USCA11 Case: 22-10146 Date Filed: 07/15/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10146
Non-Argument Calendar
____________________
KSSR PROPERTIES, LLC,
Plaintiff-Appellant,
versus
CROWN CASTLE FIBER LLC., et al.,
Defendants,
BELLSOUTH TELECOMMUNICATIONS, LLC,
Defendant-Appellee.
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2 Opinion of the Court 22-10146
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-02708-TCB
____________________
Before WILSON, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
KSSR Properties sued BellSouth Telecommunications for
breach of legal duty, trespass, and inverse condemnation. Pursuant
to O.C.G.A. § 9-11-68, BellSouth made KSSR two offers to settle
those claims. KSSR didn’t respond to either offer, thereby rejecting
them. Later, the district court granted BellSouth summary judg-
ment, holding that KSSR’s suit was barred by Georgia’s four-year
statute of limitations for damage to real property. BellSouth then
moved to “recover reasonable attorney’s fees and expenses of liti-
gation . . . from the date of the rejection of the offer of settlement
through the entry of judgment.” O.C.G.A. § 9-11-68(b)(1). That
statute applies where one party makes to the other “a written of-
fer . . . to settle a tort claim.” Id. § 9-11-68(a). The district court
granted BellSouth its attorney’s fees.
KSSR appeals, arguing that BellSouth isn’t entitled to attor-
ney’s fees under O.C.G.A. § 9-11-68 because, it says, BellSouth’s
settlement offers requested the release of both KSSR’s tort claims
and KSSR’s inverse-condemnation claim. KSSR contends that a
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22-10146 Opinion of the Court 3
mixed tort/non-tort settlement offer1 does not comply with
O.C.G.A. § 9-11-68, which, again, applies only to an “offer . . . to
settle a tort claim.” Id. (emphasis added). Accordingly, we must
determine whether BellSouth’s mixed settlement offer counts as an
offer to “settle a tort claim.”
In deciding this case, we are required to follow Georgia Su-
preme Court precedent—whether or not we agree with it. See Al-
liant Tax Credit 31, Inc. v. Murphy,
924 F.3d 1134, 1149 (11th Cir.
2019); Winn-Dixie Stores, Inc. v. Dolgencorp, LLC,
881 F.3d 835,
848 (11th Cir. 2018). And in the absence of Georgia Supreme Court
precedent, we’re required to follow Georgia appellate-court prece-
dent—again, agree or disagree—unless there is persuasive evidence
that the Georgia Supreme Court would rule differently. See Alliant
Tax Credit, 924 F.3d at 1149.
The Georgia Supreme Court hasn’t definitively decided
whether § 9-11-68(b)(1) applies to mixed settlement offers. But it
seems to us that Georgia’s appellate courts have. In Canton Plaza,
Inc. v. Regions Bank, Inc., which involved an offer of settlement
under § 9-11-68, the Court of Appeals approved the defendant’s at-
torney’s fees after the defendant made a mixed tort/non-tort set-
tlement offer.
749 S.E.2d 825, 827 (Ga. Ct. App. 2013). It held that
the trial court wasn’t required to segregate attorney’s fees between
tort and non-tort claims where the non-tort claim was “premised
1 We assume for argument’s sake that inverse condemnation is not a tort-
claim.
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4 Opinion of the Court 22-10146
entirely on the allegations” that underlay the tort claim. Id.; accord
Hillman v. Bord,
820 S.E.2d 482, 486–87 (Ga. Ct. App. 2018) (ap-
proving O.C.G.A. § 9-11-68(b)(1) attorney’s fees for “both tort and
non-tort (equitable) claims” when a party’s non-tort claim “was en-
tirely premised on the allegations contained in their tort claims”).
KSSR argues that the issue involved here—whether a mixed
offer is valid under § 9-11-68—was “neither raised by the parties
nor actually decided in” Canton, but we disagree. Canton neces-
sarily decided that § 9-11-68 permits mixed settlement offers when
it expressly approved attorney’s fees based on a mixed offer and
addressed the subsidiary fee-segregation issue. And here, KSSR’s
inverse condemnation claim is premised on the same allegations as
its trespass claim. Thus, following Georgia appellate-court prece-
dent, BellSouth can recover its attorney’s fees under § 9-11-
68(b)(1). And we see no “persuasive evidence that the [Georgia
Supreme Court] would rule otherwise.” Bravo v. United States,
577 F.3d 1324, 1325 (11th Cir. 2009) (per curiam) (quotation omit-
ted).
Because Georgia’s appellate courts have allowed mixed set-
tlement offers under § 9-11-68, we hold that the mixed offer here
complied with Georgia law. 2
2 Because we conclude that state appellate-court precedent addresses the
mixed-offer issue, we find no basis for certifying the question to the Georgia
Supreme Court. See Ga. Sup. Ct. R. 46 (permitting certification where “there
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22-10146 Opinion of the Court 5
AFFIRMED.
are no clear controlling precedents in the appellate court decisions of this
State”).
