Department of Transportation v. Calfee Co. of Dalton, Inc.

Pope, Judge,

dissenting.

I cannot agree with the majority’s conclusion that in paragraph 18 of the applicable lease the lessee did not assign its right to condemnation proceeds for the value of its leasehold interest to the property owners. That paragraph provides: “18. Condemnation. In the event any part or all of the Premises shall be taken for any public or quasi-public use under any statute or by right of eminent domain or private purchase in lieu thereof by a public body vested with power of eminent domain then, when possession shall have been taken thereunder of the premises or any part thereof, this Lease shall terminate and all rights of the Tenant hereunder shall immediately cease and terminate, and the accrued rent shall be paid up to the time of such termination and the Tenant shall have no claim against the Landlord *307for the value of the unexpired term thereof and the Tenant shall not be entitled to any part of the condemnation award or purchase price.” (Emphasis supplied.)

Decided November 27, 1991 Reconsideration denied December 19, 1991 Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison W. Kohler, Roland F. *308Matson, Senior Assistant Attorneys General, Kinney, Kemp, Pickell, Sponcler & Joiner, Henry C. Tharpe, Jr., for appellant.

*307The plain language of that paragraph assigns to the landlord any claim the tenant might have in a condemnation action, including a claim against the condemnor for the value of its leasehold interest. Under the terms of paragraph 18, the property owners were entitled to the value of an unencumbered fee in the property condemned, including the value of the tenant’s leasehold interest. See Henson v. Dept. of Transp., 160 Ga. App. 521 (1) (287 SE2d 299) (1981); cf. Simmerman v. Dept. of Transp., 167 Ga. App. 383 (1) (307 SE2d 4) (1983) (tenant reserved the right to recover from the lessor any compensation from the condemnation proceedings which the tenant was entitled to by law).

Relying on this agreement, which was freely entered into by Calfee Company with the property owners1 and that assigns to the property owners any compensation received for property interests in the subject property in a condemnation action, DOT offered to the property owners the value of an unencumbered fee. The property owners, who apparently believe that they are entitled to the value of an unencumbered fee under the terms of the lease, have withdrawn those funds. Now the tenant, who clearly relinquished its right to seek condemnation proceeds, seeks additional funds from DOT.2

In light of the majority decision, condemnors will no longer be able to rely on the clear contract provisions concerning assignment of rights of condemnation proceeds, but will be forced to have the property appraised as both an unencumbered fee and an encumbered fee with a leasehold interest and seek court direction concerning which party is entitled to compensation.

I am authorized to state that Presiding Judge Carley, Judge Cooper and Judge Andrews join in this dissent.

*308McCamy, Phillips, Tuggle & Fordham, Joseph T. Tuggle, Jr., Gearhiser, Peters & Horton, Robert L. Lockaby, Jr., for appellee.

The majority’s conclusion the pertinent contract language must be construed against the lessor is erroneous under the facts of this case. The lessor is not a party to this dispute. Furthermore, the pertinent contract language does not provide for termination of the lessee’s possessory interest, it only discusses who should receive any condemnation proceeds.

This case presents the same factual situation that caused DOT to seek to intervene in the dispute between the lessor and lessee concerning which party was entitled to the value of the leasehold interest in Simmerman v. Dept. of Transp., 167 Ga. App. 383, 384, supra.