Kusuma v. Metametrix, Inc.

• Decision Date: 05 April 1989
• Docket Number: No. A89A0022,A89A0022
• Citation: 381 S.E.2d 322,191 Ga.App. 255
• Parties: KUSUMA v. METAMETRIX, INC. et al.
• Court: Georgia Court of Appeals

Page 322

381 S.E.2d 322

191 Ga.App. 255

KUSUMA v. METAMETRIX, INC. et al.

No. A89A0022.

Court of Appeals of Georgia.

April 5, 1989.

William Edmund Burke, for appellant.

Emily Sherwinter, for appellees.

BIRDSONG, Judge.

Appellant landlord appeals the state court's order granting summary judgment to appellee tenant.

Appellees entered into a lease for a term of five years with Carlco Properties, Inc. Carlco subsequently sold the leased property to appellant, and assigned its rights under the lease to appellant as part of its sales transaction. The lease expressly provided that "[t]ime is of the essence of this agreement." It thereafter included a certain pertinent special stipulation, as follows: "In so far as the following stipulations conflict with any of the foregoing provisions, the following shall control: ... 4. In the event Dr. Neil Summerman [sic] should vacate suite 6 of 3700 building, Holcomb Bridge Road--Metametrix may elect to cancel this lease." (Emphasis supplied.)

On July 1, 1986, Dr. Sommerman vacated the premises; however, before Dr. Sommerman's departure, a Dr. Bernard Mlaver also began to practice medicine at suite 6. On or about November 30, 1987, appellees gave appellant written notice of intent to terminate or rescind the lease. On January 1, 1988, appellees vacated the premises. Appellant brought suit to collect past due rents and damages for breach of the lease.

Appellant's sole enumeration of error is that the trial court erred in granting summary judgment to appellee. Held:

1. "In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion." (Emphasis supplied.) Peterson v. Liberty Mut. Ins. Co., 188 Ga.App. 420, 422, 373 S.E.2d 515.

2. Appellant asserts that special stipulation 4 relied upon by appellees is ambiguous, particularly as to the meaning of the term "vacate."

The existence or non-existence of an ambiguity is itself a question of law for the court. Capital Ford Truck Sales v. U.S. Fire Ins. Co., 180 Ga.App. 413, 417-418, 349 S.E.2d 201; accord McClintock v. Wellington Trade, 187 Ga.App. 898, 902, 371 S.E.2d 893. A jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court's application of the statutory rules of construction set forth in OCGA § 13-2-2 (id.), and this rule applies even though the contract is "difficult to construe." Webster v. Star Distrib. Co., 241 Ga. 270(b), 244 S.E.2d 826. Words in a contract generally bear their usual and common signification with certain exceptions not here applicable. OCGA § 13-2-2. "A word or phrase is ambiguous 'when it is of uncertain meaning and may be fairly understood in more ways than one.' [Cit.] Language which is unambiguous will not be construed as ambiguous based on extrinsic circumstances." Walton v. Datry, 185 Ga.App. 88, 94(5)(a), 363 S.E.2d 295. Ambiguity cannot be created merely by ingenuity of counsel. Special stipulation 4 when construed in its entirety clearly provides on its face that if Dr. Sommerman gave up suite 6, or left, moved out or similarly ceased to occupy the premises, that appellees would have the right subsequently to terminate the contract. Special stipulation 4 is not ambiguous. We find this assertion to be without merit.

3. Appellant asserts that a genuine issue of fact exists regarding whether appellees waived special stipulation 4 by conduct or delay. The stipulation clearly operates to the exclusive benefit and protection of the appellees. Moreover, as stipulation 4 was not in conflict with, it was therefor subject to, the unrestricted time of the essence clause of the lease agreement. See Giddens Constr. Co. v. Fickling, etc., Co., 188 Ga.App. 558, 373 S.E.2d 792, reversed on other grounds, 258 Ga. 891, 376 S.E.2d 655.

The record establishes that the appellees/movants did not terminate the lease, pursuant to the authority of special stipulation 4, until approximately 18 months following Dr. Sommerman's quitting of the premises. As appellees remained in lawful possession of the premises during that time, the reasonable inference to be drawn is that tender of rent was timely made and accepted at least until appellees tendered notice of termination to appellant.

As a general rule, "a party to a contract may not waive stipulations in favor of the other party, or rights to which the other party is entitled...." 17A C.J.S., Contracts, § 491a. However, such provisions may be waived by the conduct of both parties intended to result in the "mutual disregard" of, or "mutual departure" from the contract terms. See generally OCGA § 13-4-4; Southern Feed Stores v. Sanders, 193 Ga. 884(3), 20 S.E.2d 413; Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695(4), 58 S.E. 200; Prudential Ins. Co. v. Nessmith, 174 Ga.App. 39, 329 S.E.2d 249; Crawford v. First Nat. Bank, etc., 137 Ga.App. 294, 295, 223 S.E.2d 488. The question whether the parties' mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury. Southern Feed Stores, supra 193 Ga. at 887, 20 S.E.2d 413; Crawford supra 137 Ga.App. at 295, 223 S.E.2d 488. It is equally well-recognized that a party to a...