A woman who won a $330,000 federal jury award against Krispy Kreme Doughnuts wanted to sweeten the outcome by adding attorney fees, but the trial judge refused to hold a hearing to decide whether the pastry purveyor's tactics were frivolous. 

The U.S. Court of Appeals for the Eleventh Circuit felt otherwise, ruling Monday that she can have another bite of courtroom cruller by ordering a new trial and mandating that—if a new jury again awards damages for her injuries—she must also be allowed a hearing to determine whether her legal fees can be sprinkled on top.     

The published opinion released Monday was written by Judge Elizabeth Branch with the concurrence of Judge William Pryor and Senior Judge R. Lanier Anderson.

Attorney Jay Sadd, who represents the plaintiff with Slappey & Sadd colleague Edward Wynn, conceded that there was a risk that a new jury might award less damages or none at all.

But, he said, “it doesn't concern me or my client, because we're certain that the value of the case, in terms of Georgia legal damages, is far more than $330,000.”

Sadd said he couldn't discuss details of the case or the likely amount of any fees he hopes to seek if the new trial gets that far.

Carrie Christie and Emily Wang of Rutherford & Christie represent Krispy Kreme and the defendant driver. Christie said her client would not comment.

As detailed in the opinion and court filings, plaintiff Galawezh Showan was stopped at a traffic light in Snellville in April 2015 when a van traveling between 35 mph and 40 mph rear-ended her Toyota RAV4, knocking her into the vehicle in front of her.

Showan, now 55, suffered serious injuries, including facial bruising and laceration, wrist swelling and a “whiplash-type injury to her cervical spine.”

The leased van was driven by Patrick Pressdee, who was on the job for Krispy Kreme.

The company issued a “corrective action report” acknowledging Pressdee was at fault, and an insurance claim summary prepared the month after the accident said Showan bore zero negligence for the accident.

Showan sued Pressdee and Krispy Kreme Doughnut Corp. in Gwinnett County State Court later that year. The doughnut company had the case removed to the U.S. District Court fo the Northern District of Georgia.

In its answer to the suit, Krispy Kreme argued it owed no duty to Showan, that she bore some of the blame and had assumed the risk and that her injuries were not foreseeable. Pressdee “similarly refused to admit that his actions caused or contributed to the collision or that Showan suffered injuries,” the opinion said.

In a deposition a year after the wreck, however, Pressdee said he was driving 40 mph when he hit Showan, who was stopped and “did nothing to contribute to the collision.”

Shortly before trial, the defense filed a motion to amend their answers “to streamline the issue to be tried.”

Senior Judge Orinda Evans allowed the new filing, but also said the amended answer “will not preclude the plaintiff from seeking attorneys' fees and costs pursuant to state law should she prevail at trial.”

Evans said the condition “was appropriate because this case is 18 months old and only now, on the eve of trial, are defendants willing to admit significant liability of which they have arguably been aware since the collision at issue.”

The jury awarded Showan $330,000 in damages after a weeklong trial.

Showan appealed a half-dozen of Evans' rulings, including the denial for a hearing on attorneys fees. Georgia law allows a victorious party to request that the finder of fact determine whether the losing side 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,” Branch wrote.

The appellate opinion said Evans “initially seemed to entertain the idea” but finally denied the  motion while the jury was deliberating.

“The district court concluded that 'the evidence shows as a matter of law that the pleadings filed by the defendants were not frivolous' and that, in any event, Showan was not prejudiced,” it said.

Krispy Kreme's lawyers had argued that the Federal Rules of Civil Procedure provide that a judge, not a jury, determine frivolity.

But the opinion said the rule in question, Rule 11, applies to punitive actions by the court and “does not speak to whether a prevailing party is entitled to compensatory damages to remedy any injury inflicted on the prevailing party by the opposing party's bad-faith claims and defenses.”

Because there was no conflict between the federal and state rules, it said, Georgia's statute controlled the issue.

“Showan had a statutory entitlement to the hearing, and denying her that hearing affected her substantial rights,” Branch wrote in ordering a new trial “and the opportunity, if she prevails again, to move for a hearing” under the state statute.