Opinion
A20A2074 A20A2075
03-16-2021
KENNISON v. MAYFIELD et al.; and vice versa.
WHOLE COURT
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.
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
DO-076
DO-077
Doyle, Presiding Judge.
Keith Mayfield was killed when his motorcycle collided with Vickie Kennison's car as she made a left turn. Mayfield's widow and his estate filed this action alleging that Kennison was negligent and negligent per se for failing to yield to oncoming traffic. Almost twelve years after the collision, the case was tried before a jury over the course of seven days. The jury returned a verdict awarding the plaintiffs damages of $33,438,267.82 and apportioning three percent of fault to Mayfield and ninety-seven percent of fault to Kennison. The trial court entered judgment on the verdict for $3,213,869.79 on the estate's claim, $29,221,250 on the wrongful death claim, and prejudgment interest and court costs. After a subsequent hearing, the trial court also awarded the plaintiffs $12,751,258.60 in attorney fees and $91,018.36 in expenses under OCGA § 9-11-68, the offer of settlement statute. Kennison appeals in Case No. A20A2074, arguing that the trial court erred by allowing the plaintiffs to question her about her prior traffic citations, driver's license suspension, and DUI arrest. She also argues that the trial court erred in calculating the amount of attorney fees. The plaintiffs cross-appeal in Case No. A20A2075, challenging the apportionment of fault to Mayfield and the admission of certain evidence and a jury charge relating to Mayfield's speed. For the reasons that follow, in Case No. A20A2074, we affirm the verdict, but vacate and remand the trial court's order awarding OCGA § 9-11-68 attorney fees. We affirm in Case No. A20A2075.
After phase two of the trial on attorney fees, the jury declined to award attorneys fees to the plaintiffs pursuant to OCGA § 13-6-11.
The trial court denied the plaintiffs' request for attorneys fees pursuant to OCGA § 9-15-14.
Relevant Facts and Procedural History
Prior to trial, Kennison moved in limine to exclude any reference to her driving record, and the trial court granted the motion, noting that the parties consented in open court to that portion of the motion in limine. The court also granted another of Kennison's motions in limine seeking to bar evidence that she had been involved in any traffic collisions or charged with traffic offenses before or after the collision at issue or that she had a history of careless driving. In its order, the trial court ruled: "After a contested hearing, the Court grants Defendant's [Eighth] Motion in Limine. Neither prior, nor subsequent[] automobile collisions involving the Defendant shall be referenced before the jury." The trial court further specifically directed counsel - in bold type - "to notify the court immediately if there is a violation of a motion in limine so the court may consider curative options."
The relevant portion of this motion in limine states:
Defendant moves that during the trial of this case[,] Plaintiff, Plaintiff[s'] counsel[,] and Plaintiff[s'] witnesses be precluded from making any statements, propounding any questions, or uttering any testimony in the presence of the jury that reveals or suggests the existence of any evidence relating to the Defendant'[s] prior or subsequent traffic citations and/or driving record. Such evidence is completely irrelevant to the issues of negligence in this case. The only purpose of such evidence would be to prejudice the jury. Accordingly, any evidence concerning the Defendant's prior and/or subsequent driving record should be properly excluded. Leo v. Williams, 207 Ga. App. 321 [(428 SE2d 108)] (1993).
The relevant portion of this motion in limine states:
Defendant moves that during the trial of this case Plaintiff, Plaintiff's counsel[,] and Plaintiff's witnesses be precluded from making any statements, propounding any questions[,] or uttering any testimony in the presence of the jury that suggests that [Defendant had] been involved in any traffic collisions prior or subsequent to the collision at issue in this case or that [Defendant had] been charged with traffic offenses prior or subsequent to the collision at issue in this case, or that [Defendant had] a history of careless driving. "Evidence of other crimes, wrongs, or actions shall not be admissible to prove the character of a person in order to show action in conformity therewith... " OCGA § 24-4-404 (b). Evidence of other acts or omissions create a substantial likelihood of prejudicing a jury against the Defendant as to the question of liability in the particular case. Accordingly, a party's negligence or lack of negligence on the occasion at issue in a complaint can be proved only by the facts of the event and not by evidence of her prior driving record or of her general character for carelessness or recklessness in driving. Garner Victory Express, Inc., 214 App. 652 [(448 SE2d 719)] (1994). Based on the foregoing argument and citation of authority, the Defendant hereby moves this Court to order that there be no questions, comments[,] or testimony concerning on any prior or subsequent incidents, traffic violations, complaints, or accidents involving the Defendant. The Defendant further moves the Court to order Plaintiff's counsel to explain this order to Plaintiff and each of Plaintiff's witnesses.
(Emphasis in original.)
At trial, the evidence showed that on March 14, 2007, at approximately 10 p.m., Kennison was driving her car north on State Route 3. She entered the intersection with Talmadge Road, intending to turn left. Mayfield was riding his motorcycle south on State Route 3. As Kennison turned left, she collided with Mayfield's oncoming motorcycle. Kennison did not see Mayfield before the collision, and there was no evidence that either vehicle braked before the collision.
On appeal, we view the evidence in the light most favorable to the jury's verdict. See Almond v. McCranie, 283 Ga. App. 887, 888 (643 SE2d 535) (2007).
Two witnesses who were in a car driving south on State Route 3 noticed Mayfield while they were stopped at a traffic light in front of a Walmart about a mile before the intersection where the collision occurred. When the light changed to green, the witnesses proceeded forward, gaining speed up to between 55 and 65 miles per hour. Mayfield's motorcycle, which also had been stopped at the light, rapidly accelerated from the light and was traveling much faster than the witnesses. One of the two witnesses estimated that Mayfield was traveling well over 80 to 90 miles per hour, and the other estimated that Mayfield was traveling 95 miles per hour. The witnesses watched the motorcycle "continue getting smaller, like down the strip," until it almost disappeared; to them, he never appeared to slow down. The witnesses also saw the headlights of Kennison's car before the wreck. Another witness who had been stopped at the light in front of the Walmart testified that after the light turned green, the motorcycle pulled away from him and began traveling at 85 to 95 miles per hour. The motorcycle never left his sight, and it never appeared to slow down. Before Kennison completed her turn, Mayfield collided with the rear passenger portion of her four door car. There was evidence that Mayfield could have seen the headlights of Kennison's car and perceived the threat the car posed. Mayfield died as a result of the injuries he sustained in the collision.
At the conclusion of the trial, the trial court entered judgment on the jury verdict in favor of the plaintiffs and granted attorney fees to the plaintiffs pursuant to OCGA § 9-11-68. These appeals followed.
Case No. A21A0274
On appeal, Kennison asks this Court to reverse the jury verdict and remand for a new trial based on erroneous evidentiary rulings. She also asks this Court to reverse the trial court's order awarding the plaintiffs attorney fees pursuant to OCGA § 9-11-68. We discern no basis for granting a new trial, but we vacate and remand the attorney fee order.
1. Kennison's challenges to evidentiary rulings. Kennison argues that the trial court erred by allowing plaintiffs' counsel to introduce evidence of her traffic citations, including a citation for speeding on State Route 3, the suspension of her driver's license, and her arrest for driving under the influence of alcohol because it violated the motions in limine, was irrelevant and prejudicial, and could not otherwise be used for impeachment purposes. Based on the record before us, Kennison has failed to demonstrate reversible error.
To address the several related issues before us, we set out the relevant testimony, objections, failures to object, and colloquies chronologically. The plaintiffs called Kennison as their first witness for purposes of cross-examination. Plaintiffs' counsel questioned Kennison about traffic on State Route 3 — the average speed and her own speed in particular.
PLAINTIFFS' COUNSEL: At that time, you were aware that the average speed on State Route 3 — that a lot of people might travel in excess of the posted speed limit, correct? KENNISON: Correct. PLAINTIFFS' COUNSEL: And wouldn't you agree that you, yourself, have traveled over the speed limit on SR 3? KENNISON: Umm — probably. PLAINTIFFS' COUNSEL: And isn't it true that before you'd told us that you had never traveled over the speed — speed limit on Tara Boulevard? KENNISON: I might have told you that. PLAINTIFFS' COUNSEL: Okay. And so . . . but the accurate information is, in fact, that you — KENNISON: I normally drive — PLAINTIFFS' COUNSEL: — you have — you have exceeded the speed limit — either you have or you haven't — might have. That sounds like something that you could — you could probably tell us one way or another. Have you personally — KENNISON: I might have went — PLAINTIFFS' COUNSEL: — exceeded the speed limit — KENNISON: — 58 over the 55 speed limit. PLAINTIFFS' COUNSEL: Okay. So you — you contend the fastest you might have ever traveled on S — State Route 3 would be 58
Defense counsel objected at this point on the grounds of "improper character evidence" and that the evidence of Kennison speeding years before was not relevant because there was no contention that she was speeding at the time of the collision with Mayfield. Plaintiffs' counsel responded that the evidence was relevant to Kennison's ability to understand the speeds of vehicles on the roadway where the collision occurred. The trial court overruled the objection.
Plaintiffs' counsel continued as follows:
PLAINTIFFS' COUNSEL: So — just so we confirm, it's your contention that the fastest you've ever driven on State Route 3 would be 58 in a 55?
KENNISON: Correct.
PLAINTIFFS' COUNSEL: Okay. And you're sure you wouldn't have exceeded more than 58 in a 55 on Tara Boulevard, correct?
KENNISON: That's correct.
Plaintiffs' counsel then asked for a bench conference in order to inform the court that he wanted to introduce a certified copy of Kennison's 3-year-old conviction for driving 74 miles per hour on State Route 3, which has a speed limit of 55 miles per hour. Defense counsel responded that plaintiffs' counsel could not use extrinsic evidence to impeach a witness on a collateral, irrelevant matter. He also argued that the conviction amounted to improper character evidence that suggested Kennison was a dangerous driver. The trial court allowed plaintiffs' counsel to introduce the certified copy of the conviction.
Pretermitting whether the certified copy of the citation was properly admitted, Kennison does not challenge the admission on appeal.
After it was admitted, Kennison admitted having traveled up to 74 miles per hour on Route 3.
PLAINTIFFS' COUNSEL: Okay. And just to confirm, you did actually get cited and pled guilty to traveling 74 miles an hour on — in a 55 mile an hour zone on Georgia 3, —
KENNISON: That is correct.
PLAINTIFFS' COUNSEL: — correct? Okay. Does that — does that help refresh your memory about how fast you might have traveled on Georgia 3?
KENNISON: Yes.
PLAINTIFFS' COUNSEL: Okay. So rather than just 58, you might have had times where you traveled up to 74 miles an hour on Georgia 3, correct?
KENNISON: That's correct.
The cross-examination then turned to arrests. Plaintiffs' counsel asked Kennison whether she had been arrested for that citation, and she responded that she had not. He then asked her whether she had ever been arrested, and she answered no. Defense counsel did not object to either question.
Plaintiffs' counsel then asked to approach the bench, but Kennison continued to speak. The court instructed her to wait, and then, after the bench conference (at which plaintiffs' counsel stated that he wanted to preserve the record to show that Kennison seemed to be changing her answer once he asked to approach her) told her that she could continue her answer. Kennison testified, "Umm — again, I'm bad with dates, and I do remember I was arrested at one point for reckless driving, but I don't remember the dates."
The cross-examination then turned to her other traffic violations and the suspension of her license.
PLAINTIFFS' COUNSEL: Okay. And when you had talked to us in your deposition, you had actually — instead of mentioning that, you had just stated that you had only had three speeding tickets in thirty years, right?Defense counsel did not object to these questions.
KENNISON: I'm assuming that's what I said, yes. I don't recall.
PLAINTIFFS' COUNSEL: And you, in fact, stated that your — your license had never been suspended, right?
KENNISON: They have not ever been suspended, I don't — as far as I remember, no —
PLAINTIFFS' COUNSEL: Okay.
KENNISON: — my not — license has never been suspended.
Plaintiffs' counsel asked for another bench conference. He informed the court that he had certified records showing that, contrary to Kennison's testimony, her driver's license had been suspended, and she had received citations for nine traffic violations.
Defense counsel responded that Kennison's prior driving history was improper character evidence; that plaintiffs' counsel could not use extrinsic evidence to impeach Kennison; that plaintiffs' counsel was bound by Kennison's answer; that the evidence was highly prejudicial; and that the evidence was inadmissible under OCGA § 24-6-613, which concerns prior statements of witnesses. Defense counsel added, "when you're attempting to impeach someone by a prior conviction or other matter — it's probably something that should have been addressed pretrial, and there are some other inquiries the court's [going to] have to make as to whether that would be proper." He then argued that plaintiffs' counsel was improperly trying to bring in irrelevant, prejudicial, improper, character evidence that otherwise would not be admissible under the guise of impeachment. Defense counsel added, "What they cannot do is put these documents into evidence for that effect. They can ask the question, they're bound by the answer, they can't come in and introduce evidence to the contrary."
(Emphasis supplied.)
Plaintiffs' counsel agreed that the documents were not relevant to the issues on trial and were not admissible under certain other theories. But he argued that they were admissible to impeach Kennison. The trial court ruled that plaintiffs' counsel could ask the questions, and if Kennison "[gave] answers otherwise," he could use the documents to refresh her memory; if, on the other hand, she maintained her incorrect answers, the court "very likely" would allow plaintiffs' counsel to introduce the documents for purposes of impeachment.
The following then occurred:
PLAINTIFFS' COUNSEL: And, Ms. Kennison, I just want to make sure we got information correct and I gave you an opportunity to give some corrections, if necessary. Would you — would you agree that your license actually had been suspended for — for a points violation in the past?
KENNISON: Yes.
Defense counsel then requested, and was granted, "a standing objection to this line of questioning." Plaintiffs' counsel then continued.
PLAINTIFFS' COUNSEL: Okay. Would you also agree that you were convicted of a Failure to Obey Signs or Control Devices?Plaintiffs' counsel showed the documents to Kennison, and she admitted to their content.
KENNISON: (No audible response.)
PLAINTIFFS' COUNSEL: I can show this to you, if you'd like.
KENNISON: Sure.
PLAINTIFFS' COUNSEL: Sure. Okay.
KENNISON: If that's what it says, yes, I agree.
PLAINTIFFS' COUNSEL: Okay. Well, is it correct that there are — you'd mentioned that there were three tickets in thirty years and — and it's actually more accurate to say that there were about eight tickets in thirty — wait — well, eight tickets shown just on your driver's report, correct?Plaintiffs' counsel did not introduce the documents into evidence and moved on to different subjects.
KENNISON: Correct.
PLAINTIFFS' COUNSEL: Okay. And those included things such as convictions for speeding and disobeying stop signals, things like that, right?
KENNISON: Correct.
PLAINTIFFS' COUNSEL: Okay. Then that's fine. I — I will move on from that. And — and then in addition, the — the actual arrest that you had, that was actually an arrest for DUI on State Route 3, correct?
KENNISON: Years ago, yes, that is correct.
(a) Violations of motions in limine. As an initial matter, plaintiffs' counsel's questions on cross-examination regarding Kennison's prior driving record, DUI arrest, and suspension of her driver's license violated the ruling on the pretrial motions in limine. But because Kennison did not make a contemporaneous objection on that basis, the violation doesn't mandate reversal.
It is true that "[o]nce the court makes a definitive ruling on the record admitting or excluding any evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve such claim of error for appeal." If, however, a party violates that the ruling, the party that moved to exclude the evidence must make a contemporaneous objection to its admission when the evidence is offered in order to preserve the claim of error for appeal because "[t]he error, if any, in such a situation occurs only when the evidence is offered and admitted."
See OCGA § 24-1-103 (a).
See ML Healthcare Svcs., LLC v. Publix Super Markets, 881 F3d 1293, 1305 (II) (E) (11th Cir. 2018) (quoting the advisory committee notes to Fed. R. Evid. 103, which is nearly identical to OCGA § 24-4-103). See also State v. Orr, 305 Ga. 729, 740 (827 SE2d 892) (2019) ("Where rules in the new Evidence Code are materially identical to Federal Rules of Evidence, we look to federal appellate law, and in particular the decisions of the United States Supreme Court and the Eleventh Circuit, to interpret them, instead of following our own precedent issued under the old Evidence Code.").
And again, in its order, the trial court expressly directed, writing in bold-faced type, that counsel immediately notify the court of any violations of any in limine rulings. Therefore, absent a contemporaneous objection that plaintiffs' counsel was violating the ruling in limine, the mere granting of Kennison's motions in limine did not preserve error for appellate review. Here, defense counsel did not make a contemporaneous objection when plaintiffs's counsel elicited the testimony on cross-examination. Moreover, defense counsel affirmatively stated that plaintiffs' counsel could ask questions about her arrest, her license suspension, and her driving violations other than that for speeding on State Route 3. Based on this record, the fact that the in limine ruling was violated presents no basis for reversal.
Cf. Harvey v. Williams, 354 Ga. App. 766, 769 (1) (a) (841 SE2d 386) (2020) (holding that defendants' failure to contemporaneously object to inflammatory argument prohibited by ruling in limine did not waive error because ruling in limine requiring parties to notify the court of violations pertained to violations concerning testimony and evidence, not argument of counsel). We note that the Supreme Court of Georgia has granted certiorari in Harvey and is "particularly concerned with the . . . issue [of] . . . [w]hether a party must object to argument of counsel that allegedly violates a granted motion in limine in order to preserve the issue for appeal[.]" Williams v. Harvey, 2020 Ga. LEXIS 790 (Case No. S20C1121, decided Oct.ober 19, 2020). See Thomas v. Alligood, ___ Ga. App. ___, ___ (3) (b) (Case No. A20A1950, decided Mar. 4, 2021) (following the holding in Harvey while noting that certiorari was pending in the Supreme Court). See also Larose v. Bank of America, N. A., 321 Ga. App. 465, 468 (740 SE2d 882) (2013) ("[W]e are obligated by statute to decide the case under the current law even though the Supreme Court of Georgia may at some point address the issue raised in [the defendant's] . . . enumeration of error.").
Turning to the specific objections Kennison did make at trial, we find no reversible error.
(b) Evidence of Kennison's speeding on State Route 3. Plaintiffs' counsel questioned Kennison about her knowledge of and personal speeding on State Route 3, but defense counsel waited to object on "improper character evidence" grounds until the sixth such question, which was overruled by the trial court. Having failed to contemporaneously object, Kennison waived any error as to the evidence up to that point.
When Plaintiff's counsel sought to introduce Kennison's three-year-old conviction for speeding, Defense counsel immediately responded that plaintiffs could not use extrinsic evidence to impeach a witness on a collateral, irrelevant matter, arguing that there was no contention that Kennison was speeding at the time of the collision. The trial court overruled the objection, explaining in the order denying Kennison's motion for new trial that "Kennison's own experience with speed on Route 3 was relevant and admissible because it went to her knowledge of the speeds commonly driven on Route 3 and the speeds of vehicles that could be approaching the intersection when turning across Route 3 at the time of the subject collision." Kennison claims on appeal that the evidence was unfairly prejudicial, but at trial she did not specify Rule 403 or mention unfair prejudice as grounds for her objection. Accordingly, "we consider the question not under the ordinary abuse-of-discretion standard, but as a question of plain error."
Our Evidence Code defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OCGA § 24-4-401. The Code provides that "[a]ll relevant evidence [is] admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules[.]" OCGA § 24-4-2. And although "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ," OCGA § 24-4-403, "the exclusion of relevant evidence . . . is an extraordinary remedy that should be used only sparingly." Smith v. State, 302 Ga 717, 724 (3) (808 SE2d 661) (2017). "Decisions regarding relevance are committed to the sound discretion of the trial court. . . ." Venturino v. State, 306 Ga. 391, 395 (2) (b) (830 SE2d 110) (2019).
See Chrysler Group, LLC v. Walden, 303 Ga. 358, 368-369 (II) (A) (812 SE2d 244) (2018).
Id. at 369 (II) (B) (holding that because a party failed to object to the admission of evidence based on OCGA § 24-4-403, "we can only analyze whether the admission of this evidence [on this ground] constituted plain error, not whether it was an 'ordinary' abuse of discretion").
To show plain error, Kennison must show an error or defect that she has not "affirmatively waived," that is "clear or obvious," and that "affected [her] substantial rights" by "affect[ing] the outcome of the trial court proceedings"; if these three requirements are satisfied, this Court has the discretion to remedy the error but we should do so only if it "seriously affect(s) the fairness, integrity or public reputation of judicial proceedings."
(Citations and punctuation omitted.) Gates v. State, 298 Ga. 324, 327 (781 SE2d 772) (2016). See OCGA § 24-1-103 (d).
Considering the issue under the plain-error standard, we cannot conclude that the prejudicial effect of the evidence of Kennison's speeding on State Route 3 so dramatically outweighed its probative value that we must reverse. Kennison's knowledge that drivers speed on State Route 3 was relevant to the issue of her making her left turn, and her credibility — because she was the only eyewitness to the turn to testify — was central to the questions before the jury.
(c) Other evidence of Kennison's driving record. Defense counsel did not object when plaintiffs' counsel questioned Kennison about her arrest for DUI, the suspension of her driver's license, and her traffic citations other than that for speeding on State Route 3. Only when plaintiffs' counsel requested a bench conference at which he informed the court that he had certified records showing that Kennison had not been truthful did defense counsel raise objections touching on these subjects. But he concluded his objection with the statement that, "What they cannot do is put these documents into evidence [to impeach Kennison]. They can ask the question, they're bound by the answer, they can't come in and introduce evidence to the contrary."
(Emphasis supplied.)
Plaintiffs' counsel asked the questions and showed Kennison the documents, but did not introduce them into evidence. As the trial court found in the order denying the motion for new trial, "[u]ltimately, the trial proceeded consistent with [d]efendant's suggested procedure: the questions were allowed to be asked, and the records were not placed into evidence, nor published to the jury." Whether the documents would have been admissible is not before us,and Kennison cannot complain on appeal about these questions because she affirmatively agreed that they could be asked.
See Dyals v. Dyals, 281 Ga. 894, 896 (3) (644 SE2d 138) (2007) (party cannot complain of error induced by his own conduct); Central of Ga. R. v. Ross, 342 Ga. App. 27, 35 (2) (b) (802 SE2d 336) (2017) (same).
(d) Impeachment on cross-examination. Kennison further argues that the plaintiffs could not impeach her false testimony because she gave it on cross-examination in response to improper questions. But Kennison ultimately agreed that plaintiffs' counsel could ask questions about these matters, but could not impeach her untruthful answers by introducing documentary evidence. The questions were asked, but because Kennison's testimony was consistent with the documents, they were not introduced. Thus, Kennison has not shown reversible error.
See Dyals, 281 Ga. at 896 (3); Central of Ga. R. v. Ross, 342 Ga. App. at 35 (2) (b).
Finally, Kennison argues that because her false responses concerned immaterial matters, they were not subject to impeachment, and the impeachment was unduly prejudicial. As detailed above, Kennison agreed that plaintiffs' counsel could ask questions about this evidence. Once defense counsel asked the questions, Kennison gave truthful answers, and he did not attempt to impeach her. Therefore, Kennison has not shown reversible error.
See Hand v. South Ga. Urology Center, P. C., 332 Ga. App. 148, 156-157 (3) (769 SE2d 814) (2015) ("witness may not be impeached based upon a discrepancy relating to a wholly immaterial matter"), overruled in part on other grounds by Phillips v. Harmon, 297 Ga. 386, 393-399 (II) (774 SE2d 596) (2015).
See Dyals, 281 Ga. at 896 (3); Central of Ga. R. v. Ross, 342 Ga. App. at 35 (2) (b).
2. Calculating attorney fees under OCGA § 9-11-68 in the contingency fee context. The trial court awarded $12,751,258.60 in attorney fees under OCGA § 9-11-68, which authorizes an award of attorney fees incurred after the rejection of a good-faith settlement offer under certain circumstances. Kennison challenges that award as unauthorized by law and unsupported by the evidence. We agree.
Here, the injury occurred in 2007, plaintiffs' counsel testified that he was hired in 2008 , the initial complaint was filed in 2009 and renewed in 2014, and the plaintiffs' $1 million settlement offer was made and rejected approximately 7 years later in 2015. Following a jury trial, the $32,878,146.42 judgment against Kennison was entered in 2019. The trial court based its attorney fee award on a 40 percent contingency fee agreement between the plaintiffs and their attorneys and calculated the award by applying 40 percent to the difference between the plaintiffs' $1 million settlement offer and the $32,878,146.42 judgment (i.e., what plaintiffs' counsel characterized as the "value added" to the case by the work they did after the offer was rejected).
Plaintiffs' counsel tendered the offer of settlement on March 3, 2015. By its terms, it expired on April 2, 2015, and was deemed rejected absent timely acceptance.
Relevant to these facts, OCGA 9-11-68 (b) (2) provides:
If 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.
"Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract." Ware v. American Recovery Solution Svcs., 324 Ga. App. 187, 193 (3) (749 SE2d 775) (2013). OCGA § 9-11-68 is such a statute, the purpose of which "is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation." Smith v. Baptiste, 287 Ga. 23, 29 (2) (694 SE2d 83) (2010). "Once a prevailing party demonstrates that OCGA § 9-11-68 applies, the trial court 'shall order the payment of attorney[] fees and expenses of litigation.' Such an award may be disallowed only where the trial court finds the settlement offer was not made in good faith." (emphasis supplied; citation and punctuation omitted.) Anglin v. Smith, __ Ga. App. __ (853 SE2d 142) (2020), citing OCGA § 9-11-68 (d) (2). An award under OCGA § 9-11-68 (b) is not dependent on any explicit finding of bad faith on the part of the party rejecting the offer.
The plaintiffs asserted that the award in this case was a "sanction against the [d]efendant for unreasonably refusing to settle. . . . [Y]ou need to make a real sanction against the insurance companies to control that behavior." And our Supreme Court has stated that the "payments of attorney[] fees and litigation expenses under OCGA § 9-11-68 (b) are not made as compensation for a tort 'claim,' they are made as an incident of a party's inappropriate conduct in the underlying tort action. Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 476 (2) (b) (759 SE2d 804) (2014). But the statute itself contains no requirement that the rejecting party have acted inappropriately before the trial court can award fees. To the contrary, once the offer is shown to have been made in good faith, the trial court has no choice but to award fees even if the party rejecting the offer had valid reasons for doing so. And here, it is not obvious that Kennison exhibited poor judgment in taking the case to trial in light of the evidence of Mayfield's excessive speed and risky operation of his motorcycle after dark.
In determining what fee is reasonable in the context of a contingency fee agreement, the Supreme Court of Georgia, in Ga. Dept. of Corrections v. Couch, explained:
295 Ga. 469 (759 SE2d 804) (2014).
A court may consider a contingent fee agreement and the amount it would have generated as evidence of usual and customary fees in determining both the reasonableness and the amount of an award of attorney fees. When a party seeks fees based on a contingent fee agreement, however, the party must show that the contingency fee percentage was a usual or customary fee for such case and that the contingency fee was a valid indicator of the value of the professional services rendered. In addition, the party seeking fees must also introduce evidence of hours, rates, or some other indication of the value of the professional services actually rendered. Accordingly, 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.Thus, it is the value of the professional services actually performed during the pertinent time frame that guides the analysis, and the Couch decision makes it clear that a contingency fee agreement can inform this analysis to the extent that it is "a valid indicator of the value of the professional services rendered."
(Punctuation omitted; emphasis supplied.) Id. at 483-484 (3) (a), quoting Brock Built, LLC v. Blake, 316 Ga. App. 710, 714-715 (730 SE2d 180) (2012), and Brandenburg v. All-Fleet Refinishing, Inc., 252 Ga. App. 40, 43 (555 SE2d 508) (2001).
(Punctuation omitted; emphasis supplied). Couch, 295 Ga. at 484 (3) (a).
(a) Relevant time frame. As a threshold matter, despite reciting the appropriate standard and time frame and listing evidence relevant to that time frame, the trial court ultimately premised its award based on legal work done on behalf of the plaintiffs prior to the date of the rejection of the settlement offer. As noted in the order, approximately seven years passed, including discovery and the dismissal and refiling of the complaint, prior to the 2015 settlement offer and rejection. Nevertheless, the trial court justified its determination in part by noting that "[p]laintiffs' attorneys have thus far worked for eleven years and have yet to receive any compensation." This eleven-year period included the seven years leading up to the settlement offer. Thus, based in part on the role of the contingency fee agreement in funding the seven years of litigation leading up to the 2015 settlement offer, the trial court concluded that the contingency fee agreement in this case was reasonable.
Couch explicitly rejected this approach:
Couch's [incorrect] approach . . . gives no import to the time limitation set forth in OCGA § 9-11-68 (b) and, contrary to the law . . . places determinative weight on the existence of a contingency fee agreement in the calculation of the reasonable attorney fees due under the offer-of-settlement statute. Under [this erroneous] view, where a contingency fee contract entitled an attorney to payment from his client at the time the judgment was entered (rather than some time thereafter), then based entirely on the existence of that contract between the plaintiff and his lawyer, a defendant would be required to pay for 100 [percent] of the services provided by the lawyer on the matter, even if the lawyer worked intensively for many years on the case before a settlement offer was made . . . and even though the reasonable value of the lawyer's services could not be determined based on the contingency contract.Thus, to the extent the trial court compensated the plaintiffs' attorneys for their work over the entire eleven-year life of the case, it was not consistent with the fee-shifting language in OCGA § 9-11-68 (b), nor with the purpose of the statute.
Id. at 486 (3) (b).
(b) "Value-added" method. The trial court also erred by adopting the plaintiffs' approach to separating out the value of the work done after the settlement offer. In their motion for attorney fees under OCGA § 9-11-68 (b), the plaintiffs argued that their $1 million settlement offer should be set off against the final judgment amount, and this would reveal the value they added to the case by the work performed after the settlement offer was rejected through the date of the judgment. But this ignores the statutory requirement that there must be some basis for valuing the actual work done after the offer is rejected, i.e. the work performed in this case by plaintiffs' counsel between April 2, 2015 and March 11, 2019. As explained in Couch, "[t]he issue in this case is not when and to what extent [the plaintiffs'] attorneys were entitled to recover for their services from [the plaintiffs] according to their contract, but rather when and to what extent they performed services so that fees were incurred on [the plaintiffs'] behalf so that [they] could recover from [the defendant] according to OCGA § 9-11-68 (b)."
Id. at 485 (3) (b).
The amount of the $1 million settlement offer has (or should have) no direct relationship to the amount of work done up to that point; it should represent a measure of the expected damages award based on the plaintiff's injuries and the facts of the case. One may reasonably seek a $1 million settlement based on a relatively small amount of work, or one may reasonably agree to a low settlement despite enormous work if the facts of the case and proceedings lead to that conclusion. Nothing in the "value added" method reveals a reasonable indication of the professional services actually rendered after the rejection of a settlement offer, as Couch requires. Therefore, the plaintiffs' proffered value-added method adopted by the trial court was not a valid method for determining the fee award here.
See id. at 484 (3) (a).
(c) Reasonableness of attorney fee award. Turning to the reasonableness of the amount awarded under OCGA § 9-11-68 (b), any such determination must include an analysis of the value of the actual services rendered after the offer to settle is rejected according to some other evidence of their value. In this case, the trial court relied in part on testimony from the plaintiffs' lead attorney that his usual and customary hourly rate in a case like this one would be $1,900. The trial court accepted this number as reasonable in part because it accounted for the risk that plaintiffs' attorneys undertake when performing legal work on a contingency basis. But this rationale is circular: a $1,900 hourly rate based on a contingency risk is not an hourly rate, it is a contingency fee. It is axiomatic that an hourly rate is billed and payable regardless of outcome. As such, the $1,900 hourly rate as justified by the risk of nonpayment cannot serve as "a valid indicator of the value of the professional services rendered," as Couch requires.
See id. at 485-486 (3) (b).
(Punctuation omitted.) Id. at 483 (3) (a).
A contingency fee agreement is a contract between the lawyer and the client regarding what the client agrees to pay, and what the lawyer agrees to be paid, for the work that the lawyer will do in the matter. Entering such a contract is a gamble for both the lawyer and the client, because the value of the professional services actually rendered by the lawyer may be considerably higher or lower than the agreed-upon amount, depending on how the litigation proceeds. While certainly a guidepost to the reasonable value of the services the lawyer performed, the contingency fee agreement is not conclusive, and it cannot bind the court in determining that reasonable value, nor should it bind the opposing party required to pay the attorney fees, who had no role in negotiating the agreement.
(Emphasis supplied.) Id. at 484 (3) (a). See also Khalia, Inc. v. Rosebud, 353 Ga. App. 350, 359 (836 SE2d 840) (2019) (physical precedent only) ("a trial court's analysis of the amount of attorney fees to be awarded to a plaintiff under OCGA § 9-11-68 (b) (2) should address the reasonableness of the agreed-upon [contingency] fee"), McFadden, C. J., dissenting.
Thus, a contingency fee agreement is not necessarily a reflection of the "value of professional services actually rendered." There is a distinction between the risk/reward bargain made between the client and his or her attorney and the actual value of the professional services rendered by the attorney. It is recovery of the reasonable value of those services, not the contingency fee agreement itself, that is authorized by OCGA § 9-11-68 (b).
Couch, at 295 Ga. at 484 (3) (a).
Nothing in OCGA § 9-11-68 (b) eliminates a client's obligation to pay his attorney the agreed upon contingency fee, assuming it is otherwise an enforceable fee agreement. Our analysis is limited to the authority of a party to force the opposing party to pay "reasonable attorney's fees and expenses incurred," under this Code section.
Furthermore, the record does not support a blanket acceptance of the $1,900 hourly rate proffered by the plaintiffs, which number was essentially a way to arrive at a total hourly fee comparable to the contingency fee. The plaintiffs' own counsel testified, during the bifurcated trial on the plaintiffs' attorney fee claim under OCGA § 13-6-11, that the average hourly rate charged by attorneys in the area would be much less. And at the OCGA § 9-11-68 hearing, Kennison's expert testified that $1,900 was not "a reasonable hourly rate in Atlanta or Georgia, or, frankly, any place I'm familiar with." Plaintiffs' counsel also argued during his direct testimony that $1,900 was not an accurate value as he generates more than $7,000 per hour when evaluating hours that are traditionally billable to the revenue received by his firm in a year. But even assuming a $1,900 hourly rate was reasonable for lead counsel's services, there was no evidence presented of the level of experience, the specific work performed, or the normal hourly rates for the staff and subordinate attorneys who, according to the plaintiffs' attorney, worked half of the hours on the case. Thus, to the extent the award included time for staff and other attorneys, there was no evidentiary support for doing so.
The plaintiffs' witnesses focused on the reasonableness of the 40 percent contingency fee agreement, though one testified she would send her mother to lead counsel and would not think twice about paying $1,900 per hour.
Further, the evidence of time worked was essentially guesswork because plaintiffs' counsel testified that such evidence was unnecessary, and his firm did not keep such records. Rather than attempting to value the services actually rendered, the plaintiffs merely pointed to the fact that they possessed more than 20,000 digital files for the case. Without more, simply possessing a large volume of files and paperwork says nothing about the time spent prosecuting the case after a settlement offer.
In two affidavits filed in support of the motion, plaintiffs' counsel averred nothing more than his belief that the total time invested would be in the thousands of hours. At the hearing, plaintiffs' counsel testified that the case took no less than 4,000 and up to 6,000 hours over the entire case and the other 10 attorneys worked collectively the same amount of hours as he did. He also estimated that 80 percent of the work and 98 percent of the value added to the case took place after the March 3, 2015 offer.
Plaintiffs' counsel did offer to discuss each of the more than 20,000 items listed in the files, but at the trial court's direction, it was decided that if the court needed the additional testimony, it would reconvene.
The plaintiffs' reliance on Home Depot U.S.A. v. Tvrdeich, 268 Ga. App. 579, 584-585 (2) (602 SE2d 297) (2004), is misplaced. First, that case predates Couch and does not address the issues raised by Couch in its holding and analysis. Second, Tvrdeich merely held that the record, when construed in favor of the jury's verdict, provided some evidence that the contingency fee in that case (40 percent of a $1.5 million personal injury verdict) "was a valid indicator of the verdict on" the plaintiffs' fee claim under OCGA § 13-6-11. Even though the evidence as to value was generalized in Tvrdeich, the jury in that case was authorized to weigh the contingency fee and make the award as a proportionately reasonable amount. We do not have such a record here.
The better practice in contingency fee cases is, when anticipating an award under OCGA § 9-11-68 (b), to provide some estimate of the value of legal services actually rendered, as Couch states: "[T]he party seeking fees must also introduce evidence of hours, rates, or some other indication of the value of the professional services actually rendered." This does not amount to a requirement, nor do we impose one, that contingency fee matters must be contemporaneously tracked in a manner similar to the assiduous tenth-of-an-hour record keeping commonly done in matters billed by the hour. But even without such an undertaking, it is feasible without contemporaneous timekeeping to look at the preparation, discovery, motions practice, and hearings that occurred after the settlement offer and determine a reasonable value of the services rendered over the course of those events based on hourly rates generally accepted in comparable cases.
Couch, at 295 Ga. at 483 (3) (a).
Based on OCGA § 9-11-68 and evidence in the record, the trial court's attorney fee award of $12,751,258.57 (calculated without respect to the time limitations set forth in OCGA § 9-11-68 and under a value-added theory as 40 percent of the difference between the $1 million offer to settle and the $32,878,146.42 verdict) was not authorized. Accordingly, the fee award is vacated for recalculation consistent with this opinion under the standard set forth in Couch.
Case No. A20A2075
3. In their cross-appeal, the plaintiffs allege four enumerations of error.
(a) Challenges to the admission of evidence and charging the jury on negligence per se. In two enumerations, the plaintiffs challenge the admission of evidence (one regarding Mayfield's speed and another regarding hearsay evidence in medical records). The plaintiffs specifically condition these two enumerations upon the grant of a new trial in the plaintiffs' appeal in Case No. A20A2074. And a third enumeration challenging the trial court's charge to the jury on negligence per se related to Mayfield's speed is similarly conditioned upon a retrial. Having affirmed the verdict in Division 1, we need not address these enumerations.
(b) Apportionment of fault to Mayfield. In their fourth enumeration, the plaintiffs argue that the evidence was insufficient as a matter of law to support apportioning fault to Mayfield. We disagree.
OCGA § 51-12-33 (a) required the jury to "determine the percentage of fault of the plaintiff. . . ." And "the question as to the sufficiency of the circumstantial evidence, and its consistency or inconsistency with alternative hypotheses, is a question for the jury." We must affirm the jury's verdict on the issue of Mayfield's fault "if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence."
Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232 (367 SE2d 539) (1988).
Golden Isles Cruise Lines v. Lowie, 350 Ga. App. 1, 1-2 (827 SE2d 703) (2019).
The plaintiffs' argument is premised on the assertions that the only negligence that the jury could have attributed to Mayfield was his speeding and that there was no admissible evidence of his speeding. We assume that erroneously admitted evidence is excluded from a sufficiency analysis in civil cases. Regardless, there is no error.
But see Thomas v. State, 308 Ga. 26, 28 (838 SE2d 801) (2020) ("[A] sufficiency review under Jackson [v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)] considers all evidence, whether admissible or not.").
Additionally,
[e]ven an operator of a vehicle having the right of way has a duty to maintain a proper lookout, to remain alert in observing approaching vehicles, and to exercise ordinary care in the control, speed and movements of his or her vehicle to avoid a collision if by ordinary diligence he or she could have seen that one was threatened or imminent.The plaintiffs' expert witness testified that although Mayfield could have seen the headlights of Kennison's car and perceived the threat the car posed, there was no evidence of either vehicle braking. And two of the witnesses who had stopped with Mayfield at the traffic light in front of Walmart saw the lights of Kennison's car before the wreck. "Whether [Mayfield] was negligent in failing to observe that [Kennison] was turning in front of him and to control the speed and movements of his [motorcycle] to avoid the collision [was] a question for the jury." Likewise, given the evidence, it was for the jury to decide whether Mayfield's driving was a contributing factor in causing the wreck. Because Kennison presented some evidence that supported the jury's verdict, we must affirm.
Hite v. Anderson, 284 Ga. App. 156, 158 (643 SE2d 550) (2007).
Hite, 284 Ga. App. at 159.
See Hall v. Massally, 329 Ga. App. 136, 139 (1) (764 SE2d 161) (2014) (plaintiffs' testimony, including that plaintiff driver did not see defendant when he looked back before merging and that defendant was speeding, created a jury question as to whether defendant caused the wreck by speeding).
Judgment affirmed in part and vacated in part, and case remanded in Case No . A20A2074 (Divisions 1 and 2). Judgment affirmed in Case No . A20A2075 (Division 3). Rickman, J., and Colvin, J., concur. Mercier, J., Brown, J., and Pipkin, J., concur in Divisions 1 and 3 and in the judgment only as to Division 2. Dillard, P. J., concurs in Divisions 1, 2 (b) and (c), and 3, and in the judgment only as to Division 2 (a). Hodges, J., concurs in Divisions 1 (c) and (d), 2, and 3; in the judgment only as to Division 1 (a) and (b); and specially. McFadden, C. J., Barnes, P. J., Miller, P. J., Reese, P. J., and Senior Appellate Judge Herbert E. Phipps concur in Divisions 1 and 3 and dissent to Division 2. Markle, J., concurs in Divisions 1 and 3, and in the judgment only as to the dissent to Division 2.