Bentley-Kessinger, Inc. v. Jones , 186 Ga. App. 466 ( 1988 )

Sognier, Judge.

Fred M. Jones, Larry Kessinger, and Hubert Wright, as lessors, brought dispossessory proceedings against their tenant, Bentley-Kessinger, Inc. based on Bentley-Kessinger’s nonpayment of rent. The landlords were awarded possession of the premises, and following the eviction they filed a Complaint for Lien, asking the court for a general lien on all property of the former tenant remaining in the commercial building, and permission to sell the property at private sale and apply the proceeds to satisfy not only that rent past due at eviction, but all unpaid rent on the 20-year lease. The trial court ruled in favor of the lessors, finding that the lease agreement specifically authorized the lessee’s liability for rent accruing after eviction. Bentley-Kessinger appeals.

Appellant contends the trial court erred by ruling that its liability for rent accrued after eviction was contractually authorized by the lease agreement. We agree and reverse.

We note initially that although the lease document is not in the record, its absence does not present an insurmountable hurdle to our decision of this case on its merits. We have here neither a situation where one party alleges that the other party has quoted paragraph 24 (b) of the lease inaccurately, nor the situation where one party alleges that even though paragraph 24 (b) is quoted accurately, its meaning is altered when read in conjunction with some other lease provision which is not before us. Rather, both parties agree that paragraph 24 (b) is the sole lease provision at issue, and their recitations of its contents are not in conflict. Rule 15 (b) of the Rules of the Court of Appeals, 172 Ga. App. A-3, A-8-9, allows us to consider this as an implied consent to the fact that paragraph 24 (b) says, in actuality, what the parties, in their briefs, tell us it says. See Whisnant v. State, 178 Ga. App. 742, 743 (1) (344 SE2d 536) (1986); Hiley v. McGoogan, 177 Ga. App. 809, 811, fn. 1 (341 SE2d 461) (1986). It further allows us to consider that paragraph as controlling, since neither party has pointed to another portion of the lease as altering what may be derived from a reading of paragraph 24 (b) alone. Thus, as the record shows the trial court concluded as a matter of law that paragraph 24 (b) provides that rent will continue to accrue even after default and repossession of the premises, we have before us all that is needed to allow us to review that conclusion, which is enumerated as error, on its merits.

It is the general rule in Georgia that an eviction and subsequent reentry and possession of the premises by the landlord terminates the lease. W. James Wilson & Assoc. v. Kelley, 143 Ga. App. 271, 272 (238 SE2d 270) (1977). Thus, any right to rent which accrues after eviction is normally extinguished. Nothing in Metro Mgt. Co. v. Parker, 247 Ga. 625 (278 SE2d 643) (1981) may be construed as overruling Kelley, supra, as the issue in Kelley with which we are concerned here was not addressed in Metro Mgt. The Supreme Court granted certiorari in Metro Mgt. “to consider whether the termination of a lease is a condition precedent to the institution of dispossessory proceedings under [OCGA § 44-7-50], where possession of the premises is sought on the basis of non-payment of rent, rather than on the basis of termination of the lease.” Id. at 625-626. Any reliance on Metro Mgt., therefore, for the proposition that the landlord-tenant relationship continues after the landlord evicts the tenant, is misplaced. It is true that parties to a lease agreement may contract in advance to hold the lessee liable for rent even after an eviction, de-

ducting therefrom only the amounts recovered by the lessor from reletting the premises. Hardin v. Macon Mall, 169 Ga. App. 793, 794 (1) (315 SE2d 4) (1984). However, our decision in Hardin was premised on the existence of an explicit and detailed provision in the lease which clearly and unequivocally expressed the parties’ intention to hold the lessee responsible for after-accrued rent even should an eviction take place. We do not agree with appellees or with the trial court that such is the case here. The only portion of the lease which is possibly applicable is that portion of paragraph 24 (b) (ii) which provides as follows: “Pursuit of any of the foregoing remedies by either party, shall not preclude pursuit of any other remedies provided by law, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rights, rents, or other things due hereunder, or of any damage accruing to either party by reason of the violation of any of the terms, provisions and covenants herein contained, by the other.” This language is general, and does not express a clear intent to allow the landlord to collect future rent in derogation of the usual rule. In the absence of such a clear expression of contrary intent, the common law should govern. Accordingly, that portion of the judgment below which finds appellant indebted to appellee for rent which accrued after eviction, and allows appellee to apply the proceeds of the sale of appellant’s property to that indebtedness, must be reversed.

Judgment reversed and case remanded for further proceedings in accordance with this opinion.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Carley and Beasley, JJ., dissent.