FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
December 6, 2019
In the Court of Appeals of Georgia A19A1891, A19A1969. KHALIA, INC. v. ROSEBUD; and vice versa.
PHIPPS, Senior Appellate Judge.
These companion appeals arise from a shooting at a convenience store that left
plaintiff Daniel Rosebud injured. After defendant Khalia, Inc. rejected Rosebud’s
pretrial demand for $150,000, a jury found Khalia responsible for $1.134 million in
damages. On appeal in Case No. A19A1891, Khalia argues that the trial court erred
when it denied its motions for judgment notwithstanding the verdict (j.n.o.v.) on the
issue of duty and for j.n.o.v. or new trial on the issue of causation. On cross-appeal
in Case No. A19A1969, Rosebud argues that the trial court erred when it awarded
him attorney fees under OCGA § 9-11-68 in an amount significantly below that
specified in his contingency fee agreement. We find no error and affirm in both cases. “The jury is the final arbiter of the facts, and the verdict must be construed by
the trial and appellate courts in the light most favorable to upholding the jury
verdict.” (Citation and punctuation omitted.) Wilmock, Inc. v. French, 185 Ga. App.
259, 261 (1) (363 SE2d 789) (1987).
Thus viewed in favor of the verdict, the record shows that on November 1,
2015, Rosebud and his friend Dontavious Miles were looking for a barber to cut
Miles’s hair for a new job when they stopped at a gas station and convenience store
at 490 Fairburn Road in Atlanta. The property, which was leased to Khalia, included
a chicken wing shop under different corporate ownership and a common parking area.
Miles parked the car he was driving at the end of the gas pump island and went inside
the convenience store while Rosebud napped in the front passenger seat. A man in a
white hat began a conversation with Miles, after which shots were exchanged
between the two men, some of which hit Rosebud. Miles drove away but was forced
to stop by an oncoming train at a nearby railroad crossing. After Miles abandoned the
car, Rosebud lay down to evade detection and then ran down the tracks, where he
called 911.
Evidence before the jury showed that 490 Fairburn Road was a well-known
scene of illegal drug transactions, loitering requiring police intervention, and at least
2 two incidents of prior gunplay, including a shooting inside the store three days before
the incident at issue. The store manager knew of the gunplay, and a beat officer
testified that the location’s level of criminal activity required him to stop there four
or five times a day. A detective also testified that although businesses are authorized
to obtain a “criminal trespass warning” empowering the police to arrest trespassers,
Khalia had never requested such a warning.
Khalia’s principal testified that the man in the white hat had been loitering
outside and around the gas station for more than 20 minutes before the shooting.
Although the store manager testified at trial that Khalia regularly held safety meetings
and reported criminal activity, he was impeached with his own deposition testimony
that store employees were instructed “never” to “make any sort of reports or
document anything on paper[.]” The evidence also showed that there were 14 cameras
located inside the store, but only two, which were not monitored, outside.
After the close of evidence, Khalia moved for a directed verdict on two issues:
that Rosebud was a licensee rather than an invitee; and that the property owner, rather
than Khalia, had a non-delegable duty to take reasonable care. The trial court granted
the first motion and denied the second, establishing that Rosebud was a licensee but
rejecting Khalia’s argument that the owner could be solely responsible as a matter of
3 law for safety on the property. The jury then returned a verdict of $1,718,367.46 in
total damages, finding Khalia 66% at fault, with Miles and the man in the white hat
17% each at fault. The trial court entered judgment on the verdict against Khalia in
the amount of approximately $1.134 million.
Khalia moved for j.n.o.v. or a new trial on grounds including that it owed no
duty to Rosebud because he was never on Khalia’s premises and that any breach of
care by Khalia could not have been the proximate cause of the shooting. The trial
court denied the motions, holding that both arguments were waived because they
were not raised in the motion for directed verdict and that some evidence supported
the conclusions that Rosebud was on Khalia’s property or its approaches and that
Khalia failed to take reasonable care under the circumstances.
Case No. A19A1891
On appeal, Khalia argues that the trial court erred when it denied its motion for
j.n.o.v. because there was no evidence that Khalia breached its duty to Rosebud.
Khalia also argues that its motion for j.n.o.v. or new trial should have been granted
because the shooter’s criminal conduct broke the chain of proximate causation. We
disagree.
1. (a) Waiver of JNOV Motion. OCGA § 9-11-50 (b)
4 allows the device of a motion for judgment notwithstanding the verdict to be used when a motion for directed verdict does not end a trial and it proceeds to verdict. It is narrow, however, and does not permit reopening the case for new legal issues which are thought of retrospectively, with hindsight. [Rather,] [i]t provides . . . a post-verdict opportunity for a determination of the legal questions raised by the motion for a directed verdict. If upon reflection the trial judge determines that the motion for directed verdict was valid, the judge is to set aside the verdict and the original judgment and enter a new judgment in accordance with the motion for directed verdict. It is patent, then, that the j.n.o.v. must be based on grounds raised in the motion for directed verdict initially, for it is in effect only a new ruling on a renewed motion.
(Citation omitted.) James E. Warren, M.D., P.C. v. Weber & Warren Anesthesia
Svcs., 272 Ga. App. 232, 234 (1) (612 SE2d 17) (2005). It follows that “arguments
asserted in a motion for j.n.o.v. but not raised in the motion for directed verdict
cannot be considered on appeal.” (Citation omitted.) Id. at 235 (1).
The record shows that although Khalia moved for a directed verdict on grounds
including, in passing, that there was no evidence to support a finding that it breached
the standard of care due to Rosebud as a licensee, the trial court did not grant the
motion on this basis. Instead, the trial court granted the motion on the ground that
Rosebud was a licensee. The record also shows that Khalia did not ask for
5 clarification of or object to the trial court’s ruling, which effectively granted its
motion in part and denied it in part; instead, Khalia remained silent during the
extended discussion of the applicable standard of care, including the framing of a jury
charge on the issue and objections from Rosebud, and did not object to the charge
when or after it was delivered. The issues of Rosebud’s status as licensee and the
applicable standard of care having been resolved in Khalia’s favor below, there is
nothing for us to review on appeal. See Moody v. Dykes, 269 Ga. 217, 219-220 (3)
(496 SE2d 907) (1998) (induced error based on the acquiescence of counsel in the
giving of a charge provides no ground for reversal under OCGA § 5-5-24 (c)).
(b) Merits of JNOV Motion: Duty and Breach. Even assuming that the issue is
not waived, some evidence supported the jury’s determination that Khalia violated
that standard of care. Because Rosebud was held to be a licensee, as to which holding
no error has been asserted, Khalia can be liable only for its “willful and wanton” act
or omission. OCGA § 51-3-2 (b). As we have often explained,
“it is usually wil[l]ful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a . . . hidden peril on one’s premises. Thus, as to a licensee, ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated.”
6 (Punctuation omitted.) Cooper v. Corporate Property Investors, 220 Ga. App. 889,
891 (470 SE2d 689) (1996), quoting Wade v. Mitchell, 206 Ga. App. 265, 267 (2) (c)
(424 SE2d 810) (1992) (emphasis in Wade). In such cases, a possessor of land is
liable for harm caused to a licensee
if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved[.]
Cooper, 220 Ga. App. at 891, quoting London Iron, etc. Co. v. Abney, 245 Ga. 759,
761 (2) (267 SE2d 214) (1980). As always, the test for liability “is the proprietor’s
superior knowledge of the hazard.” (Citation omitted.) Cooper, 220 Ga. App. at 891.
As a preliminary matter, we note that no error has been asserted as to the trial
court’s admission of evidence concerning at least two prior shootings on the 490
Fairburn property, one of which occurred only three days before the incident at issue.
See Camelot Club Condo. Assoc. v. Afari-Opoku, 340 Ga. App. 618, 621, 623 (1) (a)
(798 SE2d 241) (2017) (given that “[t]he question of reasonable foreseeability of a
criminal attack is generally for a jury’s determination rather than summary
7 adjudication by the courts” and that a crime “does not have to originate on [a]
landowner’s property in order to hold the owner liable” under a foreseeability
analysis, a trial court did not err in denying a defendant’s motion for directed verdict
concerning harm arising from a third-party crime) (citation omitted).
Here, as in Wade, supra, Rosebud was injured not by a pre-existing defect but
as a result of arguable “acts and omissions occurring as he arrived [and remained] on
the premises,” 206 Ga. App. at 266 (2) (b) – that is, a failure either to maintain
security measures required under the dangerous conditions known to Khalia
employees or to warn customers and their guests of those dangerous conditions.
Further, and “[e]ven assuming [that Rosebud’s] presence had not in fact been known,
a truck service stop or gas station can be charged with reasonably anticipating that,
throughout the period of its business operation, persons will frequently stop
unannounced on the premises[.]” Id. at 267 (2) (c). The relevant question is thus
“whether the prior criminal activity was sufficiently and substantially similar to
demonstrate [the occupier’s] knowledge” that conditions or persons on his property
would subject visitors to “unreasonable risk of criminal attack” so that the occupier
“had reasonable grounds to apprehend that the present criminal act was foreseeable.”
8 (Footnote and punctuation omitted.) McDaniel v. Lawless, 257 Ga. App. 187, 189
(570 SE2d 631) (2002).
This trial court correctly determined that a jury should decide whether Khalia
was “wanton or wilful” in failing to take “ordinary care” to warn invitees, such as
Miles, and their guests, such as Rosebud, of the hazardous conditions on its premises,
including frequent criminal activity and gunfire, of which it arguably had knowledge.
See Wade, 206 Ga. App. at 268 (3) (reversing a grant of summary judgment when a
gas station owner had arguably failed to warn a licensee of the danger posed by an
exploding tire); see also Millan v. Residence Inn by Marriott, 226 Ga. App. 826, 828
(487 SE2d 431) (1997) (reversing a grant of summary judgment when a hotel
arguably breached a duty when it failed to warn guests of previously reported
incidents of sexual assault in the hotel pool by a “dangerous guest on its premises”).
Further, because there was evidence to support the jury’s verdict, there was no error
in denying Khalia’s motion for new trial. See generally Aldworth Co., Inc. v.
England, 281 Ga. 197, 201 (2) (637 SE2d 198) (2006) (even if a defendant has
waived his right to contest the denial of a motion for j.n.o.v. because he failed to
move for a directed verdict, he may nonetheless move for a new trial “to review the
sufficiency of the evidence under the ‘any evidence’ standard of review”) (footnote
9 omitted); on remand, 286 Ga. App. 1, 3-4 (2) (a) (648 SE2d 198) (2007) (evidence
of driver’s status as employee and causation was sufficient to deny defendant’s
motion for new trial).
2. Causation. As we have noted above, Khalia’s motion for directed verdict did
not raise the question of whether the evidence was sufficient to sustain the jury’s
verdict as to causation. It follows that, for the same reasons stated in Division 1 (a)
above, the trial court did not err when it denied Khalia’s motion for j.n.o.v. on this
ground. Nor was the denial of the alternative motion for new trial in error because the
question of whether the shooter’s criminal act broke the causal chain arising from
Khalia’s arguable failure to take sufficient precautions was for the jury to decide.
Camelot, 340 Ga. App. at 623 (1) (a) (ii) (affirming denial of motion for directed
verdict concerning foreseeability of third-party shooting resulting in condominium
owner’s death); Millan, 226 Ga. App. at 828 (reversing grant of summary judgment
as to whether a third-party attack in hotel swimming pool was foreseeable and
whether defendants were negligent in failing to exercise ordinary care); McNeal v.
Days Inn of America, Inc., 230 Ga. App. 786, 789 (498 SE2d 294) (1998) (reversing
grant of summary judgment to premises owner on claims by plaintiffs who were
10 attacked in hotel’s parking lot by four men who followed them there from a nearby
restaurant).
Case No. A19A1969
3. On the cross-appeal, Rosebud asserts that the trial court erred when it
awarded his counsel less than one-third of the amount due under Rosebud’s 45%
contingency fee agreement. We disagree.
Under OCGA § 9-11-68 (b) (2), plaintiffs making a rejected offer of settlement
followed by a judgment of more than 125 percent of the offer “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.” (Emphasis supplied.) We will affirm a trial court’s
award of attorney fees under OCGA § 9-11-68 (b) in the absence of an abuse of
discretion. See Strategic Law, LLC v. Pain Management & Wellness Ctrs. of Ga., 350
Ga. App. 526, 529 (2) (828 SE2d 1) (2019); Brock Built, LLC v. Blake, 316 Ga. App.
710, 714 (2) (a) (730 SE2d 180) (2012) (even when the amount awarded under
OCGA § 9-11-68 was less than what a party sought, the party was “substantially
successful” such that a trial court did not err in deciding to award it fees and costs).
11 Construed in favor of the trial court’s judgment, the record shows that Rosebud
presented the trial court with three options for calculating the proper fee, including
value added over Khalia’s highest offer (which was $50,000) and over Rosebud’s
highest offer (which was $150,000). Rosebud estimated the proper fee as between
approximately $408,000 and $488,000. At a hearing, Khalia’s expert witness testified
that 200 hours was a reasonable amount of time as between Khalia’s rejection of
Rosebud’s offer of judgment and the end of trial and that $250 per hour was a
reasonable fee rate under these circumstances. The trial court selected a value-added
approach, comparing the fee Rosebud would have owed if Khalia had accepted his
$150,000 offer to the fee actually earned on the judgment under the contingency fee
agreement, and concluding that a fee of $442,855.13 “comes closest to effectuating
the purpose of” OCGA § 9-11-68. The trial court went on to review that amount for
reasonableness, however, and concluded that despite the skill shown by counsel in
obtaining the verdict, “some of the fees evidenced by Rosebud’s attorneys were
unnecessary.” The court then awarded counsel $140,951.17 as “reasonable” fees and
expenses.
The Supreme Court of Georgia has noted that although a contingency fee
agreement is “certainly a guidepost to the reasonable value of the services the lawyer
12 performed,” such an agreement “is not conclusive, and it cannot bind the court in
determining that reasonable value, nor should it bind the opposing party required to
pay the attorney fees, who had no role in negotiating the agreement.” (Citation
omitted.) Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 484 (3) (a) (759 SE2d 804)
(2014). There was some evidence before this trial court that 200 hours was a
reasonable amount of time for counsel to spend from Khalia’s rejection of Rosebud’s
offer of judgment through trial and that $250 per hour was a reasonable rate for this
lawyer. On this record, which includes an award of nearly three times the amount due
according to this evidence, we cannot say that the trial court erred when it awarded
Rosebud more than $140,000 in reasonable fees and costs. See Brock Built, 316 Ga.
App. at 714 (a).
Judgment affirmed in both cases. McMillian, P. J., concurs. McFadden, C. J.,
concurs fully and specially in Case No. A19A1891 and dissents in Case No.
A19A1969. *
* THIS OPINION IS PHYSICAL PRESEDENT ONLY. COURT OF APPEALS
RULE 33.2 (a).
13 A19A1891, A19A1969. KHALIA, INC. v. ROSEBUD; and vice
versa.
MCFADDEN, Chief Judge, concurring fully and specially in part and dissenting
in part.
I concur fully in Case No. A19A1891 and emphasize that whether Rosebud
was an invitee or a licensee is not before us. See Howard v. Gram Corp., 268 Ga.
App. 466, 469, 602 S.E.2d 241, 244 (2004) (holding, 9-3, that Howard was a mere
invitee in part because the Gram Corporation was not operating a “retail
establishment”).
But in Case No. A19A1969 the majority tacitly approves the lodestar method
for fee calculations under OCGA § 9-11-68 (b) (2), the subsection of the offer-of-
judgment statute regarding attorney fees awards to plaintiffs. The lodestar method has
been adopted by the federal courts for their fee-shifting jurisprudence. But it has not
been adopted in Georgia, and it is incompatible with the language of the subsection
before us. So I respectfully dissent.
The lodestar method was devised by the Third Circuit in a case where that
court assumed that the applicable statute, in that context, “d[id] not authorize award
of attorneys’ fees.” So the Third Circuit set out standards for fees awarded “under the
general equitable powers of the court.” Lindy Bros. Builders, Inc. of Phila. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161, 164, 165 (3d Cir. 1973). The
analysis with which it set out those standards contains few citations of authority. Id
at 166-169. Nevertheless, for the federal courts, “The “lodestar” figure has, as its
name suggests, has become the guiding light of [their] fee-shifting jurisprudence.”
City of Burlington v. Dague, 505 U.S. 557, 562, 112 S. Ct. 2638, 2641, 120 L. Ed. 2d
449 (1992).
Under “the ‘lodestar’ method of computing fees, a trial court must multiply the
number of hours trial counsel reasonably spent by a reasonable hourly rate. This
figure can then be adjusted upward or downward for certain factors known as
multipliers, such as contingency and the quality of the work performed, to arrive at
a final fee.” Friedrich v. Fid. Nat. Bank, 247 Ga. App. 704, 705–06, 545 S.E.2d 107,
109 (2001) (citations and punctuation omitted).
Here Khalia advocated the lodestar method at the fee hearing below, eliciting
expert testimony that the fee awarded should be for 200 hours at $250 per hour. And
the trial court implicitly adopted the lodestar method, explaining her decision to
award less than one third of the amount due under the fee agreement in part by
finding “that some of the fees evidenced by Rosebud’s attorneys were unnecessary”
and that there is “some question regarding the memorialization of the time spent[.]”
2 Those criticisms are salient only if one accepts the premise of the lodestar method:
that the fee should be calculated by selecting a reasonable hourly rate and multiplying
it by the time reasonably and actually spent.
That is the federal rule. In City of Burlington, supra, Justice Scalia, writing for
a 6-3 majority, reaffirmed that under that federal fee-shifting jurisprudence, the
lodestar method applies to contingency fee agreements and held that, under that
jurisprudence, the federal courts are directed to factor the contingency into
calculation of plaintiff’s counsel’s reasonable hourly rate and prohibited from
“[t]aking account of it again through lodestar enhancement[.]” City of Burlington v.
Dague, 505 U.S. 557, 559, 563, 112 S. Ct. 2638, 2641, 120 L. Ed. 2d 449 (1992).
But the only Georgia case I have found that addresses the lodestar method
declines to adopt it. Friedrich v. Fid. Nat. Bank, supra, 247 Ga. App. 704, 706–07
(“find[ing] persuasive [] criticisms of the lodestar method” and adopting, for
common-fund class action cases, a percentage-of-the-fund-analysis).
And the statute before us is a Georgia statute. The federal statute involved in
City of Burlington, “[i]n language typical of most federal fee-shifting provisions . .
. authorize courts to award the prevailing party a ‘reasonable’ attorney’s fee.” 505
U.S. at 567 (Blackmun, J., dissenting, citing 33 U.S.C. § 1365(d) (Clean Water Act);
3 42 U.S.C. § 6972(e) (Solid Waste Disposal Act)). The statute before us, the
subsection of the offer-of-judgment statute related to attorney fee awards to plaintiffs,
O.C.G.A. § 9-11-68 (b) (2), provides,
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.
(emphasis added).
So the question before us becomes what to make of “incurred.” To answer that
question, I turn to the canons of construction.
The surplusage canon directs, “If possible, every word and every provision is
to be given effect (verba cum effectu sunt accipienda). None should be ignored. None
should needlessly be given an interpretation that causes it to duplicate another
provision or to have not consequence.” Antonin Scalia and Brian Garner, Reading
Law, § 26, p. 174 (2012) (translating the Latin in a footnote: “Words are to be taken
as having an effect”). The surplusage canon has been adopted in Georgia. See
4 Campaign for Accountability v. Consumer Credit Research Found., 303 Ga. 828,
834, 815 S.E.2d 841, 846 (2018).
“In the absence of words of limitation, words in a statute should be given their
ordinary and everyday meaning.” Six Flags Over Georgia v. Kull, 276 Ga. 210, 211,
576 S.E.2d 880, 881 (2003) (citations and punctuation omitted). The ordinary
meaning of “incur,” as reflected in the relevant definition in Merriam Webster’s
Colligate Dictionary (10th Ed.) (1994), is “to become liable[.]” So the statutory
phrase directs courts’ attention to the amount the plaintiff and his attorney actually
agreed upon and that plaintiff actually owes his attorney — as opposed to a
counterfactual finding about an hourly rate that a hypothetical plaintiff and attorney
might have agreed upon.
Of course the analytical journey does not end with the agreed-upon amount.
“[T]he contingency fee agreement is not conclusive[.]” It is only a guidepost along
the way. Georgia Dep’t of Corr. v. Couch, 295 Ga. 469, 484, 759 S.E.2d 804, 816
(2014). The statute also requires that the amount awarded be “reasonable.” And our
Supreme Court has held that it is error to “calculat[e] what amount of attorney fees
was reasonable based solely . . . on that agreement rather than on evidence of hours,
rates, or other indications regarding the value of the attorneys' professional services
5 actually rendered.” Georgia Dep't of Corr. v. Couch, 295 Ga. 469, 484, 759 S.E.2d
804, 816 (2014). Couch quoted with approval our holding that,
In Georgia, an attorney cannot recover for professional services without proof of the value of those services. A court may consider a contingent fee agreement and the amount it would have generated as evidence of usual and customary fees in determining both the reasonableness and the amount of an award of attorney fees. When a party seeks fees based on a contingent fee agreement, the party must show that the contingency fee percentage was a usual or customary fee for such case and that the contingency fee was a valid indicator of the value of the professional services rendered. In addition, the party seeking fees must also introduce evidence of *715 hours, rates, or some other indication of the value **185 of the professional services actually rendered.16
Brock Built, LLC v. Blake, 316 Ga. App. 710, 714–15, 730 S.E.2d 180, 184–85
(2012) (citations omitted).
So a trial court’s analysis of the amount of attorney fees to be awarded to a
plaintiff under § 9-11-68 (b) (2) should address the reasonableness of the agreed-upon
fee. That analysis should consider its reasonableness at the time the plaintiff and his
attorney entered into their agreement — possibly rejecting an excessive percentage.
6 And it should consider it’s reasonableness upon completion of the matter — possibly
deeming a fee excessive where the case settles with unanticipated ease and alacrity.
I would vacate and remand for such an inquiry.1
1 This case demonstrates that reversal rates are a poor measure of the quality of a judge. In Cohen v. The Alfred & Adele Davis Academy, 310 Ga. App. 761, 764 (714 SE2d 350) (2011), we held that “by its terms, OCGA § 9-11-68 does not require that the trial court make written findings of fact or conclusions of law unless the court concludes that an offer was not made in good faith.” Nonetheless, making such written findings and conclusions is inarguably the better practice. (We have imposed such a requirement in cases involving attorney fees and costs under OCGA § 9-15-14 even though that statute is silent as to whether specific findings are required. See McKemie v. City of Griffin, 272 Ga. 843, 844-845 (4) (537 SE2d 66) (2000).) Absent explicit findings by the trial court appellate review is meaningless.