This appeal arose from an action to recover unpaid rent and other expenses due under the terms of a commercial lease. The trial court granted summary judgment to the lessor’s agent, Jamestown Management Corporation Jamestown, and International Biochemical Industries, Inc., f/k/a Bioshield Technologies, Inc.1 Bioshield, the former tenant who breached the lease, appeals. Bioshield contends that the doctrine of res judicata barred the underlying action and that the trial court erred in finding otherwise. Bioshield also asserts that the trial court erred by granting summary judgment on its counterclaim and in denying its motion to strike portions of an affidavit. We find no error and affirm. On July 9, 1999, Bioshield entered into a ten-year commercial lease with Cologne Investors, Ltd. and Erwin Walter Graebner as lessors, and Jamestown as agent for the lessors. Bioshield leased an office building at 5655 Peachtree Parkway, Norcross, Georgia, at the initial monthly rate of $29,967.17. Under the lease, the base rent gradually increased to a maximum of $15.54 per square foot, or $71,644.58 per month.
In the event of default, the lease provided for several remedies, including but not limited to, the termination of the lease and acceleration of future rent. Under Paragraph 12.1.1, the lessor could terminate the lease, obtain possession, then seek indemnification from the Lessee “for all loss, cost, expense, and damage which Lessor may suffer by reason of the termination, whether through inability to relet the Premises, or through decrease in rent or otherwise.” Alternatively, under Paragraph 12.1.2 the lessor could: without terminating this Lease, retake possession of the Premises and rent the Premises, or any part thereof, for such term or terms and for such rent and upon such conditions as Lessor may, in its sole discretion, think best. . . . All rent received by Lessor from any reletting shall be applied first to the payment of any indebtedness . . .; second, to the payment of any costs and expenses of the reletting . . .; third, to the payment of rent due and unpaid hereunder, and the residue, if any, shall be held by Lessor and applied in payment of future rent or damage as they may become due and payable hereunder. If the rent received from the reletting during the Lease Term is at any time insufficient to cover the costs, expenses, and payments enumerated above, Lessee shall pay any deficiency to Lessor, as often as it shall arise, on demand. During the second year of the lease, Bioshield abandoned the premises, relocated elsewhere, and failed to pay any rent after December 2000. Jamestown did not terminate the lease. As was its option under Paragraph 12.1.2, Jamestown chose to regain possession without terminating the lease and to relet the premises. After Bioshield moved out, Jamestown, on behalf of itself and the lessors, instituted a dispossessory proceeding against Bioshield and sought the unpaid rent for December 2000 and January 2001. The dispossessory action resulted in a default judgment against Bioshield on January 29, 2001, for $151,706.10 for two months’ past due rent.
