FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 5, 2013
In the Court of Appeals of Georgia A12A2545. EADDY v. PRECISION FRANCHISING, LLC.
ANDREWS, Presiding Judge.
Rukiya Eaddy appeals from the trial court’s order awarding attorney fees to
Precision Franchising, LLC1 (Precision), pursuant to OCGA § 9-11-68 after Eaddy
rejected Precision’s pre-trial offer of settlement. For the following reasons, we affirm
the award.
The underlying tort action, brought by Eaddy against Precision and other
defendants, arose out of an altercation between Eaddy and the owner of a franchised
automobile service business for which Precision was the franchisor. Eaddy claimed
on various grounds that Precision was liable for injuries she suffered in the altercation
1 Although Precision Franchising, LLC, was added to the underlying suit by the name Precision Tune Auto Care, Inc. d/b/a Precision Franchising, LLC, the parties agree that Precision Franchising, LLC, is the party at issue in this appeal. including vicarious liability for intentional torts and negligent retention, training, and
supervision. It is undisputed that, in compliance with OCGA § 9-11-68 (a), Precision
made an offer to settle Eaddy’s claims for $1,000.00, and that Eaddy rejected the offer
by failing to respond within 30 days. OCGA § 9-11-68 (c). After Eaddy rejected
Precision’s offer to settle, the trial court granted summary judgment in favor of
Precision on all of Eaddy’s claims.
Pursuant to OCGA § 9-11-56 (h), Eaddy appealed the grant of summary
judgment to Precision to this Court while her claims against the other defendants
remained pending in the trial court. Before a decision was rendered in the appeal,
Eaddy moved for and was granted a withdrawal of the appeal on the basis that the
case had settled, and in June 2011, this Court transmitted the remittitur to the trial
court reflecting that the appeal had been withdrawn.
In July 2011, Eaddy executed a document entitled “Settlement Agreement and
General Release” in which she acknowledged that the case was settled and provided
a general release in favor of all the defendants, including Precision. The document
recited that the release was provided in consideration for $200,000.00 paid to Eaddy
by Central Mutual Insurance Company, the franchisee’s insurer. The document recites
Eaddy’s understanding that she would not be indemnified or held harmless by the
2 owner, franchisee, or Central Mutual for attorney fees sought by Precision in a related
declaratory judgment action brought by Central Mutual in which Precision
counterclaimed asserting that Central Mutual breached a duty under its policy to
provide separate legal counsel to defend Precision against Eaddy’s claims. The
document further recites that “[e]ach party hereto shall bear all attorney’s fees and
costs arising from the litigation. . . .” Although captioned as a settlement agreement,
the document was prepared only for Eaddy’s signature and was signed only by her as
the releasor.
In October 2011, Central Mutual paid Precision $118,000.00 to settle
Precision’s counterclaim for attorney fees in the declaratory judgment action. The
Release and Limited Indemnity Agreement signed by Precision and Central Mutual
in consideration of this payment provided that Precision did not release any claim for
attorney fees against Eaddy in the present action.
After a hearing in December 2011, the trial court granted Precision’s motion
for the award of attorney fees pursuant to OCGA § 9-11-68 in the amount of
$28,656.37. Under OCGA § 9-11-68 (b) (1),
[i]f 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
3 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.
Furthermore, under OCGA § 9-11-68 (d),
(1) The court shall order payment of attorney’s fees and expenses of litigation upon receipt of proof that the judgment is one to which the provisions of [paragraph (1) of subsection (b)] of this Code section apply; provided, however, that if an appeal is taken from such judgment, the court shall order payment of such attorney’s fees and expenses of litigation only upon remittitur affirming such judgment.
(2) If a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the court may disallow an award of attorney’s fees and costs.
Eaddy contends that, because she withdrew her appeal to this Court from the
grant of summary judgment to Precision, the trial court was without authority to
award attorney fees to Precision under OCGA § 9-11-68. Eaddy relies on language
in OCGA § 9-11-68 (d) (1) providing that “if an appeal is taken from such judgment,
the court shall order payment of such attorney’s fees and expenses of litigation only
upon remittitur affirming such judgment.” Because the remittitur from this Court did
not reflect that the judgment was affirmed by a decision issued by this Court, but
instead reflected that the appeal was withdrawn, Eaddy contends that the language of
4 subsection (d) (1) precluded the award of attorney fees. Under this narrow
construction of the statute, Eaddy could preclude an award under OCGA § 9-11-68
by simply taking an appeal from the judgment and then voluntarily withdrawing the
appeal. The statute cannot be reasonably construed to allow this result. Rather, a
“remittitur affirming such judgment” under subsection (d) (1) plainly refers not only
to a remittitur from the appellate court showing that the judgment was affirmed by an
appellate decision, but also a remittitur showing that, because the appeal was
withdrawn, the judgment stands affirmed by operation of law. Houston County v.
Harrell, 287 Ga. 162, 164 (695 SE2d 29) (2010); Aetna Casualty & Surety Co. v.
Bullington, 227 Ga.
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FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 5, 2013
In the Court of Appeals of Georgia A12A2545. EADDY v. PRECISION FRANCHISING, LLC.
ANDREWS, Presiding Judge.
Rukiya Eaddy appeals from the trial court’s order awarding attorney fees to
Precision Franchising, LLC1 (Precision), pursuant to OCGA § 9-11-68 after Eaddy
rejected Precision’s pre-trial offer of settlement. For the following reasons, we affirm
the award.
The underlying tort action, brought by Eaddy against Precision and other
defendants, arose out of an altercation between Eaddy and the owner of a franchised
automobile service business for which Precision was the franchisor. Eaddy claimed
on various grounds that Precision was liable for injuries she suffered in the altercation
1 Although Precision Franchising, LLC, was added to the underlying suit by the name Precision Tune Auto Care, Inc. d/b/a Precision Franchising, LLC, the parties agree that Precision Franchising, LLC, is the party at issue in this appeal. including vicarious liability for intentional torts and negligent retention, training, and
supervision. It is undisputed that, in compliance with OCGA § 9-11-68 (a), Precision
made an offer to settle Eaddy’s claims for $1,000.00, and that Eaddy rejected the offer
by failing to respond within 30 days. OCGA § 9-11-68 (c). After Eaddy rejected
Precision’s offer to settle, the trial court granted summary judgment in favor of
Precision on all of Eaddy’s claims.
Pursuant to OCGA § 9-11-56 (h), Eaddy appealed the grant of summary
judgment to Precision to this Court while her claims against the other defendants
remained pending in the trial court. Before a decision was rendered in the appeal,
Eaddy moved for and was granted a withdrawal of the appeal on the basis that the
case had settled, and in June 2011, this Court transmitted the remittitur to the trial
court reflecting that the appeal had been withdrawn.
In July 2011, Eaddy executed a document entitled “Settlement Agreement and
General Release” in which she acknowledged that the case was settled and provided
a general release in favor of all the defendants, including Precision. The document
recited that the release was provided in consideration for $200,000.00 paid to Eaddy
by Central Mutual Insurance Company, the franchisee’s insurer. The document recites
Eaddy’s understanding that she would not be indemnified or held harmless by the
2 owner, franchisee, or Central Mutual for attorney fees sought by Precision in a related
declaratory judgment action brought by Central Mutual in which Precision
counterclaimed asserting that Central Mutual breached a duty under its policy to
provide separate legal counsel to defend Precision against Eaddy’s claims. The
document further recites that “[e]ach party hereto shall bear all attorney’s fees and
costs arising from the litigation. . . .” Although captioned as a settlement agreement,
the document was prepared only for Eaddy’s signature and was signed only by her as
the releasor.
In October 2011, Central Mutual paid Precision $118,000.00 to settle
Precision’s counterclaim for attorney fees in the declaratory judgment action. The
Release and Limited Indemnity Agreement signed by Precision and Central Mutual
in consideration of this payment provided that Precision did not release any claim for
attorney fees against Eaddy in the present action.
After a hearing in December 2011, the trial court granted Precision’s motion
for the award of attorney fees pursuant to OCGA § 9-11-68 in the amount of
$28,656.37. Under OCGA § 9-11-68 (b) (1),
[i]f 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
3 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.
Furthermore, under OCGA § 9-11-68 (d),
(1) The court shall order payment of attorney’s fees and expenses of litigation upon receipt of proof that the judgment is one to which the provisions of [paragraph (1) of subsection (b)] of this Code section apply; provided, however, that if an appeal is taken from such judgment, the court shall order payment of such attorney’s fees and expenses of litigation only upon remittitur affirming such judgment.
(2) If a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the court may disallow an award of attorney’s fees and costs.
Eaddy contends that, because she withdrew her appeal to this Court from the
grant of summary judgment to Precision, the trial court was without authority to
award attorney fees to Precision under OCGA § 9-11-68. Eaddy relies on language
in OCGA § 9-11-68 (d) (1) providing that “if an appeal is taken from such judgment,
the court shall order payment of such attorney’s fees and expenses of litigation only
upon remittitur affirming such judgment.” Because the remittitur from this Court did
not reflect that the judgment was affirmed by a decision issued by this Court, but
instead reflected that the appeal was withdrawn, Eaddy contends that the language of
4 subsection (d) (1) precluded the award of attorney fees. Under this narrow
construction of the statute, Eaddy could preclude an award under OCGA § 9-11-68
by simply taking an appeal from the judgment and then voluntarily withdrawing the
appeal. The statute cannot be reasonably construed to allow this result. Rather, a
“remittitur affirming such judgment” under subsection (d) (1) plainly refers not only
to a remittitur from the appellate court showing that the judgment was affirmed by an
appellate decision, but also a remittitur showing that, because the appeal was
withdrawn, the judgment stands affirmed by operation of law. Houston County v.
Harrell, 287 Ga. 162, 164 (695 SE2d 29) (2010); Aetna Casualty & Surety Co. v.
Bullington, 227 Ga. 485-486 (181 SE2d 495) (1971); Hawes v. Bigbie, 123 Ga. App.
122 (179 SE2d 660) (1970). The remittitur issued after Eaddy’s voluntary withdrawal
of the appeal from the trial court’s judgment was a “remittitur affirming such
judgment” within the meaning of OCGA § 9-11-68 (d) (1).
We find no merit to Eaddy’s claim that the July 2011 “Settlement Agreement
and General Release” precluded Precision’s claim under OCGA § 9-11-68. In
consideration of $200,000.00 paid by the franchisee’s insurer, Eaddy executed this
document which released all the defendants and finally disposed of the claims. See
McClain v. George, 267 Ga. App. 851, 854 (600 SE2d 837) (2004). Eaddy claims that
5 the language in the document stating that “[e]ach party hereto shall bear all attorney’s
fees and costs arising from the litigation . . .” precluded Precision’s claim under
OCGA § 9-11-68. Although the document was captioned “Settlement Agreement and
General Release,” and purported to release Precision from Eaddy’s claims, the
document was signed only by Eaddy. Precision was not a party to the document and
had already obtained summary judgment in its favor on Eaddy’s claims before Eaddy
executed the document. Nothing in the document precluded Precision from making
a claim under OCGA § 9-11-68.
Similarly, we find no merit in Eaddy’s claim that the October 2011 Release and
Limited Indemnity Agreement signed by Precision and Central Mutual precluded
Precision’s claim under OCGA § 9-11-68. By this agreement, Central Mutual paid
Precision $118,000.00 for attorney fees incurred by Precision to defend against
Eaddy’s claims. The payment was made to settle a declaratory judgment action in
which Precision asserted that Central Mutual’s insurance policy covering the
franchisee also required that separate legal counsel be provided to Precision to defend
against Eaddy’s claims. The July 2011 settlement and release recognized that Eaddy
was not indemnified or held harmless from a claim based on these attorney fees. At
the hearing on its claim, Precision showed that attorney fees it sought under OCGA
6 § 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 $118,000.00 settlement, which
reimbursed Precision for other attorney fees incurred in defending against Eaddy’s
claims.
Finally, Eaddy contends that the trial court erred in finding that Precision’s
$1,000.00 settlement offer was made in good faith. The trial court did not explain the
basis for its conclusion that Precision’s offer was made in good faith. Under OCGA
§ 9-11-68 (d) (2),
[i]f a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the court may disallow an award of attorney’s fees and costs.
Under the provisions of OCGA § 9-11-68, where a defendant makes a settlement
offer in compliance with subsection (a), and the offer is rejected, subsection (d) (1)
requires the trial court to award attorney fees and litigation expenses to the defendant
if the statutory requirements of subsection (b) (1) are satisfied, unless the court
concludes under subsection (d) (2), “in an order setting forth the basis for such a
determination,” that the offer was not made in good faith, in which case the court may
disallow an award of fees and costs. Accordingly, “[b]y its terms, OCGA § 9-11-68
7 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. . . .” Cohen
v. The Alfred &Adele Davis Academy, Inc., 310 Ga. App. 761, 764 (714 SE2d 350)
(2011).
Eaddy argues that Precision’s $1,000.00 offer was far below her actual
damages and “nowhere near [Precision’s] potential liability had the case proceeded
to a jury.” Of course, Eaddy’s claims against Precision never proceeded to a jury
because the trial court, after considering the facts in the record developed by
Precision’s discovery and the applicable law, determined as a matter of law that
Eaddy had no claim against Precision and granted summary judgment in favor of
Precision. Eaddy appealed that judgment but then withdrew the appeal.
We conclude that the trial court’s finding that Precision’s offer of settlement
was made in good faith and the award of attorney fees under OCGA § 9-11-68 was
supported by the evidence and was not an abuse of discretion. Great West Casualty
Co. v. Bloomfield, 313 Ga. App. 180, 183 (721 SE2d 173) (2011); Cohen, 310 Ga.
App. at 763. Although the trial court’s award was based in part on different grounds,
we affirm under the right for any reason rule. City of Gainesville v. Dodd, 275 Ga.
834 (573 SE2d 369) (2002).
8 Judgment affirmed. Doyle, P. J., and Boggs, J., concur.