nothing more than Marshall’s alter ego. However, the trial court did not reach such a conclusion nor was the issue raised by appellee below. OCGA § 9-15-14 authorizes an award of attorney fees against an attorney or party which the court finds brought or defended an action that lacked substantial justification or was interposed for delay or harassment. Although the trial court refers to Marshall individually in its findings, the record demonstrates that Marshall is not a party in the case; therefore, the court was without authority to impose fees against him under OCGA § 9-15-14. See Watkins v. M & M Clays, 199 Ga. App. 54 (3a) (404 SE2d 141) (1991). Judgment reversed. Sognier, C. J., and McMurray, P. J., concur.