In Bell v. Waffle House Inc., the Georgia Court of Appeals discussed the procedural requirements for Georgia’s offer-of-settlement statute, O.C.G.A. § 9-11-68. The Bell plaintiff claimed he was wrongfully arrested while he was a patron in the defendant’s restaurant. After suit was filed, the defendant made an offer to settle the claim for $25,000, in accordance with O.C.G.A. § 9-11-68(a). The plaintiff rejected the defendant’s offer.
Under Georgia’s offer-of-settlement statute, O.C.G.A. § 9-11-68(b)(1), if a defendant makes an offer to settle a tort claim, and the plaintiff rejects the offer, the defendant is entitled to recover its fees and expenses incurred from the date of the offer through the entry of final judgment, so long as the ultimate judgment obtained by the plaintiff is less than 75 percent of the defendant’s offer or the final judgment is one of no liability. Section 9-11-68(b)(2) provides a similar framework for a plaintiff making an offer of settlement, where the defendant rejects the offer.
In Bell, after the plaintiff rejected the settlement offer, the trial court granted summary judgment to the defendant. The defendant then moved to recover its fees and expenses under O.C.G.A. § 9-11-68(b)(1). The plaintiff challenged the request, based solely on the defendant’s failure to submit affidavits from every timekeeper who worked on the case. The trial court rejected the plaintiff’s argument and awarded the defendant over $27,000 in fees and expenses without conducting a hearing.
The plaintiff appealed the fee award, arguing that the trial court erred by not conducting a hearing on the motion. The defendant argued that the provision’s silence, coupled with a reference to a mandatory hearing elsewhere in the statute, means that the statute does not require an evidentiary hearing for fee requests under O.C.G.A. § 9-11-68(b).
The Georgia Court of Appeals affirmed the trial court’s award despite the lack of a hearing. The Court of Appeals agreed that O.C.G.A. § 9-11-68(b) is silent on whether a hearing is required, but noted that hearings are generally required for other fee-shifting statutes. The Court of Appeals explained that “even where the Code does not require hearings, Georgia’s courts have required hearings because such an award must be supported by evidence-based factual findings.” Nonetheless, the Court of Appeals found that the plaintiff waived any right to a hearing by making only a “procedural” challenge to defendant’s request, and by not challenging the reasonableness of the fees requested or the substance of the movant’s evidence. Thus, the trial court committed no error by granting the fee request without a hearing.
Although the court in Bell failed to establish a bright line rule for when (if ever) a hearing is required under O.C.G.A. § 9-11-68(b)(1), the court provided some useful clues about how parties should approach fee requests under the statute. If your opponent moves for fees under O.C.G.A. § 9-11-68(b), a party should raise all challenges to the request in its response, especially challenges to the reasonableness of the fees and the substance of the opponent’s evidence. Likewise, a party should explicitly request a hearing on the issues.
If, on the other hand, a party is moving for fees based on a rejected offer of settlement, and the opposing party raises challenges the request, the party seeking fees should consider requesting, or consenting to, an evidentiary hearing. The Bell opinion strongly suggests that an evidentiary hearing may be required when the responding party raises certain challenges. Opposing a request for a hearing in the trial court will almost certainly cause the other party to argue on appeal that a hearing was required.
The case is Bell v. Waffle House Inc., A14A2303, 2015 WL 1260126, (March 20, 2015). A copy of the opinion can be found here.
