Cardin v. Outdoor East
| Decision Date | 14 March 1996 |
| Docket Number | No. A95A2407,A95A2407 |
| Citation | 468 S.E.2d 31,220 Ga.App. 664 |
| Parties | CARDIN et al. v. OUTDOOR EAST. |
| Court | Georgia Court of Appeals |
B. Miles Hannan, Kitchens, Wolfson, Smith, Hannan & Parker, Valdosta, for Appellants.
Walter G. Elliott II, Elliott & Blackburn, Valdosta, for Appellee.
C. Dewayne Cardin and Cathy Cardin sued Outdoor East for breach of a lease agreement. Outdoor East moved for judgment on the pleadings on the grounds that the lease did not contain a definite description of the property and was not executed by Outdoor East. The trial court granted the motion, and the Cardins appeal from that order. For reasons which follow, we reverse.
The complaint alleges that Outdoor East agreed to lease property belonging to the Cardins for the purpose of erecting and maintaining an advertising billboard for a period of 18 years. The lease, which was incorporated in the complaint, described the subject property as "I-75." While the lease was executed by the Cardins, it was not signed by Outdoor East.
Frady v. Irvin, 245 Ga. 307, 311(5), 264 S.E.2d 866 (1980).
Applying this standard to the complaint in this case, we find that the trial court erred in granting Outdoor East's motion. The trial court's order states that However, even if the description were insufficient for uncertainty or vagueness, the taking of actual possession by Outdoor East would have cured the deficiency. Barto v. Hicks, 124 Ga.App. 472(1b), 184 S.E.2d 188 (1971). See also Turner Communications Corp. v. Hickcox, 161 Ga.App. 79(3), 289 S.E.2d 260 (1982). Likewise, even if Outdoor East did not sign the lease, it would still be enforceable if Outdoor East partially performed under its terms. OCGA § 13-5-31. See also Valiant Steel etc. v. Roadway Express, 205 Ga.App. 237(3), 421 S.E.2d 773 (1992). Thus, while the Cardins' complaint "clearly does not state all of the essential elements of a proper cause of action to enforce [the lease], the complaint does not disclose with certainty that the [Cardins] would not be entitled to relief under any state of provable facts." Frady, supra at 312, 264 S.E.2d 866. Accordingly, the trial court's order granting judgment in favor of Outdoor East must be reversed.
Judgment reversed.
I agree that the court below must be reversed, but for a different reason. In addition to the matters referred to in the majority opinion, the court's order states: "Partial payment in this case does not except the contract from the statute of frauds." Although the lease itself had been incorporated in the unverified complaint as an alleged lease, partial payment concerns a factual contention not raised in the pleadings. When such extraneous matters are considered, a motion on the pleadings must be treated as one for summary judgment under OCGA § 9-11-56. OCGA § 9-11-12(c); Baker v. Wulf, 173 Ga.App. 674, 675, 327 S.E.2d 796 (1985).
However, the court below gave no indication that it would treat the motion as one under OCGA § 9-11-56, either before, during, or after the hearing on the motion. Until it produced its order there was no indication that the court would consider matters outside the pleadings. While the court could treat the motion as one under OCGA § 9-11-56, when doing so "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56." OCGA § 9-11-12(c); American Car Rentals, Inc. v. Walden Leasing, Inc., 215 Ga.App. 621, 622, 451 S.E.2d 537 (1994). This includes the requirement of 30 days' notice of the hearing on the motion for summary judgement. OCGA § 9-11-56(c); American Car Rentals, supra. Outdoor East moved for judgment on the pleadings on March 20, 1995, a hearing was conducted on April 26, 1995, and the court's order was entered on May 22, 1995.
While the motion for judgment on the...
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