An unaccepted offer of judgment that contains internal inconsistencies and ambiguities as to its scope is neither enforceable nor supports the award of attorney fees under Georgia’s Rule 68. The Georgia Court of Appeals held the defendants by awarding attorney fees to defendants In the amount of US $ 837,445 a court reversed the judgment offer could not be enforced because it was unclear which claims were being offered for resolution in a case involving both contractual and tort claims. Oak leaf v Piedmont / Maple, LLC, case no.A20A2052, 2021 Ga. App. LEXIS 38 (January 29, 2021).

In Eichenblatt, a former real estate investment company partner sued his former company and business partners for mismanagement after the company ran into financial difficulties that reduced quarterly dividends. Over the next decade, the case grew due to a multitude of claims and counterclaims, two legal proceedings, and four appeals. In the course of the lawsuit, the defendants made an offer of judgment or an “offer of settlement” under Georgia’s Rule 68, OCGA § 9-11-68. With some significant differences, this section of the code contains Georgia’s state law, which results from the judgments offered under Rule 68 of the Federal Code of Civil Procedure.

In the context of the lawsuit, the plaintiff alleged breach of contract and breach of trust claims. Georgian rule 68, however, only applies to the “settlement of a tort”. If necessary, it entitles defendant providers to reclaim reasonable attorney fees if plaintiff rejects the offer and seeks final judgment for less than 75 percent of the amount offered.

After the plaintiff rejected the offer of judgment, he prevailed, but ultimately only withdrew 63 percent of the defendant’s offer under Rule 68. The court therefore ordered the plaintiff to pay the defendants legal fees of US $ 837,445.

On appeal, the plaintiff successfully asserted that the attorney’s fee under Georgia’s Rule 68 could not be enforced, as the rejected offer, according to its provisions, applies to both the plaintiff’s contract and tort claims. In one paragraph, the defendants even offered to settle the claim “for breach of trust duty”. In another case, they offered to settle “all” claims made by the plaintiff. The appellate court ruled that this editorial lack of clarity made the defendants’ offer unenforceable. “[b]because a plausible reading. . . is that both the tort claim and the contractual claim had to be settled. “Given that Georgia’s Rule 68 is limited to resolving tort claims, the appeals court found the defendants’ offer void and canceled the high award of attorney’s fees.

Eichenblatt emphasizes the importance of carefully working out the offers of judgment or settlement under Rule 68. See also e.g. B. Vasconcelo v Miami Auto Max, Inc., 981 F.3d 934, 943 (11th Cir. 2020) (taking into account the ambiguous challenge to the allocation of costs under federal rule 68 in the FLSA lawsuit). Whether in state or federal courts, such offers are valuable in dealing with unreasonable claimants, but only if they are written clearly and consistently in accordance with the applicable rules. Employers considering whether to submit a judgment offer must consider the nuances in the forum’s judgment offer. Jackson Lewis attorneys are available to employers to assess whether they are making an offer of judgment and, if so, how they are enforceable and effective.