Hood v. Peck
Hood v. Peck
Opinion of the Court
In this appeal, we affirm the judgment entered in favor of Arlene G. Peck in her suit against her tenant and its guarantor. The relevant facts follow.
On July 30, 1993, Peck entered into a commercial lease with Eurocar, Limited, whereby Eurocar agreed to lease 4,560 square feet of office space at 6518 Roswell Road in Atlanta. The monthly rent was $5,320 as of the date the lease expired, January 31, 1999. The lease also gave Eurocar the option to renew for two additional five-year terms, provided that Eurocar was not in default and that the parties mutually agreed upon the new rental amount. The option provision further stipulated that, if no agreement could be reached, and Eurocar remained in possession of the premises after January 31, 1999, then Eurocar would be a tenant at will and the rent would increase to 150% of the rent in effect at that time, which was $5,320. Upon termination of the lease, Eurocar was required to surrender the premises to Peck “in the same condition as at commencement of term, normal wear and tear only excepted.” Finally, Eurocar was obligated to reimburse Peck for any attorney fees incurred in enforcing Euro-car’s obligations. The lease was executed by Alfredo R. Hood, Euro-car’s president and chief executive officer. Hood also signed a guaranty of Eurocar’s obligations under the lease. On December 31, 1996, Hood sold his interest in Eurocar to his partner, Eduardo Caro.
Peck and Caro entered into renewal negotiations as the end of the lease approached but were unable to reach an agreement. Euro-car remained in possession of the premises but failed to pay rent in the amount of 150% of $5,320, or $7,980. Instead, Eurocar tendered $5,320 by check per month for February, March, April, May, June, July, August, and September 1999. Peck cashed these checks after writing “partial payment” on most of them, and she notified Caro that Eurocar owed the $2,660 monthly differential.
Finally Peck retained counsel, who sent a letter to Hood on August 6, 1999, notifying him that Eurocar’s tenancy would end 60 days from his receipt of the letter and directing Eurocar to vacate the
On November 10, Eurocar filed a notice of removal in federal district court. Peck moved to remand the case to state court, and the district court granted the motion on March 21, 2000. On March 28, Peck filed a motion to compel payment of rent into court. Finally, on or about April 7, 2000, Eurocar vacated the premises.
Shortly thereafter, Peck amended her complaint, alleging that Eurocar had failed to pay rent for seven months, from October 1999 through April 2000; that as a result, Eurocar was indebted to Peck in the amount of $49,742 rent, $1,040.66 interest, $3,979.36 late fees, and $5,501.20 attorney fees. Peck also sought to recover sums due for the months of February 1999 through September 1999, including $21,280 past due rent, $678.90 interest, and $2,220.89 attorney fees. Finally, Peck added a count alleging that Eurocar had damaged the premises. Peck then added Hood as a defendant, seeking recovery on the guaranty of all sums owed by Eurocar. Hood answered and filed a third party complaint against Caro. Hood also moved for judgment on the pleadings, asserting that he could not be held liable for rent accruing after expiration of the lease and that Peck’s act of allowing Eurocar to remain as a tenant holding over constituted a novation. The motion was denied, and the case proceeded to a bench trial on April 23, 2003. Eurocar failed to appear, and default judgment was issued against it. After hearing all of the evidence, the trial court issued judgment in favor of Peck against Hood and Eurocar, jointly and severally, in the amount of $149,433.68, including:
(1) Unpaid rent in the amount of $71,002; (2) Late fees in the amountof$3,979.36;(3)Interestintheamountof $21,287.97; (4) Property damage of $1,753; (5) Loss of use/loss of rental value during repair period in the amount of [$]31,920; and (6) Attorney’s fees and legal expenses in the amount of $19,491.35.1
Hood appeals from this judgment, contending that the trial court erred by (1) holding him liable for “holdover” rent; (2) awarding late
“On appeal, we will not disturb a trial court’s findings of fact if there is any evidence to support them. However, the trial court’s interpretation and application of the law to those findings are subject to de novo review.”
1. Hood contends that, under the guaranty, he cannot be held liable for rent accruing after the lease term ended on January 31, 1999. He cites OCGA § 10-7-3 for the proposition that a contract of suretyship is one of strict law, and the surety’s liability cannot be extended by implication or interpretation. Hood’s reliance is misplaced, however, because his liability is established by the terms of the guaranty.
No case cited by Hood mandates a contrary result. In Roswell Festival v. Athens Intl.,
Hood additionally argues that Peck increased the risk to him by failing to seek Eurocar’s eviction during the eight-month period beginning in February 1999 and by returning Eurocar’s rent checks beginning in October 1999. Hood is correct that under OCGA § 10-7-22, “[a]ny act of the creditor ... which injures the surety or increases his risk or exposes him to greater liability shall discharge him.” However, he omits the remainder of that Code section, which pertinently provides that “a mere failure by the creditor to sue as soon as the law allows or neglect to prosecute with vigor his legal remedies, unless for a consideration, shall not release the surety.” Accordingly, Peck’s failure to pursue her legal remedies as soon as the law allowed does not affect Hood’s liability on the guaranty.
Finally, Hood argues that Peck’s act of allowing Eurocar to remain as a tenant holding over constituted a novation. Under OCGA § 10-7-21, “[a]ny change in the nature or terms of a contract is called a ‘novation’; such novation, without the consent of the surety, discharges him.” This argument fails, however, because there was no change in the terms of the lease. Rather, the lease expressly permitted Eurocar to hold over upon payment of 150% of the rental amount. In any event, “a surety or guarantor may consent in advance to a course of conduct which would otherwise result in his discharge.”
2. Hood next asserts that the trial court erred in awarding late fees that accrued during the holdover period. However, he admits that Peck’s complaint included a prayer for late fees and that the
3. Finally, Hood challenges the award of $31,920 in damages for “loss of use/loss of rental value during repair period.” In a bench trial, the judge sits as the trier of fact; the court’s findings are analogous to a jury verdict and will not be disturbed on appeal if there is any evidence to support them.
Judgment affirmed.
Hood was awarded $149,433.68 on his third-party complaint against Caro.
(Footnotes omitted.) Vinings Jubilee Partners v. Vinings Dining, 266 Ga. App. 34, 36 (596 SE2d 209) (2004).
See John Deere Co. v. Haralson, 278 Ga. 192, 195, n. 3 (599 SE2d 164) (2004).
Id.; see also Tauber v. Community Centers Two, 235 Ga. App. 705, 706-707 (3) (509 SE2d 662) (1998) (unconditional guarantee rendered guarantor liable for rent of tenant holding over).
259 Ga. App. 445 (576 SE2d 908) (2003).
Id. at 448 (1).
126 Ga. App. 656 (191 SE2d 572) (1972).
167 Ga. App. 356 (306 SE2d 308) (1983).
See Barnett v. Leasing Intl., 151 Ga. App. 715, 718 (2) (261 SE2d 452) (1979).
(Citations and punctuation omitted.) Steiner v. Handler, 229 Ga. App. 833, 836 (3) (495 SE2d 132) (1997).
See Underwood v. NationsBanc Real Estate Svc., 221 Ga. App. 351, 353 (471 SE2d 291) (1996). Compare Cantrell v. First Tenn. Nat. Bank Assn., 207 Ga. App. 458, 460 (2) (428 SE2d 368) (1993) (unconsented increase in risk discharges surety).
(Emphasis supplied.)
Housing Auth. of Decatur v. Bigsby, 200 Ga. App. 878, 879 (2) (410 SE2d 44) (1991); see also Vinings Jubilee Partners, supra.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.