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Kemp v. Kemp

The trial court erred in entering an interim award of attorney fees for the plaintiff under O.C.G.A. § 53-12-302 before his breach of trust claim had been resolved.

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Sandra Kemp Sandra appeals the trial court’s interim award of attorney fees to her son, Charles Alexander Kemp, II, and his minor children collectively, Alexander in their action against her for breach of trust and other related claims.1 On appeal, Sandra argues that the trial court erred in awarding attorney fees to Alexander under OCGA § 53-12-302 a 4 prior to the conclusion of the case because 1 such an award is not authorized by the statute, and 2 it is impossible to know at this time whether and to what extent Alexander will prevail on his claims. As to the amount of the award, Sandra maintains that the trial court erred in awarding fees for claims other than breach of trust, including claims that Alexander later abandoned. Because we agree that an award of attorney fees and costs of litigation to Alexander prior to the adjudication of his breach-of-trust claim is not authorized by OCGA § 53-12-302 a 4, we vacate the fee award and remand the case for further proceedings consistent with this opinion.

Relevant to this appeal, the record shows2 that Charles Alexander Kemp Alex, who was Sandra’s late husband and Alexander’s father, was a successful businessman who founded companies that provide dialysis-management services. In February 2004, Alex executed his last will and testament, in which Sandra was named the sole executrix and trustee of a marital trust and a residual trust, both of which were created by the will. Alexander, who was 19 years old at the time, was named the first successor trustee of both trusts. Also in February 2004, Alex created the Green Tree Trust, which was the sole owner of his business that managed contracts for the operation of Wake Forest University’s dialysis clinics.

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