The opinion
SECOND DIVISION
BARNES, P. J.,
MILLER, and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
June 13, 2013
In the Court of Appeals of Georgia
A13A0223. GEORGIA DEPARTMENT OF CORRECTIONS v.
COUCH
BARNES, Presiding Judge.
David Lee Couch, an inmate at Walker State Prison, was injured while working
on a painting detail at the warden’s house. He filed a complaint for damages against
the Georgia Department of Corrections (“the Department”), which proceeded to trial
and Couch was awarded a jury verdict of $105,417. Couch filed a motion for attorney
fees and expenses pursuant to OCGA § 9-11-68 (b) (2) based on the Department’s
earlier rejection of his pre-judgment offer to settle the claims. Couch had a
contingency agreement with his attorneys to pay them 40% of any recovery plus
reasonable costs, and after the trial court granted the motion for attorneys fees, it
awarded Couch 40 percent of his final recovery and litigation expenses in attorneys
fees.
The Department appeals, contending, among other things, that the trial court
erred when it concluded that sovereign immunity was waived for Couch’s claim
under OCGA § 9-11-68. It maintains that the Georgia Tort Claims Act (“GTCA”),
OCGA § 50-21-20 et. seq., provides a limited waiver of sovereign immunity for torts,
and that there is no express waiver of sovereign immunity for the rejection of a
settlement offer. Upon our review, we affirm.
The underlying facts are more fully set forth in Ga. Dept. of Corrections v.
Couch, 312 Ga. App. 544 (718 SE2d 875) (2011), the case in which we affirmed the
jury verdict. In pertinent part, the evidence showed that Couch was part of a team of
Walker State Prison inmates who were painting the warden’s house. While he was
working, a dry-rotted joist gave way, causing him to fall and land with his legs
straddling a joist. Id. at 545. As a result of the fall, Couch suffered a severed urethra.
Id. Couch filed a premises liability action against the Department for damages for
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physical injuries he sustained, and the jury returned a verdict in favor of Couch in the
amount of $105,417.1 Id.
Before the trial, Couch made a written offer of settlement in the amount of
$24,000, which the Department rejected. After the verdict, which was greater than
125 percent of the offer of settlement, Couch moved for attorney fees and expenses
pursuant to OCGA § 9-11-68, the offer of settlement statute, in the amount of
$104,158.79, based on a hourly rate, despite a contingency fee arrangement for 40
percent of the final recovery. The Department subsequently moved to dismiss
Couch’s claim for attorneys’ fees based on lack of subject matter jurisdiction. It
maintained that the Georgia Constitution only permits recovery of damages against
a state entity resulting from a tort as provided in the GTCA, and that there is no
express waiver contained in the GTCA authorizing the award of attorney fees. In the
trial court’s order denying the Department’s motion and granting Couch attorney fees,
the trial court found that:
1
The case was initially removed to the Northern District of Georgia because
of the inclusion of federal claims brought under 42 U.S.C. § 1983, and after the
District Court granted partial summary judgment to the Department on these claims,
the case was remanded to state court for resolution of the remaining claims.
3
The State has waived sovereign immunity with respect to [Couch’s]
claim for attorneys’ fees and expenses of litigation and therefore [the
Department’s] Motion to Dismiss is DENIED. The Court finds that
[Couch] satisfied the requirements of [OCGA] § 9-11-68, i. e. [Couch]
made an offer of settlement which [the Department] rejected, and
[Couch] subsequently obtained a final judgment that was more than 125
% greater than the offer. Therefore, the Court GRANTS [Couch’s]
Motion for Attorneys’ Fees and Costs of Litigation. The Court finds that
[Couch] had a contingency fee agreement with his attorneys that
required him to pay 40% of any recovery as attorneys’ fees. The ultimate
recovery in this matter, after an appeal, totaled $123,855.65, which
included post-judgment interest and court costs. Therefore, the Court
awards [Couch] $49,542.00 in attorneys’ fees incurred by [Couch]
which represents the 40% contingency fee based on the total recovery
of $123,855.65.
The trial court also awarded Couch $4,782.00 in litigation expenses for a total award
of $54,324.00.
1. The Department first contends on appeal that the trial court erred in denying
its motion to dismiss Couch’s claim under OCGA § 9-11-68 based on sovereign
immunity.
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The party seeking to benefit from a waiver of sovereign immunity
has the burden to establish waiver, and any suit brought to which an
exception applies is subject to dismissal pursuant to OCGA § 9-11-12
(b) (1) for lack of subject matter jurisdiction. The trial court’s ruling on
the motion to dismiss is reviewed de novo, while factual findings are
sustained if there is evidence supporting them.
(Punctuation and footnotes omitted.) Southerland v. Ga. Dept. of Corrections, 293
Ga. App. 56, 57 (666 SE2d 383) (2008).
Regarding the waiver of sovereign immunity under OCGA § 9-11-68, the
Department maintains that the Georgia Constitution clearly provides that the State has
sovereign immunity, except to the extent that the Generally Assembly enacts
legislation that “specifically provides that sovereign immunity is thereby waived and
the extent of such waiver.” Ga. Const.1991, Art. 1, Sec. 2. Par. 9 (e). It further asserts
that the GTCA by its express terms limits its waiver of sovereign immunity to losses
resulting only from “the torts of state officers or employees” subject to certain
exceptions not applicable here, “only to the extent and in the manner provided”
therein, and that the GTCA constitutes the exclusive remedy for any tort committed
by the State. It further maintains that the legislature could have chosen to amend the
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GTCA to waive sovereign immunity for claims for attorney fees and expenses when
it adopted OCGA § 9-11-68, but it chose not to do so.
Under the GTCA, the state waives its sovereign immunity for the torts of state
employees while acting within the scope of their official duties “in the same manner
as a private individual or entity would be liable under like circumstances.” OCGA §
50-21-23 (a). See Lewis v. Ga. Dept. of Human Resources, 255 Ga. App. 805, 806
(567 SE2d 65) (2002). OCGA § 9-11-68 (b) (2) provides that
[i]f 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. 2
Our Supreme Court explained that “[t]he clear purpose of this general law is to
encourage litigants in tort cases to make and accept good faith settlement proposals
2
OCGA § 9-11-68 was enacted as part of the Tort Reform Act of 2005, Ga. L.
2005; it became effective on February 16, 2005. See Fowler Properties, Inc. v.
Dowland, 282 Ga. 76 (1) (646 SE2d 197) (2007). The Code section was amended by
Ga. L. 2006, p. 589, § 1/HB 239, effective April 27, 2006.
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in order to avoid unnecessary litigation.” Smith v. Baptiste, 287 Ga. 23, 29 (2) (694
SE2d 83) (2010). The Court further explained that,
in Georgia, attorney’s fees are recoverable where authorized by some
statutory provision or by contract. OCGA § 9-11-68 is such a statutory
provision authorizing the recovery of attorney’s fees under specific
circumstances. [And] there is no constitutional requirement that
attorney’s fees be awarded only pursuant to OCGA § 9-15-14 or §
13-6-11. . . .
(Citation omitted.) Id. at. 28.
In Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821 (426 SE2d
905) (1992), this Court rejected the notion that a claim for attorney fees against a state
agency pursuant to OCGA § 13-6-11 was barred by sovereign immunity because
there was no specific statutory waiver. In finding that a claim for expenses of
litigation under OCGA § 13-6-11 is not an independent cause of action, we held that
the “statute merely establishes the circumstances in which a plaintiff may recover the
expenses of litigation as an additional element of his damages.” Id. at 826 (5).
Likewise, OCGA § 9-11-68 does not provide for an independent cause of
action, but merely establishes circumstances in the event of the rejection of an offer
of settlement under which attorneys fees shall be paid. Thus, we reject the
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Department’s contention that the claim for attorney fees under the statute is barred by
sovereign immunity.
2. The Department also contends that the trial court erred in failing to prorate
Couch’s contingency fee under OCGA § 9-11-68.app’ts br. 21 It maintains that even
if the attorney fees award were appropriate, the trial court erred by awarding Couch
the full amount of the contingency fee because some of the fees were incurred before
the settlement offer was rejected, and that per OCGA § 9-11-68 (b) (2), Couch was
only “entitled to recover reasonable attorney’s fees and expenses of litigation incurred
from the date of the rejection of the offer of settlement through the entry of
judgment.”
The trial court awarded $49,542.00 in attorney fees which represented 40
percent of the total recovery of $123,855.65. Couch originally sought attorney fees
of more than $99,000, supported by his attorney’s affidavit itemizing the hours
worked and expenses incurred from the date of the rejected settlement offer to the
verdict. Couch asserts that he is entitled to the entire contingency fee because no fee
was due until the jury returned the verdict, which was after the Department rejected
his settlement offer.
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Our Supreme Court has held that when the contingency which fixed an
attorney’s entitlement to a fee is “a jury verdict and judgment,” then the “the right to
a specific amount as a contingent fee was fixed by the judgment.”(Citations and
punctuation omitted.) Greer, Klosik & Daugherty v. Yetman, 269 Ga. 271, 274 (1)
(496 SE2d 693) (1998). However,
evidence of the existence of a contingent fee contract, without more, is
not sufficient to support the award of attorney fees. An attorney cannot
recover for professional services without proof of the value of those
services. A naked assertion that the fees are “reasonable,” without any
evidence of hours, rates, or other indication of the value of the
professional services actually rendered is inadequate.
(Citations and punctuation omitted.) Brandenburg v. All-Fleet Refinishing, 252 Ga.
App. 40, 43 (5) (555 SE2d 508) (2001).
Here, the right to the 40 percent contingency fee was fixed by the judgment
entered on the verdict, and the fee awarded by the trial court reflected that percentage.
Further, the trial court was presented with evidence of the hours worked and rates
charged, substantiating the value and reasonableness of the services thereof. Thus, we
find no error.
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3. The Department also contends that the trial court erred in awarding litigation
expenses for mileage, hotels, and meals, and failing to make findings of fact that such
expenses were reasonable. However, “[b]y its terms, OCGA § 9-11-68 does not
require that the trial court make written findings of fact or conclusions of law unless
the court concludes that an offer was not made in good faith. . . .” Cohen v. The Alfred
& Adele Davis Academy, Inc., 310 Ga. App. 761, 764 (2) (714 SE2d 350) (2011). The
trial court made no such conclusion here, and thus was not required to make findings
of fact.
Here, the trial court’s decision to award Couch attorney’s fees pursuant to
OCGA § 9-11-68 was supported by ample evidence and was not an abuse of
discretion. Great West Casualty Co. v. Bloomfield, 313 Ga. App. 180, 183 (721 SE2d
173) (2011); Cohen, 310 Ga. App. at 763.
Judgment affirmed. Miller and Ray, JJ., concur.
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