Trial Practice and Procedure - Bruce P. Brown, Jonathan R. Friedman, Michael R. Boorman, and Benjamin J. Vinson

• Publication year: 2006

Trial Practice and Procedureby Bruce P. Brown^* Jonathan R. Friedman^** Michael R. Boorman^*** and Benjamin J. Vinson^****

I. Introduction

This Article surveys noteworthy cases in the field of civil trial practice during the survey period¹ by the Georgia Supreme Court and the Georgia Court of Appeals and relevant enactments by the Georgia General Assembly. This Article does not address the related and important topic of evidence, which is addressed in a separate survey. After describing relevant legislation, this Article surveys developments in trial practice in the order that they would be encountered in the typical case: pleadings, discovery, motions practice, juries and jury selection, statements and arguments of counsel, trial motions, jury instructions, and verdict forms.

II. Legislation

As compared to the significant changes made to laws affecting trial practitioners during the previous survey period,² the Georgia General Assembly made relatively minor changes to such laws during this survey period. Nonetheless, the following two pieces of legislation are noteworthy.

A. House Bill 239

With the enactment of House Bill 239 ("HB 239"),³ the General Assembly vastly improved the language of the "offer of judgment" rule contained in Official Code of Georgia Annotated ("O.C.G.A.") section 911-68,⁴ which was enacted for the first time in 2005.⁵ Gone are conflicting provisions about the triggering of the obligation of one party to pay the attorney fees and expenses of litigation of another party in certain circumstances.⁶ The law now establishes a clear mechanism whereby defendants and plaintiffs have the ability to make an offer of judgment (or settlement) to an opposing party prior to trial, which might result in recovery of attorney fees and costs incurred after the rejection of the last offer, if certain conditions are met.⁷

Prior to HB 239, subsections (b) and (d) of o.C.G.A. section 9-11-68 established two conflicting methods for calculating whether an offeree would be obligated to pay an offeror's attorney fees and costs.⁸ The confusion arose from the use of the term "more favorable than" in the context of the offer in subsection (b), and the judgment in subsection (d).⁹ Fortunately, with HB 239, the legislature abandoned the "more favorable than" language and replaced it with a more simplified system in which offers by defendants and offers by plaintiffs are addressed in separate subparts.¹⁰

In O.C.G.A. section 9-11-68(b)(1), if a defendant makes an offer that is rejected by the plaintiff, then the defendant shall be entitled to attorney fees and costs incurred after the rejection of the last offer "if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement."¹¹ Thus, if a defendant invokes O.C.G.A. section 9-11-68 with an offer of settlement, the plaintiff must obtain a judgment that is at least seventy-five percent of the value of the defendant's offer in order to avoid sanctions.¹² In other words, to justify the decision to go to trial, the plaintiff must eventually recover an amount relatively similar to the amount offered.

In O.C.G.A. section 9-11-68(b)(2), if the plaintiff makes an offer that is rejected by the defendant, then the plaintiff shall be entitled to recover attorney fees and costs incurred after the rejection of the last offer if "the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement."¹³ Thus, if the plaintiff invokes O.C.G.A. section 9-11-68 with an offer of settlement, then the defendant must prevent the plaintiff from obtaining a judgment that is greater than 125 percent of the value of the plaintiff's offer to avoid sanctions in the form of attorney fees.¹⁴ In other words, to justify the decision to go to trial, the defendant must keep the plaintiff from recovering an amount that is relatively higher than the plaintiff's offer.¹⁵

In addition, HB 239 expanded O.C.G.A. section 9-11-68 by striking language that limited its reach to a "tort claim for money."¹⁶ In so doing, the legislature increased the number of different types of civil actions to which the offer of judgment provisions will apply.¹⁷ And finally, HB 239 added a provision to O.C.G.A. section 9-11-68 whereby an appeal of a final judgment will postpone the payment of attorney fees and costs purportedly owed pursuant to that same final judgment.¹⁸ In this way, a plaintiff or defendant is not obligated to pay attorney fees and costs resulting from an opposing party's successful offer of settlement while the final judgment is under scrutiny.¹⁹ Nor will a plaintiff or defendant be forced to pay any attorney fees or costs resulting from an opposing party's successful offer of settlement if the final judgment is overturned on appeal.²⁰

B. House Bill 1195

House Bill 1195 ("HB 1195")²¹ was also enacted by the General Assembly during this survey period and is important to trial practitioners because it alters two provisions of the "Georgia Civil Practice Act."²² First, HB 1195 changes O.C.G.A. section 9-11-3(b)²³ to require the plaintiff to file the appropriate civil case filing form at the time of filing the complaint.²⁴ Previously, the plaintiff was only required to file the civil case filing form "as soon as practicable thereafter."²⁵ As part of making the civil case filing form mandatory at the time of filing the complaint, the General Assembly also provided the means for the plaintiff to cure mistakes made in the filing of such form.²⁶ If the plaintiff fails to file the form or files a defective form, then the court shall require the plaintiff to either file the form or file an amended form.²⁷ And most importantly, "[i]n no case shall the failure to accurately complete the civil case filing form required by this Code section provide a basis to dismiss a civil action."²⁸

Second, HB 1195 amended O.C.G.A. section 9-11-58(b)²⁹ and made the civil case disposition form a prerequisite to the clerk's entry of judg-ment.³⁰ While prior law required the civil case disposition form to be filed at the time of the filing of the final judgment, the final judgment was not contingent upon the filing of the civil case disposition form.³¹ Current law now simply states that "[t]he entry of the judgment shall not be made by the clerk of the court until the civil case disposition form is filed."³² Finally, trial practitioners should note that the amount of a sealed or otherwise confidential settlement agreement is not required to be disclosed on the civil case disposition form.³³

III. CASE LAW

A. Pretrial Procedure

1. Pleadings

a. Answers. In Shields v. Gish,³⁴ the Georgia Supreme Court, overruling a pair of cases to the contrary,³⁵ held that a defendant could not be held in default for failing to file an answer to an amended complaint, even though the amended complaint was accompanied by a summons.³⁶ The supreme court based its holding on the plain language of O.C.G.A. section 9-11-8(d),³⁷ which states: "Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided."³⁸ The court held that because an answer to an amended complaint is not required under O.C.G.A. section 9-11-15(a),³⁹ the defendant's failure to respond constituted a denial, and thus no default was warranted.⁴⁰

b. Defenses. O.C.G.A. section 9-11-12(h)⁴¹ requires four defenses—personal jurisdiction, venue, process, and service of process—to be raised in the first responsive pleading or be waived.⁴² Cases in the survey period again made it clear that these defenses must be raised explicitly and that pleading the defenses for the first time in an amended pleading is insufficient.⁴³ In Euler-Siac S.P.A. v. Drama Marble Co.,⁴⁴ the court of appeals held that when a resident⁴⁵ defen- dant did not answer the complaint, the defendant waived the defenses of lack of personal jurisdiction and venue, which were based on a forum selection clause.⁴⁶

In a holding of doubtful validity, the court of appeals in Wilson v. 72 Riverside Investments, LLC⁴⁷ held that the defendant waived a defense of lack of subject matter jurisdiction by failing to raise the issue before the trial court.⁴⁸ The jurisdictional defect, according to the defendant, was that the case involved patent law issues "that must be interpreted by a federal court."⁴⁹ "Fairness to the trial court and to the parties," the court of appeals reasoned, "demands that legal issues be asserted in the trial court."⁵⁰ The plain language of the Civil Practice Act⁵¹ and countless decisions establish that the parties may not waive issues relating to subject matter jurisdiction and that the issue of whether the court has the power to adjudicate the dispute is an issue that must be considered at each stage of the litigation.⁵²

c. Amendments to Pleadings. A number of cases in the survey period applied the "relation back" factors of O.C.G.A. section 9-11-15(c).⁵³ "Under the plain wording of O.C.G.A. section 9-11-15(c), the defendant sought to be added must have actual notice of the institution of the action, not merely notice of the incidents giving rise to the litigation."⁵⁴ The failure to seek leave of court before amending an answer to include a counterclaim will authorize the dismissal of the counterclaim with prejudice if the counterclaim is compulsory and without prejudice if the counterclaim is permissive.⁵⁵

d. Joinder of Parties. In Searcy v. Searcy,⁵⁶ the Georgia Supreme Court considered the concept of "complete relief" as a basis for joinder under O.C.G.A. sections 9-11-13(h)⁵⁷ and 9-11-19(a)(1).⁵⁸ In Searcy, a divorce case, the trial court found (1) a portion of the husband's undivided interest in the estates of his late parents could be awarded as alimony and (2) the executors of the estate could be joined as parties to the divorce case.⁵⁹ The supreme court agreed that the husband's interest in the estates could be awarded as alimony⁶⁰ but...