From Casetext: Smarter Legal Research

Burger Chef System Inc. v. Newton

Court of Appeals of Georgia
Jun 21, 1972
191 S.E.2d 479 (Ga. Ct. App. 1972)



ARGUED MAY 25, 1972.


Action on contract. Spalding Superior Court. Before Judge Whalen.

David J. Keeler, for appellant.

Smalley, Cogburn Evans, Robert H. Smalley, Jr., Cumming Cumming, W. Barron Cumming, for appellees.

1. The requirements of the Civil Practice Act stipulate that a minimum of five days between service of and hearing on a written motion shall obtain unless a different period is fixed by order of the court. Where, as here, the motion is filed, served, and heard on the same day, this court will examine into the circumstances to determine whether the trial judge abused his discretion, or whether he was compelled by the necessities of the occasion to so shorten the customary period. Where the parties were before the court at the time, where the subject matter was a proposed termination of lease initiated by the party opposing the motion, and where the issue was decided on the record before the court in a summary manner to protect the movant's ten-day right to cure the default, no reversible error appears.

2. Where the lessee, by tendering back rent and giving a notice of termination of lease under its terms, thereby recognized its validity for this purpose, it cannot complain that the court under a related lease provision entered an order directed to the lessor under which it might cure the default during the grace period.


Newton and others as owners of a tract of land entered into a long term lease with Burger Chef Systems, Inc., it being contemplated that the lessee would erect a building thereon for its own business purposes. As to the time and payment of rent it was stipulated: "The term of this lease shall be 20 years from and after the commencement date, which date shall be the first day of the month after the date when the improvements to be constructed by lessee are completed. However, lessee shall pay one half of the monthly rental provided for herein from the first day of the month after the date the within lease is executed and guaranteed down to the commencement date of said lease; provided, however, said period for payment of one half of the monthly rental shall not exceed six months. Should improvements not be completed within six months from date this lease is executed the full monthly rental shall begin to accrue." The six-month period during which half rent was paid ended in May, 1971. Full payments were made for June and July. No building was ever commenced by the lessee. In August the lessee made no rent payment but apparently contended that the parties had come to an agreement for sale of the property. In September the lessors filed suit for August rental in the sum of $850. The defendants, contending the action concerned the validity of the lease as a whole, filed a petition for removal to the U.S. District Court, which, however, remanded it on motion to the Superior Court of Spalding County in which it originated. The defendant answered urging a number of defenses, among them "a failure on the part of plaintiffs to abide by the terms of the lease agreement in that they never furnished lessee with a policy of title insurance satisfactory to lessee."

On March 14, 1972, the defendants tendered an escrow check for the seven months back rent, without waiving any rights or defenses, and gave notice of termination based on the following alleged breaches on the part of the lessor: failure to provide a survey of the premises; failure to make arrangements for notification of tax assessments and failure to provide a satisfactory title policy.

The lessors contended that there had been no breach, but that if so they could and would perform within the time given them to do so under the terms of the lease as follows: "If lessor fails to obtain or provide any of the foregoing within such time lessee may ... (b) at lessee's option terminate this lease after giving lessor ten days' notice, and lessor shall not have obtained such items as agreed upon herein within said ten days."

The termination letter was received on March 16. On March 17 an interlocutory matter had been scheduled for hearing, and the lessor filed a written motion seeking directions as to what if any steps it should take within the ten-day period to avoid the threatened termination for breach of covenant. Over the objection of the lessee, the court heard argument on the motion instanter, both sides being present, and passed a directory order which is the subject of this appeal.

1. Code Ann. § 81A-106 (d) provides a minimum of five days between service and hearing of any motion "unless a different period is fixed by ... order of the court." Johnson v. Frazier, 121 Ga. App. 212 (1) ( 173 S.E.2d 434) and Bulloch County Bank v. Dodd, 226 Ga. 773 (1) ( 177 S.E.2d 673) stand for the proposition that where without express permission of the court a minimum time is lacking the appellant cannot complain, but not for the converse, that is that the court cannot grant a lesser time. Here the subject matter of the motion was limited to the contents of the lessee's letter of termination as shown by the record before the trial court and no evidence was offered by either side. In view of the fact that the lessor, if it had in truth been guilty of a breach of covenant, had only ten days in which to rectify the omissions, and that a grant of a continuance to the lessee would moot the question, it was not an abuse of discretion for the court to hear the matter on the same day, all parties being represented. As held in Herron v. Herron, 255 F.2d 589, the five-day service rule is not a hard and fast one. It appears from an uncontradicted statement of the lessor's attorney that prior oral notice of the plaintiff's intention to apply for direction in answering the letter had been given to opposing counsel upon its receipt. It is an old and sound rule that error to be reversible must be harmful ( First Nat. Bank of Chattanooga v. American Sugar Refining Co., 120 Ga. 717 ( 48 S.E. 326)), and, since the issue here was one of law and dealt with the very issues raised by the letter of termination, we find no abuse of discretion in failing to grant a continuance, during which most of the ten-day grace period would have expired. The lessor as a contracting party to the lease which the defendant was seeking to terminate under its terms (thereby recognizing its validity for this purpose) had standing to seek the order requested. The first five and the ninth enumerations show no reversible error.

2. As to the directions given by the court, it must first be noted that this unusual instrument purports to grant an estate for years commencing at a future date (when the improvements shall have been completed) by an instrument not subject to recordation. The specific stipulation in this regard reads: "In order to avoid any subsequent controversies as to the exact date of the commencement of the term of this lease, the parties hereto agree, upon demand of the other, to execute a written document entitled `Short Form Lease' in recordable form since it is the intention of the parties that this lease shall not be recorded." A part of the controversy engendered by the order from which this appeal is taken centers around the propriety of the court requiring the lessee to cooperate in executing a short form lease for the purpose of recordation in order that the title policy, lack of which the lessee gives as one of the breaches of covenant on which its notice of termination is based, may issue to the lessee. The three actions which the court found that the lessor should take within the period of the ten-day notice in order to cure the breach in face of the lessee's notice of termination were: (1) To furnish a proper topographical and stake survey; (2) to clear an outstanding deed to secure debt in favor of a named bank, and (3) to furnish a policy of title insurance insuring the lessee's interest. The first of these requirements had apparently been taken care of and it may be assumed that the second will be handled as a part of the normal procedure. As to the third, a title binder had been furnished but unless some form of lease be recorded there could be no policy issuing to the defendant. As stated above, assuming that the lessor had defaulted in these three areas, we do not regard the right of the lessee to terminate as unconditional within the meaning of the condition allowing the lessor ten days after demand to cure the defects. Since the contract required the execution and recordation of a short form lease upon demand, and since the lessee necessarily had to sign such a contract before it could be recorded and the title policy issued, and since by seeking to rescind under contract provisions it necessarily recognizes the validity of the contract for this purpose, it cannot complain of the requirement that it sign the short form lease. "This is so because a party cannot rely upon a default which he himself has caused." Smith v. David, 168 Ga. 511 (3e) ( 148 S.E. 265), and see Bernstein v. Fagelson, 38 Ga. App. 294 ( 143 S.E. 237).

Judgment affirmed. Eberhardt, P. J., and Clark, J., concur.

Summaries of

Burger Chef System Inc. v. Newton

Court of Appeals of Georgia
Jun 21, 1972
191 S.E.2d 479 (Ga. Ct. App. 1972)
Case details for

Burger Chef System Inc. v. Newton

Case Details


Court:Court of Appeals of Georgia

Date published: Jun 21, 1972


191 S.E.2d 479 (Ga. Ct. App. 1972)
191 S.E.2d 479

Citing Cases

Piper v. Piper

This being true, a trial judge has authority to grant a continuance ex parte if he desires, although the…

Wedgewood Carpet Mills v. Color-Set

Had Wedgewood prevailed in its actions against Color-Set and Davis and O'Mahoney, the trial court could have…