L to R: Robert Ingram and Thomas Cauthorn
L to R: Robert Ingram and Thomas Cauthorn ()

Correction appended

Lawyers for Waffle House CEO Joseph Rogers Jr. were in court Tuesday trying to persuade a judge to order Rogers’ former housekeeper and her lawyer to pay more than $190,000 in attorney fees incurred fighting the housekeeper’s short-lived suit in Fulton County State Court that accused Rogers of sexual assault and battery.

In 2013, a judge ordered the housekeeper, Mye Brindle, and attorney David Cohen of Marietta’s Complex Law Group to pay $142,657 as sanctions related to the action. Judge Susan Forsling, who has since left the bench, determined that Brindle had improperly filed the suit in Fulton instead of filing counterclaims to a suit over the same underlying issues Rogers had already brought in Cobb County. Forsling also found that Brindle and her lawyers had attempted an end-run around a sealing order in the case by filing in the Georgia Supreme Court unsealed documents, which were provided to the media before the high court sealed them.

The Fulton suit was filed on Sept. 19, 2010, and voluntarily dismissed 21 days later.

Last year, the Georgia Court of Appeals declared that some of the fees Forsling awarded were not permissible under the law and remanded the matter to the State Court.

Brindle’s accusations are at the heart of pending litigation in Cobb County, which has resulted in a judge there ruling that Brindle violated the law by secretly video-recording Rogers and Brindle engaging in a sexual encounter at Rogers’ home. The Cobb judge is allowing discovery over what role Brindle’s lawyers had in making the videos. The Court of Appeals upheld that order in the same ruling remanding Forsling’s order, and earlier this month the state Supreme Court declined Brindle’s appeal of that ruling.

In the Fulton County case on Tuesday, what was supposed to have been a 90-minute hearing on Rogers’ renewed motion for fees stretched into three hours and was still unfinished when Judge Eric Richardson ended it.

Rogers’ attorneys—Robert Ingram, Jeffrey Daxe and David Conley of Marietta’s Moore Ingram Johnson & Steele—told Richardson that the Court of Appeals had disallowed only about $9,000 in its July 2014 order. But since the Court of Appeals had entered its order, Ingram said Rogers had accrued another $31,777 in fees litigating his renewed fee request, bring the new total to $192,427.

Ingram said Forsling had conducted three evidentiary hearings before issuing her order, so he urged Richardson to retain the rest of her ruling declaring the sanctions appropriate for a suit that, he said, was filed solely to harass and embarrass Rogers and that unnecessarily expanded the litigation.

“The Court of Appeals accepted two of their arguments,” said Ingram, while finding that 14 other objections were “without merit.”

It would be inappropriate, he said, to re-argue issues the trial court had previously ruled upon and that the appellate court had approved.

Cohen was accompanied by his attorneys, former Cobb County Superior Court Judge Tom Cauthorn III and his son, J. Wickliffe “Wick” Cauthorn, both of Marietta’s Cauthorn Nohr & Owen. Brindle, who was not present, was represented at the hearing by Marietta solo John Butters.

Tom Cauthorn strongly opposed Ingram’s interpretation of the Court of Appeals order, pointing to language that it was remanding the case for the trial court “to make express findings of fact and conclusions of law as to the basis for an award” and “specifying the conduct which would authorize the award” and its amount, if any.

“I don’t see how the court can follow the Court of Appeals order if it doesn’t hear evidence,” said Tom Cauthorn.

Butters said that the appellate order had limited any fees that might be awarded to those accrued between the time the Fulton suit was filed and its dismissal 21 days later, an interpretation Ingram said would allow anyone to avoid a sanction of ongoing legal fees by simply dismissing a case, regardless of its merits.

Early on, Richardson seemed to favor the Rogers team’s interpretation of the Court of Appeals order.

“As I interpret the order, it’s to determine what was the improper conduct before this court,” he said. Citing a “voluminous and comprehensive” case record,” Richardson said he saw “no reason to disturb the order that sanctions are appropriate. The question is how much?”

Tom Cauthorn again disagreed, and Richardson allowed him to argue against what Rogers’ lawyers claim is sanctionable conduct. Cauthorn noted that Forsling found that—by filing a new suit in Fulton after Rogers had already sued Brindle in Cobb County instead of filing a counterclaim in Cobb—Brindle and her lawyers had unnecessarily expanded the litigation and attempted to engage in forum shopping.

But, said Tom Cauthorn, when Brindle filed her suit, she had never been served with the Cobb action and was not even a named defendant there. Rogers initially filed his suit as “Doe v. Smith,” and only named Brindle several hours after the Fulton suit had been filed.

He also said that any unnecessary expansion of the Fulton litigation was due to Rogers’ actions, including the filing of a contempt action after the case had been dismissed.

Rogers, he said, “must show that my client is guilty of sanctionable conduct before this court, and that the conduct caused the fees.”

As the hearing neared its end, Richardson asked whether any sanctionable conduct by Brindle and Cohen might be separated, so that Brindle would not be impacted by actions attributable to her counsel.

Daxe said that the bulk of the conduct should be ascribed to both, although he said Cohen deserved to be sanctioned for his role in sending the unsealed records to the Supreme Court, and for sending out what Rogers’ team has termed an “extortion letter” threatening Rogers with “dire consequences” of bad publicity, family problems and possible criminal charges if he did not settle with Brindle before she filed suit. Cohen has defended the letter as a standard demand letter.

“Do I have the authority to enforce the sanctions completely on the lawyers?” asked Richardson.

“Yes,” said Daxe.

Ingram had to appear in court elsewhere and Richardson concluded the hearing, saying he would schedule its continuation for a future date.

This story has been changed to reflect a correction. The initial version misreported that a judge had found that Brindle and her lawyers violated the law by secretly video-recording Rogers and Brindle engaged in a sex encounter. The lawyers have not been found to have broken the law.