Hill v. Clarke

In denying the prevailing party's motion for attorneys' fees the superior court erroneously grounded its order in equity, rather than in law.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Clifford Hill brought this action in mandamus against Walter Clarke, in his official capacity as Judge of the Probate Court of Gwinnett County “Judge Clarke” upon Judge Clarke’s denial of his application for a Georgia firearms license “GFL”. After prevailing in the mandamus action, Hill filed a request for attorney fees pursuant to OCGA § 16-11-129 j. The superior court denied Hill’s motion, finding that “relative equities would be best served” if each party were solely responsible for their own fees. Hill appeals, contending that the superior court’s failure to award attorney fees was in contravention of the statute. Because the superior court based its decision on an erroneous legal theory, we must reverse. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review. Cit.” Suarez v. Halbert , 246 Ga. App. 822, 824 1 543 SE2d 733 2000.

The record shows that Hill applied to Judge Clarke for a GFL pursuant to OCGA § 16-11-129 on May 19, 2009. Based upon a statutory interpretation of OCGA § 16-11-129 b 3 and b 5 A, as in effect at that time,1 Judge Clarke denied the application. In doing so, Judge Clarke determined that Hill was ineligible for a GFL due to his record of prior drug convictions. The record showed that Hill had entered a first offender plea to a drug charge in 1974 and had been convicted of subsequent drug charges in 1977 and 1978. On June 29, 2009, Hill moved for reconsideration of such ruling based upon an unconditional pardon issued to him in 1988 by the State Board of Pardons and Paroles, which among other things, included the restoration of the right to bear arms. Judge Clarke denied Hill’s motion for reconsideration.

Hill v. Clarke

In denying the prevailing party's motion for attorneys' fees the superior court erroneously grounded its order in equity, rather than in law.

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report