Litigation

Client and Attorneys Must Pay $400K in fees

A judge in Gwinnett County, GA, issued a stinging order levying a total of $400,000 in attorneys' fees against two lawyers and their client, who had sought to modify the terms of custody mandated in a divorce decree seven months earlier. Owens v. Owens, No. 07A-05249-2.

Citing the “mud and quicksand that this court had to wade through during the course of the case,” Gwinnett County Magistrate Judge Mark A. Lewis found the plaintiff, Shon Owens, and his attorneys ' Barry P. Schwarz and Monica J. Hanrahan (now Monica Hanrahan Freitag), and their firm, Kessler, Schwarz & Solomiany ' jointly liable for $325,000, and Owens personally liable for an additional $75,000 for the “never-ending hurricane” that was this case.

The underlying case began in September 2006, when Owens' wife, Laytona Jones Owens, filed for divorce; by November, the divorce was final, and Shon Owens had moved to Florida and purchased an interest in several liquor stores and other businesses.

As described in the order for fees, the tumultuous events that led to the expensive and expansive incurrence of attorneys' fees by Ms. Owens began seven months later, with her ex-husband's “frivolous, abusive and malicious filing of a modification of custody and visitation, together with a citation for contempt by [Kessler Schwarz] in June 2007.”

Laytona Owens' attorney, J. Michael McGarity of Buford, GA's McGarity Group, responded to the request for modification almost immediately by noting his client's preference for counsel to have had some legally reasonable discussions about plaintiff's desire prior to filing the lawsuit, and by arguing that no material change of circumstances existed, and, as such, modification of custody and/or visitation should not occur.

Ms. Owens also filed her own counter-claim, seeking increased child support. As the case wore on, Schwarz joined Hanrahan in representing Owens. But apparently they were not aggressive enough to satisfy their client in conducting a deposition of his ex-wife in December 2007, and later that month Hanrahan urged Owens to add another lawyer, Atlanta practitioner Louis Levenson.

Plaintiff and plaintiff's counsel neglected to do any research substantiating plaintiffs' claim for modification of custody, Lewis' order says. In a telling e-mail on April 20, 2008, Mr. Levenson asked Ms. Hanrahan, “Has anyone done any research for us on change in circumstances and whether we, from the evidence so far, meet that [sic] criteria?” Ms. Hanrahan responded that same day, saying, “overcoming a significant change of circumstances was a primary concern in filing this case ' we told Shon there was a reasonably high liklihood [sic] that this case would be dismissed early on due to a lack of change in circumstance.”

Trial on the motion for modification was set for May 2008, but on the morning of trial, Levenson dismissed the case. Levenson was the only plaintiff attorney in this case who made a reasonable choice, says Lewis'order.

In January 2009, Shon Owens was ordered to pay his ex-wife $2,000 a month in child support and to share equally in the costs for the supervision of his visitation. The following month, Laytona Owens' lawyers filed their suit seeking attorney fees from Shon Owens; attorneys Schwarz, Hanrahan and their firm; and Levenson under O.C.G.A. ' 9-15-14, which allows a party to seek attorneys' fees resulting from litigation exhibiting 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.

She also sought damages from Shon Owens under O.C.G.A. ' 19-6-2 and ' 19-6-15(k)(5), which allow the court to “award attorneys' fees after considering the divorced parties' income, and in cases where a custodial parent prevails in an upward modification of child support ' ” After a six-day trial that concluded in July 2009, the court ordered a total of $325,000 in fees to be paid by Schwarz, Hanrahan and their firm, and Shon Owens; the latter was also ordered to pay $75,000 attributable to his superior financial position and to his “ deceitful and frivolous defense of defendant's counterclaim for increased child support.” Levenson, who was not sanctioned, said he does not think the law supports the award under ' 9-15-14. Schwarz agreed, noting that his client's expenses were much less than those of Laytona Owens: “While this order states that our former client's claims were without merit, the court actually granted our former client an element of relief he sought in the case,” he said. “Interestingly, no motion for dismissal or for summary judgment was ever filed by Ms. Jones-Owens' counsel despite their incurring over $400,000 in attorneys' fees in a case they deemed to be frivolous. In contrast, Mr. Owens incurred less than $80,000 in fees with our firm while pursuing and defending this case.

“We intend to appeal the Order since we strongly disagree with the characterization of our advocacy and are concerned with the perils of subjectively using OCGA 9-15-14,” he continued. “Among other unconventional legal standards adopted in the order, the court's order changes the standard of due diligence that domestic relations attorneys must engage in prior to filing, pursuing, and most pointedly even defending cases on behalf of clients. In addition, the order changes the standard of reasonable and necessary attorneys' fees and converts OCGA 9-15-14 into a mechanism to seek fees for supposedly 'discourteous' practice rather than for frivolous litigation.”

Lewis himself seemed well aware that his order would not be the last word on the matter.

' Greg Land, Fulton County Daily Report

Client and Attorneys Must Pay $400K in fees

A judge in Gwinnett County, GA, issued a stinging order levying a total of $400,000 in attorneys' fees against two lawyers and their client, who had sought to modify the terms of custody mandated in a divorce decree seven months earlier. Owens v. Owens, No. 07A-05249-2.

Citing the “mud and quicksand that this court had to wade through during the course of the case,” Gwinnett County Magistrate Judge Mark A. Lewis found the plaintiff, Shon Owens, and his attorneys ' Barry P. Schwarz and Monica J. Hanrahan (now Monica Hanrahan Freitag), and their firm, Kessler, Schwarz & Solomiany ' jointly liable for $325,000, and Owens personally liable for an additional $75,000 for the “never-ending hurricane” that was this case.

The underlying case began in September 2006, when Owens' wife, Laytona Jones Owens, filed for divorce; by November, the divorce was final, and Shon Owens had moved to Florida and purchased an interest in several liquor stores and other businesses.

As described in the order for fees, the tumultuous events that led to the expensive and expansive incurrence of attorneys' fees by Ms. Owens began seven months later, with her ex-husband's “frivolous, abusive and malicious filing of a modification of custody and visitation, together with a citation for contempt by [Kessler Schwarz] in June 2007.”

Laytona Owens' attorney, J. Michael McGarity of Buford, GA's McGarity Group, responded to the request for modification almost immediately by noting his client's preference for counsel to have had some legally reasonable discussions about plaintiff's desire prior to filing the lawsuit, and by arguing that no material change of circumstances existed, and, as such, modification of custody and/or visitation should not occur.

Ms. Owens also filed her own counter-claim, seeking increased child support. As the case wore on, Schwarz joined Hanrahan in representing Owens. But apparently they were not aggressive enough to satisfy their client in conducting a deposition of his ex-wife in December 2007, and later that month Hanrahan urged Owens to add another lawyer, Atlanta practitioner Louis Levenson.

Plaintiff and plaintiff's counsel neglected to do any research substantiating plaintiffs' claim for modification of custody, Lewis' order says. In a telling e-mail on April 20, 2008, Mr. Levenson asked Ms. Hanrahan, “Has anyone done any research for us on change in circumstances and whether we, from the evidence so far, meet that [sic] criteria?” Ms. Hanrahan responded that same day, saying, “overcoming a significant change of circumstances was a primary concern in filing this case ' we told Shon there was a reasonably high liklihood [sic] that this case would be dismissed early on due to a lack of change in circumstance.”

Trial on the motion for modification was set for May 2008, but on the morning of trial, Levenson dismissed the case. Levenson was the only plaintiff attorney in this case who made a reasonable choice, says Lewis'order.

In January 2009, Shon Owens was ordered to pay his ex-wife $2,000 a month in child support and to share equally in the costs for the supervision of his visitation. The following month, Laytona Owens' lawyers filed their suit seeking attorney fees from Shon Owens; attorneys Schwarz, Hanrahan and their firm; and Levenson under O.C.G.A. ' 9-15-14, which allows a party to seek attorneys' fees resulting from litigation exhibiting 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.

She also sought damages from Shon Owens under O.C.G.A. ' 19-6-2 and ' 19-6-15(k)(5), which allow the court to “award attorneys' fees after considering the divorced parties' income, and in cases where a custodial parent prevails in an upward modification of child support ' ” After a six-day trial that concluded in July 2009, the court ordered a total of $325,000 in fees to be paid by Schwarz, Hanrahan and their firm, and Shon Owens; the latter was also ordered to pay $75,000 attributable to his superior financial position and to his “ deceitful and frivolous defense of defendant's counterclaim for increased child support.” Levenson, who was not sanctioned, said he does not think the law supports the award under ' 9-15-14. Schwarz agreed, noting that his client's expenses were much less than those of Laytona Owens: “While this order states that our former client's claims were without merit, the court actually granted our former client an element of relief he sought in the case,” he said. “Interestingly, no motion for dismissal or for summary judgment was ever filed by Ms. Jones-Owens' counsel despite their incurring over $400,000 in attorneys' fees in a case they deemed to be frivolous. In contrast, Mr. Owens incurred less than $80,000 in fees with our firm while pursuing and defending this case.

“We intend to appeal the Order since we strongly disagree with the characterization of our advocacy and are concerned with the perils of subjectively using OCGA 9-15-14,” he continued. “Among other unconventional legal standards adopted in the order, the court's order changes the standard of due diligence that domestic relations attorneys must engage in prior to filing, pursuing, and most pointedly even defending cases on behalf of clients. In addition, the order changes the standard of reasonable and necessary attorneys' fees and converts OCGA 9-15-14 into a mechanism to seek fees for supposedly 'discourteous' practice rather than for frivolous litigation.”

Lewis himself seemed well aware that his order would not be the last word on the matter.

' Greg Land, Fulton County Daily Report