Sms Financial Recovery Services, LLC v. Yaarit Silverstone

THIRD DIVISION
                                DILLARD, P. J.,
                             GOBEIL 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



                                                                      April 30, 2026




In the Court of Appeals of Georgia
 A26A0482. SMS FINANCIAL RECOVERY SERVICES, LLC v.
     SILVERSTONE

      DILLARD, Presiding Judge.

      Following our grant of its application for a discretionary appeal, SMS Financial

Recovery Services, LLC, appeals the trial court’s award of attorney fees under OCGA

§ 9-15-14(a) and (b) to Yaarit Silverstone—a third party in this garnishment case.

More precisely, SMS argues (1) OCGA § 9-15-14 does not apply in garnishment

proceedings; (2) the court erred in sanctioning the company when it had a substantial

justification for moving to set aside the order granting Yaarit’s third-party claim; (3)

the court erred in failing to rule on its motion to strike an affidavit; and (4) the court

erred in failing to rule on Yaarit’s “motion to quash.” For the following reasons, we

reverse.
      We have seen this case before. In SMS Financial Recovery Services, LLC v.

Silverstone (Silverstone I),1 this Court recited the underlying factual background in

some detail. In a nutshell, SMS filed a garnishment proceeding seeking to recover a

judgment entered against Ian Silverstone in the Superior Court of Fulton County.2

Specifically, SMS filed a garnishment proceeding naming Ian Silverstone as the

defendant and Renasant Bank, Inc., as the garnishee.3 Yaarit then filed a third-party

claim, asserting that she owned the funds in the Renasant bank account.4 Renasant

filed an answer, paying $58,644.59 into the court registry; and Ian filed a claim form

noting that the money from the Renasant bank account was “exempt from

garnishment because it belonged to a joint account holder.”5 The trial court later held

a hearing on Ian’s claim and Yaarit’s third-party claim, but SMS did not appear.6 The

court then denied Ian’s claim, granted Yaarit’s third-party claim, and ordered the


      1
          374 Ga. App. 502 (913 SE2d 376) (2025).
      2
          Id. at 502 (1).
      3
          Id.
      4
          Id.
      5
          Id.
      6
          Id.
                                          2
money disbursed to Yaarit.7 SMS then moved to vacate the court’s order, claiming it

did not receive notice of the hearing until after it had taken place.8 The court denied

this motion, and Yaarit moved for attorney fees and expenses under OCGA § 9-15-

14(a) and (b). And after a hearing on Yaarit’s motion, the court granted it and awarded

her $14,525 in attorney fees.9

      SMS appealed the attorney-fee award, and this Court (1) vacated the award

because the trial court did not make sufficient findings of fact and conclusions of law

to support it, and (2) remanded the case to the trial court for reconsideration of its

grant of attorney fees and to make express findings of fact and conclusions of law as

to the statutory basis for any fee award and the conduct authorizing it.10 But we did not

address SMS’s argument that OCGA § 9-15-14 does not apply to garnishment

proceedings, noting that it was “apparently an issue of first impression.”11




      7
           Id.
      8
           Id.
      9
           Id.
      10
           Id. at 503(2).
      11
           Id.
                                            3
      On remand, the trial court issued a detailed order, again awarding Yaarit

$14,525 in attorney fees under OCGA § 9-15-14(a) and (b). In doing so, the court

concluded that (1) Yaarit presented evidence showing the amount of the award was

reasonable and necessary;12 (2) SMS’s motion to vacate its order granting Yaarit’s

third-party claim presented no “justiciable issue of law or fact”; (3) the motion to

vacate lacked substantial justification, was interposed for delay or harassment, and

unnecessarily expanded the proceeding; and (4) SMS’s post-judgment discovery

requests were frivolous, meant to annoy and harass Yaarit, and also unnecessarily

expanded the proceedings. We granted SMS’s application for discretionary appeal,

and this appeal follows.

      To begin with, we review OCGA § 9-15-14 (a) attorney-fee awards “under an

any-evidence standard, while OCGA § 9-15-14 (b) awards are reviewed for an abuse




      12
         According to the trial court, the hearing on Yaarit’s motion for attorney fees
was not transcribed and no such transcript is included in the appellate record. Given
the presumption of the regularity of court proceedings, we “must assume in the
absence of a transcript that there was sufficient competent evidence to support the
trial court’s findings.” See Barnwell v. TPCII, LLC, 295 Ga. 153, 154 (758 SE2d 281)
(2014).
                                          4
of discretion.”13 But we review purely legal issues of statutory construction de novo.14

With these guiding principles in mind, we turn now to SMS’s specific claims of error.

      1. SMS first argues that OCGA § 9-15-14 does not apply in garnishment

proceedings. We agree.

      In Silverstone I, this Court expressly declined to address SMS’s argument that

OCGA § 9-15-14 does not apply in garnishment proceedings, noting that it was

“apparently an issue of first impression.”15 In making this determination now, the

issue before us is whether a garnishment proceeding constitutes a civil action. Our

analysis begins with OCGA § 9-15-14(a), which provides:

      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,


      13
       Landry v. Walsh, 342 Ga. App. 283, 286(2) (801 SE2d 553) (2017). Accord
Portman v. Zipperer, 368 Ga. App. 208, 209 (889 SE2d 391) (2023).
      14
       See NRD Partners II, L. P. v. Quadre Invs., L. P., 364 Ga. App. 739, 741–42(2)
(875 SE2d 895) (2022) (reviewing a purely legal issue of statutory construction de
novo).
      15
           Silverstone I, 374 Ga. App. at 503(2).
                                             5
      defense, or other position. Attorney’s fees and expenses so awarded shall
      be assessed against the party asserting such claim, defense, or other
      position, or against that party’s attorney, or against both in such manner
      as is just.16


OCGA § 9-15-14(b) also provides:

      The court may assess reasonable and necessary attorney’s fees and
      expenses of litigation in any civil action in any court of record if, upon the
      motion of any party or the court itself, 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,
      including, but not limited to, abuses of discovery procedures available
      under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used
      in this Code section, “lacked substantial justification” means
      substantially frivolous, substantially groundless, or substantially
      vexatious.17




      16
           (Emphasis added).
      17
           (Emphasis added).
                                            6
       Significantly, the statutory authorization for attorney fees is “in derogation of

common law[ ] and, thus, must be strictly construed.”18 And as emphasized above,

OCGA § 9-15-14(a) and (b) expressly provide that an attorney-fee award is only

authorized in a civil action. Suffice it to say, we afford the statutory text its plain and

ordinary meaning.19 And here, this matters because a garnishment proceeding is a




       18
         Bishop v. Goins, 305 Ga. 310, 311 (824 SE2d 369) (2019) (citations omitted).
See Kemp v. Kemp, 337 Ga. App. 627, 633 (788 SE2d 517) (2016) (“[B]ecause any
statute that provides for the award of attorney fees is in derogation of common law,
it must be strictly construed against the award of such damages.” (quotation marks
omitted)).
       19
        See Monumedia II, LLC v. Dep’t of Transp., 343 Ga. App. 49, 52(1) (806 SE2d
215) (2017) (explaining that when the language of a statute is “plain and susceptible
of only one natural and reasonable construction, courts must construe the statute
accordingly”); Holcomb v. Long, 329 Ga. App. 515, 517(1) (765 SE2d 687) (2014)
(explaining that we must afford the statutory text its plain and ordinary meaning).
                                             7
special statutory proceeding,20 not a civil action.21 Indeed, in a slightly different context,

the Supreme Court of Georgia held that “an arbitration award confirmation

proceeding ... is a special statutory proceeding, not a civil action.”22 So, it follows that

because garnishment is also a special statutory proceeding, it is not a civil action and


       20
          See ARC Sec., Inc. v. Massey Bus. Coll., 221 Ga. App. 489, 489–90(1) (471
SE2d 569) (1996) (describing a garnishment action as a special statutory proceeding
in derogation of the common law); S. Env’t Grp., Inc. v. Rosebud Landscape Gardeners,
Inc., 196 Ga. App. 392, 394(1) (395 SE2d 913) (1990) (explaining that garnishment “is
a special statutory proceeding, strictly pursued, to allow a creditor to seize a debtor’s
funds in the possession of a third person”); Baptist Convention of Ga. v. Henry, 187 Ga.
App. 551, 551 (370 SE2d 813) (1988) (“The issues presented arise from the special
statutory nature of the garnishment procedure. Our garnishment statute is in
derogation of the common law and, thus, must be strictly construed.”).
       21
         See Great W. Bank v. Se. Bank, 234 Ga. App. 420, 421 (507 SE2d 191) (1998)
(noting that “[b]y its terms, OCGA § 9–15–14 only applies to civil actions brought in
courts of record in this state”).
       22
          Hardin Const. Grp., Inc. v. Fuller Enters., Inc., 265 Ga. 770, 771 (462 SE2d
130) (1995) (emphasis added). Accord Sanvi Bus., LLC v. United Gaming, LLC, 377
Ga. App. 344, 346(1) (922 SE2d 598) (2025). See Vlass v. Sec. Pac. Nat. Bank, 263 Ga.
296, 297 (430 SE2d 732) (1993) (noting that “an application for confirmation is not a
complaint which initiates a ‘civil action’ in the superior court,” and “[e]ven though
an application to confirm a foreclosure sale is a special statutory proceeding, it is not
a civil suit in the ordinary meaning of that term ... .” (citation modified)); DeKalb
Cnty. v. Gerard, 207 Ga. App. 43, 43(1) (427 SE2d 36) (1993) (noting that because the
case was “on appeal from an inferior judicatory, brought on a petition for writ of
certiorari pursuant to OCGA § 5–4–1, a special statutory appellate proceeding . . . it
was criminal, or quasi criminal, [and] was not a ‘civil action’ within the coverage of
OCGA § 9–15–14.”).
                                              8
an attorney-fee award under OCGA § 9-15-14 (a) or (b) is not authorized. That said,

this does not mean a party to a garnishment proceeding may never be awarded

attorney fees. To the contrary, OCGA § 18-4-19(d)(2) directly addresses garnishment

proceedings and provides that “if the court finds ... [t]he plaintiff’s traverse lacked

reasonable justification, the court shall award the garnishee a judgment against the

plaintiff for its attorney’s fees incurred in connection with the traverse.”23

       Even so, SMS appears to suggest that garnishment proceedings are both special

statutory proceedings and civil actions because OCGA § 18-4-71 provides the form

required to submit an “affidavit of garnishment,” and at the top of the form, there is




       23
          (Emphasis added). Notably, a party seeking attorney fees under OCGA § 9-
15-14 must satisfy a much more stringent standard than one seeking fees in a
garnishment proceeding. As detailed above, a party seeking attorney fees in a
garnishment proceeding need only show that plaintiff’s traverse lacked reasonable
justification, while under OCGA § 9-15-14(a), a party seeking fees must show that the
other 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,” and under OCGA § 9-15-14(b), a party seeking fees must show that the
other 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.”(Emphasis added).
                                              9
a blank space for the affiant to provide a “Civil Action File Number.”24 While this is

certainly true, every case in the superior court must be assigned a case number, and

we are unpersuaded that merely including the words “civil action” on a standard form

contravenes our well-settled precedent that garnishment cases are special statutory

proceedings, rather than civil actions.25

       Simply put, our Supreme Court has held that a proceeding in the superior court

can be a civil action or special statutory proceeding, but not both.26 Garnishment

proceedings are special statutory proceedings; and OCGA § 9-15-14(a) and (b)—when

strictly construed—only authorize attorney-fee awards in civil actions. The trial court

erred, then, in awarding Yaarit attorney fees under OCGA § 9-15-14.

       2. Because we hold in Division 1 that the trial court was not permitted to award

attorney fees under OCGA § 9-15-14, we need not address SMS’s remaining claims

of error.

       For these reasons, we reverse the trial court’s award of attorney fees to Yaarit.

       Judgment reversed. Gobeil and Pipkin, JJ., concur.


       24
            See OCGA § 18-4-71.
       25
            See supra note 20 & accompanying text.
       26
            Id.
                                            10