FIFTH DIVISION

REESE, P. J.,

MARKLE and COLVIN, 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.

Please refer to the Supreme Court of Georgia Judicial

Emergency Order of March 14, 2020 for further

information at (https://www.gaappeals.us/rules).

May 21, 2020

In the Court of Appeals of Georgia

A20A0217, A20A0218. ALSTON & BIRD, LLP v. HATCHER

MANAGEMENT HOLDINGS, LLC; and vice versa.

COLVIN, Judge.

Thisis the second appearance of thislegalmalpractice matter before thisCourt.

In a prior interlocutory appeal, we held that to the extent that defendant Alston & Bird

could prove that nonparties such as Maury Hatcher, the former manager of plaintiff

Hatcher Management Holdings (HMH), breached a duty proximately causing injury

to HMH, the jury would be allowed “to assign ‘fault’ to” Maury. (Punctuation

omitted.) Alston & Bird LLP v. Hatcher Management Holdings, LLC, 336 Ga. App.

527, 530 (785 SE2d 541) (2016) (“Hatcher I”), quoting Zaldivar v. Prickett, 297 Ga.

589, 604 (2) (774 SE2d 688) (2015). After finding Maury 60% at fault, a jury

awarded HMH compensatory damages, interest, and attorney fees totaling more than
$2.1 million. On the rationale that the jury had found Alston & Bird only 32% at

fault, the trial court reduced HMH’s award to $683,522.07. 

On appeal in Case No. A20A0217, Alston & Bird arguesthat the evidence was

insufficient on the issue of proximate cause and that the trial court erred when it

submitted the issue of prejudgment interest to the jury. On cross-appeal in Case No.

A20A0218, HMH arguesthat the trial court’sreduction of HMH’s compensatory and

attorney fee awards was erroneous and that the court erred in granting Alston &

Bird’s motion in limine concerning proceedings in prior litigation involving Maury

Hatcher. We affirm the jury’s verdict, but we reverse and remand with direction as

to prejudgment interest, compensatory damages, and attorney fees. 

Where a jury returns a verdict and it has the approval of the trial judge,

the same must be affirmed on appeal if there is any evidence to support

it as the jurors are the sole and exclusive judges of the weight and credit

given the evidence. The appellate court must construe the evidence with

every inference and presumption in favor of upholding the verdict, and

after judgment, the evidence must be construed to uphold the verdict

even where the evidence isin conflict. Aslong asthere is some evidence

to support the verdict, the denial of defendant’s motion for new trial will

not be disturbed.

2
(Footnote omitted.) Quay v. Heritage Financial, Inc., 274 Ga. App. 358, 362-363 (4)

(617 SE2d 618) (2005). 

Thus viewed in favor of the verdict, the record shows that in 2000, Maury

Hatcher hired Alston & Bird and its partner, Jack Sawyer, to form and represent

HMH, a holding company for the Hatcher family fortune. Sawyer prepared HMH’s

operating agreement and presented it to family members at a March 2001

organizational meeting. The operating agreement included provisions that any

member “shall have the right at any time, for any purpose reasonably related to such

[m]ember’s[m]embership [i]nterest, to inspect and copy from[the company’s] books

and documents,” and that the manager(s) would be responsible for delivering a yearly

“profit and lossstatement” and “a balance sheet” representing the “financial condition

of the [c]ompany as of the date indicated[,]” as well as quarterly “statement[s]

showing the amounts distributed to each [m]ember during [each] calendar quarter”

of the fiscal year. (Emphasis supplied.) The family members signed the operating

agreement even though it did not list the individual members’ ownership interests(as

was the norm in such agreements), but did allow Maury to see such information (as

empowered at Maury’s request). Sawyer did not point out these features to the

members present at the organizational meeting.

3
For the next seven years, Maury managed HMH and was the only member in

regular contact with Sawyer. Starting in 2005, however, Maury began embezzling

company funds, eventually paying himself $876,500 in compensation and $218,000

in distributions. In the spring of 2008, other family members, including Maury’s

brother Jerry, raised concerns about a lack of information about company affairs. In

response to these concerns, and at Maury’s request, Sawyer issued a May 2008 letter

describing Maury’s broad authority but not responding to members’ requests to see

company records.

On June 5, 2008, Maury sent a letter to Jerry asking him to withdraw from

HMH. On July 21, Maury sent a second letter to Jerry saying that Sawyer had

“indicated” that Jerry was not entitled to information about members’ ownership

interests and income. At trial, HMH’s expert witness testified that this statement was

incorrect and that the members’ ownership interests should have been disclosed to

Jerry. 

At a family meeting held on August 2, 2008, Maury’s brother Barry asked

Maury why members “weren’t being allowed to see information” about members’

draws or pay, objecting that “we have no way [of] having checks and balances” over

Maury’s management and “simply take your word for it.” When Maury assured Barry

4
that the operations of the company were “reconciled,” Barry said that “all the

members except you have tunnel vision and cannot know” whether the company’s

affairs were being conducted equitably and in accordance with “the rules and

bylaws.” Barry then raised the possibility of calling in his own accountant to ask

Maury about the company’s affairs, but Maury said that he would “not necessarily”

respond to such inquiries. Barry again asked for a listing of the members’ “percentage

ownership and the amount they draw every year,” but Maury again responded that

this was “not appropriate.” 

In the course of and following this exchange, Sawyer confirmed that members

could have the information only if there were majority approval for replacing Maury

or full disclosure, or if the other members “went to [c]ourt” and obtained a ruling to

“compel Maury to turn that information over[.]” Sawyer also suggested that “full

disclosure” would cost the family “$25,000 a year.” As we have noted, however, the

operating agreement required the manager to provide members with “a statement

showing the amounts distributed to each [m]ember . . . for each previous calendar

quarter during the fiscal year.” Sawyer testified at trial that he did not recall this

provision and itsreporting requirements when he advised the members as he did, and

that he did not refer to the agreement or its terms at the August 8 meeting, 

5
In the weeks following the meeting, Maury discussed redeeming his and his

immediate family’s interest in HMH with Sawyer at least three times, and also told

Sawyer that he planned to move to Florida. On October 31, Maury redeemed his

family’s interests, paying himself $397,000 more than they were worth. Neither

Sawyer nor Maury disclosed the redemption to the rest of the members before Maury

announced his resignation on January 2, 2009, soon after which he moved to Florida

and bought a house. At trial, Barry testified that if he and other family members

“[had] known [at the time of the August 2008 meeting] that we were entitled to

[HMH’s] records . . . , we would have seen that Maury had been stealing money from

the company” and “could have filed suit against Maury to have the funds

recovered[.]” Sawyer admitted at trial that HMH could have used Maury’s

membership interest to repay much of what had been stolen. 

On January 16, 2009, the membersfired Maury as manager and appointed Jerry

and Barry in his stead. On February 2, and despite a warning from a junior attorney

about an actual conflict of interest, Alston & Bird sent Jerry and Barry a cease-anddesist letter demanding that they stop interfering with HMH’s interests. In early

February, as they worked on a second cease-and-desist letter, the junior attorney

again warned Sawyer of the conflict between the firm’s representation of Maury and

6
that of the company under new management. On February 27, Maury and Sawyer

presented Jerry and Barry with a universal release from any claims or litigation, to be

signed in exchange for the return of HMH’srecords. Jerry refused to sign the release,

however. 

In August 2009, HMH hired an accountant, Mark Zyla, to examine the

company’s records. Although Maury refused to provide what appeared to be missing

documents, Zyla determined that Maury had misappropriated approximately $1.492

million from the company by means including improper distributions, improper

compensation, and overvaluation of his interest in HMH at the time of redemption.

Zyla also calculated the interest due on this sum, from Maury’s October 2008

redemption to trial, at $971,044. In December 2009, HMH sued Maury, eventually

receiving a judgment of over $4 million, which HMH has not been able to collect. 

In May 2012, HMH filed this action against Alston & Bird for legal

malpractice and breach of fiduciary duty. The law firm moved for summary judgment

on grounds including that HMH’s damages were not proximately caused by the firm.

After a hearing, the trial court denied the motion. The law firm’s motion for a directed

verdict was taken under advisement. At trial, HMH introduced evidence in support

of a jury award (including compensatory damages, interest, and litigation expenses,

7
but not including punitive damages) of over $2.5 million. The jury found Alston &

Bird liable for both legal malpractice and breach of fiduciary duty and awarded

compensatory damages of $697,614, prejudgment interest of $341,831, and attorney

fees and costs of $1,096,561.48, for a total award of $2,136,006.48.

1 The jury also

apportioned fault for Alston & Bird at 32%, HMH at 8%, and non-party Maury at

60%. The trial court then reduced the verdict by 68% and entered judgment

accordingly. After a remand from this Court, the trial court denied Alston & Bird’s

motion for judgment notwithstanding the verdict in a detailed order. This appeal

followed. 

Case No. A20A0217

1. Alston & Bird does not dispute that Sawyer and the firm owed HMH one or

more duties and that they breached those duties. On appeal, and without

distinguishing between the legal malpractice and breach-of-duty claims, the firm

claimsthat because the evidence wasinsufficient to show that any breach of duty was

the proximate cause of HMH’s injury, the trial court erred in denying its motion for

judgment not withstanding the verdict. We disagree. 

To make out a claim for legal malpractice, 

1

 The jury declined to award punitive damages.

8
a plaintiff has the burden of proving the three elements of such an

action: (1) employment of the defendant attorney (i.e., the plaintiff had

an attorney-client relationship with the attorney); (2) failure of the

attorney to exercise ordinary care, skill, and diligence; and (3) that the

attorney’s negligence was the proximate cause of the plaintiff’s

damages.

(Footnote omitted.) Estate of Nixon v. Barber, 340 Ga. App. 103, 105 (1) (796 SE2d

489) (2017). More specifically, and to establish proximate cause in an action for legal

malpractice or breach of fiduciary duty, 

a plaintiff must show a legally attributable causal connection between

the defendant’s conduct and the alleged injury. The plaintiff must

introduce evidence which affords a reasonable basis for the conclusion

that it is more likely than not that the conduct of the defendant was a

cause in fact of the result. A mere possibility of such causation is not

enough; and when the matter remains one of pure speculation or

conjecture, or the probabilities are at best evenly balanced, it becomes

the duty of the court to grant [a directed verdict] for the defendant.

(Citation omitted.) Whiteside v. Decker, Hallman, Barber &Briggs, 310 Ga. App. 16,

18-19 (1) (712 SE2d 87) (2011). But “[t]he mere fact that the plaintiff’s injuries

would not have been sustained had only one of the acts of negligence occurred will

not of itself operate to limit the other act as constituting the proximate cause.”

9
(Footnote omitted.) Glisson v. Freeman, 243 Ga. App. 92, 108 (532 SE2d 442)

(2000). 

Here, a jury was authorized to conclude from the evidence outlined above that

as a result of Sawyer’s incorrect advice in response to direct inquiries, family

members left the August 2008 meeting under the mistaken belief that they were not

entitled to information on members’interests, and that as a result, they were deprived

of the opportunity to take action to remedy Maury’s fraud. The jury was also

authorized to infer that when Sawyer did not disclose Maury’sredemption or moving

plansto the members and when he drafted letters demanding thatJerry and Barry stop

interfering with Maury (even after repeated warningsfrom a junior attorney), Sawyer

violated his duties of care and loyalty to HMH. Further, and although Alston & Bird

points to evidence that Maury’s thefts occurred before the August 2008 family

meeting, Sawyer himself testified that had members learned of Maury’s theft before

the redemption, the company could have used his remaining membership interest to

repay a portion of what had been stolen. We also note, moreover, that the jury’s

award of compensatory damages was well within the range of the evidence.

For all these reasons, the trial court did not err when it denied Alston & Bird’s

motion for directed verdict and for judgment notwithstanding the verdict. See Both

10
v. Frantz, 278 Ga. App. 556, 559 (2) (629 SE2d 427) (2006) (reversing a grant of

summary judgment on plaintiffs’ claim for breach of fiduciary duty when their legal

malpractice claimwas “still an issue” and when the attorneys might have had the duty

to “avoid conflicts of interest after the termination of an attorney-client relationship”)

(footnotes omitted); Traub v. Washington, 264 Ga. App. 541, 543-544 (1) (591 SE2d

382) (2003) (affirming denial of summary judgment on a claim for legal malpractice

when expert testimony supported a conclusion that the attorney had ignored a

conflict, resulting in damage to the client); Glisson, 243 Ga. App. at 108 (5)

(reversing a grant of summary judgment when a jury could find that a fiduciary’s

misrepresentations were the proximate cause of an improper transfer of plaintiff’s

funds). Compare Whiteside, 310 Ga. App. at 19 (where the only evidence on

proximate cause came from the expert on legal malpractice, the client had not

established that element of the claim). 

2. Alston & Bird also assertsthat the trial court erred when it instructed the jury

that it could award prejudgment interest in this tort action. We agree. 

The record shows that when HMH sought an instruction on prejudgment

interest, Alston & Bird objected that because HMH’s damages were unliquidated,

“prejudgment interest does not apply. . . . It is not for the jury to consider.” The trial

11
court overruled the objection, and later charged the jury that it could award

prejudgment interest at the annual rate of 7 percent “from the time of the breach until

the time of the recovery.” 

HMH sought damages under OCGA § 13-6-13, which provides: “In all cases

where an amount ascertained would be the damages at the time of the breach [of

contract], it may be increased by the addition of legal interest from that time until the

recovery.” Although HMH points to law authorizing the recovery of prejudgment

interest in tort cases,

2

such a recovery is authorized only when the tort action involves

a breach of a duty “‘aris[ing]froma contractual right.’” Miller v. Lynch, 351 Ga. App.

361, 370-371 (4) (830 SE2d 749) (2019), quoting Tower Financial Svcs., Inc. v.

Smith, 204 Ga. App. 910, 916 (2), 918 (4) (423 SE2d 257) (1992). The Supreme

Court authority cited by this Court in Tower limited itself, moreover, to the question

“whether it is error, in a breach of contract case where the damages are unliquidated,

for the court to instruct the jury that it may return a verdictstating interestseparately,

rather than including it as part of the damages awarded.” (Emphasissupplied.) Braner

2 See, for example, the dicta in Sims v. Heath, 258 Ga. App. 681, 683 (3) n.6

(577 SE2d 789) (2002), disapproved on other grounds, Rockdale Hosp. v. Evans, 306

Ga. 847, 853 (2) n. 4(834 SE2d 77) (2019); and in Tower, infra at 918 (4)

(authorizing prejudgment interest as to the tort of wrongful foreclosure arising from

plaintiff’s security deed). 

12
v. Southern Trust Ins. Co., 255 Ga. 117, 119 (1) (335 SE2d 547) (1985). And this

Court has recently held that an action for breach of fiduciary duty (such as loyalty or

care) that does not arise from any specific contract does not authorize an award of

prejudgment interest under OCGA § 13-6-13. Miller, 351 Ga. App. at 370-371 (4).

See also H & H Subs v. Lim, 223 Ga. App. 656, 659-660 (3) (478 SE2d 632) (1996)

(reversing an award of prejudgment interest under OCGA § 13-6-13 when plaintiffs

had elected to sue defendant in tort rather than in contract and when they had sought

punitive damages, “which are not recoverable on a contract claim”). 

HMH did not include a breach of contract claim in its suit, and neither side has

pointed to any specific contract in the record which might ground a claim for

prejudgment interest under OCGA § 13-6-13. Because there is no evidence before us

of a specific contract from which the duties in this case might have arisen, and

because HMH’ssuitsounded in tort, including a claimfor punitive damages, we must

conclude that the trial court erred when it authorized the recovery of prejudgment

interest here. H & H Subs, 223 Ga. App. at 659-660 (3).3

3 This Court’s decision in Hamilton v. Powell, Goldstein, Frazer & Murphy,

167 Ga. App. 411 (306 SE2d 340) (1983), cited by HMH, does not compel a different

result. There, we held that a claim for legal malpractice was a “cause of action in

tort,” such that the plaintiff had “two years to bring an action for tort, and four years

to bring an action for breach of contract.” (Citations omitted.) Id. at 414 (1). As we

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Case No. A20A0218

3. HMH first argues that the trial court erred in reducing the jury’s award by

the percentage of the fault of Maury as well as HMH.4

 We agree. 

OCGA § 51-12-33 provides in relevant part: 

(a) Where an action is brought against one or more persons for injury to

person or property and the plaintiff isto some degree responsible for the

injury or damages claimed, the trier of fact, in its determination of the

total amount of damages to be awarded, if any, shall determine the

percentage of fault of the plaintiff and the judge shallreduce the amount

of damages otherwise awarded to the plaintiff in proportion to his or

her percentage of fault. 

(b) Where an action is brought against more than one person for injury

to person or property, the trier of fact, in its determination of the total

amount of damages to be awarded, if any, shall after a reduction of

damages pursuant to subsection (a) of this Code section, if any,

noted, moreover, “if the breach complained of is not mere neglect of a duty expressly

provided for by the terms of the contract itself, the complaining party may elect as to

his remedy, and rely either upon his right under the contract or proceed for damages

as for a tort.” (Citation and punctuation omitted.) Id. at 413 (1). Here, of course,

HMH elected to proceed in tort. 

4 The charge instructed the jury that “[i]f you believe that the plaintiff is

entitled to recover and further find that the plaintiff is to some degree responsible for

the injury or damages claimed, you should not make any reduction because of the

negligence, if any, of the plaintiff[.]” HMH concedes that the trial court should have

reduced the compensatory award by 8%. 

14
apportion its award of damages among the persons who are liable

according to the percentage of fault of each person. Damages

apportioned by the trier of fact as provided in this Code section shall be

the liability of each person against whom they are awarded, shall not be

a joint liability among the persons liable, and shall not be subject to any

right of contribution.

(c) In assessing percentages of fault, the trier of fact shall consider the

fault of all persons or entities who contributed to the alleged injury or

damages, regardless of whether the person or entity was, or could have

been, named as a party to the suit.

. . . 

(f)(1) Assessments of percentages of fault of nonparties shall be used

only in the determination of the percentage of fault of named parties.

(2) Where fault is assessed against nonparties pursuant to this Code

section, findings of faultshall notsubject any nonparty to liability in any

action or be introduced as evidence of liability in any action.

(g) Notwithstanding the provisions of this Code section or any other

provisions of law which might be construed to the contrary, the plaintiff

shall not be entitled to receive any damages if the plaintiff is 50 percent

or more responsible for the injury or damages claimed.

15
(Emphasis supplied.)5

“When we consider the meaning of a statute, we must presume that the General

Assembly meant what it said and said what it meant.” (Citation and punctuation

omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). We

therefore “read the statutory text in its most natural and reasonable way, as an

ordinary speaker of the English language would.” (Citation and punctuation omitted.)

FDIC v. Loudermilk, 295 Ga. 579, 588 (2) (761 SE2d 332) (2014). “The common and

customary usages of the words are important, but so is their context.” (Citations

omitted.) Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015). “For context,

we may look to other provisions of the same statute, the structure and history of the

whole statute, and the other law – constitutional, statutory, and common law alike –

that forms the legal background of the statutory provision in question.” (Citations

omitted.) May v. State, 295 Ga. 388, 391-392 (761 SE2d 38) (2014). 

5 Present subsection (a) was added in 2005. 2005 Ga. L. Act 1 (S.B. 3), § 12

(effective February 16, 2005). Before the 2005 amendment, the statute addressed only

the class of actions now covered by subsection (b) – that is, actions “brought against

more than one person for injury to person or property” in which “the plaintiff is

himself to some degree responsible[.]” Former OCGA § 51-12-33 (a) (1987); 1987

Ga. L. p. 915, § 8. 

16
As a preliminary matter, we note that the current action was brought against

only one party, Alston & Bird, and concluded with a determination by the jury that

the plaintiff HMH was 8% at fault for its own injury. On its face, then, OCGA § 51-

12-33 (a) is the applicable portion of the statute. Id. (applying to actions against “one

or more persons for injury to person or property and the plaintiff is to some degree

responsible for the injury or damages claimed”) (emphasis supplied); see also

Zaldivar, 297 Ga. at 593 (“Subsection (a) specifies exactly what is to be done with

the ‘fault’ of the plaintiff”). Compare OCGA § 51-12-33 (b) (applying to actions

brought against “more than one person for injury to person or property”) (emphasis

supplied). 

As we noted in our previous opinion, moreover, the apportionment statute

obligates us to distinguish between the trier of fact’s determination of damages and

that of fault. HatcherI, 336 Ga. App. at 528 (“apportioning fault, not damages, [was]

the issue” in that interlocutory appeal). Subsection (a) statesthat the trial court “shall

reduce the amount of damages otherwise awarded to the plaintiff in proportion to his

or her percentage of fault.” (Emphasis supplied.) OCGA § 51-12-33 (a). As we

construed a former version of the statute and reversed a trial court’s ruling that a jury

could apportion damages concerning a non-party, we made clear that “OCGA § 51-

17
12-33[] does not authorize a jury to apportion damages against a nonparty.” (Footnote

omitted). Fraker v. C. W. Matthews Contracting Co., 272 Ga. App. 807, 810 (1) (614

SE2d 94) (2005). See also Schriever v. Maddox, 259 Ga. App. 558, 561 (2) (c) (578

SE2d 210) (2003) (because a defendant was no longer a party, “an instruction on

apportionment with him would have been inappropriate” under a former version of

OCGA § 51-12-33). By contrast, we emphasized in Hatcher I that “fault” would

determine the identity of those included in Alston & Bird’s notice of nonparty fault.

Hatcher I, 336 Ga. App. at 538, 530 (the trial court erred in striking Alston & Bird’s

notice of nonparty fault).6

Here, the jury awarded compensatory damages in the amount of $697,614.

Because this is an action involving only one defendant, and because the jury found

that HMH was 8% responsible for the injuries it suffered, the trial court should have

reduced this award of compensatory damages by 8% rather than 68%. OCGA § 51-

12-33 (a). 

4. HMH also argues that the trial court erred in reducing the attorney fee and

costs portion of the award. Again, we agree. 

6 As our Supreme Court has explained, “The assignment of ‘fault’ is the

mechanismbywhich the ‘liability’ of a named defendant is measured, but‘fault’ does

not literally mean ‘liability.’” Zaldivar, 297 Ga. at 600 (1) n.7.

18
Where fault is indivisible, the apportionment statute is inapplicable. FDIC v.

Loudermilk, 305 Ga. 558, 572 (826 SE2d 116) (2019). An award of litigation fees

under OCGA § 13-6-11 also “stand[s] alone” and apart from an award of

compensatory damages. Williams v. Harris, 207 Ga. 576, 578 (3) (63 SE2d 386)

(1951) (affirming a jury’s award of attorney fees when it found that a defendant had

acted in bad faith). Specifically, “obtaining some but less than all of the relief sought

is sufficient to authorize an award of attorney fees.” Magnetic Resonance Plus, Inc.

v. Imaging SystemsIntern., 273 Ga. 525, 528 (3) (543 SE2d 32) (2001). Our Supreme

Court’s Magnetic Resonance opinion also noted with approval this Court’s “careful

and accurate analysis” concluding that “‘where there is actual bad faith or stubborn

litigiousness in the evidence, attorney fees are authorized under [OCGA § 13-6-11],

regardless of the amount of the recovery.’” (Emphasis supplied.) Id. at 528 (3),

quoting Georgia-Carolina Brick &Tile Co. v. Brown, 153 Ga. App. 747, 754 (2) (266

SE2d 531) (1980). This is so because “[t]he presence or absence of bad faith on the

part of a defendant lies solely in the evidence of his conduct in dealings with the

plaintiff out of which the suit arose[,] and not in the plaintiff’s ability to prove up his

damages[.]” (Citation and punctuation omitted; emphasis supplied.) GeorgiaCarolina Brick, 153 Ga. App. at 750 (2) (B). 

19
HMH included a claim for attorney fees and costs under OCGA § 13-6-11 in

its complaint and submitted evidence at trial supporting the inference that Alston &

Bird’s bad faith had caused it to spend $1,096,561.48 in such fees and costs. Alston

& Bird has not challenged the sufficiency of HMH’s evidence in thisregard. The jury

found that Alston & Bird had committed both legal malpractice and breached its

fiduciary duty; as such, HMH was the “prevailing party” on these claims and was

entitled to seek its attorney fees under OCGA § 13-6-11. The jury also found that

Alston & Bird had “acted in bad faith” and awarded HMH fees and costs in the full

amount the company had requested – $1,096,561.48. Given that the court’s 68%

reduction in the award resulted in a final judgment of $683,522.07 – less than the

jury’s award of fees and costs alone – it is clear that the trial court included the fee

award as part of “all damages awarded by the jury.” As HMH points out, moreover,

there is nothing in the jury’s verdict to indicate that there was any allocation of bad

faith to anyone other than Alston & Bird. 

Because HMH wasthe prevailing party on its claims, and because “where there

is actual bad faith or stubborn litigiousness in the evidence, attorney fees are

authorized under OCGA § 13-6-11, regardless of the amount of recovery,” the trial

court erred when itreduced thisjury’sfee award. Georgia-Carolina Brick &Tile, 153

20
Ga. App. at 754 (2) (B) (affirming an award of fees under OCGA § 13-6-11 even

when plaintiffs had failed to prove all their compensatory damages). 

5. HMH represents that in the event that we reverse the trial court on the issues

of apportionment and fees, it does notseek a retrial on its assertion that the trial court

erred in granting Alston & Bird’s motion in limine concerning the firm’s arguably

improper withholding of documents. We therefore do not reach this issue. 

In sum, we affirm the submission of HMH’s substantive claims to the jury, but

we reverse the trial court’s submission of prejudgment interest to the jury, its

reduction of the jury’s compensatory award by 68% rather than 8%, and its reduction

of any portion of HMH’s litigation costs. On remand, the trial court is directed to

enter a new judgment in accordance with this opinion.

Judgment affirmed in part and reversed in part in Case No. A20A0217,

judgment affirmed in part and reversed in part in Case No. A20A0218, and cases

remanded with direction. Miller, P. J., and Reese, P. J., concur.

21