Bell v. Waffle House, Inc.
331 Ga. App. 443
| Ga. Ct. App. | 2015Background
- Bell sued Waffle House after an altercation and his subsequent arrest; Waffle House made a $25,000 OCGA § 9-11-68 offer which Bell rejected.
- Waffle House moved for summary judgment; the trial court granted it, and the Court of Appeals affirmed under Rule 36; Georgia Supreme Court denied certiorari.
- After remittitur, Waffle House sought attorney fees under OCGA § 9-11-68(b)(1), submitting billing records and an affidavit from lead counsel attesting to fees and reasonableness.
- Bell filed a two-page response arguing deficiency because only one attorney’s affidavit was submitted and citing Oden; he did not dispute hourly rates, time billed, or request a hearing.
- The trial court awarded $27,276.37 in fees and expenses without an evidentiary hearing; Bell appealed solely arguing the court erred by entering the award without a hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a hearing was required before awarding fees under OCGA § 9-11-68(b)(1) | Bell: trial court erred by awarding fees without an evidentiary hearing; affidavit from single attorney was insufficient (procedural defect) | Waffle House: statute does not expressly require a hearing; one affidavit from lead counsel suffices under business records exception | Court: even if statute silent, hearing is not required here because Bell waived any right to a hearing by not contesting reasonableness, not requesting a hearing, and raising only a procedural objection |
Key Cases Cited
- Oden v. Legacy Ford-Mercury, 222 Ga. App. 666 (Ga. Ct. App.) (billing affidavits by each attorney frequently required)
- Evers v. Evers, 277 Ga. 132 (Ga.) (a hearing required to determine attorney fees under certain fee statutes)
- Green v. McCart, 273 Ga. 862 (Ga.) (statutory interpretation principles regarding omitted language)
- Munoz v. American Lawyer Media, 236 Ga. App. 462 (Ga. Ct. App.) (timely specific objection to amount/necessity of fees can preclude waiver)
- Williams v. Becker, 294 Ga. 411 (Ga.) (good practice to request a hearing to avoid waiver)