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Fowler Props. Inc. v. Dowland

OCGA § 9-11-68 is unconstitutional as a retrospective law.

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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 plaintiff’s claims for $20,000. Dowland did not accept the offer, and after thirty 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 OCGA § 9-11-68, supported by affidavits establishing that defendants had incurred $9,326.00 in defense of the litigation from the time frame beginning thirty 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 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 which follow, we affirm both cases.

S07A0342

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