Cohen v. ALFRED & ADELE DAVIS ACADEMY, INC.

Citations: 714 S.E.2d 350; 310 Ga. App. 761; 2011 Fulton County D. Rep. 1956; 2011 Ga. App. LEXIS 515Docket: A11A0258

Court: Court of Appeals of Georgia; June 17, 2011; Georgia; State Appellate Court

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Allyson Cohen appeals the trial court's order awarding attorney fees to The Alfred and Adele Davis Academy, Inc. (the Academy) under Georgia's offer of settlement statute, OCGA § 9-11-68. Cohen initially sued the Academy and its headmaster, Steven Ballaban, for slander, later amending her complaint to include additional claims such as tortious interference and fraud. Four months post-filing, the Academy offered a settlement of $750, which Cohen did not accept. After the Academy successfully obtained summary judgment, it sought attorney fees and litigation expenses. Cohen contested the motion, claiming the Academy's offer was not made in good faith but did not argue against the reasonableness of the fees. The trial court awarded the Academy $84,104.63 in fees. Cohen's appeal contends that the trial court erred in finding the offer was made in good faith, citing the Academy's claims of meritlessness, refusal to negotiate, the disparity between the settlement offer and incurred legal fees, and alleged harassment. The court rejected these arguments, affirming the trial court's ruling.

The trial court granted the Academy's motion for summary judgment, leading Cohen to dismiss her appeal, which indicates that her claims lacked merit and evidentiary support. The Academy's willingness to settle Cohen's claims for a nominal amount does not imply bad faith, as it reasonably anticipated minimal exposure. Additionally, the $84,000 in attorney fees incurred by the Academy, which Cohen did not dispute, does not negate the finding of good faith. The purpose of OCGA § 9-11-68 is to encourage good faith settlement proposals in tort cases, a principle upheld by the trial court's decision that the Academy's settlement offer was made in good faith.

Cohen's argument that the trial court erred by not issuing findings of fact and conclusions of law regarding bad faith and attorney fees is rejected. OCGA § 9-11-68(d)(1) requires the trial court to award fees if statutory requirements are met unless it finds a lack of good faith, and it does not mandate written findings unless bad faith is determined. Cohen's request for such findings, based on OCGA § 9-15-14, is found to be invalid.

Moreover, Cohen's claim regarding the retroactive application of the 2005 version of OCGA § 9-11-68, which she argues did not permit fee awards unless a verdict was obtained, is waived as it was not presented in the trial court. Lastly, her assertion that the Academy's motion was untimely is not addressed, as it was not raised at the trial level. The judgment is affirmed.

Cohen did not challenge the Academy's legal fees of $84,000 during the hearing, acknowledging the reasonableness of the expenditure given the number of motions filed. The excerpt references Georgia law, specifically OCGA § 9-11-68, which outlines provisions for settlement offers and the consequences of rejection, including the potential recovery of attorney's fees by the defendant if the plaintiff's final judgment is less than 75% of the rejected offer. The criteria for summary judgment under OCGA § 9-11-56 require the moving party to show there are no material facts in dispute that would warrant a jury's consideration. Additionally, the statute's amendments affect the timeframe for filing motions for attorney's fees, with the current version lacking a specific time limit, unlike the previous version which mandated a 30-day filing window post-judgment. The excerpt also highlights that appellate courts typically do not address issues not raised in the trial court, emphasizing the importance of asserting legal challenges at the trial level.