Smith v. Baptiste

694 S.E.2d 83, 287 Ga. 23

Opinions

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 SE2d 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 plaintiffs 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 SE2d 534) (2008); Fowler Properties v. Dowland, supra at 79 (2).

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 SE2d 364) (2006); State of Ga. v. Moseley, 263 Ga. 680, 682 (3) (436 SE2d 632) (1993); Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 412-413 (2), (3) (321 SE2d 330) (1984). “Thus, there is no express constitu tional ‘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 SE2d 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 SE2d 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).

The dissent mistakenly claims that the majority is following the holding in Bloomfield v. Liggett & Myers, 230 Ga. 484 (198 SE2d 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). 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. E 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. 44) 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 SE2d 353) (1990); Barber v. Barber, 257 Ga. 488, 490, fn. 1 (360 SE2d 574) (1987) (dissent); Ga. Power Co. v. Allied Chemical Corp., 233 Ga. 558, 566 (2) (212 SE2d 628) (1975); State v. Collett, 232 Ga. 668, 669, fn. 1 (208 SE2d 472) (1974); Leggett v. Macon Baptist Assn., 232 Ga. 27, 30 (II) (205 SE2d 197) (1974); Speer v. Martin, 163 Ga. 535, 541 (136 SE 425) (1926) (dissent); Wright v. Hardwick, 152 Ga. 302, 309 (1) (109 SE 903) (1921); Renfroe v. City of Atlanta, 140 Ga. 81, 85 (78 SE 449) (1913); Strickland v. State, 137 Ga. 1, 18 (72 SE 260) (1911) (dissent); Clark v. Hammond, 134 Ga. 792, 795 (1) (68 SE 600) (1910); Southern Railway Co. v. Melton, 133 Ga. 277, 285 (1) (65 SE 665) (1909); Epping v. City of Columbus, 117 Ga. 263, 271 (43 SE 803) (1903), overruled on other grounds, Harrell v. Town of Whigham, 141 Ga. 322, 326 (80 SE 1010) (1913); Park v. Candler, 113 Ga. 647, 656 (1) (39 SE 89) (1901); Blocker v. Boswell, 109 Ga. 230, 233 (34 SE 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 Field Van Tassel, Freedom: Personal Liberty and Private Law: “Only the Law Would Rule Between Us”: Antimiscegenation, the Moral Economy of Dependency, and the Debate Over Rights After the Civil War, 70 Chi.-Kent L. Rev. 873, fn. 143 (1995); Dorothy T. Beasley, The Georgia Bill of Rights: Dead or Alive?, 34 Emory L.J. 341, 386, fn. 175 (1985); Walter McElreath, A Treatise on the Constitution of Georgia (The Harrison Company, 1912) (citing Small’s Report approximately 100 times). Indeed, prior to the dissent in this case, no legal authority has ever questioned the clear authenticity, accuracy and validity of the stenographic report, which provides the sole verbatim record of the Convention debates. Thus, contrary to the position of the dissent, this Court’s reference to the stenographic report in Nelms and Bloomfield was appropriate.

Moreover, the history of the current version of the constitutional provision at issue in this case “indicate[s] that the sole purpose underlying the revision and adoption of Art. I, Sec. I, Par. XII was to define and protect the right of an individual to represent himself in the courts of this state.” Nelms v. Georgian Manor Condo. Assn., supra at 413 (3). The dissent also ignores the critical factor that Nelms compared the Georgia constitutional provision to the access to courts provisions of other states, which, unlike the Georgia provision, expressly “provide that all courts shall be open to every person for the redress of an injury done him[.] [Cits.]” Nelms v. Georgian Manor Condo. Assn., supra at 411 (1). Thus, as Nelms correctly concluded, “Art. I, Sec. I, Par. XII is a ‘right of choice’ (between self-representation and representation by counsel) provision, and not an ‘access to the courts’ provision such as found in the constitutions of [other states].” Nelms v. Georgian Manor Condo Assn., supra at 413 (3).

Accordingly, the trial court clearly erred in finding a “right of access” violation of Art. I, Sec. I, Par. XII. See Santana v. Ga. Power Co., 269 Ga. 127, 129 (4) (498 SE2d 521) (1998); Nelms v. Georgian Manor Condo. Assn., supra at 412-413 (2), (3). Moreover, OCGA § 9-11-68 (b) (1) does not deny litigants access to the courts, but simply sets forth certain circumstances under which attorney’s fees may be recoverable. See Eubanks v. Ferrier, 245 Ga. 763, 766 (4) (267 SE2d 230) (1980) (statute did not deprive plaintiff of access to courts, but merely withheld from plaintiff certain types of evidence). “Therefore, even if a constitutional ‘right of access to the courts’ provision did exist, it would not be applicable here.” Couch v. Parker, supra at 582 (1).

The trial court also found that OCGA § 9-11-68 violates Art. I, Sec. I, Par. XII because it permits the recovery of attorney’s fees absent the prerequisite showings of either OCGA § 9-15-14 or § 13-6-11. However, there is nothing in Art. I, Sec. I, Par. XII, or any other provision of the Georgia Constitution, which mandates that attorney’s fees can only be awarded pursuant to those two code sections. Rather, in Georgia, “[attorney’s fees are recoverable . .. where authorized by some statutory provision or by contract. [Cits.]” Ga. Subsequent Injury Trust Fund v. Muscogee Iron Works, 265 Ga. 790-791 (462 SE2d 367) (1995). See also Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 344 (3) (348 SE2d 628) (1986). OCGA § 9-11-68 is such a statutory provision authorizing the recovery of attorney’s fees under specific circumstances. Because there is no constitutional requirement that attorney’s fees be awarded only pursuant to OCGA § 9-15-14 or § 13-6-11, the trial court’s finding to the contrary was erroneous.

2. The trial court further ruled that OCGA § 9-11-68 is a special law that violates the uniformity clause of the Georgia Constitution, because it applies only to tort claims, not all civil cases. This State’s uniformity clause provides that “[l]aws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law. . . .” Ga. Const, of 1983, Art. Ill, Sec. VI, Par. IV (a). Contrary to the ruling of the trial court, OCGA § 9-11-68 is not a special law affecting only a limited activity in a specific industry during a limited time frame. Compare Celotex Corp. v. St. Joseph Hosp., 259 Ga. 108, 110 (376 SE2d 880) (1989) (special law affected certain asbestos claims); Lasseter v. Ga. Public Service Comm., 253 Ga. 227, 229 (2) (319 SE2d 824) (1984) (special law applied to only one power plant converting from petroleum to coal). Rather, it “operates uniformly throughout the state upon the subject or class of subjects with which it proposes to deal. [Cits.]” Lasseter v. Ga. Public Service Comm., supra.

“ ‘Our State Constitution only requires a law to have uniform operation; and that means that it shall apply to all persons, matters, or things which it is intended to affect. If it operates alike on all who come within the scope of its provisions, constitutional uniformity is secured. Uniformity does not mean universality. This constitutional provision is complied with when the law operates uniformly upon all persons who are brought within the relations and circumstances provided by it.’ (Cits.) A law which operates uniformly upon all persons of a designated class is a general law within the meaning of the Constitution, provided that the classification thus made is not arbitrary or unreasonable.” [Cit.]

State v. Martin, 266 Ga. 244, 246 (4) (466 SE2d 216) (1996).

Because OCGA § 9-11-68 applies uniformly throughout the State to all tort cases, it is a general law. The clear purpose of this general law is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation. See OCGA § 9-11-68 (b) (1), (2), (d) (2) (party rejecting a settlement offer may be liable for attorney’s fees, but court may determine that an offer was not made in good faith and disallow an award of attorney’s fees). This is certainly a legitimate legislative purpose, consistent with this State’s “strong public policy of encouraging negotiations and settlements, [cit.].” Edelkind v. Boudreaux, 271 Ga. 314, 317 (2) (519 SE2d 442) (1999). Moreover, the fact that the statute applies to tort cases, but not other civil actions, does not render it an impermissible special law. “The General Assembly may exclude certain persons or things from the application of a general law. [Cit.]” Matthews v. Macon Water Auth., 273 Ga. 436, 437 (542 SE2d 106) (2001). As long as such a law operates uniformly throughout the State, it “is still a general law. [Cit.]” McAllister v. American Nat. Red Cross, 240 Ga. 246, 248 (2) (240 SE2d 247) (1977). Accordingly, OCGA § 9-11-68 does not violate the uniformity clause of the Georgia Constitution.

Because the trial court based its order denying the motion for attorney’s fees on erroneous findings that OCGA § 9-11-68 is unconstitutional, that order must be reversed.

3. Appellees have argued for the first time on appeal that the current version of OCGA § 9-11-68 became effective after this lawsuit was filed, and that retroactive application of it to this case is unconstitutional. However, this Court will not consider a claim that retroactive application of a statute is unconstitutional when that issue was not distinctly ruled upon by the trial court. Madison v. State, 281 Ga. 640, 641 (2) (a) (641 SE2d 789) (2007). See also Hindman v. State, 234 Ga. App. 758, 765 (5) (507 SE2d 862) (1998) (this Court transferred case to Court of Appeals because retroactivity claim and other constitutional challenges were not ruled upon by the trial court, and thus were not preserved for appeal). Because Appellees did not raise this constitutional issue in the trial court and obtain a distinct ruling on it from that court, the issue cannot be considered for the first time in this Court. See Kromer v. Bechtel, 289 Ga. App. 306 (1) (656 SE2d 910) (2008) (unconstitutional retroactivity claim regarding OCGA § 9-11-68 “cannot be considered when asserted for the first time on appeal”).

Judgment reversed.

All the Justices concur, except Nahmias, J., who concurs specially and Hunstein, C. J., and Benham J., who dissent.