HEISKELL Et Al. v. ROBERTS

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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.
http://www.gaappeals.us/rules

June 27, 2017

In the Court of Appeals of Georgia
A17A0386. HEISKELL et al. v. ROBERTS.

MCFADDEN, Presiding Judge.

This case stems from a dispute between a former state court judge and a county

and its former sole commissioner about the judge’s compensation. The county and

commissioner (together, “the county”) appeal a superior court order entered upon

remand from our Supreme Court.

Before us are the trial court’s rulings in favor of the former judge on cross

motions for summary judgment on the county’s claim for reimbursement of his salary

supplement and two rulings in favor of the former judge on attorney fees. As to the

salary supplement, we affirm because the county has not shown that the supplement

was paid with a total absence or want of power. Consequently we also affirm the

award of attorney fees to the former judge under the rule that when “an official, acting
in his official capacity, is required to hire outside counsel to assert a legal position the

local government attorney . . . will not assert, and the official is successful in

asserting his or her position, the local government must pay the official’s attorney

fees.” Gwinnett County v. Yates, 265 Ga. 504, 508 (2) (458 SE2d 791) (1995). And

we also affirm, as supported by sufficient evidence, the amount of OCGA § 9-15-14

(a) attorney fees awarded to the former judge for defending against the counterclaims

the Supreme Court found to be frivolous.

The former judge, Bruce Roberts, filed suit against Walker County and its sole

commissioner at the relevant time, Bebe Heiskell, claiming that, because the county

paid him a smaller supplement than his predecessor, it underpaid him for the 15

months that he served as judge of the State Court of Walker County. The county

denied that it had underpaid him, denied Roberts’s request to pay his legal fees in

connection with the case, and filed counterclaims alleging, among other things, that

it actually had overpaid Roberts and was entitled to reimbursement for the

overpayments. On cross-motions for summary judgment, the trial court granted

Roberts’s claim for mandamus and ordered the county to pay him $78,878.55 in

unpaid salary; dismissed the counterclaims as barred by judicial immunity; and

ordered it to pay Roberts’s attorney fees.

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 In Heiskell v. Roberts, 295 Ga. 795 (764 SE2d 368) (2014) (“Heiskell 1”), our

Supreme Court held that the trial court erred in granting summary judgment on the

mandamus claim to Roberts instead of to the county, in dismissing the county’s

counterclaim for reimbursement, and in granting attorney fees to Roberts based on

these erroneous rulings. The court further held that the county’s other counterclaims

“totally lacked legal justification,” id. at 803 (4) (b), and that the trial court correctly

dismissed them and correctly ruled that the county could be required to pay attorney

fees to Roberts under OCGA § 9-15-14 for defending against those claims. Based on

these holdings, the Supreme Court affirmed in part, reversed in part, and remanded

the case for the entry of a more limited attorney fees award and to allow the county

the opportunity to pursue its counterclaim for reimbursement.

On remand, the trial court granted summary judgment to Roberts and denied

summary judgment to the county on its counterclaim for reimbursement, ruled that

Roberts is entitled to attorney fees in an amount to be determined for defending that

counterclaim, and entered a new attorney fees award in Roberts’s favor under OCGA

§ 9-15-14 for defending against the frivolous counterclaims. The county now appeals.

We find that the trial court correctly granted Roberts summary judgment on the

reimbursement counterclaim because the county has not shown that the payment of

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Roberts’s salary supplement was done with a total absence or want of power. And

because Roberts successfully asserted his position on this claim, the trial court did not

err in finding that Roberts is entitled to attorney fees for defending against this

counterclaim. Finally, as evidence supports the amount of the award of OCGA § 9-

15-14 (a) attorney fees to Roberts for defending against the counterclaims the

Supreme Court found to be frivolous, we affirm that award.

1. Relevant facts.

According to our Supreme Court, these are the relevant facts:

In 2010, Judge C. Donald Peppers, Sr., of the State Court of
Walker County was reelected to a four-year term of office that started on
January 1, 2011. Effective June 30, 2011, Judge Peppers retired after 26
years in office; at the time he retired, he was allegedly making
$172,102.80 per year, although a portion of his salary was reimbursed
by Catoosa County for his service as a part-time judge in that
neighboring county. On September 16, 2011, Governor Nathan Deal
announced that he would appoint Bruce Roberts to fill the vacancy.

On September 30, 2011, Roberts met with Bebe Heiskell, Walker
County’s sole commissioner. Heiskell informed Roberts that the base
salary for the state court judge position was $60,000 per year, see Ga. L.
1994, p. 3726, § 1, but she allegedly offered to pay him at the rate of
$100,000 per year, slightly more than the $94,000 that he was making
in his previous job. Roberts requested $110,000, but Heiskell declined,

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citing budget constraints. Roberts was sworn into office on October 3,
2011. He stood for election in the next nonpartisan general election in
July 2012, but he lost, meaning that his term of office would end on the
last day of 2012. During the period following his defeat, Roberts
dismissed about 60 traffic cases. The county paid Roberts at an
annualized rate of $100,000 for the 15-month period that he held office.

On October 25, 2012, Roberts filed a complaint for mandamus
and other relief against Commissioner Heiskell (in her official capacity)
and Walker County. Roberts sought to recover the difference between
what he was being paid and what Judge Peppers would have been paid
for the same period based on the provision of Art. VI, Sec. VII, Para. V
of the Georgia Constitution of 1983 that says: “An incumbent’s salary,
allowance, or supplement shall not be decreased during the incumbent’s
term of office.” Roberts also asked for the county to provide him with
legal representation, but the county did not do so. Appellants filed an
answer and counterclaims for breach of contract, “intentional infliction
of monetary damages,” and intentional infliction of emotional distress,
all based on Roberts’s dismissal of the traffic cases. Appellants later
added a counterclaim seeking reimbursement of all salary paid to
Roberts at an annualized rate greater than $60,000; the alleged
overpayments totaled about $50,000.

Roberts filed a motion for summary judgment, and Appellants
filed a cross-motion for partial summary judgment. After a hearing, the
trial court entered an order on October 30, 2013, granting Roberts’s
mandamus claim and directing Commissioner Heiskell to pay him

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 $78,878.55 from county funds for “salary due and unpaid,” dismissing
Appellants’ counterclaims as barred by judicial immunity, and requiring
Appellants to pay Roberts’s attorney fees based in part on Gwinnett
County v. Yates, 265 Ga. 504 (458 SE2d 791) (1995), and in part on
OCGA § 9-15-14.1 The court also dismissed Walker County as a
defendant with respect to Roberts’s mandamus claim, but left the county
as a defendant on Roberts’s claim for attorney fees based on Appellants’
counterclaims.

Heiskell, 295 Ga. at 796-797 (1) (footnotes omitted).

As described above, the Supreme Court affirmed the trial court’s decision in

part, reversed it in part, and remanded the case for further proceedings. On remand,

the trial court awarded Roberts $30,800 in attorney fees and $772.24 in expenses

under OCGA § 9-15-14 for defending against the frivolous counterclaims. The trial

court granted summary judgment to Roberts on the reimbursement counterclaim and

ruled that he is entitled to attorney fees for defending that claim in an amount to be

determined. This appeal followed.

2. Counterclaim for reimbursement.

a. Roberts is entitled to summary judgment.

The county argues that the trial court erred in granting Roberts’s motion for

summary judgment on the counterclaim for reimbursement and denying its motion,

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because the salary supplement was not properly approved and documented. Thus, it

reasons, the salary supplement was not authorized and Roberts must pay it back. We

disagree.

“On cross-motions for summary judgment, each party must show there is no

genuine issue of material fact . . . and that each, respectively, is entitled to summary

judgment [as a matter of law]; either party, to prevail by summary judgment, must

bear its burden of proof.” Morgan Enterprises v. Gordon Gillett Business Realty, 196

Ga. App. 112 (395 SE2d 303) (1990). See also OCGA § 9-11-56.

On remand, the trial court held that Roberts’s salary was “not contractual and

thus not required to be on the minutes” and further that “it is on said minutes and

budget for 2011 and 2012.” . The record contains the county budgets for those years,

which list a single line item for the state court and the minutes reflecting adoption of

those budgets. Those bulk line items included the salaries of both the judge and the

judge’s secretary and the supplement to the judge’s salary. The county contends that,

because those budget entries are each a single line item for all of the operations of the

state court for the year, they are insufficient as to the judge’s supplement.

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 We agree with the county that the trial court erred in holding that Roberts’s

salary was “not required to be on the minutes,” as that holding is inconsistent with

what our Supreme Court wrote in Heiskell I:

Other than holding that the reimbursement counterclaim is not barred by
judicial immunity, we express no opinion on the merits of the claim. We
note, however, that the claim may depend at least in part on whether the
annualized $40,000 supplement paid to Roberts above the $60,000 base
salary established by local law was properly approved and documented
in a budget or other county ordinance. … [B]ut even in a county with a
sole commissioner form of government, ordinances must be put in
writing and filed in the official records of the commissioner in order to
be effective.

Heiskell, 295 Ga. at 802 (3) (b) n. 5.

But the county has failed to show that the trial court erred in holding the entry

on the “minutes and budget for 2011 and 2012” sufficient to defeat the county’s claim

for reimbursement. Antecedent to the county’s challenge to the sufficiency of that

entry is the question of the standard by which its sufficiency is to be measured. The

county has failed to provide a persuasive answer.

A statute authorizes “[t]he county governing authority” to supplement the

judge’s compensation.” OCGA § 15-7-22. And local legislation, which is set out in

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the margin, sets the judge’s base salary. Ga. L. 1994, p. 3726-3727, § 1.1 Neither

provision mandates a procedure for deciding to pay a supplement.

The county cites OCGA§ 36-10-1, which requires counties’ contracts to be in

writing and entered on minutes. But the trial court correctly rejected that argument.

“[T]he payment of salaries of county officials and employees is not contractual within

the provisions of this act.” First Natl. Bank v. Mann, 211 Ga. 706 (88 SE2d 361)

(1955) (construing the prior codification of the statute, Ga. Code Ann. § 23–1701);

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An Act creating the State Court of Walker County, approved March 5, 1957
(Ga. L. 1957, p. 2561), as amended, particularly by an Act approved March 20, 1986
(Ga. L. 1986, p. 4144), and particularly by an Act approved March 31, 1987 (Ga. L.
1987, p. 5111), is amended by striking Section 3 in its entirety and substituting in lieu
thereof a new Section 3 to read as follows:
“Section 3. (a) There shall be a full-time judge of the State Court of
Walker County who shall be elected for a four-year term as provided by
Code Section 15-7-20 of the OCGA. In the event a vacancy occurs in the
office of said judge for any reason, such vacancy shall be filled as
provided in Code Section 15-7-23 of the OCGA.
(b) The judge of said state court shall receive a salary of $60,000.00 per
annum. Such salary shall be paid in equal monthly installments from the
funds of Walker County.
(c) In addition to the secretary appointed by the solicitor pursuant to
Section 10.1 of this Act, the judge shall have the authority to appoint a
secretary who shall serve at the pleasure of the judge and shall perform
such duties as may be prescribed by the judge. Such secretary shall be
compensated from the funds of Walker County in the amount of
$15,500.00 per year, payable in equal monthly installments.”

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Deason v. DeKalb County, 222 Ga. 63, 66 (1) (148 SE2d 414) (1966) (same). Mann

involved the salary of a probate judge.

The county also cites the Open Meetings Act, OCGA §§ 50-14-1 to 50-14-6.

We assume, without holding, that the decision to pay Roberts a supplement was taken

in violation of the Open Meetings Act. See OCGA § 50-14-1 (b) (2), 50-14-3. But it

does not follow that the county is entitled to reimbursement.

The Act specifies remedies for a violation. One of those remedies does provide

that any “official action” taken in violation of it “shall not be binding.” OCGA § 50-

14-1 (b) (2). See also OCGA § 50-14-5 (a) (“The superior courts of this state shall

have jurisdiction to enforce compliance with the provisions of this chapter. . . .”);

OCGA § 50-14-6 (providing for a civil penalty for a negligent violation of the Act

and for a criminal fine for a knowing and willful violation).

But there is a very short limitation period associated with the shall-not-be-

binding remedy. The next sentence provides,

Any action contesting a resolution, rule, regulation, ordinance, or other
formal action of an agency based on an alleged violation of this
provision shall be commenced within 90 days of the date such contested
action was taken or, if the meeting was held in a manner not permitted
by law, within 90 days from the date the party alleging the violation
knew or should have known about the alleged violation so long as such

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 date is not more than six months after the date the contested action was
taken.

OCGA § 50-14-1 (b) (2). We have held that the statute’s shall-not-be-binding

language is limited by the limitation period in the following sentence. Guthrie v.

Dalton City School Dist., 213 Ga. App. 849 (446 SE2d 526) (1994) (defendant school

board could not void settlement agreement it entered in violation of Open Meetings

Act, because it did not assert a violation of the Act within the 90 days allowed by

OCGA § 50-14-1 (b)). The county’s answer and counterclaim were filed in December

2012, well outside the limitation period set out at OCGA § 50-14-1 (b) (2). So the

Open Meetings Act is not controlling on the issue of whether the county can recoup

Roberts’s salary supplement.

There is, however, an important “distinction between a municipality’s [or a

county’s] ultra vires acts — acts done with the total absence or want of power— and

the irregular exercise of a granted power. . . .” City of Baldwin v. Woodard & Curran,

293 Ga. 19, 26 (2) (c) (743 SE2d 381) (2013) (citation and punctuation omitted). As

to acts done with the total absence or want of power, Georgia has adopted “[a] strict

rule of absolute nullity.” Id. at 25 (2) (a), citing H.G. Brown Family, L.P. v. City of

Villa Rica, 278 Ga. 819, 822 (2) (607 SE2d 883) (2005) (citing R. Perry Sentell, Jr.,

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Studies in Local Government Law 545 (3rd ed. 1977)). But a “mere procedural

irregularity in the exercise of lawful authority” does not necessarily render an act

absolutely void. City of Baldwin, 293 Ga. at 24 (2) (a), 27 (2) (c).

As to whether an act was done with the total absence or want of power, our

cases look to the statutes and ordinances empowering local governments and officials.

In Mann, supra, our Supreme Court analyzed local legislation dividing the

responsibility to set the probate judge’s salary between the county commission and

a grand jury. In H.G. Brown, 278 Ga. at 820, our Supreme Court explained that “the

[c]ity’s charter, enacted by the General Assembly, sets forth the parameters of the

[c]ity’s authority to take official action, including its ability to enter into contracts.”

Id. at 820 (1) (citation omitted). In City of Baldwin, 293 Ga. at 19, our Supreme Court

analyzed the city’s charter.

In the case before us the county has identified no local legislation, charter, or

other law that supports the proposition that the county’s payment of a supplement to

Roberts was done with the total absence or want of power. For these reasons, the trial

court did not err in granting Roberts’s motion for summary judgment and denying the

county’s motion for summary judgment on the reimbursement counterclaim.

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 b. Voluntary payment doctrine.

Even if Roberts were not entitled to summary judgment on the reimbursement

counterclaim, the county would not be entitled to summary judgment either. “The

party seeking to recover payments made bears the burden of showing that the

voluntary payment doctrine does not apply.” Montgomery County v. Sharpe, 261 Ga.

App. 389, 390 (582 SE2d 545) (2003) (citation omitted; emphasis added) (county was

precluded from recovering payments from tax commissioner because payments were

nothing but a mistake of law). The county has not satisfied that burden.

3. Roberts’s entitlement to attorney fees on the counterclaim for

reimbursement.

The county argues that Roberts is not entitled to fees for defending against the

reimbursement counterclaim because he was unsuccessful in pursuing his principal

claim, the claim for mandamus. We disagree.

When “an official, acting in his official capacity, is required to hire outside

counsel to assert a legal position the local government attorney cannot (because of a

conflict in representing the local government) or will not assert, and the official is

successful in asserting his or her position, the local government must pay the

official’s attorney fees.” Gwinnett County v. Yates, 265 Ga. 504, 508 (2) (458 SE2d

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791) (1995). An “official’s entitlement to attorney fees depends on his success in

asserting his position in court,” Heiskell, 295 Ga. at 803 (4) (b), and fees may be

awarded even if he is not successful in obtaining all the relief requested. Jennings v.

McIntosh County Bd. of Commrs., 276 Ga. 842, 847 (583 SE2d 839) (2003) (citations

omitted) (magistrate judge’s suit seeking back pay, return to position as clerk of court,

and attorney fees and costs). As Roberts was entirely successful in defending against

the reimbursement counterclaim, the trial court did not err in ruling that he is entitled

to fees.

4. The attorney fees award for defending the frivolous counterclaims.

The county argues that the trial court erred in awarding Roberts $31,572.24 in

OCGA § 9-15-14 (a) attorney fees and expenses because the award included fees

incurred for work other than defending the frivolous counterclaims. They specify that

the attorney’s time sheet introduced into evidence at the post-remand hearing

included several entries for work related to the mandamus claim and the

reimbursement counterclaim. They argue that these charges included time spent in

reviewing their answer and all of their counterclaims, not just the three out of four the

Supreme Court found to be frivolous; answering interrogatories related to the

mandamus claim; and a general review of the case.

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 As the trial court awarded Roberts attorney fees under OCGA § 9-15-14 (a),

we must affirm the award if there is any evidence to support it. Haggard v. Bd. of

Regents, 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987). Under OCGA § 9-15-14

(d), “[a]ttorney’s fees and expenses of litigation awarded under this Code section

shall not exceed amounts which are reasonable and necessary for defending or

asserting the rights of a party.” We have held that this language “imposes an

affirmative duty upon the trial court to hear evidence and allow the cross-examination

of counsel as to the necessity, reasonableness, and amount of work done by counsel

by the opposite party prior to the imposition of an award.” Hallman v. Emory Univ.,

225 Ga. App. 247, 252 (4) (483 SE2d 362) (1997). But “[t]he trial court need not cite

specific testimony, argument of counsel, or any other specific factual reference in its

order awarding fees under OCGA § 9-15-14; it is only required to specify the conduct

upon which the award is made.” Cohen v. Rogers, __ Ga. App. __, __ (2) (b) (798

SE2d 701) (Case No. A16A1858, decided March 16, 2017) (citation and punctuation

omitted).

Applying those standards here, we conclude that “sufficient proof of the actual

costs and the reasonableness of those costs” supports the award. Hindu Temple &

Community Center of the High Desert v. Raghunathan, 311 Ga. App. 109, 117-118

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(3) (714 SE2d 628) (2011). Our Supreme Court affirmed the trial court’s

determination that Roberts was entitled to fees under OCGA § 9-15-14 (a), but

directed the trial court to “enter an award based solely on Roberts’s reasonable

attorney fees and litigation expenses incurred in defending against the . . . three

counterclaims” other than the counterclaim for reimbursement. Heiskell, 295 Ga. at

803 (4) (b). On remand, the trial court conducted a hearing at which counsel testified

and was subject to cross-examination. Counsel introduced evidence in support of the

claim. The court entered an order that made findings supported by the evidence,

allocating fees between the frivolous counterclaims and the counterclaim for

reimbursement.

“[T]he goal in shifting attorney fees is to do rough justice, not to achieve

auditing perfection.” Cohen, __ Ga. App. at __ (2) (b). As evidence supports the

award of fees and costs under OCGA § 9-15-14 (a), we must affirm the award.

Haggard, 257 Ga. at 527 (4) (c).

Judgment affirmed. Branch and Bethel, JJ., concur.

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