Fagbemi v. JDN Realty Corp.

621 S.E.2d 765, 275 Ga. App. 540, 2005 Fulton County D. Rep. 2921, 2005 Ga. App. LEXIS 1024
CourtCourt of Appeals of Georgia
DecidedSeptember 21, 2005
DocketA05A1431
StatusPublished
Cited by3 cases

This text of 621 S.E.2d 765 (Fagbemi v. JDN Realty Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fagbemi v. JDN Realty Corp., 621 S.E.2d 765, 275 Ga. App. 540, 2005 Fulton County D. Rep. 2921, 2005 Ga. App. LEXIS 1024 (Ga. Ct. App. 2005).

Opinion

BLACKBURN, Presiding Judge.

Samuel and Sylvia Fagbemi (Fagbemi) appeal the trial court’s January 18,2005 grant of summary judgment to plaintiff JDN Realty Corporation (JDN) in its suit against Fagbemi and Oluyemisi Afuape (Afuape), for unpaid rent on a commercial lease.

Afuape failed to answer the complaint, and default judgment was rendered against him on September 10, 2004, and corrected on September 28, 2004. The trial court awarded JDN liquidated damages in the principal sum of $19,692.23, attorney fees of $1,434.47, postjudgment interest at the lawful rate, and costs of court. Afuape did not appeal this ruling.

Acting pro se, Fagbemi answered the complaint, but failed to file a response to JDN’s motion for summary judgment. The trial court granted JDN’s unanswered motion for summary judgment on January 18, 2005, and awarded JDN “judgment against Defendants Samuel Fagbemi and Sylvia Fagbemi, jointly and severally, with Oluyemisi Afuape.” Based on JDN’s affidavit and relevant documents, the court awarded damages “in the principal amount of $29,487.99 in past and future rents and charges from August 1, 2001 to July 31, 2004, attorney’s fees of $2,973.80, plus court costs and interest at the lawful rate.”

The trial court accepted JDN’s undisputed argument that, as the original lease was for a three-year term, each subsequent assignment of such lease resulted in a new three-year lease term without any specific agreement to do so in the assignment. We disagree. Fagbemi, on the other hand, argues that their assignment of the lease to Afuape, with the approval of JDN, released them from any liability for future rents under the lease. We also disagree with this contention.

Fagbemi further contends on appeal that the evidence did not support the award of damages in the summary judgment ruling. We agree. The trial court properly found that Fagbemi and Afuape were liable to JDN for damages under the lease; the evidence, however, [541]*541does not support JDN’s representations as to the amount of the damages awarded or the term for which each of the parties is liable to JDN. Under the default judgment granted against Afuape, the trial court included billings for attorney fees, which, in part, duplicate the billings which supported the award of attorney fees in the summary judgment action against Fagbemi and Afuape. It appears also that all of the damages awarded against Afuape in the default judgment are duplicated in the award of damages in the summary judgment against Fagbemi and Afuape. For these reasons, we vacate the default judgment against Afuape. We affirm the trial court’s finding of liability of Fagbemi andAfuape in the grant of summary judgment, but vacate the damages awarded therein and remand the case to the trial court for a recalculation of the damages award, consistent with this opinion.

JDN complained that both Fagbemi, as a subsequent assignor, and Afuape, as their assignee were jointly and severally liable for certain unpaid rent, attorney fees, and costs, based on a lease which originated in 1994, to which neither Fagbemi nor Afuape were original parties, but rather, their interest arose from being in the chain of subsequent assignments. In granting summary judgment, the trial court adopted the factual representations of JDN, as contained in the affidavit of Eric C. Cotton, Assistant General Counsel for JDN. In paragraph 9 thereof, Cotton avers that “[t]he [l]ease was assigned multiple times between 1994 and 2001.” In granting summary judgment, the trial court correctly accepted JDN’s argument that neither the lease language nor the assignment relieved defendants of liability for rent under the lease.

Whether Fagbemi’s assignment of the lease to Afuape, with the consent of JDN, releases Fagbemi from liability for future rent is controlled by the plain language of the assignment agreement.

On appeal, this Court considers questions of law de novo. The construction of the provisions of a lease, as with other written contracts, is generally a matter of law for the trial court to determine. Absent ambiguity that the trial court cannot resolve using the statutory rules for contract construction, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.

(Citations and punctuation omitted.) Roswell Festival, LLLP v. Athens Intl.1

[542]*542A review of the documents reveals that neither the lease nor the assignment is ambiguous. The lease states that “[t]he covenant of Tenant to pay all rents hereunder is and shall be deemed a separate and independent covenant and Tenant shall have no right of deduction or set-off whatsoever.” (Emphasis supplied.) It further reads that “[t]he terms, provisions and covenants contained in this lease shall apply to, inure to the benefit of, and be binding upon the parties hereto and their respective ... assigns.” (Emphasis supplied.) Thus, Fagbemi, as assignees and assignors, were obligated to pay the rents due under the lease. The assignment, while stating that JDN Realty “hereby consents to the foregoing assignment of the [l]ease to Assignee and hereby recognizes Assignee’s interest in the [1] ease and its rights thereunder,” is silent on the matter of relieving Fagbemi of liability, and therefore adds no ambiguity to the otherwise clear language of the lease.

We further note that, unless there exists evidence of intent for an assignment to act as a novation, an original tenant is not normally released from liability when a lease is assigned. Southland Investment Corp. v. McIntosh.2 See also Sprayberry Crossing Partnership v. Tuley.3 Obtaining the consent of the landlord, as was done here, does not vary this rule. Southland Investment Corp., supra. Neither does the fact that JDN Realty dealt exclusively with the assignee after the assignment. Crow v. Cook.4 Thus, Fagbemi’s contention that they were released from future liability under the lease by the consent of JDN to its assignment is without merit.

In its order granting summary judgment, the trial court noted that Fagbemi did not file a response to the motion and made no request for oral argument and the court had ruled on brief. The trial court stated in its order that JDN had submitted the Cotton affidavit, with attachments, in which Cotton averred that “[bjeginning in March 2003, Defendants defaulted as to the timely payment of monthly rent [and] Defendants owe Plaintiff JDN $29,487.99 in past and future rents and charges from August 1, 2001 to July 31, 2004 [and t]he lease also provides for attorney’s fees.” The trial court accepted JDN’s representations and incorporated such in granting the motion for summary judgment.

“On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, [543]*543viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd.5

So viewed, the history of the property shows that on October 3, 1994, JDN, as landlord of the subject property, leased it to Richard A. and Judith Skinner, for use as a store, under the subject lease (Skinner lease).

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Bluebook (online)
621 S.E.2d 765, 275 Ga. App. 540, 2005 Fulton County D. Rep. 2921, 2005 Ga. App. LEXIS 1024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fagbemi-v-jdn-realty-corp-gactapp-2005.