Mullis v. Shaheen

• Decision Date: 12 April 1995
• Docket Number: No. A95A0081,A95A0081
• Citation: 456 S.E.2d 764,217 Ga.App. 277
• Parties: MULLIS v. SHAHEEN.
• Court: Georgia Court of Appeals

Page 764

456 S.E.2d 764

217 Ga.App. 277

MULLIS v. SHAHEEN.

No. A95A0081.

Court of Appeals of Georgia.

April 12, 1995.

Fred J. Stokes, Norcross, for appellant.

Frederick J. Hanna & Associates, Frederick J. Hanna, Elizabeth C. Whealler, Marietta, for appellee.

JOHNSON, Judge.

In March 1994, Doris B. Shaheen sued Billy Mullis and Bruce Love for breach of a commercial lease and, in her complaint, notified defendants pursuant to OCGA § 13-1-11(a)(3) of her intent to enforce the lease provision for payment of attorney fees in addition to principal and interest due under the lease. The trial court granted Shaheen's motion for summary judgment, and ordered Mullis and Love to pay $37,500 principal, plus $3,775 attorney fees and post-judgment interest. This appeal followed.

Viewed in the light most favorable to the party opposing the motion for summary judgment, the evidence shows that Billy Mullis, Bruce Love and Love Enterprises, Inc., on March 29, 1990, entered into a five-year lease of commercial property in Cartersville with monthly rent payments of $2,250. The lessees operated Captain Billy's Fishhouse # 10 and made monthly rent payments under the lease until the restaurant changed hands. It is uncontroverted, however, that no new lease was executed. In March 1992 the new proprietor, John E. Hathcoat, made a partial rent payment of $1,500 and rents remained in arrears thereafter until September 1992, when Shaheen exercised her rights under its default provisions to terminate the lease by obtaining writs of possession against Hathcoat, Mullis and Love and retaking the premises. Shaheen also obtained a money judgment of $8,250 against Hathcoat.

1. Mullis contends summary judgment for Shaheen was improper because the lessor was not entitled to rents after she obtained a writ of possession and thereby terminated the lease. We disagree.

"It is the general rule in Georgia that an eviction and subsequent reentry and possession of the premises by the landlord terminates the lease. [Cit.] Thus, any right to rent which accrues after eviction is normally extinguished." Bentley-Kessinger, Inc. v. Jones, 186 Ga.App. 466, 467, 367 S.E.2d 317 (1988). However, "parties to a lease agreement may contract in advance to hold the lessee liable for rent even after an eviction, deducting therefrom only the amounts recovered by the lessor from reletting the premises. [Cit.]" Id. at 467-468, 367 S.E.2d 317; Rucker v. Wynn, 212 Ga.App. 69, 70(1), 441 S.E.2d 417 (1994). In paragraphs 11.4(b) and 11.5 of the lease, Mullis and Love agreed that in the event Shaheen terminated the lease in accordance with its default provisions, as landlord she could recover from them all damages incurred by reason of their breach, including the cost of recovering the premises and reasonable attorney fees, and including the worth at the time of termination of the difference between the rent under the lease and that for which the premises were relet, if any, for the remainder of the lease term. Paragraph 11.6 further provides that pursuit of legal remedies for default would not "constitute a forfeiture or waiver of any rent due to Lessor [under the lease]." "Mere acceptance by the obligee of performance by the assignee, or substituted obligor, of the contract is not sufficient to...