Westmoreland v. JW, LLC

• Decision Date: 09 January 2012
• Docket Number: No. A11A1657.,A11A1657.
• Citation: 722 S.E.2d 102,12 FCDR 268,12 FCDR 135,313 Ga.App. 486
• Parties: WESTMORELAND et al. v. JW, LLC.
• Court: Georgia Court of Appeals

12 FCDR 135

12 FCDR 268

313 Ga.App. 486

722 S.E.2d 102

WESTMORELAND et al.

v.JW, LLC.

No. A11A1657.

Court of Appeals of Georgia.

Jan. 9, 2012.

Sanders & Ranck, Janney E. Sanders, Toccoa, for appellants.

Mills & Hoopes, Timothy S. Walls, Zachary R. Poole, for appellee.

BARNES, Presiding Judge.

This action involves a landlord-tenant dispute over the amount of unpaid rent that was owed for the use of commercial property. Appellee JW, LLC is the current landlord. Appellants Robert L. Westmoreland, Larry Holder, and Lonnie Holder d/b/a Pizing's Wings and Things (collectively, “Pizing's”) were the tenants during the time in question. Following a bench trial, the trial court agreed with JW as to the amount of unpaid rent that was owed by Pizing's and entered judgment in JW's favor. On appeal, Pizing's argues that the trial court erred: (1) by allowing JW to reopen its case-in-chief and introduce into evidence the written assignment agreement entered between the original landlord and JW; (2) by failing to find that the parties had mutually departed from the strict terms of the lease; and (3) by holding Pizing's liable for rent accruing after JW filed the instant lawsuit. For the reasons discussed below, we affirm.

On appeal from the entry of judgment in a bench trial, we view the evidence in the light most favorable to the trial court's verdict. Cox Interior v. Bayland Properties, 293 Ga.App. 612, 613(1), 667 S.E.2d 452 (2008). So viewed, the evidence showed that in January 2005, Pizing's entered into an agreement to lease space in a shopping center for the operation of a sports bar and restaurant (the “Lease”). While the Lease was entered into for an original term of five years, it contained a separate provision authorizing automatic renewal for one additional five-year term. Pursuant to the Lease, Pizing's was required to pay base rent in addition to a share of operating expenses and common area maintenance (“CAM”) charges on a monthly basis.

The Lease named F & M Shoppes of Friendship, LLC (“F & M”) as the landlord. JW, LLC subsequently purchased the shopping center and became the successor-in-interest to F & M. F & M and JW entered into an agreement under which F & M assigned its rights and obligations under the Lease to JW.

In 2008, Pizing's was seriously affected by the downturn in the economy and was struggling to keep open the sports bar and restaurant. Pizing's advised JW that it would have difficulty continuing to make rent payments and needed “some relief on the rent.” It is undisputed that from November 2008 onward, Pizing's either made no monthly rent payment or made a monthly rent payment in an amount less than what was specified in the Lease. The parties dispute, however, whether they agreed that Pizing's would remain liable for the accrued shortfall between the monthly rent specified in the Lease and the reduced rent that was actually paid from November 2008 onward.

In October 2009, the principals of Pizing's sold the sports bar and restaurant to an individual named Mickey Mixon. JW never entered into a written lease agreement with Mixon, but JW agreed to accept rental payments from him rather than Pizing's once he began operating the sports bar and restaurant in November 2009. Mixon ultimately failed to make rental payments, leading JW to file a dispossessory action and successfully obtain a writ of possession and judgment for past due rent against him. However, JW was unable to collect on its judgment against Mixon. The parties dispute whether Pizing's remained liable for any deficiencies in the rent payments from November 2009 onward, when Mixon began operating the sports bar and restaurant.

In January 2010, JW filed the instant action against Pizing's for breach of the Lease. Following a bench trial in which the parties disputed the amount of unpaid rent that was owed by Pizing's, the trial court entered judgment in favor of JW in the principal amount of $91,405.84 for unpaid rent, plus prejudgment interest, attorney fees, and litigation expenses. This appeal followed.

1. During the bench trial, after the parties rested, the trial court allowed JW to reopen its case-in-chief and introduce into evidence the written assignment agreement between F & M and JW. Pizing's argues that the trial court erred in reopening the evidence to admit the assignment agreement without requiring JW to authenticate the document and without allowing Pizing's to cross-examine any witnesses about the document. As such, Pizing's asserts that JW was not entitled to rely upon the terms and provisions of the Lease, including the payment terms, and that the relationship between the parties instead was simply a tenancy-at-will that continued on a month-to-month basis.

Pizing's argument lacks merit. A trial court has broad discretion to allow a party to reopen the evidence after the party has presented its case-in-chief and rested. See Taylor v. State, 282 Ga. 502, 504(3), 651 S.E.2d 715 (2007); Bloomfield v. Bloomfield, 282 Ga. 108, 110(1)(d), 646 S.E.2d 207 (2007). Furthermore, Pizing's never objected to the introduction of the assignment agreement on the specific ground that it lacked proper authentication or that Pizing's should be permitted to cross-examine a witness regarding the document; thus, any objection on those particular grounds has been waived. See Belans v. Bank of America, 306 Ga.App. 252, 256(3), 701 S.E.2d 889 (2010).

In any event, any alleged error by the trial court in admitting the assignment agreement was harmless. During its case-in-chief, JW introduced into evidence, without objection, two written addenda made part of the Lease that were executed after the shopping center had been sold to JW. The addenda, which were signed on behalf of Pizing's and JW, specifically recited that the original landlord had sold and assigned the Lease to JW and expressly defined JW as the current “Landlord.” Both addenda provided that they would be made part of the Lease and that all terms and conditions of the Lease would remain in force and effect except where modified by the addenda. Hence, the two addenda incorporated into the Lease provided independent evidence, separate and apart from the assignment agreement itself, that JW was entitled to enforce the terms and conditions of the original Lease. It follows that the admission of the assignment agreement, even if error, caused no harm. See Teems v. Bates, 300 Ga.App. 70, 79(3), 684 S.E.2d 662 (2009) (admission of evidence was harmless because it was cumulative of other evidence admitted without objection).

2. In the bench trial, Pizing's raised the affirmative defense of mutual departure. On appeal, Pizing's argues that the trial court incorrectly calculated the amount of overdue rent because the court should have found that there had been a mutual departure from the strict terms of the Lease regarding the amount of monthly rent that was owed. Specifically, Pizing's contends that the uncontroverted evidence showed that it was never required, as a matter of practice, to pay CAM charges as part of its monthly rent and that JW orally agreed in November 2008 to modify the Lease to reduce the amount of monthly rent that was owed until the economy improved.

We are unpersuaded. “[A] mutual departure from the terms of an agreement results in a quasi-new agreement suspending the original terms of the agreement until one party has given the other reasonable notice of its intent to rely on the original terms.” Vakilzadeh Enterprises v. Housing Auth. of County of DeKalb, 281 Ga.App. 203, 206, 635 S.E.2d 825 (2006). See OCGA § 13–4–4. But “[t]he question whether the parties' mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury,” and the factfinder's determination will not be disturbed if there is any evidence to support it. Kusuma v. Metametrix, 191 Ga.App. 255, 257(3), 381 S.E.2d 322 (1989). See Mahsa, Inc. v. Al–Madinah Petroleum, 276 Ga.App. 890, 894(1), 625 S.E.2d 37 (2005).

Here, JW's managing partner testified that the monthly amount of base rent and CAM due under the Lease was $6,805, and that Pizing's had paid all amounts due and owing until November 2008. Mr. Westmoreland, one of the principals of Pizing's, confirmed on cross-examination that the total amount of rent due up to November 2008 was $6,805 a month and that Pizing's was current on its rent payments until that point in time. According to JW's managing partner, JW agreed to allow Pizing's to temporarily pay a reduced amount of monthly rent beginning in November 2008 until the economy improved, but with the understanding between the parties that there would be no permanent rent forgiveness and that Pizing's would remain liable for the accrued shortfall in base rent and CAM charges. Shortly thereafter, JW sent a letter dated December 18, 2008 to Pizing's that was consistent with this understanding of the parties' arrangement in that it contained a chart of the shortfall in rent that was to be carried over from month to month. Pizing's never responded to the letter. JW sent another letter dated September 2, 2009 reflecting that the shortfall in rent had continued to accrue and discussing how Pizing's ultimately could go about paying back the shortfall. Again, Pizing's did not respond to the letter. Given this ...