text:
    A16A2001.
    JONES v. THE STATE.
    (797 SE2d 653)
   McMlLLIAN, Judge.

Charles Robert Withrow Jones appeals from his conviction on a single count of violating the State Sexual Offender Registry statute, OCGA § 42-1-12 (f) (4). Jones asserts that the evidence was insufficient to support his conviction, the trial court erred in admitting evidence in support of an allegation not contained in the indictment, and the trial court erred in allowing the State to impermissibly shift the burden of proof to him. Because we find that the evidence was insufficient to support Jones’s conviction, we reverse.

OCGA § 42-1-12 (f) (4) requires that any sexual offender required to register under the statute must “[rjenew the required registration information with the sheriff of the county in which the sexual offender resides or sleeps by reporting in person to the sheriff within 72 hours prior to such offender’s birthday each year to be photographed and fingerprinted[.]” The indictment charged that Jones, who previously had been convicted of statutory rape, failed “to report to the appropriate sheriff’s office, to wit: the Gwinnett County Sheriff’s Office” within 72 hours prior to his birthday on September 26, 2015.

In considering Jones’s appeal,

[w]e view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the [factfinder’s] verdict.

(Citation omitted.) Frazier v. State, 339 Ga. App. 405, 406 (793 SE2d 580) (2016). See also Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence at trial showed that Jones was convicted of statutory rape and interference with custody in 2004, which required that he be listed on a sexual offender registry for life. At some point, Jones moved to Gwinnett County, and it is undisputed that he registered on the sexual offender registry in that county On March 18, 2015, the Gwinnett County Sheriff’s Department verified that he was residing in Gwinnett County at the address listed on the registry, but no evidence was presented indicating that his address was verified after that date.

Jones’s birthday is September 26. On September 18, 2015, he signed a lease for a house in Walton County, and he testified at trial that he began moving into that house on Wednesday, September 23, 2015 by moving his bed and clothing there. Jones stated that he began sleeping at the Walton County address that night, but he waited until Saturday, September 26, to move his heavier things when he could get help with the move.

On Friday, September 25, 2015, Jones reported to the Walton County Sheriff’s Department to register on that county’s sexual offender registry At the time, Jones told the Walton County deputy who assisted him with the registration that “he had not completely moved in, still had a few things.” As a result, the deputy noted on the registration form, “just moving in over weekend.” The form listed the Walton County house as Jones’s primary address and his Gwinnett County address as his temporary address. However, the Walton County officer primarily responsible for the sexual offender registry was on vacation on September 25 and the fingerprinting and photographic equipment was locked in her office, so the registration process could not be completed that day. Jones returned on September 30, the first day the officer was back at work, for fingerprinting and to have his picture taken in order to complete the process.

Nevertheless, it is undisputed that Jones did not report his move to Walton County to the Gwinnett County Sheriff’s office, and he did not renew his registration there. Therefore, at the time of Jones’s birthday, Gwinnett County records indicated that he continued to reside in Gwinnett County As a result, he showed up as delinquent on the calendar that the sheriff’s office kept to track sexual offender renewals. However, the Gwinnett County officers did not attempt to confirm that Jones was still residing at the Gwinnett County address before seeking an arrest warrant, and all of the Gwinnett County witnesses denied under oath having any personal knowledge as to where Jones was residing at the pertinent time. The Gwinnett County warrant was issued on September 28, 2015, and he was arrested at his Walton County address on October 7, 2015, after the county received notice that he had provided that address at a pawn shop. He was formally indicted on December 3, 2015.

We find the evidence insufficient to support Jones’s conviction. Preter mitting whether the evidence demonstrated a violation of some other portion of OCGA § 42-1-12, Jones was indicted under subsection (f) (4) of that statute, which requires that he renew his registration information “with the sheriff of the county in which the sexual offender resides or sleeps” within 72 hours prior to his birthday The State presented no evidence that Jones was residing or sleeping in Gwinnett County at that time; in fact, the only evidence is to the contrary. “The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” (Citation and punctuation omitted.) Davis v. State, 330 Ga. App. 118, 122 (2) (766 SE2d 566) (2014). Based on the evidence presented, a rational trier of fact could not have found beyond a reasonable doubt that J ones was guilty of the offense charged in his indictment. Accordingly, we reverse his conviction. See Chestnut v. State, 331 Ga. App. 69, 77 (769 SE2d 779) (2015); Davis, 330 Ga. App. at 122 (2).

Judgment reversed.

Miller, P. J., and McFadden, P. J., concur.

Decided February 27, 2017.

Treadaway & Treadaway, Jason D. Treadaway, for appellant.

Daniel J. Porter, District Attorney, Marlene S. Zekser, Assistant District Attorney, for appellee.

       Jones had previously pled guilty to two violations of failing to register as a sexual offender, one in Alabama and one in Cherokee County, Georgia.

       Jones’s mother testified at trial that she gave him money for the security deposit and reviewed the lease before he signed it. She also stated that Jones told her at the time that he was sleeping in Walton County on the nights of September 24-25.

       Given this holding, we need not address Jones’s other enumerations of error.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A15A0136.
    OLDS v. THE STATE.
    (797 SE2d 661)
   MILLER, Presiding Judge.

This case involves the admission of extrinsic acts evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”), to establish defendant Vashon Olds’s intent, plan, and motive in his trial for kidnapping, aggravated assault with intent to rape, false imprisonment and battery.

In Olds v. State, 299 Ga. 65 (786 SE2d 633) (2016) (Olds II), the Supreme Court of Georgia vacated the judgment of this Court in Olds v. State, 332 Ga. App. 612 (774 SE2d 186) (2015) (Olds I), and remanded with direction for this Court to consider the admissibility of the extrinsic acts evidence in light of Olds II. We therefore vacate our opinion in Olds I, supra, and reconsider as directed.

After a thorough review, we find that the extrinsic acts evidence was relevant and admissible, under OCGA § 24-4-404 (b), to show Olds’s intent and motive. We further find that the probative value of the extrinsic acts evidence was more significant than any prejudicial effect, and that the State offered sufficient proof of the extrinsic acts for the jury to conclude that Olds committed them. Consequently, we now hold that the trial court properly admitted the extrinsic acts evidence, and we affirm Olds’s convictions.

Viewed in the light most favorable to Olds’s convictions, the facts in this case show that Olds was a close family friend of the victim, and they were briefly involved in a romantic relationship. In February 2009, a few years after their relationship had ended, the victim and her son moved into Olds’s trailer. The victim told Olds that they would not be resuming their prior romantic relationship, and Olds confirmed that he understood.

Shortly after the victim moved in, Olds told the victim’s boyfriend that he considered the victim to be “his lady.” The next day, the victim told Olds that she was going out of town. As she was getting ready to leave, the victim realized that she had forgotten her son’s jacket, so she went back inside the trailer. Olds followed her, and jumped her from behind, while holding a tie in his hand. The victim put her arms up to keep the tie away from her neck and to avoid being choked.

Although the victim begged Olds to let her go, he pushed her onto a chair in his bedroom, tied her up, and threw her on the bed. Olds then got on top of her and told her that if she cooperated and shut up, “it’ll be over with.” When Olds started to unzip the victim’s pants, she screamed and Olds put his hands over her nose and mouth so that she could not breathe.

Olds duct taped the victim’s mouth; however, the victim used her hands to remove the tape and screamed again. Olds then told the victim that if she screamed again, he would kill her. The victim continued to plead with Olds for about 30 minutes, until he released her.

Following the incident in the trailer, Olds was charged with kidnapping, aggravated assault with intent to rape, battery, and false imprisonment. The trial court admitted evidence of Olds’s prior extrinsic acts, which occurred in June 1999 and August 2012, to show Olds’s intent, plan, and motive under Rule 404 (b).

Specifically, the extrinsic acts evidence showed that in June 1999, Olds calledT. H., awoman with whomhe hadbeen romantically involved. Olds told T. H. that she had forgotten something at his house and he said he would come over to return the item. When Olds arrived, he came up behind T. H. with a knife, told her he was not leaving, said if he could not have her, then nobody else would, and then cut her chin.

The extrinsic acts evidence also showed that Olds was acquainted with K. B., and, in August 2012, he took K. B. shopping and then drove her to his home. When they arrived at his home, Olds told K. B. that she had to come inside. K. B. followed Olds up to his room, and stood by the door for a little bit. K. B. then tried to leave and Olds grabbed her from behind. Olds threw K. B. onto the bed, held her down, pulled down her shorts and underwear and forcibly penetrated her vagina with his tongue. K. B. told Olds to stop and tried to push him away, but he refused to stop, and he tried to forcibly penetrate K. B.’s vagina with his penis.

On appeal, Olds contends that the trial court erred in admitting evidence of these extrinsic acts over his objection. We disagree, and as set forth herein we conclude that the extrinsic acts evidence was admissible, under Rule 404 (b), to show Olds’s intent and motive in this case.

OCGA § 24-4-404 (b) pertinently provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

In determining whether extrinsic acts evidence is admissible, this Court applies a three-part test for admissibility, which requires a determination that

(1) the evidence is relevant to an issue in the case other than the defendant’s character, (2) the probative value is not substantially outweighed by undue prejudice, and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act. When weighing the probative value of other acts evidence against its prejudicial effect, [we] apply the balancing test set forth in OCGA § 24-4-403[.]

(Citations omitted.) Parks v. State, 300 Ga. 303, 305 (2) (794 SE2d 623) (2016). Under OCGA § 24-4-403 (“Rule 403”),

relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(Citation and punctuation omitted.) Olds II, supra, 299 Ga. at 70 (2). Nevertheless, “the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly” (Citation and punctuation omitted.) Id.

Here, the trial court admitted the extrinsic acts evidence to show Olds’s intent, plan, and motive. “We review this decision for clear abuse of discretion.” (Citation omitted.) Smart v. State, 299 Ga. 414, 417 (2) (788 SE2d 442) (2016).

1. Relevance

With regard to the first part of the admissibility test, evidence is relevant under OCGA § 24-4-401 ifthe evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Accordingly, we must determine whether the extrinsic acts evidence was relevant to show Olds’s intent, motive, or plan.

(a) Intent

With regard to intent, “a plea of not guilty puts the prosecution to its burden of proving every element of the crime — including intent — [and] evidence of other acts that tends to make the requisite intent more or less probable to any extent is relevant.” Olds II, supra, 299 Ga. at 75 (2). Olds put his intent at issue in this case when he pled not guilty and argued at trial that the victim lied about the crimes.

Furthermore, the record shows that Olds requested a jury charge on sexual battery as a lesser included offense of the aggravated assault with intent to rape charge. In so doing, Olds effectively disputed the specific intent element of that charged offense which also placed his intent at issue in this case. Olds II, supra, 299 Ga. at 75 (2).

Moreover,

evidence that an accused committed an intentional act generally is relevant to show . . . that the same defendant committed a similar act with the same sort of intent, especially when the acts were committed ... in similar circumstances.

(Citations omitted.) Olds II, supra, 299 Ga. at 72 (2); see also OCGA § 24-4-413 (a) (providing that, where a defendant is charged with a sexual assault, evidence of his commission of another sexual assault “shall be admissible and may be considered for its bearing on any matter to which it is relevant”).

Here, the charged offenses included aggravated assault, and the offense of aggravated assault as charged is very similar to both the 1999 and 2012 extrinsic acts. The crimes in this case and the extrinsic acts victims all involved violent assaults on female acquaintances whom Olds attacked from behind. Moreover, the 2012 extrinsic act involved sexual assault charges, which was relevant to show Olds’s intent to commit a sexual assault in this case. Olds II, supra, 299 Ga. at 77 (3), n. 18. Consequently, the evidence of Olds’s extrinsic acts was plainly relevant to the issue of his intent in this case, and the first prong of the admissibility test was satisfied. See Olds II, supra, 299 Ga. at 72 (2) (citing Bradshaw v. State, 296 Ga. 650 (769 SE2d 892) (2015)).

(b) Motive

Extrinsic acts are admissible to show motive under Rule 404 (b) if they are “logically relevant and necessary to prove something other than the accused’s propensity to commit the crime charged.” (Citation and punctuation omitted.) Brooks v. State, 298 Ga. 722, 726 (2) (783 SE2d 895) (2016).

Here, the extrinsic acts evidence was also relevant to help the jury understand why Olds violently attacked the victim in this case. Smart, supra, 299 Ga. at 418 (2) (a). Specifically, the evidence showed that, even though the victim had informed Olds that they would not be resuming their prior romantic relationship, Olds still considered the victim to be “his lady,” and he committed the crimes in this case when the victim tried to leave the trailer that they shared. Similarly, Olds attacked T. H. in 1999 after their relationship ended and he told her that “if he could not have her, then nobody else would.” Although Olds was not romantically involved with K. B., he knew her, drove her to his home, told her she had to come inside and forcibly attacked and sexually assaulted her when she tried to leave. See id. (extrinsic acts victim’s testimony regarding specific acts of violence was relevant to show defendant’s motive in using violence to control murder victim).

2. Probative Value of the Extrinsic Acts Evidence

With regard to the second admissibility prong, we must determine whether the probative value of the evidence “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury [.] ” (Citation and punctuation omitted.) Olds II, supra, 299 Ga. at 70 (2). “Probative value ... depends on the marginal worth of the evidence — how much it adds, in other words, to the other proof available to establish the fact for which it is offered.” Id. at 75-76 (2). After a thorough review of the record, in light of the decision in Olds II, and after weighing the value of the extrinsic acts evidence, we are satisfied that the trial court properly determined that the probative value of the extrinsic acts evidence was not substantially outweighed by its prejudicial effect.

The charged offense of aggravated assault and the two extrinsic acts were factually very similar. Notably, all three crimes involved Olds’s violent attacks on women he knew or had been romantically involved with. Moreover, Olds denied that he committed the crimes in this case, and there was very little evidence, other than the victim’s testimony, from which the jury could have “gleaned why” Olds attacked her. Smart, supra, 299 Ga. at 419 (2) (b). Thus, the extrinsic acts evidence aided the jury in determining whether Olds committed the crimes in this case. Consequently, the trial court properly found that the probative value of the extrinsic acts evidence was not substantially outweighed by its prejudicial effect, and therefore, the second prong of the admissibility test was satisfied. See Jones v. State, 299 Ga. 377, 383 (4) (788 SE2d 477) (2016) (probative value of evidence of defendant’s prior armed robberies was not substantially outweighed by its prejudicial effect where defendant testified that murder victim pulled out a gun and tried to rob defendant).

Decided February 28, 2017.

Charles E. Arnold, Jr., Jeffrey L. Lee, Jr., for appellant.

Gregory W. Edwards, District Attorney, Heather H. Lanier, Assistant District Attorney, for appellee.

3. Sufficient Proof of the Extrinsic Acts Evidence

Finally, we conclude that the third prong of the admissibility test — whether the State offered sufficient proof for the jury to conclude that Olds committed the extrinsic acts — was satisfied. T. H. gave detailed testimony regarding the 1999 attack, K. B. gave detailed testimony about the 2012 attack, and Olds presented no evidence to rebut either T. H.’s or K. B.’s testimony Accordingly, a jury could have found by a preponderance of the evidence that Olds committed the extrinsic acts. See Smart, supra, 299 Ga. at 419 (2) (c); Brannon v. State, 298 Ga. 601, 608 (4) (783 SE2d 642) (2016).

For the reasons set forth above, we find that the extrinsic acts evidence met all three prongs for admissibility. Therefore, the trial court did not clearly abuse its discretion in admitting evidence of the extrinsic acts under Rule 404 (b), and we affirm Olds’s convictions.

Judgment affirmed.

Andrews and Branch, JJ., concur.

       Because Olds was tried after January 1, 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, § 101.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Having determined that the extrinsic acts evidence was relevant and, as set forth infra, admissible to show both intent and motive in this case, we need not determine whether that evidence was also relevant and admissible to show a common plan or for other purposes.


author: DOYLE, Chief Judge.

text:
    A16A2170.
    In the Interest of A. W., a child.
    (797 SE2d 655)
   DOYLE, Chief Judge.

The Lowndes County Juvenile Court entered an order finding five-year-old A. W. dependent as to her mother, and the court awarded custody of the child to the Lowndes County Department of Family and Children Services (“the Department”). The mother now appeals, arguing that the Department failed to establish by clear and convincing evidence that (1) A. W. was dependent, or (2) A. W. should have been taken from the mother’s custody during the pendency of the case. For the reasons that follow, we reverse.

[O]n appeal from a [dependency] order, we view the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found clear and convincing evidence of [dependency]. In this review, we do not weigh the evidence or determine the credibility of witnesses; instead we defer to the juvenile court’s findings of fact and affirm unless the appellate standard is not met.

The record shows that early in the morning on June 15, 2015, the mother was under the influence of methamphetamine when she threatened to shoot the father in his private area with her handgun because she believed he was unfaithful. Police responded to the incident, and the mother was charged with aggravated assault with a deadly weapon; the father was charged with possession of methamphetamine and possession of tools for the commission of a crime. During the incident, A. W. was not at the parents’ home and was in the care of the mother’s brother’s 20-year-old significant other, K. W., at K. W.’s nearby home. When police arrived on the scene of the incident, the father, who also was under the influence of methamphetamine, was at the couple’s home; the mother had fled to K. W.’s house a few minutes earlier when the police were called.

After an emergency hearing, the trial court found probable cause to declare A. W. dependent, and it placed her in the temporary care of the Department pursuant to OCGA § 15-11-146 (a). The Department filed a dependency petition, alleging that A. W. should be brought into protective custody because “the agency [could] not ensure [her] safety in her mother’s care” based on the June 15 incident.

At the dependency petition hearing, Department case manager Gwendolyn Larkin testified to the events leading to A. W. coming into care. Larkin testified that the mother admitted to having used methamphetamine over the course of approximately six weeks, culminating in the June 15 domestic violence incident between her and the father. Larkin testified that the mother explained that she and the father “usually get along fine[,] . . . and the incident was most likely a result of [her] drug use.” Larkin testified that A. W. was not at home the night before or the day of the domestic violence incident, and she testified that A. W. was at K. W.’s residence. Larkin testified that the basis of the dependency complaint involving A. W. was that “there was nobody to keep [A. W.] while [the mother] was in jail.”

With regard to family placement, Larkin testified that the maternal grandmother was not an appropriate placement because she previously used methamphetamine, resulting in a three-year prison sentence and causing the mother to be removed from the grandmother’s care when the mother was a teenager. Larkin provided no testimony as to the maternal grandmother’s current sobriety or lack thereof, her current housing or employment situation, or her current ability to provide appropriate care for A. W.

Larkin testified that K. W. was not an appropriate placement because the Department opened a case on her as a result of this incident based on K. W.’s father and his girlfriend’s use of methamphetamine around K. W.’s home. Larkin testified that the “abuse and neglect” she alleged against K. W. in that case was that she “should have been more protective than to allow people who use drugs to be around her children. At the time, we didn’t know if her dad was supervising these children or what.” No evidence was presented that K. W. used any narcotics or that she allowed her father or any other person to supervise or interact with the children in her care. Larkin also testified that K. W. was not a possible placement (aside from the Department’s open case) because “she’s [twenty]. She has two kids of her own. Her boyfriend that lives there is not there really to help her.” In response to a question on cross-examination, Larkin admitted it was K. W.’s age that made her an inappropriate placement.

Larkin presented no testimony or other evidence about any physical injury of A. W, any specific instance of neglect, any sexual abuse, or observation by the child of any family violence, and with regard to emotional or psychological injury, Larkin stated that “the child [told] me that mom and dad argued all the time. The child told me that she doesn’t like that.” Nevertheless, Larkin presented no evidence that the parents’ arguments in front of the child were violent or caused any emotional or psychological harm beyond displeasure. With regard to drug use, Larkin testified that “there is a risk to children whose parents are intoxicated on methamphetamine,” but she did not expand on what that general risk was or provide any detailed testimony about specific harm to A. W.

The law enforcement officer who responded to the June 15 incident stated that the father, who also allegedly was intoxicated on methamphetamine at the time and acting erratically, told him that the parents

were engaged in an argument and he — or she believed that he was cheating on her. He stated that she was seeing needles coming out of his arms, tattoos of other girls’ names on his neck of which he had none, and at some point during that argument he — she had drawn a 9 millimeter Smith and Wesson, pointed at him and threatened to shoot his penis off.

A parent aide from a Department service provider testified that she performed a drug screen on the mother on June 18, which was positive for methamphetamine/amphetamine, and which the mother claimed was a result of her last methamphetamine use on June 15 (prior to the domestic violence incident). On June 23, another aide from the service provider performed a drug screen on the mother, which was negative. The record before us also shows that the mother’s subsequent drug screens were negative.

The mother testified at the hearing and denied using methamphetamine from the date of the incident until the dependency hearing on July 7, 2015. She admitted to having used methamphetamine for about six weeks prior to the incident, but she denied having used methamphetamine or having been arrested prior to that time frame. The mother testified that she and the father had been in a relationship for approximately eight years, A. W. was their only child, and she had no other children. She testified that she does not work, but the father is a traveling welder who makes about $10,000 per month when he is working about ten months out of the year; she and A. W. travel with the father when he is working. She denied doing methamphetamine in front of A. W, usually leaving her in the care of the maternal grandmother or K. W. when she was using, and the mother was willing to submit to drug screens and to attend drug treatment. The mother admitted to owning a 9-mm handgun, which she normally kept on her person or stored in a bedside table at night. There was no evidence that A. W. ever handled or had access to the weapon. The mother testified that she and the father had obtained the methamphetamine from her father (“the grandfather”), but he did not currently live with the grandmother and was a truck driver who visited her when he was not working. She also admitted that her parents’ drug use had a negative impact on her life, but she did not provide detailed testimony in this regard.

K. W. testified that she was a stay-at-home mom whose significant other was a traveling pipe-fitter. She watched A. W. frequently over the month or so prior to the hearing, usually so her own daughter had a playmate; she testified that she never saw the mother appear intoxicated from drug use. K. W. testified that she and the children (including A. W., who had come over on June 14) were asleep when the mother came to her home on June 15 prior to her arrest; K. W. testified that A. W. did not awaken during the mother’s arrest. With regard to the Department’s contention that K. W.’s father was using methamphetamine around her children and A. W, K. W. testified that he had been living in her portable storage shed in her back yard for one or two weeks prior to the incident; she was unaware that he used methamphetamine at that time; and she evicted him from her property on June 16 after the Department removed A. W. on the basis that his presence prevented K. W. from serving as family placement for A. W. K. W. testified that she was not aware the Department was going to open a case against her until after she testified at the emergency hearing on June 23, at which point she had already prohibited her father from coming to her property. K. W. testified that her father did have a history of drug use, which is why she did not allow him to live inside her house when he sought her assistance with housing, but she was not aware that he was using narcotics at the time she told him he could live in her shed.

After the hearing, the juvenile court entered an order on August 12, 2015, nunc pro tunc to July 7, 2015, finding that based on the mother’s use of methamphetamine and the June 15 domestic violence incident, the mother had failed to ensure a safe environment for A. W, and her drug use had a negative effect on A. W. The trial court found that A. W. was abused or neglected on the basis of the drug use, that A. W.’s return to the mother was contrary to her welfare because of substance abuse, and the Department had made reasonable efforts to eliminate the need to remove A. W. from the home or extended family.

1. The mother contends that the trial court erred by finding that A. W. was dependent because there was not clear and convincing evidence of her abuse or neglect. We agree.

As an initial matter, the mother contends that the trial court erred by finding that she had hallucinated as a result of any drug use. The only references to hallucinations are the hearsay statements of the father made to the officer after the domestic violence incident. In addition to any lack of first-hand testimony, the father was under the influence of methamphetamine during the incident. Thus, there is a lack of clear and convincing evidence of any hallucination by the mother. Nevertheless, although the court cited this fact at the hearing as a reason it was finding that A. W. was dependent, this fact is not listed in the trial court’s written order and is, therefore, not a cited reason supporting the adjudication of dependency.

“Under the most recent version of Georgia’s Juvenile Code, the juvenile court may place a minor child in the protective custody of the Department where the State shows, by clear and convincing evidence, that the child is a dependent child.”

Pursuant to OCGA § 15-11-2 (22), a dependent child is defined as “a child who: (A) Has been abused or neglected and is in need of the protection of the court[;] (B) Has been placed for care or adoption in violation of law; or (C) Is without his or her parent, guardian, or legal custodian.” Nothing suggests that A. W. would fall under definitions (B) or (C); therefore, we focus on subparagraph (A), “a child who . . . [h]as been abused or neglected and is in need of the protection of the court[.]”

(a) Abuse is defined as

(A) Any nonaccidental physical injury or physical injury which is inconsistent with the explanation given for it suffered by a child as the result of the acts or omissions of a person responsible for the care of a child; (B) Emotional abuse; (C) Sexual abuse or sexual exploitation; (D) Prenatal abuse; or (E) The commission of an act of family violence as defined in Code Section 19-13-1 in the presence of a child. An act includes a single act, multiple acts, or a continuing course of conduct. As used in this subparagraph, the term “presence” means physically present or able to see or hear.

The single incident of family violence for which evidence appears in the record was not committed in the presence of A. W., and A. W. suffered no physical injury Thus, the only possible subparagraph of abuse in which the mother’s actions could fall would be “(B) [e] mo-tional abuse.” Pursuant to OCGA § 15-11-2 (30),

“[e] motional abuse” means acts or omissions by a person responsible for the care of a child that cause any mental injury to such child’s intellectual or psychological capacity as evidencedby an observable and significant impairment in such child’s ability to function within a child’s normal range of performance and behavior or that create a substantial risk of impairment, if the impairment or substantial risk of impairment is diagnosed and confirmed by a licensed mental health professional or physician qualified to render such diagnosis.

There is no indication in the record of the extent or nature of the parents’ arguments, which could range from bickering about household issues to screaming and using derisive language toward each other. Moreover, there is no indication in the record of an “observable and significant impairment” in A. W.’s “ability to function within [her] normal range of performance and behavior.” Neither is there evidence that the mother’s use of methamphetamine led to any mental injury of A. W. The evidence at the dependency hearing established that the mother had ceased using methamphetamine, intended to continue her disuse, and had taken all the steps asked of her by the Department in order to show that she no longer used the substance. And there is no evidence that the mother’s acts of leaving A. W. in the care of K. W. or the grandmother led to any mental injury or that it posed a substantial risk of harm of injury to A. W. Accordingly, the Department failed to carry its burden to present clear and convincing evidence of abuse to support a finding of dependency.

(b) In pertinent part, the Code defines “[n]eglect” as

(A) [t]he failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child’s physical, mental, or emotional health or morals; [or] (B) [t]he failure to provide a child with adequate supervision necessary for such child’s well-being . . . .

This definition is similar to former OCGA § 15-11-2 (8) (A) (2013), which defined “a deprived child [as] a child who ‘[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.’ ”

In order to make this determination under the previous Juvenile Code, the court focused on the needs of the child rather than parental fault. “And where, as here, the [child is in the Department’s] custody, the correct inquiry for the juvenile court was whether the [child] would be deprived if returned to the parent’s care and control as of the date of the hearing.”

In this case, the Department also failed to present clear and convincing evidence that A. W. was neglected or that she would be neglected if she was returned to the mother. First, during the period that the mother was using methamphetamine, the evidence shows no neglect of A. W., and to the extent that she allowed A. W. to stay in the homes of the grandmother or K. W., there is no evidence beyond speculation on the part of the Department that either of those individuals neglected or would neglect A. W. While the lone instance of domestic violence between the mother and father certainly is serious, and while this Court does not condone the mother’s use of methamphetamine during the six-week period preceding the event, there is no evidence that the mother failed to provide adequate food, shelter, or education to A. W.

The Department argues that harm can be inferred because of (1) the mother’s “chronic” methamphetamine abuse; and (2) “daily arguments” between the mother and the father. The daily arguments, as explained above, apart from the single incidence of family violence between the mother and the father, do not rise to the level of abuse under the statute; the Department has failed to present evidence of the nature of the parental arguments, much less that they were daily or that they reached a level to constitute neglect.

Regarding the mother’s methamphetamine use, the evidence presented at the hearing showed that the mother had used methamphetamine for approximately six weeks, she never used the substance prior to that time frame, and she had ceased using the substance after her arrest. This is not sufficient to show such long-term unrehabilitated drug use to assume that it would persist if A. W. was returned to the mother at the time of the hearing. To the extent that the Department argues that the mother was trying to instigate contact with the father or that her current living situation at the maternal grandmother’s home would result in abuse or neglect, there is a complete lack of record evidence beyond Larkin’s speculative, conclusory testimony for this argument to support the dependency determination.

While this court is mindful of the fact that [Department] caseworkers are charged with the safety and security of the most vulnerable among us, and in this laudable yet unenviable position are required to make at times alacritous decisions, as this court has noted previously, the right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances. We do not find that such circumstances existed here.

Decided February 28, 2017.

Smith, Hannan & Parker, Tommy L. Thigpen, for appellant.

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Charles R. Reddick, Assistant Attorney General, for appellee.

Accordingly, the juvenile court’s order finding A. W. dependent is hereby reversed.

2. Based on our holding in Division 1, we do not address the mother’s second enumeration of error except to note that there is no record evidence of K. W.’s or the grandmother’s inability to care for A. W. had she been placed in either person’s custody

Judgment reversed.

Dillard, P. J., and Bethel, J., concur.

       To the extent that the juvenile court has made a dependency determination as to the child’s father, who has not legitimated the child, his case is not before us at this time.

       (Punctuation and footnotes omitted.) In the Interest of G. R. B., 330 Ga. App. 693, 698 (769 SE2d 119) (2015). See also In the Interest of S. C. S., 336 Ga. App. 236, 244 (784 SE2d 83) (2016).

       The record is unclear as to whether K. W. and the mother’s brother were legally married.

       An untranscribed hearing was held on June 23 at which the mother and K. W. testified. Some of that testimony was summarized at the later hearing on July 7 from which these facts are taken.

       This testimony is contrary to a statement contained in the Department’s emergency custody petition, but the parties all agree at this point that A. W. was not in the home where the incident occurred.

       The paternal grandmother declined to act as a placement for A. W.

       The record is also devoid of testimony that A. W. witnessed any drug use by the mother or negative behaviors the mother exhibited that were associated with any drug use, although that specific question was not asked of Larkin on cross-examination.

       The State’s brief also alleges that the mother admitted she hallucinated; however, there is no record evidence of such an admission.

       See OCGA § 15-11-181 (e) (“After hearing the evidence, the court shall make and file specific written findings as to whether a child is a dependent child.”).

       (Punctuation omitted.) In the Interest of S. C. S., 336 Ga. App. at 244. See also OCGA §§ 15-11-150; 15-11-152; 15-11-180.

       Because the dependency petition was filed in 2015, the new Juvenile Code applies. See In the Interest of S. C. S., 336 Ga. App. at 245, n. 4, quoting Ga. L. 2013, p. 294, § 5-1.

       OCGA § 15-11-2 (22) (A).

       OCGA § 15-11-2 (2).

       See OCGA § 19-13-1 (“As used in this article, the term ‘family violence’ means the occurrence of one or more of the following acts between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household: (1) Any felony; or (2) Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass. . . .”).

       OCGA § 15-11-2 (30).

       See OCGA § 15-11-180.

       OCGA § 15-11-2 (48).

        In the Interest of S. M., 321 Ga. App. 827, 831 (743 SE2d 497) (2013).

       (Citations and punctuation omitted.) Id. (applying pre-2014 Juvenile Code).

       See In the Interest of H. B., 324 Ga. App. 36, 38-39 (1) (749 SE2d 38) (2013).

       See OCGA § 15-11-180 (“The petitioner shall have the burden of provingthe allegations of a dependency petition by clear and convincing evidence.”).

       See In the Interest of H. B. 324 Ga. App. at 37-39 (1), citing In the Interest of S. M., 321 Ga. App. at 832; In the Interest of H. S., 285 Ga. App. 839, 842-844 (648 SE2d 143) (2007), citing In the Interest of C. L. Z., 283 Ga. App. 247, 249 (641 SE2d 243) (2007).

       “Chronic” is defined as “continuing or occurring again and again for a long time,” “always present or encountered,” or “being such habitually.” See Merriam-Webster Online, https://www. merriam-webster.com/dictionary/chronic.

       See In the Interest of S. M., 321 Ga. App. at 832-833.

       Compare with In the Interest of J. L., 269 Ga. App. 226, 229, n. 6 (603 SE2d 742) (2004) (collecting cases comparing when parental drug use constitutes sufficient evidence of deprivation/dependency to establish parental unfitness).

       As noted previously, the Department presented no evidence of any abuse or neglect on the part of the grandmother or K. W. while caring for A. W.

       (Punctuation and footnote omitted.) In the Interest of H. S., 285 Ga. App. at 843-844.


author: DILLARD, Presiding Judge.

text:
    A16A1748.
    HARRIS v. MAHONE.
    (797 SE2d 688)
   DILLARD, Presiding Judge.

Following a jury verdict in Timothy Harris’s favor in his negligence action against Stanley Mahone, the trial court denied Harris’s requests for attorney fees under OCGA §§ 9-11-68 and 9-15-14. Harris appeals, arguing that the trial court misconstrued OCGA § 9-11-68 in finding that, although he was entitled to attorney fees under the statute, he did not incur any fees during the applicable time period. He further contends that the trial court erred in denying his motion for attorney fees under OCGA § 9-15-14 because the court did so based solely on an erroneous factual finding. For the reasons set forth infra, we affirm in part, reverse in part, and remand the case with direction.

The facts underlying this appeal are largely undisputed. On May 9, 2014, Harris filed a complaint against Mahone, asserting negligence claims arising from a car accident that occurred on May 14, 2013. According to Harris, Mahone rear-ended his car, which caused him serious injuries. After Mahone filed his answer, he submitted a handwritten statement, admitting that he hit the back of Harris’s car, but claiming that the collision was the result of a “[chjain reaction” in which Mahone’s car was first rear-ended by the car behind him. In the pretrial order, Mahone again admitted fault for the accident, but disputed that the accident caused Harris’s injuries or the amount of damages that he claimed to have suffered. Nevertheless, on September 8, 2015, a few weeks prior to trial, Mahone sent Harris a written settlement offer for $15,000, which provided that, in compliance with OCGA § 9-11-68, the offer would be deemed rejected if it was not accepted within 30 days. A few days later, on September 11, 2015, Harris responded with a counteroffer to settle the case for $22,000, and similarly to Mahone’s offer, indicated that it would remain open for 30 days.

After the parties failed to reach a settlement agreement, a jury trial commenced on October 5, 2015, and at the conclusion of trial on October 8, 2015, the jury found in Harris’s favor, awarding him $35,000 in damages. Several weeks later, on November 1, 2015, the trial court issued a final order approving the jury’s verdict. Then, on November 18, 2015, Harris filed a motion for attorney fees under OCGA § 9-11-68, asserting that he was entitled to such fees because he received a monetary judgment that was more than 125 percent of his $22,000 pretrial counteroffer. In response, Mahone argued that Harris was not entitled to fees under OCGA § 9-11-68 because he never rejected the counteroffer in writing, which is “explicitly and unambiguously required” under the statute. Additionally, Mahone argued that Harris was not entitled to attorney fees because, after trial, the jury foreman informed both parties that the jury increased its original award of damages by 44 percent to account for Harris’s attorney fees. Thus, Mahone contended, Harris had already been compensated for his attorney fees.

In support of his argument that attorney fees were included in the jury’s lump-sum award, Mahone’s counsel executed an affidavit recounting what was allegedly conveyed to them by the jury foreman regarding the manner in which the jury calculated damages. Harris then filed a motion to strike “hearsay portions” of Mahone’s response to his motion for fees and accompanying affidavit, arguing that any reference to statements allegedly made by jurors was inadmissible hearsay and also improper juror testimony under OCGA § 24-6-606. In addition, Harris filed a motion for attorney fees under OCGA § 9-15-14 (a) and (b), arguing that he was entitled to the fees he incurred in bringing the motion to strike because Mahone’s use of inadmissible hearsay was absent of any justiciable issue of law or fact and lacked substantial justification.

On March 21, 2016, the trial court held a hearing on Harris’s motions for attorney fees and his motion to strike hearsay portions of Mahone’s responsive pleadings. Thereafter, the court issued an order finding that under OCGA § 9-11-68 Harris was entitled to any attorney fees he incurred from October 11, 2015, through November 1, 2015, but awarding him no fees because he failed to show that he actually incurred any fees following the conclusion of trial on October 8, 2015. The court also denied Harris’s motion for attorney fees under OCGA § 9-15-14, as well as his motion to strike hearsay testimony. This appeal by Harris follows.

1. Harris first argues that, while the trial court correctly found that he was eligible for an award ofattorney fees under OCGA § 9-11-68, the court misconstrued the statute in concluding that he was not entitled to the fees he incurred during trial. We disagree.

At the outset, we note that the interpretation of a statute is a question of law, which is “reviewed de novo on appeal.” Indeed, when only a question of law is at issue, as here, we “owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” And when interpreting any statute, we necessarily begin our analysis with “familiar and binding canons of construction.” In considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” Further, when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.” Finally, because any statute that provides for the award of attorney fees is “in derogation of common law, it must be strictly construed against the award of such damages.”

Here, Harris does not appear to dispute that, although the trial court believed the outcome in this case was “bizarre,” the court strictly construed OCGA § 9-11-68 and adhered solely to the plain language of the statute in denying him an attorney-fee award. In doing so, the trial court applied the plain and unambiguous terms of OCGA § 9-11-68 to the facts of this case, correctly noting the interplay between subsections (a), (b) (2), and (c) of the statute.

OCGA § 9-11-68 (a) provides:

At any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days (or 20 days if it is a counteroffer) before trial, either party may serve upon the other party, but shall not file with the court, a written offer, denominated as an offer under this Code section, to settle a tort claim for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly. . . .

Thus, under subsection (a), Harris was required to make his counteroffer at least 20 days prior to trial, which he did. Indeed, after Mahone made an initial written settlement offer of $15,000 on September 8, 2015, Harris responded with a written counteroffer of $22,000 on September 11, 2015, which was 24 days prior to the beginning of trial on October 5, 2015.

The next subsection at issue, OCGA § 9-11-68 (c), provides:

Any offer made under this Code section shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree, but an offeror shall not be entitled to attorney’s fees and costs under subsection (b) of this Code section to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period). A counteroffer shall be deemed a rejection but may serve as an offer under this Code section if it is specifically denominated as an offer under this Code section. Acceptance or rejection of the offer by the offeree must be in writing and served upon the offeror. An offer that is neither withdrawn nor accepted within 30 days shall be deemed rejected. The fact that an offer is made but not accepted does not preclude a subsequent offer. . . .

In compliance with the foregoing subsection, both Mahone’s initial offer and Harris’s counteroffer provided that each would remain open for 30 days. But, as previously discussed, Mahone never accepted or rejected Harris’s counteroffer in writing, Harris never withdrew the counteroffer in writing, and the case was tried from October 5 to October 8, 2015 (i.e., prior to the expiration of Harris’s counteroffer). And applying the plain language of OCGA § 9-11-68 (c), the trial court correctly concluded that, under such circumstances, Harris’s counteroffer — which was dated September 11, 2015 — was deemed rejected 30 days later on October 11, 2015, which was three days after the trial’s conclusion.

Finally, under OCGA § 9-11-68 (b) (2),

[i]f a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the plaintiff or on the plaintiff’s behalf from the date of the rejection of the offer of settlement through the entry of judgment.

In applying the plain and unambiguous requirements of subsection (b) (2), the trial court properly found that Harris was eligible to recover attorney fees and litigation costs because the jury awarded him $35,000 in damages, which was more than 125 percent of his pretrial counteroffer to settle the case for $22,000.

But as set forth supra, subsection (b) (2) also provides that a plaintiff who is awarded the requisite amount of damages may only recover attorney fees and litigation expenses “from the date of the rejection of the offer of settlement through the entry of judgment.” Thus, Harris is only entitled to recover attorney fees and litigation expenses that he incurred between October 11, 2015, when his counteroffer was deemed rejected (30 days after it was made), until November 1, 2015, when the trial court entered its final judgment. And because Harris failed to show that he incurred any such fees and expenses during that time, the trial court did not err in denying Harris an award of attorney fees under OCGA § 9-11-68.

Nevertheless, despite the trial court’s application of the clear and unambiguous terms of the statute, Harris argues that the trial court erred in construing OCGA § 9-11-68 in such a way that “cre-at[ed] the possibility of an absurd result.” Specifically, he contends that it is absurd and untenable for a counteroffer that is made at least 20 days before the trial’s conclusion, as allowed by subsection (a), to remain open for 30 days under subsection (c) in cases in which the 30-day period does not expire until after the jury has rendered its verdict. Under such circumstances, Harris claims that “a defendant could, as in this case, fail to accept a counteroffer that was a mere $7,000 more than his own offer, proceed to trial, be held liable by the jury for $35,000, then accept the [lower] offer that had been made prior to trial.” According to Harris, the General Assembly “could not have possibly contemplated” such a result. But merely because an outcome is unfavorable to a prevailing plaintiff does not in and of itself render it absurd or untenable.

Harris is correct, of course, that “courts must construe statutes in a way that square[s] with common sense and sound reasoning.” Furthermore, it is the duty of the court to “consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” But we reiterate that when the language of a statute is “plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.” This is because under our “system of separation of powers this Court does not have the authority to rewrite statutes.” Indeed, the doctrine of separation of powers is “an immutable constitutional principle which must be strictly enforced[,] [and] [u]nder that doctrine, statutory construction belongs to the courts, legislation to the legislature.” Thus, we cannot and will not “add a line to the law.” And as to attorney-fee statutes specifically, we have repeatedly explained that because “any statute that provides for the award of attorney fees is in derogation of common law, it must be strictly construed against the award of such damages.” In other words, such statutes, including OCGA § 9-11-68, “must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.”

In this case, Harris would have us depart from these well-established principles and construe OCGA § 9-11-68 differently to resolve his perceived (and self-imposed) conflict between subsections (a) and (c), which plainly require a counteroffer to remain open for 30 days when it is made less than 30 days prior to trial, or even as here, less than 30 days prior to the conclusion of trial. But although the trial court found that, in this particular case, the application of both subsections (a) and (c) yielded a “bizarre outcome” (i.e., that Harris’s counteroffer remained open until three days after the jury rendered its verdict in his favor), it was one that occurred as a direct result of Harris’s own conscious decision to allow his counteroffer to remain open past the time of trial.

Concededly, the application of OCGA § 9-11-68 (a) and (c) to the particular facts of this case appears to have produced an unusual outcome that presumably was unintended by Harris, the prevailing party at trial. But Harris ignores that, under OCGA § 9-11-68 (c), he could have easily avoided such adverse consequences by withdrawing his counteroffer in writing at any time prior to the trial’s conclusion. But for reasons unknown to this Court, Harris instead allowed his counteroffer to remain open for the entire 30-day period required by OCGA § 9-11-68 (c) and explicitly provided for as much in the counteroffer itself. And while Harris would not have been eligible to recover attorney fees under OCGA § 9-11-68 if he had withdrawn his counteroffer prior to the expiration of the 30-day time period, doing so would have avoided the allegedly “absurd” result of allowing his pretrial counteroffer to remain open following a jury verdict that was more favorable to him.

Regardless, Harris has cited to no authority (and we find none) remotely suggesting that the absurdity doctrine should apply here. Indeed, as previously noted, the fact that Harris is unable to receive attorney fees under OCGA § 9-11-68 as a result of the purposeful manner in which he timed his counteroffer can hardly be characterized as absurd. It was poor timing on his part, and nothing more. Moreover, the fact that Mahone could have accepted Harris’s counteroffer for an amount less than the jury’s verdict is also not a result that is properly classified as an absurdity It is hardly absurd or impractical for parties to enter into post-trial settlement agreements that reduce or alter the amount of damages awarded by the jury. To the contrary, under certain circumstances, such post-verdict settlements may even be desirable to a prevailing plaintiff. For example, a plaintiff may choose to settle with a tortfeasor defendant for a lesser amount than the jury’s verdict to avoid a lengthy appeals process that could forestall collection of the judgment, or alternatively, a plaintiff may, to achieve some level of certainty in the outcome, desire a settlement in lieu of defending against post-trial motions. This is true regardless of whether Harris subjectively desired or intended for his counteroffer to lead to a post-verdict settlement lower than the jury’s verdict. The bottom line is that he has provided us with no basis for concluding that such settlements are absurd, unrealistic, or even uncommon. And we reiterate that, although Harris’s failure to withdraw his counteroffer did not actually result in his receiving less than the full amount of the jury’s award, to the extent that such a result is hypothetically possible under OCGA § 9-11-68 in other cases, a plaintiff can avoid this potentially adverse result by acting in his or her own best interest and withdrawing the offer prior to its expiration.

Furthermore, each of Harris’s proposed alternative constructions of OCGA § 9-11-68 requires this Court to ignore the plain and unambiguous language actually employed by the statute and construe it based on mere speculation as to what the General Assembly may or may not have intended. But again, that is precisely what courts are unauthorized to do. For example, Harris suggests that we construe subsection (a)’s allowance for counteroffers to be made as late as 20 days before trial as an exception to subsection (c)’s requirement that all offers and counteroffers remain open for 30 days. But nothing in the plain language of OCGA § 9-11-68 (a) or (c) indicates that there are any exceptions to subsection (c)’s express requirement that all offers made under the statute remain open for at least 30 days unless it is sooner withdrawn or rejected in writing. In fact, subsection (c) plainly provides that an offer or counteroffer remaining open for 30 days (unless it is rejected during that time) is a prerequisite to the recovery of attorney fees and litigation expenses.

Harris further contends that this Court should construe Mahone’s written jury instructions as a formal rejection of his counteroffer. This argument is a nonstarter. Harris identifies no language in Mahone’s proposed jury instructions that even references his counteroffer, much less suggests any textual basis to reject it. Moreover, unlike proposed jury instructions, OCGA § 9-11-68 (a) provides that written offers (and presumably any responsive writings pertaining thereto) “shall not [be] file[d] with the court.” Instead, under OCGA § 9-11-68 (c), “[acceptance or rejection of the offer by the offeree must be in writing and served upon the offeror.”

Harris also asserts that the trial court’s construction of OCGA § 9-11-68 is erroneous because it “completely reads out of the statute the 20-day time period [allowed] for counteroffers under subsection (a).” Again, we disagree. Subsection (a) operates to allow counteroffers, unlike initial offers, to be made as late as 20 days prior to trial, and nothing in the trial court’s application of the statute requires counteroffers to be made any earlier. As explained in detail supra, the trial court merely applied the plain language of the statute in determining that if a plaintiff chooses to make a counteroffer less than 30 days prior to trial as allowed by subsection (a), the counteroffer must nevertheless remain open for 30 days unless rejected or withdrawn in writing as required by subsection (c). Conversely, the actual elimination of subsection (a)’s 20-day time period for counter - offers would mean that all offers, including counteroffers, must be made at least 30 days prior to trial. The trial court’s application of OCGA § 9-11-68 resulted in no such requirement.

Finally, Harris argues that the trial court’s construction of OCGA § 9-11-68 contravenes the General Assembly’s stated “purpose” for the statute, which is to encourage settlements and avoid unnecessary litigation. And given this overarching purpose, Harris contends that Mahone’s decision to proceed to trial should be deemed a rejection of the counteroffer.

Without question, as recognized by the Supreme Court of Georgia, the “clear purpose of the statute is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation, thereby advancing this State’s strong public policy of encouraging negotiations and settlements.” But the commendable policy, as reflected throughout the text of OCGA § 9-11-68, cannot be used as an excuse to negate Harris’s purposeful decision to allow his counteroffer to remain open past the time of trial. Furthermore, to the extent that a party chooses to allow his or her offer to remain open beyond the time of trial (either by mistake or for some other reason), this decision cannot be said to run afoul of the State’s policy of encouraging negotiations and settlements. Indeed, post-trial settlement agreements are consistent with this stated purpose, as they can avoid the lengthy appellate process and related delays in collecting a judgment, as well as provide certainty to the parties and finality to the litigation. And as to Harris’s proposed solution of inferring that, under OCGA § 9-11-68, a defendant rejects a pending counteroffer by proceeding to trial, we stress that subsection (c) provides for only three ways in which a plaintiff’s counteroffer expires: (1) withdrawal by the plaintiff in writing, (2) rejection by the defendant in writing, or (3) the expiration of 30 days. To accept Harris’s proposed construction would add a fourth and impermissibly extratextual method for a counteroffer to expire or be deemed rejected (i.e., when trial commences). Suffice it to say, we are not at liberty to read additional provisions into unambiguous statutes with clear terms such as the one before us.

In sum, we emphasize that when judges

start discussing not the meaning of the statutes the legislature actually enacted, as determined from the text of those laws, but rather the unexpressed “spirit” or “reason” of the legislation, and the need to make sure the law does not cause “unreasonable consequences,” we venture into dangerously undemocratic, unfair, and impractical territory.

Given the foregoing, the trial court properly found that under the plain language of OCGA § 9-11-68, Harris’s pretrial counteroffer remained open for 30 days until it was deemed rejected following trial on October 11, 2015. And because OCGA § 9-11-68 (b) (2) only allows for attorney fees and litigation costs incurred from the date of rejection until the date of the final judgment, Harris was not entitled to a fee award under this statute, as he did not incur any attorney fees during that time period. To the extent that this straightforward application of the relevant statutory subsections to the facts of this case produces a “bizarre result,” it is one of Harris’s own making.

2. Next, Harris argues that the trial court erred by denying his motion for fees under OCGA § 9-15-14 (a) and (b) based on an erroneous factual finding that his counsel failed to testify as to the amount of reasonable and necessary fees that Harris incurred litigating the allegedly frivolous issue. We agree, and therefore, reverse the trial court’s denial of Harris’s motion for attorney fees under OCGA § 9-15-14 and remand the case for further consideration.

At the outset, we note that this Court reviews a trial court’s ruling on “a motion for attorney fees and litigation expenses under OCGA § 9-15-14 (a) using the ‘any evidence’ standard, and one based on OCGA § 9-15-14 (b) for an ‘abuse of discretion.’ ” And as summarized by this Court,

[a]n award under OCGA § 9-15-14 (a) is mandated when a party has asserted a defense with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted defense. An award under OCGA § 9-15-14 (b) is permitted when a party’s defense of an action “lacked substantial justification”; was “substantially frivolous, substantially groundless, or substantially vexatious”; when the defense “was interposed for delay or harassment,” or when a party “unnecessarily expanded the proceeding by other improper conduct.”

But importantly, in cases involving OCGA § 9-15-14 (a) or (b), the trial court “must limit the fee [ ] award to those fees incurred because of the sanctionable conduct.”

Here, Harris moved for attorney fees and costs of litigation under both of the foregoing subsections of OCGA § 9-15-14. Specifically, Harris argued that he was entitled to the attorney fees he incurred for responding to and moving to strike Mahone’s use of inadmissible hearsay as to his counsel’s alleged conversations with jurors. According to Harris, such a fee award was mandatory under subsection (a) because Mahone’s arguments based on unsworn juror testimony were “completely absent of any justiciable issue of law or fact.” Similarly, Harris contended that the trial court had the discretion to award him attorney fees under subsection (b) because there was no substantial justification for using juror hearsay to defend against his motion for fees under OCGA § 9-11-68.

But the trial court, assuming without deciding that those arguments had merit, denied Harris’s motion solely because his counsel testified that “he had incurred $1,500 in fees for post-trial motions, but [counsel] did not delineate between the time spent on statutory interpretation [of OCGA § 9-11-68] and juror[-]testimony arguments.” However, as Harris explains on appeal, the foregoing factual finding is belied by the record. Indeed, after specifically arguing that Mahone’s reliance on juror hearsay was frivolous and without substantial justification, Harris’s counsel concluded by saying, “[a]nd I will state in my place that my fees dealing with that issue which are, you know, after the trial were approximately five hours, and at our reasonable hourly rates that wouldbe approximately [$1,500] in fees dealing with that hearsay issue.” Thus, contrary to the trial court’s findings, Harris’s counsel testified to the number of hours he spent working on the juror-hearsay issue, as well as the amount of fees that Harris incurred litigating that particular issue, and he represented to the court that those fees were based on a reasonable hourly rate. Because the trial court denied Harris’s motion for attorney fees under OCGA § 9-15-14 based solely on an erroneous factual finding as to counsel’s testimony, we reverse the court’s denial of the motion and remand the case for the trial court to reconsider whether, in light of the evidence presented, an award of fees is warranted under OCGA § 9-15-14.

Decided March 1, 2017.

Graham & Jensen, Jason W. Graham, Eric L. Jensen, for appellant.

Gardner Trial Attorneys, Timothy J. Gardner, Henrietta G. Brown; The Werner Law Firm, Benjamin Z. Levy, for appellee.

For all of the foregoing reasons, we affirm the trial court’s denial of Harris’s motion for fees under OCGA § 9-11-68, but we reverse the court’s denial of Harris’s motion for fees under OCGA § 9-15-14 and remand the case with direction.

Judgment affirmed in part and reversed in part, and case remanded with direction.

Reese and Bethel, JJ., concur.

        See OCGA § 9-11-68 (b) (2) (providing for an award of attorney fees and litigation costs to a plaintiff when the jury awards him or her 125 percent or more of a pretrial settlement offer that was rejected by the defendant).

        See OCGA § 24-6-606 (b) (“Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify by affidavit or otherwise nor shall a juror’s statements be received in evidence as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon the jury deliberations or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith . . . .”).

       The trial court found that, under OCGA § 9-11-68, Harris could recover any attorney fees he incurred beginning 30 days after he made the September 11,2015 counteroffer. But while the trial court calculated that date to be October 10, 2015, the 30th day following September 11, 2015, was actually October 11, 2015. This apparently inadvertent one-day discrepancy has no bearing on the outcome of this appeal, and as a result, for the sake of clarity, we refer only to October 11, 2015, as the 30th day following Harris’s counteroffer.

        Brantley Land & Timber, LLC v. W & D Investments, Inc., 316 Ga. App. 277, 279 (729 SE2d 458) (2012) (punctuation omitted); see also Lue v. Eady, 297 Ga. 321, 326 (2) (a) (773 SE2d 679) (2015) (“The interpretation of statutes . . . presents a question of law for the court.”).

        Coker v. Moemeka, 311 Ga. App. 105, 107 (1) (714 SE2d 642) (2011) (punctuation omitted); accord Artson, LLC v. Hudson, 322 Ga. App. 859, 860 (747 SE2d 68) (2013).

        Holcomb v. Long, 329 Ga. App. 515, 517 (1) (765 SE2d 687) (2014); accord In the Interest of L. T. 325 Ga. App. 590, 591 (754 SE2d 380) (2014); Kemp v. Kemp, 337 Ga. App. 627, 632 (788 SE2d 517) (2016); see, e.g., Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (examining the text of a statute with the “canons of statutory construction in mind”).

        Holcomb, 329 Ga. App. at 517 (1) (punctuationomitted); accord Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015); May v. State, 295 Ga. 388, 391 (761 SE2d 38) (2014); Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013).

        Holcomb, 329 Ga. App. at 517 (1); accord Deal, 294 Ga. at 172 (1) (a); see also State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies) . . . .”).

        Holcomb, 329 Ga. App. at 517 (1); see also Arizona v. Inter Tribal Council of Arizona, Inc., _ U. S. _ (II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (Scalia, J.) (“Words that can have more than one meaning are given content, however, by their surroundings.” (citation and punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); Scherr v. Marriott Int’l, Inc., 703 F3d 1069, 1077 (II) (C) (2) (7th Cir. 2013) (Manion, J.) (noting that in statutory construction cases, courts “begin with the language of the statute itself and the specific context in which that language is used”) (citation and punctuation omitted).

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774 SE2d 688) (2015); Chan, 296 Ga. at 839 (1); Fed. Deposit Ins. Corp. v. Loudermilk, 295 Ga. 579, 588 (2) (761 SE2d 332) (2014); Deal, 294 Ga. at 172-73 (1) (a).

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord In the Interest of L. T. 325 Ga. App. at 592; Kennedy v. Carlton, 294 Ga. 576, 578 (2) (757 SE2d 46) (2014); Doe v. State, 290 Ga. 667, 668 (725 SE2d 234) (2012).

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Luangkhot, 292 Ga. at 424 (1); see Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

        Horton v. Dennis, 325 Ga. App. 212, 216 (750 SE2d 493) (2013) (punctuation omitted); accord Kemp, 337 Ga. App. at 633; Joyner v. Raymond James Fin, Servs., Inc., 268 Ga. App. 835, 838 (2) (602 SE2d 871) (2004); Holland v. Caviness, 292 Ga. 332, 337 (737 SE2d 669) (2013) (“A statute does not need to expressly say, ‘this is intended to preempt the common law.’ The actual canon of statutory construction is that statutes in derogation of the common law must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.” (punctuation omitted)); Couch, v. Red Roof Inns, Inc., 291 Ga. 359, 364 (1) (729 SE2d 378) (2012) (same).

       As discussed more fully infra, rather than arguing that OCGA § 9-11-68 is ambiguous or that the trial court misapplied its terms, Harris maintains that the court erred in adhering to the plain language of the statute because doing so allows for the possibility of an “absurd” result and contravenes the “purpose” of the statute, which is to avoid unnecessary litigation.

       (Emphasis supplied.)

       We acknowledge that Mahone’s initial settlement offer was not made at least 30 days prior to trial, as required by OCGA § 9-11-68 (a). Indeed, Mahone’s offer was dated September 8, 2015, which was only 27 days prior to when trial commenced on October 5, 2015. However, as Harris is the only party claiming entitlement to attorney fees under the statute, our focus is on the date of his counteroffer, which, in compliance with OCGA § 9-11-68 (a), was made at least 20 days prior to trial. See OCGA § 9-11-68 (a) (providing that a party may make a written settlement offer not less than 30 days (or 20 days if it is a counteroffer) before trial).

       (Emphasis supplied.)

        See OCGA § 9-11-68 (c) (“An offer that is neither withdrawn nor accepted within 30 days shall be deemed rejected.”).

       (Emphasis supplied.)

       Mahone does not dispute that 125 percent of Harris’s counteroffer is $27,500.

       OCGA § 9-11-68 (b) (2).

        See Georgia Dep’t of Corr. v. Couch, 295 Ga. 469, 483-84 (3) (a) (759 SE2d 804) (2014) (“A naked assertion that the fees are ‘reasonable,’ without any evidence of hours, rates, or other indication of the value of the professional services actually rendered is inadequate.”); Hughes v. Great S. Midway, Inc., 265 Ga. 94, 95 (1) (454 SE2d 130) (1995) (holding that the trial court erred in awarding attorney fees when the party requesting those fees “failed to prove the actual costs of the attorney and the reasonableness of those costs” (punctuation omitted)); Sims v. GT Architecture Contractors Corp., 292 Ga. App. 94, 96 (1) (663 SE2d 797) (2008) (“[A]n award of attorney fees cannot stand [when] the plaintiff fails to prove the actual costs of his attorneys and the reasonableness of those costs.”); Daniel v. Smith, 266 Ga. App. 637, 640 (2) (597 SE2d 432) (2004) (“An award of attorney fees is unauthorized if [the plaintiff] failed to prove the actual costs of his attorneys and the reasonableness of those costs.” (punctuation omitted)).

        See Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009) (“[When] the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. In fact, [when] the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” (punctuation omitted)); Hough v. State, 279 Ga. 711, 716 (2) (a) (620 SE2d 380) (2005) (same); Abdulkadir v. State, 279 Ga. 122, 123 (2) (610 SE2d 50) (2005) (same).

       Although Harris repeatedly cites a defendant’s post-trial acceptance of a pretrial counteroffer following an unfavorable jury verdict as an absurd outcome, we note that such a scenario did not occur in this case. Instead, Mahone remains bound by the jury’s verdict because he did not accept Harris’s counteroffer before it was deemed rejected on October 11, 2015. But even if Mahone had accepted Harris’s counteroffer after the trial, it would in no way change our analysis of the relevant statutory subsections. To the extent that the outcome in this case can possibly be characterized as “bizarre,” this is so only because of Harris’s own choices.

        Palmyra Park Hosp., Inc. v. Phoebe Sumter Med, Ctr, 310 Ga. App. 487, 491 (1) (714 SE2d 71) (2011) (punctuation omitted); accord Staley v. State, 284 Ga. 873, 874 (1) (672 SE2d 615) (2009); State v. Mulkey, 252 Ga. 201, 204 (2) (312 SE2d 601) (1984); see Muscogee Cty. Bd,

        of Tax Assessors v. Pace Indus., Inc., 307 Ga. App. 532, 535 (705 SE2d 678) (2011) (“Our interpretation of [a] statute must square with common sense and sound reasoning.” (punctuation omitted)).

        Palmyra Park Hosp., Inc., 310 Ga. App. at 491 (1) (punctuation omitted); accord Staley, 284 Ga. at 873-74 (1); but see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 239 (1st ed. 2012) (“The doctrine of absurdity is meant to correct obviously un in tended dispositions, not to revise purposeful dispositions that, in light of other provisions of the applicable code, make little if any sense”).

        Chase, 285 Ga. at 695 (2); see supra note 12 & accompanying text.

        Allen v. Wright, 282 Ga. 9, 12 (1) (644 SE2d 814) (2007) (punctuation omitted); accord Colon v. Fulton Cty., 294 Ga. 93, 97 (2) (751 SE2d 307) (2013); State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006); see West v. State, 300 Ga. 39, 44 (793 SE2d 57) (2016) (“While this Court has the authority to narrow a statute to avoid unconstitutional infirmities under our system of separation of powers, this Court does not have the authority to rewrite statutes.” (punctuation omitted)).

        Allen, 282 Ga. at 12 (1) (punctuation omitted); accord Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 276 (3) (658 SE2d 603) (2008); Turner v. Georgia River Network, 297 Ga. 306, 308-09 (773 SE2d 706) (2015); Fielden, 280 Ga. at 448.

        Allen, 282 Ga. at 12 (1) (punctuation omitted).

        Horton, 325 Ga. App. at 216 (punctuation omitted) (emphasis supplied); accord Kemp, 337 Ga. App. at 633; Doster v. Bates, 266 Ga. App. 194, 195 (1) (596 SE2d 699) (2004); see Holland, 292 Ga. at 337 (“A statute does not need to expressly say, ‘this is intended to preempt the common law.’ The actual canon of statutory construction is that statutes in derogation of the common law must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.” (punctuation omitted)); Couch., 291 Ga. at 364 (1) (same).

        Couch., 291 Ga. at 364 (1) (punctuation omitted) (emphasis supplied); accord Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 512 (1) (614 SE2d 745) (2005); see Alessi v. Cornerstone Associates, Inc., 334 Ga. App. 490, 493 (780 SE2d 15) (2015) (“[BJecause OCGA § 9-11-68 entitles one party to an award of attorney fees and costs, it is in derogation of common law and it must be strictly construed against the award of such damages.” (punctuation omitted)).

        See OCGA § 9-11-68 (c) (“Any offer made under this Code section shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree . . . .” (emphasis supplied)).

        See id. (“[A]n offeror shall not be entitled to attorney’s fees and costs under subsection (b) of this Code section to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period.”)).

        See, e.g., Med. Staffing Network, Inc. v. Connors, 313 Ga. App. 645, 650-51 (3) (722 SE2d 370) (2012) (enforcing a settlement agreement entered into by the parties after the jury’s verdict, but before the court’s final judgment, which provided that the defendants would pay a certain portion of the damages award in full in exchange for the discharge of all claims against them that were, or might have been, the subject matter of the complaint); U.S. Fid. & Guar. Co. v. Evans, 116 Ga. App. 93, 94-96 (2) (156 SE2d 809) (1967) (holding that an insurance company acted in bad faith when it rejected a settlement offer within the policy limits after a verdict in excess of the policy limits and prior to appeal); see also Tallent v. Liberty Mut. Ins. Co., No. 1997-1777H, 2005 WL 1239284, at *14 (1) n.9 (Mass. Super. 2005) (recognizing “the need to balance the desirability of settlement post-verdict with the danger of stifling the appellate process” (emphasis supplied)).

        SeeR.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 754 NE2d 668, 678 (2) (2001) (“If a losing party intends to take an appeal and to challenge the basis of the amount of a jury verdict, it may be reasonable to offer a compromised amount in settlement.”); Ziarko v. Soo Line R., 641 NE2d 402, 411 (1994) (“There exist several reasons why a plaintiff would settle with a tortfeasor defendant for a lesser amount than the jury’s verdict subsequent to a judgment, none of which point to collusion or fraud. At the time of the settlement, post-trial motions were pending; a viable explanation for plaintiff’s settlement is that she anticipated a lengthy appeal process which might have forestalled collection of her judgment, providing an impetus for her to settle. A further reason for settlement while post-trial motions were pending could be plaintiff’s desire to settle in order to achieve some measure of certainty.” (punctuation omitted)).

        See supra notes 27 through 31 and accompanying text.

        See OCGA § 9-11-68 (c) (“Any offer made under this Code section shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree, but an offeror shall not be entitled to attorney’s fees and costs under subsection (b) of this Code section to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period).” (emphasis supplied)).

        See id. (“[A]n offeror shall not be entitled to attorney’s fees and costs under subsection (b) of this Code section to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period).”).

       (Emphasis supplied.)

       (Emphasis supplied.)

        Couch., 295 Ga. at 471 (1) (b) (punctuation omitted); accord Tiller v. RJJB Associates, LLP, 331 Ga. App. 622, 627 (1) (c) (770 SE2d 883) (2015).

        See supra notes 35 and 36.

        See generally OCGA § 9-11-68 (c).

        See supra notes 28 through 30 and accompanying text; see also Chase, 285 Ga. at 695 (2) (“Georgia law provides that the express mention of one thing in an act or statute implies the exclusion of all other things.”); Allen, 282 Ga. at 14 (3) (same).

        Merritt v. State, 286 Ga. 650, 656 (690 SE2d 835) (2010) (Nahmias, J., concurring specially).

        Unifund OCR Partners v. Mehrlander, 309 Ga. App. 685, 686 (710 SE2d 882) (2011).

        Fulton Cty. Sch. Dist. v. Hersh, 320 Ga. App. 808, 814 (2) (740 SE2d 760) (2013) (citations and punctuation omitted); see OCGA § 9-15-14 (a), (b).

        Roylston v. Bank of Am., N.A., 290 Ga. App. 556, 562-63 (2) (a) (660 SE2d 412) (2008) (punctuation omitted).

       (Emphasis supplied.) See Rank v. Rank, 287 Ga. 147, 149 (2) (695 SE2d 13) (2010) (“Attorneys are officers of the court, and their statements in their place, if not objected to, serve the same function as evidence. In the absence of an objection, counsel’s evidentiary proffers to the trial court during a hearing willbe treated on appeal as the equivalent of evidence.” (citation and punctuation omitted)).

        See Jones v. Unified Gov’t of Athens-Clarke Cty., 312 Ga. App. 214, 221 (2) (c) (718 SE2d 74) (2011) (“In order to recover attorney fees, a prevailing party must prove both their actual cost and their reasonableness. It is well-settled that a party’s attorney himself is competent to testify as to his opinion on reasonable fees.” (punctuation and footnote omitted)); Santora v. Am. Combustion, Inc., 225 Ga. App. 771, 776 (3) (485 SE2d 34) (1997) (“Because counsel’s testimony was competent to show the reasonableness of the billings, [the appellee] met its burden of proof as to the attorney fees.”). Cf. Duncan v. Cropsey, 210 Ga. App. 814, 815-16 (2) (437 SE2d 787) (1993) (reversing an award of attorney fees under OCGA § 9-15-14 when counsel did not set forth the amount of hours that he expended on the case, did not state the number of hours that were attributable to the sanctionable conduct, and did not state that the requested amount of fees was reasonable).