Howell Mill/Collier Associates v. Pennypacker's, Inc.
| Decision Date | 04 January 1990 |
| Docket Number | No. A89A1751,A89A1751 |
| Parties | HOWELL MILL/COLLIER ASSOCIATES v. PENNYPACKER'S, INC. |
| Court | Georgia Court of Appeals |
John G. Grubb, Jr., Decatur, for appellant.
Ragsdale, Beals, Hooper & Seigler, Atlanta, William R. Patterson, Jr., Stone Mountain, for appellee.
Appellant Howell Mill/Collier Associates appeals the final order and judgment in this case, and enumerates several errors pertaining to the trial court's grant, without motion, of partial summary judgment to appellee/defendant as to appellant/plaintiff's complaint, and asserts that the trial court also erred by denying it the opportunity to be heard in connection with the rendition of summary judgment.
Appellant/plaintiff leased store space to appellee/defendant in a shopping center. Subsequently, appellant's agent claimed that appellee was in breach of contract by failing to pay rent in accordance with the terms of the lease, and made a demand for immediate possession of the premises. Demand for possession allegedly was made by appellant not in termination of the lease, but in accordance with options therein provided. Appellee's president responded by asserting that the lease was now rendered null and void, and stated its intent to relinquish possession of the premises subject to receipt of a certain legal document. Appellee, however, did not immediately vacate the premises. The record reflects the trial court denied appellant's motion for summary judgment, and in doing so entered various findings and conclusions. Among the trial court's conclusions were that appellant breached the lease agreement by demanding rental payments and immediate possession of the premises, and by evicting appellee by taking the keys to the premises at times when no rents were due; and, that appellee under such circumstances had the right to rescind the contract. Held:
1. Appellant asserts that the trial court denied it an adequate opportunity to address the proposition that there is no genuine issue of material fact to be tried, and that the party to whom summary judgment is rendered, without motion, is entitled to such an opportunity as a matter of law.
The record does not disclose that the trial court expressly granted partial summary judgment to appellee in its order filed September 10, 1987. However, the effect of this order, which denied appellant's motion for summary judgment, clearly included a grant of partial summary judgment to appellee as asserted. There is no magic in nomenclature; thus, in classifying the order of a trial court, we will construe it to serve the best interests of justice, judging the order by its function rather than by its name. See Frost v. Frost, 235 Ga. 672, 674(1), 221 S.E.2d 567.
It is well-settled that summary judgment can be granted to a non-moving party provided the grant is proper in all other respects. Golston v. Garigan, 245 Ga. 450(1), 265 S.E.2d 590. As a general rule, "[i]f the record demands such a judgment, it would be proper." DeMudd v. Atlanta, etc. Taxi-Cab Group, 172 Ga.App. 626, 627, 323 S.E.2d 910. However, " '[c]are should, of course, be taken by the (trial) court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law.' " Cruce v. Randall, 152 Ga.App. 183(1), 262 S.E.2d 488, aff'd 245 Ga. 669, 266 S.E.2d 486; accord Rasmussen v. Nodvin, 174 Ga.App. 203, 204(1), 329 S.E.2d 541. " ' "The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him." ' " Colbert v. Piggly Wiggly Southern, 175 Ga.App. 44, 48(3), 332 S.E.2d 304. Examining the record in its entirety, we find appellant has not had a full and final opportunity in this instance to controvert the assertions inherently contained in the partial motion for summary judgment granted in behalf of non-moving appellee.
In Cruce v. Randall, supra at 245 Ga. 671, 266 S.E.2d 486, the Supreme Court provided the following guidance, "while in most cases it is better practice to await a motion for summary judgment before entering it for a party, it was not erroneous under the circumstances of this case, where the issues were the same as those involved in the movant's motion, hence the opposing parties had notice thereof, and where the nonmovant consented to the entry of summary judgment in his favor." (Emphasis supplied.)
In this case, the issues contained in appellant's motion for summary judgment and those inherently contained in a grant of partial summary judgment to appellee substantially were not the same. For example, appellant's motion did not contain any direct issues of contract rescission or constructive eviction, and such issues could not readily be discerned from the posture of admissible evidence of record either in support of or in opposition to appellant's motion. Hence, appellant had inadequate notice within the meaning of Cruce v. Randall, and the trial court erred in sua sponte granting summary judgment without first placing appellant on adequate notice thereof so that he could meet and attempt to controvert the assertions inherently contained in such a grant. We decline to speculate regarding what particular defenses appellant might also have raised in view of appellee's conduct in subsequently retaining possession of the premises after sending its letter asserting a qualified acquiescence, without protest, in response to appellant's initial demand for immediate possession. Suffice it to say appellant in this instance has been denied the opportunity, provided by law, to attempt to controvert.
2. Appellant asserts that the trial court erred in rendering partial summary judgment for appellee because its findings that no genuine issue of fact existed as to certain matters was based upon evidence that was not admissible within the meaning of OCGA § 9-11-56(e).
In particular, the trial court's order reflects "[t]he [c]ourt finds that facts to be as set out in [d]efendant's brief." It is well settled that unsupported factual assertions in briefs cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga.App. 845, 847, 366 S.E.2d 223. Among those facts in defendant's brief adopted by the trial court and clearly relied upon in the court's grant of partial summary judgment to appellee/defendant were the purported facts that
Exhibit I is a letter from appellant's assistant property manager to appellee's owner. This letter and certain other correspondence were attached to the affidavits submitted by appellant and appellee. The letter pertinently states: Certain other correspondence thereafter made reference to this letter and to concessions therein made.
Appellee asserts that because appellant raised no objections to the affidavits or letters in the trial court, he may not raise this issue for the first time on appeal. See generally Chapman v. McClelland, 248 Ga. 725, 726, 286 S.E.2d 290; Morris v. Southern Bell Tel., etc. Co., 180 Ga.App. 145, 348 S.E.2d 573. This case is distinguishable from Chapman where certain specific affidavits were involved....
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