FIRST DIVISION

BARNES, P. J.,

GOBEIL and PIPKIN, 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.

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February 4, 2021

In the Court of Appeals of Georgia

A20A2042. A20A2043. TIFFANY AND TOMATO INC. v.

WELLS AND MCELWEE P.C.; and vice versa. 

BARNES, Presiding Judge.

In these companion appeals, Tiffany and Tomato, Inc. (“Lessor”) and Wells

and McElwee, P. C. (“Lessee”) appeal the trial court’s orders denying their respective

motions for attorney fees sought under the parties’ commercial lease agreement. In

Case No. A20A2042, we conclude that the trial court erred in denying the Lessor’s

motion for contractual attorney fees, and we vacate the trial court’s order entered on

that motion and remand for further action consistent with this opinion. In Case No.

A20A2043, we conclude that the trial court committed no error in denying the
Lessee’s motion for contractual attorney fees and affirm the order entered on that

motion.

1

The record reflects that in July 2003, the parties entered into a commercial

lease agreement for an approximately 154-year-old building located in Athens,

Georgia (“Lease”).2 The Lease included a provision setting out the obligations of the

Lessee with respect to the maintenance and repair of the building (“Repair

Provision”). The Repair Provision stated in part:

REPAIRS AND MAINTENANCE. Lessee shall be responsible

for making all repairs to all of the improvements on the premises,

including the interior and exterior walls, roof, paved access and parking

areas, plumbing, wiring, piping, fixtures and equipment, so as to

maintain the premises in its condition as of July 1, 2003, as established

by the inspection by Neil Carlisle dated September 12, 2003, which has

been reduced to writing and is attached hereto. . . . 

Any items noted in the inspection as needing remedial work or as

being omitted from inspection shall remain Lessor’s responsibility

1 The Lessor’s motion for sanctions for frivolous appeal in Case No.

A20A2043 is hereby denied.

2 The original Lease was between Hancock-Pulaski Properties, Inc. as the

lessor and Scott and Wells, P. C. as lessee. Hancock-Pulaski Propertiessubsequently

assigned its interest in the Lease to Tiffany and Tomato. Scott and Wells later

changed its name to Wells and McElwee during the pendency of the litigation. 

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unlessrepaired by agreement of the Parties hereto. The repairs asshown

on the attached invoices. . . constitute the remedialmeasures undertaken

by agreement of the Parties. The items so repaired shall thereafter

become Lessee’s obligation to maintain in like condition, ordinary wear

and tear excepted.

. . . . 

At the expiration of this Agreement, Lessee shall deliver up the

premises to Lessor in as good condition as they were in at the

commencement of this Agreement, ordinary wear and tear excepted. 

The parties thereafter entered into several addendums to the Lease, including a May

2011 addendum that made revisions to the Repair Provision and provided in part:

Landlord agrees to pay repair and replacement costs over and above

$1,000 for itemsin the following categories: HVAC systems, Plumbing,

Electrical, and Structural. . . . All other terms and conditions in the

original lease remain in full effect and force.

In addition to the Repair Provision, the Lease included an attorney fees

provision pertinent to this appeal (“Fees Provision”). The Fees Provision stated:

If suit is brought to enforce any covenant of this lease or for the breach

of any covenant or condition herein contained, the parties hereto agree

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that the losing party shall pay to the prevailing party a reasonable

attorney’s fee, which shall be fixed by the court, and court costs. 

In 2016, a dispute arose between the Lessor and Lessee over which party was

responsible for certain repairsto the building, including repairsto the roof. Later that

year, after the Lessee refused to make the repairs demanded by the Lessor, the Lessor

sued the Lessee for damages for breach of the Fees Provision of the Lease.3 During

the pendency of the litigation, the term of the Lease terminated, and the Lessor

amended its complaint to include additional claims. 

More specifically, as reflected in its complaint, as amended, and in the

consolidated pretrial order, the Lessor alleged that the Lessee had breached its

obligations under the Repair Provision by failing to maintain and repair the building

during the term of the Lease, and by failing to return the property to the Lessor in the

same condition asreceived in July 2003 at the termination of the Lease, ordinary wear

and tear excepted. The Lessor also alleged that the Lessee had negligentlymaintained

the roof and other portions of the building, resulting in damage to the property. The

Lessor sought damages for the costs of repairs and for the lost rental value of the

3 The Lessor also sued Donald T. Wells, Jr., but later voluntarily dismissed its

claims against him. 

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property during the repairs. Additionally, the Lessor sought attorney fees and

expenses under OCGA § 13-6-11 based on its assertion that the Lessee had acted in

bad faith in failing to perform its obligations under the Repair Provision. 

In contrast, the Lessee alleged that under the Repair Provision it was not

responsible for ordinary wear and tear of the property, and that the repairs at issue in

this case were only necessary due to ordinary wear and tear, or because the Lessor

had failed to perform maintenance or make repairs that were necessary due to

ordinary wear and tear. The Lessee also alleged that to the extent any of the repairs

were its contractual responsibility, the roof of the building was “structural” such that

the Lessee’s obligation to repair it waslimited to $1,000 under the terms of the Repair

Provision as amended. 

The case proceeded to trial,

4 where the jury found for the Lessor and awarded

it $45,667.50 in damages. The jury declined to award the Lessor any attorney fees

under OCGA § 13-6-11, finding on the special verdict form that the Lessee had not

acted in bad faith. 

4

In summary judgment rulings prior to trial, the trial court ruled that a jury

would have to resolve whether the deterioration of the building was due to wear and

tear and whether the repairs to the roof were structural. 

5
Following the verdict, the Lessor and the Lessee filed opposing motions for

attorney fees under the Fees Provision. Both claimed to be the “prevailing party.” The

Lessee also argued that the Lessor’s motion should be denied because the Fees

Provision was governed by OCGA § 13-1-11 and the Lessor had failed to comply

with that statute. The Lessee challenged the amount of attorney fees requested by the

Lessor as well.

The trial court denied the Lessor’s motion for contractual attorney fees based

on the court’s conclusion that the Fees Provision was controlled by OCGA § 13-1-11

and that the Lessor had failed to provide Lessee with the notice required by that

statute as a precondition for an award of attorney fees. The trial court thereafter

entered judgment on the jury’s verdict and then a separate order on “outstanding

issues” in which the court summarily denied the Lessee’s motion for contractual

attorney fees. The parties thereafter filed these companions appeals, challenging the

trial court’s rulings on their respective motions for attorney fees under the Fees

Provision. 

Case No. A20A2042

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1. The Lessor challenges the trial court’s denial of its motion for attorney fees

under the Fees Provision. According to the Lessor, the trial court erred in concluding

that OCGA § 13-1-11 applied to the Fees Provision. We agree.

OCGA § 13-1-11 provides in relevant part:

Obligationsto pay attorney’sfees upon any note or other evidence

of indebtedness, in addition to the rate of interestspecified therein, shall

be valid and enforceable and collectable as a part of such debt if such

note or other evidence of indebtedness is collected by or through an

attorney after maturity, . . . [provided that] [t]he holder of the note or

other evidence of indebtedness or his or her attorney at law shall, after

maturity of the obligation, notify in writing the maker, endorser, or party

sought to be held on said obligation that the provisions relative to

payment of attorney’s fees in addition to the principal and interest shall

be enforced and that such maker, endorser, or party sought to be held on

said obligation has ten days from the receipt of such notice to pay the

principal and interest without the attorney’s fees. . . . 

OCGA § 13-1-11 (a) (3). 

As reflected in the quoted statutory language, OCGA § 13-1-11 applies where

there is an obligation to pay attorney fees based on a note or “other evidence of

indebtedness.” Our Supreme Court has explained that the term “evidence of

indebtedness” found in the statute refers “to any printed or written instrument, signed

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or otherwise executed by the obligor(s), which evidences on its face a legally

enforceable obligation to pay money.” (Citation and punctuation omitted.)

RadioShack Corp. v. Cascade Crossing II, 282 Ga. 841, 846 (653 SE2d 680) (2007). 

Written leases can be “evidence of indebtedness” within the meaning of OCGA § 13-

1-11 under certain circumstances. See id. But OCGA § 13-1-11 “is not applicable to

all claimsfor attorney fees based on a lease provision.” Insurance Indus. Consultants

v. Essex Investments, 249 Ga. App. 837, 843 (4) (549 SE2d 788) (2001).

Here, the Lessor did not sue the Lessee for failure to pay past due rent or for

failure to satisfy any other monetary obligation evidenced on the face of the Lease.

Rather, the Lessor sued the Lessee for damages incurred by the Lessor as a result of

the Lessee’s alleged failure to fulfill its maintenance and repair obligations under the

Repair Provision and for its alleged negligent maintenance of the property. Under

these circumstances, the jury’s award “was not related to the [Lessee’s] indebtedness

under the [L]ease,” and the Lessor therefore was not required to comply with the

notice provisions of OCGA § 13-1-11 to obtain contractual attorney fees. Anglin v.

Moore, 332 Ga. App. 346, 348 (1) (771 SE2d 525) (2015) (concluding that OCGA

§ 13-1-11 inapplicable where jury awarded damages to tenants for landlord’s breach

of lease agreement, given that breach was related to wrongful eviction rather than to

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any failure to pay money owed under the lease). See Tallapoosa Dev. Auth. v. NCI

Bldg. Systems, No. 3:09-CV-27-JTC, 2010 WL 11493631, at *7 (N.D. Ga. Sept. 30,

2010) (holding that OCGA § 13-1-11 did not apply in action for breach of a

commercial lease where landlord alleged that tenantsfailed to fulfill their contractual

obligation to maintain and repair the leased premises; district court noted that the

tenants “have cited no case law establishing that the possibility of an award of money

damages pursuant to a lease is equivalent to a ‘monetary obligation’ within the

purview of OCGA § 13-1-11, and the Court finds none”); Sovereign Healthcare v.

Mariner Health Care Mgmt. Co., 329 Ga. App. 782, 788-789 (3) (766 SE2d 172)

(2014) (holding that OCGA § 13-1-11 did not apply in action to enforce a contractual

obligation to perform a service); Ins. Indus. Consultants, 249 Ga. App. at 844 (4)

(holding that OCGA § 13-1-11 was inapplicable in declaratory judgment action

seeking to enforce five-year term of lease). Compare RadioShack Corp., 282 Ga. at

846 (holding that OCGA § 13-1-11 applied where landlord sued tenant under

commercial lease for past due rent and for declaratory judgment regarding

enforceability and amount of tenant’srent obligation); Best v. CB DecaturCourt, 324

Ga. App. 403, 407 (2) (a) (750 SE2d 716) (2013) (holding that OCGA § 13-1-11

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applied in circumstance where the “landlord sue[d] a tenant under a commercial lease

agreement to collect past due rent, late fees, and interest”).

Accordingly, the trial court erred in denying the Lessor’s motion for attorney

fees under the Fees Provision based on noncompliance with OCGA § 13-1-11. We

therefore vacate the trial court’s order denying the Lessor’s fees motion and remand

the case to the trial court to determine an award of reasonable attorney fees and costs

to the Lessor in accordance with the Fees Provision.5 See Ins.Indus.Consultants, 249

Ga. App. at 844 (4) (vacating trial court’s order and remanding with instructions “to

consider an appropriate award of attorneys fees, expenses, and costs,” in case where

trial court erroneously denied fees motion based on OCGA § 13-1-11);ColonialBank

v. Boulder Bankcard Processing, 254 Ga. App. 686, 693 (8) (563 SE2d 492) (2002)

(vacating trial court’s order and remanding for determination of attorney fees award

where trial court erroneously relied on OCGA § 13-1-11).6

5 As explained infra in Division 2, the Lessor is the prevailing party under the

Fees Provision.

6

In motions filed in both of these companion appeals, the Lessor asks this

Court to rule on whether the Fees Provision encompasses attorney fees incurred on

appeal. However, this question has not been addressed by the trial court, and “[i]ssues

which have not been ruled on by the trial court may not be raised on appeal.”

(Citation and punctuation omitted.) BrookfieldCountry Club v. St. James-Brookfield,

287 Ga. 408, 413 (3) (696 SE2d 663) (2010). “We are a court for the correction of

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Case No. A20A2043

2. The Lessee challenges the trial court’s denial of its motion for attorney fees.

According to the Lessee, it was entitled to attorney fees under the Fees Provision

because it was the prevailing party in the underlying litigation. In this regard, the

Lessee emphasizes that the Lessor’s claim for bad faith attorney fees under OCGA

§ 13-6-11 wasthe Lessor’slargest monetary claim,

7

and, given that the Lessor did not

succeed on that claim, the Lessee maintains that it was the prevailing party for

purposes of the Fees Provision. We do not agree.

In the absence of a controlling statute, a party’s entitlement to

attorney fees under a contractual provision is determined by the usual

rules of contract interpretation. Construing contractual language

granting attorney fees to the “prevailing party,” Georgia courts have

held[ ]that a plaintiff prevails when actual relief on the merits materially

alters the legal relationship between the parties by modifying the

defendant’s behavior in any way that directly benefits the plaintiff, and

that unlike plaintiffs who typically must obtain some affirmative relief

errors . . . and are not authorized to issue an advisory opinion about a potential error

a trial court may make in the future.” Wright v. Waterberg Big Game Hunting Lodge

Otjahewita (PTY), 330 Ga. App. 508, 512 (4) (767 SE2d 513) (2014). The Lessor’s

motions are hereby denied.

7 The Lessor sought $244,966.76 in attorney fees based on its allegation that

the Lessee had acted in bad faith. 

11
on their claim to be deemed the prevailing party, defendants prevail by

not having any relief imposed against them.

(Citations, punctuation, and emphasis omitted.) HA & W Financial Advisors v.

Johnson, 336 Ga. App. 647, 658 (4) (782 SE2d 855) (2016). See Benchmark Builders

v. Schultz, 294 Ga. 12, 14 (751 SE2d 45) (2013); Magnetic Resonance Plus v.

Imaging Systems Intl., 273 Ga. 525, 529 (3) (543 SE2d 32) (2001); Marino v. Clary

Lakes Homeowners Assn., 331 Ga. App. 204, 208-209 (1) (770 SE2d 289) (2015). 

Here, the jury found in favor of the Lessor on its underlying substantive claims

pertaining to the Repair Provision and awarded it $45,667.50 in damages. Under this

circumstance, the Lessor clearly was the prevailing party, even if it did not recover

all of the damages itsought. See Realty Lenders v. Levine, 286 Ga. App. 326, 330 (2)

(649 SE2d 333) (2007) (holding that plaintiff was prevailing party under contractual

fees provision where the plaintiff recovered some, but not all, of the damages it

sought); Discovery Point Franchising v. Miller, 234 Ga. App. 68, 73-74 (5) (505

SE2d 822) (1998) (party that recovered damages was prevailing party under

contractual fees provision). Compare HA & W Financial Advisors, 336 Ga. App. at

658 (4) (defendant was prevailing party where he “had no relief imposed against

12
him”). Consequently, the trial court committed no error in denying the Lessee’s

motion for contractual attorney fees, and we affirm the court’s order on that motion.

Judgment affirmed in A20A2043. Judgment vacated and case remanded with

direction in A20A2042. Gobeil and Pipkin, JJ., concur.

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