Georgia Supreme Court Upholds Offer of Settlement Statute in Nuisance Case

In the opinion in the case titled O'Leary v. Whitehall Construction, Appeal Case No. S10A144 (Georgia Supreme Court, March 18, 2011) (the "Whitehall Case"), a unanimous court affirmed an award of attorneys' fees under O.C.G.A. Section 9-11-68, the Georgia Offer of Settlement Statute, to the defendants - a builder and lot owner and one of its limited liability company members - who were accused of flooding the property of an adjacent downhill neighbor with sediment and stormwater during construction of a home in 2004.

In the Whitehall Case, the defendants won a jury verdict of no liability.  The Plaintiffs had argued for more than $250,000 in damages and fees after their property flooded during the heavy rains of the Summer of 2004, which included rains from Hurricane Ivan.  After the defense verdict, the defendants moved for fees under the Offer of Settlement Statute adopted by the Georgia General Assembly in 2005 and modified in 2006, and the trial judge in Forsyth County Superior Court awarded the defendants $60,291.52 for their fees incurred subsequent to rejection of the offer of settlement.



The Whitehall Case involved pure tort claims with no claims based on covenants or declarations thereby permitting the application of 9-11-68, which only applies in tort cases and does not apply in contract cases.

The court also rejected the plaintiffs' attempts to reverse the underlying verdict in the case.  The plaintiffs had attempted to argue the trial court had committed error because it allowed the introduction of evidence of the unreasonableness of the plaintiffs.  Georgia law provides that a nuisance only occurs when it interferes with a reasonable plaintiff's property rights.  The defendants introduced evidence at trial that the plaintiff had a history of erratic behavior in connection with his property.  The Georgia Supreme Court held that it did not have jurisdiction to consider the alleged error because the appellant plaintiffs had failed to file a notice of appeal within thirty (30) days of the trial court's denial of the motion for new trial.  The court held that 9-11-68 does not extend the time for appealing underlying orders until after the ruling on the 9-11-68 motion, which has important implications for post trial strategies.  The author of this blog defended the case for the builders, and many of the details offered in this analysis are not apparent in the face of the opinion.