Rucker v. Wynn, A93A2046
| Decision Date | 28 January 1994 |
| Docket Number | No. A93A2046,A93A2046 |
| Citation | 212 Ga.App. 69,441 S.E.2d 417 |
| Parties | RUCKER et al. v. WYNN. |
| Court | Georgia Court of Appeals |
Alan I. Begner, Penny M. Douglass, Atlanta, for appellants.
Alston & Bird, A. McCampbell Gibson, T. Michael Tennant, Duluth, for appellee.
After the tenants in a commercial lease agreement failed to pay rent when due under the lease terms, the landlord, without notice to the tenants, retook possession of the premises and rerented it pursuant to terms in the lease providing that the lease would remain in effect, and that the tenants would be liable for accruing rent less amounts collected on rerental. The tenants sued the landlord for wrongful eviction, trespass, breach of the implied covenant of quiet enjoyment of the premises, breach of the lease agreement, breach of an alleged oral contract to accept late payment of rent, and conversion of personal property. The landlord counterclaimed seeking the difference between past due rent accruing under the lease and rent generated by rerental. The trial court granted partial summary judgment in favor of the landlord eliminating all the tenants' claims except conversion of personal property, and granting summary judgment in favor of the landlord on the counterclaim for $248,830 for accrued rent, plus additional sums for attorney fees and interest. The tenants appeal from the order of summary judgment.
The lease agreement at issue provided for the lease of the premises for a restaurant business for a term of five years beginning July 1, 1990 for monthly rent of $7,000 for the first five months and $12,500 per month thereafter. Rent was due under the lease on the first day of each month. The tenants failed to pay the $12,500 rent payment due on January 1, 1991. On or about January 7, 1991, the tenants gave the landlord a check for $12,500, but informed the landlord that there were not sufficient funds in the bank to cover the check. According to the landlord, the tenants asked him to hold the check and allow them to operate the business through the next weekend so they could generate funds to cover the check, which the landlord agreed to do. According to the tenants, the landlord agreed to hold the check for two weekends. The landlord deposited the check on January 16, 1991, and it was refused for insufficient funds.
The lease defined a failure to pay rent as a default constituting a breach of the lease, and further provided that in the event of such default, and without notice, the "Landlord, as Tenant's agent, without terminating this lease may enter upon and rent the premises, in whole or in part, at the best price obtainable by reasonable effort, without advertisement and by private negotiations and for any term landlord deems proper, with Tenant being liable to Landlord for the deficiency, if any, between Tenant's rent hereunder and the price obtained by Landlord on reletting; provided, however, that Landlord shall not be considered to be under any duty by reason of this provision to take any action to mitigate damages by reason of Tenant's default." Pursuant to this lease provision, the landlord reentered the premises without notice on January 18, 1991 after business hours when the tenants were not present, evicted the tenants by changing the locks on the doors, and prepared and rerented the premises.
1. There is no merit to the tenants' claim that the landlord wrongfully evicted them without notice or resort to dispossessory proceedings. "[A] landlord may contract to avoid [the statutory notice and other requirements of dispossessory proceedings set forth in OCGA § 44-7-50 et seq.] when renting property which is not to be used as a dwelling-place." (Emphasis in original.) Colonial Self Storage, etc. v. Concord Properties, 147 Ga.App. 493, 495, 249 S.E.2d 310 (1978). The landlord was entitled to rely upon the default provisions in the commercial lease agreement, which gave him the right to reenter and take possession without notice or resort to legal proceedings, and he acted pursuant to the terms of the lease in reentering and taking possession of the premises for rerental upon default by the tenants for nonpayment of rent. Id.; Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 473-474, 260 S.E.2d 867 (1979); Eason Publications v. Monson, 163 Ga.App. 370, 371, 294 S.E.2d 585 (1982). Accordingly, we also conclude that the trial court properly granted summary judgment in favor of the landlord on the tenants' claims for trespass, breach of the implied covenant of quiet enjoyment of the premises, and breach of the terms of the lease agreement. Compare Entelman v. Hagood, 95 Ga. 390, 22 S.E. 545 (1894); Real Estate Loan Co. v. Pugh, 47 Ga.App. 443, 170 S.E. 698 (1933); Teston v. Teston, 135 Ga.App. 321, 217 S.E.2d 498 (1975); and Forrest v. Peacock, 185 Ga.App. 189, 363 S.E.2d 581 (1987), rev'd on other grounds 258 Ga. 158, 368 S.E.2d 519 (1988) (); compare Albert Properties v. Watkins, 143 Ga.App. 184, 237 S.E.2d 670 (1977) (); compare Swift Loan, etc., Co. v. Duncan, 195 Ga.App. 556, 394 S.E.2d 356 (1990) ().
2. There was no error in the trial court's grant of summary judgment in favor of the landlord on the claim that the landlord breached an oral agreement to accept late payment of the rent. There was no consideration...
To continue reading
Request your trial
-
George v. Hercules Real Estate Servs., Inc.
...Inc. v. North American Assn. of Slavic Churches & Ministries Inc., 291 Ga.App. 808, 812–81(3), 662 S.E.2d 745 (2008) ; Rucker v. Wynn, 212 Ga.App. 69, 70–71 (1), 441 S.E.2d 417 (1994) ; Topvalco, Inc. v. Garner, 210 Ga.App. 358, 361 (2), 436 S.E.2d 25 (1993) ; Hardwick v. 3379 Peachtree, 18......
-
Luxottica Grp., S. P.A. v. Airport Mini Mall, LLC
...to legal proceedings where the tenant has contractually waived its right to those procedural protections. See Rucker v. Wynn , 212 Ga.App. 69, 441 S.E.2d 417, 419 (1994), disapproved on other grounds by George v. Hercules Real Estate Servs., Inc. , 339 Ga.App. 843, 795 S.E.2d 81, 89 (2016).......
-
94TH Aero Squadron v. County Airport Auth.
...by statute or case law, to allow for reentry without judicial process in the commercial lease context. See, e.g., Rucker v. Wynn, 212 Ga.App. 69, 441 S.E.2d 417, 419 (1994); Clark v. Service Auto Co., 143 Miss. 602, 108 So. 704, 707 (1926). In those states, a commercial landlord may reenter......
-
AMERICAN MEDICAL TRANSPORT v. Glo-An
...even should an eviction take place." Bentley-Kessinger, Inc. v. Jones, supra at 468, 367 S.E.2d 317; see also Rucker v. Wynn, 212 Ga.App. 69, 71-72(4), 441 S.E.2d 417 (1994); Peterson v. P.C. Towers, L.P., 206 Ga.App. 591, 592(2), 426 S.E.2d 243 (1992). Therefore, the trial court did not er......
-
Can A Commercial Landlord Engage In Self-Help Against A Tenant In Default?
...set forth in O.C.G.A. Section 44-7-50 et seq.] when renting property which is not to be used as a dwelling-place." See Rucker v. Wynn, 212 Ga.App. 69, 70 (1994). In Rucker, the Court determined that a default provision contained in the parties' commercial lease agreement entitled the landlo......
-
Not So Fast! Enforcing Accelerated Rent Clauses in Commercial Lease Agreements
...or (3) permitting the premises to remain vacant while collecting the agreed-upon rent from the original tenant"). [2] Rucker v. Wynn, 212 Ga. App. 69, 71, 441 S.E.2d 417, 420 (1994), overruled on other grounds by George v. Hercules Real Estate Servs., Inc., 339 Ga. App. 843, 851, 795 S.E.2d......