20/20 Vision Center, Inc. v. Hudgens

• Decision Date: 02 July 1986
• Docket Number: No. 43205,43205
• Citation: 345 S.E.2d 330,256 Ga. 129
• Parties: 20/20 VISION CENTER, INC. v. HUDGENS, a/k/a Scott Hudgens Companies.
• Court: Georgia Supreme Court

Page 330

345 S.E.2d 330

256 Ga. 129

20/20 VISION CENTER, INC. v. HUDGENS, a/k/a Scott Hudgens Companies.

No. 43205.

Supreme Court of Georgia.

July 2, 1986.

Charles C. Pritchard, Atlanta, for 20/20 Vision Center, Inc.

Gary M. Sams, Weekes & Candler, P.C., Decatur, Mark D. Welsh, for D. Scott Hudgens, Jr., a/k/a Scott Hudgens Companies.

MARSHALL, Chief Justice.

This suit was instituted by the appellant, 20/20 Vision Center, Inc., through which its president, Dr. John T. Hendrix, Jr., is engaged in the practice of optometry. The appellee is Scott Hudgens, Jr., d/b/a Scott Hudgens Companies, who owns the Columbia Mall, a/k/a Avondale Mall (referred to hereinafter at times as the mall). The appellant's complaint is that the appellee has breached an agreement to lease space to the appellant for the practice of optometry in the mall. After conducting a hearing on the appellant's application for an interlocutory injunction, the trial court entered an order dismissing the complaint. For reasons which follow, we reverse.

In March of 1985, the appellant and appellee were engaged in discussions and negotiations in regard to the appellant's leasing of space in the mall. On March 26, 1985, Mr. Francis R. Huidekoper, an agent of the Scott Hudgens Company involved in the leasing of property at the mall, sent a letter to Dr. Hendrix, setting forth the "Terms and Conditions to consummate the Lease at Columbia Mall." In addition, a copy of the proposed lease was enclosed with the letter. This lease was for a term of five years.

On May 20, 1985, Mr. Abe Sharony, whom Dr. Hendrix had retained as his attorney, sent a letter to Mr. Huidekoper, stating that Dr. Hendrix would be willing to sign a lease under the terms and conditions specified in the foregoing letter. One of these terms was that "[l]andlord shall replace existing brick store front with glass, and shall bring out new glass store front forward, in accordance with drawings as reviewed by the parties ..."

A meeting was held between the parties on May 21, and on May 22 Mr. Sharony sent Mr. Huidekoper another letter stating that although it was his understanding that the landlord would not agree to a "three-year option," Mr. Huidekoper had indicated to Mr. Sharony that the tenant "would be allowed a right of first refusal as to any bona fide lease offers received by the Landlord regarding the leased premises prior to expiration of the initial five-year term." Mr. Sharony then stated that Dr. Hendrix "believe[d], as I do, and as you indicated, that this is a 'closed deal.' "

Other discussions were held between the parties, and other correspondence were sent from Mr. Sharony to Mr. Huidekoper, as well as from Mr. Sharony to Ms. Jane Smith, who acted as an attorney for Scott Hudgens. On July 1, Ms. Smith sent a letter to Mr. Sharony, stating that Scott Hudgens had agreed to lease the space to 20/20 Vision on the terms set out in various of the letters between the parties "subject to negotiation, execution and delivery of a written lease."

On July 23, a copy of the proposed lease was sent to Mr. Sharony from Ms. Smith. On August 21, Mr. Sharony sent a letter to Mr. Henry Neal, who had assumed Mr. Huidekoper's duties with the Scott Hudgens Company. In this letter, Mr. Sharony stated that the purpose of the letter was to confirm a telephone conversation in which Mr. Sharony had been advised that "the landlord had approved being responsible for the interior tenant improvements, as indicated in the Lee McCullough drawing dated June 9, 1985, a copy of which I furnished you. Your stipulation was, however, that there would not be any unusual wall construction involved." In this letter, Mr. Sharony also referred to some other "loose ends" remaining.

One of these "loose ends" concerned the amount of space being rented, and the parties subsequently agreed to increase the rental space from 1,475 square feet to 1,680 square feet.

On September 6, Ms. Smith sent Mr. Sharony a letter containing copies of a "revised lease for 20/20 Vision Center at Avondale Mall." In this letter, Ms. Smith requested that three provisions be added to the lease, one of which was a "Lease Outline Drawing to show glass store front as Landlord's expense." On September 19, Mr. Sharony sent Ms. Smith a letter containing "three fully executed copies of the revised lease for 20/20 Vision Center at Columbia Mall." There were also several documents attached to the lease, as well as various corrections initialed by the tenant. In this letter, Mr. Sharony requested that Ms. Smith forward to him "one fully executed original of the lease."

The lease exchanged between Mr. Sharony and Ms. Smith on September 6 and September 19 contained a clause providing: "The submission of this document for examination does not constitute an offer to lease and this lease becomes effective only upon execution and delivery thereof by Landlord and Tenant."

The appellant presented testimony from Dr. Hendrix' wife, who is a real estate agent who was involved in these negotiations. She testified that subsequent to September 19, she spoke on the telephone with Mr. Hudgens, and he refused to build the glass wall, stating, " 'If you don't like it, I will let you out of the lease.' " Mrs. Hendrix further testified that Mr. Hudgens also told her that he had found a tenant to whom he could lease the property at a rental per square foot 50% higher than what the appellant had agreed to pay, and that this prospective tenant would not require the appellee to make any interior improvements in the leased premises.

On October 1, 1985, the appellant filed the present complaint against the appellee, alleging that the various writings between the parties constitute a lease agreement and that the appellee has breached this agreement by refusing to replace the existing brick store front with a glass wall. In Count 1, the appellant alleges that it has "spent considerable efforts and a significant sum of money" in reliance on the lease agreement "in order to perform duties and obligations imposed upon plaintiff by the Lease Agreement, including duties relating to construction, improvements, and signage of the leased premises." Accordingly, the appellant seeks actual and punitive damages, as well as attorney fees. In Count 2, the appellant seeks a decree of specific performance requiring the appellee to perform its obligations under the lease agreement, and the appellant also requests preliminary and permanent injunctive relief enjoining the appellee from "leasing, encumbering, transferring, or otherwise conveying the leased premises, or any interest or portion therein ..." The appellant filed a separate motion for a preliminary injunction, and the appellant later amended this motion by requesting that the appellee be ordered to comply with the terms of the lease agreement, including the construction of the contested glass wall.

After conducting a hearing on the appellant's application for an interlocutory injunction, the trial court entered an order dismissing the complaint. In this order, the court initially noted that the appellant's request for specific performance was an "alternative count" in the complaint, ¹ and that, in order to determine whether the plaintiff was entitled to such equitable relief, it was necessary for the court to decide "whether a lease did in fact exist, thus deciding the issue on its merits." ² The trial court found that although various representatives of the appellant and appellee engaged in conversations and exchanged correspondence in negotiating the terms of a contemplated lease, no writing was signed by the appellee, and there is no evidence that any person acting on behalf of the appellee possessed any written authority to bind the appellee. On this basis, the trial court concluded that any documents purporting to constitute a contract would be unenforceable under the Statute of Frauds, since none of these writings was signed by the appellee or another person shown to have written authority to bind him. The trial court further concluded that any expenditures made by the appellant preparatory to moving into the shopping center would not constitute partial performance taking the contract out of the Statute of Frauds, and that the writings between the parties consisted of nothing more than offers and counter-offers, since at no time was there a meeting of the minds sufficient to form a binding contract. For these reasons, the trial court ordered that the complaint be dismissed.

1. It is true that " ' "[i]n order to make any sort of a contract the offer of the seller must be accepted by the purchaser, unequivocally, unconditionally, and without variance of any sort ... An absolute acceptance of a proposal, coupled with a condition, will not be a complete contract; because there does not exist the requisite mutual assent to the same thing in the same sense. Both parties must assent to the same thing, in order to make a binding contract between them." (Cit.) ...' Weldon v. Lashley, 214 Ga. 99, 101-102 (103 SE2d 385) (1958); Donohue v. Monroe, 147 Ga.App. 835, 836 (250 SE2d 571) (1978)." Harry Norman & Assoc., Inc. v. Bryan, 158 Ga.App. 751, 752, 282 S.E.2d 208 (1981).

However, in F. & W. Grand Five-Ten-Twenty-Five Cent Stores v. Eiseman, 160 Ga. 321, 127 S.E. 872 (1925), it was held that the acceptance by the landlord's agent of the terms and conditions of the tenant's offer of a lease resulted in the formation of a binding contract, even though in accepting the offer the landlord's agent advised the tenant to "get in touch with ... the owners' attorneys, for the preparation and consummation of the lease." 160 Ga. at p 324, 127 S.E. 872. See also Shell Petroleum Corp. v. Jackson, 47 Ga.App. 667, 171 S.E. 171 (1933).

2. The Statute of Frauds is codified at OCGA § 13-5-30, and this statute provides that in order to be enforceable, various types of agreements must be "in writing and signed by the party to be...