Kromer v. Bechtel

The trial court properly applied the law in effect when the plaintiff filed suit and when the defendant made his settlement offer.

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Dee Ann Kromer sued Bruce Bechtel after she was injured in an automobile accident. Bechtel offered Kromer $9,000 to settle the case and Kromer did not respond. Accordingly, the offer was deemed rejected and the case went to trial. The jury awarded Kromer $10,000. Bechtel filed a motion for attorney’s fees and expenses under OCGA § 9-11-68 because the judgment obtained by Kromer was not at least 25 percent more favorable than the offer of judgment. Bechtel filed this motion on June 20, 2006. Kromer did not respond to the motion. On May 30, 2007, the trial court, having received no response from Kromer and no request for a hearing, granted the motion. 1. On appeal, for the first time, Kromer claims that it is unconstitutional to apply OCGA § 9-11-68 retroactively, that OCGA § 9-11-68 is unconstitutional in that it violates the fundamental right of access to the courts, and also violates the rights of due process and equal protection. Because Kromer never raised these constitutional issues in the trial court and therefore the trial court has not ruled on them, they cannot be considered when asserted for the first time on appeal but must be clearly raised in the trial court and distinctly ruled upon there. Poppell v. Gault , 278 Ga. 437, 439 603 SE2d 271 2004. Had the constitutional challenge been raised and ruled on in the trial court, and if it presented an unresolved question, jurisdiction of this case would be in our Supreme Court. Osburn v. Goldman , 269 Ga. App. 303, 305 603 SE2d 695 2004.

2. Kromer also claims that the trial court erred in granting Bechtel’s motion for fees and expenses because OCGA § 9-11-68 was amended effective April 27, 2006, to change the percentage that a party must recover in order to avoid assessment of attorney’s fees.1 Kromer argues that under the amended version of the statute, she would not have been required to pay any fees or costs.

Kromer v. Bechtel

The trial court properly applied the law in effect when the plaintiff filed suit and when the defendant made his settlement offer.

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