Vinings Jubilee Partners Ltd. v. Vinings Dining Inc. d/b/a Garrison's

We granted Vinings Jubilee Partners, Ltd.’s “the landlord” application for interlocutory appeal from the trial court’s order denying its request for a writ of possession. Finding that the court was required to grant the writ pursuant to OCGA § 44-7-54 b, we reverse. The landlord and the predecessor in interest to the current tenant, Vinings Dining, Inc. d/b/a Garrison’s, entered into a commercial, 15-year lease in 1998. The lease requires the tenant to pay a minimum guaranteed annual rental “MGAR” in 12 equal monthly installments, with payment due on the first of each month. In addition, the lease obligates the tenant to pay as annual rent a sum equal to five and one-half percent of the amount by which its gross sales exceed the “breakpoint amount,” a complex calculation at issue in this case. The annual percentage rental must be paid “on or before the 45th day following the end of each calendar year.” In the event that the tenant fails to pay any money obligation “when such payment is due and payable and which continues for three 3 days after receipt of written notice thereof,” the landlord may terminate the lease and take possession of the premises.

On October 22, 2002, the landlord filed the underlying dispossessory action, seeking past due rent of $12,666.42, rent accruing up to date of judgment or vacancy in the amount of $11,480.35 per month, and litigation expenses. The tenant answered and counterclaimed, contending, inter alia, that it had tendered all amounts due, but that the landlord had wrongfully refused the tender.