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Bell v. Waffle House, Inc.

Court of Appeals of Georgia

March 20, 2015

BELL
v.
WAFFLE HOUSE, INC

Offer of settlement. DeKalb Superior Court. Before Judge Adams.

Stevens, Stevens & Oliver, Ronald S. Stevens, Andrew M. Stevens, for appellant.

Moore Ingram Johnson & Steele, Robert D. Ingram, B. Chase Elleby, for appellee.

OPINION

Page 133

Doyle, Presiding Judge.

Plaintiff George Bell appeals from the trial court's award of attorney fees and litigation expenses under OCGA § 9-11-68 (b) (1), contending that the trial court erred by entering such an award in favor of defendant Waffle House, Inc., without holding an evidentiary hearing. For the reasons that follow, we affirm the award.

The record shows that Bell sued Waffle House after he was arrested following an altercation with a Waffle House waitress who alleged that Bell threw a plate at her. Pursuant to OCGA § 9-11-68, Waffle House tendered Bell an offer to settle the case for $25,000, but Bell rejected the offer, so Waffle House moved for summary judgment, which motion was granted by the trial court. Bell appealed that order, [331 Ga.App. 444] and this Court affirmed the judgment without opinion pursuant to Court of Appeals Rule 36.[1] Bell petitioned the Supreme Court of Georgia for certiorari to review that decision, and the Supreme Court unanimously denied his petition.[2]

Upon remittitur, Waffle House moved the trial court for an award of attorney fees pursuant to the offer of settlement provision in OCGA § 9-11-68 (b) (1). Waffle House attached exhibits showing that Bell had rejected its offer as well as an affidavit attesting to the amount of and reasonableness of legal fees and expenses incurred by Waffle House shown in attached billing records. Bell filed a two-page written response that reads in its entirety as follows:

Waffle House has failed to submit an affidavit for each attorney [for whom] it is seeking attorney fees. Waffle House has only submitted the affidavit of Robert Ingram. Waffle House has failed to submit the affidavits for Ryan Ingram, Shane Mayes, Tammi Brown and Angela H. Smith. " Each attorney for whose service[s] compensation is sought must provide admissible evidence of fees in the form of personal testimony, or through the testimony of the custodian of the applicable billing records, as an exception to the hearsay exclusion." Oden v. Legacy Ford-Mercury, 222 Ga.App. 666, 669 [(476 S.E.2d 43)] (1996). Because each attorney has not submitted an affidavit, Waffle House is not entitled to those attorney fees.
WHEREFORE, the Court should deny Waffle House's Motion for Attorney fees.

Bell did not challenge the reasonableness of the hourly rates or the time spent on the matter.

In reply, Waffle House argued that one affidavit from the lead attorney with personal knowledge of the case and billing was sufficient under the business records exception to the hearsay rule.

Thereafter, without holding a hearing, the trial court entered an order granting Waffle House's motion and awarding $27,276.37 in legal fees and expenses.[3] Bell filed this appeal, contending that the ...


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