                              FIRST DIVISION
                               PHIPPS, C. J.,
                          DOYLE, P. J, and BOGGS, J.

                    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.
                               http://www.gaappeals.us/rules/


                                                                        May 1, 2015




In the Court of Appeals of Georgia
 A15A0648. ANGLIN v. MOORE et al.                                             DO-031

      DOYLE, Presiding Judge.

      Conroy Anglin filed a dispossessory action against Sakinah Moore and Jeremy

Ponds (“the tenants”), and the tenants answered and asserted counterclaims for

wrongful eviction, conversion, breach of the lease agreement, and attorney fees. The

superior court entered judgment in favor of the tenants, including an award of

attorney fees. Anglin filed an application for a discretionary appeal, which this Court

granted. On appeal, Anglin argues that the trial court erred by awarding attorney fees

to the tenants because they failed to specially plead their attorney fees claim under

OCGA § 13-6-11, and to provide notice of their claim pursuant to OCGA § 13-1-11.

We disagree and affirm for the reasons that follow.
          The record shows that the tenants entered into a one-year lease agreement with

  Anglin to rent his townhouse. As a part of the lease agreement, Anglin kept the water

  bill in his name, but the tenants paid the water bill.1 At some point, the tenants

  requested additional time to pay the June 2013 rent. Thereafter, although the tenants

  were current on the water bill, Anglin had the water turned off to the apartment and

  closed the account. After about two weeks, the tenants began staying with friends but

  left their belongings in the townhouse. Anglin then changed the locks and went

  through the tenants’ items.

          Anglin filed a dispossessory action in magistrate court, and the tenants

  counterclaimed for wrongful eviction, conversion, failure to maintain and make

  repairs, and breach of contract, and asking for damages, including reasonable attorney

  fees. The magistrate court entered judgment in favor of the tenants, finding that

  Anglin’s conduct amounted to trespass, conversion, and unlawful interference with

  the tenants’ enjoyment of the property and that it resulted in a wrongful constructive

  eviction, which also breached the lease agreement. Anglin was ordered to pay the

  following amounts in damages: $500 to refund the tenants’ security deposit;

      1
        Anglin designated only certain portions of the record for inclusion in the appellate
record. Accordingly, certain undisputed facts are taken from the superior court’s final
order.

                                             2
$13,286.50 in damages for the conversion of or damage to the tenants’ property;

$1,559 for expenses due to the constructive eviction, $1,000 for trespass and

interference with their right of enjoyment; $10,000 in punitive damages; and $4,000

in attorneys’ fees. The magistrate court also ordered Anglin to permit the tenants to

enter the townhouse and retrieve their items, which they did on or about July 18,

2013. Anglin then appealed to superior court.

      After a bench trial, the superior court found in favor of the tenants on their

counterclaims for wrongful constructive eviction, conversion, and breach of contract,

and in favor of Anglin on the counterclaim for failure to maintain and make repairs.

The superior court entered judgment in the amount of $43,061.86, which included

$5,328 in actual damages, $5,000 in punitive damages, $30,475 in attorney fees, and

$2,258,86 in legal expenses. Specifically, the trial court explained that “[the tenants

were] entitled to recover attorney[] fees as the prevailing party in this case under

Paragraph 23 of the Lease, and under OCGA § 13-6-11 due to Anglin’s bad faith and

stubborn litigiousness.” We granted Anglin’s subsequent application for discretionary

review, and this appeal followed.

      Anglin argues that the superior court erred by awarding attorney fees to the

tenants (1) pursuant to the lease agreement because they failed to give Anglin notice

                                          3
  or an opportunity to pay the indebtedness before the fees were due as required by

  OCGA § 13-1-11 (a) (3); and (2) under OCGA § 13-6-11 because the tenants failed

  to specially plead and make a prayer therefor as required by that Code section.2 We

  find no basis for reversal.

          1. Paragraph 23 of the parties’ lease provides: “If any legal action or

  proceedings be brought by either party of this Agreement, the prevailing party shall

  be reimbursed for all reasonable attorney[] fees and costs in addition to the other

  damages awarded.” Anglin argues that an award of attorney fees pursuant to this

  provision is precluded by the tenants’ failure to comply with the notice requirements

  of OCGA § 13-1-11 (a) (3). We disagree.

          OCGA § 13-1-11 (a) (3) provides in relevant part:

          Obligations to pay attorney’s fees upon any note or other evidence of
          indebtedness, . . . 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

      2
       Anglin’s arguments on appeal are limited only to the tenants’ failure to properly
plead and provide notice of their attorney fee claims; he does not contest the
reasonableness of the attorney fees or any other aspect of the attorney fee award.

                                               4
           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. . . .


           The Supreme Court of Georgia has held that

           the term “evidence of indebtedness,” as used in OCGA § 13-1-11, has
           reference to any printed or written instrument, signed or otherwise
           executed by the obligor(s), which evidences on its face a legally
           enforceable obligation to pay money. . . . That definition includes all
           written leases which impose on the lessee an obligation to pay money.3


  “OCGA § 13-1-11 . . . is not[, however,] applicable to all claims for attorney fees

  based on a lease provision.”4 Indeed, paragraph (d) of that Code section provides that

  “[t]he provisions of this section shall not authorize the recovery of attorney’s fees in

  any tort claim.”



      3
        (Citation and punctuation omitted.) Radioshack Corp. v. Cascade Crossing II,
LLC, 282 Ga. 841, 846 (653 SE2d 680) (2007), quoting Stillwell Enterprises, Inc. v.
Interstate Equip. Co., 266 SE2d 812, 817 (NC 1980). See also Ins. Indus. Consultants, Inc.
v. Essex Investments, Inc., 249 Ga. App. 837, 844 (4) (549 SE2d 788) (2001) (“Under our
law, leases can be ‘evidence of indebtedness’ within the meaning of OCGA § 13-1-11.”)
(punctuation omitted).
      4
          (Emphasis added.) Ins. Indus. Consultants, 249 Ga. App. at 844 (4).

                                             5
          Here, although Anglin sought past due rent and late fees under the lease, the

  superior court awarded damages against him and in favor of the tenants for wrongful

  constructive eviction and conversion. It also awarded damages for breach of the lease

  agreement, but such award was based upon Anglin’s wrongful eviction and was not

  related to the tenants’ indebtedness under the lease. “Under the circumstances, we do

  not find that [the tenants’] failure to give the notice under OCGA § 13-1-11 precludes

  the grant of attorneys fees.”5 Accordingly, because the plain terms of the parties’ lease

  authorize the award of reasonable attorney fees and costs, the trial court did not err

  by granting the tenants reasonable attorney fees.

          2. In light of our holding in Division 1, we need not address Anglin’s argument

  regarding OCGA § 13-6-11.

          Judgment affirmed. Phipps, C. J., and Boggs, J., concur.




      5
        Id. (holding that OCGA § 13-1-11 does not apply if the landlord sues only to
enforce the term of the lease and there is no indebtedness involved). See also Boddy
Enterprises v. City of Atlanta, 171 Ga. App. 551, 552-553 (320 SE2d 374) (1984) (OCGA
§ 13-1-11 does not apply to a lawsuit that does not involve an indebtedness collected
through an attorney after maturity).

                                             6
