Court of Appeals of Georgia Offers Guidance on Motions for New Trial

The Court of Appeals of Georgia recently held that: (1) an order is not a final order, even it is so aptly titled, when a judge reserves the issues of attorney’s fees – or expenses – for a later date; and (2) all timely filed motions for a new trial shall have an oral hearing. Norrod v. Willingham, A21A0746. 2021 WL 3721143 (Ga. Ct. App. 2021).

O.C.G.A. § 5-5-40 (a) states, “[a]ll motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury.”

The Superior Court Uniform Local Rules also provides:

[U]nless otherwise ordered by the court, that a motion for new trial in a civil action shall be decided by the trial court only after an oral hearing, even if the moving party does not request such a hearing. Moreover, ... if the trial court denies a motion for new trial in a civil case without issuing an order excepting the motion from this procedural requirement, and without holding the mandatory hearing, the error will not be deemed harmless on appeal; instead, the order denying the motion must be reversed and the case remanded with direction that the trial court comply with Rule 6.3 before disposing of the motion.

The Georgia Supreme Court has explained there is no final judgment, and a case remains pending in the trial court when that court has explicitly reserved issues related to costs and attorney fees for future judgment. Islamkhan v. Khan, 299 Ga. 548, 550 (1) (787 SE2d 731) (2016). That is unchanged even when the document is titled a “Final Order.” Id.; see also Norrod, 2021 WL 3721143 at *2.

Therefore, a September 30 filing of a motion for new trial by appellant was timely after a bench trial where the court entered a “Final Order” on August 5 and reserved the issue of attorney’s fees for a further date, which was ultimately decided on August 31. Norrod, 2021 WL 3721143 at *2. Likewise, because the motion was timely, the trial court erred by denying the motion two weeks after the motion was filed without holding a hearing on the merits. Id.

No Reduction Of Damages Against A Single Defendant Based On Allocation Of Fault To A Nonparty

In a case of first impression, the Supreme Court of Georgia held that O.C.G.A. § 51-12-33 does not allow a reduction of damages against a defendant based on the jury’s allocation of fault to a nonparty in a case brought against only one defendant. Alston & Bird, LLP v. Hatcher Management Holdings, LLC, S20G1419, 2021 WL 3501075 (2021). The Court also held that an award for expenses of litigation under O.C.G.A. § 13-6-11 is subject to apportionment under O.C.G.A. § 51-12-33 because it constitutes “damages,” and § 51-12-33 requires an apportionment of the “total damages.” Id.

The apportionment statute has three provisions that govern reduction of damages. Subsection (a) describes what should be done when the plaintiff shares responsibility for the injury or damages:

Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

O.C.G.A. § 51-12-33(a). Subsection (g) further explains that “the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.” O.C.G.A. § 51-12-33 (g). Lastly, subsection (b) provides for situations where someone other than the plaintiff shares responsibility with a named defendant for the injury or damages:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

O.C.G.A. § 51-12-33(b).

Subsection (a) of the apportionment statute provides that “[w]here an action is brought against one or more persons for injury to person or property,” the total amount of damages otherwise awarded to the plaintiff shall be reduced in proportion to the plaintiff’s fault. O.C.G.A. § 51-12-33(a). Subsection (b), at first glance, appears to serve a similar function as to the fault of others: it requires damages to be apportioned “among the persons who are liable according to the percentages of fault of each person.” O.C.G.A. § 51-12-33(b). But subsection (b) has a critical textual difference from subsection (a): although subsection (a) applies “[w]here an action is brought against one or more persons,” subsection (b) applies only “[w]here an action is brought against more than one person ....” Id.

Therefore, the Court emphasized that "Subsection (b) authorizes the trier of fact to apportion its award of damages among the persons who are liable according to the percentage of fault of each person." Alston & Bird, 2021 WL 3501075 at *4 (internal citations omitted). However, the court determined that “persons who are liable” includes only named defendants. Id.

Alston & Bird argued that Subsection (c) authorized a reduction in damages against them. However, "subsection (c) itself provides only that the trier of fact must consider nonparty fault when determining percentages of fault." Alston & Bird, 2021 WL 3501075 at *5 (emphasis in original). "And the only situations in the apportionment statute where percentages of fault are used to apportion damages are under subsection (a), which considers only plaintiff fault, and subsection (b), which applies only in cases with multiple defendants." Id. As such, there is no authority in the statutory framework that allows for reduction in damages according to percentage of fault allocated to non-parties in cases with a single defendant. Id.

Lastly, the Supreme Court of Georgia held, damages awarded under O.C.G.A. § 13-6-11 may be apportioned as provided in the apportionment statute, unless the nature of such damages is such that apportionment is legally or factually impossible. O.C.G.A. § 13-6-11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

O.C.G.A. § 13-6-11. Because the text of O.C.G.A. § 13-6-11 defines expenses of litigation awarded under that statute as “damages,” such awards necessarily are part of the “total amount of damages to be awarded” and thus are subject to apportionment under OCGA § 51-12-33. Alston & Bird, 2021 WL 3501075 at *7.

Arbitration Clause Must Be Initialed By All Parties in Georgia

The Court of Appeals of Georgia clarified that arbitration clauses must be initialed by every signatory to an agreement. Vasudeva v. Dagnew, A21A0866, 2021 WL 3417474 (Ga. Ct. App. 2021). Specifically, initialing every page is not sufficient to comply with the Georgia Arbitration Code. Id.

Whether a valid and enforceable arbitration agreement exists is a question of law. O.C.G.A. § 9-9-2(c)(9). Further, the Georgia Arbitration Code is in derogation of the common law and must be strictly construed. Progressive Data Systems v. Jefferson Randolph Corp., 275 Ga. 420, 420, 568 S.E.2d 474 (2002). The Georgia Arbitration Code applies:

[T]o all disputes in which the parties thereto have agreed in writing to arbitrate and shall provide the exclusive means by which agreements to arbitrate disputes can be enforced, except the following, to which this part shall not apply...

Any contract relating to terms and conditions of employment unless the clause agreeing to arbitrate is initialed by all signatories at the time of the execution of the agreement.

Id. The purpose of the requirement is to ensure that signatories are not compelled to give up their common law right of access to the courts unless they specifically acknowledge the intent to do so by initialing the arbitration clause. Pinnacle Constr. Co. v. Osborne, 218 Ga. App. 366, 368 (3), 460 S.E.2d 880 (1995).

The Court found that Subsection (c)(9) expressly requires that the arbitration clause be initialed, not the bottom of the page with the arbitration clause. Therefore, Subsection (c)(9) is not met if every page of the agreement is initialed, and the arbitration clause is therefore unenforceable. This is true even where the only thing on the page is the arbitration clause. Therefore, you should either only initial the page with the arbitration clause, or if you initial every page, initial the page containing the arbitration clause with one initial being next to or near the clause itself.