In the second appearance of two litigants before the Georgia Court of Appeals in a dispute arising from a 2016 auto accident, the appellant appealed from the trial court’s order denying her motion for attorney fees and litigation expenses under O.C.G.A. § 9-11-68. She argued that she was entitled to an award despite the fact that her offer of settlement was only served in the first action that she voluntarily dismissed without prejudice—and not in the renewal action in which she ultimately prevailed.
On April 14, 2016, the appellee was traveling on West Paces Ferry Road in Atlanta and was making a left turn when she collided with the appellant, who was traveling in her vehicle from the opposite direction. The appellant suffered injuries as a result and incurred more than $500,000 in medical expenses. The appellant filed suit against the appellee and her parents in Cherokee County State Court, alleging negligence against the appellee and vicarious liability against her parents. During the proceedings, the appellee filed a motion to enforce a settlement agreement which was supposedly executed by the appellant and the appellee’s insurer, and the appellee’s parents filed a motion for summary judgment on the appellant’s vicarious liability claims. After a hearing, the trial court granted the appellee’s motion to enforce the settlement agreement but denied her parents’ motion for summary judgment. The appellant and the appellee’s parents appealed from the trial court’s rulings, and the Court of Appeals reversed the trial court’s orders granting the appellee’s motion to enforce the settlement agreement and the order denying her parents’ motion for summary judgment on the appellant’s vicarious liability claims.
In April 2019, while the Cherokee County case was still pending, the appellant served the appellee with an offer of settlement pursuant to O.C.G.A. § 9-11-68 by certified mail. The offer, which contained the Cherokee County case caption and case number, stated that the appellant would “settle, compromise, and resolve her claims for bodily injury and personal injury … in exchange for the total amount of $5,000,000[,]” but the offer wasn’t accepted. The appellant voluntarily dismissed the action without prejudice in March 2020, and she refiled the action against the appellee in Gwinnett County state court. The appellant failed to submit a new offer of settlement in the renewal action. In March 2022, after a jury trial, the jury returned a verdict in the appellant’s favor for $6,295,293, and the trial court entered a judgment for $7,214,167.11.
The appellant subsequently filed a motion for attorney fees and litigation expenses pursuant to O.C.G.A. § 9-11-68. The appellee opposed the motion, arguing that the appellant wasn’t entitled to an award under the statute because the appellant didn’t submit a valid offer of settlement. Specifically, the appellee argued that, although the appellant submitted her offer in the Cherokee County action, she didn’t submit an offer of settlement in the renewal action, and thus she failed to satisfy the procedural requirements of the statute. The trial court denied the appellant’s motion following a hearing, determining that the plain language of O.C.G.A. § 9-11-68 required that the appellant submit an offer of settlement in the renewal action and that her failure to do so precluded an award under the statute.
On appeal, the appellant argued that the trial court erred by denying her motion for attorney fees and litigation expenses under O.C.G.A. § 9-11-68 because the statute authorizes an award of such fees and expenses irrespective of an intervening voluntary dismissal without prejudice and that the statute doesn’t require a party to serve the offer of settlement in the renewal action.
The Opinion of the Court of Appeals
Presiding Judge M. Yvette Judge Miller of the Georgia Court of Appeals wrote that the state’s offer of settlement statute is codified in O.C.G.A. § 9-11-68, and it governs written offers to settle tort claims. The statute sets out the procedural requirements for serving an offer of settlement, and it states in part:
At any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days (or 20 days if it is a counteroffer) before trial, either party may serve upon the other party, but shall not file with the court, a written offer, denominated as an offer under this Code section, to settle a tort claim for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly. … 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.
Judge Miller said that it is clear that after the rejection of the plaintiff’s offer of settlement, the statute authorizes an award in the plaintiff’s favor after the entry of a final judgment. It’s unclear from the plain language—and the Court hadn’t squarely addressed—if the statute authorizes an award from a judgment when the offer of settlement was served in a prior action that was voluntarily dismissed. Quoting a 2017 decision, Judge Miller wrote:
And as to attorney-fee statutes specifically, we have repeatedly explained that because any statute that provides for the award of attorney fees is in derogation of common law, it must be strictly construed against the award of such damages. In other words, such statutes, including O.C.G.A. § 9-11-68, must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.
The judge said the Court must first examine the text of O.C.G.A. § 9-11-68, which says that “[a]t any time more than 30 days after the service of a summons and complaint … but not less than 30 days (or 20 days if it is a counteroffer) before trial, either party may serve upon the other party, … a written offer … to settle a tort claim. …” The statute doesn’t contain definitions for any of these terms. But the Supreme Court of Georgia has defined the term “claim” as “a demand for money, property, or a legal remedy to which one asserts a right; especially the part of a complaint in a civil action specifying what relief the plaintiff asks for.” Also, the term “dismiss” means “to send (something) away; specifically, to terminate (an action or claim) without further hearing, especially before the trial of the issues involved,” while the term “judgment” means “a court’s final determination of the rights and obligations of the parties in a case.” Additionally, Judge Miller noted that in examining the text of the statute, the fact that the offer of settlement must be served after the service of a summons or complaint but not less than 20 or 30 days before trial shows that an offer of settlement under the statute correlates to pending or existing cases.
Moreover, the statute mandates that an offer of settlement must contain a stipulation to enter into an agreement to “dismiss the claim or to allow judgment to be entered.” As such, because an offer of settlement must include a stipulation to dismiss the claim or allow judgment to be entered after the service of a summons and complaint, it logically follows that an offer of settlement is part and parcel of a pending or existing case. Therefore, when the statute is read in context and construed against the award of attorney fees, the Court concluded that an offer of settlement that was served in an action that was voluntarily dismissed without prejudice cannot serve as a valid offer of settlement in a subsequent renewal action because the offer only pertains to then-pending or existing cases. Instead, a party must serve the offer of settlement in the renewal action to authorize an award under O.C.G.A. § 9-11-68.
Judge Miller explained that this interpretation of O.C.G.A. § 9-11-68 comports with the manner in which Georgia courts have generally construed renewal actions under O.C.G.A. § 9-2-61(a). That statute provides:
When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.
Judge Miller said that the Court of Appeals has noted that “a properly filed renewal action stands on the same footing as the original action with respect to statutes of limitation.” Yet the Court has been clear “that a renewed lawsuit under O.C.G.A. § 9-2-61 (a) is an action de novo.” As a result, “the procedural requirements of filing a new complaint and perfecting service must be met anew.” Applying these principles, because a renewal action is a new action, and the procedural requirements in such action must be met anew, including the filing and serving of a new summons and complaint, it must follow that an offer of settlement that was served as part of an action that was voluntarily dismissed must also be served anew in a renewal action.
In this case, the appellant served the appellee with an offer of settlement, which contained the case caption and case number for the Cherokee County case. The offer stated that the appellant would release her claims against the appellee for $5,000,000, and the appellee didn’t dispute that she rejected the appellant’s offer. The appellant later voluntarily dismissed the Cherokee County action without prejudice and refiled the action in Gwinnett County without subsequently serving an offer of settlement.
Judge Miller and the Court of Appeals concluded that the appellant failed to serve the appellee with a valid offer of settlement in the renewal action. The Gwinnett County case, in which the appellant obtained her judgment, didn’t exist at the time of the Cherokee County case in which the appellant served her offer of settlement. And, as explained above, O.C.G.A. § 9-11-68 contemplates that an offer of settlement be served in connection with existing or pending cases. Therefore, the appellant’s offer of settlement that was served in the original action couldn’t serve as a valid offer of settlement in the renewal action to authorize an award under the statute. Thus, the trial court correctly determined that the appellant failed to serve a valid offer of settlement under O.C.G.A. § 9-11-68 in the renewal action. The Court of Appeals affirmed the trial court’s order denying the appellant’s motion for attorney fees and litigation expenses. Carr v. Yim, 369 Ga. App. 389, 893 S.E.2d 801 (Ga. App. October 12, 2023).
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