Opinion
No. A13A0223.
2015-01-12
GEORGIA DEPARTMENT OF CORRECTIONS v. COUCH.
Samuel S. Olens, Robert Lee Bunner, for Appellant.Kevin Elwell, Thomas George Tidwell, for Appellee.
Samuel S. Olens, Robert Lee Bunner, for Appellant. Kevin Elwell, Thomas George Tidwell, for Appellee.
BARNES, Presiding Judge.
In Ga. Department of Corrections v. Couch, 295 Ga. 469, 759 S.E.2d 804 (2014) ( Couch II ), the Supreme Court affirmed our ruling as to Division 1 “albeit under a different rationale,” and reversed our ruling in Division 2 of Ga. Department of Corrections v. Couch, 322 Ga.App. 234, 744 S.E.2d 432 (2013). Accordingly, we vacate Divisions 1 and 2 of our earlier opinion, and adopt the opinion of the Supreme Court with respect to those divisions. Division 3 was not addressed by the Supreme Court and in that circumstance we are required to
(1) read [the Supreme] Court's opinion within the context of the opinion being reversed; (2) to determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court; and (3) enter an appropriate disposition with regard to those portions that are consistent with the issues addressed and considered by [the Supreme] Court.
Shadix v. Carroll County, 274 Ga. 560, 563–564(1), 554 S.E.2d 465 (2001). In so doing, we find that to the extent that Division 3 can be interpreted to sustain any award of attorney fees not consistent with the Supreme Court's decision in Couch II, it too is vacated.
In Division 3, this Court concluded that per OCGA § 9–11–68, the trial court was not required to make findings of fact that litigation expenses were reasonable unless the court concluded that the offer was not made in good faith. Couch, 322 Ga.App. at 239(3), 744 S.E.2d 432.
This case is remanded to the trial court for proceedings consistent with the opinion of the Supreme Court.
Judgment vacated and case remanded with direction. Miller and Ray, JJ., concur.