Constitutionality.

- O.C.G.A. § 9-11-68(b)(1) does not merely prescribe the methods of enforcing rights and obligations, but rather affects the rights of parties by imposing an additional duty and obligation to pay an opposing party's attorney fees when a final judgment does not meet a certain amount or is one of no liability; by creating this new obligation, the statute operates as a substantive law, which is unconstitutional under Ga. Const. 1983, Art. I, Sec. I, Para. X, given the statute's retroactive effect to pending cases. Fowler Props. v. Dowland, 282 Ga. 76, 646 S.E.2d 197 (2007).

Trial court clearly erred in finding that the Tort Reform Act of 2005, O.C.G.A. § 9-11-68, impeded access to the courts and violated Ga. Const. 1983, Art. I, Sec. I, Para. XII, because Ga. Const. 1983, Art. I, Sec. I, Para. 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; § 9-11-68(b)(1) does not deny litigants access to the courts but simply sets forth certain circumstances under which attorney's fees can be recoverable and, therefore, even if a constitutional right of access to the courts provision did exist, the provision would not be applicable. Smith v. Baptiste, 287 Ga. 23, 694 S.E.2d 83 (2010).

Trial court erred in finding that the Tort Reform Act of 2005, O.C.G.A. § 9-11-68, violated Ga. Const. 1983, Art. I, Sec. I, Para. XII, since the court permitted the recovery of attorney's fees absent the prerequisite showings of either O.C.G.A. § 9-15-14 or O.C.G.A. § 13-6-11, because there was no constitutional requirement that attorney's fees be awarded only pursuant to § 9-15-14 or § 13-6-11; in Georgia, attorney's fees are recoverable when authorized by some statutory provision or by contract, and § 9-11-68 is such a statutory provision authorizing the recovery of attorney's fees under specific circumstances. Smith v. Baptiste, 287 Ga. 23, 694 S.E.2d 83 (2010).

Tort Reform Act of 2005, O.C.G.A. § 9-11-68, does not violate the uniformity clause of the Georgia Constitution, Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a), because § 9-11-68 is a general law since the statute applies uniformly throughout the state to all tort cases; the purpose of the general law to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation is a legitimate legislative purpose, consistent with the state's strong public policy of encouraging negotiations and settlements, and the fact that the statute applies to tort cases, but not other civil actions, does not render the statute an impermissible special law. Smith v. Baptiste, 287 Ga. 23, 694 S.E.2d 83 (2010).

Purpose.

- Clear purpose of O.C.G.A. § 9-11-68 is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation. Canton Plaza, Inc. v. Regions Bank, Inc., 325 Ga. App. 361, 749 S.E.2d 825 (2013).

Construction.

- Georgia Court of Appeals recently decided the case of Richardson v. Locklyn, in which the Court adopted Florida's test for determining whether, in the trial court's discretion, an offer of settlement pursuant to O.C.G.A. § 9-11-68 was made in good faith. Therefore, in a legal mal- practice suit, the trial court's order deny- ing attorney fees and costs pursuant to the offer of settlement rule, O.C.G.A. § 9-11-68, was reversed and the case was remanded for a hearing and application of the new test. Ots, Inc. v. Weinstock & Scavo, P.C., 339 Ga. App. 457, S.E.2d (2016).

Construction with other law.

- Upon a proper appeal from a final order, while neither former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) nor O.C.G.A. § 9-11-16 required that a complaint be dismissed or stricken for failing to comply with the terms of those statutes, unlike the Anti-SLAPP statute, codified at O.C.G.A. § 9-11-11.1, because the trial court did not enter a final judgment within the meaning of O.C.G.A. § 9-11-68(b)(1), attorney fees were properly denied; moreover, a right to dismiss voluntarily without prejudice would be meaningless if doing so would trigger the payment of the defendant's attorney fees. McKesson Corp. v. Green, 286 Ga. App. 110, 648 S.E.2d 457 (2007), cert. denied, No. S07C1602, 2007 Ga. LEXIS 656 (Ga. 2007).

Retroactive application of statute proper.

- Trial court did not err when the court applied the 2006 version of O.C.G.A. § 9-11-68 in the property owners' action against the builders because, inasmuch as the owners did not obtain any judgment amount in the owners' favor, it did not matter whether the original or amended version of the statute was applied, or whether the amendment was substantive or procedural in nature; under either version of the statute the owners were liable for the builders' reasonable fees and expenses from the date the offer of settlement was rejected. O'Leary v. Whitehall Constr., 288 Ga. 790, 708 S.E.2d 353 (2011).

Applicable to case filed after enactment despite injury predating effective date.

- Georgia's offer of settlement statute, O.C.G.A. § 9-11-68, applied to a negligence action in which the injury occurred prior to the effective date of the statute because the action was filed after that date; although § 9-11-68 involved substantial rights and could only apply prospectively, the statue only related to rights arising within the litigation; as a result, L. P. Gas Industrial Equipment Co. v. Burch, 306 Ga. App. 156, 701 S.E.2d 602 (2010) is overruled. Crane Composites, Inc. v. Wayne Farms, LLC, 296 Ga. 271, 765 S.E.2d 921 (2014).

Preemption.

- Fed. R. Civ. P. 68 did not preempt O.C.G.A. § 9-11-68 because the two were not in direct collision, and there was no reason to believe § 9-11-68 could not be applied in harmony with Rule 68 and, also, because § 9-11-68 was substantive in nature and did not conflict with Rule 68, the Georgia statute was not preempted by the federal rule. Wheatley v. Moe's Southwest Grill, LLC, 580 F. Supp. 2d 1324 (N.D. Ga. 2008).

Court of Appeals upheld an award of attorney's fees under Georgia's offer of settlement statute based on the district court's findings that the statute was substantive and did not conflict with Fed. R. Civ. P. 68 and that a motion for fees could be filed and ruled upon before a final disposition was reached on appeal. Earthcam, Inc. v. Oxblue Corp., 658 Fed. Appx. 526 (11th Cir. 2016)(Unpublished).

Challenge to statute did not require service on Attorney General.

- Because a personal injury plaintiff challenging the constitutionality of O.C.G.A. § 9-11-68(d) was not required by Georgia law to serve the Attorney General with notice of the action, an order granting the defendants' motion for attorney fees under § 9-11-68(d) was reversed. Buchan v. Hobby, 288 Ga. App. 478, 654 S.E.2d 444 (2007).

Provision not retroactive.

- Plaintiffs in a medical malpractice and contract case were not entitled to attorney's fees because the plaintiffs did not specifically plead O.C.G.A. § 13-6-11 and did not allege any bad faith by a doctor and clinic. Further, claims for fees under O.C.G.A. § 9-11-68 were properly dismissed on directed verdict because the statute was not in effect at the time the complaint was filed; because the statute added duties and obligations, the statute could not be retroactive. Morrison v. Mann, F.3d (11th Cir. Mar. 26, 2008)(Unpublished).

Statute had no application as statute became effective during pendency of litigation.

- Because O.C.G.A. § 9-11-68 did not apply as the statute became effective during the pendency of the litigation, because the trial court failed to include specific findings of fact to support an award of attorney's fees and costs of litigation under O.C.G.A. § 9-15-14, and because neither the first driver nor the first driver's attorney were afforded an opportunity to be heard before sanctions were imposed, the trial court erred in awarding the second driver attorney's fees and costs of litigation. Olarsch v. Newell, 295 Ga. App. 210, 671 S.E.2d 253 (2008).

Because O.C.G.A. § 9-11-68 was not in effect when an action a husband and wife filed against a company accrued, the couple was not entitled to a benefit conferred on the plaintiffs by the statute, which was the right to recover the couple's own attorney's fees and expenses of litigation if the company had rejected the couple's settlement demand and if the couple had obtained a final judgment in an amount greater than 125 percent of such offer of settlement. L. P. Gas Indus. Equip. Co. v. Burch, 306 Ga. App. 156, 701 S.E.2d 602 (2010).

Trial court did not err in denying a company's motion pursuant to O.C.G.A. § 9-11-68 to recover the attorney fees and expenses of litigation the company incurred after a husband and wife rejected the company's settlement offer because § 9-11-68 was inapplicable. O.C.G.A. § 9-11-68(b) operated as a substantive law, and it was not yet in effect when the substantive rights of the husband and wife became fixed; thus, the couple was entitled to seek compensation in tort from the company, free from any duty and obligation to pay attorney fees if the couple failed to obtain a final judgment that was at least 75 percent of any offer of settlement. L. P. Gas Indus. Equip. Co. v. Burch, 306 Ga. App. 156, 701 S.E.2d 602 (2010).

Rejection of second offer does not negate rejection of first offer.

- After an insurer made an offer of settlement to a widower and an estate administrator, the fact that the insurer made another offer of settlement, which was also rejected, did not negate the effect of the rejection of the first offer for purposes of seeking attorney fees and costs under O.C.G.A. § 9-11-68, after a jury rendered a verdict of no liability for the insurer. Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 693 S.E.2d 99 (2010).

Settlement offer not made in good faith.

- Truck driver's and owner's offer of settlement for $ 25,000 under O.C.G.A. § 9-11-68 was not made in good faith, although ultimately a second truck driver was found 100 percent liable to the decedent, because it was a wrongful death case in which the accident would not have occurred but for the first truck driver's admitted negligence. Great West Cas. Co. v. Bloomfield, 313 Ga. App. 180, 721 S.E.2d 173 (2011).

Settlement offer not made in bad faith.

- School's offer of judgment under O.C.G.A. § 9-11-68 to a parent to settle the parent's slander claims for $750 was not made in bad faith; the school reasonably and correctly anticipated that the school's exposure was minimal. Similarly, the fact that the school ultimately incurred $84,000 in fees and expenses did not preclude a finding of good faith. Cohen v. Alfred & Adele Davis Acad., Inc., 310 Ga. App. 761, 714 S.E.2d 350 (2011), cert. denied, No. S11C1795, 2011 Ga. LEXIS 976 (Ga. 2011); cert. denied, 132 S. Ct. 2106, 182 L. Ed. 2d 869 (2012).

Post-judgment motions for fees does not toll the time to appeal from final judgment.

- Supreme court was without jurisdiction to review the propriety or substance of the trial court's order denying the property owners' motion for new trial because the owners failed to timely file a notice of appeal in regard to that order, and the builders' post-judgment motions for fees under O.C.G.A. §§ 9-11-68 and9-15-14 did not toll the time for the owners' to appeal from the order denying the owners' motion for new trial; the trial court entered a final judgment on October 4, 2007, and the owners' filing of a motion for new trial tolled the time for appeal under O.C.G.A. § 5-6-38(a), but as soon as the trial court issued the court's order disposing of the motion for new trial, the thirty-day time period to file a notice of appeal began to run, and the owners' filed the motion for new trial on March 9, 2009. O'Leary v. Whitehall Constr., 288 Ga. 790, 708 S.E.2d 353 (2011).

Motion for attorney's fees meritless.

- That portion of the defendants' renewed motion for attorney's fees that sought attorney's fees and expenses of litigation incurred on appeal was meritless since O.C.G.A. § 9-11-68 expressly limited the award of fees and expenses to those incurred "from the date of the rejection of the offer of settlement through the entry of judgment". Wheatley v. Moe's Southwest Grill, LLC, 580 F. Supp. 2d 1324 (N.D. Ga. 2008).

Basis for denying fees and costs should be set forth in trial court's order.

- In a case in which: (1) a widower and an estate administrator rejected an insurer's offer of settlement; (2) the jury later entered a verdict in favor of the insurer; and (3) the trial court denied the insurer's motion for fees and costs, remand was required because the trial court did not set forth the basis for the court's determination as required by O.C.G.A. § 9-11-68(d)(2). Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 693 S.E.2d 99 (2010).

Court erred by failing to indicate whether court segregated fees and expenses.

- Award of attorney fees and expenses under Georgia's offer of settlement statute, O.C.G.A. § 9-11-68, to a defending bank was vacated because the trial court did not indicate whether the court was able to ascertain the fees and expenses attributable to the bank's defense of plaintiffs' claims as opposed to the bank's prosecution of its unsuccessful counterclaims; thus, there was no way to determine if the trial court segregated the recoverable fees and expenses from those which were nonrecoverable. Canton Plaza, Inc. v. Regions Bank, Inc., 325 Ga. App. 361, 749 S.E.2d 825 (2013).

Award of fees premature.

- In an action for breach of contract and fraud, the trial court erred in prematurely awarding attorney fees under the offer-of-settlement statute, after a jury found in favor of the defendants fraud claim, while the arbitration of the doctor's breach of contract case was outstanding. Abdalla v. Atlanta Nephrology Referral Center, LLCLC, 338 Ga. App. 36, 789 S.E.2d 288 (2016).

It was error for the trial court to deny attorney fees under Georgia's offer of settlement statute as the amount of the consent decree was greater than 125% of the offer of settlement and the consent decree could serve as the basis for such an award. Strategic Law, LLC v. Pain Management & Wellness Centers of Georgia, LLC, 343 Ga. App. 444, 806 S.E.2d 880 (2017).

Award of attorney's fees and expenses proper.

- In calculating a reasonable fee amount, a district court did not abuse the court's discretion in finding that the rates requested by defendant companies were reasonable since the plaintiff oil company's bare assertion that a discount should have applied to the rates simply because the defendants actually negotiated a discount on the rates of the out-of-town lawyers the company hired was incorrect. Moreover, the district court did not abuse the court's discretion in awarding fees for hours for multiple-attorney meetings or for including time spent on unsuccessful claims. Gowen Oil Co. v. Abraham, F.3d (11th Cir. Mar. 6, 2013)(Unpublished).

O.C.G.A. § 9-11-68(b)(1) allowed a defendant to recover fees and expenses incurred not only by the defendant but also "on the defendant's behalf" and, thus, the defendants' insurance did not insulate the plaintiff from the payment of legal fees and expenses under § 9-11-68. Moreover, the defendants were entitled to fees that were incurred between the entry of summary judgment and the entry of judgment. Gowen Oil Co. v. Abraham, F.3d (11th Cir. Mar. 6, 2013)(Unpublished).

Franchisor showed that attorney's fees the franchisor sought under O.C.G.A. § 9-11-68(b)(1) from the date of the rejection of the offer of settlement through the entry of judgment did not duplicate any part of the settlement, which reimbursed the franchisor for other attorney's fees incurred in defending against the claims. Eaddy v. Precision Franchising, LLC, 320 Ga. App. 667, 739 S.E.2d 410 (2013).

Award of attorney's fees and expenses proper but calculation not proper.

- While an inmate was entitled to attorney's fees and litigation expenses under O.C.G.A. § 9-11-68(b), the trial court erred in calculating the award based solely, as far as the record reflected, on the contingency agreement rather than on evidence of hours, rates, or other indications regarding the value of the attorneys' professional services actually rendered. Ga. Dep't of Corr. v. Couch, 295 Ga. 469, 759 S.E.2d 804 (2014).

Because a retroactive application of O.C.G.A. § 9-11-68 would have impaired the offeror's rights to recover attorney's fees and costs, the trial court did not err in applying the statute in effect at the time the offer was made. Kromer v. Bechtel, 289 Ga. App. 306, 656 S.E.2d 910 (2008).

Particularity requirement met.

- Offer of settlement met the particularity requirements of O.C.G.A. § 9-11-68(a)(4), even though acceptance of the offer required execution of a release, which was not attached to the settlement offer. Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 693 S.E.2d 99 (2010).

Particularity requirement not met.

- Because the plaintiff asserted a claim for punitive damages, and such claim was pending at the time the offer of settlement was made, the defendant was required to state with particularity the amount proposed to settle that claim, which the defendant failed to do, thus, the defendant's offer did not meet the requirements of O.C.G.A. § 9-11-68(a), and the trial court did not err in ruling that the defendant could not recover attorney fees for an offer of settlement pursuant to that Code section. Chadwick v. Brazell, 331 Ga. App. 373, 771 S.E.2d 75 (2015).

Application to State of Georgia in tort claims suit.

- In a suit brought by an inmate wherein a successful jury verdict was obtained against the Georgia Department of Corrections after the inmate was injured while working on a painting detail at the warden's house, the trial court properly denied the Department's motion to dismiss based on sovereign immunity because the state waived sovereign immunity for the torts of state employees while acting within the scope of the employees' official duties in the same manner as a private individual or entity would be liable under like circumstances; thus, since the Department rejected the inmate's offer of judgment, the Department was subject to the ramifications of O.C.G.A. § 9-11-68, including attorney fees. Ga. Dep't of Corr. v. Couch, 322 Ga. App. 234, 744 S.E.2d 432 (2013).

Offer failed to identify claims and did not meet particularity requirement in tort case.

- In a slip and fall case, an offer of settlement under O.C.G.A. § 9-11-68 for $1,000 was ambiguous as to whether accepting the offer required the plaintiff to relinquish the plaintiff's claims against a co-defendant, against whom the plaintiff already held a default judgment, and therefore the offer failed to comply with § 9-11-68(a)(3) and (4). The trial court therefore erred in ordering the plaintiff to pay the offeror's attorney's fees of $24,696. Tiller v. RJJB Assocs., LLP, 331 Ga. App. 622, 770 S.E.2d 883 (2015).

Necessity for hearing on motion for attorney's fees.

- Trial court did not err in awarding attorney's fees and expenses of $27,276 after a restaurant prevailed in a patron's action, pursuant to O.C.G.A. § 9-11-68; although the court suggested that a hearing was necessary under O.C.G.A. §§ 9-15-14 and14-2-1604, in this case, the patron waived a hearing by failing to request the hearing or otherwise challenge the reasonableness of the fees sought. Bell v. Waffle House, Inc., 331 Ga. App. 443, 771 S.E.2d 132 (2015).

Hearing is required for the award of attorney fees under Georgia's offer of settlement statute, which may include the consideration of whether the offer was made in good faith; although a party may waive a hearing expressly or by conduct, a timely objection to the motion, even without a specific request for a hearing, is generally sufficient to preclude a waiver by conduct of the right to an evidentiary hearing. Richardson v. Locklyn, 339 Ga. App. 457, 793 S.E.2d 640 (2016).

After the plaintiff rejected the defendant's formal offer under Georgia's offer of settlement statute to settle the plaintiff's claims for $12,500 when the plaintiff's medical expenses at that time were $18,927.25, and the jury returned a $6,948.25 verdict for the plaintiff, the trial court's judgment denying the defendant's motion for attorney fees was vacated and the case was remanded for a hearing on attorney fees because the plaintiff had to have an opportunity to confront and challenge whether the defendant's fees were reasonable, and the court had to determine whether the defendant's offer was made in good faith. Richardson v. Locklyn, 339 Ga. App. 457, 793 S.E.2d 640 (2016).

Motion for fees and costs not decided in same term as original judgment.

- Trial court did not err by amending the judgment to include attorney fees and costs under O.C.G.A. § 9-11-68 because, even though the trial court did not rule on the motion until the next court term, the store filed the motion to amend in the same term as the original judgment was entered. Stevens v. Food Lion, LLC, 341 Ga. App. 644, 801 S.E.2d 340 (2017).

Preservation for review.

- Court of Appeals declined to address the constitutional issues raised for the first time on appeal by an offeree, and even if the issues had been raised below, jurisdiction would have been in the supreme court. Kromer v. Bechtel, 289 Ga. App. 306, 656 S.E.2d 910 (2008).

Because the appellees did not raise the issue that retroactive application of the Tort Reform Act of 2005, O.C.G.A. § 9-11-68, was unconstitutional in the trial court and obtain a distinct ruling on it from that court, the issue could not be considered for the first time in the supreme court. Smith v. Baptiste, 287 Ga. 23, 694 S.E.2d 83 (2010).

Cited in Wildcat Cliffs Builders, LLC v. Hagwood, 292 Ga. App. 244, 663 S.E.2d 818 (2008); Brown v. Tucker, 337 Ga. App. 704, 788 S.E.2d 810 (2016).

ALR.

- Recoverable costs under state offer of judgment rule, 34 A.L.R.6th 431.