AMERICAN MEDICAL TRANSPORT v. Glo-An

• Decision Date: 24 November 1998
• Docket Number: No. A98A2468, No. A98A2469.
• Citation: 235 Ga. App. 464,509 S.E.2d 738
• Parties: AMERICAN MEDICAL TRANSPORT GROUP, INC. et al. v. GLO-AN, INC. Glo-An, Inc. v. American Medical Transport Group, Inc. et al.
• Court: Georgia Court of Appeals

509 S.E.2d 738

235 Ga. App. 464

AMERICAN MEDICAL TRANSPORT GROUP, INC. et al. v. GLO-AN, INC.

Glo-An, Inc. v. American Medical Transport Group, Inc. et al.

Nos. A98A2468, A98A2469.

Court of Appeals of Georgia.

November 24, 1998.

Robert L. Kirby, Roswell, for appellants.

Wagner, Johnston & Rosenthal, Kristofer R. Schleicher, Jenny E. Jenson, Atlanta, for appellee.

ELDRIDGE, Judge.

American Medical Transport Group, Inc. ("AMTG"), defendant-appellant, leased from Glo-An, Inc. two suites of offices in Roswell, Georgia. Elizabeth R. Payne was AMTG's president. Lease 203 and Lease 204 designated "MedWings," AMTG's servicemark, as tenant. The two leases were for different units but were identical as to terms, i.e., rental, utility charges, common area maintenance charges, and other terms and conditions of the leases. The terms of both leases ran from April 1, 1995, through March 31, 1997; both specified what constituted default; and both specified Glo-An's remedies in case of default.

In January 1996, AMTG was delinquent in its rental payments by several months. Ten months of the twenty-four-month rental period had elapsed. Glo-An informed AMTG that eviction proceedings would be commenced. On February 6, 1996, AMTG vacated both suites. Glo-An did not commerce eviction proceedings, but placed a "For Lease" sign on the premises in mid-January 1996.

The leases provided specific remedies to Glo-An in the event of default by AMTG. The leases provided that default occurred if: "(a) [t]enant shall fail to pay any installment of the rent ... when due, and such failure shall continue for a period of five (5) days from the date such installment was due; ... [or] (f) [t]enant shall desert or vacate any substantial portion of the premises." The leases provided as remedies in case of default: "A. Terminate this lease in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for possession or arrears in rent, enter upon and take possession of the Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim of damages thereof; and Tenant agrees to pay to Landlord on demand the amount of all loss or damage which Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise." The leases provided that AMTG would pay the rent "without deduction or set off, for the entire term hereof for said premises."

On March 7, 1996, Glo-An filed its complaint against AMTG, declaring the leases terminated. Glo-An sought attorney fees alternatively under OCGA §§ 13-6-11 and 13-1-11, but elected to proceed under OCGA § 13-6-11. On April 8, 1996, Suite 203 was relet to a new tenant. Suite 204 remained un-rented as of March 31, 1997.

The complaint sought rent and late charges of $9,660.27 for both units for January, February, and March 1996. The complaint gave notice of the intent to collect attorney fees for past due rent and utility bills of $9,562.09. It also sought 12 months rent for Lease 204 from April 1, 1996, through March 31, 1997, totaling $15,633.

On April 18, 1997, Glo-An filed its motion for summary judgment. AMTG responded. Defendants also filed its motion for summary judgment, seeking to hold Payne, its president, solely liable for past due rents and utilities. On October 8, 1997, the trial court denied defendants' motion, granted Glo-An's motion for summary judgment against AMTG, and dismissed Payne without prejudice. Defendants appeal.

Case No. A98A2468

1. AMTG's first enumeration of error is that the trial court erred in granting summary judgment to Glo-An against AMTG for $25,871.10. We do not agree.

AMTG does not deny liability in some amount; it challenges only the award for rent accruing after the premises were abandoned.

"Absent a limiting statute or controlling public policy, parties may contract with one another on whatever terms they wish and the written contract defines the full extent of their rights and duties.... We are unaware of any statutory or public policy limiting a lessee's right to enter into a lease in which both parties agree that the lessee shall be liable for rent for the entire term, less that amount received if the premises are re-let." (Citations and punctuation omitted.) Hardin v. Macon Mall, 169 Ga.App. 793, 794(1), 315 S.E.2d 4 (1984). See Bentley-Kessinger, Inc. v. Jones, 186 Ga.App. 466, 467-468, 367 S.E.2d 317 (1988); see also Mullis v. Shaheen, 217 Ga.App. 277, 278(1), 456 S.E.2d 764 (1995).

The leases clearly provided that the rent was payable "without deduction or set off, for the entire term hereof for the premises," and "[t]enant agrees to pay to [l]andlord on demand the amount of all loss and damage which [l]andlord may suffer by reason of such termination, whether through inability to relet the [p]remises on satisfactory terms or otherwise." Such "explicit and detailed provision in the lease[s] which clearly and unequivocally expressed the parties' intention to hold the lessee responsible for after-accrued rent even should an eviction take place." Bentley-Kessinger, Inc. v. Jones, supra at 468, 367 S.E.2d 317; see also Rucker v. Wynn, 212 Ga.App. 69, 71-72(4), 441 S.E.2d 417 (1994); Peterson v. P.C. Towers, L.P., 206 Ga.App. 591, 592(2), 426 S.E.2d 243 (1992). Therefore, the trial court did not err as a matter of law in granting summary judgment in the award of $25,871.10, when there existed no disputed issue of material facts as to the award of such liquidated damages.

2. AMTG's second enumeration of error is that the trial court erred in granting summary judgment for Glo-An against AMTG for interest in the amount of $2,167.67. We do not agree.

Under OCGA § 7-4-2(a), AMTG is liable for pre-judgment interest on the full amount of the principal awarded for past due rents and late charges at seven percent per annum as of April 14, 1997, totaling $2,095.54, with additional post-judgment interest accruing at the rate of $4.85 per day. Since AMTG neither counterclaimed for nor pled a set-off as an affirmative defense, then such was waived. Thus, there was no error in the trial court's failure to provide for a set-off for lease deposits prior to calculating the interest. See also Division 4, infra.

3. AMTG's third enumeration of error is that the trial court erred in granting summary judgment in favor of Glo-An against AMTG for attorney fees in the amount of $3,2070.25. We agree.

In the Glo-An brief in Case No. A98A2469, Glo-An states, "[a]s evidenced by the amount it seeks to recover, Glo-An elected to seek attorneys' fees and litigation expenses pursuant to OCGA § 13-6-11 rather than § 13-1-11."

Under OCGA § 13-6-11, the amount of the award of attorney fees as damages is a jury question that cannot be decided on summary judgment, because the questions of reasonableness and necessity of the expenses of litigation and attorney fees are matters for expert opinion. Opinion testimony, whether accepted in whole or in part, is a matter of weight and credibility for the jury. Allen v. Harris, 113 Ga. 107, 108-109(4), 38 S.E. 322 (1901); Altamaha Convalescent Center v. Godwin, 137 Ga.App. 394, 397-399(3), 224 S.E.2d 76 (1976).

"[Q]uestions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally questions for the jury to decide. [Cits.]" Backus Cadillac-Pontiac v. Ernest, 195 Ga.App. 579, 581, 394 S.E.2d 367 (1990); see also Jim Anderson & Co. v. ParTraining Corp., 216 Ga.App. 344, 346(3), 454 S.E.2d 210 (1995); Rossee Oil Co. v. BellSouth Telecommunications, 212 Ga.App. 235, 236, 441 S.E.2d 464 (1994).

"We are in agreement ... with the trial court insofar as it required evidence of the actual costs of the attorney and the reasonableness of those costs.... The intent of the law, as shown by the words, `the jury may allow them,' is to leave the matter of expenses to the jury trying the case. The plaintiff, by merely paying a given amount to his attorney, could not bind the defendants for this amount unless there were some evidence that...