Bircoll v. Rosenthal

Dr. Lawrence Bircoll and his wife, Andrea Jaron, purchased a home from Herman and Selma Rosenthal in March 2000. After moving in, Bircoll and Jaron discovered a number of problems, including an active termite infestation and water intrusion. They sued the Rosenthals; the Rosenthals’ real estate agent, Sandra Flattery; and Flattery’s brokerage firm, HN Real Estate Group. The complaint alleged fraud, conspiracy to defraud, breach of contract, and breach of the Brokerage Relationships and Real Estate Transactions Act BRETA.1 After conducting discovery, Bircoll and Jaron voluntarily dismissed all claims. The defendants then moved for attorney fees and costs under OCGA § 9-15-14 a and OCGA § 9-15-14 b. The trial court granted the motions, ordering Bircoll and Jaron to pay fees and costs to the Rosenthals; and ordering Bircoll and Jaron and their lawyer, William Gardner, to pay fees and costs to Flattery and HN. In Case No. A04A0346, Bircoll and Jaron appeal both fee awards. In Case No. A04A0347, Gardner appeals the award to Flattery and HN. We consolidate these cases on appeal and affirm both.

Under OCGA § 9-15-14 a, a trial court must award attorney fees and litigation expenses “to any party against whom another party has asserted a claim . . . 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.” In reviewing a fee award under OCGA § 9-15-14 a, we determine whether the claim in question had some factual merit or presented a justiciable issue of law.2 We affirm the award if there is any evidence to support it.3