Recently, the Court of Appeals declined to add language to O.C.G.A. §9-11-68 regarding rejection of offers. See Harris v. Mahone, A16A1748 (Ga. App. March 1, 2017). In a case involving a negligence action, Stanley Mahone (hereinafter “Mahone”) sent a settlement offer on September 8, 2015, to Timothy Harris (hereinafter “Harris”). Harris rejected Mahone’s offer on September 11, 2015, by sending a counter-offer. A jury trial commenced on October 5, 2015, and ended on October 8, 2015, with Mahone never rejecting Harris’ offer, nor Harris rescinding the offer. The jury awarded Harris an amount over 125% of his counter-offer. On November 1, 2015, the trial court entered the final judgment.
Harris moved for his attorney’s fees under O.C.G.A. §9-11-68. Though the court determined Harris was entitled to attorney’s fees from October 11, 2015 through entry of the final judgment on November 1, 2015, Harris could not prove that he incurred any attorney’s fees during this period. Harris appealed asserting that by allowing the offer to remain open until after the trial was “absurd.” Harris requested that the court reinterpret the statute to allow for the rejection of the offer to be deemed at the date the trial commenced. The court disagreed, noting that even after trial, settlements are often entered into to prevent appeals. To add a line into the statute to allow for an earlier rejection would cause the court to improperly create law.
Under the plain language of the statute, an offer must be made at least thirty days before trial and a counter-offer may be made up to twenty days before trial. See O.C.G.A. §9-11-68(a). The offer/counter-offer will be deemed automatically rejected thirty days after the offer is made. O.C.G.A. §9-11-68 (c). Though this could cause an offer to remain open until after a judgment has been entered, the offeree may withdraw their offer at any time. See Id. The Mahone court pointed to the fact that Mahone could have come back after the trial and accepted Harris’ lower offer. The court noted that Harris created his own “absurd” situation by not withdrawing his offer by the end of the trial.
The above case demonstrates the importance of properly withdrawing an offer or confirming its rejection. Though Mahone did not attempt to accept the offer after the conclusion of the jury trial, had he accepted, the court would have upheld the settlement agreement and Harris would have received a lower amount.