Horesh v. DeKinder

Joseph Horesh appeals from an order awarding attorney fees against him and in favor of Samuel and Cynthia DeKinder. Horesh claims that the trial court erred in granting the DeKinders’ attorney fees motion because: 1 the DeKinders failed to file that motion within 45 days following the trial court’s final disposition of the case, as required by OCGA § 9-15-14, and the trial court therefore lacked jurisdiction to consider it; and 2 his claims against the DeKinders were substantially justified. Finding that the DeKinders’ motion was untimely, we reverse. “The question of whether the trial court had jurisdiction to hear the DeKinders’ motion is a purely legal issue and we owe no deference to the trial court’s ruling, which we review de novo under the ‘plain legal error’ standard of review. Cit.” Harris v. Werner , 278 Ga. App. 166, 167 628 SE2d 230 2006.

The record shows that Horesh initiated the current action in the Magistrate Court of Fulton County, on March 17, 2005. In his complaint, Horesh asserted that the DeKinders had breached a written real estate sales contract and a subsequent oral agreement relating to that contract, and he sought $11,000 in actual damages plus costs and attorney fees. On July 18, 2005, the Magistrate Court entered judgment for Horesh in the amount of $200, and Horesh appealed that decision to the State Court of Fulton County. The State Court entered an order granting summary judgment in favor of the DeKinders on August 29, 2006. On September 28, 2006, Horesh filed an application for a discretionary appeal, which this Court denied on October 19, 2006.