IN THE STATE COURT OF GWINNETT COUNTY

STATE OF GEORGIA

MIDLAND FUNDING, LLC ASSIGNEE OF

CHASE BANK (USA) N.A.

Plaintiff

vs. CIVIL ACTION FILE

NO. 10-C-07271 - S4
JILL SHERIDAN

Defendant

PLAINTIFF'S R~SPONSE TO DEFENDANT'S MOTION FOR ATTORNEY FEES

COMES NOW Plaintiff and responds that Defendant's Motion for

Attorney Fees should be denied and as grounds therefor shows the

Court the following:

STATEMENT OF THE CASE

Plaintiff disagrees with Defendant's statement of the

procedural history of this case and will attempt to give the

Court a clear chronology of events rather than dwelling on

irrelevancies such as the Plaintiff's counsel's handling of

appeals cases involving parties unrelated to either the Defendant

or the Plaintiff in this action.

Plaintiff filed this action on account on May 5, 2010.

Defendant was served with the summons and complaint on June 14,

2010. Defendant filed its answer and counterclaim on June 14,

2010. The parties exchanged discovery requests and responses. On

December 6, 2010, Defendant filed her Motion to Compel and/or

Motion in Limine, but did not notice the motion for hearing, as

the court had previously set trial for December 9.

 At the call of the action for trial, Plaintiff rested

without presenting evidence and moved the Court to strike or

dismiss the Defendant's Counterclaim. The Court declined to do so

but indicated it would enter a judgment for the Defendant as to

Plaintiff's lawsuit.

At that time, there stands before the Court the Defendant's

Plaintiff's Motion for attorney fees and expenses of litigation.

ARGUMENT AND CITATIONS OF LAW

1. Plaintiff's action was not so devoid of merit as to require

an award under O.C.G.A. § 9-15-14.

It is patent that there did not exist in this case "a

complete absence of any justiciable of law or fact that it could

not be reasonably believed that a Court would accept the asserted

claim". O.C.G.A. § 9-15-14(a). Defendant's filing completely

ignores the fact that the case was forced to trial by Defendant's

improper counterclaim for attorney fees.

Defendant's Counterclaim is based solely on Plaintiff's

alleged negligent and/or malicious conduct in bringing this

action to collect a debt which has allegedly already been paid,

See Defendant's Counterclaim, ~~. 9-11, and requested an award of

attorney fees and expenses of litigation pursuant to O.C.G.A. §

9-15-14. However, a counterclaim is not the proper vehicle for

doing so. In Deavours v. Hog Mountain Creations, Inc. , 207

Ga.App. 557, 428 S.E.2d 388 (1993), the Court of Appeals held

that O.C.G.A. 9-15-14 requires that an award of attorney fees for

bringing an action must be requested by motion, rather than by

counterclaim. This portion of the Court's opinion was upheld by

the Supreme Court in Betallic, Inc. v. Deavours, 263 Ga. 796, 439

S.E.2d 643 (1994).

Defendant also alleged that Plaintiff "has been stubbornly

litigious in this matter, has acted in bad faith, and has forced

Defendant to incur unnecessary trouble and expense", tracking

the language of O.C.G.A. § 13-6-11. However, attorney fees under

this code section are not available to a defendant in the absence

of a viable independent counterclaim asserting a claim for relief

independent of the assertion of the plaintiff's harassment,

litigiousness and bad faith in bringing suit. Alcovy Properties,

Inc. v. MTW Investment Co., 212 Ga. App. 102, 441 S.E.2d 288

(1994). In White v. Lance H. Herndon, Inc., 203 Ga.App. 580, 417

S.E.2d 383 (1992), a defendant whose counterclaim was dismissed

prior to submission of the case to the jury appealed the trial

court's refusal to submit to the jury the issue of defendant's

recovery of attorney fees and expenses. The Court of Appeals

affirmed, holding that since "Appellant does not contend that his

independent counterclaim against appellee was viable, it follows

that the trial court correctly refused to submit to the jury the

issue of his entitlement to a recovery under O.C.G.A. § 13-6-11."

203 Ga.App. at 581, 417 S.E.2d at 385. See also Ramsey v.

Phillips, 131 Ga. 440(2), 62 S.E. 527 (1908) ("There is no law by

which every case brought by a plaintiff can be turned into a

damage suit by the defendant against the plaintiff for bringing

it, while it is still pending.") The Defendants insistence on

maintaining a counterclaim which was in itself frivolous is the

sole cause of the protracted nature of this litigation.

Therefore, the Defendant is not entitled to attorney's fees

regardless of the outcome of this case.

2. Defendant cannot recover attorney fees as an unrepresented

party.

Defendant seeks to recover fees paid to an attorney who

moved to withdraw from representation less than ten (10) days

after the filing of the answer in this case. "[P]ro se litigants

who are not attorneys cannot recover attorney fees because of the

lack of any meaningful standard for calculating the amount of the

award." JarAllah v. American Culinary Federation, Inc., 242

Ga.App. 595, 596, 529 S.E.2d 919, 921 (2000). Compare Harkleroad

v. Stringer 231 Ga.App. 464, 499 S.E.2d 379 (1998) (law firm

which sued former client to collect fees could recover additional

fees under O.C.G.A. § 9-15-14); But cf. Kay v. Ehrler, 499 u.s.
432 (1991) (attorney who represented self could not be awarded

fees under federal civil rights statute). As there is no

competent proof of record that any fees paid were reasonable and

necessary, the Defendant's motion should be denied.

3. An evidentiary hearing is necessary to determine the

reasonableness of the fees claimed.

If the Court finds that the Defendant's motion is entitled

to consideration, it must hold "an evidentiary hearing at which

[plaintiff] might confront and challenge the need for legal

services claimed." Boomershine Pontiac-GMC Truck, Inc. v. Snapp,

232 Ga.App. 850, 530 S.E.2d 90 (1998). On the other hand, if the

Court finds that no fees are to be awarded, then Defendant's

Motion may be denied without a hearing. Evers v. Evers, 277 Ga.

132, 587 S.E.2d 22 (2003).

CONCLUSION

For the foregoing reasons, Defendant's Motion should be

denied.

ames T. Freaney
Attorney for Plaintiff
Georgia Bar No. 274902

Frederick J. Hanna & Associates, P.C.

1427 Roswell Road
Marietta, GA 30062
(770) 988-9055
 CERTIFICATE OF SERVICE

This is to certify that I have this date served a copy of

the foregoing RESPONSE by depositing a copy of same in the United
States mail, postage prepaid, addressed as follows:

Jill Sheridan
3266 Stonewall Drive
Kennesaw GA 30152

This the day of February 2011.

h)~
James T. Freaney
Attorney for Plaintiff
Georgia Bar No. 274902

Frederick J. Hanna & Associates, P.C.

1427 Roswell Road
Marietta, GA 30062
(770) 988-9055
 IN THE STATE COURT OF GWINNETT COUNTY

STATE OF GEORGIA

MIDLAND FUNDING, LLC ASSIGNEE OF

CHASE BANK (USA) N.A.

Plaintiff

vs. CIVIL ACTION FILE

NO . 10 - C- 07271 - S4
JILL SHERIDAN

Defendant

FINAL ORDER

There i s before the Court Defendant' s Motion for Attorney

Fees. Upon consideration of the evidence and argument, the briefs
and the entire record in this case, it is hereby ORDERED that
said Motion is DENIED. Defendant ' s Counterclaim , raising the
identical claims as those made by Defendant's Motion, is
DISMISSED. The court having previously rendered judgment for
Defendant as to Plaintiff's Complaint, the Clerk is directed to
close this case .

SO ORDERED this the day of

-------------------- , 2011 .

Joseph C. Iannazzone , Judge,

State Court of Gwinnett County
Prepared and presented by:

James T. Freaney
Attorney for Plaintiff
Georgia Bar No. 274902
Frederick J. Hanna & Associates, P.C.
1427 Roswell Road
Marietta, GA 30062
(770) 988 - 9055
 ,_· _ _1

FREDERICK J. HANNA & ASSOCIATES, P.e.

Attorneys At Law
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