GREENWALD et al.
SUGARLOAF RESIDENTIAL PROPERTY OWNERS ASSOCIATION, INC.
ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
2001, Sugarloaf Residential Property Owners Association, Inc.
("Sugarloaf") filed a complaint against Denise and
Gary Greenwald seeking a declaratory judgment that the
Greenwalds had failed to comply with Sugarloaf residential
covenants, conditions, and restrictions and an injunction to
halt landscaping work at the Greenwalds' residence.
Thereafter, also in 2001, the Greenwalds filed an answer and
asserted counterclaims against Sugarloaf for abuse of
discretion, nuisance, willful misconduct, and attorney
fees. From 2010 through 2011, Sugarloaf made
three settlement offers pursuant to OCGA § 9-11-68
which were each rejected by the Greenwalds. After all of the
substantive claims were disposed of in Sugarloaf's favor,
Sugarloaf filed a motion for attorney fees and expenses of
litigation pursuant to OCGA § 9-11-68 (b)
The trial court granted Sugarloaf's motion, and the
unpublished opinion, this Court explained that, "[i]n
granting Sugarloaf's motion, the trial court's order
relied heavily upon our decision in L. P. Gas Indus.
Equip. Co. v. Burch, 306 Ga.App. 156 (701 S.E.2d 602)
(2010), to conclude that the relevant date for application of
[OCGA § 9-11-68] was 'the date(s) of the occurrence
of the acts giving rise to the Greenwald[s'] cause of
action[.]' Greenwald v. Sugarloaf Residential
Property Owners Assn., Inc., Case No. A15A1136, p. 3 (1)
(decided Nov. 10, 2015) (unpublished). However, this Court
noted that L. P. Gas was overturned by Crane
Composites, Inc. v. Wayne Farms, LLC, 296 Ga. 271 (765
S.E.2d 921) (2014) on the day before the trial court's
order was entered. Greenwald, at 4 (1). Accordingly,
this Court vacated the trial court's judgment and
remanded this case back to the trial court "for
reconsideration of the effect . . . that Crane
Composites has upon its decision to grant the motion for
attorney fees and expenses." Id.
remand, the trial court found that under Crane
Composites it was still authorized to grant attorney
fees and expenses to Sugarloaf pursuant to OCGA §
9-11-68. The Greenwalds appeal from that order, contending,
inter alia, that the application of OCGA § 9-11-68 to
this case is unconstitutional. For the following reasons, we
Greenwalds contend that the application of OCGA §
9-11-68 to this case is unconstitutional. Specifically, they
argue that under Crane Composites, because their
lawsuit was commenced prior to the effective date of OCGA
§ 9-11-68, this statute was impermissibly applied
§ 9-11-68, was enacted as part of the Tort Reform Act of
2005, Ga. L. 2005; it became effective on February 16, 2005,
during the pendency of this litigation. The Code section was
amended by Ga. L. 2006, p. 589, § 1/HB 239, effective
April 27, 2006." Fowler Properties Inc., v.
Dowland, 282 Ga. 76, 77 (1) (646 S.E.2d 197) (2007).
"OCGA § 9-11-68 created substantive rights and . .
. therefore, it cannot be applied retroactively. However, the
rights created by the statute pertain to attorney fees and
expenses arising out of litigation, not damages stemming from
injury." Crane Composites, 296 Ga. at 273.
In other words, [OCGA § 9-11-68] operates substantively,
but only insofar as it imposes an obligation to pay an
opposing party's attorney fees and expenses of
litigation. Thus, it cannot be said that the statute operates
retroactively upon substantive rights simply because the
injury occurred before the effective date of the statute.
Rather, because the rights created by the statute pertain to
the conduct of litigation, the statute is acting
prospectively, not retroactively, when applied to litigation
commenced after the effective date.
trial court found that the Greenwalds implicitly amended
their counterclaim to add a claim for continued nuisance and
expressly amended their counterclaim to add a claim for
punitive damages after the effective date of OCGA §
9-11-68. The trial court reasoned that because these
amendments were added after the effective date of OCGA §
9-11-68, under Crane Composites, attorney fees and
expenses pursuant to the statute were authorized. We
Fowler Properties, the Supreme Court of Georgia held
that the application of OCGA § 9-11-68 to a tort action
that was filed in 2002 was unconstitutional. Fowler
Properties, 282 Ga. at 78-79 (1). The Court explained
[w]hen [the plaintiff] instituted her tort action on December
18, 2002, the possibility that she may be responsible for
paying the opposing party's attorney fees and expenses of
litigation by rejecting an offer of settlement did not exist
because OCGA § 9-11-68 did not take effect until more
than three years later. OCGA § 9-11-68 (b) (1) does not
merely prescribe the methods of enforcing rights and
obligations, but rather affects the rights of parties by
imposing an additional duty and obligation to pay an opposing
party's attorney fees when a final judgment does not meet
a certain amount or is one of no liability. By creating this
new obligation, the statute operates as a substantive law,
which is unconstitutional given its retroactive effect to
pending cases like this one.
Fowler Properties, 282 Ga. at 78 (1).
Supreme Court of Georgia in Crane Composites held
that OCGA § 9-11-68 was "properly applie[d]
prospectively [even though the alleged injury occurred prior
to the statute's effective date] because the lawsuit was
commenced after the effective date [of the statute]."
Crane Composites, 296 Ga. at 274. The Court in
Crane Composites distinguished Fowler
Properties by reasoning that in Fowler
Properties the Court held only that OCGA § 9-11-68
could not be applied retroactively because the lawsuit was
filed prior to the effective date of the statute.
Id. The ...