FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
September 27, 2012
In the Court of Appeals of Georgia A12A1268. FOWLER’S HOLDINGS, LLLP v. CLP FAMILY INVESTMENTS, L.P. et al.
ANDREWS, Judge.
CLP Family Investments, L.P., and the estate of Claude L. Pennington, Sr.
(“CLP”), sued Fowler’s Holdings, LLLP (“Fowler’s”), for specific performance and
damages arising from the parties’ easement agreements on the parking lot of a Macon
shopping center where each owned a building. CLP’s original complaint alleged that
Fowler’s had failed to maintain the parking lot and had violated its promise not to
create additional points of entry to the lot; its amended complaints added claims for
rescission, nominal damages, and attorney fees. After a bench trial, the court awarded
CLP $120,000 in nominal damages and $55,000 in attorney fees. On appeal, Fowler’s
argues that the award of nominal damages was erroneous as a matter of law and that the fee award was not supported by the evidence. We agree with the first of these
contentions and therefore affirm in part and reverse in part.
1. (a) According to CLP’s account of the proceedings below, it attempted to
show that as a result of Fowler’s breaches, it incurred damages in the amounts of (a)
$215,000 for the proposed amount of a tenant’s renewed lease minus a reduction in
both term and amount caused by the poor condition of the parking lot; (b) $225,000
for the cost of fixing the parking lot; (c) $22,000 for the cost of replacing the parking
lot lighting; and (d) $33,490 for the decrease in the property’s value caused by
heavier traffic as a result of additional and unauthorized entryways made to the lot.
By this account, then, CLP’s claimed damages, some portion of which it admits were
not proved with enough specificity to justify an award of actual damages, amounting
to approximately $595,000. Although the trial court found that “the damages suffered
by [CLP] are not trivial but are substantial,” it awarded $120,000 as nominal rather
than actual damages.
In its seminal 1901 decision on nominal damages, the Supreme Court of
Georgia construed the term as one “purely relative, [carrying] with it no suggestion
of certainty as to amount,” and also as “a trivial sum awarded where a mere breach
2 of duty or infraction of right is shown, with no serious loss sustained.” Sellers v.
Mann, 113 Ga. 643, 643-644 (39 SE 11) (1901). The Court continued:
It is apparent that this trivial sum might, according to the circumstances of each particular case, vary almost indefinitely. In some cases a very small amount might constitute the trivial sum contemplated by the term “nominal damages;” in others a much larger amount might measure down to the same standard of triviality. It would depend largely upon the vastness of the amount involved what sum would be considered trivial.
(Emphasis supplied.) Id. at 644. The following year, our Supreme Court also noted
that nominal damages “are not given as compensation for the breach of a contract,
but simply in vindication of the right of a person who brings an action upon a good
cause, but fails to prove that he has sustained any actual damage, and to prevent his
being mulcted in the costs after he has established his cause of action.” Foote &
Davies Co. v. Malony, 115 Ga. 985, 988 (4) (42 SE 413) (1902) (emphasis supplied),
citing the predecessor to OCGA § 13-6-6 (where a breach of contract results in “no
actual damages,” nominal damages may be given “to cover the costs of bringing the
action”); see also King v. Brock, 282 Ga. 56, 58 (646 SE2d 206) (2007) (noting sister
states’ majority view of nominal damages as “a peg to hang costs on”); Ransone v.
Christian, 56 Ga. 351, 357 (1876); Western Union Telegraph Co. v. Glenn, 8 Ga.
3 App. 168, 169 (68 SE 881) (1910). As to specific awards of nominal damages, the
parties have cited cases authorizing nominal damages in amounts up to $3,000, with
the latter held not excessive when “viewed in conjunction with the evidence of actual
damage.” Ponce de Leon &c. v. DiGirolamo, 238 Ga. 188, 190 (3) (232 SE2d 62)
(1977); see also Atlantic Coast Line R. Co. v. Stephens, 14 Ga. App. 173, 175-178 (80
SE 516) (1914); Duckworth v. Collier, 164 Ga. App. 139, 140 (3) (296 SE2d 640)
(1982); First Fed. Sav. & Loan Assn. v. White, 168 Ga. App. 516, 517 (309 SE2d
858) (1983).
An award of nominal damages in the amount of $120,000 in a case in which
actual damages amounted at most to five times that amount is neither absolutely nor
relatively “trivial.” The parties’ dispute over fees shows that they do not consider the
amount at issue there – ranging somewhere between $30,000 and $70,000 – to be
trivial in itself. Compare Atlantic Coast Line R. Co., 14 Ga. App. at 176-179 (award
of $150 was not excessive even when actual damages amounted to only $3.80).
Likewise, an award of nominal damages amounting to approximately one-fifth of an
amount of total damages claimed, the latter not itself trivial, cannot meet the
“standard of triviality” set out in longstanding Georgia law. See Sellers, 113 Ga. at
643-644; compare White, supra, 168 Ga. App. at 517 (in the absence of a transcript
4 of the relevant hearing, an award of $3,000 in nominal damages concerning a dispute
over mobile home was not excessive); Glenn, supra, 8 Ga. App. at 169-170 (award
of $250 in nominal damages was not excessive in light of claim for $3000 in actual
damages).
Thus we conclude that the trial court erred when it denied Fowler’s motion for
new trial as to the amount of nominal damages awarded here, and thus remand the
case for a new trial on damages.
(b) In light of our reversal of the trial court’s award of nominal damages as
excessive, we leave the question of whether its particular finding of fact as to the
costs of repair was erroneous for any further proceedings.
2. Fowler’s also argues that the evidence did not support the trial court’s award
of attorney fees under OCGA § 13-6-11. We disagree.
In order to recover attorney fees as expenses of litigation pursuant to OCGA § 13-6-11, the plaintiff must show that the defendant acted in bad faith, was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. We will affirm an award of attorney fees under OCGA § 13-6-11 if there is any evidence to support it.
Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga. App. 439, 450 (6) (638 SE2d
879) (2006). Awards for fees under OCGA § 13-6-11 “must be apportioned to those
5 attorney fees attributable to claims on which the plaintiff prevailed,” however. Id. at
453 (6); see also Savannah Yacht Corp. v. Thunderbolt Marine, 297 Ga. App. 104,
112 (4) (676 SE2d 728) (2009).
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FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
September 27, 2012
In the Court of Appeals of Georgia A12A1268. FOWLER’S HOLDINGS, LLLP v. CLP FAMILY INVESTMENTS, L.P. et al.
ANDREWS, Judge.
CLP Family Investments, L.P., and the estate of Claude L. Pennington, Sr.
(“CLP”), sued Fowler’s Holdings, LLLP (“Fowler’s”), for specific performance and
damages arising from the parties’ easement agreements on the parking lot of a Macon
shopping center where each owned a building. CLP’s original complaint alleged that
Fowler’s had failed to maintain the parking lot and had violated its promise not to
create additional points of entry to the lot; its amended complaints added claims for
rescission, nominal damages, and attorney fees. After a bench trial, the court awarded
CLP $120,000 in nominal damages and $55,000 in attorney fees. On appeal, Fowler’s
argues that the award of nominal damages was erroneous as a matter of law and that the fee award was not supported by the evidence. We agree with the first of these
contentions and therefore affirm in part and reverse in part.
1. (a) According to CLP’s account of the proceedings below, it attempted to
show that as a result of Fowler’s breaches, it incurred damages in the amounts of (a)
$215,000 for the proposed amount of a tenant’s renewed lease minus a reduction in
both term and amount caused by the poor condition of the parking lot; (b) $225,000
for the cost of fixing the parking lot; (c) $22,000 for the cost of replacing the parking
lot lighting; and (d) $33,490 for the decrease in the property’s value caused by
heavier traffic as a result of additional and unauthorized entryways made to the lot.
By this account, then, CLP’s claimed damages, some portion of which it admits were
not proved with enough specificity to justify an award of actual damages, amounting
to approximately $595,000. Although the trial court found that “the damages suffered
by [CLP] are not trivial but are substantial,” it awarded $120,000 as nominal rather
than actual damages.
In its seminal 1901 decision on nominal damages, the Supreme Court of
Georgia construed the term as one “purely relative, [carrying] with it no suggestion
of certainty as to amount,” and also as “a trivial sum awarded where a mere breach
2 of duty or infraction of right is shown, with no serious loss sustained.” Sellers v.
Mann, 113 Ga. 643, 643-644 (39 SE 11) (1901). The Court continued:
It is apparent that this trivial sum might, according to the circumstances of each particular case, vary almost indefinitely. In some cases a very small amount might constitute the trivial sum contemplated by the term “nominal damages;” in others a much larger amount might measure down to the same standard of triviality. It would depend largely upon the vastness of the amount involved what sum would be considered trivial.
(Emphasis supplied.) Id. at 644. The following year, our Supreme Court also noted
that nominal damages “are not given as compensation for the breach of a contract,
but simply in vindication of the right of a person who brings an action upon a good
cause, but fails to prove that he has sustained any actual damage, and to prevent his
being mulcted in the costs after he has established his cause of action.” Foote &
Davies Co. v. Malony, 115 Ga. 985, 988 (4) (42 SE 413) (1902) (emphasis supplied),
citing the predecessor to OCGA § 13-6-6 (where a breach of contract results in “no
actual damages,” nominal damages may be given “to cover the costs of bringing the
action”); see also King v. Brock, 282 Ga. 56, 58 (646 SE2d 206) (2007) (noting sister
states’ majority view of nominal damages as “a peg to hang costs on”); Ransone v.
Christian, 56 Ga. 351, 357 (1876); Western Union Telegraph Co. v. Glenn, 8 Ga.
3 App. 168, 169 (68 SE 881) (1910). As to specific awards of nominal damages, the
parties have cited cases authorizing nominal damages in amounts up to $3,000, with
the latter held not excessive when “viewed in conjunction with the evidence of actual
damage.” Ponce de Leon &c. v. DiGirolamo, 238 Ga. 188, 190 (3) (232 SE2d 62)
(1977); see also Atlantic Coast Line R. Co. v. Stephens, 14 Ga. App. 173, 175-178 (80
SE 516) (1914); Duckworth v. Collier, 164 Ga. App. 139, 140 (3) (296 SE2d 640)
(1982); First Fed. Sav. & Loan Assn. v. White, 168 Ga. App. 516, 517 (309 SE2d
858) (1983).
An award of nominal damages in the amount of $120,000 in a case in which
actual damages amounted at most to five times that amount is neither absolutely nor
relatively “trivial.” The parties’ dispute over fees shows that they do not consider the
amount at issue there – ranging somewhere between $30,000 and $70,000 – to be
trivial in itself. Compare Atlantic Coast Line R. Co., 14 Ga. App. at 176-179 (award
of $150 was not excessive even when actual damages amounted to only $3.80).
Likewise, an award of nominal damages amounting to approximately one-fifth of an
amount of total damages claimed, the latter not itself trivial, cannot meet the
“standard of triviality” set out in longstanding Georgia law. See Sellers, 113 Ga. at
643-644; compare White, supra, 168 Ga. App. at 517 (in the absence of a transcript
4 of the relevant hearing, an award of $3,000 in nominal damages concerning a dispute
over mobile home was not excessive); Glenn, supra, 8 Ga. App. at 169-170 (award
of $250 in nominal damages was not excessive in light of claim for $3000 in actual
damages).
Thus we conclude that the trial court erred when it denied Fowler’s motion for
new trial as to the amount of nominal damages awarded here, and thus remand the
case for a new trial on damages.
(b) In light of our reversal of the trial court’s award of nominal damages as
excessive, we leave the question of whether its particular finding of fact as to the
costs of repair was erroneous for any further proceedings.
2. Fowler’s also argues that the evidence did not support the trial court’s award
of attorney fees under OCGA § 13-6-11. We disagree.
In order to recover attorney fees as expenses of litigation pursuant to OCGA § 13-6-11, the plaintiff must show that the defendant acted in bad faith, was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. We will affirm an award of attorney fees under OCGA § 13-6-11 if there is any evidence to support it.
Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga. App. 439, 450 (6) (638 SE2d
879) (2006). Awards for fees under OCGA § 13-6-11 “must be apportioned to those
5 attorney fees attributable to claims on which the plaintiff prevailed,” however. Id. at
453 (6); see also Savannah Yacht Corp. v. Thunderbolt Marine, 297 Ga. App. 104,
112 (4) (676 SE2d 728) (2009).
Construed in favor of the trial court’s judgment, the record shows that CLP’s
complaint stated claims for breach of contract and rescission. Counsel for CLP
testified that the fees charged, as reduced by the amount expended on the
unsuccessful rescission claim, were “normal hourly rates,” “reasonable, necessary and
appropriate,” and amounting to $32,980.39. Counsel also provided an affidavit from
co-counsel explaining that he had adjusted his fees to exclude that portion expended
on the rescission claim and that his rate was “reasonable” for the Middle Georgia
legal market. Co-counsel also provided itemized billing statements of the fees as thus
adjusted, as well as a summary yielding a total of $33,436.34. The record also shows
that Fowler’s did not object to the admissibility of co-counsel’s affidavit or
documents and waived cross-examination on the issue of fee apportionment.
We are not persuaded by Fowler’s assertion that CLP may recover fees for only
one of its three theories of breach of contract because the trial court found in CLP’s
favor on that theory alone. If the claim for breach of contract was successful, fees
expended in pursuit of that claim are recoverable. See Ga. Dept. of Transp. v.
6 Douglas Asphalt Co., 297 Ga. App. 470, 475 (2) (677 SE2d 699) (2009) (factfinder
need not prorate fees between various aspects of a single cause of action). Nor do we
agree that we are bound to reverse the award as not supported by sufficient evidence
under Southern Cellular Telecom v. Banks, 209 Ga. App. 401 (433 SE2d 606) (1993).
In that case, plaintiff Banks herself presented her attorneys’ time sheets and
affidavits, none of which distinguished between successful and unsuccessful claims,
and the defendants in that case were not given the opportunity to cross-examine
counsel as to either “reasonableness and value or on the allocation of time and
expenses among the various claims.” Id. at 402. Here, by contrast, the trial court had
substantial evidence, including affidavits, testimony, and billing statements,
concerning the proportion of fees expended on the breach-of-contract and recission
claims, and made an award within the range of the evidence before it. Fowler’s also
waived any objections or cross-examination as to the apportionment of CLP’s fees.
It follows that the trial court did not err when it granted CLP $55,000 in fees under
OCGA § 13-6-11.
Judgment affirmed in part, reversed in part, and case remanded for a new trial
on damages. Doyle, P. J., and Boggs, J., concur.
7 Decided September 27, 2012.
Nominal damages. Bibb Superior Court. Before Judge Brown.
Martin Snow, John T. McGoldrick, Jr., Stuart E. Walker, for appellant.
James, Bates, Brannan & Groover, Thomas C. James III, G. Grant
Greenwood, for appellee.