Carasik Group v. City of Atlanta, s. 55325
| Decision Date | 15 June 1978 |
| Docket Number | 55326,Nos. 55325,s. 55325 |
| Citation | 246 S.E.2d 124,146 Ga.App. 211 |
| Parties | CARASIK GROUP v. CITY OF ATLANTA et al. BERKSHIRE LIFE INSURANCE COMPANY v. CARASIK GROUP et al. |
| Court | Georgia Court of Appeals |
Parks, Eisenberg, Weinstein & Glassman, Atlanta, for appellant in No. 55325.
David S. Eisenberg, Atlanta, for appellant in No. 55325 and for appellees in No. 55326.
J. M. Harris, Jr., John D. Jones, Gregory J. Digel, Atlanta, for appellees in Nos. 55325 and 55326.
Glass & Shaifer, J. A. Shaifer, Peter B. Glass, Atlanta, for appellant in No. 55326.
Jefferson D. Kirby, III, Greene, Buckley, DeRieux & Jones, Atlanta, for appellees in No. 55326.
On January 26, 1970, KFC National Management Company entered into a lease with the predecessors in interest in a lease with the owners of property on Gordon Road, Atlanta, Georgia, known as the Carasik Group, the name being taken from one of the joint owners thereof. Berkshire Life Insurance Company held a deed to secure debt encumbering the entire shopping center including the leased premises by KFC. The lease stated it was to be used The following excerpts are taken from the lease around which this entire case revolves: "If the whole of the demised premises or such portion thereof as will, in the opinion of the Lessee, exercised in good faith, (make the premises unusable for the purpose herein leased) 1 shall be taken or condemned by any competent authority for any public use or purpose during the term of this Lease then this Lease shall terminate from the date when possession of the part so taken shall be required for the use and purpose for which it is taken, . . ." As to partial termination of the lease we find the following: "If a portion of the premises is so taken or condemned, but the remaining portion is usable for the purposes herein leased, this Lease shall continue, but only as to such remaining portion." The H. Salt Take Home Fish & Chips outlet was later closed, and in November of 1974, KFC sub-leased the premises for the operation of a Chinese restaurant, at a reduced rental, both parties to the sub-lease entering that agreement with the understanding that condemnation proceedings were imminent.
In January, 1975, the City of Atlanta initiated the condemnation proceedings to widen Gordon Road. This involved an actual taking of approximately 12 feet of the KFC leased property, specifically five parking places along the front of the facility and only seven to eight feet separating the building from the sidewalk, a space insufficient to permit front parking. The condemnation proceeding was brought by the city against a number of owners and businesses in the shopping center but we are only concerned here with the Carasik Group, Berkshire Life Insurance Company, and KFC National Management Company, with reference to the taking of a portion of the property on which the H. Salt Take Home Fish & Chips outlet was located.
In its answer KFC submitted that it was entitled to all condemnation proceeds applicable to its leasehold interest and to a complete termination of the lease. A special master hearing was held, and a sum was awarded to the Carasik Group as condemnees in the amount of $5,454, "as the actual market value for that portion of the property under ground lease to KFC . . ." No consequential benefits or damages were found as to the remaining property. The special master found that KFC failed to prove any damages to it since it had sub-leased the property in question approximately one year before the acquisition of the property and approximately two years after remaining vacant, thereby indicating any loss it had sustained occurred approximately three years prior to the condemnation suit. She refused to rule on whether or not the lease should be terminated. Whereupon KFC filed an exception to the special master's findings, rulings and award in refusing to terminate the lease and finding that KFC was not damaged and to the finding that the Carasik Group was not entitled to additional damages to it by reason thereof. KFC also made a motion to recommit the award of the special master for further action and appealed the award of the special master to the superior court who had appointed the special master.
On August 1, 1975, the trial court accepted the award of the special master but subsequently set the judgment and decree of August 1, 1975, aside on August 5, 1975. On March 4, 1976, the trial court granted KFC's motion to recommit the award of the special master and ordered her to pass upon the termination issue and if the special master found there was a lease termination she was directed to proceed under the question of damages sustained by the lessors as a result of the lease termination. Thereafter, on August 19, 1976, the court ordered and adjudged the property under lease to KFC to be condemned and vested in the City of Atlanta.
However, on July 9, 1976, the Supreme Court of Georgia rendered the decision in Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 361, 227 S.E.2d 362, wherein that court held that a special master could not determine contractual rights by the two contesting condemnees holding this was a matter for determination by the trial judge. Whereupon on September 9, 1976, the trial court ordered that the issues of compensation and termination of the contract would be determined by the court, that is, if it ruled in favor of KFC in regard to termination of the lease then the court would try any additional questions relating to damages suffered by the Carasik Group.
Thereafter, on December 23, 1976, the trial court made its findings of fact and conclusions of law, "that the property is not now usable for fast-food service," and that no question had been raised by the lessor as to KFC's good faith opinion in terminating as provided in the lease agreement. The court concluded as a matter of law that a provision in a contract requiring the performance of one party to be satisfactory to the other is valid and enforceable citing Commercial Mtg., etc., Corp. v. Greenwich Savings Bank, 112 Ga.App. 388, 145 S.E.2d 249. It, therefore, ordered and adjudged that KFC was entitled to termination of the...
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...mutuality. See Commercial Mtg. &c. Corp. v. Greenwich Savings Bank, 112 Ga.App. 388, 390-392, 145 S.E.2d 249; Carasik Group v. City of Atlanta, 146 Ga.App. 211, 246 S.E.2d 124. Of course, as in the present case, such party's satisfaction as to the terms and conditions are not left to its un......
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...Reconsider and Set Aside such judgment was not error on this ground. We find support for this conclusion in Carasik Group v. City of Atlanta, 146 Ga.App. 211, 246 S.E.2d 124 (1978). Following Zuber, supra, and relying upon it, this court held that the trial court was correct in determining,......
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