Georgia Department of Corrections v. Couch

768 S.E.2d 275, 330 Ga. App. 523, 2015 Ga. App. LEXIS 3

Opinion

Barnes, Presiding Judge.

In Ga. Dept. of Corrections v. Couch, 295 Ga. 469 (759 SE2d 804) (2014) (Couch II), the Supreme Court affirmed our ruling as to Division 1 “albeit under a different rationale,” and reversed our ruling in Division 2 of Ga. Dept. of Corrections v. Couch, 322 Ga. App. 234 (744 SE2d 432) (2013). Accordingly, we vacate Divisions 1 and 2 of our earlier opinion, and adopt the opinion of the Supreme Court with respect to those divisions. Division 3 was not addressed by the Supreme Court and in that circumstance we are required to

(1) read [the Supreme] Court’s opinion within the context of the opinion being reversed; (2) to determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court; and (3) enter an appropriate disposition with regard to those portions that is consistent with the issues addressed and considered by [the Supreme] Court.

Decided January 12, 2015. Samuel S. Olens, Attorney General, Robert L. Bunner, Assistant Attorney General, for appellant. Farah & Farah, Kevin Elwell, Tidwell Law Firm, Thomas G. Tidwell, for appellee.

Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001). In so doing, we find that to the extent that Division 3 can be interpreted to sustain any award of attorney fees not consistent with the Supreme Court’s decision in Couch II, it too is vacated.¹

This case is remanded to the trial court for proceedings consistent with the opinion of the Supreme Court.

Judgment vacated and case remanded with direction.

Miller and Ray, JJ., concur.

1 In Division 3, this Court concluded that per OCGA § 9-11-68, the trial court was not required to make findings of fact that litigation expenses were reasonable unless the court concluded that the offer was not made in good faith. Couch, 322 Ga. App. at 239 (3).