Michael T. Smith as Administrator of the Estate of Ashley Amanda Claxton v. Dale Adams

SECOND DIVISION
RICKMAN, P. J.,
GOBEIL and DAVIS, 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

February 12, 2026

In the Court of Appeals of Georgia
A25A2072, A25A2073. SMITH v. ADAMS; and vice versa.

RICKMAN, Presiding Judge.

A jury awarded damages, attorney fees, and expenses of litigation to Dale

Adams in this action for negligence that he filed against Ashley Claxton after she hit

him with a car. In Case No. A25A2072, Michael T. Smith, as the administrator of

Claxton’s estate, appeals, contending, inter alia, that the trial court erred by refusing

to clarify an ambiguous jury charge and by refusing to grant a new trial based on giving

that charge. In his cross-appeal in Case No. A25A2073, Adams argues that the trial

court erred by granting Smith’s motion for judgment notwithstanding the verdict as

to the jury’s award of attorney fees and expenses of litigation under OCGA § 9-11-
68(e).1 For the reasons that follow, we reverse in Case No. A25A2072 and remand the

case for a new trial, and we dismiss as moot Adams’s cross-appeal in Case No.

A25A2073.

Viewing the evidence in the light most favorable to the verdict, Clements v.

Weaver, 301 Ga. App. 430, 430 (687 SE2d 602) (2009), the record shows that in May

2016, Adams was working as a superintendent on a bridge construction project when

Claxton struck him with a car, severely injuring him. Adams sued Claxton in Fulton

County State Court for negligence and negligence per se. Adams sought to recover

damages including medical expenses, lost wages, lost earning capacity, pain and

suffering, and expenses of litigation under OCGA § 13-6-11.2 Claxton died while the

1
OCGA § 9-11-68(e) provides, in relevant part: “Upon motion by the prevailing
party at the time that the verdict or judgment is rendered, the moving party may
request that the finder of fact determine whether the opposing party presented a
frivolous claim or defense. In such event, the court shall hold a separate bifurcated
hearing at which the finder of fact shall make a determination of whether such
frivolous claims or defenses were asserted and to award damages, if any, against the
party presenting such frivolous claims or defenses.”
2
OCGA § 13-6-11 provides as follows: “The expenses of litigation generally
shall not be allowed as a part of the damages; but where the plaintiff has specially
pleaded and has made prayer therefor and where the defendant has acted in bad faith,
has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and
expense, the jury may allow them.”
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case was pending, and the trial court substituted Smith, as the administrator of

Claxton’s estate, as the defendant.

Adams moved to bifurcate the trial proceedings. The trial court granted the

motion and ordered that phase one of the trial would address liability; whether

Claxton acted in bad faith, was stubbornly litigious, or caused Adams unnecessary

trouble and expense; and the amount of general and special damages, excluding

damages under OCGA § 13-6-11. Phase two would address “the amount of attorneys’

fees and expenses of litigation, if any.”

Smith ultimately admitted liability, and the case proceeded to trial on the

remaining issues.

Following closing arguments, the trial court charged the jury. After charging the

jury on damages, the trial court gave the following charges:

Plaintiff in this case is seeking an award of attorneys’ fees and expenses
of litigation. Generally, attorneys’ fees and litigation expenses are not
allowed to be recovered as part of the damages. However, if you find that
defendant acted in bad faith, you may award reasonable attorneys’ fees
and litigation expenses incurred by Plaintiff.

...

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Upon considering the case under all the instructions which the Court has
given you, you shall render a verdict on the verdict form which will be
given to you. The verdict form should be self explanatory.

The verdict form had a blank for “total damages” and yes or no blanks for the jury to

indicate whether it found that Claxton “acted in bad faith such that the attorneys’ fees

and litigation expenses of Plaintiff Dale Adams should be allowed.”

After the jury was charged, the trial court heard the parties’ objections to the

charge. Smith objected to one charge, and the trial court noted his objection for the

record. Smith then stated, “One other thing is ... [s]ometimes judges explain the

verdict form. The way the charge was read without explaining the verdict form, it

sounds like the attorneys’ fees should be included as part of the damages.” Smith

explained that his “concern is that they’re going to check the box ‘yes’ on bad faith,

and then incorporate attorneys’ fees that they don’t have any evidence of. Unless you

explain it at this point, it’s just a check box on yes or no as part of the verdict form.”

The trial court stated that it “might consider just to avoid confusion to bring them out

before they start deliberating and say you’re ... only determining compensatory

damages at this point and not attorneys’ fees.” However, after Adams opined that the

verdict form was clear and did not need any further explanation, the trial court stated,

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“Okay. I’m not going to explain it. I’m not going to explain it further. I haven’t had

any issue with that in the past.”

The jury returned a phase-one verdict awarding Adams $60,000,000 in “total

damages” and finding that Claxton acted in bad faith. The trial then proceeded to

phase two for the jury to determine the amount of the expenses of litigation to be

awarded to Adams under OCGA § 13-6-11. The jury returned a phase-two verdict

totaling $40,000,000, which consisted of $39,912,760.30 in attorney fees and

$87,239.70 in litigation expenses. Adams moved for an additional attorney fee

recovery under OCGA § 9-11-68(e), and the jury awarded an additional $3,500,000

in attorney fees and expenses of litigation.

Smith moved for a new trial, or, in the alternative, for remittitur. The trial court

found that the jury’s OCGA § 13-6-11 attorney fee award was excessive and ruled that

the court would grant a new trial unless Adams accepted a remittitur of that award to

$24,087,239.80 — $24,000,000 in attorney fees plus $87,239.80 in litigation

expenses. The trial court otherwise denied the motion for new trial/motion for

remittitur. Adams accepted the remittitur.

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Smith also moved for partial judgment notwithstanding the verdict on Adams’s

OCGA § 9-11-68(e) claim. The trial court granted Smith’s motion and set aside the

additional $3,500,000 award of attorney fees and expenses.

These appeals followed.

Case No. A25A2072

1. Smith contends that the trial court erred by refusing to clarify its charge to the

jury on attorney fees during the first phase of the trial and by refusing to grant a new

trial based on giving that charge. Specifically, Smith argues that the charge was

ambiguous and may have resulted in the jury awarding a sum of attorney fees as part

of Adams’s “total damages” in phase one of the trial. We agree.

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This Court reviews an allegedly erroneous jury charge de novo.3 Boone v.

Vascular Surgical Assocs., 372 Ga. App. 547, 555(2) (905 SE2d 199) (2024). “In

assessing whether a jury instruction was erroneous, it must be evaluated in the context

of the trial court’s jury instructions as a whole, including consideration of a preprinted

verdict form.” United Obstetrics & Gynecology v. Robinson, 376 Ga. App. 198, 200(1)

(918 SE2d 365) (2025). “[T]he only requirement regarding jury charges is that they

were, as given, correct statements of the law and, as a whole, would not mislead a jury

of ordinary intelligence.” Boone, 372 Ga. App. at 555(2) (punctuation omitted).

“When we are presented with a claim that a particular instruction is misleading, we

do not evaluate jury charges in isolation, but rather consider them as a whole to

3
Adams contends that the allegedly erroneous jury instruction should be
reviewed for plain error rather than de novo, arguing that Smith failed to object to the
jury instruction. OCGA § 5-5-24(a) provides that in civil cases, “no party may
complain of the giving or failure to give an instruction to the jury unless he objects
thereto before the jury returns its verdict, stating distinctly the matter to which he
objects and the grounds of his objection.” “To be considered sufficient under this
code section, an objection must be stated distinctly enough for a reasonable trial judge
to understand its nature, enabling him to rule intelligently on the specific point.”
Smith v. Norfolk S. Ry. Co., 337 Ga. App. 604, 611(2) (788 SE2d 508) (2016)
(punctuation omitted). Here, Smith stated his objection to the charge distinctly
enough for the trial judge to understand its nature, enabling the judge to rule on the
specific point raised by Smith. Smith’s objection was, therefore, sufficient under
OCGA § 5-5-24(a). See Smith, 337 Ga. App. at 611(2).

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determine whether there is a reasonable likelihood the jury improperly applied a

challenged instruction.” Walker v. State, 311 Ga. 719, 724 (3) (859 SE2d 25) (2021)

(punctuation omitted).

“[T]he trial court may correct errors in a charge by calling attention to the

erroneous parts of the charge and giving the jury the correct rule.” Fassnacht v. Moler,

358 Ga. App. 463, 472(1)(a) (855 SE2d 692) (2021) (punctuation omitted). “A proper

instruction on recharge may correct an improper instruction given in the original

charge to the jury, where the correct instruction given on recharge explains away the

defect in the previous improper charge.” Id. (punctuation omitted).

“When an error in the charge of the court is shown to exist, it is presumed to

be prejudicial and harmful, and this [C]ourt will so hold unless it appears from the

entire record that the error is harmless.” Foskey v. Foskey, 257 Ga. 736, 737(2) (363

SE2d 547) (1988).

Here, the trial court instructed the jury that “[g]enerally, attorneys’ fees and

litigation expenses are not allowed to be recovered as part of the damages. However,

if you find that defendant acted in bad faith, you may award reasonable attorneys’ fees

and litigation expenses incurred by Plaintiff.” In isolation, this jury instruction was not

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erroneous. However, we must evaluate this instruction in the context of the trial

court’s jury instructions as a whole, including the preprinted verdict form. United

Obstetrics & Gynecology, 376 Ga. App. at 200(1). Here, although the trial court

instructed the jury that it could award attorney fees and expenses “as part of the

damages” if it found the defendant acted in bad faith, the jury was not instructed that

“total damages” on the verdict form should exclude attorney fees and expenses of

litigation. Furthermore, when they were considering their verdict in phase one of the

trial, the jurors had not been informed that if they found bad faith, there would be a

second phase of the trial in which evidence of attorney fees and litigation expenses

would be presented. A jury of “ordinary intelligence” could have understood the trial

court’s instructions to authorize an award of attorney fees and expenses of litigation

as part of “total damages” if the jury found bad faith. See generally Boone, 372 Ga.

App. at 555(2). Under these circumstances, we conclude that the jury instruction

could have confused the jury and that there is a reasonable likelihood that the jury

improperly applied the trial court’s instruction and included some amount for

attorney fees and expenses of litigation as part of the “total damages” on the verdict

form. See Walker, 311 Ga. at 724(3). See also King Cotton, Ltd. v. Powers, 190 Ga. App.

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845, 848(2) (380 SE2d 481) (1989) (charge on damages that “could have confused a

jury of ordinary capacity and understanding” constituted reversible error). The trial

court could have clarified the initial charge by recharging the jury to instruct the jurors

that they were “only determining compensatory damages at [that] point and not

attorneys’ fees,” as it considered doing. See Fassnacht, 358 Ga. App. at 472(1)(a).

However, it declined to do so. Consequently, we must reverse the trial court’s

judgment and denial of the motion for new trial, and remand the case for a new trial.

See King Cotton, Ltd., 190 Ga. App. at 848(2).

2. Because of our determination in Division 1, we need not address Smith’s

remaining enumerations of error.

Case No. A25A2073

3. In Case No. A25A2073, Adams challenges the trial court’s grant of Smith’s

motion for judgment notwithstanding the verdict as to the jury’s award of attorney

fees and expenses of litigation under OCGA § 9-11-68(e). Attorney fees and expenses

of litigation are available under OCGA § 9-11-68(e) only “[u]pon motion by the

prevailing party at the time that the verdict or judgment is rendered.” Because in

Division 1 we have reversed the judgment and remanded the case for a new trial,

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Adams’s cross-appeal is moot and must be dismissed. See generally Harris v. Martin,

373 Ga. App. 158, 163(2) (908 SE2d 17) (2024); City of Dalton v. Smith, 158 Ga. App.

356, 359(2) (280 SE2d 138) (1981). See also Showan v. Pressdee, 922 F3d 1211,

1228(VII)(C) (11th Cir. 2019) (“Because [OCGA § 9-11-68(e)] requires the prevailing

party to move for a hearing ‘at the time the verdict or judgment is rendered,’ it plainly

contemplates that arguments regarding frivolity belong before the same factfinder that

renders the underlying verdict or judgment.” (emphasis omitted)).

Judgment reversed in Case No. A25A2072, and case remanded. Appeal dismissed

in Case No. A25A2073. Gobeil and Davis, JJ., concur.

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