GARLAND FAVORITO v. ALEX WAN
CourtCourt of Appeals of Georgia
Date FiledOctober 26, 2026
DocketA26A1596
StatusPublished
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Full Opinion
FIRST DIVISION
BARNES, P. J.,
MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 26, 2026
In the Court of Appeals of Georgia
A26A1596. FAVORITO et al v. WAN et al.
A26A1739. JEFFORDS v. FULTON COUNTY et al.
HODGES, Judge.
This is the second appearance of this case before this Court, where appellants
Garland Favorito, Caroline Jeffords, Christopher Peck, and Trevor Terris have
challenged the actions of various local officials regarding the November 2020 general
election.1 They appeal from a trial court order that dismissed many of their claims and
1
The appellants first appealed a prior order dismissing their claims to the
Georgia Supreme Court, which transferred the appeal to this Court, where we
affirmed the trial court’s determination that the appellants, and other prior
petitioners, lacked standing to maintain the action. Favorito v. Wan, 364 Ga. App. 745
(875 SE2d 892) (2022). After the Supreme Court vacated this Court’s opinion, we
determined that the appellants had standing to pursue the action as community
stakeholders. Favorito v. Wan, 367 Ga. App. 642, 642–44 (887 SE2d 810) (2023).
awarded attorney fees under OCGA § 9-15-14(a) and (b) to Fulton County and the
Fulton County clerk of the superior court. In Case No. A26A1596, Favorito, Peck, and
Terris (collectively “the Favorito petitioners”) challenge the dismissal of their
declaratory judgment, due process and equal protection claims, as well as the
imposition of attorney fees. In Case No. A26A1739, Jeffords challenges the imposition
of attorney fees. We consider these appeals together since they arise from the same
trial court order and both challenge the imposition of attorney fees, for which they are
jointly and severally liable.
As set forth more fully below, we affirm the dismissal of the Favorito
petitioners’ claims, as they have failed to make any meaningful argument that these
claims should survive. Regarding attorney fees, we conclude that the trial court erred
in awarding fees to the county, affirm the award of fees to the clerk, and remand the
case for the trial court to determine if the county is entitled to fees on other grounds.
Briefly, this case began in December 2020, when the appellants and others
brought a petition for declaratory and injunctive relief against various officials in their
individual capacities concerning purported illegal conduct regarding the handling or
counting of ballots in Fulton County during the November 2020 general election. In
2
January 2021, the appellants sought to substitute the original defendants with Fulton
County and the Fulton County clerk of the superior court as the new defendants. The
superior court held a hearing on the motion to substitute in March 2021, and
substituted the parties in April 2021. Both the clerk and the county moved to dismiss
the petition in May 2021.
In February 2026, the superior court issued an order dismissing all of the
Favorito petitioners’ remaining claims, and all of Jeffords’ claims save for an equal
protection claim that is not at issue in these appeals.2 The superior court also
concluded that the appellants were liable to the county and the clerk for attorney fees
pursuant to OCGA § 9-15-14(a) and (b) related to the dismissed claims. In Case No.
A26A1596, the Favorito petitioners challenge the dismissal of their claims and the
imposition of attorney fees. In Case No. A26A1739, we granted Jeffords’ application
for interlocutory review to consider the propriety of the attorney fee award.
2
The appellees have filed a motion to dismiss Case No. A26A1596, asserting
that the appeal is interlocutory because Jeffords’ equal protection claim is still
pending. The Favorito petitioners, however, have been severed from Jeffords since
April 2021, and the trial court’s order is clear that all of the Favorito petitioners’
“remaining claims are now all dismissed.” As such, this appeal is not interlocutory,
and the appellees’ motion is DENIED.
3
1. In Case No. A26A1596, the Favorito petitioners challenge the dismissal of
their declaratory judgment, due process, and equal protection claims. The Favorito
petitioners, however, have failed to advance any meaningful argument to challenge the
trial court’s conclusion and these claims of error are abandoned as a result. See In the
Interest of K. R., 367 Ga. App. 668, 677(2)(b) (888 SE2d 204) (2023) (“[W]e have held
that an argument is abandoned if it provides general citations to the ‘most basic legal
authority’ without providing any legal authority or argument related to the specific
facts of [the] case.”); Brittain v. State, 329 Ga. App. 689, 704(4)(a) (766 SE2d 106)
(2014) (“[A]n appellant must support enumerations of error with argument and
citation of authority, and mere conclusory statements are not the type of meaningful
argument contemplated by our rules.”) (citation and punctuation omitted); Dixon v.
MARTA, 242 Ga. App. 262, 266(4) (529 SE2d 398) (2000) (“Rhetoric is not a
substitute for cogent legal analysis, which is, at a minimum, a discussion of the
appropriate law as applied to the relevant facts.”); Court of App. R. 25(d)(1) (“Any
enumeration of error that is not supported in the brief by citation of authority or
argument may be deemed abandoned.”).
4
Here, the Favorito petitioners have only cited the most basic legal authority in
a general fashion with absolutely no attempt to apply any of the myriad (including very
recent) case law regarding where declaratory judgments will lie to the facts of this
case. At most, they have cited three cases that state the purpose of the declaratory
judgment act and note that this Court considers the substance over the nomenclature
of pleadings. Worse, regarding their due process and equal protection claims, the
Favorito petitioners have cited absolutely no authority to support their position.
Because the Favorito petitioners have failed to cite any meaningful authority, this
Court can only speculate as to what argument they intended to advance, and we will
not engage in such an enterprise. “As an appellate court, we should not speculate or
make arguments on [the] appellant[s’] behalf; to do so would improperly change this
Court’s role from disinterested decision-maker to appellate advocate.” Muniz v. State,
375 Ga. App. 140, 141–42(1)(b) (914 SE2d 358) (2025) (punctuation omitted).
Because we refuse to invent arguments for counsel, these enumerations are
abandoned. In the Interest of K. R., 367 Ga. App. at 677(2)(b).
2. The Favorito petitioners in Case No. A26A1596 and Jeffords in Case No.
A26A1739 each challenge the trial court’s award of attorney fees pursuant to OCGA
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§ 9-15-14(a) and (b) to both Fulton County and the Fulton County clerk of the
superior court on various grounds. As these appeals are taken from the same order,
awarding fees on the same grounds, and the appellants’ arguments are substantially
similar, we will resolve these many enumerations collectively.
(a) As an initial matter, in both cases the appellants contend that the county and
the clerk have waived or are estopped from any argument that they are entitled to fees
for abusive litigation because the county and the clerk “affirmatively stated [the
motion to substitute the county as a party] was unopposed.” The appellants heavily
rely on the fact that counsel representing the individual members of the Fulton
County Board of Elections, who now represents the county, indicated the motion to
substitute the parties was “unopposed.” Additionally, the appellants point out that
neither the county nor the clerk took any action to oppose substitution until four
months after the motion to substitute was filed and until two and a half months after
substitution was ordered.
Pretermitting whether the county and the clerk waived their opposition to being
procedurally substituted as parties,3 Georgia law is clear that the county and the clerk
3
See Kent v. A.O. White, Jr., Consulting Eng’r, Inc., 279 Ga. App. 563, 566(5)
631 SE2d 782) (2006) (finding wavier where opposition to substitution was filed
6
could still substantively assert sovereign immunity, as they each did with their first act
after joining the case. Issues of substitution and sovereign immunity are separate
inquiries, and “[t]he fact that a governmental entity may have sovereign immunity ...
does not prevent such entity from being ... an entity that may sue and be sued.” Foskey
v. Vidalia City School, 258 Ga. App. 298, 301(b) (574 SE2d 367) (2002). We have also
concluded in other contexts that the substitution of parties “is a procedural rule and
does not alter the substantive rights of the parties[.]” EMM Credit, LLC v. Remington,
343 Ga. App. 710, 718(3) (808 SE2d 96) (2017). Because the county and the clerk
could (and did) raise sovereign immunity as a substantive challenge after being
substituted as parties, we conclude that their purported lack of opposition to being
substituted is not a bar to attorney fees.
(b) Turning to the merits of the attorney fee award regarding Fulton County,
“[g]enerally, an award of attorney fees is not available in Georgia unless authorized
by statute or contract.” O’Keefe v. O’Keefe, 285 Ga. 805, 805-06 (684 SE2d 266)
(2009). OCGA § 9-15-14(a) mandates that the trial court must award attorney fees
when a party
“nearly ninety days after the motion to substitute was filed and two months after the
superior court allowed the substitution”).
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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 OCGA § 9-15-14(b) permits a trial court to award attorney fees if an attorney or
a party brings an action
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[.] ... As used in this Code section, “lacked substantial
justification” means substantially frivolous, substantially groundless, or
substantially vexatious.
“[A]n order awarding attorney fees pursuant to [OCGA § 9-15-14] must specifically
state whether the award is made under OCGA § 9-15-14(a) or (b)[,]” Woods v. Hall,
315 Ga. App. 93, 97(2) (726 SE2d 596) (2012), and it must include “findings of fact
that specify the conduct upon which the award is made.” Hicks v. Gabor, 354 Ga. App.
714, 726(2)(b) (841 SE2d 42) (2020). See Cohen v. Rogers, 341 Ga. App. 146, 152(2)(b)
(798 SE2d 701) (2017) (“To permit meaningful appellate review of an award of fees
and expenses [under OCGA § 9-15-14], the trial court’s order cannot be too vague and
8
conclusory, such as where it fails to cite examples of conduct that authorize the
award.”) (punctuation omitted).
When considering an appeal from an OCGA § 9-15-14(a) fee award, “we must
determine whether the claim asserted below either had some factual merit or
presented a justiciable issue of law.” Omni Builders Risk, Inc. v. Bennett, 325 Ga. App.
293, 297(3) (750 SE2d 499) (2013). We will affirm an award under OCGA § 9-15-14(a)
“if there is any evidence to support it.” Reynolds v. Clark, 322 Ga. App. 788, 789(1)
(746 SE2d 266) (2013). “We review a subsection (b) fee award for abuse of
discretion.” Shoenthal v. DeKalb County Emps. Retirement System Pension Bd., 343 Ga.
App. 27, 30 (805 SE2d 650) (2017).
However, this Court must “keep in mind that OCGA § 9-15-14(a) is intended
to discourage the bringing of frivolous claims, not the presentation of questions of first
impression about which reasonable minds might disagree or the assertion of novel
legal theories that find arguable, albeit limited, support in the existing case law and
statutes.” Shoenthal, 343 Ga. App. at 32. See OCGA § 9-15-14(c) (“No attorney or
party shall be assessed attorney[] fees as to any claim or defense which the court
determines was asserted by said attorney or party in a good faith attempt to establish
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a new theory of law in Georgia if such new theory of law is based on some recognized
precedential or persuasive authority.”)
(i) In its order awarding fees under OCGA § 9-15-14(a), the trial court
concluded that (1) the county “enters litigation sheathed in sovereign immunity[,]”
(2) the only possible waiver of sovereign immunity “plainly did not apply,” and (3)
the appellants’ dismissed claims “presented zero factual or legal questions ... because
the [c]ounty was immune to such claims.” Said another way, the trial court found the
claims “suffered from a ‘complete absence of any justiciable issue of law or fact.’”
See OCGA § 9-15-14(a).
In their petition, the appellants pled that those responsible for the November
2020 general election had failed to follow state law regarding ballot processing, diluted
their vote, and allowed the disenfranchisement of voters by permitting the counting
of fraudulent or fabricated ballots. The appellants sought to substitute the county as
a party after Georgia voters approved an amendment to the Georgia Constitution
allowing a new waiver of sovereign immunity. See Ga. Const. of 1983, Art. I, Sec. II,
Par. V(b)(1) (the “Immunity Amendment”). This waiver permits actions in superior
court for declaratory judgment and related injunctive relief against the state and its
10
counties for acts that are “outside the scope of lawful authority or in violation of the
laws or the constitution of this state or the Constitution of the United States.” Id. The
Immunity Amendment provides, without any further direction, that this waiver “shall
apply to past, current, and prospective acts which occur on or after January 1, 2021.”
Id.
The appellants assert that fees under OCGA § 9-15-14(a) should not be
available as they asserted waiver of sovereign immunity under the Immunity
Amendment, without the benefit of any interpretive guidance from our Supreme
Court. At the time the appellants sought to substitute the county as a party, there was
no guidance from our Supreme Court as to what types of “past, current, and
prospective acts” could be captured by the waiver of sovereign immunity. Regardless
of whether the appellants’ claims regarding the November 2020 election could have
supported a waiver of sovereign immunity, we conclude that the appellants’ position
was not so unreasonable that they could not have believed a trial court would accept
it at the time it was filed.
In so concluding, we note that there have been at least five post-2021 Georgia
appellate cases interpreting what types of acts can waive sovereign immunity under
11
the Immunity Amendment. See Republican Nat’l Comm. v. Eternal Vigilance Action,
Inc., 321 Ga. 771, 791(4) (917 SE2d 125) (2025); Starship Enters. of Atlanta, Inc. v.
Gwinnett County., 319 Ga. 293, 302(2)(b) (903 SE2d 55) (2024); Maat Concepts, Inc.
v. Fulton County, __ Ga. App. __ (932 SE2d 825, 829(1)) (2026); Fraser v. Glynn
County, 377 Ga. App. 662, 666–67(1)(a) (922 SE2d 825) (2025); City of Atlanta v.
MLK Props., 372 Ga. App. 210, 215-16(2)(a) (904 SE2d 79) (2024).We find Eternal
Vigilance Action especially informative, where the Supreme Court reviewed
petitioners’ challenge to the rules of the State Election Board based on their concern
that the application of such rules would infringe on the petitioners’ right to vote. 321
Ga. at 791(4). The Supreme Court recognized the Immunity Amendment was an
appropriate waiver of sovereign immunity because the voters “faced a risk of taking
future undirected action that would nullify their votes.” Id. at 791–92(4).
While the appellants in the instant cases were unsuccessful in demonstrating
that they had pled prospective acts as contemplated by the Immunity Amendment, we
cannot say their efforts were so frivolous that no court could have accepted them at
that time. In Fraser, for example, this Court considered whether there was a waiver
of sovereign immunity where, before 2021, a county had issued a (purportedly void)
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quitclaim deed over certain property and petitioners were aggrieved by the county
potentially enforcing trespass laws related to that property, where petitioners believed
they had access. 377 Ga. App. at 666–67(1)(a). Because the county had not taken any
action to threaten petitioners with a trespass prosecution, this Court found there was
no justiciable controversy, and thus no waiver under the Immunity Amendment. Id.
The appellants here were in a similar posture, seeking declaratory relief over past
violations of law which could impact their rights going forward. We find it notable that
nothing in the Fraser case suggested the petitioners were acting in a frivolous or
vexatious manner, and that Fraser was ultimately a split decision, with a judge
indicating he would have found a valid waiver of sovereign immunity. Fraser, 377 Ga.
App. at 678(1) (922 SE2d 825) (2025) (McFadden, P. J., dissenting) (noting that the
Immunity Amendment waives sovereign immunity for prospective acts of enforcing
unlawful or unauthorized acts).
We conclude that appellants’ claim of a waiver of sovereign immunity under the
Immunity Amendment is similar to cases in which other petitioners have sought
waiver without having attorney fees imposed. See Eternal Vigilance Action, Inc., 321
Ga. at 791(4); Fraser, 377 Ga. App at 667(1)(a). Accordingly, we conclude that their
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position was at least arguable at the time the petition was made. As stated above,
attorney fees under OCGA § 9-15-14(a) are unavailable where parties take an arguable
position on novel areas of law. Shoenthal, 343 Ga. App. at 32. Consequently, the trial
court erred by awarding fees under OCGA § 9-15-14(a), which we now reverse.
(ii) This conclusion, however, does not end our inquiry regarding the attorney
fee award to the county. While we have determined that the petition did not
sufficiently lack substantial justification as to support an award under OCGA § 9-15-
14(a), there are other grounds which can support a fee award under OCGA § 9-15-
14(b), including “unnecessarily expand[ing] the proceeding by other improper
conduct.” Kim v. Han, 339 Ga. App. 886, 888(2) (795 SE2d 191) (2016) (punctuation
omitted). The county asserts this is exactly what happened here, with the appellants’
“many attempts to modify parties” and following “a ping-pong litigation strategy”
to delay the proceedings. (Punctuation omitted.) While the trial court concluded that
“[t]here was nothing to litigate” regarding the substitution of parties, it is unclear if
this factual finding related to the lack of substantial justification or an unnecessary
expansion of the proceeding.
If the court awards attorney fees under OCGA § 9–15–14, it must make
express findings specifying the abusive conduct for which the award is
14
made, and whether the award is made under subsection (a) or (b) or
both. If the court fails to make these findings, the fees award must be
vacated and the case remanded for reconsideration.
Kim, 339 Ga. App. at 889(2). Because it is unclear from the trial court’s order which
factual finding undergirded which legal conclusion, we remand for the trial court to
consider whether the appellants “unnecessarily expanded the proceeding[s] by other
improper conduct,” OCGA § 9-15-14(b), and (if so) provide appropriate findings of
fact.4
(c) As to the clerk, the analysis regarding OCGA § 9-15-14(a) fees is much
simpler. As with the county, the trial court noted the only proffered waiver of
sovereign immunity was the Immunity Amendment. As noted above, the Immunity
Amendment only applies to actions which are “outside the scope of lawful authority
or in violation of the laws or the constitution of this state or the Constitution of the
United States.” Ga. Const. of 1983, Art. I, Sec. II, Par. V(b)(1). We conclude fees are
4
We note that the Favorito petitioners have also asked this Court to reverse the
attorney fee award in favor of the county based on a purportedly tardy motion for fees,
and remand the award for further findings of fact. We decline to address this
enumeration further, as this fee award has been reversed and the issue can be raised
on remand.
15
appropriate because the appellants did not, and still have not, alleged any action by the
clerk which was outside the scope of her authority or a violation of any law.
Instead of alleging wrongful acts, the appellants added the clerk solely because
it “claims that it currently has possession of the ballots that [the appellants] seek to
view.” During the hearing on the motion to substitute, the appellants did not claim
the clerk had done anything unlawful, but merely stated that they wanted injunctive
relief to bind her to a preservation order. No appellant has pointed to any place in the
record where anyone has asserted there was any unlawful conduct by the clerk, nor has
our review of the record shown any claim that the clerk has acted unlawfully or beyond
the scope of her authority.
The Immunity Amendment’s waiver, by its very terms, “turns on whether the
petitioners have sought declaratory relief from acts of the relevant governmental entity
that are either outside the scope of lawful authority or in violation of the laws or the
Constitution of this state or the United States.” State v. Dovetel Communication, LLC,
322 Ga. 635, 638(2) (921 SE2d 374) (2025) (punctuation omitted). Without any such
allegation of an unlawful act, it is patent that there was never a justiciable issue of law
regarding the clerk’s waiver of sovereign immunity, and any claim of such a waiver
16
lacked substantial justification. To avoid the imposition of OCGA § 9-15-14(a) fees,
the appellants must find some arguable support in the text of the Immunity
Amendment or other persuasive precedent to support their position. See Shoenthal,
343 Ga. App. at 32. The appellants, however, make no attempt to do so, instead simply
asserting (with no meaningful support by citation of authority) that somehow seeking
the preservation or production of records the clerk possesses can be covered by the
amendment.
Because the text of the Immunity Amendment, by its own terms, clearly
requires there to be some unlawful act or action without lawful authority, there was
no need for any interpretive guidance from our Supreme Court to know there was no
justiciable issue regarding the clerk. Accordingly, the trial court was correct that the
clerk is entitled to fees under OCGA § 9-15-14(a). See Trabue v. Hanson, 377 Ga. App.
450, 457–58(2)(a) (922 SE2d 684) (2025) (affirming such fees where there was
evidence to support the lack of any justiciable issue). Because this attorney fee award
is affirmed under OCGA § 9-15-14(a), we need not address the appellants’ claims
specific to OCGA § 9-15-14(b). Cheng v. Gloria Walker Revocable Living Trust, 379 Ga.
App. 197, 200–01(3) (925 SE2d 229) (2026).
17
In sum, because reasonable minds could have differed regarding the
interpretation of prospective acts as to the county, the trial court erred in awarding
attorney fees to the county under OCGA § 9-15-14(a). There is, however, absolutely
nothing in the record to support the appellants’ position that the Immunity
Amendment arguably waived the clerk’s sovereign immunity, so the trial court
correctly awarded attorney fees as to her. We remand this case to the trial court to
determine whether the county’s attorney fees are appropriate under OCGA § 9-15-
14(b), and if so, to make appropriate findings of fact.
Judgment affirmed in part, reversed in part, and case remanded. Barnes P. J., and
Markle, J., concur.
18