Hewitt v. Walker

506 S.E.2d 215 (1998)

234 Ga. App. 78

HEWITT et al. v. WALKER.

No. A98A1850.

Court of Appeals of Georgia.

August 20, 1998.

William J. Mason, Columbus, for appellants.

Grogan, Jones, Rumer & Gunby, Lee R. Grogan, Columbus, for appellee.

BEASLEY, Judge.

Plaintiffs sued Bill Walker for breach of contract and negligence. On October 14, 1996, the court entered summary judgment in favor of Walker, which we affirmed in Hewitt v. Walker, 226 Ga.App. 764, 487 S.E.2d 603 (1997). The Supreme Court denied certiorari on October 31, 1997. On December 9, 1997, 421 days after final judgment, Walker moved for attorney fees and expenses of litigation pursuant to OCGA § 9-15-14. The court granted the motion and awarded Walker $9,000.

"[T]here is a `window of opportunity' for seeking attorney fees under OCGA § 9-15-14 which begins with the entry of final judgment as defined in OCGA § 5-6-34(a)(1) and ends 45 days later." Fairburn Banking Co. v. Gafford, 263 Ga. 792, 794, 439 S.E.2d 482 (1994). Fairburn Banking specifically rejected the argument that an appeal extends that time until 45 days after final disposition of the appeal. The rule announced in Fairburn Banking has been applied in this Court since. See, e.g., Gist v. DeKalb Tire Co., 223 Ga.App. 397, 477 S.E.2d 616 (1996). Walker's contention that we should overrule Fairburn Banking, a Supreme Court decision, is specious. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI; Adams v. State, 174 Ga.App. 558, 559(2), 331 S.E.2d 29 (1985).

Just as in Fairburn Banking, "[s]ince the motion which the trial court granted in the present case was not filed within that window of opportunity, the trial court lacked jurisdiction to consider it." 263 Ga. at 794, 439 S.E.2d 482. Likewise, the award to Walker was error.

*216 This moots the other enumerations of error.

Judgment reversed.

POPE, P.J., and RUFFIN, J., concur.