Judge Rules Erwin Not Liable for Gasaway Attorney’s Fees

The attorney for former State House Representative Dan Gasaway loses his bid to collect attorneys fees from the two election lawsuits he won for his client.

At a hearing Monday morning in Banks Count Superior Court, Senior Superior Court Judge David Sweat ruled attorney Jake Evans was not entitled to collect $103,300 in attorney fees, but was entitled to small portion of the $14,000 he asked for in court costs.

In his argument Monday, Evans told the Court he was entitled to that amount based on Georgia Code 9-15-14, which calls for the defense to pay the plaintiff attorney’s fees and all court costs if the Court rules the defense’s case was either frivolous or there was no justification for the defense’s arguments.

Evans cited as proof the four witnesses in the January hearing whose votes for Chris Erwin the Judge ultimately ruled were illegal.

“The Georgia Supreme Court held that attorneys fees under 9-15-14 are proper. Period,” Evans said.

“That’s not disputed,” Jude Sweat replied. “The question is how do we apply that to the case at hand. Here we’ve got elections, we’ve got votes, we’ve got a lot of different factors. It was not just something that they just confabulated. There were facts in this case in which there were many disputes.”

“Well, I don’t think that’s true, Your Honor,” Evans said. “I think that almost all the facts in this case were stipulated to by the respondents. There were almost no facts that were in dispute.”

However, in his ruling Judge Sweat, said he was not inclined to agree with Evan’s argument.

“The Court is not persuaded that you’re entitled to fees under 9-15-14 a or b,” Judge Sweat began. “And the parties from whom you seek these were in the position of defending an election, that I think there is some presumption that the proper action is up to the challenging party to establish that there were departures and irregularities as specified in the Code section. The Court is just not persuaded that there was an absence of disputable issue or that there was a lack of substantial justification in the conduct of their defense,” he concluded.

The Judge awarded Evans about $200 in court costs, but denied costs incurred by Gasaway personally for items such as open records fees, witness fees, and data production, saying those did not fall under the statue, but were personal expenses.

He also denied Gasaway the $12,000 fee he paid to his expert GIS witness.  After the ruling, Erwin’s attorney Bryan Tyson said he expected the Judge would rule in his client’s favor.

“This is what I would have expected,” he explained. “The law is clear that you can’t get attorney’s fees if there was disputed issue of law. And this was a close case. This was a well litigated case. This was not a case where the positions that we and the Counties took lacked justification. And so the law is clear that you don’t get fees in this kind of scenario.”

“Well I’m just happy that the taxpayers don’t have to foot the bill for this. That isn’t right in my eyes and it’s time to move on,” Erwin said.

WNEG News asked Gasaway for a comment on the Judge’s decision.  Gasaway expressed shock at the outcome, but said he needed time to digest the Judge’s ruling before making a public comment.