Cohen v. ALFRED & ADELE DAVIS ACADEMY, INC.
310 Ga. App. 761
Ga. Ct. App.2011Background
- Cohen sued the Alfred and Adele Davis Academy, Inc. and Ballaban in 2006 for slander and related claims incl. tortious interference, fraud, misrepresentation, undue influence, RICO, and IIED.
- Four months after Cohen's filing, the Academy made a settlement offer of $750 under OCGA § 9-11-68(a); Cohen did not respond.
- The defendants moved for summary judgment, which the trial court granted; Cohen appealed but later dismissed her appeal.
- Following judgment for the defendants, the Academy sought attorney fees and expenses under OCGA § 9-11-68; Cohen did not contest fee reasonableness.
- A hearing led the trial court to award Cohen $84,104.63 in attorney fees and expenses to the Academy, which Cohen appeals.
- Cohen contends (i) bad faith of the offer, (ii) need for findings of fact/conclusions of law, (iii) retroactivity of the statute, and (iv) timeliness of the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the offer was made in good faith | Cohen argues the offer was not in good faith | Academy contends the offer was made in good faith | Offer made in good faith |
| Whether OCGA 9-11-68 requires written findings when good faith is found | Cohen seeks written findings of fact/conclusions of law | No such requirement unless bad faith is found | No written findings required when good faith shown |
| Whether Cohen waived retroactivity challenge | Cohen could claim retroactivity of the 2005 amendment | Retrospectively applying the statute was improper | Retroactivity claim waived |
| Timeliness of the Academy's motion for fees | Cohen argues timeliness issue | Motion timely under OCGA 9-11-68 | Timeliness not addressed on appeal |
Key Cases Cited
- Smith v. Baptiste, 287 Ga. 23, 694 S.E.2d 83 (2010) (interpretation of OCGA 9-11-68 related to fee-shifting)
- Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991) (summary judgment standards and fee considerations)
- O'Leary v. Whitehall Constr., 288 Ga. 790, 708 S.E.2d 353 (2011) (statutory interpretation of 9-11-68 regarding retroactivity)
- Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 693 S.E.2d 99 (2010) (need for written findings when denying fees under 9-11-68)
- Lowery v. Atlanta Heart Assoc., P.C., 266 Ga. App. 402, 597 S.E.2d 494 (2004) (issues of appellate review on fee awards)