Burger Chef Systems, Inc. v. Newton

• Decision Date: 21 June 1972
• Docket Number: No. 3,No. 47261,47261,3
• Citation: Burger Chef Systems, Inc. v. Newton, 191 S.E.2d 479, 126 Ga.App. 636 (Ga. App. 1972)
• Parties: BURGER CHEF SYSTEMS, INC. v. John T. NEWTON et al
• Court: Georgia Court of Appeals

Page 479

191 S.E.2d 479

126 Ga.App. 636

BURGER CHEF SYSTEMS, INC. v. John T. NEWTON et al.

No. 47261.

Court of Appeals of Georgia, Division No. 3.

June 21, 1972.

Rehearing Denied July 10, 1972.

Syllabus by the Court

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 court 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 direction 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...