O'Leary v. Whitehall Construction
288 Ga. 790
Ga.2011Background
- O'Learys filed a August 2005 trespass and nuisance action alleging excessive storm water runoff from construction on Whitehall's adjacent lot affected their property in 2004-2005.
- In October 2006, Whitehall offered $40,000 to settle under OCGA § 9-11-68(a); offer was rejected.
- A jury returned a defense verdict; final judgment entered October 4, 2007; O'Learys moved for a new trial on October 29, 2007.
- December 31, 2009, trial court denied any award of fees under OCGA § 9-15-14 but granted reasonable fees and expenses totaling $60,291.52 under OCGA § 9-11-68(b)(1).
- The O'Learys appealed within 30 days of the December 2009 order; appellees cross-appealed.
- The Court held it lacked jurisdiction to review the March 2009 denial of the motion for new trial, and could only review the December 31, 2009 fee order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the March 2009 denial of the motion for new trial properly appealable? | O'Learys contended timely appeal from the March 2009 order. | The March 2009 order was not timely appealable. | Court lacked jurisdiction to review March 2009 order; only the December 31, 2009 fee order is appealable. |
| Which version of OCGA § 9-11-68 applies to fees? | Original 2005 version should apply since action began then. | Amended 2006 version should apply since offer occurred during 2006. | The 2006 version applies; retroactivity not needed because outcome (fees from rejection) remains; no substantive change impacts result. |
| Did the trial court abuse its discretion in denying OCGA § 9-15-14(b) fees? | Cross-appellants prevailed on some issues; fees should be awarded. | No substantial justification for fees given partial success and unresolved issues. | No abuse; denial of fees under OCGA § 9-15-14(b) affirmed. |
Key Cases Cited
- Veasley v. State, 272 Ga. 837 (2000) (duty to raise jurisdiction when doubt exists)
- Rowland v. State, 264 Ga. 872 (1995) (30-day appeal period; tolling rules)
- Hill v. Buttram, 255 Ga.App. 123 (2002) (fees under 9-15-14 do not toll appeal time)
- Gantt v. Bennett, 231 Ga.App. 238 (1998) (9-15-14(b) fees; partial success may preclude award)
- Porter v. Felker, 261 Ga. 421 (1991) (unusual circumstances review standard for fees)
- DeKalb County v. State of Georgia, 270 Ga. 776 (1999) (retroactivity limits; curing defects or confirming rights)