Trust Assоciates, Louis D. Brown, trustee, loaned over $75,000 to Medical Consultation Network Corporation, evidenced by three one-year promissory notes. Scott Snead and Fabio Mann personally guaranteed MCNC’s obligation. The notes provided for the payment of attorney fees in the amount of 15 percent if after default an attorney was retained to cоllect the sum owed. MCNC failed to make payments on the notes and was in default.
Trust Associates sued MCNC, Snead, and Mann; MCNC admitted entering into the notes and failing to make any payments. A default judgmеnt was entered against MCNC for the entire amount, interest, attorney fees, and costs. At a jury trial against Snead and Mann, a verdict and judgment were entered against them for $75,000 and for attorney fees. Trust Associates moved for a new trial, because interest was not set out in the verdict against Snead and Mann. Snead and Mann moved for a judgment notwithstanding the verdict as to the award оf attorney fees. The trial court granted the j.n.o.v. as to the award of attorney fees and denied the motion for new trial as to interest. We affirm, because the demand notice for attorney fees failed to comply with the statute, and plaintiff waived any defect in the form of the verdict by not timely objecting to the general verdict when returned by the jury the second timе without specifying principal and interest separately.
1. Plaintiff contends that the trial court erred in granting the defendants’ motion for j.n.o.v. as to attorney fees by ruling that there was no evidence presented to support an award of attorney fees.
On July 17, 1998, Brown in his own name and with his own address sent the following demand letter to the defendants.
[I]f this debt is collected at law or by an attorney at law please be advised that all sums expended for collection and attorney fees of 15% will be added to the amount due as allowed for in the Notes. Other fees will be added to the amounts [sic] as allowed by State law. We will await 10 days for payment before proceeding.
However, Brown identified himself as the person to be paid and gavе his own address of 4426-B Hugh Howell Highway, Suite 200, Tucker, Georgia 30084, for payment in the demand letters without indicating his capacity or his right to collect the debt. The demand letters failed to identify the notеs to be paid. In contrast, the notes specified that “all principal and interest shall be payable to Trust Associates, 5616 Silver Ridge Dr., Stone Mt., GA 30087.”
(a) The demand notice failed to identify the holder.
The law requires that notice of intent to enforce an attorney fees provision be sent by the holder of the note. OCGA § 11-1-201 (20). . . defines “holder” as “a person who is in possession of a document of title or an instrument or an investment security drawn, issued, or endorsed to him or to his order or to borrower in blank.”
(Emphasis in original.) Krapf v. Wiles,
Statutory notice for the purpose of fixing liаbility for attorney’s fees should disclose who is the holder of the note, and who it is that intends to bring suit, and to whom the payment should be made; and if notice is so worded as to mislead or as to be likеly to mislead the defendant in material respects as to these features, it is inadequate.
(Citations and punctuation omitted.) Id. at 453-454.
In this case, the demand letter failed to identify the holder, Trust Associates, its agent, its trustee as Brоwn, or its attorney, who had authority to accept payment to satisfy the debt if payment were timely tendered.
The purpose of a demand notice is to identify the holder or his agent who may receive payment for the specific indebtedness past due, which must be paid during the ten-day period to avoid the imposition of liability for attorney fees. OCGA § 13-1-11 (a) (3); Goodrum v. Ensign Bank,
(c) The statutory requirеment of notice of a ten-day period from receipt for payment is mandated in a valid demand notice.
The debtors must be advised in the demand letter that they have ten days from the receipt of notice within which to satisfy the debt to avoid the imposition of attorney fees; substantial compliance with the statute does not include a failure to specify thаt the ten days run from the receipt of the demand notice. Gen. Elec. Credit Corp. v. Brooks, supra at 118; Professional Cleaners v. Phenix Supply Co., supra at 635 (ten days from date of the notice failed to comply). Unless the debtor is advised that the ten-day period rims from the time of receipt, the debtor has no way to know how long the period exists within which the debt can be satisfied without the imposition of the sanction of attorney fees. “So long as a dеbtor is informed that he has 10 days from receipt of notice within which to pay principal and interest without incurring any liability for attorney fees the legislative intent behind the enactment of [OCGA § 13-1-11 (a) (3)] has bеen fulfilled.” (Emphasis in original.) Gen. Elec. Credit Corp. v. Brooks, supra at 118. These demand notices failed to do this.
2. Plaintiff contends that the trial court erred in denying its motion for new trial to recover interest.
Initially the jury returned a verdict for $194,819.92, but minus the fair market value of the 200 shares of MCNC that plaintiff received. The trial court directed that the jury reconsider its verdict, because no value had been given to the MCNC shares that the plaintiff received, which was a set-off to the debt. After further deliberations, the jury returned a verdict for $75,000 plus costs and attorney fees. Plaintiff neither objected to the form of the verdict nor requested the trial court to determinе from the jury in the box if interest had been awarded; plaintiff allowed the jury to be excused having returned a general verdict form.
The verdict fell within the range of the evidence considerеd by the jury. When a motion for new trial is made on general grounds, such motion is addressed to the sound discretion of the trial court. Kitchin v. Kitchin,
(b) The parties either agreed to a general verdict or acquiesced to it, which waived any defect as to form.
As a gеneral verdict, which did not require the jury to specify how much was the recovery of the balance due on the notes and how much was for interest, there is no way to determine that the jury did nоt return both principal and interest in the amount awarded; thus, this is not a proper basis for a new trial based upon mere speculation that no interest was awarded. Brock v. Douglas Kohoutek, L.P.,
(c) Plaintiff’s claim was for unliquidated damages.
When a question of fact exists as to the sum owed and the jury must determine such amount from the evidence before it, the damаges are unliquidated; thus, an award of prejudgment interest would not be authorized. Spears v. Allied Engineering Assoc.,
Judgment affirmed.