In the Supreme Court of Georgia

Decided: March 8, 2022

S21G0578. JUNIOR v. GRAHAM.

 BETHEL, Justice.

This case involves the harmonization of two statutory 

provisions. The first, OCGA § 13-6-11, authorizes a jury in a civil 

suit to assess as damages certain legal expenses of a prevailing party 

when that party has specifically requested them and when the jury 

finds that the opposing party “has acted in bad faith, has been 

stubbornly litigious, or has caused the plaintiff unnecessary trouble 

and expense” prior to the initiation of litigation. The second, OCGA 

§ 9-11-68 (b) (2), provides a sanction in the form of attorney fees and 

litigation expenses incurred after the failure to accept what the 

statute defines as a reasonable settlement offer. In Junior v. 

Graham, 357 Ga. App. 815, 817-818 (849 SE2d 536) (2020), the 

Court of Appeals determined that the sanction contemplated by 
2

OCGA § 9-11-68 (b) (2) necessarily includes a set-off for the amount 

of damages awarded under OCGA § 13-6-11. 

We granted certiorari to consider whether a plaintiff may 

receive a full recovery under both statutory provisions. Because we 

conclude that the provisions provide for different recoveries despite 

using somewhat similar measures for calculating the respective 

amount of damages or sanction, a prevailing plaintiff may recover 

under each statutory provision without regard to any recovery under

the other. Accordingly, we reverse the decision of the Court of 

Appeals and remand this case with direction that the case be 

remanded to the trial court for reconsideration of the plaintiff’s

claim for attorney fees and litigation expenses pursuant to OCGA § 

9-11-68 (b) (2) in a manner consistent with this opinion.

1. We begin by briefly discussing the history of this case.1 The

record shows that Joao Junior sued Sharon Graham for injuries 

sustained from a car accident in 2010. Junior’s amended complaint 

sought compensatory damages, punitive damages, and attorney fees 

 1 The facts relevant to our analysis are not in meaningful dispute.
3

and litigation costs under OCGA § 13-6-11. After Junior filed suit, 

but before trial, Junior served Graham with a document styled

“Plaintiff’s Offer to Settle Tort Claim to Defendant Pursuant to 

OCGA § 9-11-68.” Junior’s offer proposed to settle all of his claims 

against Graham for $600,000. The offer was rejected by operation of 

law after Graham failed to accept it within 30 days of its issuance. 

See OCGA § 9-11-68 (c) (“An offer [of settlement] that is neither 

withdrawn nor accepted within 30 days shall be deemed rejected.”).

The case proceeded to trial, where the jury found in Junior’s 

favor and awarded him $3,000,000 in compensatory damages, plus 

$1,200,000 in attorney fees and $51,554.95 in litigation expenses 

pursuant to OCGA § 13-6-11. The attorney fee award was consistent 

with Junior’s fee agreement with his counsel, which called for

counsel to be paid 40 percent of any compensatory damages award. 

The combined total of attorney fees and litigation expenses awarded 

by the jury was $1,251,554.95. This amount equaled Junior’s total 

obligation for attorney fees and expenses of litigation preceding the 

verdict in the case.
4

Because the jury’s award of compensatory damages exceeded 

Junior’s offer to settle the suit for $600,000 by more than 125 

percent, he filed a post-trial motion for attorney fees and litigation 

expenses under OCGA § 9-11-68. That statute provides in relevant 

part:

If 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.

OCGA § 9-11-68 (b) (2). Graham opposed the motion, arguing that 

Junior’s settlement offer was not made in good faith, and that an 

award under OCGA § 9-11-68 would give Junior a prohibited “double 

recovery.”

The trial court, without holding an evidentiary hearing, denied 

Junior’s motion and concluded that “allowing [Junior] a further 

award of attorney’s fees would permit a double recovery.” The court

reasoned that even though OCGA §§ 9-11-68 (b) (2) and 13-6-11 
5

contemplate awards based on different conduct, the total of attorney

fees and litigation expenses used to measure the awards was

incurred as to the same cause of action against the same defendant.

The court also determined that Junior had already been “fully 

compensated” for the entire amount of attorney fees and litigation 

expenses that he incurred in this lawsuit. On that basis, the court 

determined that no additional recovery was permitted under OCGA 

§ 9-11-68 (b) (2).2

Junior appealed the denial of his request for attorney fees and 

litigation expenses under OCGA § 9-11-68 (b) (2), arguing that the 

trial court erred by determining that the jury award under OCGA § 

13-6-11 precluded the imposition of an award under OCGA § 9-11-

68 (b) (2). The Court of Appeals affirmed based on different 

reasoning. See Junior, 357 Ga. App. at 817-818.

 2 The trial court did not decide if Junior’s offer of settlement was made 

in good faith. See OCGA § 9-11-68 (d) (2) (“If a party is entitled to costs and 

fees pursuant to the provisions of this Code section, the court may determine 

that an offer was not made in good faith in an order setting forth the basis for 

such a determination. In such case, the court may disallow an award of 

attorney’s fees and costs.”). That issue may be addressed on remand.
6

Specifically, the Court of Appeals rejected the trial court’s 

rationale that receiving attorney fee and litigation expenses awards 

under both OCGA § 13-6-11 and OCGA § 9-11-68 (b) (2) in the same 

proceeding would necessarily amount to a double recovery. Instead, 

it affirmed the trial court’s ruling based on the conclusion that 

Junior could not demonstrate that he was entitled to an award 

under OCGA § 9-11-68 (b) (2) because he had no longer “incurred”

the $1,251,554.95 in attorney fees and litigation expenses as he had 

been awarded that amount as damages under OCGA § 13-6-11 and 

therefore had no uncovered expenses to which a sanction would 

apply. Id. at 818 (quoting OCGA § 9-11-68 (b) (2)). The Court of 

Appeals reasoned that “[i]n some instances, . . . a claimant may have 

incurred fees after a jury verdict but prior to entry of the final 

judgment by the trial court, in which case a subsequent award under 

OCGA § 9-11-68 (b) by a judge for such fees would be appropriate.” 

Id. But because the Court of Appeals determined that “Junior . . . 

d[id] not contend that he incurred such fees,” it affirmed the ruling 

of the trial court denying Junior’s motion for attorney fees and 
7

litigation expenses under OCGA § 9-11-68 (b) (2). Id. at 818.

We granted Junior’s petition for a writ of certiorari to consider 

whether OCGA § 9-11-68 (b) (2) requires the trial court to deduct

from the sanction any amount awarded by the jury as damages 

under OCGA § 13-6-11. Contrary to the decision of the Court of 

Appeals, we hold that the statutory schemes at issue do not provide 

for or compel any such set-off because they address different conduct

of the defendant despite using a similar measure – attorney fees and 

litigation expenses – to calculate their respective amounts.

2. (a) In interpreting OCGA §§ 9-11-68 (b) (2) and 13-6-11,

we must presume that the General Assembly meant what 

it said and said what it meant. To that end, we must 

afford the statutory text its plain and ordinary meaning, 

we must view the statutory text in the context in which it 

appears, and we must read the statutory text in its most 

natural and reasonable way, as an ordinary speaker of the 

English language would. 

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 

172-173 (1) (a) (751 SE2d 337) (2013). Moreover, “[w]hen we consider 

the meaning of a statutory provision, we do not read it in isolation, 

but rather, we read it in the context of the other statutory provisions 
8

of which it is a part.” City of Marietta v. Summerour, 302 Ga. 645, 

656 (3) (807 SE2d 324) (2017); see also Houston v. Lowes of 

Savannah, Inc., 235 Ga. 201, 203 (219 SE2d 115) (1975) (“[A] statute 

must be viewed so as to make all its parts harmonize and to give a 

sensible and intelligent effect to each part.”). The interpretation of a 

statute is a question of law, which is reviewed de novo on appeal. 

See State v. Coleman, 306 Ga. 529, 530 (832 SE2d 389) (2019).

With these principles in mind, we turn to the statutory 

provisions at issue. OCGA § 13-6-113 provides:

The expenses of litigation generally shall not be allowed 

as a part of the damages; but where the plaintiff has 

specially pleaded and has made prayer therefor and 

where the defendant has acted in bad faith, has been 

stubbornly litigious, or has caused the plaintiff 

unnecessary trouble and expense, the jury may allow 

them.

OCGA § 9-11-68, commonly called the “offer of settlement” 

statute, was added to Georgia’s Civil Practice Act as part of “tort 

reform” legislation that became effective on February 16, 2005, see 

 3 The basic provisions of OCGA § 13-6-11 have existed in some form since 

1863, see Ga. L. 1863 § 2883, and the current language of the statute was 

enacted in 1984. See Ga. L. 1984, p. 22, § 13.
9

Ga. L. 2005, p. 1, § 5, and was then amended effective April 27, 2006, 

see Ga. L. 2006, p. 446, § 1. Relevant to the issue before us, OCGA § 

9-11-68 (b) (2) provides:

If 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.

Further, OCGA § 9-11-68 (d) (1) provides that “[t]he court shall 

order the payment of [such] fees and expenses . . . upon receipt of 

proof that the judgment is one to which the provisions of either

[OCGA § 9-11-68 (b) (1) or (2)] apply[.]”4 For a plaintiff seeking to 

recover under this provision, the only prerequisites for recovery are 

the making of a good faith offer of settlement that complied with the 

 4 Subsection (b) (1), which is not at issue in this case, provides a remedy 

in cases where the defendant makes an offer of settlement that is rejected by 

the plaintiff. Under that provision, if the final judgment “is one of no liability 

or the final judgment obtained by the plaintiff is less than 75 percent of such 

offer of settlement[,]” the defendant is entitled to an award of “reasonable 

attorney’s fees and expenses of litigation incurred by the defendant or on the 

defendant’s behalf from the date of the rejection of the offer of settlement 

through the entry of judgment[.]” OCGA § 9-11-68 (b) (1).
10

requirements of OCGA § 9-11-68 (a) (which sets forth the procedural 

requirements for invoking the statute), the rejection of the offer by 

the defendant, and the plaintiff’s recovery of a final judgment in an 

amount greater than 125 percent of that offer. See OCGA § 9-11-68

(b) (2), (d) (1)-(2). As this Court has previously explained, the “clear 

purpose” of OCGA § 9-11-68 “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.” (Citation

and punctuation omitted.) Smith v. Baptiste, 287 Ga. 23, 29 (2) (694 

SE2d 83) (2010).

(b) Graham argues that Junior cannot collect attorney fees and 

litigation expenses under both OCGA §§ 13-6-11 and 9-11-68 (b) (2)

because doing so would constitute an impermissible double recovery. 

We disagree.

Graham is correct that Georgia public policy generally 

prohibits a plaintiff from a double recovery of compensatory 

damages, as we explained in Georgia Northeastern Railroad, Inc. v. 
11

Lusk, 277 Ga. 245 (587 SE2d 643) (2003):

Georgia, as part of its common law and public policy, has 

always prohibited a plaintiff from a double recovery of 

damages; the plaintiff is entitled to only one recovery and 

satisfaction of damages, because such recovery and 

satisfaction is deemed to make the plaintiff whole.

Id. at 246 (1). See also Marvin Nix Dev. Co. v. United Cmty. Bank, 

302 Ga. App. 566, 568 (692 SE2d 23) (2010) (“While a party may 

pursue inconsistent remedies, he is not permitted a double recovery 

of the same damages for the same wrong. He is entitled to only one 

satisfaction of the same damages, in either contract or tort.” (citation 

and punctuation omitted)). An exception to this decisional rule, of 

course, is where a greater recovery is authorized by statute. Many 

examples of this are found in the Georgia Code. See, e.g., OCGA §§ 

16-14-6 (c) (providing for recovery of treble damages in a civil suit 

arising from a violation of Georgia’s RICO Act); 44-5-48 (c)

(providing for treble damages for a willful violation of the statute’s 

provisions pertaining to requirements for deeds conveying interest 

in real property that has been used as a commercial landfill); Couch

v. Red Roof Inns, Inc., 291 Ga. 359, 364 (1) (729 SE2d 378) (2012) 
12

(“[A]s long as legislation does not violate the Constitution, when the 

Legislature says something clearly – or even just implies it –

statutes trump cases.”); Dove v. Dove, 285 Ga. 647, 649 (5) (680 SE2d 

839) (2009) (“Statutes, of course, are expressions of the public policy 

of this State.”).

In its opinion, the Court of Appeals cited Lusk and Marvin Nix

and acknowledged this general public policy against double 

recoveries of compensatory damages without deeming it dispositive 

of the issue presented in this case. See Junior, 357 Ga. App. at 816-

817. Lusk and Marvin Nix both involved cases in which a prohibited 

double recovery of compensatory damages had been awarded. See 

Lusk, 277 Ga. at 246-247 (1) (reversing a jury verdict on the basis 

that it included damages for diminution of property value as well as 

restoration of the property); Marvin Nix, 302 Ga. App. at 567-568 

(vacating judgment and remanding case so that the party could elect 

a remedy for either conversion or recovery on the note and guaranty 

agreements). That is not the situation in this case.

Of the two statutory provisions involved here, only OCGA § 13-
13

6-11 provides for an award of attorney fees and litigation expenses 

as part of damages. As we have previously explained, “damages 

allowed under [OCGA § 13-6-11] are compensatory.” Georgia Dept. 

of Corrections v. Couch, 295 Ga. 469, 474 (2) (a) (759 SE2d 804) 

(2014). In contrast, OCGA § 9-11-68 (b) (2) provides a sanction for 

litigation conduct:

An award under OCGA § 9-11-68 (b) is not an 

independent tort ‘claim’ or a component of tort damages; 

rather, such awards are best understood as one of many 

potential costs associated with tort litigation in Georgia, 

and in particular inappropriate conduct during such 

litigation.

Couch, 295 Ga. at 480 (2) (b). Thus, an award of attorney fees and 

litigation expenses under OCGA § 9-11-68 (b) is properly understood 

as a sanction that requires “the misbehaving party to pay the 

opposing party’s resulting attorney fees and litigation expenses.” Id. 

at 481 (2) (b). 

Moreover, there are other distinct differences between these 

statutory provisions. 

OCGA §§ 13-6-11 and 9-11-68 (b) are differently worded 

. . . . OCGA § 13-6-11 expressly makes its litigation 
14

expenses “part of the damages” to be awarded by the jury, 

and an award under OCGA § 13-6-11 must be based on 

conduct arising from the transaction underlying the cause 

of action being litigated, not conduct during the course of 

the litigation itself.[5] By contrast, attorney fees awarded 

under OCGA § 9-11-68 (b) are not identified as “damages”; 

they relate entirely to conduct during the course of the 

litigation; and they are determined post-judgment by the 

court rather than during trial by the jury.

(Citations and punctuation omitted.) Couch, 295 Ga. at 475 (2) (a). 

While OCGA § 13-6-11 permits a jury to award fees and expenses as 

part of damages, OCGA § 9-11-68 (d) (1) requires that such fees be 

awarded by the trial court after the entry of judgment when the 

statutory conditions are met.

It is also clear from the broader structure of OCGA § 9-11-68 

that the General Assembly has contemplated in other instances that 

an award of attorney fees and litigation expenses under one statute 

might be offset by a similar recovery under another statute or that 

 5 As we have recently noted in regard to OCGA § 13-6-11, “[p]ut another 

way, the element of bad faith, stubborn litigiousness, or unnecessary trouble 

‘must relate to the acts in the transaction itself prior to the litigation, not to 

the motive with which a party proceeds in the litigation.’” (Citation and 

punctuation omitted.) Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, __ 

Ga. __ (862 SE2d 295, 302 (3)) (2021).
15

recovery under one statute bars recovery under the other altogether. 

Thus, OCGA § 9-11-68 (e) provides for an award of attorney fees and 

litigation expenses to the prevailing party where “the opposing party 

presented a frivolous claim or defense.”6 However, subsection (e) (3)

expressly prohibits recovery under both that provision and OCGA § 

 6 OCGA § 9-11-68 (e) provides:

Upon motion by the prevailing party at the time that the verdict 

or judgment is rendered, the moving party may request that the 

finder of fact determine whether the opposing party presented a 

frivolous claim or defense. In such event, the court shall hold a 

separate bifurcated hearing at which the finder of fact shall make 

a determination of whether such frivolous claim or defenses were 

asserted and to award damages, if any, against the party 

presenting such frivolous claims or defenses. Under this 

subsection:

(1) Frivolous claims shall include, but are not limited to, the 

following:

(A) A claim, defense, or other position that lacks substantial 

justification or that is not made in good faith or that is made with

malice or a wrongful purpose, as those terms are defined in Code 

Section 51-7-80;

(B) A claim, defense, or other position 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 claim, defense, or other position; and 

(C) A claim, defense, or other position that was interposed for delay 

or harassment;

(2) Damages awarded may include reasonable and necessary 

attorney’s fees and expenses of litigation; and 

(3) A party may elect to pursue either the procedure specified in 

this subsection or the procedure specified in Code Section 9-15-14, 

but not both. 
16

9-15-14.7 Both OCGA §§ 9-11-68 (e) and 9-15-14 address similar 

 7 OCGA § 9-15-14 provides: 

(a) In any civil action in any court of record of this state, reasonable 

and necessary attorney’s fees and expenses of litigation shall be 

awarded to any party against whom another party has asserted a 

claim, defense, or other position 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 claim, defense, or other position. Attorney’s 

fees and expenses so awarded shall be assessed against the party 

asserting such claim, defense, or other position, or against that 

party’s attorney, or against both in such manner as is just.

(b) The court may assess reasonable and necessary attorney’s fees 

and expenses of litigation in any civil action in any court of record 

if, upon the motion of any party or the court itself, it finds that an 

attorney or party brought or defended an action, or any part 

thereof, that lacked substantial justification or that the action, or 

any part thereof, was interposed for delay or harassment, or if it 

finds that an attorney or party unnecessarily expanded the 

proceeding by other improper conduct, including, but not limited 

to, abuses of discovery procedures available under Chapter 11 of 

this title, the “Georgia Civil Practice Act.” As used in this Code 

section, “lacked substantial justification” means substantially 

frivolous, substantially groundless, or substantially vexatious. 

(c) No attorney or party shall be assessed attorney’s fees as to any 

claim or defense which the court determines was asserted by said 

attorney or party in a good faith attempt to establish a new theory 

of law in Georgia if such new theory of law is based on some 

recognized precedential or persuasive authority.

(d) Attorney’s fees and expenses of litigation awarded under this 

Code section shall not exceed amounts which are reasonable and 

necessary for defending or asserting the rights of a party. 

Attorney’s fees and expenses of litigation incurred in obtaining an 

order of court pursuant to this Code section may also be assessed 

by the court and included in its order.

(e) Attorney’s fees and expenses under this Code section may be 

requested by motion at any time during the course of the action 
17

claims of frivolous litigation, and the General Assembly specified 

that “[a] party may elect to pursue either the procedure specified in 

this subsection or the procedure specified in [OCGA § 9-15-14], but 

not both.” (Emphasis supplied.) OCGA § 9-11-68 (e) (3).

No such limitation is set forth in OCGA § 9-11-68 (b) (2) with 

regard to OCGA § 13-6-11, nor does OCGA § 13-6-11 contain such a 

proviso. The absence of such a limitation suggests that the General 

Assembly did not mean an award of fees and expenses under OCGA 

§ 13-6-11 to limit an award under OCGA § 9-11-68 (b) (2) or to 

require the party seeking attorney fees and litigation expenses to 

 

but not later than 45 days after the final disposition of the action.

(f) An award of reasonable and necessary attorney’s fees or 

expenses of litigation under this Code section shall be determined 

by the court without a jury and shall be made by an order of court 

which shall constitute and be enforceable as a money judgment.

(g) Attorney’s fees and expenses of litigation awarded under this 

Code section in a prior action between the same parties shall be 

treated as court costs with regard to the filing of any subsequent 

action.

(h) This Code section shall not apply to proceedings in magistrate 

courts. However, when a case is appealed from the magistrate 

court, the appellee may seek litigation expenses incurred below if 

the appeal lacks substantial justification. 
18

choose between those provisions.8

(c) Turning to the reasoning of the Court of Appeals, the court 

misinterpreted the language of OCGA § 9-11-68 (b) in determining 

that Junior could not recover fully under both statutory provisions. 

Specifically, the Court of Appeals determined that because Junior 

had been awarded attorney fees and litigation expenses under 

OCGA § 13-6-11, “those costs had been compensated” and were no 

longer “incurred” within the meaning of OCGA § 9-11-68 (b). Junior, 

357 Ga. App. at 817-818. This is incorrect.

As explained above, OCGA § 9-11-68 (b) (2) provides that if 

other statutory conditions are met, then the plaintiff is “entitled to 

recover reasonable attorney’s fees and expenses of litigation 

incurred by the plaintiff or on the plaintiff’s behalf.” (Emphasis 

supplied.) The Court of Appeals noted that dictionaries define

 8 We note that the Court of Appeals has summarily held that recovery 

under OCGA §§ 9-15-14 and 13-6-11 “would constitute an impermissible double 

recovery.” Roofers Edge, Inc. v. Standard Bldg. Co., Inc., 295 Ga. App. 294, 296 

(2) (671 SE2d 310) (2008). While the discussion above casts doubt on that 

holding, that issue is not presented in this case and we need not resolve it 

today. 
19

“incur” as “to suffer to bring on oneself (a liability or expense)” or “to 

become liable or subject to.” Junior, 357 Ga. App. at 817 n.13

(quoting Black’s Law Dictionary (11th ed. 2019), and the online 

Merriam-Webster Dictionary, respectively). The court then applied 

this present-tense definition to cover only attorney fees and 

litigation expenses owed or unsatisfied as of the time the plaintiff 

files his motion under OCGA § 9-11-68 (b) (2). But OCGA § 9-11-68 

(b) (2) speaks of attorney fees and expenses of litigation “incurred” –

past tense. Whether a liability or expense has been satisfied is 

separate from whether it was incurred – that is, brought on oneself 

as a liability or expense – in the first instance. Here, the fact that 

Junior was compensated for his attorney fees and litigation 

expenses through an award of damages under OCGA § 13-6-11 did 

not change the fact that those fees and expenses had been incurred

as the measure of the sanction to which he could be entitled under 

OCGA § 9-11-68 (b) (2). And, as discussed above, nothing in OCGA 

§ 9-11-68 (b) allows or requires the trial court to consider whether 

an award was made under OCGA § 13-6-11 when deciding the 
20

availability of attorney fees and litigation expenses under OCGA § 

9-11-68 (b) (2). Accordingly, the Court of Appeals wrongly concluded 

that Junior had not incurred any attorney fees and litigation 

expenses within the meaning of OCGA § 9-11-68 (b) (2) because he 

had received an award under OCGA § 13-6-11.

For these reasons, the judgment of the Court of Appeals is 

reversed. The case is remanded to the Court of Appeals with 

direction to remand the case to the trial court for reconsideration of 

Junior’s motion for attorney fees and litigation expenses under 

OCGA § 9-11-68 (b) (2) consistent with this opinion. See also Couch, 

295 Ga. at 482-487 (3) (discussing method of calculating amount of 

award under OCGA § 9-11-68 (b)).

Judgment reversed and case remanded with direction. All the 

Justices concur, except Peterson, J., disqualified.