Grizzard v. Petkas

• Decision Date: 20 June 1978
• Docket Number: No. 55420,55420
• Citation: 246 S.E.2d 375,146 Ga.App. 318
• Court: Georgia Court of Appeals
• Parties: GRIZZARD v. PETKAS.

Page 375

246 S.E.2d 375

146 Ga.App. 318

GRIZZARD v. PETKAS.

No. 55420.

Court of Appeals of Georgia.

Argued March 2, 1978.

Decided June 20, 1978.

Fred D. Bentley, Sr., Marietta, for appellant.

Nicholson & Meals, Robert N. Meals, Jr., Arnold E. Rubinoff, Paul W. Bonapfel, Atlanta, for appellee.

BANKE, Judge.

This is a suit by the appellant to recover.$23,500 in over-payments made to the appellee under a lease agreement. The lease provided that rental payments of $750 would be due for any month in which the income from the property exceeded certain specified taxes and expenses by that amount. Otherwise, the monthly rental was to be the actual amount, if any, by which the income exceeded these expenses. At year's end, the calculations were to be made again on an annual basis, so that the appellee would receive either the actual excess of income over expenses or $9,000, whichever was less.

During a 31-month period from September 24, 1973, through April 1, 1976, there was no excess of income over expenses. Nevertheless, the appellant continued making rental payments to the appellee in the amount of $750 per month. On occasion, a payment was accompanied by a letter indicating that it was being made "under protest."

The trial court heard the case sitting without a jury and found that the over-payments were properly deemed voluntary and, therefore, were not recoverable. This appeal followed.

1. The judgment in favor of the appellee was authorized by the evidence. The trial court found that the information on which the monthly rental calculations were made was within the full knowledge of the appellant and that the appellant was accordingly aware that he was making over-payments throughout the entire 31-month period in question. Indeed, the appellant was the Only party in a position to know the amount of rent required to be paid. Furthermore, the appellant demonstrated his knowledge that the rent was not due by paying it under protest.

There was no indication that the payments were made under threat of foreclosure or due to any other kind of exigent circumstances or compulsion.

Code § 20-1007 provides as follows: "Payments of taxes or other claims, made through ignorance of the law, Or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule." (Emphasis supplied.) See Savannah Savings Bank v. Logan, 99 Ga. 291, 25 S.E. 692 (1896); Hoke v. City of Atlanta, 107 Ga. 416, 33 S.E. 412 (1899); Howell v. Muscogee County, 105 Ga.App. 515, 520, 125 S.E.2d 139 (1962). Under this rule, the judgment in favor of the appellee was clearly authorized.

The appellant's contention that he was entitled to an annual accounting under the terms of the lease is not persuasive. Such an accounting could in no event have resulted in a refund of payments to him, since the monthly rental payments were always limited to the monthly excess of income over expenses. An annual accounting could only have resulted in an additional liability to the appellee in the event that it was determined that the total of payments made during the year was less than $9,000 and that the total income exceeded total expenses by more than the amount of rent actually paid.

2. The appellant's contention that it was error to deny his motion for summary judgment is moot, since the case has already proceeded through trial to final judgment. Phillips v. Abel, 141 Ga.App. 291, 233 S.E.2d 384 (1977). The cases cited by the appellant, Stallings v. Chance, 239 Ga. 567, 238 S.E.2d 327 (1977); Mahler v. Paquin, 143 Ga.App. 773, 240 S.E.2d 185 (1977), are inapposite, as they apply to appeals from grants of summary judgment rather...