Salon Baptiste and Cheryl Baptiste Appellees filed a complaint for damages against Chuck Smith and WQXI 790 AM Appellants, based on allegedly defamatory statements made by Smith and broadcast by WQXI. Pursuant to OCGA § 9-11-68 a, Appellants offered to settle the case for $5,000. Appellees did not respond to the offer, which was deemed a rejection under OCGA § 9-11-68 c. The trial court subsequently granted Appellant’s motion for summary judgment as to all counts of the complaint. Appellants moved for attorney’s fees pursuant to OCGA § 9-11-68 b 1. After a hearing, the trial court denied the motion for attorney’s fees on the ground that OCGA § 9-11-68 violates the Georgia Constitution. This appeal followed. 1. OCGA § 9-11-68 was enacted as part of the Tort Reform Act of 2005. Fowler Properties v. Dowland , 282 StateplaceGa.76, 77 1 646 SE2d 197 2007. It provides that either party may serve upon the other party a written demand or offer to settle a tort claim for a specified amount of money. OCGA § 9-11-68 a. Moreover, if either party’s settlement demand or offer is rejected, that party may be entitled to recover attorney’s fees pursuant to OCGA § 9-11-68 b, which provides: 1 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 or on the defendant’s behalf 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. 2 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. This Court has previously concluded that OCGA § 9-11-68 b 1 is unconstitutional as a retrospective law, but has found it unnecessary to pass on other attacks upon the constitutionality of that code section. Mikesell v. RP Motorsports , 283 StateplaceGa.476, 477 660 SE2d 534 2008; Fowler Properties v. Dowland , supra at 79 2.
In this case, the trial court ruled that OCGA § 9-11-68 impedes access to the courts and thus violates Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983, by depriving tort litigants of the right to pursue their causes of action. Art. I, Sec. I, Par. XII provides that “no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Contrary to the finding of the trial court, this Court has held that Art. I, Sec. I, Par. XII was never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representation by counsel. Couch v. Parker , 280 StateGa.580, 581 1 630 SE2d 364 2006; State of State Ga.v. Moseley, 263 StateplaceGa.680, 682 3 436 SE2d 632 1993; Nelms v. Georgian Manor Condo. Assn. , 253 StateplaceGa.410, 412-413 2, 3 321 SE2d 330 1984. “Thus, there is no express constitutional ‘right of access to the courts’ under the Georgia Constitution. Cits.” Couch v. Parker , supra.
