The Cotto Law Group, LLC v. Vanessa Benevidez ( 2022 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and PINSON, 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.
https://www.gaappeals.us/rules
March 2, 2022
In the Court of Appeals of Georgia
A21A1601. THE COTTO LAW GROUP, LLC v. BENEVIDEZ.
PINSON, Judge.
An employee abruptly resigned from her position as an associate at a law firm
and blocked its access to her firm email account, the firm’s fax line, and client files
kept in an online Dropbox account. The firm sued her, and the trial court entered a
default judgment in its favor after the employee failed to file a timely answer. But the
trial court declined to award any damages after a bench trial on that issue, finding that
the firm had failed to carry its burden to prove any damages. The firm appealed,
contending that the trial court erred by (1) applying the wrong legal standard to its
claims for actual damages and declining to award even nominal damages; (2) failing
to recognize that the default judgment “conclusively established” the employee’s
liability for punitive damages and attorney fees; and (3) denying the firm’s right to
present closing argument at trial.
We affirm the trial court’s judgment except with respect to the attorney fees.
The trial court applied the correct legal standard and did not clearly err in finding that
the firm failed to establish its actual damages with reasonable certainty. The court
also did not err in failing to award nominal or punitive damages. And the court did
not commit reversible error by forgoing closing argument. But because the entry of
a default judgment required the trial court to award the firm its reasonable attorney
fees, the judgment must be reversed to the extent the court failed to make such an
award, and the case must be remanded for a determination of the proper amount of
the fee award.
Background
The relevant facts, which are either undisputed or deemed admitted by virtue
of the default judgment, see OCGA § 9-11-55 (a),1 are as follows. The Cotto Law
Group is a Duluth law firm specializing in immigration and personal injury law. In
2017, Vanessa Benevidez was hired as an associate attorney to handle the firm’s
1
Under this Code section, an entry of default judgment generally has the effect
of deeming “every item and paragraph of the complaint” to be “supported by proper
evidence.” See Division 2 below.
2
personal injury matters. While at Cotto, Benevidez established an account for the firm
with Dropbox, an online file-sharing network, to maintain client files. She also
arranged for the installation of a fax line for communicating with insurers in these
personal injury matters.
In January 2019, Benevidez and Mayra Lazano, a paralegal who worked
closely with Benevidez, resigned from their employment with the firm by emailing
the firm’s principal, Isaac Cotto, notifying him of their immediate resignation.2 On
Benevidez’s departure, the firm no longer had access to its Dropbox account, its fax
line, or her firm email account.3 Three days after the resignations, the firm received
letters from two clients, terminating the firm’s services.
The next day, Cotto filed suit, claiming that Benevidez and Lazano had
“converted [its] client files . . . [and] stole[n], tortiously interfered with[,] and
2
Benevidez’s email describes her resignation as “forced,” as a result of her
learning that Mr. Cotto was soliciting job applicants for her position.
3
Although the verified complaint avers that Benevidez changed the Dropbox
and email passwords and “altered the contact information” for the fax line to prevent
the firm from accessing these accounts, it is unclear to what extent Benevidez actually
altered passwords or other information, as opposed to simply leaving without
providing the credentials necessary to access these accounts. Either way, it is
undisputed that, at least initially, without Benevidez, the firm was unable to access
these accounts.
3
otherwise obstructed [the firm’s] access to its client files” in violation of various
Georgia statutes. The complaint sought injunctive relief as well as “compensatory,
consequential, special, nominal, punitive, and exemplary damages,” and attorney fees
under OCGA § 13-6-11.
In the months that followed, the trial court granted Cotto temporary injunctive
relief. And although Benevidez appeared at the interlocutory injunction hearing, she
failed to file a timely answer.4 Cotto moved for a default judgment, and, although
Benevidez then filed an untimely answer and moved to open the default, the trial
court rejected these efforts and granted Cotto’s motion for default judgment.
A bench trial on damages followed.5 Cotto presented two witnesses to testify
on damages. First, Cotto called Erika Quiroz, the firm’s marketing director, who
testified that, as a result of Benevidez’s departure and the firm’s lack of access to its
electronic files, she had to “stay in the office and do office work” instead of her usual
business development work outside the office. For roughly a month, Quiroz was
sidelined from her marketing duties to help “reorganize . . . the operation of the law
firm”; she testified that “there were files everywhere in the office and I had to start
4
Lazano had by that point been dismissed from the case.
5
Benevidez waived her demand for a jury trial.
4
calling the clients and . . . [let] them know that Ms. Benevidez wasn’t there anymore.”
Quiroz testified that she worked 122 hours on this “reorganization” work and that her
salary at the time was $15 per hour. She testified further that, in a typical month, she
brought in between 20 and 35 new cases and that, during the month she was diverted
from her marketing duties, she brought in only ten new cases. On cross-examination,
Quiroz admitted that, because Benevidez had been the firm’s only personal injury
attorney, it was inevitable that, if she were ever to leave the firm, someone would
have to “tend to those files that she was no longer handling.” On redirect, Quiroz
agreed that the “real reason” she had to step in to help was that Benevidez had left
without providing access to her email and the Dropbox files.
Cotto’s other witness was Isaac Cotto. Mr. Cotto testified that, because
Benevidez had effectively blocked the firm’s access to her email, the Dropbox
account, and the fax line, “we had to go, basically, manual labor and physically go
through every single file to communicate with providers and clients.” He testified that
he asked Benevidez for the Dropbox information but she never gave it to him, and
that ultimately his staff had to figure out the password “through trial and error.” He
also testified that five of the firm’s personal injury clients left “within 24 hours” to
go with Benevidez. As to the value of those clients’ cases, Mr. Cotto testified that,
5
while he could not “give a dollar amount,” a typical personal injury case “can range
from $2,000 to $10,000”; he also opined that Benevidez “would not have taken a case
of low value.” Mr. Cotto also testified that the firm had suffered reputational damage
with clients and referral sources. In addition, he testified that Quiroz and her
administrative assistant were both diverted from their marketing duties to help triage
the situation; that Quiroz was paid $3,000 per month and her assistant was paid
$2,000 per month; and that, because of their inability to develop business during that
time, “our signup numbers went down dramatically.” Mr. Cotto testified that the firm
had, up until the trial, spent between $7,000 and $8,000 on attorney fees.
On cross-examination, Mr. Cotto acknowledged that, because Benevidez and
Lazano were the only staff handling personal injury cases at the firm, if they both left
their employment for any reason, someone at the firm “would need to review all of
the files in those cases, regardless.” In addition, Mr. Cotto confirmed that his standard
engagement letter for personal injury cases provided that, if the client terminated the
firm’s services before the case was resolved, the client would be obligated to
reimburse the firm at the standard hourly rate for the hours spent on the case. Thus,
he admitted, the firm was entitled to seek such compensation from any of the clients
6
who left the firm to engage Benevidez. He also admitted he did not know the “exact”
value of the cases lost to Benevidez.
On further cross-examination, Mr. Cotto admitted that Benevidez had actually
offered him the email and Dropbox account credentials within days after the suit was
filed, but he declined to respond. In his words, because he had already retained
counsel, “I couldn’t communicate with her at that point.”
After Mr. Cotto’s testimony, a recess was taken before Benevidez began calling
her witnesses. After the recess, the court announced its finding that Cotto had failed
to meet its burden of proof and thus no damages were being awarded. Cotto’s counsel
asked for clarification, and the court stated that Cotto had not offered “any specifics
about damages.” Cotto’s counsel noted that Cotto had offered testimony about the
marketing director’s expenses, but the court replied that Cotto never presented “a
number [for] how much money the firm lost[,]” and that evidence amounted to mere
“speculation.” Before the parties were excused, Cotto’s counsel noted that Cotto had
intended to ask for punitive damages.
7
Two days after the hearing, the court entered its written order, in which it stated
summarily, “The Plaintiff failed to prove damages as required by law.”6 This appeal
followed.
Discussion
On review of a judgment entered after a bench trial, this Court must uphold all
findings of fact unless they are clearly erroneous, and due regard shall be given to the
trial court’s assessment of the credibility of witnesses. OCGA § 9-11-52 (a); Moses
v. Pennebaker, 312 Ga. App. 623, 629 (2) (b) (719 SE2d 521) (2011). “The clearly
erroneous test is the same as the any evidence rule. Thus, an appellate court will not
disturb fact findings of a trial court if there is any evidence to sustain them.” Id.(punctuation and footnote omitted). On the other hand, the court’s judgment must be
reversed “where it is apparent that it rests on erroneous reasoning or on an erroneous
legal theory.” CBS, Inc. v. Anointed Hair Studio, Inc., 325 Ga. App. 560, 560-61 (754
SE2d 138) (2014) (citation and punctuation omitted).
Cotto’s contentions on appeal break down into three main arguments: (1) that
judged under the proper standard, the evidence Cotto offered was enough to support
6
Neither party requested that the trial court enter specific findings of fact or
conclusions of law, either before or after the entry of judgment. See OCGA § 9-11-52
(a), (c).
8
a reasonable calculation of damages; (2) that the default judgment “conclusively
established” Benevidez’s liability for punitive damages and attorney fees; and (3) that
the trial court erred in denying Cotto’s right to present closing argument at trial. We
review each contention in turn.
1. We take first Cotto’s contention that it proved damages under the proper
standard. It is well-settled that, to recover damages as a result of another’s
wrongdoing, a party must offer proof sufficient to establish the amount of its losses.
Witty v. McNeal Agency, Inc., 239 Ga. App. 554, 562 (5) (521 SE2d 619) (1999). The
claimant bears “the burden of showing the amount of the loss, and of showing it in
such a way that the [trier] may calculate the amount from the figures furnished.” Id.(citation and punctuation omitted). “An award of damages cannot be based on
speculation, conjecture, or guesswork.” Mitchell v. Mitchell, 274 Ga. 633, 634 (2)
(555 SE2d 436) (2001). So, although an exact dollar figure need not be proven, Witty,
239 Ga. App. at 562 (5), the evidence must permit the trier of fact to calculate the
amount of the loss “with a reasonable degree of certainty.” Legacy Academy, Inc. v.
Doles-Smith Enters., Inc., 337 Ga. App. 575, 582 (1) (b) (789 SE2d 194) (2016)
(citation and punctuation omitted). Accord Molly Pitcher Canning Co. v. Central of
Ga. Ry. Co., 149 Ga. App. 5, 11 (4) (253 SE2d 392) (1979) (noting that “[m]ere
9
difficulty” in fixing the amount of damages is not a “legal obstacle” to their recovery,
so long as the evidence permits their calculation with “reasonable certainty”).
The requirement to prove damages to a reasonable degree of certainty holds
even when liability has been established. In other words, even if a defendant is found
liable, an award of zero damages is authorized if the plaintiff fails to offer sufficiently
specific or credible evidence to enable the calculation of damages with reasonable
certainty. See, e.g., Hart v. Walker, 347 Ga. App. 582, 583-84 (1) (820 SE2d 206)
(2018) (affirming trial court’s award of zero damages, despite defendant’s undisputed
liability for wrongful eviction and other torts, where plaintiff had offered as evidence
of damages only his own testimony and a single motel receipt); Jaraysi v. Sebastian,
318 Ga. App. 469, 477 (2) (733 SE2d 785) (2012), disapproved on other grounds by
George v. Hercules Real Estate Serv., Inc., 339 Ga. App. 843, 850 (2) (a) (ii) (795
SE2d 81) (2016) (affirming trial court’s determination that, though landlord may have
been entitled to recover repair costs, he had failed to present evidence showing the
amount of those costs and was thus not entitled to any recovery); Crawford v.
Dammann, 277 Ga. App. 442, 448-49 (3) (626 SE2d 632) (2006) (affirming trial
court’s award of zero damages, concluding that testimony about the “approximate”
10
amount of fees wrongfully assessed was “insufficient to prove the amount of
[damages] to the requisite degree of specificity”).
(a) Cotto contends that the trial court applied “an erroneous legal standard” in
assessing its damages claims, but nothing in the court’s oral pronouncement or its
summary written order indicates that it applied any standard other than the
reasonable-degree-of-certainty test. So this contention fails.
(b) Absent application of the wrong legal standard, the question becomes
whether the trial court clearly erred in finding that the evidence of Cotto’s alleged
damages was insufficient to allow calculation of damages to a reasonable certainty.
See OCGA § 9-11-52 (a); Moses, 312 Ga. App. at 629 (2) (b). Putting aside punitive
damages and attorney fees, Cotto claims that it was entitled to four different
categories of damages, which we will take one by one.
(i) Cotto first claims that it was entitled to damages for the five clients that left
the firm to engage Benevidez. But Cotto admits it could offer no actual dollar
amounts to represent the value of these clients’ matters. Although Mr. Cotto testified
that a typical personal injury case “can range from $2,000 to $10,000,” Cotto offered
no specific evidence about any of the five “stolen” cases, and thus no basis for
making any reasonable estimate of their potential value. Moreover, it is unclear what
11
this $2,000 to $10,000 range even represents. But even assuming it refers to the
firm’s contingency fee on successful resolution of the case, and assuming each case
would have been successfully resolved, this figure does not necessarily represent the
firm’s profit from that case, as it does not take into account any expenses the firm
would have incurred in generating that fee. See Legacy Academy, Inc. v. JLK, Inc.,
330 Ga. App. 397, 404-05 (2) (765 SE2d 472) (2014) (“To sufficiently quantify lost
profits, a finder of fact ‘must be provided with figures establishing the business’s
projected revenue as well as its projected expenses.’” (emphasis supplied)).7 In sum,
the trial court’s finding that Cotto failed to offer sufficient evidence to prove this item
of damages was not clearly erroneous. See Hart, 347 Ga. App. at 583-84 (1);
Crawford, 277 Ga. App. at 448-49 (3).
(ii) Next, Cotto contends that it was entitled to recover damages to cover the
expenses it incurred in “restoring its client files and communications.” Cotto cites
evidence that Quiroz and her assistant were paid $3,000 and $2,000 per month,
7
It is also hard to ignore the fact that Cotto failed to mitigate this item of
damages by exercising its contractual right to seek hourly fees from the clients for its
time spent on their matters. Although the duty to mitigate one’s tort damages
ostensibly applies only to negligence claims, see OCGA § 51-12-11, and thus this fact
alone likely would not bar Cotto’s recovery, its failure to pursue this obvious remedy
is notable.
12
respectively, and Quiroz’s testimony that she spent a month doing “office work” to
help “reorganize . . . the operation of the law firm.” Cotto claims it was entitled to
recover $5,000.
It is true that “necessary expenses consequent upon an injury are a legitimate
item in the estimate of damages.” OCGA § 51-12-7. But the firm would have paid the
salaries of Quiroz and her assistant whether they were helping “reorganize” after
Benevidez’s departure or performing their normal job duties. So the salaries did not
represent any additional cost to the firm.8 Cf. Taft v. Taft, 209 Ga. App. 499, 500 (3)
(433 SE2d 667) (1993) (cost of hiring additional workers necessitated by plaintiff’s
personal injuries was properly awarded as necessary expenses under OCGA § 51-12-
7). The trial court thus did not clearly err by concluding that Quiroz’s and her
assistant’s salaries did not constitute damages of this kind. See Hart, 347 Ga. App.
at 583-84 (1); Crawford, 277 Ga. App. at 448-49 (3).
8
In addition, as Quiroz admitted, at least some of the work she performed was
the inevitable transition-type work that would have been required even if Benevidez
and Lazano had left the firm under normal circumstances. And while Cotto bemoans
the extraordinary efforts it took to “recreate” the Dropbox files it could not access,
we cannot overlook the undisputed fact that Cotto refused altogether to respond to
Benevidez’s offer, mere days after she left, to give him the Dropbox and other
passwords—another conspicuous failure to mitigate the firm’s damages.
13
(iii) Cotto also contends that it should have been awarded its losses attributable
to the decline in new cases brought in during the month in which Quiroz was diverted
from her marketing duties. Cotto asserts that it “lost $20,000, and likely much more,
because of its lack of marketing for an entire month.” This number comes from
Quiroz’s testimony that the firm effectively “lost” at least ten new cases—given its
typical twenty to thirty-five monthly case originations, versus the ten cases it actually
originated during the month in question—combined with Mr. Cotto’s testimony
valuing each personal injury case in the range of $2,000 to $10,000.
But we have already held that Mr. Cotto’s testimony about the value of actual
cases the firm lost to Benevidez was speculative, and that the trial court did not
clearly err in concluding that it did not allow for calculation of those damages with
reasonable certainty. The value of any potential cases the firm may have lost would
be at least as speculative. For this reason, there was no clear error in the trial court’s
failure to award this item of damages. See Hart, 347 Ga. App. at 583-84 (1);
Crawford, 277 Ga. App. at 448-49 (3).
(iv) Cotto also contends that the trial court erred by failing to award nominal
damages. Again, we disagree.
14
Nominal damages are a form of “general damages,” a term which refers to
“those which the law presumes to flow from a tortious act.” MTW Inv. Co. v. Alcovy
Props., Inc., 228 Ga. App. 206, 211 (1) (c) (491 SE2d 460) (1997) (emphasis in
original). See OCGA § 51-12-4 (providing that “[d]amages are given as compensation
for injury; . . . .[i]f an injury is small or the mitigating circumstances are strong,
nominal damages only are given”). Because “[t]he law infers some damage from the
invasion of a property right,” the right may be vindicated through an award of
nominal damages even if the damage cannot be quantified or established by proof.
Ga. Power Co. v. Womble, 150 Ga. App. 28, 32 (3) (256 SE2d 640) (1979). See also
Williams v. Harris, 207 Ga. 576, 578 (2) (63 SE2d 386) (1951) (“nominal damages
are always allowed for any tortious invasion of a property right, though no actual
damage results therefrom”).
But just because nominal damages may be awarded does not mean they must
be awarded. Although a trial court may not under these circumstances reject a claim
for nominal damages as a matter of law, see, e.g., Zhong v. PNC Bank, N.A., 345 Ga.
App. 135, 142-43 (2) (c) (812 SE2d 514) (2018) (reversal was warranted where it was
decided as a matter of law that nominal damages were unavailable without proof of
actual damages); Ambort v. Tarica, 151 Ga. App. 97, 97 (1) (258 SE2d 755) (1979)
15
(reversing directed verdict on counterclaim because nominal damages were
potentially recoverable), we have on at least two occasions held that a trier of fact
may properly decline to award even nominal damages despite the defendant’s liability
having been definitively established. See Hodson v. Whitworth, 173 Ga. App. 863,
864 (1) (328 SE2d 753) (1985) (declining to reverse jury’s zero damages award
where liability was already established, noting that nominal damages were
“authorized but not demanded”); Corrosion Control, Inc. v. William Armstrong Smith
Co., 157 Ga. App. 291, 292 (277 SE2d 287) (1981) (declining to reverse zero
damages award after bench trial even though nominal damages would have been
authorized). Cf. Hooker v. Roberson, 316 Ga. App. 345, 346 (2) (729 SE2d 484)
(2012) (reversing where trial court sitting as trier of fact had failed to consider
nominal damages because of its error in reconsidering defendant’s liability after the
entry of a default judgment). Thus, Cotto’s contention that the trial court was required
to award nominal damages here is unfounded.
Where nominal damages are authorized, the proper amount of the award is the
prerogative of the trier of fact, whose determination is “not [to] be disturbed on
appeal, except in extreme cases.” Ponce de Leon Condos. v. DiGirolamo, 238 Ga.
188, 190 (3) (232 SE2d 62) (1977). Particularly given Cotto’s undisputed failure to
16
mitigate its actual damages, we do not view this case as so “extreme” as to warrant
disturbing the non-award of nominal damages.
2. Cotto next contends that Benevidez’s default “conclusively established” its
entitlement to punitive damages and attorney fees. We address each kind of damages
in turn.
(a) A defendant in default “‘is in the position of having admitted each and
every material allegation of the plaintiff’s petition except as to the amount of damages
alleged.’” Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985). See also
OCGA § 9-11-55 (a) (upon the entry of a default judgment, “every item and
paragraph of the complaint or other original pleading” is deemed to be “supported by
proper evidence,” except those related to the amount of unliquidated damages).
However, a default judgment does not operate as an admission of “allegations not
well pled, forced inferences, or conclusions of law.” Zhong, 345 Ga. App. at 139 (2)
(b) (citation and punctuation omitted). In fact, the entry of a default judgment does
not prevent a defendant from showing that the facts as deemed admitted do not give
rise to any right of recovery. Willis v. Allstate Ins. Co., 321 Ga. App. 496, 498 (740
17
SE2d 413) (2013); ServiceMaster Co. v. Martin, 252 Ga. App. 751, 752-53 (1) (556
SE2d 517) (2001).
In light of these principles, it is “within the trial court’s authority to award no
punitive damages despite the fact that [a] default judgment established liability for
them.” Wilson Welding Serv. v. Partee, 234 Ga. App. 619, 620 (507 SE2d 168)
(1998), overruled on other grounds by Shields v. Gish, 280 Ga. 556, 557 (1) (629
SE2d 244) (2006). So even when a defendant defaults on a complaint seeking
punitive damages, the trial court is authorized to find that no punitive damages should
be awarded based on the particular facts presented. This is because “the determination
of liability for punitive damages and the amount of punitive damages are two separate
issues.” Id. (emphasis supplied). Thus, as with the other kinds of damages, we must
consider the trial court’s determination on punitive damages by reference to the facts
established by the default and the evidence presented at the hearing.
Punitive damages are authorized in tort actions “in which it is proven by clear
and convincing evidence that the defendant’s actions showed willful misconduct,
malice, fraud, wantonness, oppression, or that entire want of care which would raise
the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b).
When punitive damages are to be awarded, the trier of fact is to assess “evidence . .
18
. regarding what amount of damages will be sufficient to deter, penalize, or punish
the defendant in light of the circumstances of the case.” OCGA § 51-12-5.1 (d) (2).
The proper amount of punitive damages is “based on the enlightened conscience of
the [trier of fact],” and on appeal, an award will not be disturbed “unless it is so
excessive or inadequate as to shock the judicial conscience to the degree that a
judgment entered thereon constitutes an error of law.” Wilson Welding Serv., 234 Ga.
App. at 620 (citation and punctuation omitted). Accord Avery v. Schneider as Next
Friend, 356 Ga. App. 304, 321 (5) (849 SE2d 1) (2020) (physical precedent only).
Under this highly deferential standard of review, we discern no error in the trial
court’s determination that punitive damages were not warranted here. The allegations
in Cotto’s verified complaint, which are deemed admitted by the default, show that
when she left the firm, Benevidez changed the passwords for the Dropbox account
and her email account; refused to respond to an email requesting these credentials;
changed the contact information for Cotto’s fax line, which cut off its access to
clients and their insurers; formed a new firm that was soliciting Cotto’s clients; and
“effectuated the termination of two of [Cotto’s] client relationships.” Although there
is no doubt that these acts were wrongful, we note that there are no specific averments
in the complaint that Benevidez’s conduct was willful, malicious, fraudulent, wanton,
19
oppressive, or consciously indifferent to the consequences, as would be required to
justify an award under OCGA § 51-12-5.1 (b). Cf. COMCAST Corp. v. Warren, 286
Ga. App. 835, 842 (2) (650 SE2d 307) (2007) (allegations in complaint that
defendant’s conduct was committed “recklessly, wantonly, and with conscious
disregard for the consequences” were sufficient to support punitive damages award
after entry of default judgment). Moreover, Mr. Cotto’s own testimony at the hearing
revealed that Benevidez offered the Dropbox and email passwords to him within days
of her resignation, a mitigating fact that the trial court might well have viewed as
significantly undercutting the basis for an award of punitive damages. In addition,
Cotto failed to offer any evidence, as OCGA § 51-12-5.1 (d) (2) required, on what
amount would be “sufficient to deter, penalize, or punish” Benevidez for her actions.
Under these circumstances, we cannot say that the zero-dollar punitive damages
award was so “inadequate as to shock the judicial conscience.” Wilson Welding Serv.,
234 Ga. App. at 620 (punctuation and footnote omitted).
(b) Our analysis of the attorney fee award, however, yields a different
conclusion. OCGA § 13-6-11 allows the recovery of attorney fees “where the
defendant has acted in bad faith, has been stubbornly litigious, or has caused the
plaintiff unnecessary trouble and expense.” As we have noted, “if a plaintiff in its
20
original complaint puts the defendant on notice that it is seeking attorney fees and
expenses under OCGA § 13-6-11 as part of the relief prayed for in the case, and if a
default judgment is subsequently entered against the defendant for failing to answer
the complaint, then the plaintiff is entitled to an award of attorney fees and expenses
as a matter of law[.]” Water’s Edge Plantation Homeowner’s Ass’n, Inc. v. Reliford,
315 Ga. App. 618, 620 (727 SE2d 234) (2012). Thus, it is reversible error to decline
to award attorney fees where a default judgment has been entered on a complaint that
specifically seeks attorney fees under OCGA § 13-6-11. Fresh Floors, Inc. v. Forrest
Cambridge Apts., LLC, 257 Ga. App. 270, 271 (570 SE2d 590) (2002) (reversing and
remanding where no attorney fees were awarded after default judgment was entered
on a complaint that included a prayer for attorney fees).
Here, Cotto’s complaint did include a specific claim for OCGA § 13-6-11
attorney fees. Thus, the trial court was not authorized to deny the recovery of fees
altogether, and its judgment must be reversed on this issue and the case remanded for
a determination of the proper amount to be awarded. See Fresh Floors, 257 Ga. App.
at 271. We note that Cotto will bear the burden on remand to prove not only the
amount of attorney fees expended in pursuing this matter but also the reasonableness
of those fees. See Gray v. King, 270 Ga. App. 855, 857-58 (2) (b) (608 SE2d 320)
21
(2004) (noting that a plaintiff seeking attorney fees must prove “‘the actual costs of
the attorney and the reasonableness of those costs’”).
3. Cotto lastly contends that the trial court committed reversible error by
“denying” its request for closing argument. Assuming for the sake of argument that
Cotto’s right to make a closing argument was denied, “[a] new trial based on the
denial of the right to . . . close argument is not warranted if there is an absence of any
conflict in the evidence.” Gilmer Cty. Bd. of Tax Assessors v. Spence, 309 Ga. App.
482, 483 (1) (b) (711 SE2d 51) (2011) (citations and punctuation omitted). There was
clearly no conflict in the evidence here because the only evidence presented was
Cotto’s. Thus, the trial court’s alleged denial of Cotto’s right to present closing
argument was not reversible error.
Judgment affirmed in part and reversed in part, and case remanded with
direction. Dillard, P. J., and Mercier, J., concur.
22