OCGA § 9-11-68 Fee Motions Must Be Filed Within the Same Term as Judgment Absent a Statutory Deadline

Introduction

In Nesmith v. Branch (A25A1575, decided January 14, 2026), the Court of Appeals of Georgia addressed a recurring procedural problem under Georgia’s offer-of-settlement statute, OCGA § 9-11-68: when a prevailing party must move for post-judgment attorney fees and litigation expenses when the statute itself does not specify a filing deadline.

The case arose from an automobile collision. Plaintiff Susana Nesmith made a statutory settlement offer of $35,000. Defendant Amy Branch did not accept. After trial, the jury returned a $59,000 verdict and the trial court entered judgment on September 26, 2024—near the end of the court’s September term (which expired September 30). Nesmith filed her OCGA § 9-11-68 fee motion on October 15, in the next term of court. The trial court denied the motion as untimely, and the Court of Appeals affirmed.

The key issues were (1) whether an OCGA § 9-11-68 fee motion can be filed after the term of court in which judgment was entered, and (2) whether due process or “reasonableness” principles require a post-judgment filing window (such as 30 days) notwithstanding the statute’s silence.

Summary of the Opinion

The Court of Appeals held that, under its controlling precedent, a party seeking attorney fees and expenses under OCGA § 9-11-68 must file the motion within the same term of court in which the final judgment is entered, unless the General Assembly provides a different deadline. Because Nesmith filed in a later term, the trial court lacked authority to award fees.

The court rejected Nesmith’s attempts to recharacterize the fee request as a “timely post-judgment sanction motion” that could be filed later, rejected a due-process-based request to adopt a judicial “reasonable time” rule (e.g., 30 days), and rejected the argument that mention of the offer-of-settlement issue in the pretrial order kept the matter “pending” beyond the term.

Analysis

Precedents Cited

1) Standard of review

  • Alessi v. Cornerstone Assoc., Inc., 334 Ga. App. 490 (780 SE2d 15) (2015): Cited for de novo review of a legal question. The timeliness/authority question was treated as purely legal because the relevant dates were undisputed.

2) Core controlling precedent on OCGA § 9-11-68 timing

  • Med. Ctr. of Cent. Ga., Inc. v. Cancel, 356 Ga. App. 529 (848 SE2d 150) (2020): This is the opinion’s anchor. Cancel held that because OCGA § 9-11-68 (as amended) is silent on a filing deadline, courts apply the “general principle” that a trial court’s authority ends with the term in which final judgment is entered. Nesmith reaffirms Cancel and applies it straightforwardly: a fee motion filed after the term is too late.

3) Supreme Court guidance on the nature of OCGA § 9-11-68 fees

  • Ga. Dep't of Corr. v. Couch, 295 Ga. 469 (759 SE2d 804) (2014): Used to emphasize that OCGA § 9-11-68 does not create an independent cause of action; the fee request is “wholly dependent” on conduct in the underlying tort action and “may be sought only in connection with such action.” The Court of Appeals leveraged this to explain why, once the trial court loses jurisdiction over the case at term-end, there is no independent procedural “vehicle” to pursue fees unless the statute supplies one.
  • Junior v. Graham, 313 Ga. 420 (870 SE2d 378) (2022): Cited for distinguishing fee regimes: OCGA § 13-6-11 fees are damages awarded on the substantive claim (typically by a jury), while OCGA § 9-11-68 fees are a policy-based, post-judgment cost tied to litigation conduct and determined by the court. Nesmith argued this distinction undermined Cancel; the court held it did not, because even if 9-11-68 fees are not “damages,” they are still not an independent claim, and therefore remain jurisdictionally tethered to the underlying action.

4) Appellate-procedure cases (contextual, not dispositive)

  • Wright v. Wright, 367 Ga. App. 15 (884 SE2d 610) (2023) and Harned v. Piedmont Healthcare Found., Inc., 356 Ga. App. 870 (849 SE2d 726) (2020): Cited to clarify that a motion for reconsideration neither tolls the notice-of-appeal deadline nor creates an independently appealable order.
  • O'Leary v. Whitehall Const., 288 Ga. 790 (708 SE2d 353) (2011) and Hill v. Buttram, 255 Ga. App. 123 (564 SE2d 531) (2002): Nesmith relied on O’Leary to argue that because post-judgment fee motions do not toll appeal time, they must be “separate” from the judgment and thus not subject to term limits. The court rejected that inference: appeal-tolling rules concern finality for appellate deadlines, not the trial court’s end-of-term authority.

5) Due process / substantive-right authorities raised and rejected

  • Southern States Chem. v. Tampa Tank & Welding, 316 Ga. 701 (888 SE2d 553) (2023): Distinguished as irrelevant to OCGA § 9-11-68; it addresses whether statutes of repose create substantive rights.
  • Mikesell v. RP Motorsports, Inc., 283 Ga. 476 (660 SE2d 534) (2008) and Fowler Prop., Inc. v. Dowland, 282 Ga. 76 (646 SE2d 197) (2007): Cited by Nesmith for “substantive rights” framing, but the court treated these as retroactivity cases (whether OCGA § 9-11-68 could apply to a cause of action that accrued before enactment), not authority for creating a post-judgment filing period that outlives the term.

6) “Pending” matters, interlocutory rulings, and OCGA § 9-11-6(c)

  • Moon v. State, 287 Ga. 304 (696 SE2d 55) (2010) and Thomas v. State, 319 Ga. 123 (902 SE2d 566) (2024): Cited for the proposition that in civil cases OCGA § 9-11-6(c) curtails the end-of-term rule as to interlocutory matters while the case remains pending. But that curtailment does not generally allow modification of a final judgment after term-end.
  • Pledger v. State, 193 Ga. App. 588 (388 SE2d 425) (1989): Used for the key distinction: interlocutory rulings can remain under the court’s control if the case remains pending; final judgments generally cannot be modified after the term, absent exceptions. The court used this framework to reject Nesmith’s “pretrial order kept it pending” argument because there was no pending fee motion when the term ended.

7) “Reasonable time” and analogy cases rejected

  • Massengale v. Ga. Power Co., 153 Ga. App. 476 (265 SE2d 830) (1980): Distinguished. It involved discovery responses where an underlying statute supplied a 30-day period; it did not authorize courts to graft a 30-day period onto a different statute that is silent.
  • H.T.E., Inc. v. Tyler Techs., Inc., 217 FSupp2d 1255 (MD Fla. 2002): Treated as an out-of-state federal decision applying Florida interpretive principles to an ambiguous Florida statute, not a basis for overriding Georgia’s term-of-court jurisdiction doctrine or the Georgia legislature’s removal of a former 30-day deadline from OCGA § 9-11-68.

Legal Reasoning

  1. OCGA § 9-11-68 is silent on timing—by legislative choice. The court emphasized statutory history: the original 2005 version contained a “within 30 days” motion requirement, but the legislature removed that language in 2006. Against that backdrop, the court was unwilling to “recreate” a 30-day rule judicially.
  2. When a statute is silent, the end-of-term authority principle controls. Following Cancel, the court applied the “general principle” that a trial court’s authority over a case ends with the term in which final judgment is entered, unless some statute provides otherwise.
  3. OCGA § 9-11-68 fees are not an independent claim and therefore cannot “float” free of the underlying action’s jurisdictional endpoint. Relying on Couch and Junior, the court reasoned that because the fee request “may be sought only in connection” with the tort action, it must be pursued while the trial court retains authority over that action (i.e., within the judgment term), absent an express statutory deadline extending the court’s authority.
  4. Not all sanction statutes are the same; the legislature knows how to provide a deadline that extends beyond the term. The court contrasted OCGA § 9-11-68 with OCGA § 9-15-14(e), which expressly allows fee motions up to 45 days after final disposition. That comparison was used to reinforce that if OCGA § 9-11-68 is to have a post-term filing window, it must come from legislative action, not judicial invention.
  5. “Pending” requires an actual pending motion, not a pretrial reservation. The pretrial order’s statement that Nesmith “may seek” fees did not constitute a pending motion. The court also noted the pretrial order did not list the issue among matters pending for consideration. Thus, OCGA § 9-11-6(c)’s treatment of pending civil matters did not help Nesmith.
  6. Due process arguments did not supply a new deadline. The court found Nesmith’s due-process/substantive-right citations inapposite (statute of repose and retroactivity cases), and declined to adopt a “reasonable time rule,” particularly where the record did not present a scenario of impossibility (e.g., judgment entered on the last day of the term with no practical chance to file).

Impact

  • Immediate practical effect: Parties seeking OCGA § 9-11-68 fees must identify the relevant court term and file within that term—especially in courts with short or monthly terms (as in Bryan County State Court, where terms “shall be monthly”). A motion filed days into the next term is jurisdictionally vulnerable even if it would be “reasonable” in ordinary calendaring terms.
  • Procedural strategy: Litigants who anticipate qualifying for OCGA § 9-11-68 should prepare a motion and supporting proof promptly upon entry of judgment, and should not assume that post-judgment practice timelines (e.g., 30 days) apply.
  • Doctrinal reinforcement: The decision strengthens Cancel as the operative rule and rejects attempts to reframe 9-11-68 fees as “separate” in a way that avoids the term limit.
  • Legislative pressure point: The court again signals that the hardship created by term-based deadlines—particularly where judgment is entered near term-end—requires legislative, not judicial, correction (e.g., reinstating an explicit 30-day window or adopting a fixed deadline akin to OCGA § 9-15-14(e)).

Complex Concepts Simplified

“Term of court” and the “end-of-term” rule
Georgia trial courts sit in defined “terms.” Traditionally, once a term ends, the court’s power to change or add to a final judgment entered in that term largely ends too, unless a statute or recognized exception allows further action. In courts with monthly terms, this deadline can be much shorter than many lawyers expect.
OCGA § 9-11-68 “offer of settlement” fees
If a defendant rejects a qualifying offer and the plaintiff later obtains a final judgment exceeding 125% of the offer, the plaintiff can recover reasonable attorney fees and litigation expenses incurred from the date of rejection through entry of judgment—unless the offer was not made in good faith. The award is decided by the judge after judgment, not by the jury as damages.
“Not an independent claim”
A “claim” is a standalone cause of action (like negligence). OCGA § 9-11-68 does not create a new lawsuit within the lawsuit; it creates a litigation-conduct consequence that exists only inside, and because of, the underlying tort action. That dependence is what makes the timing jurisdictionally sensitive once the underlying case is no longer within the trial court’s control.
Why a fee motion doesn’t toll the time to appeal, yet can still be term-limited
Appeal deadlines focus on when the merits judgment becomes final for appellate review. A fee motion can be “collateral” for appeal-tolling purposes while still requiring a timely filing in the trial court before the court’s authority over the case expires by term-end.

Conclusion

Nesmith v. Branch reaffirms a strict procedural rule: because OCGA § 9-11-68 does not set a filing deadline for fee motions, a party must move for fees within the same term of court as the judgment or risk denial for lack of trial-court authority. The court refused to (1) treat the fee request as effectively independent of the underlying action, (2) deem a pretrial order reference sufficient to keep the matter “pending,” or (3) create a judicial 30-day “reasonable time” filing period—especially given the legislature’s prior deletion of a 30-day deadline from the statute.

The decision’s broader significance is institutional: it places responsibility for any more workable, uniform post-judgment deadline on the General Assembly, not the courts, and it signals that litigants must calendar OCGA § 9-11-68 motions by court term, not by conventional post-judgment time assumptions.