David Enterprises, Inc. v. Kingston Atlanta Partners, A93A0882
| Decision Date | 27 August 1993 |
| Docket Number | No. A93A0882,A93A0882 |
| Citation | 211 Ga.App. 108,438 S.E.2d 90 |
| Parties | DAVID ENTERPRISES, INC. et al. v. KINGSTON ATLANTA PARTNERS. |
| Court | Georgia Court of Appeals |
Graham G. McMurray, Atlanta, for appellants.
Pursley, Howell, Lowery & Meeks, John R. Lowery, Atlanta, for appellee.
Tenant/defendant David Enterprises, Inc. operates a restaurant in an office building owned by landlord/plaintiff Kingston Atlanta Partners. The premises are leased pursuant to a written lease entered into between the tenant and the landlord's predecessor in interest. The landlord filed an affidavit for distress warrant alleging the tenant owed rent. The tenant answered and denied the landlord's claim and raised a counterclaim for damages for breach of certain terms of the lease. A bench trial was conducted and the trial court entered judgment in favor of the landlord in the amount of $8,000 for rent due, $5,000 accrued interest and $7,000 attorney fees. Judgment was entered against the tenant on its counterclaim. Tenant appeals.
1. The landlord's claim is based on the allegation that in addition to the base rent, the tenant owes additional rent for consumption of electricity. Section 8.04 of the lease states: That phrase which was placed in parentheses was a typewritten addition to the pre-printed lease terms. The landlord's claims for rent arise out of the additional rent it claims the tenant was obligated to pay pursuant to Section 8.04 of the lease.
The tenant argues that Section 8.04 must be construed in conjunction with Section 8.01 of the lease, the pre-printed portion of which states: "Landlord shall furnish electric energy to the Premises for lighting and for equipment requiring no unusual or extraordinary demands on, or usage of, the existing Building system." To this section a typed footnote was added stating: "Landlord agrees to furnish necessary electric (Section 8.04 notwithstanding) for Tenant's initial requirements as per the attached exhibit B." No exhibit B was attached to the lease but the uncontroverted testimony at trial established that the intent of the footnote was to encompass the specific electric requirements necessary to operate tenant's restaurant equipment. The tenant argues that the typewritten addition to Section 8.01 must be construed as overriding the electrical billing provisions of Section 8.04. We agree.
The trial court's order of judgment addresses only the billing provisions of Section 8.04 and does not address Section 8.01. The comments of the trial judge at the hearing illustrate that the judge did not attempt to construe the phrase "Section 8.04 notwithstanding," which was added to Section 8.01 and focused, instead, on construing the meaning of the word "furnish." The word "furnish" appears several times in the five subsections of Section 8 of the lease, titled "Electric Energy and Water." We agree with the conclusion of the trial court at the trial of the case that in all other instances but one, the only reasonable meaning of the term is "to supply the source of [electricity, water, etc.]," and does not mean the landlord will necessarily pay for the utility in question. To construe the phrase in the pre-printed portion of Section 8.01 "Landlord will furnish electric energy" as meaning that the landlord agrees to pay for electric energy would make the payment provisions of Section 8.04 meaningless.
To the pre-printed language of Section 8.01, however, was added the typewritten provision whereby landlord agreed to "furnish necessary electric (Section 8.04 notwithstanding)...." If this covenant had been made "notwithstanding Section 8.02" then we would agree with the trial court that the typewritten addition was intended merely to indicate landlord would "supply" the electric source for the special restaurant equipment necessary for the tenant's operations. This is because immediately following the pre-printed provisions of Section 8.01 stipulating that the landlord will provide an electric source only for equipment requiring no unusual or extraordinary demands on the electrical system was Section 8.02, which stipulated that if the tenant had special electrical requirements the tenant could install additional electric supply equipment at its own expense. However, the typewritten addition to Section 8.01 indicated the covenant to "furnish" the necessary electric service for the tenant's equipment was made notwithstanding the provisions of Section 8.04. Section 8.04 does not address the issue of which party is required to pay for the installation of additional electric supply equipment but addresses only the issue of who is to pay for electric service. Thus, to construe the typewritten addition to Section 8.01 as the trial court construed it makes the phrase "Section 8.04 notwithstanding" meaningless. This would be contrary to the accepted rules of construction of a contract, pursuant to which the written provisions of a contract are entitled to greater consideration than printed provisions. See OCGA § 13-2-2(7); Fort Oglethorpe Assoc. II, Ltd. v. Hails Constr. Co., 196 Ga.App. 663(2), 396...
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