FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
April 26, 2019
In the Court of Appeals of Georgia
A19A0337. STRATEGIC LAW, LLC v. PAIN MANAGEMENT &
WELLNESS CENTERS OF GEORGIA, LLC et al.
BROWN, Judge.
This is the second appearance of this case before this Court involving a consent
agreement settling an underlying lawsuit for breach of contract and fraud filed by
Strategic Law, LLC against its former clients, Pain Management & Wellness Centers
of Georgia, LLC, and Isaac Cohen (collectively “Pain Management”). See Strategic
Law v. Pain Mgmt. & Wellness Centers of Ga., 343 Ga. App. 444 (806 SE2d 880)
(2017) (“Strategic I”). Following a hearing after remittitur, Strategic Law appeals the
trial court’s rulings on its motions for attorney fees pursuant to the consent agreement
and OCGA § 9-11-68. For reasons that follow, we affirm in part, reverse in part, and
remand the case with direction.
A detailed history of this case may be found in Strategic I. For purposes of this
appeal, it is necessary to point out that after Pain Management failed to make a timely
payment under the consent agreement, Strategic Law moved to enforce the consent
agreement, and also filed a motion for attorney fees pursuant to the terms of the
consent agreement and motion for attorney fees under OCGA § 9-11-68. The trial
court denied the motion to enforce the agreement as moot because Pain Management
had paid the balance owed under the agreement, and denied both motions for fees. In
its first appearance, we reversed the denial of the motion for fees filed pursuant to the
consent agreement, concluding that it was an enforceable contract, and remanded “for
the trial court’s determination of the amount of reasonable fees to be awarded to
Strategic Law under this motion.” Strategic I, 343 Ga. App. at 447 (a). With regard
to the fees under OCGA § 9-11-68, we found erroneous the trial court’s conclusion
that the statute did not apply to consent judgments, and we “reverse[d] and
remand[ed] . . . for a hearing to reconsider Strategic Law’s claim” under the statute.
Id. at 343 Ga. App. at 449 (b).
Following remittitur, the trial court held a hearing as instructed. At the hearing,
Strategic Law argued that it was entitled to attorney fees in the amount of $7,937
related to enforcing the consent agreement. That amount included time spent
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preparing the motion, as well as appearances in court after the appeal.1 Strategic Law
also argued that under OCGA § 9-11-68 it was entitled to $88,190.75 in attorney fees
incurred after Pain Management rejected its offer of settlement.
The trial court awarded $3,060 to Strategic Law for attorney fees incurred in
connection with the motion to enforce through the time of its first order at issue in
Strategic I. It declined to award fees incurred after its first order because those fees
were not caused by Pain Management; rather, the fees were caused by Strategic Law’s
appeal of the original order and this Court’s remand. As for the motion to award fees
under OCGA § 9-11-68, the trial court denied any amount, reasoning that the offer
of settlement did not meet all the statutory requirements,2 was made in bad faith, and
that the fees sought were excessive.
1
Strategic Law did not request fees incurred on appeal.
2
Specifically, the trial court ruled that the offer of settlement did not state with
particularity the amount proposed to settle the punitive damages claim, OCGA § 9-
11-68 (a) (6), and contained ambiguities and uncertain terms in violation of OCGA
§ 9-11-68 (a) (2), (4). For example, the offer excluded claims for attorney fees, costs,
and prejudgment interest, but also offered to dismiss the case with prejudice, and did
not specifically identify the party or parties receiving the offer, simply noting
“Defendant.”
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1. In its first enumeration of error, Strategic Law contends that by refusing to
award the attorney fees incurred after its original order, the trial court erroneously
disregarded the parties’ agreement. We agree.
As set out in Strategic I, the judgment enforcement agreement/payment
agreement provided:
The Parties agree that time is of the essence, and that the failure of
Strategic Law to actually receive the amounts specified above on the
dates and in the manners identified above shall serve to nullify this
Agreement, requiring payment in full of all remaining amounts
immediately, and entitling Strategic Law to its reasonable attorneys’ fees
and costs in enforcing the same.
(Punctuation omitted.) 343 Ga. App. at 445. “In Georgia, it is the function of the court
to construe [a] contract as written and not to make a new contract for the parties.”
(Citation and punctuation omitted.) Waste Mgmt. of Metro Atlanta v. Appalachian
Waste Systems, 286 Ga. App. 476 (649 SE2d 578) (2007). “[P]arties to a contract may
establish by its terms any subject matter in which they have an interest so long as it
is not prohibited by statute or public policy.” Hope & Assoc. v. Marvin M. Black Co.,
205 Ga. App. 561 (1) (422 SE2d 918) (1992). Attorney fees are one such subject
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matter: “[A]ttorney[] fees are recoverable . . . when authorized by statute or by
contract.” (Citation and punctuation omitted; emphasis in original.) Id.
Strategic Law argues that the trial court erred by denying its request for
additional fees incurred after remittitur as well as fees incurred by its other counsel
“before and after appeal.” In support of this argument, it points out that “[n]owhere
in the contract between the parties is there any allocation-of-fault, because-of-the-
Defendants, or any equivalent language as a condition of the payment of attorney[]
fees.” Strategic Law asserts that “the trial court simply grafted [this condition] into
the parties’ agreement without any basis in the agreement’s language or any stated
legal reasoning.” We agree.
The parties agreed that time was of the essence and that Pain Management’s
failure to make timely payment would entitle Strategic Law to its reasonable attorney
fees and costs in enforcing the parties’ agreement. Where the parties contract for
attorney fees, the courts will enforce that agreement. See Johnson Real Estate
Investments v. Aqua Indus., 282 Ga. App. 638, 643 (4) (639 SE2d 589) (2006). In this
case, the trial court erred by failing to enforce Pain Management’s promise to pay
Strategic Law reasonable attorney fees and costs in enforcing the consent judgment.
Accordingly, we reverse the trial court’s denial of attorney fees incurred by Strategic
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Law after the trial court’s original order, and remand the case with direction that the
trial court grant Strategic Law’s request for reasonable attorney fees and costs
incurred after the superior court received the remittitur following the first appeal,
including any reasonable fees charged by Strategic Law’s other counsel. While we
note that our remand instruction in Strategic I instructed the trial court to determine
“the amount of reasonable fees to be awarded to Strategic Law under this motion,”
the trial court interpreted our instruction too narrowly by limiting the amount of fees
to those incurred before its first order. (Emphasis supplied.)
2. Strategic Law next argues that the trial court erred in denying its motion for
fees pursuant to OCGA § 9-11-68, maintaining that there was a valid offer of
settlement on which a judgment was obtained and that, therefore, the trial court erred
in ruling that the offer of settlement did not meet all the statutory requirements, was
made in bad faith, and that the fees sought were excessive. We disagree.
Pretermitting whether the offer of settlement met the statutory requirements,
we find no abuse of discretion in the trial court’s additional finding that the offer was
not made in good faith. The offer of settlement statute, which applies to this case as
explained previously, provides that either party may serve upon the other party a
written demand or offer to settle a tort claim for a specific amount of money.
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(Emphasis supplied.) OCGA § 9-11-68 (a). If such demand or offer is rejected, the
rejected party may be entitled to recover attorney fees “if the final judgment varies
sufficiently from the offer or demand.”3 (Citation and footnote omitted.) Great West
Cas. Co. v. Bloomfield, 313 Ga. App. 180, 181 (721 SE2d 173) (2011).
If a party is entitled to recover attorney fees and expenses of litigation
because the judgment meets the requirements of OCGA § 9-11-68 (b),
the court may determine that a settlement offer was not made in good
faith in an order setting forth the basis for such a determination. In such
case, the court may disallow an award of attorney fees and costs. OCGA
§ 9-11-68 (d).
(Punctuation omitted.) Id. This Court generally reviews awards of attorney fees for
an abuse of discretion. See Rogers v. Baliles, 333 Ga. App. 725 (776 SE2d 659)
(2015). We use the same standard to review a trial court’s decision on whether a
settlement offer was made in good or bad faith. See Bloomfield, 313 Ga. App. at 181.
3
“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.” OCGA § 9-11-68 (b) (2).
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In reaching its conclusion that Strategic Law’s offer of settlement was not
made in good faith, the trial court noted that (1) Strategic Law added a last-minute
claim for fraud even though the case was “essentially one for breach of contract,” and
(2) the consent judgment was only $5 more than the amount required to invoke the
attorney fees provision. The trial court further concluded that “awarding almost
$90,000 in fees incurred to collect a $3,700 contract claim would be unreasonable and
punitive.” Despite Strategic Law’s arguments to the contrary, we cannot conclude in
this case that the trial court abused its discretion in deciding not to award attorney
fees pursuant to OCGA § 9-11-68.4
Judgment affirmed in part and reversed in part, and case remanded with
direction. Barnes, P. J., and Mercier, J., concur.
4
Pursuant to this Court’s order granting Strategic Law an extension of time to
file its brief and enumerations of error, Pain Management’s brief was due on
November 5, 2018. Pain Management filed its brief on November 5, 2018, but the
submission was rejected for failure to comply with Court of Appeals Rule 24. Pain
Management refiled its brief and proper Rule 24 certification on November 6, 2018.
Strategic Law moves to strike Pain Management’s brief as being untimely filed. In
the alternative, Strategic Law moves that we not consider the brief. Strategic Law’s
motion is denied.
Strategic Law has also filed a brief in opposition to Pain Management’s motion
to file a supplemental brief because the motion was filed without leave of Court in
violation of Court of Appeals Rule 27 (a). Because we did not consider the
supplemental brief in reaching our decision, this motion is denied as moot.
8