Kiriakides v. United Artists Communications, Inc.

• Decision Date: 06 November 1991
• Docket Number: No. 1744,1744
• Citation: 307 S.C. 72,413 S.E.2d 850
• Court: South Carolina Court of Appeals
• Parties: Alex KIRIAKIDES, Jr., and John Kiriakides, Appellants, v. UNITED ARTISTS COMMUNICATIONS, INC., Respondent. . Heard

Page 850

413 S.E.2d 850

307 S.C. 72

Alex KIRIAKIDES, Jr., and John Kiriakides, Appellants, v. UNITED ARTISTS COMMUNICATIONS, INC., Respondent.

No. 1744.

Court of Appeals of South Carolina.

Heard Nov. 6, 1991.

Decided Jan. 6, 1992.

Edward M. Woodward, Jr. of Woodward, Leventis, Unger, Herndon & Cothran, Columbia, for appellants.

James H. Cassidy and V. Clark Price of Love, Thornton, Arnold & Thomason, Greenville, for respondent.

PER CURIAM:

This action was commenced by Plaintiffs-Appellants, Alex Kiriakides, Jr. and John Kiriakides (Landlords) against Defendant-Respondent, United Artists Communications, Inc. (New Tenant) seeking an ejectment. The issues were submitted to a jury which found in favor of the New Tenant, the effect of which was to leave this Tenant in possession of the rented properties and continue the lease agreement. The trial judge denied motions of the Landlords for a directed verdict and for judgment notwithstanding the verdict. The Landlords appeal these rulings. We reverse and remand.

FACTS

On January 15, 1976, the Landlords entered into a lease agreement with Fairlane Litchfield Company, Inc. (First Tenant) for a period of twenty years. Thereafter the lease was amended to provide additional years with further options to renew to the year 2016. Apparently, payments were made without event by this First Tenant--Fairlane.

On May 15, 1987, the First Tenant assigned the lease to the New Tenant, United Artists Communications, Inc., a Maryland corporation whose address on the lease is indicated as "2545 Hempstead Turnpike, East Meadow, New York 11554."

In February 1988, the Landlords advised the New Tenant by letter that increased additional rent was due. The letter was apparently ignored and one year later, on February 9, 1989, the Landlords addressed a letter to the New Tenant, not at the New York address as indicated on the assignment, but to "60 Craig Road, Montvale, New Jersey 07645" advising the New Tenant that if payment was not made within ten days "... we are going to regretfully exercise our rights under the lease."

Section 16 of the lease provides that if the New Tenant fails to make any payment of any installment of rent or other sum required to be paid, the Landlords may, upon giving ten days written notice of such failure to make payment, terminate the lease.

Section 25 of the lease in relevant part provided as follows:

NOTICES. All notices, demands, requests and other instruments which may, or are required to be given by either party to the other under this lease shall be in writing and shall be deemed to have been properly given when deposited in the United States mail (as determined by the postmark) in certified or registered form, return receipt requested, postage prepaid, addressed to such party at its address as set forth at the beginning of this lease or at such other address as shall theretofore have been designated by such party by written notice to the other.

The February 9, 1989, letter was addressed to the New Tenant at the New Jersey address. It is described by the New Tenant's own witness as "... our accounting office." The letter was received in New Jersey on the 16th and was received in the New York office on the 17th. Rent, admittedly due, was not forthwith coming within the ten day period nor until March 3rd, the day on which this action for ejectment was commenced by service of the Summons and Complaint at the New Jersey office.

ISSUES

The issues submitted to the jury as stated by the judge were "... whether or not the Defendant [New Tenant] has breached the contract, that is the lease, and whether or not Mr. Kiriakides complied with the notice provision."

LAW/ANALYSIS

In its Answer the New Tenant submitted, among other defenses, that if the lease was broken termination would be inequitable under the facts of the case. Counsel for the Landlords admits "[i]f Landlord is successful on that issue, the question of unconscionability and to what extent...