In Jаnuary of 1977, Florida Hose and Couplings, Inc. leased certain premises from The Prudential Insurance Company of America (Prudential) (acting through its management and leasing agent). In connection with this lease agreement Southeastern Hose, Inc. executed a “guaranty” under which it agreed to “perform as primary obligator [obligor], all liabilities, obligations and duties (inсluding, but not limited to payment of rent) imposed upon the Lessee [Florida Hose and Couplings, Inc.] under the terms of the Lease ...”
Prudential filed this action on the guaranty alleging that Florida Hose and Couplings, Inc. (Florida Hose) had defaulted under the terms оf the original lease and a renewal of the lease executed in accordance with the renewal option contained in the lease. By reason of Florida Hose’s default and by reason of the “Guaranty” executed by defendant, the defendant is alleged to be indebted to plaintiff.
Both parties filed their respective motions for summary judgment supрorted by affidavits. The trial court entered its order on these motions denying defendant’s motion for summary judgment and granting plaintiffs motion for summary judgment as to all issues except the amount of attorney fees to be included in the judgment. Defendant appeals. Held:
1. Defendant contends that plaintiff on three previous occasions has voluntarily dismissed an action based on or including the same claim as the present action. If defendant’s contention is correct the third voluntary dismissal operаted as an adjudication on the merits under OCGA § 9-11-41 (a) (formerly Code Ann. § 81A-141 (a) (Ga. L. 1966, pp. 609, 653)).
In reviewing the claims in the three dismissed actions relied upon by defendant, we note that defendant’s contention is incorrect if any one of the previous actions is
not
based on or including the claim presented in the present action. The defendant in the action sub judice is not a party to one of the three actions upon which it
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relies. The defendant in that action is “Florida Hose & Coupling [s], Inc.,” the lessee under the lease agreement, and plaintiffs claim in that action is predicated upon the lease itself rather than the “guaranty” thereof signed by the defendant in the cаse sub judice. We have previously held that actions predicated upon distinct and separate violations of a lease were not based on the same claim.
Jones v. Atlanta Housing Auth.,
2. The leаse agreement in the case sub judice contained provision for a renewal of the lease for an additionаl term at the option of lessee. The lease described the premises as “containing approximately 5,248 square feet.” The renewal of lease provision provided that base rent of the renewal term would be $1.90 per square fоot annually. The lessee gave proper and timely notice of its intention to renew the lease and a “renewаl of lease” was executed by lessee and plaintiffs agent stating a monthly rent of $831 (5,248 sq. ft. X $1.90 per sq. ft. = $9,971.20 12 = $830.93).
Defendant contends that the rеnewal of lease cannot be enforced against it as a guarantor since the original lease containеd no mutual agreement as to the terms and conditions of the “renewal of lease.” Defendant also argues that therе has been a novation of the lease agreement causing its discharge. See in this regard
LeCraw v. Atlanta Arts Alliance,
We do not reach the question raised by defendant due to the following language from the “guaranty”: “Lessor and Lessee, without notice to or consеnt by the undersigned, may at any time or times enter into modifications, extensions, amendments or other covenants respecting the Lease as they deem appropriate and the undersigned shall not be released thereby, but shall continue tо be fully liable for the payment and performance of all liabilities, obligations and duties of Lessee under the Lease as modified, extended or amended.” In contrast to the guaranty in
LeCraw v. Atlanta Arts Alliance,
3. On September 3, 1982, which was subsequent to the filing of plaintiffs motion for summary judgment, plaintiff filed an additiоnal affidavit in support of its motion. Relying upon OCGA § 9-11-6 (formerly Code Ann. § 81A-106 (d) (Ga. L. 1966, pp. 609, 617; 1967, pp. 226, 229, 230)); OCGA § 9-11-56 (e) (formerly Code Ann. § 81A-156 (e) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, рp. 757, 759)) and our decision in
Fairington, Inc. v. Yeargin Constr. Co.,
4. Defеndant contends that an exhibit to an affidavit presented in support of plaintiffs motion for summary judgment is “not admissible as evidence to prove the amount of taxes owed to [plaintiff] and included in [plaintiffs] request for damages because it is not thе best and primary evidence of the actual taxes paid.” However, this is not an appropriate application of the best evidence rule as the content of a writing (in regard to the amount of taxes owed by defendant to plaintiff) is not at issue. See
Borenstein v. Blumenfeld,
Judgment affirmed.