Olarsch v. Newell

Fowler Props. v. Dowland, 282 Ga. 76 2007, ruled that retroactive application of an attorneys' fee and costs award pursuant to O.C.G.A. § 9-11-68 during the time frame at issue here was unconstitutional.

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Jeffrey G. Olarsch appeals the order of the trial court awarding attorney fees and costs of litigation pursuant to OCGA § 9-11-68, and the order dismissing his appeal of the defense verdict. The underlying renewal action was filed in May of 2004 and arose from a 2000 car accident involving Olarsch and Billy Greg Newell. For the reasons that follow, we reverse the award of attorney fees and costs and remand for further proceedings. We affirm the order dismissing the notice of appeal. The trial resulted in a defense verdict for Newell on October 6, 2006, and Newell moved for attorney fees under OCGA § 9-11-68. On November 6, 2006, Olarsch filed a motion requesting an extension of time to file a motion for a new trial and for judgment notwithstanding the verdict “JNOV”. The trial court entered judgment on November 8, 2006. On November 20, 2006, Olarsch filed a document designated as a “combined preliminary rule 9-15-14 motion, motion for an expansion of time to file a more particularized motion and supplemental 6 November 2006 combined motions.”

By order dated November 30, 2006, the trial court set a hearing on the motions for new trial and attorney fees for February 22, 2007. On February 20, Olarsch’s attorney faxed to the court and Newell an emergency motion requesting a continuance of sixty days. Counsel noted that he had several health issues, including “possible cancer” and a seriously injured lower back. He included a no-work slip from his doctor dated February 12, 2007, which stated that counsel could not work until February 26, 2007. The parties were apparently verbally instructed that the hearing would proceed as scheduled, and neither Olarsch nor his counsel were present at the hearing.

Olarsch v. Newell

Fowler Props. v. Dowland, 282 Ga. 76 2007, ruled that retroactive application of an attorneys' fee and costs award pursuant to O.C.G.A. § 9-11-68 during the time frame at issue here was unconstitutional.

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