              Case: 18-11182    Date Filed: 02/27/2019   Page: 1 of 9


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-11182
                             Non-Argument Calendar
                           ________________________

                      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.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                               (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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