Smith v. Baptiste

• Citation: 287 Ga. 23,694 S.E.2d 83
• Decision Date: 15 March 2010
• Docket Number: No. S09A1543.,S09A1543.
• Parties: SMITH et al.v.BAPTISTE et al.
• Court: Supreme Court of Georgia

287 Ga. 23

694 S.E.2d 83

SMITH et al.v.BAPTISTE et al.

No. S09A1543.

Supreme Court of Georgia.

March 15, 2010.

Greenberg Traurig, Mark G. Trigg, Ryan C. Grelecki, Atlanta, for appellants.

Molden, Holley & Thompson, Regina Sledge Molden, Oni A. Holley, Atlanta, for appellees.

Powell Goldstein, Eric P. Schroeder, LeeAnn Jones, William V. Custer IV, Charles M. Cork, Jr., Atlanta, amici curiae.

CARLEY, Presiding Justice.

Salon Baptiste and Cheryl Baptiste (Appellees) filed a complaint for damages against Chuck Smith and WQXI 790 AM (Appellants), based on allegedly defamatory statements made by Smith and broadcast by WQXI. Pursuant to OCGA § 9-11-68(a), Appellants offered to settle the case for $5,000. Appellees did not respond to the offer, which was deemed a rejection under OCGA § 9-11-68(c). The trial court subsequently granted Appellants' motion for summary judgment as to all counts of the complaint. Appellants moved for attorney's fees pursuant to OCGA § 9-11-68(b)(1). After a hearing, the trial court denied the motion for attorney's fees on the ground that OCGA § 9-11-68 violates the Georgia Constitution. This appeal followed.

1. OCGA § 9-11-68 was enacted as part of the Tort Reform Act of 2005. Fowler Properties v. Dowland, 282 Ga. 76, 77(1), 646 S.E.2d 197 (2007). It provides that either party may serve upon the other party a written demand or offer to settle a tort claim for a specified amount of money. OCGA § 9-11-68(a). Moreover, if either party's settlement demand or offer is rejected, that party may be entitled to recover attorney's fees pursuant to OCGA § 9-11-68(b), which provides:

(1) 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 or on the defendant's behalf 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.

(2) If 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.

This Court has previously concluded that OCGA § 9-11-68(b)(1) is unconstitutional as a retrospective 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 § 9-11-68 impedes access to the courts and thus violates Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983, by depriving tort litigants of the right to pursue their causes of action. Art. I, Sec. I, Par. XII provides that “[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state.” Contrary to the finding of the trial court, this Court has held that Art. I, Sec. I, Par. XII was never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representation by counsel. Couch v. Parker, 280 Ga. 580, 581(1), 630 S.E.2d 364 (2006); State of Ga. v. Moseley, 263 Ga. 680, 682(3), 436 S.E.2d 632 (1993); Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 412-413(2), (3), 321 S.E.2d 330 (1984). “Thus, there is no express constitutional ‘right of access to the courts' under the Georgia Constitution. [Cits.]” Couch v. Parker, supra.

The dissent seeks to avoid this well-settled principle of Georgia constitutional law by ignoring the seminal case of Nelms v. Georgian Manor Condo. Assn., supra, and the doctrine of stare decisis. However,

“[w]e recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. (Cit.) Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. (Cit.)” [Cit.] ... Stare decisis is compelling support for adherence to the holding in [ Nelms], despite [the] objections to its rationale. “The application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence. In most instances, it is of more practical utility to have the law settled and to let it remain so, than to open it up to new constructions, as the personnel of the court may change, even though grave doubt may arise as to the correctness of the interpretation originally given to it. (Cits.)” [Cit.]

Etkind v. Suarez, 271 Ga. 352, 356-357(5), 519 S.E.2d 210 (1999).

Nelms has been consistently followed for over a quarter-century, including its application by the author of the dissent in the case of Love v. Whirlpool Corp., 264 Ga. 701, 706(3), 449 S.E.2d 602 (1994). Although

stare decisis should not be applied to the extent that an error in the law is perpetuated[,] ... [ Nelms ] is not an erroneous statement of the law of Georgia, but merely a pronouncement by a [unanimous] Court as to the proper construction of the [constitutional] law of this state on a matter of first impression.

Etkind v. Suarez, supra at 357(5), 519 S.E.2d 210.

The dissent mistakenly claims that the majority is following the holding in Bloomfield v. Liggett & Myers, 230 Ga. 484, 198 S.E.2d 144 (1973). We have not even cited that case, and instead, as explained above, are following the longstanding rule of law established by Nelms and its progeny. Regardless, it is true that in Bloomfield v. Liggett & Myers, supra, this Court quoted a statement from the Constitutional Convention of 1877 which clearly shows that the reason for the adoption of the original version of the provision now in issue was to ensure a person's right of self-representation, and in Nelms, this Court cited Bloomfield and recited the same quote from the Convention, which was reported by Samuel W. Small in “ A Stenographic Report of the Proceedings of the Constitutional Convention Held in Atlanta, Georgia, 1877 (Constitution Publishing Company, Atlanta, 1877).” Nelms v. Georgian Manor Condo. Assn., supra at 412(2), 321 S.E.2d 330. The dissent argues that this Court's reliance on that stenographic report is improper because Small was not a member or secretary of the Constitutional Convention of 1877. Rather, the dissent posits, the sole official record is found in the Journal of the Constitutional Convention of the People of Georgia, Held in the City of Atlanta in the Months of July and August, 1877 (Jas. P. Harrison & Co., State Printers and Publishers, 1877).

That journal is indeed an official record of the various motions, votes and resolutions from the Convention. However, it is not a verbatim report of the full remarks and discussions from the Convention. Instead, that part of the record is found in the Stenographic Report of the Proceedings of the Constitutional Convention, which, as its cover page clarifies, transcribes the “debates in full on all questions before the Convention.” In fact, the Journal of the Constitutional Convention includes the following resolution recognizing Small as the exclusive stenographic reporter of the Convention:

Resolved, That the thanks of this Convention are due, and are hereby tendered, to Samuel W. Small, Esq., stenographic reporter, for the very able, faithful and impartial manner in which he has reported the proceedings of this Convention; ... which resolution was agreed to.

Journal of the Constitutional Convention, supra at p. 566. Notwithstanding the dissent's misguided attempt to diminish the Stenographic Report of the Proceedings of the Constitutional Convention as a “journalist's account [,]” (Dissent, p. 98) that report is in fact a legitimate and reliable record of the Constitutional Convention of 1877. Indeed, for over a century, this Court has repeatedly, and correctly, recognized that stenographic report as a valid record of that Convention. Parrish v. Employees' Retirement System of Ga., 260 Ga. 613, 614(2), 398 S.E.2d 353 (1990); Barber v. Barber, 257 Ga. 488, 490, fn. 1, 360 S.E.2d 574 (1987) (dissent); Ga. Power Co. v. Allied Chemical Corp., 233 Ga. 558, 566(2), 212 S.E.2d 628 (1975); State v. Collett, 232 Ga. 668, 669, fn. 1, 208 S.E.2d 472 (1974); Leggett v. Macon Baptist Assn., 232 Ga. 27, 30(II), 205 S.E.2d 197 (1974); Speer v. Martin, 163 Ga. 535, 541, 136 S.E. 425 (1927) (dissent); Wright v. Hardwick, 152 Ga. 302, 309(1), 109 S.E. 903 (1921); Renfroe v. City of Atlanta, 140 Ga. 81, 85, 78 S.E. 449 (1913); Strickland v. State, 137 Ga. 1, 18, 72 S.E. 260 (1911) (dissent); Clark v. Hammond, 134 Ga. 792, 795(1), 68 S.E. 600 (1910); Southern Railway Co. v. Melton, 133 Ga. 277, 285(1), 65 S.E. 665 (1909); Epping v. City of Columbus, 117 Ga. 263, 271, 43 S.E. 803 (1903), overruled on other grounds Harrell v. Town of Whigham, 141 Ga. 322, 326, 80 S.E. 1010 (1914); Park v. Candler, 113 Ga. 647, 656(1), 39 S.E. 89 (1901); Blocker v. Boswell, 109 Ga. 230, 233, 34 S.E. 289 (1899). Furthermore, this Court is not alone, as the stenographic report has also been relied upon and cited with approval as a credible record of the 1877 Convention in various other legal authorities. Op. Atty. Gen. 89-16; John Dinan The

Meaning of State Constitutional Education Clauses: Evidence from the Constitutional Convention Debates, 70 Alb. L.Rev. 927, fn. 32 (2007); Marsha L. Baum & Christian G. Fritz American Constitution-Making: The Neglected State Constitutional Sources, 27 Hastings Const. L.Q. 199, fn. 91 (2000); Emily...