Harris v. Mahone

• Decision Date: 01 March 2017
• Docket Number: A16A1748
• Citation: 797 S.E.2d 688,340 Ga.App. 415
• Parties: HARRIS v. MAHONE.
• Court: Georgia Court of Appeals

340 Ga.App. 415

797 S.E.2d 688

HARRIS

v.MAHONE.

A16A1748

Court of Appeals of Georgia.

March 1, 2017

Jason Wayne Graham, Eric L. Jensen, Atlanta, Jeffrey Daniel Abrams, Alpharetta, for Appellant.

Timothy James Gardner, Benjamin Zachary Levy, for Appellee.

Dillard, Presiding Judge.

Following a jury verdict in Timothy Harris's favor in his negligence action against Stanley Mahone, the trial court denied Harris's requests for attorney fees under OCGA § 9-11-68 and § 9-15-14. Harris appeals, arguing that the trial court misconstrued OCGA § 9-11-68 in finding that, although he was entitled to attorney fees under the statute, he did not incur any fees during the applicable time period. He further contends that the trial court erred in denying his motion for attorney fees under OCGA § 9-15-14 because the court did so based solely on an erroneous factual finding. For the reasons set forth infra , we affirm in part, reverse in part, and remand the case with direction.

The facts underlying this appeal are largely undisputed. On May 9, 2014, Harris filed a complaint against Mahone, asserting negligence claims arising from a car accident that occurred on May 14, 2013. According to Harris, Mahone rear-ended his car, which caused him serious injuries. After Mahone filed his answer, he submitted a handwritten statement, admitting that he hit the back of Harris's car, but claiming that the collision was the result of a "[ch]ain reaction" in which Mahone's car was first rear-ended by the car behind him. In the pretrial order, Mahone again admitted fault for the accident, but disputed that the accident caused Harris's injuries or the amount of damages that he claimed to have suffered. Nevertheless, on September 8, 2015, a few weeks prior to trial, Mahone sent Harris a written settlement offer for $15,000, which provided that, in compliance with OCGA § 9-11-68, the offer would be deemed rejected if it was not accepted within 30 days. A few days later, on September 11, 2015, Harris responded with a counteroffer to settle the case for $22,000, and similarly to Mahone's offer, indicated that it would remain open for 30 days.

After the parties failed to reach a settlement agreement, a jury trial commenced on October 5, 2015, and at the conclusion of trial on October 8, 2015, the jury found in Harris's favor, awarding him $35,000 in damages. Several weeks later, on November 1, 2015, the trial court issued a final order approving the jury's verdict. Then, on November 18, 2015, Harris filed a motion for attorney fees under OCGA § 9-11-68, asserting that he was entitled to such fees because he received a monetary judgment that was more than 125 percent of his $22,000 pretrial counteroffer.¹ In response, Mahone argued that Harris was not entitled to fees under OCGA § 9-11-68 because he never rejected the counteroffer in writing, which is "explicitly and unambiguously required" under the statute. Additionally, Mahone argued that Harris was not entitled to attorney fees because, after trial, the jury foreman informed both parties that the jury increased its original award of damages by 44 percent to account for Harris's attorney fees. Thus, Mahone contended, Harris had already been compensated for his attorney fees.

In support of his argument that attorney fees were included in the jury's lump-sum award, Mahone's counsel executed an affidavit recounting what was allegedly conveyed to them by the jury foreman regarding the manner in which the jury calculated damages. Harris then filed a motion to strike "hearsay portions" of Mahone's response to his motion for fees and accompanying affidavit, arguing that any reference to statements allegedly made by jurors was inadmissible hearsay and also improper juror testimony under OCGA § 24-6-606.² In addition, Harris filed a motion for attorney fees under OCGA § 9-15-14 (a) and (b), arguing that he was entitled to the fees he incurred in bringing the motion to strike because Mahone's use of inadmissible hearsay was absent of any justiciable issue of law or fact and lacked substantial justification.

On March 21, 2016, the trial court held a hearing on Harris's motions for attorney fees and his motion to strike hearsay portions of Mahone's responsive pleadings. Thereafter, the court issued an order finding that under OCGA § 9-11-68 Harris was entitled to any attorney fees he incurred from October 11, 2015,³ through November 1, 2015, but awarding him no fees because he failed to show that he actually incurred any fees following the conclusion of trial on October 8, 2015. The court also denied Harris's motion for attorney fees under OCGA § 9-15-14, as well as his motion to strike hearsay testimony. This appeal by Harris follows.

1. Harris first argues that, while the trial court correctly found that he was eligible for an award of attorney fees under OCGA § 9-11-68, the court misconstrued the statute in concluding that he was not entitled to the fees he incurred during trial. We disagree.

At the outset, we note that the interpretation of a statute is a question of law, which is "reviewed de novo on appeal."⁴ Indeed, when only a question of law is at issue, as here, we "owe no deference to the trial court's ruling and apply the ‘plain legal error’ standard of review."⁵ And when interpreting any statute, we necessarily begin our analysis with "familiar and binding canons of construction."⁶ In considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant."⁷ Toward that end, we must afford the statutory text its plain and ordinary meaning,⁸ consider the text contextually,⁹ read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would,"¹⁰ and seek to "avoid a construction that makes some language mere surplusage."¹¹ Further, when the language of a statute is "plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly."¹² Finally, because 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."¹³

Here, Harris does not appear to dispute that, although the trial court believed the outcome in this case was "bizarre," the court strictly construed OCGA § 9-11-68 and adhered solely to the plain language of the statute in denying him an attorney-fee award.¹⁴ In doing so, the trial court applied the plain and unambiguous terms of OCGA § 9-11-68 to the facts of this case, correctly noting the interplay between subsections (a), (b) (2), and (c) of the statute.

OCGA § 9-11-68 (a) provides:

At any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days (or 20 days if it is a counteroffer ) before trial, either party may serve upon the other party, but shall not file with the court, a written offer, denominated as an offer under this Code section, to settle a tort claim for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly.¹⁵

Thus, under subsection (a), Harris was required to make his counteroffer at least 20 days prior to trial, which he did. Indeed, after Mahone made an initial written settlement offer of $15,000 on September 8, 2015, Harris responded with a written counteroffer of $22,000 on September 11, 2015, which was 24 days prior to the beginning of trial on October 5, 2015.¹⁶

The next subsection at issue, OCGA § 9-11-68 (c), provides:

Any offer made under this Code section shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree, but an offeror shall not be entitled to attorney's fees and costs under subsection (b) of this Code section to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period ) . A counteroffer shall be deemed a rejection but may serve as an offer under this Code section if it is specifically denominated as an offer under this Code section. Acceptance or rejection of the offer by the offeree must be in writing and served upon the offeror. An offer that is neither withdrawn nor accepted within 30 days shall be deemed rejected. The fact that an offer is made but not accepted does not preclude a subsequent offer.¹⁷

In compliance with the foregoing subsection, both Mahone's initial offer and Harris's counteroffer provided that each would remain open for 30 days. But, as previously discussed, Mahone never accepted or rejected Harris's counteroffer in writing, Harris never withdrew the counteroffer in writing, and the case was tried from October 5 to October 8, 2015 (i.e. , prior to the expiration of Harris's counteroffer). And applying the plain language of OCGA § 9-11-68 (c), the trial court correctly concluded that, under such circumstances, Harris's counteroffer—which was dated September 11, 2015—was deemed rejected 30 days later on October 11, 2015, which was three days after the trial's conclusion.¹⁸

Finally, under OCGA § 9-11-68 (b) (2),

[i]f a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the plaintiff or on the plaintiff's behalf from the date of the rejection of the offer of settlement through the entry of judgment .¹⁹

In applying the plain and unambiguous requirements of subsection (b) (2), the trial court properly found that Harris was eligible to recover attorney fees and litigation costs because the jury awarded him $35,000 in damages, which was more than 125 percent of his pretrial counteroffer to settle the case for $22,000.²⁰

But as set forth supra , subsection (b) (2) also provides that a plaintiff who is awarded the...