Holmes v. Bogino, A95A2557

Citation467 S.E.2d 197,219 Ga.App. 858
Decision Date18 January 1996
Docket NumberNo. A95A2557,A95A2557
PartiesHOLMES et al. v. BOGINO et al.
CourtUnited States Court of Appeals (Georgia)

Landlord and tenant. DeKalb State Court. Before Judge Purdom, pro hac vice.

Chesnut & Livingston, Tom Pye, Doraville, for appellants.

Spix, Krupp & Reece, Mark V. Spix, Edward F. Danowitz, Atlanta, for appellees.

Tom Pye, Doraville, for other interested parties.

BEASLEY, Chief Judge.

In 1975, T.C. Holmes, Jr., leased certain commercial property to Windsor Beverages, Inc. Appellants-plaintiffs (landlords) are the successors in interest to Holmes. Appellees-defendants (tenants) are the assignees of Windsor. Landlords filed this dispossessory proceeding, seeking judgments against tenants, as well as their assignees, for unpaid rent and other charges due under the lease.

Landlords also sought interest and attorney fees under various provisions in the lease. With regard to interest, the applicable lease provision states that any amounts not paid by tenants to landlords within the times set forth in the lease shall bear interest from the date any such payment was due until paid "at two percent (2%) above the prime rate as determined from time to time by the Chase Manhattan Bank but not in excess of the highest legal rate of interest allowable." In the lease, tenants also agreed to pay "any reasonable attorney's fees incurred by landlord[s]" if, on account of any breach or default by tenants, it became necessary for landlords to employ an attorney to enforce or defend any of landlords' rights or remedies under the lease.

At a bench trial, landlords' witness testified without objection that he had acquired a history of Chase Manhattan's prime rate since 1934 and that the lowest prime rate of that bank during the period in question was six percent. Landlords calculated the interest due under the lease by adding two percentage points to this six percent figure.

In its final judgment, the court awarded to landlords $27,965.38 for unpaid rent and other charges. It declined to award interest, based on the ruling that landlords' proof of the Chase Manhattan Bank's prime rate was mere hearsay. The court concluded that landlords' attorney fee claim is subject to OCGA § 13-1-11 so as to limit their entitlement to fifteen percent of the first $500 and ten percent of all other amounts. See OCGA § 13-1-11(a)(2).

1. Landlords enumerate as error the refusal to award interest. They contend that the court erred in ruling that their proof of the Chase Manhattan Bank's prime rate was mere hearsay. We agree.

Through the testimony of their witness, landlords made a showing of the applicable interest rate charged by the Chase Manhattan Bank during the period in question. Compare Read v. Benedict, 200 Ga.App. 4, 8(3), 406 S.E.2d 488 (1991); Garrett v. Atlantic Bank etc. Co., 157 Ga.App. 103(1), 276 S.E.2d 152 (1981); Moore v. Wachovia Mtg. Co., 138 Ga.App. 646, 647(1), 226 S.E.2d 812 (1976). It does not affirmatively appear from the witness's testimony that he had personal knowledge of the fact to which he testified. However, it does not affirmatively appear that the witness was without such knowledge. Moreover, tenants did not object to the witness's testimony on grounds that he was not competent to testify to this fact or that a proper foundation had not been laid for admission of his testimony. Compare Lehman v. Zuckerman, 198 Ga.App. 202, 204(4), 400 S.E.2d 704 (1990). Therefore, this case is governed by the rule that where a witness testifies to a fact, the presumption is that he is testifying from his own knowledge in the absence of anything to the contrary. Johnson v. Woodward Lumber Co., 76 Ga.App. 152(1), 45 S.E.2d 294 (1947). It was error to exclude this proof as hearsay.

2. Landlords contend that the court erred in ruling that their attorney fee claim is subject to OCGA § 13-1-11, in that a commercial lease does not constitute an "evidence of indebtedness" within the meaning of OCGA § 13-1-11.

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7 cases
  • Radioshack Corp. v. Cascade Crossing II
    • United States
    • Georgia Supreme Court
    • October 29, 2007
    ...844(4), 549 S.E.2d 788 (2001); Georgia Color Farms v. K.K.L., 234 Ga.App. 849, 852(3), 507 S.E.2d 817 (1998); Holmes v. Bogino, 219 Ga.App. 858, 859(2), 467 S.E.2d 197 (1996); Burgess v. Clermont Properties, 141 Ga.App. 112(2), 232 S.E.2d 627 (1977). "In other cases, OCGA § 13-1-11 has been......
  • TF James Co. v. Vakoch
    • United States
    • North Dakota Supreme Court
    • June 8, 2001
    ...a lease is evidence of debt, but their conclusions allowed, rather than disallowed, attorney fees. See, e.g., Holmes v. Bogino, 219 Ga.App. 858, 467 S.E.2d 197, 198-99 (1996) (commercial lease was evidence of indebtedness allowing enforcement of agreement to pay attorney fees); Stillwell En......
  • Insurance Indus. Consultants v. Essex Inv.
    • United States
    • Georgia Court of Appeals
    • June 4, 2001
    ...of indebtedness). Under our law, leases can be "`evidence of indebtedness' within the meaning of OCGA § 13-1-11. Holmes v. Bogino, 219 Ga.App. 858, 859(2), 467 S.E.2d 197 (1996)." (Punctuation omitted.) Ga. Color Farms v. K.K.L., L.P., 234 Ga.App. 849, 852(3), 507 S.E.2d 817 Applying the us......
  • Cincinnati Ins. Co. v. B & B Paving, Inc., Case No. 1-16-cv-340
    • United States
    • U.S. District Court — District of North Dakota
    • January 22, 2018
    ...a lease is evidence of debt, but their conclusions allowed, rather than disallowed, attorney fees. See, e.g., Holmes v. Bogino, 219 Ga.App. 858, 467 S.E.2d 197, 198-99 (1996) (commercial lease was evidence of indebtedness allowing enforcement of agreement to pay attorney fees); Stillwell En......
  • Request a trial to view additional results
2 books & journal articles
  • Evidence - Marc T. Treadwell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-1, September 1996
    • Invalid date
    ...469 S.E.2d at 786. 310. 266 Ga. 530, 468 S.E.2d 357 (1996). 311. Id. at 531, 468 S.E.2d at 358-59. 312. Id., 468 S.E.2d at 359. 313. 219 Ga. App. 858, 467 S.E.2d 197 (1996). 314. Id. at 859, 467 S.E.2d at 198. 315. Id....
  • Wills, Trusts, and Administration of Estates - James C. Rehberg
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-1, September 1996
    • Invalid date
    ...7. See O.C.G.A. Sec. 19-3-1 (1991). 8. See Brown v. Brown, 234 Ga. 300, 303-04, 215 S.E.2d 671, 674 (1975). 9. 219 Ga. App. at 849-50, 467 S.E.2d at 197. 10. O.C.G.A. Sec. 19-3-1.1 (Supp. 1996). 11. 256 Ga. 79, 344 S.E.2d 411 (1986). 12. Id. at 80, 344 S.E.2d at 412. 13. O.C.G.A. Sec. 53-4-......

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