BARROW COUNTY AIRPORT AUTH. v. ROMANAIR

• Citation: 581 S.E.2d 402,260 Ga. App. 887
• Decision Date: 15 April 2003
• Docket Number: No. A03A0369.,A03A0369.
• Parties: BARROW COUNTY AIRPORT AUTHORITY v. ROMANAIR, INC.
• Court: United States Court of Appeals (Georgia)

581 S.E.2d 402

260 Ga. App. 887

BARROW COUNTY AIRPORT AUTHORITY v. ROMANAIR, INC.

No. A03A0369.

Court of Appeals of Georgia.

April 15, 2003.

James E. Palmour, III, Gainesville, for appellant.

Morton M. Wiggins, III, for appellee.

SMITH, Chief Judge.

This case comes to us again following remand to the trial court in the earlier decision of Barrow County Airport Auth. v. Romanair, Inc., 254 Ga.App. 722, 563 S.E.2d 467 (2002). After determining that rent adjustments were required to be made within a reasonable time after a "change date" specified in the lease, we remanded the case to the trial court to determine whether such an adjustment had, in fact, been made within a reasonable time. Because we find that the trial court properly resolved the issue on remand and properly cast costs against the Authority, we affirm the judgment.

In Barrow County Airport Auth., we were called upon to construe a lease agreement between the parties. We affirmed most of the trial court's rulings regarding the interpretation of the lease, finding that the trial court correctly construed the lease to limit any increase in the rent to no more than 30 percent of the previous payment, even if the Authority had not previously made any adjustments, and to require some action by the Authority to increase the rent. Id. at 725(3), 563 S.E.2d 467. We found that the trial court erred in interpreting the lease to mean that the Authority was required to make rent adjustments before the beginning of each "change date" specified in the lease because the lease provided that the rent "`shall be subject to adjustment at the beginning of each five year period.'" Id. at 725(4), 563 S.E.2d 467. We concluded that language in the lease required the Authority to make rent adjustments "within a reasonable time at the beginning of the five-year period. [Cit.]" Id. at 726(6), 563 S.E.2d 467. We could not determine from the record before us on appeal whether the almost seven-month period from the latest "change period" on September 1, 2000, to March 27, 2001, when the Authority made the rent adjustment, was a "reasonable time." We therefore remanded the case to the trial court "to resolve this issue." Id. The trial court resolved the issue against the Authority, finding that this period was "not sufficiently `at the beginning of the five year period' to permit the Authority to increase the rent." The Authority appeals that decision.

1. Originally, the parties stipulated the facts and participated in a bench trial. Barrow County, supra, 254 Ga.App. at 724, 563 S.E.2d 467. After remand, however, the Authority filed a jury demand. The Authority now contends the trial court erred in resolving this issue when a jury demand had been filed and the question was one of fact for a jury. We do not agree.

The parties waived the right to a jury trial before the first appeal. When the case was remanded for further proceedings, appellant sought to withdraw its waiver by filing a jury demand. But the Authority's participation in a bench trial was a waiver of its right to a jury. Raintree Farms v. Stripping Center, 166 Ga.App. 848, 849(1), 305 S.E.2d 660 (1983); Servisco, Inc. v. R.B.M. of Atlanta, Inc., 147 Ga.App. 671-672(2), 250 S.E.2d 10 (1978). "A waiver of jury trial at the first trial of the civil case applies to retrials of the same case. [Cits.]" City of Atlanta v. McLennan, 240 Ga. 407, 409(1), 240 S.E.2d 881 (1977).

Moreover, we do not agree with the Authority that the issue must be decided by a jury. It is true that in Parker v. Futures Unlimited, 157 Ga.App. 520, 278 S.E.2d 99 (1981), this court stated:

What is a reasonable time is for the jury. Where no definite time is stated for the performance of a contract, the presumption is that the parties intended that performance would be had within a reasonable time. What is a reasonable time is a question of fact in each case, to be decided by a jury. [Cit.]

Id. at 520-521, 278 S.E.2d 99. But the court in Parker went on to state: "Here, the trial judge, sitting without a jury, was the trior of facts and his findings are amply supported by the evidence." Id. at 521, 278 S.E.2d 99. Contrary to the Authority's argument, therefore, this court's citation to Parker in Barrow County, supra, 254 Ga.App. at 726(6), 563 S.E.2d 467, did not signify that only a jury could resolve the remanded issue, but only that it was an issue for the trier of fact. The trial court did not abuse its discretion by resolving the remanded issue without the intervention of a jury.

2. The Authority also maintains that because in Barrow County, supra, this court affirmed in part, reversed in part, and remanded one issue, the trial court erred in casting all costs...