[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-11182 

Non-Argument Calendar

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D.C. Docket No. 1:16-cv-00952-LMM

FATT KATT ENTERPRISES, INC.,

d.b.a. Granite Transformations of Atlanta,

Plaintiff - Counter 

Defendant - Appellant,

versus

RIGSBY CONSTRUCTION, INC., 

d.b.a. Artisan Design & Construction Group,

Defendant - Counter

Claimant - Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(February 27, 2019)

Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

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PER CURIAM:

Fatt Katt Enterprises d/b/a/ Granite Transformations of Atlanta (Fatt Katt) 

sued Rigsby Construction, Inc. d/b/a Artisan Design and Construction Group 

(Rigsby), asserting claims including (1) breach of contract and (2) violation of 

Georgia’s Prompt Pay Act, O.C.G.A. § 13-11-1, et. seq., and seeking damages for 

work that Fatt Katt allegedly performed. Rigsby answered and filed counterclaims 

against Fatt Katt for breach of contract. The district court granted Rigsby’s motion 

for a directed verdict on Fatt Katt’s Prompt Pay Act claim based on O.C.G.A. § 13-

11-4(b), a default statutory rule governing the timing of payments between 

contractors and subcontractors. Rigsby sought and obtained attorney’s fees as the 

“prevailing party” in the action under O.C.G.A. § 13-11-8. Fatt Katt now appeals 

the directed verdict and award of attorney’s fees. 

Fatt Katt first contends that the district court misinterpreted the Georgia 

Prompt Pay Act in granting a directed verdict to Rigsby by ignoring a provision in 

the Act that allowed the parties to negotiate payment terms that would control in 

lieu of O.C.G.A. § 13-11-4(b). Fatt Katt also argues that the district court erred in 

awarding attorney’s fees to Rigsby under the Prompt Pay Act because Rigsby was 

not a “prevailing party” insofar as it did not obtain any relief at trial. We affirm. 

I. Factual and Procedural Background

This case arises from a construction dispute between a general contractor, 

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Rigsby, and one of its subcontractors, Fatt Katt. Seeking damages for work it 

allegedly performed in constructing a hotel, Fatt Katt sued Rigsby for breach of 

contract, unjust enrichment, quantum meruit, and violation of Georgia’s Prompt 

Pay Act, O.C.G.A. § 13-11-1, et. seq. (Prompt Pay Act). Rigsby answered and 

filed counterclaims for breach of contract and a declaratory judgment related to a 

mechanics’ lien that Fatt Katt recorded against the property. 

Before the jury considered any issues, the district court granted Rigsby’s 

motion for a directed verdict on Fatt Katt’s Prompt Pay Act claim. The court 

reasoned that O.C.G.A. § 13-11-4(b), a default statutory rule governing the timing 

of payment in construction contracts, only required a contractor to pay its 

subcontractors after receiving payment from the property owner in a contract. 

Because there was no evidence that the hotel owner had ever paid Rigsby for Fatt 

Katt’s alleged work, O.C.G.A. § 13-11-4(b) barred Fatt Katt’s claims. Fatt Katt 

argued that it had an oral agreement with Rigsby that, under O.C.G.A. § 13-11-

7(b), superseded the language of O.C.G.A. § 13-11-4(b). The district court

rejected this argument. 

A jury considered the remaining issues, finding for Rigsby on Fatt Katt’s 

breach of contract claim. On Rigsby’s counterclaim, the jury found that Fatt Katt 

had breached the contract, but did not award any monetary damages. Rigsby filed 

a Bill of Costs and Motion for Attorney’s Fees as the “prevailing party” under Rule 

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54(d) of the Federal Rules of Civil Procedure and O.C.G.A. § 13-11-8. Fatt Katt 

opposed the Motion for Attorney’s Fees and filed a Motion to Amend Final 

Judgment, arguing that Rigsby was not the “prevailing party” in the action. The 

district court denied this Motion to Amend and granted, in part, Rigsby’s Motion 

for Attorney’s Fees. Fatt Katt now appeals the directed verdict and the order 

granting attorney’s fees to Rigsby under the Prompt Pay Act. 

II. Directed Verdict

We review a district court’s grant of a directed verdict de novo. Wilcox v. 

Corr. Corp. of Am., 892 F.3d 1283, 1286 (11th Cir. 2018). We apply the same 

standard of review as the district court. Miles v. Tenn. River Pulp & Paper Co., 

862 F.2d 1525, 1527–28 (11th Cir. 1989). We view the evidence and draw all 

reasonable inferences in the light most favorable to the nonmoving party, Moore v. 

Appliance Direct, Inc., 708 F.3d 1233, 1237 (11th Cir. 2013), and affirm only if “a 

reasonable jury would not have a legally sufficient evidentiary basis to find” for 

the nonmoving party, Wilcox, 892 F.3d at 1286 (internal quotation marks omitted). 

We will not reverse a district court decision if the court’s error is harmless. 

To determine whether an error is harmless, we ask “whether the complaining 

party’s substantive rights were affected.” Goldsmith v. Bagby Elevator Co., 513 

F.3d 1261, 1276 (11th Cir. 2008).

Section 4(b) of the Georgia Prompt Pay Act states:

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When a subcontractor has performed in accordance with 

the provisions of its subcontract and the subcontract 

conditions precedent to payment have been satisfied, the 

contractor shall pay to that subcontractor . . . within ten 

days of receipt by the contractor . . . of each periodic or 

final payment, the full amount received for such 

subcontractor’s work and materials based on work 

completed or service provided under the subcontract . . . . 

GA. CODE ANN. § 13-11-4(b) (West). This section suggests that a contractor must 

receive payment from the property owner before paying a subcontractor for work 

performed “in accordance with the provisions of its subcontract.” That is, payment 

to the contractor is a condition precedent to the contractor’s duty to pay the

subcontractor. The district court determined that the property owner did not pay 

Rigsby for the amount Fatt Katt demanded under the Act, and thus Fatt Katt’s 

claim did not satisfy the requirements of O.C.G.A. § 13-11-4(b).

Section 13-11-7(b) of the Prompt Pay Act provides that “[n]othing in this 

chapter shall prohibit owners, contractors, and subcontractors from agreeing by 

contract to rates of interest, payment periods, and contract and subcontract terms 

different from those stipulated in this Code section, and in this event, these 

contractual provisions shall control.” GA. CODE ANN. § 13-11-7(b) (West). Where 

the Prompt Pay Act clearly states that it does not apply to certain claims, Georgia 

courts have followed the plain language of the statute. See, e.g., City of Atlanta v. 

Hogan Constr. Grp., LLC, 801 S.E.2d 606, 610–11 (Ga. Ct. App. 2017) (citing 

Pipe Sols., Inc. v. Inglis, 661 S.E.2d 683, 686 (Ga. Ct. App. 2008)).

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Fatt Katt alleges that it entered into an oral agreement with Rigsby regarding 

the timing of progress payments, and the terms of its agreement should control 

under O.C.G.A § 13-11-7(b) and City of Atlanta. Fatt Katt asserts that Rigsby 

“agreed to pay all invoices received upon receipt,” and since this agreement 

controls, O.C.G.A. § 13-11-4(b) does not apply and Fatt Katt’s Prompt Pay Act 

claim is not be barred. 

The district court determined that O.C.G.A. § 13-11-7(b) did not apply to 

Fatt Katt’s claim; instead, the court focused on O.C.G.A. § 13-11-4(b). Basing its 

conclusions on the requirements in § 13-11-4(b), the court stated that it did not 

“find anything in the record” to support Fatt Katt’s Prompt Pay Act claim, because 

Rigsby did not receive payment from the hotel owner prior to Fatt Katt’s demand 

for payment. 

The district court properly applied the Georgia Prompt Pay Act. Section 13-

11-7(b) falls under the heading “Interest on Late Payments,” and states that parties 

to a contract may agree to terms “different from those stipulated in this Code 

section, and in this event, these contractual provisions shall control.” GA. CODE 

ANN. § 13-11-7(b) (West) (emphasis added). Thus, § 13-11-7(b) applies only in

the context of late interest payments under § 13-11-7, and does not apply to other 

sections in the Act.

The language of O.C.G.A. § 13-11-7(b) does not except Fatt Katt’s claim 

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from the default requirements in O.C.G.A. § 13-11-4(b), and therefore Fatt Katt

must meet these requirements to prevail on its Prompt Pay Act claim. 

Accordingly, Fatt Katt must show that Rigsby received payment from the hotel 

owner before asserting a claim that Rigsby is obligated to pay Fatt Katt for its 

construction work. Fatt Katt did not present any such evidence. 

Although we must view the facts and draw all reasonable inferences in the 

light most favorable to Fatt Katt, there is not sufficient evidence to allow a 

reasonable jury to find for Fatt Katt on its Prompt Pay Act claim. See Wilcox v. 

Corr. Corp. of Am., 892 F.3d 1283, 1285–86 (11th Cir. 2018). Thus, we affirm the 

district court’s grant of a directed verdict to Rigsby. 

III. Prevailing Party

“Although we review a district court’s decision to award attorney’s fees for 

abuse of discretion, the question of law regarding the proper standard for the award 

is an issue we consider de novo. We review any factual findings germane to that 

question under a clear error standard.” Loggerhead Turtle v. Cty. Council of 

Volusia Cty., Fla., 307 F.3d 1318, 1322 (11th Cir. 2002) (citations omitted). 

Section 13-11-8 of the Georgia Prompt Pay Act provides: 

In any action to enforce a claim under this chapter, the 

prevailing party is entitled to recover a reasonable fee for 

the services of its attorney including but not limited to trial 

and appeal and arbitration, in an amount to be determined 

by the court or the arbitrators, as the case may be.

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GA. CODE ANN. § 13-11-8 (West). When this Court renders a decision based on 

interpretation of a state statute, we must decide the case as the state’s highest court 

would. Clark v. Riley, 595 F.3d 1258, 1264 (11th Cir. 2010). The Georgia

Supreme Court has held that attorney’s fees are recoverable where authorized by 

statutory provision or by contract. See Smith v. Baptiste, 694 S.E.2d 83, 87 (Ga. 

2010). The Georgia Supreme Court has not interpreted the meaning of “prevailing 

party” in the context of the Prompt Pay Act, but has evaluated the same 

terminology in other statutory and contractual contexts. 

In arguing that Rigsby is not a “prevailing party,” Fatt Katt relies on 

Magnetic Resonance Plus, Inc. v. Imaging Sys. Int’l, 543 S.E.2d 32 (Ga. 2001), in 

which the Georgia Supreme Court, while interpreting a contract, determined that a 

plaintiff was not a “prevailing party” unless it affirmatively obtained “at least some 

of the relief” it sought in the action. Id. at 35–36. That case is inapplicable on its 

facts, as are the other cases cited by Fatt Katt underlying the same proposition. In 

these cases, the “prevailing party” analysis dealt with plaintiffs attempting to 

prevail on their claims or defendants attempting to prevail on counterclaims—not 

defendants prevailing against a plaintiff’s claim.

After receiving a directed verdict on Fatt Katt’s Prompt Pay Act claim, 

Rigsby sought attorney’s fees pursuant to § 13-11-8 of that Act as the prevailing 

defendant. See Benchmark Builders, Inc. v. Schultz, 294 Ga. 12, 14 (Ga. 2013) 

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(“[U]nlike plaintiffs who typically must obtain some affirmative relief on their 

claim to be deemed the ‘prevailing party’ . . . defendants prevail by not having any 

relief imposed against them.”).1

 Significantly, the district court explicitly granted 

fees under § 13-11-8 of the Prompt Pay Act, and did not award fees based on 

Rigsby’s counterclaim.

IV. Conclusion

The district court correctly applied provisions of the Georgia Prompt Pay 

Act to the present case. The court properly granted Rigsby’s motion for a directed 

verdict under O.C.G.A. § 13-11-4(b), because Fatt Katt failed to present evidence 

meeting the requirements of that provision. The court also correctly held that the 

language of O.C.G.A. § 13-11-7(b) did not apply to § 13-11-4(b). Finally, the 

court properly awarded attorney’s fees to Rigsby as the “prevailing” defendant on 

Fatt Katt’s unsuccessful Prompt Pay Act claim. Accordingly, we affirm. 

AFFIRMED.

 1 In Benchmark Builders, a contract provision allowed attorney’s fees “in addition to any other 

relief which may be awarded,” declaring that an award of attorney’s fees would be independent 

from a party’s recovery on affirmative claims. Id. at 13 (emphasis added). The Benchmark 

Builders court found that these contractual terms supported an award of attorney’s fees to 

defendants as the “prevailing party” on their counterclaims. Id. The court also noted that the 

defendants prevailed on the plaintiff’s claims, because the defendants did not have any relief 

imposed against them. Id. This second determination of the defendants’ status as a “prevailing 

party” controls in the present case. 

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