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March 11, 2026 Get Citation Alerts Download PDF Add Note

Heather Brown v. Barbara Schmitt

Court of Appeals of Georgia

• Citations: None known
• Docket Number: A25A1541

• Disposition: Affirmed In Part/Reversed In Part

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.1K)

• PDF

Disposition

Affirmed In Part/Reversed In Part

Combined Opinion

FIFTH DIVISION
MCFADDEN, P. J.,
HODGES and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

March 11, 2026

In the Court of Appeals of Georgia
A25A1540. SCHMITT v. DAVIS et al.
A25A1541. BROWN v. SCHMITT.
A25A1542. DAVIS et al. v. SCHMITT.

PIPKIN, Judge.

Appellants Gary Davis and Meribeth P. Davis unsuccessfully sued Appellee

Barbara Schmitt in Fulton County Superior Court, and Schmitt then filed a motion

for a fee award pursuant to OCGA § 9-15-14(a) and (b). The superior court granted

the motion in part, ordering the Davises, along with their attorney, Heather Brown,

to reimburse Schmitt a portion of her attorney fees and expenses of litigation pursuant

to OCGA § 9-15-14(b) only. Schmitt now appeals this order, arguing that the trial

court erred by denying her request for a fee award pursuant to OCGA § 9-15-14(a) and

by awarding her only a portion of her requested fees pursuant to OCGA § 9-15-14(b).
The Davises and Brown have filed cross-appeals, asserting, among other things, that

the trial court erred because the sanctioned conduct did not lack substantial

justification as that term is used in OCGA § 9-15-14(b). As explained below, we

conclude that the trial court properly determined that Schmitt was not entitled to

attorney fees and expenses of litigation pursuant to OCGA § 9-15-14(a) as a matter of

law and properly rejected her contention that she was entitled to a fee award for the

entirety of the litigation pursuant to OCGA § 9-15-14(b). We also conclude that the

litigation tactics identified by the trial court in its fee award do not amount to

sanctionable conduct under OCGA § 9-15-14(b) as a matter of law. Consequently, the

judgment of the trial court is affirmed to the extent that it denied Schmitt’s request

for a fee award pursuant to OCGA § 9-15-14(a), and it is reversed to the extent that

it awarded Schmitt attorney fees and expenses of litigation pursuant to OCGA § 9-15-

14(b).

1. In order to appropriately evaluate the fee award here, we must first delve into

the extensive procedural history of this case. In January 2023, the Davises,

represented by Brown, filed a seven-count complaint against numerous parties,

including Schmitt, arising from the mistaken removal and disposal of personal

2
property from a storage unit owned by the Davises. According to the complaint, the

Davises are the owners and residents of a unit (hereinafter “Unit A”) in a high-rise

condominium called The Phoenix on Peachtree. At the time the Davises purchased

their residential unit, a separate storage unit in the building was also deeded to them

(“SU 402”). The couple used the storage space to hold extensive personal property,

including a vinyl record collection, collectable figures, sports memorabilia, recreation

equipment, and other personal items. The complaint alleges that, at some point, a

separate residential unit in their building (hereinafter “Unit B”) was sold -- with

Schmitt acting as the listing agent -- and that SU 402 was mistakenly conveyed by the

seller to the new owners during that transaction. As alleged in the complaint, “one or

more of the [d]efendants had a key made to” the storage unit and subsequently

“removed and/or disposed of the contents which the Davises had secured and stored

therein.”

As to Schmitt, the complaint asserts claims of conversion, as well as civil

trespass and interference with enjoyment of personal property; the Davises sought

compensatory and punitive damages, as well as attorney fees and expenses of

litigation. Schmitt answered and filed cross-claims and counterclaims.

3
In March 2023, Schmitt served the Davises with various discovery requests --

including a request for admissions pursuant to OCGA § 9-11-36 -- and the two parties

began settlement negotiations. On April 4, 2023, the parties’ attorneys exchanged the

following emails concerning a settlement (“the April 4 emails”). Counsel for the

Davises wrote, in relevant part, as follows:

I spoke with my clients [the Davises] about dismissing [Schmitt] from
the lawsuit[,] and they are willing to do so in exchange for her agreement
to dismiss her claims against them and to cooperate as a witness in the
case against The Phoenix and, if necessary, against [the layperson who
assisted Schmitt with the condo sale]. Please confirm her agreement. If
she agrees, please forward a mutual release confirming the parties’
agreement. Upon signature, we can file a joint dismissal with the court.

Just hours later, the attorney representing Schmitt responded, in relevant part, as

follows:

[Schmitt] is willing to dismiss her claims against [the Davises], and
cooperate as a witness, in accordance with the facts alleged in her
pleadings. She will of course tell the truth but will not place blame on
[the layperson] as she has no knowledge as to [his] actions. . . . . I will
forward a mutual release and dismissal for your review.

Several weeks later, as the time for Schmitt to testify approached, her counsel

sent an email to the Davises which reads, in relevant part, as follows:

4
[Schmitt] will not be present at the hearing. But even if she were she has
nothing to say. She was never in SU402 and never saw the contents. She
only saw the larger [u]nit. Please let me know when you will be
dismissing [Schmitt] from the case, and she will dismiss her
counterclaims when you do so. Please note that your discovery responses are
now past due and therefore all the [r]equests for [a]dmissions are deemed
admitted. If you don’t dismiss [Schmitt] by May 8, 2023, we will file a motion
for summary judgment and request attorney fees and expenses of litigation, as
well as damages.

(Emphasis supplied.) Counsel for the Davises then responded, in relevant part, as

follows:

Our discussion and agreement as to dismissing [Schmitt] was that she
would cooperate as a witness for my clients at the damages hearing,
which would require her appearance at the hearing. She has knowledge
of the representations made to her by [the condo association about the
storage unit], which is relevant to the damages hearing. Also, your
comment regarding discovery is misplaced given our agreement
regarding your client. I am astonished at the tone of this response and
take it that your client no longer intends to cooperate as agreed?

Counsel for Schmitt subsequently responded, in relevant part, “I disagree with your

message.” In the months that followed, the respective attorneys conferred by

telephone and through additional email correspondence, but they never executed a

formal settlement agreement, a mutual release, or joint dismissals.

True to her warning, on July 17, 2023, Schmitt moved for summary judgment.

In her motion, Schmitt alleged that the Davises had failed to produce evidence

5
identifying which party had disposed of the storage-unit property, and that, at any

rate, the Davises’ failure to respond to Schmitt’s request for admissions was fatal to

their action against her.1 Specifically, Schmitt highlighted that the following

admissions, among others, were deemed admitted as a matter of law as a consequence

of the Davises’ failure to respond to Schmitt’s request for admissions:

1. You are aware of no direct evidence that [Schmitt] personally
   removed any of the personalty from SU402.

2. You are aware of no direct evidence that [Schmitt] personally
   directed anyone to remove any of the personalty from SU402.

3. You are aware of no direct evidence that [Schmitt] ever had any
   knowledge that any person intended to remove any of the personalty
   from SU402.

1
In an affidavit attached to her motion for summary judgment, Schmitt detailed
her involvement in the storage-unit fiasco. Schmitt explained that, during the course
of acting as the listing agent for the sale of Unit B, she merely asked a representative
of the condominium to identify the storage unit associated with Unit B; the
condominium representative, she says, identified SU 402 as the relevant storage unit.
According to Schmitt, she reasonably relied on this representation and merely relayed
this information to the individual acting as a lay representative for the sellers, who by
then had moved to Europe; she then asked that individual to have a key made to the
storage unit. In her affidavit, Schmitt attested that she had no involvement with the
storage unit; that she did not obtain or possess a key to the unit; that she did not
access the unit; that she did not allow or instruct anyone else to enter the storage unit;
and that she never possessed, interfered with, or removed any property from the
storage unit.
6
4. You are aware of no direct evidence that [Schmitt] ever had a
key to SU402.

1. You are aware of no direct evidence to show who allegedly removed the personalty from SU402.

....

1. Your claims against [Schmitt] are based entirely on
   circumstantial evidence.

2. Your claims against [Schmitt] are based entirely on your
   personal belief or supposition.

....

1. You are aware of no direct evidence to show that . . . Schmitt
   actually gave anyone permission to enter SU402.

2. You are aware of no direct evidence to show that . . . Schmitt
   had knowledge that anyone intended to remove any items of personalty
   from SU402.

....
34. Based on the facts admitted in your responses to the foregoing
requests for admissions, it could not be reasonably believed that a court would
accept your claims against [Schmitt].

1. Based on the facts admitted in your responses to the foregoing requests for admissions, [your] claims against [Schmitt] lack substantial justification.

7
(Emphasis supplied.) Schmitt asserted that she was entitled to summary judgment in

light of both the lack of evidence supporting the Davises’ claims and their admissions.

In addition to the motion for summary judgment, Schmitt also moved for sanctions

pursuant to OCGA § 9-11-37.

The record reflects that the parties agreed that the Davises could have until

August 28, 2023, to file a response to the motion for summary judgment. In the

meantime, the Davises filed the following: “Plaintiff’s Motion to Enforce Settlement

Agreement and for Attorneys’ fees and costs pursuant to OCGA § 9-15-14, or, in the

Alternative, Motion to Withdraw Admissions, for Additional Time to Respond to

Discovery, [and] Motion to Strike Motion for Summary Judgment.” In that filing, the

Davises asserted, through counsel, that no formal document was required to establish

a binding settlement agreement between parties and that the April 4 emails -- in which

the parties mutually agreed to dismiss their claims against one another in exchange for

Schmitt’s cooperation with respect to damages -- created just such an agreement. The

Davises argued in the alternative that they should be allowed to withdraw their

admissions because they had acted under the good faith belief that they had reached

a settlement with Schmitt and, consequently, that responding to the requests for

8
admissions was unnecessary. Finally, the Davises contended that, in the event that

their admissions were withdrawn, that Schmitt’s motion for summary judgment

should be stricken because it was premised on the unanswered admissions.

Then, on August 24, 2023 -- while their motion to enforce was pending and

several days before their summary judgment response was due -- the Davises moved

the trial court for an additional 14 days in which to respond to Schmitt’s pending

motions for summary judgment and for sanctions. In that motion, the Davises argued,

among other things, that Schmitt’s motions for summary judgment and for sanctions

would be rendered moot if the trial court were to grant the Davises’ motion to enforce

settlement. The Davises also noted that they -- along with a separate defendant -- had

asked to extend discovery as to all parties, which might also affect the resolution of

Schmitt’s summary judgment motion.

In response to the motion to enforce, Schmitt argued that the Davises had failed

to establish the requirements for an enforceable agreement. Schmitt asserted that she

had not “unconditionally”accepted the Davises’ offer, but, instead, that she had

“rejected it” by stating that she would not place blame on the layperson, by stating

that she would “testify in accordance with the facts alleged in her pleadings,” and by

9
failing to forward a mutual release confirming the agreement. She further asserted

that, despite repeated attempts to finalize a mutual release with opposing counsel, the

parties never signed an agreement. The trial court adopted Schmitt’s position,

denying Davises’ motion to enforce the settlement agreement and to withdraw

admissions, as well as granting Schmitt’s motion for summary judgment. The Davises

appealed this order, and this Court affirmed the judgment of the trial court in

accordance with Court of Appeals Rule 36. See Davis v. The Phoenix on Peachtree

Condo. Ass’n, A24A0633 (Ga. App. Aug. 19, 2024).

Following this Court’s decision, Schmitt moved for attorney fees and expenses

of litigation pursuant to OCGA § 9-15-14 (a) and (b). Relying on the unanswered

requests for admissions, Schmitt asserted that she was entitled to an award pursuant

to OCGA § 9-15-14 (a) because, she said, the Davises “are deemed to have admitted

all matters requested in [the request for admissions] due to their failure to serve a

timely response,” including the admissions that “they had no evidence to support

their claims against [Schmitt]” and that “it could not be reasonably believed that a

court would accept your claims against [Schmitt].” Likewise, Schmitt asserted that

she was entitled to an award pursuant to OCGA § 9-15-14 (b) because, again, the

10
Davises were deemed to have admitted all the matters included in the request for

admissions, including the admission that their claims against Schmitt “lack[ed]

substantial justification.”

Following a hearing, the trial court granted Schmitt’s motion in part and denied

it in part. As to Schmitt’s request for a fee award pursuant to OCGA § 9-15-14 (a), the

trial court concluded that the Davises’ admissions, though relevant to summary

judgment, “are not entirely dispositive of [Schmitt’s] claim for attorney fees.” The

trial court reasoned that the admissions could not “retroactively negate a justiciable

issue that may have existed at the time of asserting the claim and that may have been

accepted by the [c]ourt.” As to a fee award pursuant to OCGA § 9-15-14 (b), the trial

court concluded as follows:

At least by July 2023, Plaintiffs -- and certainly their counsel -- knew that
no settlement agreement had been finalized, that admissions had gone
unanswered, and that a dispositive motion was pending. Despite this,
Plaintiff’s counsel filed a motion to enforce settlement and an untimely
motion to extend the time to file an (already overdue) response to
Schmitt’s [m]otion for [s]ummary [j]udgment. In the context of this case
and given the tenuous nature of the claims against Schmitt, these filings
lacked substantial justification and appear to this court intended only for
the purpose of delaying the proceedings. These filings had the added
effect of unnecessarily expanding the proceedings, requiring Defendant
Schmitt to respond to a lengthy set of filings seeking varied and disparate

11
relief -- including seeking to strike the pending summary judgment
motion.

Based on the billing records supplied by Schmitt’s counsel at the motion hearing --

and without further elaboration -- the trial court awarded Schmitt $23,771 in fees and

expenses against both the Davises and their attorney. These appeals now follow.

Case No. A25A1540

In six inter-related enumerations of error, Schmitt asserts that the trial court

erred by denying -- or in only partially granting -- her request for attorney fees and

expenses of litigation pursuant to OCGA § 9-15-14 (a) and (b). We address these

arguments below.

1. In her first two enumerations of error, Schmitt asserts that, in denying her

request for a fee award pursuant to OCGA § 9-15-14 (a), the trial court “disregarded

the conclusive effect of the Davises’ judicial admissions” and “erred in its

considerations of alleged facts that contradicted the Davises’ judicial admissions.”

Because these enumerations concern only a question of law, we review them de novo.

See Stewart Ausband Enterprises v. Holden, 349 Ga. App. 295, 297 (1) (826 SE2d 138)

(2019).

12
In admission 34, which tracks the language of OCGA § 9-15-14 (a),2 the Davises

purportedly admitted, as a matter of law, that “it could not be reasonably believed that

a court would accept your claims against [Schmitt].” Schmitt asserts on appeal, as she

did below, that this is an in judicio admission which cannot be contradicted by other

evidence and that demands the conclusion that she was entitled to a fee award

pursuant to OCGA § 9-15-14 (a). We disagree, for a number of reasons.

“It is well settled that a party’s failure to timely respond to requests for

admission conclusively establishes as a matter of law each of the matters addressed in

the requests.” Robinson v. Global Res., 300 Ga. App. 139, 140 (684 SE2d 104) (2009).

“This is true even if the requested admissions require opinions or conclusions of law,

so long as the legal conclusions relate to the facts of the case.” (Emphasis supplied.) Fox

2
OCGA § 9-15-14 (a) provides, in relevant part, as follows:

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.

(Emphasis supplied.)
13
Run Properties v. Murray, 288 Ga. App. 568, 569 (1) (654 SE2d 676) (2007). However,

a request for admission is improper where it seeks only the “admission of purely

abstract principles unrelated to the facts of the case.” Fulton County v. SOCO

Contracting Co., 343 Ga. App. 889, 899 (2) (b) (i) (808 SE2d 891) (2017). As to

admission 34, whether a court would accept the Davises’ claims against Schmitt is not

a legal conclusion speaking to the operative facts of the case; instead, it calls for

nothing more than speculation about what legal conclusion a court might reach

regarding the Davises’ claim. This is not the type of legal conclusion that creates an

in judicio admission. Compare Id. (requests for admission properly asked defendant

to admit that plaintiff fully performed its obligation under the contract and that

defendant had acted in bad faith); McClarty v. Trigild Inc., 333 Ga. App. 112, 115 (2)

(775 SE2d 597) (2015) (request for admission from property owner that “there was

a hazardous condition” on the premises leading to the plaintiff’s injury was within the

scope of permissible requests for admissions); Brown v. Morton, 274 Ga. App. 208, 211

(2) (617 SE2d 198) (2005) (unanswered admission that defendants conspired to

defraud plaintiff resulted in in judicio admission that was admissible to support the

grant of summary judgment).

14
As we have explained before, “the purpose of requests for admissions is to

expedite trial and clarify the issues in a case, not gain tactical advantage over an

opponent.” Brankovic v. Snyder, 259 Ga. App. 579, 582 (578 SE2d 203) (2003).

Admission 34 -- which appears designed solely for the purpose of prevailing on a

subsequent motion for attorney fees -- does “not subserve the merits.” Rowland v.

Tsay, 213 Ga. App. 679, 681 (1) (445 SE2d 822) (1994) (citation modified).

Even if our conclusion as to the legal import of admission 34 were precluded

based on the Davises’ failure to respond,3 the trial court’s ultimate conclusion is still

sound. We have found no legal authority -- and Schmitt has certainly cited none -- that

authorizes a defendant to use a request for admission in an effort to secure an

“automatic” fee award pursuant to OCGA § 9-15-14. Indeed, such an effort would

subvert the responsibility of a trial court to independently assess the appropriateness

of such an award, see, e.g., DeRossett Enterprises v. Gen. Elec. Cap., 275 Ga. App.

728 (4) (621 SE2d 755) (2005) (recognizing that, before awarding fees pursuant to

OCGA § 9-15-14, a trial court is required to conduct a hearing and make specific

3
See G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 330 (2)
(486 SE2d 810) (1997) (not addressing whether requests for admission were proper
where defendants failed to “respond, assert objections, request deferment of its
obligation to respond to the requests, or seek a protective order”).
15
findings of fact); it would allow a party to use a request for admission as a means to

automatically receive a fee award pursuant to OCGA § 9-15-14 without regard for the

statutory parameters of such an award, see Bishop v. Goins, 305 Ga. 310, 311-12 (824

SE2d 369) (2019) (recognizing that, generally speaking, an award of attorney fees must

be authorized by statute or contract and that statutes authorizing the award of such

fees must be strictly construed); and it would run counter to the purpose of OCGA

§ 9-15-14, which is to “punish and deter litigation abuses,” see Trabue v. Hanson, ___

Ga. App. __, __(2) (922 SE2d 684) (2025).

Consequently, Schmitt’s arguments are unavailing, and these enumerations

offer no basis for relief.

1. In her third enumeration of error, Schmitt asserts that the trial court

disregarded the law of the case when it denied her request for a fee award pursuant to

OCGA § 9-15-14. There is no merit to this argument.

In order to address Schmitt’s argument, we must return to the procedural

history, at least as Schmitt sees it. According to Schmitt, the Davises were

unsuccessful in their attempt to withdraw their admissions because, she says, the trial

court determined that the Davises had failed to identify evidence that had a

16
“modicum of credibility.”4 Schmitt also points out that, when she was granted

summary judgment, the trial court noted in its order that Schmitt had “denied

unequivocally having anything to do with the alleged removal of [the Davises’]

belongings” and that Schmitt’s denial was “uncontradicted” by any other evidence.

On appeal, Schmitt reasons that this Court implicitly affirmed the trial court’s

“uncontradicted-evidence” and “modicum-of-evidence” determinations when this

matter was previously before this Court -- thus becoming law of the case -- which, she

says, necessarily supports her request for a fee award pursuant to OCGA § 9-15-14.

As an initial matter, this Court affirmed the prior appeal without opinion, and,

in the absence of an express ruling on either issue, the law of the case doctrine does

not apply. See Hall v. Hill, 366 Ga. App. 285 (882 SE2d 34) (2022) (recognizing that

“the law of the case rule does not apply absent an express ruling on the issue in

question”). Moreover, the record does not support Schmitt’s argument. As to the

“modicum-of-credible-evidence” determination, a review of the relevant order

4
See, e.g., WellPath v. Cox, 370 Ga. App. 800, 803-04(1) (897 SE2d 78) (2024)
(highlighting the two pronged test to be employed when considering a motion to
withdraw admissions and explaining that, under the first prong, “the moving party
must show that the admitted requests either were refutable by admissible evidence
having a modicum of credibility or were incredible on their face” (emphasis supplied;
citation modified)).
17
reveals that the trial court merely concluded that the Davises had failed to meet the

procedural burden to withdraw their admissions. Indeed, as Schmitt acknowledges on

appeal, the basis of the Davises’ motion to withdraw was that Schmitt would not be

prejudiced and that the Davises had relied in good faith on the parties having reached

a settlement agreement; as the trial court properly recognized, such a position did not

satisfy the procedural requirements to withdraw the admissions, which was fatal to the

Davises’ motion. Likewise, the earlier finding that Schmitt had nothing to do “with

the alleged removal of [the Davises’] belongings” neither automatically entitled

Schmitt to attorney fees nor undermined the trial court’s ultimate conclusion on her

request for attorney fees. Accordingly, this enumeration presents no basis for reversal.

1. Schmitt asserts in her fourth enumeration that “[t]he trial court erred in

speculating that there ‘may’ have been a justiciable issue at the time [that] the

[Davises’] lawsuit was filed.” This enumeration offers no basis for reversal.

As explained above, Schmitt argued below -- as she has on appeal -- that she was

automatically entitled to attorney fees pursuant to OCGA § 9-15-14(a) as a

consequence of admission 34. The language about which Schmitt complains from the

trial court’s order is simply a response to her argument, stating as follows: “This

18
Court is not persuaded that deemed admissions retroactively negate a justiciable issue

that may have existed at the time of asserting the claim and that may have been

accepted by the Court.” Thus, the trial court is not speculating “that there ‘may’

have been a justiciable issue,” as Schmitt urges, but, instead, this language reflects

that the trial court merely concluded that admission 34 could not retroactively

undermine any possible justiciable issue existing at the time that the Davises asserted

their claims.

1. In her fifth enumeration, Schmitt asserts -- with a single paragraph of

argument -- that the trial court erred in denying her request for a fee award pursuant

to OCGA § 9-15-14 (a). We disagree.

“Pursuant to OCGA § 9-15-14 (a), the trial court shall award attorney fees when

a party asserted a claim, defense or other position with such a complete absence of any

justiciable issue of law or fact that the party could not reasonably have believed that

the court would accept it.” Shoenthal v. DeKalb County Employees Retirement System

Pension Bd., 343 Ga. App. 27, 30 (805 SE2d 650) (2017) (citation modified). As we

have explained, before

[i]nherent in a ruling of the trial court denying attorney fees under
OCGA § 9–15–14(a) is a determination that there does not exist such a

19
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.

Rescigno v. Vesali, 306 Ga. App. 610, 615 (4) (703 SE2d 65) (2010). This Court will

affirm the decision to deny a fee award under OCGA § 9-15-14(a) if there is any

evidence to support it. Rescigno, 306 Ga. App. at 615 (4).

While Schmitt emphatically asserts that she played no role in the storage-unit

fiasco -- and that the Davises’ claims were speculative and conclusory -- the record

simply does not support her position. According to Schmitt’s own account of events,

she played a central role in the circumstances giving rise to the storage-unit incident,

including the following: Schmitt was hired to market Unit B by the owners of the unit;

she obtained information as to which storage unit was associated with Unit B from a

third party without checking the corresponding public records or, apparently,

consulting her clients; she passed this erroneous information to a layperson who was

helping to facilitate the sale of Unit B for the out-of-country sellers; and she then

advised the layperson to “obtain a key” to the storage unit. In sum, Schmitt obtained

inaccurate information and then directed a third party -- who was operating on behalf

of the out-of-country sellers who hired Schmitt -- to act on this information, including

20
securing a key to real property that was owned by the Davises; shortly after the sale

of the property, the Davises’ storage unit was emptied by an unknown party.

While Schmitt later averred “without contradiction” that she “reasonably

relied” on the storage unit information supplied to her and that she played no role in

the removal of the Davises’ belongings from SU 402, her own filings -- indeed the

request for admissions to which the Davises failed to respond -- reflect that she

understood that the Davises had, at the very least, a circumstantial case against her.

That the Davises were unable to fully substantiate their claims against Schmitt and

that Schmitt ultimately prevailed on her summary judgment motion does not mandate

an award of attorney fees under OCGA § 9-15-14 (a). See, e.g., Shoenthal, 343 Ga.

App. at 30. Because there was evidence to support the trial court’s determination that

the Davises’ claims “did not rise to the level of showing a complete absence of any

justiciable issue of law or fact,” we must affirm the trial court’s denial of fees pursuant

to OCGA § 9-15-14 (a). (Emphasis in original.) Chadwick v. Brazell, 331 Ga. App. 373,

382 (5) (771 SE2d 75) (2015).

1. Finally, in her sixth enumeration -- which, again, is supported by nothing

more than a few sentences of argument -- Schmitt asserts that the trial court erred in

21
not awarding fees “for the entire case under OCGA § 9-15-14 (b).” We review such

a claim for abuse of discretion. See Chadwick, 331 Ga. App. at 381 (5). While Schmitt

contends, again, that the Davises’ claims were conclusory and speculative -- and could

not withstand her motion for summary judgment -- given the facts and circumstances

described in Division 5, we cannot say that the trial court abused its discretion in

failing to award Schmitt a fee award under OCGA § 9-15-14 (b) for the entirety of the

litigation.

Case Nos. A25A1541 & A25A15425

1. In their respective cross-appeals, the Davises and Brown both assert, among

other things, that the litigation tactics for which the trial court awarded fees pursuant

to OCGA § 9-15-14 (b) did not lack substantial justification and, thus, that the fee

award was improper. We agree.

5
As explained above, the trial court awarded fees in favor of Schmitt against
both the Davises and their counsel, Brown. On appeal, Brown continues to represent
the Davises and argues on their behalf that the trial court erred in concluding that
sanctionable conduct warranted a fee award pursuant to OCGA § 9-15-14(b).
However, Brown has also filed a separate appeal -- in which she is represented by her
own counsel -- in which she challenges the award against her personally, asserting a
due-process argument that is unique to her circumstances. We note in passing that
such an arrangement potentially necessitates certain ethical considerations under the
Georgia Rules of Professional Conduct. See Georgia Rules of Professional Conduct
Rules 1.7(a), (b), and (c)(3).
22
“As a general rule, an award of attorney fees and expenses of litigation are not

available to the prevailing party unless authorized by statute or contract.” Williams v.

Williams, 362 Ga. App. 839, 846(4) (870 SE2d 462) (2022) (citation modified).

Pursuant to OCGA § 9-15-14(b), a trial court may assess fees if “it finds that an

attorney or party brought or defended an action, or any part thereof, that lacked

substantial justification or that the action, or any part thereof, was interposed for delay

or harassment, or if it finds that an attorney or party unnecessarily expanded the

proceeding by other improper conduct[.]” As used in that statute, “‘lacked

substantial justification’ means substantially frivolous, substantially groundless, or

substantially vexatious.” OCGA § 9-15-14(b). “For purposes of OCGA § 9-15-14, the

relevant question is whether some authority arguably supported Plaintiffs’ position.”

Shoenthal, 343 Ga. App. at 30 (citation modified). Again, we review such a claim for

abuse of discretion. See Chadwick, 331 Ga. App. at 381 (5).

(a) The trial court first faulted the Davises and their counsel for filing a motion

to enforce settlement even though they knew “that no settlement agreement had been

finalized.”

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As we have explained before, a settlement agreement -- like any other contract

in this State -- becomes enforceable when “the parties meet at the same time, upon

the same subject matter, and in the same sense” and where an offer is “accepted

unequivocally and without variance of any sort.” Yim v. Carr, 349 Ga. App. 892,

903 (2) (827 SE2d 685) (2019). Here, as evidenced by the April 4 emails, the Davises,

through counsel, offered to dismiss their claims against Schmitt in exchange for her

agreement to dismiss her claims against the Davises “and to cooperate as a witness in

the case against The Phoenix and, if necessary, against [the layperson assisting

Schmitt].” Almost immediately, Schmitt responded to the offer, indicating that she

would dismiss her claims against the Davises and “cooperate as a witness, in accordance

with the facts alleged in her pleadings. She will of course tell the truth but will not

place blame on [the layperson] because she has no knowledge as to [his] actions.”

(Emphasis supplied.)

As the Davises correctly argued in their motion to enforce, a settlement need

not be “finalized”or signed to be enforceable; a collection of writings by the parties’

attorneys establishing the terms of an agreement may suffice. See Tidwell v. White, 220

Ga. App. 415, 417 (2) (469 SE2d 258) (1996). Further, while Schmitt argued below that

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she had not accepted the Davises’ offer “unequivocally and without variance” --

because, she says, she responded that she would not place the blame on the layperson

assisting her with the sale -- reasonable minds could disagree as to whether her

response was, in fact, an acceptance. As an initial matter, Schmitt was only asked to

testify against the layperson “if necessary,” and there is no indication that such a

condition precedent had been realized. Further, although it is true that Schmitt’s

response to the Davises’ offer reflects that she would not “place blame” on the

layperson in question, she also indicated that she would “cooperate as a witness” and

testify “truthfully.” Given the uncertainty as to her need to testify and the ambiguity

in Schmitt’s response, it was at least arguable that a settlement agreement had been

reached between the parties, and the Davises’ motion to enforce settlement did not

lack substantial justification. Cf. Pourreza v. Teel Appraisals & Advisory, 273 Ga. App.

880, 883 (616 SE2d 108) (2005) (acceptance of essential terms of settlement created

binding agreement between parties despite the fact that acceptance contained

precatory language). Because “some authority arguably supported Plaintiffs’

position,” Shoenthal, 343 Ga. App. at 30 (citation modified), the trial court abused its

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discretion in awarding attorney fees based on the Davises’ attempt to enforce the

alleged settlement agreement.

(b) The trial court also faulted the Davises for filing an “untimely motion to

extend the time to file an (already overdue) response to Schmitt’s motion for

summary judgment.” However, the trial court’s conclusion is not supported by the

record. As an initial matter, the filing was not untimely. As explained above, Schmitt

and the Davises filed a joint stipulation allowing the Davises until August 28, 2023,

to respond to Schmitt’s motion for summary judgment. The motion for an additional

14 days in which to respond to Schmitt’s summary judgment filing was filed on

August 24, 2023, several days before the agreed-upon deadline.

Moreover, the Davises’ motion did not lack substantial justification. At the time

of the filing, not only had the Davises moved to enforce the rudimentary settlement

agreement between the parties -- which would have rendered moot the pending

motion for summary judgment -- but both the Davises and a separate defendant had

jointly moved the trial court to extend discovery for all parties, including Schmitt,

which, if granted, could have arguably rendered Schmitt’s motion for summary

judgment premature. Under these circumstances, the record does not support the trial

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court’s conclusion that this filing lacked substantial justification -- or was merely

intended to delay the proceedings -- and, thus, the trial court’s conclusion was

erroneous.6

1. Our holding in Division 7 renders moot the remaining claim -- asserted by

both the Davises and Brown -- that the fee award in this case is an impermissible

“lump sum award,” as well as Brown’s separate claim that she received insufficient

notice to be personally liable for the fee award.

Judgment affirmed in part and reversed in part in Case Nos. A25A1540, A25A1541,

and A25A1542. McFadden, P. J., and Hodges, J., concur.

6
In passing, the trial court also faulted the Davises for “seeking to strike the
pending summary judgment motion.” The Davises, however, made no such motion;
instead, in the final sentence of their motion to withdraw admissions, the Davises
asserted, in substance, that Schmitt’s motion for summary judgment should be denied
if their request to withdraw their admissions was granted because the summary
judgment was based, in large part, on their admissions. This argument was part-and-
parcel of the Davises’ attempt to move to withdraw their admissions, a litigation
decision that the trial court did not conclude was lacking substantial justification.
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