On December 18, 2002, Cynthia Dowland initiated a tort action against Fowler Properties, Inc., and St. Thomas Square, Ltd. (hereafter “Fowler Properties”) for damages she allegedly sustained when she slipped and fell on ice in a parking lot owned by the defendants. 1 On July 29, 2005, Fowler Properties made an “offer of judgment” pursuant to OCGA § 9-11-68 seeking to settle plaintiffs claims for $20,000. Dowland did not accept the offer, and after 30 days, it was deemed rejected by Fowler Properties. The case went to trial and a jury reached a verdict in favor of Fowler Properties. Dowland filed an out-of-time extraordinary motion for new trial. Fowler Properties filed a motion for attorney fees and expenses of litigation pursuant to *77 OCGA§ 9-11-68, supported by affidavits establishing that defendants had incurred $9,326 in defense of the litigation from the time frame beginning 30 days after the submission of the offer of judgment to final judgment. In a single order, the trial court denied Dowland’s motion for new trial, and despite a finding that the submission of attorney fees was “reasonable,” the court denied the request, ruling sua sponte that OCGA § 9-11-68 is unconstitutional on a variety of grounds. In Case No. S07A0342, Fowler Properties appeals the trial court’s determination that OCGA § 9-11-68 is unconstitutional; in Case No. S07A0777, Dowland appeals from the denial of her motion for new trial. For the reasons that follow, we affirm both cases.
Case No. S07A0342
1. 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, during the pendency of this litigation. The Code section was amended by Ga. L. 2006, p. 447, § 1/HB 239, effective April 27,2006. In pertinent part, OCGA § 9-11-68 (b) (1) provides:
If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant... from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.
Fowler Properties submits that the trial court erred in ruling that OCGA § 9-11-68 violates Art. I, Sec. I, Par. X of the Georgia Constitution as a retrospective application of law which alters vested rights.
“Laws prescribe ... for the future; they cannot impair the obligation of contracts, nor, ordinarily, have a retrospective operation.” OCGA§ 1-3-5____But, a statute does not operate retrospectively in its legal sense simply “ ‘because it relates to antecedent facts, ... it [must be] intended to affect transactions which occurred or rights which accrued before it became operative as such, and which ascribe to them essentially different effects, in view of the law at the time of their occurrence.’ ” Appalachee Enterprises v. Walker,266 Ga. 35 (2) (463 SE2d 896 ) (1995) (quoting Ross v. Lettice,134 Ga. 866 , 868 (68 SE 734 ) (1910)). That is, retrospective *78 operation “ ‘takes away or impairs vested, rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new liability in respect to transactions or considerations already past.’ ” Appalachee Enterprises, supra at 37 (quoting Ross, supra). See also Coastal Ga. Regional Dev. Center v. Higdon,263 Ga. 827 , 830 (2) (439 SE2d 902 ) (1994). But where the statute merely cures defects, enforces existing obligations, or confirms existing rights, it does not impair the substantive rights of the party and is not void. Seaboard Air-Line R. Co. v. Benton,175 Ga. 491 ,498 (3) (165 SE 593 ) (1932); Byers v. Black Motor Co.,65 Ga. App. 773 , 779 (16 SE2d 478 ) (1941).
DeKalb County v. State of Ga.,
In summary, legislation which involves mere procedural or evidentiary changes may operate retrospectively; however, legislation which affects substantive rights may only operate prospectively.
Enger v. Erwin,
When Dowland instituted her tort action on December 18, 2002, the possibility that she may be responsible for paying the opposing party’s attorney fees and expenses of litigation by rejecting an offer of settlement did not exist because OCGA § 9-11-68 did not take effect until more than three years later. OCGA § 9-11-68 (b) (1) does not merely prescribe the methods of enforcing rights and obligations, but rather affects the rights of parties by imposing an additional duty and obligation to pay an opposing party’s attorney fees when a final judgment does not meet a certain amount or is one of no liability. By creating this new obligation, the statute operates as a substantive law, which is unconstitutional given its retroactive effect to pending cases like this one.
Alternatively, Fowler Properties asserts the statute should be upheld given that the legislature explicitly intended for its retroactive application.
2
We reject this argument because “the legislature may not enact a statute to apply retrospectively in violation of our constitutional provision barring retroactive laws.”
Hargis v. Dept. of
*79
Human Resources,
2. Our conclusion that OCGA § 9-11-68 is unconstitutional as a retrospective law “renders it unnecessary to pass upon the other ground[s] of attack upon the constitutionality of this act.”
Floyd County v. Scoggins,
Case No. S07A0777
3. “[I]t is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Citation and punctuation omitted.)
Washington v. State,
A final judgment was entered in this case on October 24, 2005. On November 28, 2005, Dowland filed an “extraordinary motion for new trial,” in which she acknowledged that the time for filing a motion for new trial had expired five days earlier (see OCGA § 5-5-40), and setting forth cause for the late filing.
OCGA § 5-5-41 (a) gives the trial judge the discretion to allow the filing of an extraordinary motion for new trial after the expiration of the 30-day period where “some good reason [is] shown why the motion was not made during such period.” Normally of course, the “good reason” necessary to permit the filing of an extraordinary motion for new trial consists of newly discovered evidence.
Martin v. Children’s Sesame, Inc.,
implicitly granted such permission by expressly recognizing appellant’s pleading as both a request to file an out-of-time motion for new trial and as a motion for new trial, by holding an evidentiary hearing on the merits of the motion for new trial, and by denying the motion for new trial on its merits.
Washington, supra at 656 (1). Thus, we have appellate jurisdiction of the appeal and address the merits. Id.
*80 4. Dowland contends that she is entitled to a new trial because the trial court erred in refusing to answer the following question from the jury during deliberations: “Did Mr. or Mrs. Dowland say that she slipped because of ice?”
Atrial judge may, “in [its] discretion,... permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations. . . . The court may also, in its discretion, refuse such a request.”
Byrd v. State,
“Whether the trial court will require the court reporter to read former testimony is a matter resting in its sound discretion.” [Cit.] It has long been the law in Georgia that a judgment will not be reversed because the trial court declines to aid the jury in recalling the evidence and refuses a request to have certain testimony read back. Byrd[, supra at 782 (1)]; Compton v. State,179 Ga. 560 , 567 (6) (176 SE 764 ) (1934).
Young v. State,
5. We find no error in the court’s refusal to give Dowland’s proposed jury instruction to the effect that an “accumulation of naturally occurring ice does not negate an owner’s duty to exercise ordinary care in inspecting the premises in every circumstance.” The *81 trial court substantially covered the principles embodied in the proposed charge by instructing that:
The defendant is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. This includes inspecting the premises to discover possible dangerous conditions of which the defendant does not have actual knowledge and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or the use of the premises.
In addition, the court charged that a “defendant makes an implied representation that reasonable care has been exercised to make the [premises] safe,” and that “the entering plaintiff is entitled to expect that the defendant has exercised, and will continue to exercise, reasonable care to make the premises safe.”
Where the charge given is an accurate statement of law and substantially covers the principles in the requested charge, failure to give the instructions in the exact language requested is not error.
Roach v. Employees’ Retirement System of Ga.,
Judgments affirmed.
Notes
A third named defendant, Waffle House, Inc., was dismissed as a party to the action by consent order.
The preamble to Senate Bill 3 states the legislative intent that OCGA § 9-11-68 is among those provisions of the Act that “shall apply to causes of action pending on its effective date, unless such application would be unconstitutional.”
The evidence had not yet been transcribed.
Although the jury inquired both as to Mr. and Mrs. Dowland’s testimony, Mr. Dowland’s testimony is omitted from the record on appeal and, therefore, cannot be reviewed.