Department of Transp. v. Calfee Co. of Dalton, Inc.
| Decision Date | 27 November 1991 |
| Docket Number | No. A91A0959,A91A0959 |
| Citation | 202 Ga.App. 299,414 S.E.2d 268 |
| Parties | DEPARTMENT OF TRANSPORTATION v. CALFEE COMPANY OF DALTON, INC. |
| Court | Georgia Court of Appeals |
Michael J. Bowers, Atty. Gen., H. Perry Michael, Executive Asst. Atty. Gen., Harrison W. Kohler, Roland F. Matson, Sr. Asst. Attys. Gen., Atlanta, Kinney, Kemp, Pickell, Sponcler & Joiner, Henry C. Tharpe, Jr., Dalton, for appellant.
McCamy, Phillips, Tuggle, Rollins & Fordham, Joseph T. Tuggle, Jr., Dalton, Gearhiser, Peters & Horton, Robert L. Lockaby, Jr., Chattanooga, Tenn., for appellee.
In May 1989, appellant/condemnor Georgia Department of Transportation (DOT) condemned .037 acres of land located in Catoosa County near Interstate 75 on Cloud Springs Road for the purpose of restructuring a problem interchange. At the time of condemnation, a convenience store was located on the property. The real estate was owned by A. Bernice Calfee (wife) (a/k/a Bernice Calfee) and Priscilla Calfee Mowles (daughter of George E. Calfee from a previous marriage), as Trustees under a trust established by George E. Calfee (husband) for the benefit of Tracie Lynn Calfee (George's and Bernice's minor child), and was leased by appellee/condemnee Calfee Company of Dalton d/b/a Favorite Markets in October 1981. The property lease lists the lessor as B & T Properties, and the lease was signed in behalf of B & T by Bernice Calfee and in behalf of Calfee Company by George E. Calfee. B & T Properties, apparently was intended to be established as some type of trust estate for Bernice Calfee and Tracie Calfee. It was testified that B & T was formed as a partnership composed of A. Bernice Calfee and Tracie Lynn Calfee, with Priscilla Calfee Mowles acting as Trustee of Tracie; appellee conducted business with B & T properties only through Bernice Calfee and with no one else.
Favorite Markets built and operated a convenience store on the leased land; and billed Bernice and Tracie for the building shell. In December of 1981, Favorite Markets was sold by "sellers," George Calfee, Bernice Calfee, and Priscilla Calfee Mowles, as Trustee of the trust established for Tracie Calfee, to Seaboard Operating, which was an investment company. The purchase and sale agreement expressly states, without contradiction of record, that the sellers "are the holders of all the issued and outstanding common capital stock of Calfee Company of Dalton, Inc." Before this sale was consummated, it was insisted that a fixed amount of rental for the ten-year lease renewal be established and this was done by a lease agreement schedule incorporated into the purchase and sale agreement.
Prior to trial, the property owners accepted the amount offered to them by DOT as the value of an unencumbered fee for the subject property, leaving the leasehold interest in dispute. Compare Simmerman v. Dept. of Transp., 167 Ga.App. 383, 384, 307 S.E.2d 4. Immediately preceding trial, DOT filed a motion in limine, which inter alia sought to prohibit the tenant from presenting any evidence of the value of its leasehold interest. At the close of the evidence, DOT moved for a directed verdict on the issues of the leasehold interest and business losses. The trial court denied that motion. The jury returned a verdict in favor of the tenant, awarding it $100,000 for its leasehold interest and $6,275 for moving expenses. The jury also found that the business was not unique resulting in no entitlement for award based on business losses. DOT moved for a new trial or alternatively for judgment notwithstanding the verdict. The trial court also denied that motion. DOT appeals from the denial of this motion and from the verdict of the jury. DOT does not except to the award of moving expenses. Held:
1. DOT contends that the effect of paragraph 18 of the applicable lease was to assign to the landlord all claims which the tenant had for the value of the leasehold. We disagree.
The lease provision merely provides: (Emphasis supplied.)
The language used in the lease provision is not ambiguous. The trial court has the responsibility to interpret lease provisions, such as this, as Stern's Gallery v. Corporate Property, etc., 176 Ga.App. 586, 593(4), 337 S.E.2d 29. The interpretation of this lease provision should be governed by the intent of the parties as expressed in the entire lease contract. See Peachtree, etc., Investors v. Reed Drug Co., 251 Ga. 692(1), 308 S.E.2d 825. And, where as here, the terms of the written lease are clear and unambiguous, the court will look to the lease alone to find the intention of the parties. Health Svc. Centers v. Boddy, 257 Ga. 378, 380, 359 S.E.2d 659. Not to be neglected, however, is the rule that provisions in leases which result in a forfeiture of a tenant's possessory rights will be strictly construed against the lessor. Peachtree, etc., Investors, supra.
Applying these well-established principles of law to the lease provision in its entirety, it appears that the provision in question provides, inter alia, for the termination of the lessee's possessory rights in the event of a condemnation of the premises, and therefore should be strictly construed. Additionally, the provision provides that the appellee lessee shall have no claim against the landlord for the unexpired lease term and shall not be entitled to any part of the condemnation award or purchase price. Strictly construing this provision, we find that on its face it neither waives any and all claims arising from the lease termination nor does it assign any and all condemnation awards or claims, whatsoever, to the landlord. Rather, only certain express and limited claims against the landlord are waived, and the only assignment if any, which, and then only by means of liberal rather than strict interpretation, can be said to have been created is an assignment by the lessee to the landlord of any claim or entitlement to the condemnation award or purchase price which the landlord received for the taking of their property. The intent of the parties remains clear that the lessee at most was renouncing the right to assert any right of entitlement to any condemnation award received by the landlord for the latter's separate condemnation claim for the taking of their property.
The dissent's reliance on Henson v. Dept. of Transp., 160 Ga.App. 521, 287 S.E.2d 299, is misplaced. In Simmerman v. Dept. of Transp., supra 167 Ga.App. at 385(1), 307 S.E.2d 4, we distinguished Henson by concluding that "in Henson, the lessee unequivocally assigned any condemnation award or claim 'whatsoever' except for moving expenses...." In the case at bar, however, the limiting language of the lease provision establishes on its face that the lessee did not unequivocally assign any condemnation award or claim "whatsoever" to the landlords. Therefore, Henson is neither controlling nor persuasive.
Moreover, assuming arguendo this leasing provision had been ambiguous, we would then be required to construe the provision against the lessor (Stern's Gallery, supra); and, where a leasing provision is capable of being construed in two ways, it will be construed against a lessor preparer and in favor of a lessee non-preparer (Hertz, etc., Rental Corp. v. Evans, 260 Ga. 532, 533, 397 S.E.2d 692). Construing the lease provision against the lessor, the same interpretation as reached above would apply.
2. The option to renew contained in the lease pertinently provided that:
DOT asserts that the attempted extension of the lease was invalid due to lack of certainty of its terms. Pause v. City of Atlanta, 98 Ga. 92(6), 26 S.E. 489, overruled in part on other grounds, Bowers v. Fulton County, 221 Ga. 731, 738, 146 S.E.2d 884; Cann v. MARTA, 196 Ga.App. 495(1), 396 S.E.2d 515; but compare Thornton v. Ellis, 184 Ga.App. 884, 885(1), 363 S.E.2d 584.
The option to renew on its face appears to be uncertain within the meaning of Pause and Cann. Accordingly, unless the option to renew was modified effectively so as to remove the uncertainty or a new enforceable lease entered before the expiration of the original term of the lease in question, the purported lease extension would be unenforceable; and, insofar as the purported extension of the lease is concerned, condemnees would have no legally compensable interest therein upon the condemnation of the property--condemnor would not be obliged to...
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