In Gibson Constr. Co. v. GAA Acquisitions I, LLC , 307 Ga. App. 698 705 SE2d 913 2011 “Gibson I “, we affirmed an award of summary judgment in this case to GAA Acquisitions I, LLC, and in doing so, we rejected the proposition that an agreement modifying the terms of a deed to secure debt always must be recorded. 307 Ga. App. at 700-701. That proposition had been urged upon us by Gibson Construction Company, and it was an essential premise of the claims that Gibson Construction asserted against GAA Acquisitions. Following our decision in Gibson I , the court below awarded attorneys’ fees to GAA Acquisitions under OCGA § 9-15-14 a, concluding that the proposition urged by Gibson Construction was so clearly without merit that no one reasonably might have believed that a court would accept it. Gibson Construction now appeals from the award of attorneys’ fees,1 and we reverse. The facts of the underlying dispute are set out at length in our opinion in Gibson I , see 307 Ga. App. at 698-699, and we will not repeat here everything that we said before. It is enough to note that GAA Acquisitions had a security deed to certain real property in Fulton County, that Gibson Construction had a special lien upon the same real property, that the security deed was superior to the lien, and that GAA Acquisitions foreclosed upon the security deed. Whether the special lien was extinguished by the foreclosure depended on whether the proceeds of the foreclosure exceeded the indebtedness secured by the deed. GAA Acquisitions said that they did not, and it pointed to the terms of an agreement modifying the original security deed in support of its valuation of the indebtedness secured. Gibson Construction said, however, that the indebtedness secured had to be valued under the terms of the original security deed because the agreement that modified it never had been recorded. GAA Acquisitions responded that the law does not require the recording of an agreement that modifies a security deed. Gibson Construction sued GAA Acquisitions, and GAA Acquisitions moved for summary judgment, squarely presenting the court below with the competing arguments about whether an agreement modifying a security deed must be recorded. The court below agreed with GAA Acquisitions, and when Gibson Construction appealed, so did we. See id. at 699-701.
After we issued our decision in Gibson I , the court below awarded attorneys’ fees under OCGA § 9-15-14 a, which absolutely requires such an award in any civil case in which a party has pressed an argument so clearly without merit that no one reasonably might think a court would accept it: 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. OCGA. § 9-15-14 a. In its consideration of the question of attorneys’ fees, the court below pointed first to our decision in Aetna Casualty & Surety Co. v. Valdosta Fed. Savings & Loan Assn. , 175 Ga. App. 614 333 SE2d 849 1985, which makes clear, the court said, that an agreement modifying a security deed is not itself a security deed. The court reasoned that, although a security deed must be recorded, see OCGA § 44-14-63 a, it does not follow in light of Aetna that an agreement modifying a security deed also must be recorded. So, the court found, to make out a colorable claim, Gibson Construction had to point to some statute, case, or other authority specifically dealing with an agreement modifying a security deed and suggesting that it must be recorded. Because Gibson Construction failed to do so, the court concluded, an award of attorneys’ fees was required.
