Junior v. Graham, A20A1188

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Doyle, Presiding Judge.
• Citation: 357 Ga.App. 815,849 S.E.2d 536
• Parties: JUNIOR v. GRAHAM.
• Decision Date: 28 October 2020
• Docket Number: A20A1188

357 Ga.App. 815
849 S.E.2d 536

JUNIOR
v.
GRAHAM.

A20A1188

Court of Appeals of Georgia.

October 28, 2020
Reconsideration Denied November 18, 2020
Certiorari Granted July 7, 2021

Ben C. Brodhead III, Ashley Brooke Fournet, Atlanta, Darrell Hinson, Decatur, John Wesley Ingram Nichols, Atlanta, for Appellant.

Joseph Robb Cruser, Laurie Webb Daniel, Atlanta, Raymond Russell Grant II, Matthew D. Friedlander, Atlanta, for Appellee.

Doyle, Presiding Judge.

357 Ga.App. 815

Joao Junior sued Sharon Graham based on injuries arising from a car accident. After Graham failed to accept Junior's offer to settle, the case proceeded to trial, and the jury found in Junior's favor and awarded attorneys fees under O.C.G.A. § 13-6-11. The trial court then denied Junior's motion for attorneys fees pursuant to OCGA § 9-11-68, Georgia's offer of settlement statute, and he now appeals, arguing that the trial court erred by determining that the jury award of attorney fees under OCGA § 13-6-11 precluded the imposition of an award under OCGA § 9-11-68. For the reasons that follow, we affirm.

"At the outset, we note that the interpretation of a statute is a question of law, which is reviewed de novo on appeal."¹

The record shows that on December 27, 2013, Junior issued to Graham a Plaintiff's Offer to Settle Tort Claim ("the Offer") in the amount of $600,000 pursuant to OCGA § 9-11-68. It is undisputed that the Offer met the conditions of OCGA § 9-11-68. On January 26, 2014, because Graham had not responded

849 S.E.2d 537

to the Offer, it was deemed rejected as a matter of law.²

Following a trial on Junior's claims against Graham, on September 11, 2019, nunc pro tunc, August 12, 2019, Junior recovered a final judgment in the amount of $4,979,066.87. As a part of the final judgment, the jury awarded Junior attorney fees and expenses under OCGA § 13-6-11 for bad-faith conduct in the amount of $1,251,554.95. Thereafter, Junior moved for attorney fees and expenses of litigation under OCGA § 9-11-68 (b) (2) based on Graham's failure to accept the Offer, but the trial court denied the motion, finding that the jury's award of attorney fees and expenses under OCGA § 13-6-11 precluded such an award.³

On appeal, Junior contends that the language of OCGA § 9-11-68 is clear and unambiguous, requiring an award against Graham for failing to accept the Offer, and the trial court erred by denying his motion on the basis of the prior award under OCGA § 13-6-11. The trial court found that awarding fees under OCGA § 9-11-68 (b) would constitute an impermissible double recovery.

357 Ga.App. 816

OCGA § 9-11-68 (b) (2) states that

[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.⁴

The Georgia Supreme Court has explained that "the clear purpose of the [offer of settlement] statute is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation, thereby advancing this State's strong public policy of encouraging negotiations and settlements."⁵ On the other hand, OCGA § 13-6-11 states that "[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them."

The trial court denied Junior's motion on the basis that recovery under OCGA § 9-11-68 would be an impermissible double recovery. In support of its finding, the court relied on Roofers Edge Inc. v. Standard Bldg. Co. Inc. ,⁶ in which this Court determined that a party could not recover under both OCGA § 9-15-14 and OCGA...