Burgess v. Clermont Properties, Inc., 53034

• Decision Date: 27 January 1977
• Docket Number: No. 2,No. 53034,53034,2
• Citation: 232 S.E.2d 627,141 Ga.App. 112
• Parties: J. Z. BURGESS v. CLERMONT PROPERTIES, INC., et al
• Court: Georgia Court of Appeals

Page 627

232 S.E.2d 627

141 Ga.App. 112

J. Z. BURGESS v. CLERMONT PROPERTIES, INC., et al.

No. 53034.

Court of Appeals of Georgia, Division No. 2.

Jan. 27, 1977.

Sam G. Dettelbach, Atlanta, for appellant.

W. Pitts Carr, Freeman & Hawkins, andrew M. Scherffius, Atlanta, for appellees.

MARSHALL, Judge.

Burgess appeals from the grant of summary judgment in favor of appellees. The judgment was based on affidavits and depositions, submitted in support of appellees' allegations that Burgess defaulted in monthly rental and property taxes in the amount of $42,297.93 due appellees by virtue of a sublease of improved realty under which Brugess was an assignee. Burgess sets forth five reasons why the motion for summary judgment should not have been granted, which contentions are treated below seriatim. Held:

1. Burgess first contends the award of attorney fees was improper in that the 10-day notice required under Code § 21-506(c) (as amended by Ga.L.1968), p. 317) was not alleged or proved. Yet, appellees' complaint contains a prayer for attorney fees, and one of the appellees, Hugh Tanner, states in an affidavit that the requisite notice under Code § 20-506(c) was given. Burgess does not deny or offer proof in contradiction of this fact. On motion for summary judgment, the party opposing the motion may not rely on mere allegations or denials in his pleadings, but must set forth specific facts showing there is a genuine issue for trial. 'If he does not so respond, summary judgment, if appropriate, shall be entered against him.' C.P.A. § 56(e) (Code Ann. § 81A-156(e)); State Hwy. Dept. v. Charles R. Shepherd, 119 Ga.App. 872(1), 168 S.E.2d 922. The fact of notice having been established and unrebutted no genuine issue remains on this question.

2. Burgess next contends that the sublease agreement and the assignment thereof may not be 'other evidence of indebtedness' under Code § 20-506(c) and that code section may not apply. He cites no authority for this position, and we find no reason why a lease may not be an 'evidence of indebtendess.' See e.g., Kasum Communications, Inc. v. CPI North Druid Co., 135 Ga.App. 314, 217 S.E.2d 492.

3. Burgess was not entitled to receive notice of sublessor's declaration of default, prior to lessor's bringing suit, contrary to his contention. Broad language in the sublease agreement permitted sublessor to exercise 'such remedy as may be and become necessary in order to preserve (sublessor's) right and the interest of (sublessor) in the premises . . . if under the particular circumstances then existing, the allowance of such grace . . . would endanger the rights . . . of the (sub)lessor . . .' Appellees have submitted evidence of three year arrearages in unpaid taxes and substantial unpaid rentals, which, in the absence of a showing...