dissenting.
I fully agree the trial court erred in refusing to consider parol evidence of an alleged mutual mistake. Nevertheless, I would affirm under the “right for any reason” rule, because the intervening equity of a bona fide purchaser for value precludes reformation of this lease. Furthermore, the voluntary payment rule does not bar recovery of alleged overpayments made during the pendency of this action. I therefore respectfully dissent from the judgment of reversal.
Plaintiff-appellee Burger King Corporation (“BKC”) brought this action against defendants-appellants Rita D. Yeazel and Jack H. Yeazel, seeking to recover money (rent) allegedly overpaid by mis*102take under a 20-year lease of commercial property in Cobb County, Georgia. Defendants defended on the ground that all payments were voluntary and counterclaimed for reformation of the lease as amended, for breach of contract, and for declaratory judgment. Plaintiff amended its complaint, also seeking declaratory judgment. The following undisputed facts are relevant to the disposition of this appeal:
In 1980, defendants leased their property to The Wheeler Organization, Inc. (“TWO”) to operate a Burger King restaurant as authorized in a franchise agreement between BKC and Paul Kelley Wheeler. TWO agreed to a monthly rental equal to the greater of (a) $4,000 or (b) seven percent of gross sales from the operation of the restaurant, as that term is defined in the franchise agreement. In April 1985, defendants and TWO entered into a written modification, which deleted the original paragraph 3 entitled “Use” in its entirety and added the following language:
Lessee agrees to continue to operate a Burger King Restaurant on the demised premises. Lessor grants Lessee the right to use the premises for any other lawful purpose, provided however, in the event that Lessee ceases to operate a Burger King Restaurant on the premises ... or makes any other use of the premises except as a Burger King Restaurant, the monthly rental. . . shall be equal to the greater of (i) one-twelfth (1/12) of seven percent (7%) of “gross sales” for the twelve (12) months immediately preceding the initial change of use (hereinafter referred to as base rent) or (ii) seven percent (7%) of gross sales from the operation of the business on the premises. The base rent shall then be increased by five percent (5%) annually for the duration of the lease term.
This amendment also extended the term of the lease to September 30, 2005, and permitted TWO to assign its rights under the lease to any approved Burger King franchisee. One month later, in May 1985, TWO merged with plaintiff BKC. In 1984 and 1985, defendants collected over $5,000 per month in rent. In March 1990, plaintiff ceased to operate a Burger King restaurant on the premises. According to the affidavit of Ron Reis, an accountant with BKC, from April 1990 through June 1992, BKC paid defendants $4,000, whereas under the amendment the correct amount would have been $3,127.51 until April 1991, when $3,283.89 would have been correct. In June 1992, rental payments were increased five percent to $4,200, whereas under the amendment, the rent would have changed to $3,448.08. In July 1993, the rent paid increased five percent to $4,410, while under *103the amendment it should have been $3,620.49 until April 1994, when $3,801.51 would be correct. Starting in August 1994, BKC paid monthly rent of $4,630.50 through February 1995, when this litigation commenced. The alleged overpayments total $39,772.29.
After discovery, the trial court denied defendants’ motion for summary judgment and, in a non-final order, granted BKC’s motion for declaratory judgment, effectively construing the rental term of the lease as amended. In so construing the amendment, the trial court refused to reform the contract to impose an overriding minimum base rent of $4,000, despite the uncontradicted affidavit testimonies of defendant Jack Yeazel and Paul Wheeler of TWO that such a monthly minimum was the true intention of the original parties to the amendment. The trial court further ruled that OCGA § 13-1-13 prevented plaintiff from recovering alleged overpayments made prior to filing the complaint under the theory that these were voluntary payments. From the final order directing defendants to reimburse plaintiff more than $15,000 ($15,715.96 with interest accruing at the rate of 12 percent per annum from the date of the judgment) in rent overpaid since the filing of the action, defendants brought this appeal.
1. The majority correctly holds the trial court erred in refusing to consider parol evidence of mutual mistake of fact authorizing reformation of the writing constituting the agreement of the original parties to the lease. The uncontradicted evidence demonstrates the intent of the original parties to the 1985 lease amendment was to include an overriding minimum base rent of $4,000 per month.
A mistake of law by the draftsman or other agent, by which the contract, as executed, does not fulfill or violates the manifest intention of the parties to the agreement may be relieved in equity. OCGA § 23-2-23; Sheldon v. Hargrose, 213 Ga. 672, 674 (1) (100 SE2d 898).
In a suit for reformation of contract based upon alleged mutual mistake, the parol evidence rule does not bar introduction of testimony as to the oral agreement reached by the parties which the writing was intended to reflect. Cotton States Life Ins. Co. v. Carter, 65 Ga. 228 [, 230] (1880); Green v. Johnson, 153 Ga. 738 (7) (113 SE 402) (1922).
Ga. Farm &c. Ins. Co. v. Wall, 242 Ga. 176, 179 (2) (249 SE2d 588). Consequently, the trial court’s reasoning that parol evidence is inadmissible to reform an unambiguous contract is erroneous. The question then becomes whether refusal to reform the lease is nevertheless correct, for a judgment that is right for any reason must be affirmed. Amwest Surety Ins. Co. v. RA-LIN & Assoc., 216 Ga. App. 526, 531 (1) (455 SE2d 106).
*104In my view, equitable relief in the form of reformation of the amended lease is precluded by the intervening equity arising from the subsequent assignment of that lease to BKC for valuable consideration, without notice of defendants’ intent that the lease as amended provide a minimum monthly rent of $4,000, even in the event BKC no longer operated a Burger King restaurant on the premises. “Equity will grant relief as between the original parties or their privies in law, in fact, or in estate, except bona fide purchasers for value without notice.” OCGA § 23-2-34. This rule applies to the remedy of reformation. Volunteer &c. Ins. Co. v. Powell-White Co., 187 Ga. 705, 707 (2) (1 SE2d 662). The mistake of the parties to the original lease cannot be rectified to the detriment of an innocent purchaser for value without notice. Malette v. Wright, 120 Ga. 735, 742 (2) (48 SE 229). Accord Spinks v. Glenn, 67 Ga. 744, 747 (4) (1881). The trial court correctly refused to reform this lease as amended, in order to impose an overriding minimum monthly rent of $4,000.
2. The trial court ruled that recovery of any alleged overpay-ments plaintiff made prior to the initiation of this suit for money paid by mistake was precluded by OCGA § 13-1-13 regarding voluntary payments, but further concluded that Code section did not prevent plaintiff from claiming an offset or recoupment for any overpayments made during the pendency of the declaratory judgment action. I disagree with the majority that this ruling is error.
Payments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.
OCGA § 13-1-13. Defendants argue that BKC cannot prove it was legitimately unaware of the true facts and further argue the trial court ignored the payment under protest portion of the rule.
In my view, BKC did not have all the material facts at any time it made a payment during the pendency of the action,31 because the construction of the amendment was in doubt until the trial court’s initial ruling. Consequently, the so-called voluntary payment doctrine was certainly inapplicable once plaintiff sought declaratory judgment or construction of the contract. “If [payment] was made in *105ignorance of the law, recovery is barred; if in mistake of law, recovery is permitted. [Cits.]” American Surety Co. v. Groover, 64 Ga. App. 865, 870 (14 SE2d 149) (on rehearing). Where one acts under a mistake of what the applicable law was to the state of facts, or was requiring of it, this mistake, though a product of ignorance, would be such a mistake of law as would come within the rule authorizing recovery or reallocation of payments. Emond v. State Farm &c. Ins. Co., 175 Ga. App. 548, 550 (2) (333 SE2d 656). A determination of the rights of the parties to a lease is a proper subject for declaratory relief under OCGA § 9-4-1 et seq. Cook Farms v. Bostwick, 165 Ga. App. 692, 693 (1) (302 SE2d 574). The trial court correctly determined that alleged overpayments in monthly rent made during the pendency of a declaratory judgment action to construe the amended lease and determine the correct amounts owed thereunder were not barred from recovery or reallocation under OCGA § 13-1-13 and the voluntary payment doctrine. Because the majority declines to recognize the applicable rule, I respectfully dissent from the judgment of reversal.
Decided November 23, 1999 Craig M. Frankel, for appellants. Eastman & Apolinsky, Stephen D. Apolinsky, for appellee.I am authorized to state that Judge Eldridge joins in this dissent.
Defendants concede BKC continued to make rent payments to them.