Dublin Pub, Inc. v. Mutual Life Ins. Co. of New York
| Decision Date | 09 May 1989 |
| Docket Number | No. A89A1119,A89A1119 |
| Citation | 191 Ga.App. 677,382 S.E.2d 654 |
| Parties | DUBLIN PUB, INC. v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK. |
| Court | Georgia Court of Appeals |
Michael J. Reily, Atlanta, for appellant.
Alston & Bird, Bernard Taylor, Atlanta, for appellee.
This is the second appeal between these parties arising from dispossessory proceedings under a ten-year lease agreement entered into in 1984. In the first appeal this court affirmed a ruling of the trial court, entered March 28, 1988, dismissing the dispossessory action brought by MONY in February of 1987 and enforcing the terms of a settlement agreement between the parties. Mutual Ins. Co. of N.Y. v. Dublin Pub, 190 Ga.App. 94, 378 S.E.2d 497 (1989). Under the settlement agreement, in consideration of the payment by Dublin Pub of a specified amount, MONY agreed to withdraw its termination of the lease, acknowledging that it remained in full force and effect and continuing to honor its rights, obligations, and duties thereunder.
The subject of the instant appeal is the rental payment due in February 1988, which was tendered to MONY's attorney by Dublin Pub while it was involved in Chapter 7 bankruptcy proceedings requiring all rental payments to be turned over to the bankruptcy trustee. See 11 U.S.C. § 704. The check was delivered to the bankruptcy trustee, but when the proceedings were terminated shortly thereafter it was never received by MONY. The disposition of this check was not determined and on July 6, 1988, Dublin Pub placed a stop payment order on it. No replacement check was issued and on September 21, 1988, MONY mailed a letter to Dublin Pub demanding payment of the February rent no later than October 3, 1988, and advising it that failure to comply would be considered a default under the lease.
On Monday October 3, Dublin Pub's president, Jim Oliver, mailed two checks by certified mail to the office of MONY's leasing agent, one to replace the February 1988 check that had been lost and the second for the rent due in October. On October 11 Oliver received a letter from MONY's rental agent stating that the October rent was past due and (Indention omitted.) Oliver called the rental agent and, upon learning that neither the February replacement check nor the October rental check had been received, stopped payment on both of them and issued two new checks. These two checks, with Oliver's cover letter explaining the circumstances of the delay, arrived at MONY's leasing office the next day, October 13; the two original checks mailed October 3 were received on October 14. The instant dispossessory action was filed on October 12. The case was tried by jury, which rendered a verdict in favor of MONY, and Dublin Pub appeals from the denial of its motions for directed verdict, new trial and judgment n.o.v.
1. Appellant contends that the dismissal of MONY's first dispossessory action on March 28, 1988 acted as an adjudication upon the merits, barring relitigation of all issues raised or which could have been raised by the pleadings pursuant to OCGA § 9-11-41(b). This argument, however, overlooks the fact that the trial court's dismissal of the first dispossessory action was based upon enforcement of the terms and conditions of the settlement agreement between the parties. The trial court found that "[t]he delivery of this sum by [Dublin Pub's] attorney to [MONY] along with subsequent acceptance of monthly rental payments paid directly to [MONY], considered together, amounts to an acceptance of the settlement offer." This court affirmed, concluding that the trial court's findings were amply authorized by the evidence. Mutual Ins. Co. of N.Y. v. Dublin Pub, supra 190 Ga.App. at 95, 378 S.E.2d 497. The settlement agreement cleared the dispute over past-due rent owed by Dublin Pub, but MONY did not relinquish or release its claim to future rents. See Lokas v. Greer, 169 Ga.App. 537, 313 S.E.2d 725 (1984); Kahn v. Columbus Mills, 188 Ga.App. 90, 371 S.E.2d 908 (1988). Because of the misplacement of the February 1988 check due to the bankruptcy proceedings, the issue of its repayment did not give rise to a termination of the lease until...
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