Hillman v. Bord

347 Ga.App. 651

820 S.E.2d 482

HILLMAN et al.

v.BORD et al.

A18A1045

Court of Appeals of Georgia.

October 18, 2018

Angela Rene Fox, Darren Summerville, Atlanta, for Appellant.

David Scott Klein, Martinez, Blakely Holloway Frye, Jennifer Lauren Calvert, Atlanta, for Appellee.

Reese, Judge.

In the third appearance¹ of this case before this Court, Daniel and Amy Hillman ("the Appellants") appeal from the trial court’s order granting attorney fees to Anna Bord and Victor M. Bondar ("the Appellees") under OCGA § 9-11-68. The Appellants argue that the offers to settle proffered by the Appellees were invalid and not made in good faith. Further, the Appellants assert that the trial court abused its discretion in finding that the offers to settle were made in good faith and improperly determined the amount of attorney fees awarded. For the reasons set forth infra, we affirm the trial court’s decision.

Because a detailed factual history of this case is found in the opinion in the first appeal, a brief summary and statement of the subsequent pertinent facts follow.² In September 2013, the Appellants filed suit against their next-door neighbors, the Appellees, alleging damage to their property caused by changes the Appellees made to the Appellees’ property that increased water run-off onto the Appellants’ land. The Appellants asserted claims of, inter alia, negligence, nuisance and trespass and sought injunctive relief.³ The Appellees filed an answer and a counterclaim seeking injunctive relief and alleging, inter alia, nuisance, trespass, negligence, and defamation on the ground that a retaining wall built by the Appellants increased water run-off and damaged the Appellees’ property.⁴ During the course of litigation, the parties conducted discovery, and the trial court ordered the parties to mediation. After the parties attended in mediation, the Appellees sent two separate offers to settle, the first in July 2014 and the second in December 2014, both pursuant to OCGA § 9-11-68. The Appellants did not accept either offer to settle within the 30-day time frame set forth in OCGA § 9-11-68 (a).⁵

The Appellants filed a motion for partial summary judgment on the Appellees’ counterclaims related to the retaining wall.⁶ The trial court granted the motion, but this Court reversed.⁷ A five-day jury trial ensued, with the jury finding on behalf of the Appellees as to the Appellants’ claims and finding on behalf of the Appellants as to the Appellees’ counterclaims. The Appellants initially appealed to this Court, and we granted their motion to transfer the matter to the Supreme Court of Georgia, on the sole issue of "the trial court’s denial of their request for equitable relief."⁸ The Supreme Court of Georgia returned the appeal to this Court, stating "[i]n this case, it appears that the trial court’s denial of equitable relief flowed directly from the jury’s rejection of the [A]ppellants’ trespass claim, such that the appeal would be outside [the Supreme] Court’s jurisdiction[.]"

This Court affirmed the trial court’s denial of equitable relief,⁹ meanwhile the Appellees filed a motion for $144,826.59 in attorney fees under OCGA § 9-11-68. After a hearing, the trial court granted in part the Appellees’ motion for attorney fees, ordering the Appellants to pay $120,559.75. This appeal follows.

1. The Appellants argue that the trial court erred in granting attorney fees under OCGA § 9-11-68 because the Appellees’ two offers to settle were invalid. The Appellants contend that the offers attempted to settle both tort and non-tort (equitable) claims, in violation of OCGA § 9-11-68 (a). Specifically, the Appellants argue that the trial court erred in ruling that the offers to settle were valid even though they required the Appellants to dismiss all of their claims, including their claim for equitable relief. We disagree.

Generally, appellate courts apply "a de novo standard of review when an appeal presents a question of law regarding whether the trial court correctly interpreted and applied OCGA § 9-11-68 (a)."¹⁰ As such, "[w]e owe no deference to a trial court’s ruling on questions of law and review such issues de novo under the ‘plain legal error’ standard of review."¹¹

Under OCGA § 9-11-68, if a defendant makes an offer of settlement to the plaintiff to settle a tort claim pursuant to OCGA § 9-11-68 (a) and the plaintiff rejects the settlement offer,

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.¹²

Among other requirements for an offer to settle to be valid, OCGA § 9-11-68 (a) requires that the offer must "[s]tate with particularity any relevant conditions[.]"¹³ Under OCGA § 9-11-68 (d) (1), upon receipt of proof that the judgment falls under the provisions of OCGA § 9-11-68 (b) (1), then "[t]he court shall order the payment of attorney’s fees and expenses of litigation[.]"¹⁴

When examining the text of a statute to discern its meaning, this Court presumes that the General Assembly "meant what it said and said what it meant."¹⁵ Further, we must view the statutory text contextually in light of its plain and ordinary meaning, "in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage."¹⁶ In that regard, "when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly."¹⁷ It is well settled that in Georgia, a statute providing attorney fees is in derogation of common law and must be strictly construed against awarding such damages.¹⁸

The record shows that in their original complaint, the Appellants asserted tort claims and an equitable claim, and sought punitive damages and attorney fees. The Appellants’ equitable claim for injunctive relief asked the trial court to enjoin, inter alia, the Appellees from channeling and directing water onto the Appellants’ property in a way that would cause additional water or soil deposits onto their property. The Appellants also requested that the trial court order remediation measures to restore the Appellants’ property to its "predevelopment condition[.]"

In its order granting the Appellees’ motion for attorney fees, the trial court found that the Appellants’ injunctive relief claim was "premised entirely on the allegations contained in [the Appellants’] tort claims, including nuisance, trespass, negligence, and negligence per se."¹⁹ According to the trial court, "[c]laims for damages and a claim for equitable relief seeking to prevent the activity causing the damage [were] so intertwined [as] to be different sides of the same coin." The trial court ruled, therefore, that OCGA § 9-11-68 (a) permitted the dismissal of the Appellants’ equitable claim as a "relevant condition" of the settlement offer.

Neither the General Assembly nor the Georgia appellate courts have defined the term, "relevant conditions," as used in OCGA § 9-11-68 (a) (4).²⁰ The Appellants urge this Court to "draw guidance" from Florida courts, asserting that Florida’s offer of settlement statute also has no "provision for including non[-]monetary relief."²¹ To do as the Appellants ask, however, is tantamount to adding language to the statute, which we cannot do.²² If the General Assembly desired to include language in OCGA § 9-11-68 specifying or excluding the types of "relevant conditions" that could be included in the settlement offer, it would have done so.²³

Consequently, under the circumstances presented, we agree with the trial court that the Appellants’ request for injunctive relief was entirely premised on the allegations contained in their tort claims against the Appellees.²⁴ Therefore, we find that the Appellants’ argument lacks merit.

2. The Appellants argue that the trial court focused on "purely subjective evidence" from the Appellees’ counsel and erred in finding that the settlement offers by the Appellees were made in good faith. We disagree.

On appeal, a trial court’s ruling on whether an offer of settlement under OCGA § 9-11-68 was made in good faith is reviewed for abuse of discretion.²⁵ The offeree (aggrieved party) has the burden to show the absence of good faith.²⁶ Relevant evidence on the absence of good faith may include, inter alia, "(1) whether the offer bore no reasonable relationship to the amount of damages[,] (2) [an unrealistic] assessment of liability, or (3) that the offeror lacked intent to settle the claim."²⁷ 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.

It is well settled that,

[i]n explaining that appellate courts defer to trial courts’ rulings on the admissibility of evidence, our Supreme Court has stated, "This is so because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding."²⁸

(a) The Appellants argue that the first offer of settlement in July 2014 by the Appellees was too low and made after only "rudimentary paper discovery" had occurred between the parties. We find that the trial court did not abuse its discretion in rejecting this argument.

The record shows that the Appellants’ complaint was filed on September 6, 2013. The Appellants responded to discovery from Appellee Bord. At the hearing on the motion for attorney fees under OCGA § 9-11-68,...