Green v. Johnston Realty, Inc.
| Decision Date | 16 March 1994 |
| Docket Number | No. A93A2176,A93A2176 |
| Citation | 442 S.E.2d 843,212 Ga.App. 656 |
| Parties | GREEN v. JOHNSTON REALTY, INC. |
| Court | Georgia Court of Appeals |
Adams & Ellis, Laura J. Tromly, Ronald C. Berry, Tracy O'Connell, Savannah, for appellant.
Edenfield, Stone & Cox, Gerald M. Edenfield, Susan W. Cox, Statesboro, for appellee.
Plaintiff/appellant is John Green d/b/a Green Development Company, a real estate developer who focused primarily on student housing. Plaintiff had worked primarily in the Athens, Georgia area, but in 1989 decided to expand his business to Statesboro, Georgia to develop a student housing facility near Georgia Southern University. Plaintiff approached Joe Johnston, a real estate agent and principal of defendant Johnston Realty, Inc., with the idea of developing a complex consisting initially of 24 four bedroom, four bathroom apartments. Plaintiff advised Johnston that his plan called for the initial construction of 24 apartments by June 1990 ("Phase I") with an additional 32 apartments to be constructed by the fall of 1990 ("Phase II"). Each apartment was to rent for $900 and house four persons, who were each required to sign a separate lease agreement and provide a parental guarantee. Plaintiff also required that the potential lessees deposit a total of $1,000 as a security deposit on the apartment. Johnston told plaintiff that his company normally received a fee equal to one-half of the first month's rent for each apartment leased; however, plaintiff and Johnston came to an oral understanding that defendant would act as a leasing agent for Phase I and receive a fee of $5,000. Specifically, defendant was to act as a focal point for students to get information about the apartments and sign leases. It was also agreed that plaintiff would be responsible for advertising and that, in August 1990, plaintiff's property manager would assume all leasing responsibilities. Johnston assigned two of his sales agents to work on leasing the apartments in Phase I. Although the agents experienced some difficulty obtaining the parental guarantees, all 24 of the Phase I apartments were leased by June 1990. In June 1990, plaintiff began construction of Phase II, and defendant's agents began to look for tenants for the Phase II apartments. At one point plaintiff told the agents that he was having difficulty with the financing for Phase II, and the agents temporarily stopped trying to lease the units until the financial matter was resolved, at which time the agents resumed their efforts to lease the apartments in Phase II. By the beginning of the 1990-91 school year, the agents had been unable to lease the majority of the Phase II apartments. Plaintiff refused to pay defendant the agreed upon sum of $5,000 and subsequently filed suit against defendant, alleging breach of contract, negligence, negligent hiring and tortious interference with prospective economic relations. Defendant filed a counterclaim seeking the $5,000 plaintiff agreed to pay for the leasing of Phase I and additional compensation for the units in Phase II for which defendant secured tenants. Defendant moved for summary judgment on the main claim and the counterclaim, and the trial court granted the motion and awarded defendant damages in the amount of $5,541.40 for the leasing of the twenty-four Phase I units and $1,438.38 for the seven Phase II units leased. Plaintiff appeals from that order. Although the judgment entered in favor of defendant on the counterclaim is less than $10,000, the judgment in favor of defendant on the main claim is in effect a "zero" award for plaintiff. Therefore, an application for discretionary appeal is not required. See Robinwood, Inc. v. Baker, 206 Ga.App. 202(1), 425 S.E.2d 353 (1992).
1. Plaintiff first contends that the trial court erred in failing to construe material facts in his favor as the non-movant. (Citations and punctuation omitted.) McGinty v. Golden's, etc., Co., 208 Ga.App. 248, 249(1), 430 S.E.2d 185 (1993).
With respect to plaintiff's claim for breach of contract, the trial judge found that there was an agreement between plaintiff and defendant for defendant to use its best efforts to lease the apartments in Phase I, but there was no agreement with respect to the apartments in Phase II. Johnston testified in his deposition that he agreed to help plaintiff lease the 24 apartments in Phase I by acting as a focal point where students could get information and sign leases. Johnston also testified that for this service he was to be paid a flat rate of $5,000, although his normal fee was one-half of the first month's rent on each apartment leased. Johnston stated that his responsibility was to end in August 1990 when plaintiff's property manager took over the leasing responsibilities. Johnston further testified that there was no agreement as to the apartments in Phase II, and although Johnston's staff attempted to secure tenants for the units in Phase II, Johnston assumed that the leasing of these units would be the responsibility of plaintiff's property manager. Johnston also stated that through the efforts of his sales staff he was able to secure lease agreements for thirty-one apartments, all of the Phase I apartments and seven of the Phase II apartments.
There is no evidence in the record that defendant breached its agreement with respect to the leasing of the apartments in Phase I. Furthermore, plaintiff testified in his deposition that there was never any negotiation about payment for leasing the apartments in Phase II and he assumed they would be leased under the same terms as those in Phase I. "In accordance with OCGA § 13-3-1, to form a valid contract there must be a subject matter, a consideration, and mutual assent by all parties to all the terms." Lamb v. Decatur Federal, etc., Assoc., 201 Ga.App. 583, 585(1), 411 S.E.2d 527 (1991). "Further, as price is an essential element of a valid...
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