STEVENS Et Al. v. FOOD LION, LLC

SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J, and REESE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 8, 2017
In the Court of Appeals of Georgia
A17A0153. STEVENS et al. v. FOOD LION, LLC. DO-006
DOYLE, Chief Judge.
Adrienne and Roy Stevens (“the plaintiffs”) filed a negligence action against
Food Lion, LLC, after Adrienne fell at a Food Lion store. Following a jury trial, the
trial court entered judgment in favor of the plaintiffs. Thereafter, the trial court
granted Food Lion’s motion to amend the judgment to include attorney fees and costs
under OCGA § 9-11-68. The plaintiffs appeal, arguing that the trial court was without
authority to amend the judgment. For the reasons that follow, we affirm.
The facts relevant to this appeal are undisputed. On November 26, 2012, the
plaintiffs sued Food Lion. On November 26, 2013, Food Lion sent plaintiffs’ counsel
an offer of settlement made pursuant to OCGA § 9-11-68, offering to settle all claims
for $25,000; the plaintiffs rejected the offer. Following a trial, the jury found in favor
of Adrienne as to her claims in the amount of $25,000, but found her 30 percent
negligent; it found in favor of Food Lion as to Roy’s loss of consortium claim. On
July 2, 2015, the trial court entered judgment in favor of Adrienne in the amount of
$17,500, which amount reflects the reduction based upon the jury’s finding that she
was contributorily negligent.
On July 30, 2015, Food Lion filed a motion for attorney fees and costs pursuant
to OCGA § 9-11-68 (b) (1) and a separate motion to amend the final judgment to add
attorney fees and costs.1 The following day, the plaintiffs filed a motion for new trial;
they later dismissed that motion on December 8, 2015. On June 21, 2016, the trial
court held a hearing on Food Lion’s motions for attorney fees and costs and to amend
the judgment.2 Plaintiffs’ counsel argued that the fees were not reasonable, but
1
Food Lion attached supporting documents to the motion for attorney fees in
costs, including an affidavit of counsel attesting to the reasonableness of the fees and
a detailed invoice for professional services related to work required to defend the case
after the plaintiffs declined the settlement offer.
2
Defense counsel stated during the hearing that Food Lion already had paid the
judgment and one month’s interest.
2
declined to present evidence or cross-examine Food Lion’s witnesses regarding the
fees and costs.3
Following the hearing, on June 22, 2016, the trial court entered an order
granting Food Lion’s motion to amend the June 2015 judgment to add attorney fees
and costs pursuant to OCGA § 9-11-68 and awarding to Food Lion attorney fees in
the amount of $58,548 and costs in the amount of $4,127.70.4 This appeal follows.
On appeal, the plaintiffs do not challenge the amount or reasonableness of the
fees, nor do they contend that an attorney fees and costs award pursuant to the offer
of settlement statute was improper. Instead, the plaintiffs argue that the trial court
erred by amending the judgment outside the term of court to include the attorney fees
and costs award. We disagree.
3
Plaintiffs’ counsel advised the court that he was not ready for the hearing
because he wished to conduct discovery as to the fees and costs sought by Food Lion,
but the trial court elected to proceed, noting that the motions for attorney fees and to
amend the judgment had been pending for over 12 months.
4
In the order amending the judgment, the trial court concluded that Food
Lion’s “[m]otion [is] proper, the fees shown are reasonable, appropriate for the work
performed[,] and are only for the period of time from the rejection of [Food Lion’s]
offer under OCGA § 9-11-68 to the entry of judgment.”
3
In its motion, Food Lion requested that the trial court amend the judgment
pursuant to OCGA § 15-1-3 (6),5 which provides: “Every court has power . . . [t]o
amend and control its processes and orders, so as to make them conformable to law
and justice, and to amend its own records, so as to make them conform to the truth.”6
It is well established that a trial court has no jurisdiction to change
or modify a judgment outside the term of court in which the judgment
was entered. After the close of the term of court in which the judgment
was entered, it is out of the power of the court to modify and revise it in
any matter of substance or in any matter affecting the merits.7
In this case, the original judgment was issued during the June 2015 term, and
although the order amending the judgment was not entered until the June 2016 term,
Food Lion filed the motion to amend in July 2015, during the same term of court as
5
Food Lion does not contend that OCGA § 9-11-60, which provides a method
of obtaining relief from judgments in certain circumstances, including those involving
clerical errors, applies to this case.
6
OCGA § 15-1-3 does not contain a time limitation for moving to amend a
judgment. See Floyd v. Springfield Plantation Property Owners’ Assn., 245 Ga. App.
535, 536-537 (2) (538 SE2d 455) (2000).
7
(Footnotes and punctuation omitted.) De La Reza v. Osprey Capital, LLC, 287
Ga. App. 196, 197 (1) (651 SE2d 97) (2007), quoting City of Cornelia v. Gunter, 227
Ga. 464 (181 SE2d 489) (1971).
4
the original judgment.8 Thus, “the [trial] court . . . had inherent power to amend the
judgment because the motion was made in the same term in which the original
judgment was entered.”9
Judgment affirmed. Miller, P. J., and Reese, J., concur.
8
The terms of court for Gwinnett County (in the Gwinnett Circuit) are the
“[f]irst Monday in March, June, and December and second Monday in September.”
9
Piggly Wiggly S. v. Snowden, 219 Ga. App. 148, 151 (7) (464 SE2d 220)
(1995). Capitol Cargo, Inc. v. Port of Port Royal, 261 Ga. App. 803, 804-815 (1)
(584 SE2d 54) (2003), relied upon by the plaintiffs, is inapposite because the motion
to amend in that case was filed outside the term of court of the original judgment.
5