Mikesell v. Rp Motorsports, Inc.

Decision Date21 April 2008
Docket NumberNo. S08A0663.,S08A0663.
Citation660 S.E.2d 534,283 Ga. 476
PartiesMIKESELL v. RP MOTORSPORTS, INC.
CourtGeorgia Supreme Court

Lisa Dionne Wright, Atlanta, for appellant.

Janet Cheryl Allen, Crim & Bassler, LLP., Atlanta, for appellee.

THOMPSON, Justice.

This is an appeal from the trial court's award of attorney fees pursuant to OCGA § 9-11-68(b)(1),1 a provision enacted as part of the Tort Reform Act of 2005. Appellant contends that this provision violates Art. I, Sect. I, Para. X of the Georgia Constitution as applied because it is a retroactive application of law which alters vested rights. We agree. See Fowler Props. v. Dowland, 282 Ga. 76(1), 646 S.E.2d 197 (2007). Consistent with our recent decision in Fowler, OCGA § 9-11-68, which was not effective until February 2005, cannot constitutionally be applied to appellant's cause of action which accrued in September 2002 and for which a legal complaint was filed in February 2003. Our conclusion that OCGA § 9-11-68 is unconstitutional "renders it unnecessary to pass upon the other ground[s] of attack upon the constitutionality of this act." Floyd County v. Scoggins, 164 Ga. 485, 490, 139 S.E. 11 (1927).

Judgment reversed.

All the Justices concur.

1. In pertinent part, OCGA § 9-11-68(b)(1) provides:

If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant ... from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

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7 cases
  • Smith v. Baptiste
    • United States
    • Georgia Supreme Court
    • March 15, 2010
    ...law, but has found it unnecessary to pass on other attacks upon the constitutionality of that code section. Mikesell v. RP Motorsports, 283 Ga. 476, 477, 660 S.E.2d 534 (2008); Fowler Properties v. Dowland, supra at 79(2), 646 S.E.2d 197. In this case, the trial court ruled that OCGA § 9-11......
  • Deal v. Coleman
    • United States
    • Georgia Supreme Court
    • November 18, 2013
    ...public officer had no vested right in prior law concerning eligibility to hold public office). Cf. Mikesell v. RP Motorsports, Inc., 283 Ga. 476, 476–477, 660 S.E.2d 534 (2008) (offer of settlement provisions of Tort Reform Act of 2005 could not be applied constitutionally in a lawsuit betw......
  • Ga. Dep't of Corr. v. Couch
    • United States
    • Georgia Supreme Court
    • June 16, 2014
    ...was enacted. Fowler Properties, Inc. v. Dowland, 282 Ga. 76, 77–78, 646 S.E.2d 197 (2007). See also Mikesell v. RP Motorsports, Inc., 283 Ga. 476, 476–477, 660 S.E.2d 534 (2008). In a divided opinion, the Court of Appeals has held that OCGA § 9–11–68(b) cannot constitutionally be applied to......
  • L.P. Gas Indus. Equip. Co. v. Burch, A10A1406.
    • United States
    • Georgia Court of Appeals
    • April 18, 2011
    ...amount relative to a settlement offer or is one of no liability. 6 Ga. L. 2005, p. 1, §§ 5, 15. 7 See also Mikesell v. RP Motorsports, 283 Ga. 476, 477, 660 S.E.2d 534 (2008) (Because OCGA § 9-11-68 was not effective until February 2005, it did not apply to the plaintiff's cause of action "......
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