Fowler's Holdings, LLLP v. CLP Family Invs., L.P.

• Decision Date: 18 October 2012
• Docket Number: No. A12A1268.,A12A1268.
• Citation: Fowler's Holdings, LLLP v. CLP Family Invs., L.P., 318 Ga.App. 73, 732 S.E.2d 777 (Ga. App. 2012)
• Parties: FOWLER'S HOLDINGS, LLLP v. CLP FAMILY INVESTMENTS, L.P. et al.
• Court: Georgia Court of Appeals

318 Ga.App. 73

732 S.E.2d 777

12 FCDR 3255

FOWLER'S HOLDINGS, LLLP

v.CLP FAMILY INVESTMENTS, L.P. et al.

No. A12A1268.

Court of Appeals of Georgia.

Sept. 27, 2012.

Reconsideration Denied Oct. 18, 2012.

John T. McGoldrick Jr., Martin Snow, Stuart Ellis Walker, Macon, for appellant.

James, Bates, Brannan & Groover, Thomas C. James III, Macon, G. Grant Greenwood, for appellees.

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 own 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 of duty or infraction of right is shown, with no serious loss sustained.” (Punctuation omitted.) Sellers v. Mann, 113 Ga. 643, 643–644, 39 S.E. 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, 39 S.E. 11. 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.” (Emphasis supplied.) Foote & Davies Co. v. Malony, 115 Ga. 985, 988(4), 42 S.E. 413 (1902), 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 S.E.2d 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.App. 168, 169, 68 S.E. 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, etc. v. DiGirolamo, 238 Ga. 188, 190(3), 232 S.E.2d 62 (1977); see also Atlantic Coast Line R. Co. v. Stephens, 14 Ga.App. 173, 175–178, 80 S.E. 516 (1914); Duckworth v. Collier, 164 Ga.App. 139, 140(3), 296 S.E.2d 640 (1982); First Fed. Sav. & Loan Assn. v. White, 168 Ga.App. 516, 517, 309 S.E.2d 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, 80 S.E. 516 (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, 39 S.E. 11; compare White, supra, 168 Ga.App. at 517, 309 S.E.2d 858 (in the absence of a transcript 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, 68 S.E. 881 (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...