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DEAVOURS et al. v. HOG MOUNTAIN CREATIONS, INC. et al.; and vice versa.
SMITH, Judge.
Attorney fees. Gwinnett State Court. Before Judge Hoffman.
In Betallic, Inc. v. Deavours, 263 Ga. 796 (439 SE2d 643) (1994), the Supreme Court affirmed in part and reversed in part the judgment rendered by this court in Deavours v. Hog Mt. Creations, 207 Ga. App. 557 (428 SE2d 388) (1993), and directed that we take such further action as may be necessary to give effect to the Supreme Court's opinion.
In Deavours, supra, the trial court granted an award of attorney fees and expenses of litigation to appellee-defendants based on their initial counterclaims for such an award pursuant to OCGA 9-15-14. Construing OCGA 9-15-14, we held that a claim for attorney fees and expenses of litigation for abusive litigation under OCGA 9-1 5-14 must be made by motion within 45 days after the case is concluded. Since the motion made by appellee in this case was untimely, we reversed the trial court's award of attorney fees to appellee. In Betallic, the Supreme Court agreed with our construction of OCGA 9-15-14, but disagreed with that portion of our opinion quoting In the Interest of M. A. K., 202 Ga. App. 342 (1) (414 SE2d 288) (1991), stating that a claim for litigation costs and attorney fees under OCGA 9-15-14 was available only to a "prevailing party."
Accordingly, that portion of our opinion in Deavours, supra, as well as in M. A. K., supra, is disapproved. The judgment of the Supreme Court is made the judgment of this court.
Thompson, O'Brien, Kemp & Nasuit, J. Patrick O'Brien, William M. Coolidge III, Donna N. Kemp, for appellees.
Glenville Haldi, for appellants.
DECIDED MAY 27, 1994.
Thursday May 21 06:26 EDT

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