Pettit v. Gray

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG; POPE, C.J., and ANDREWS
• Citation: Pettit v. Gray, 439 S.E.2d 673, 211 Ga.App. 439 (Ga. App. 1993)
• Decision Date: 22 November 1993
• Docket Number: No. A93A1981,A93A1981
• Parties: PETTIT v. GRAY et al.

Page 673

439 S.E.2d 673

211 Ga.App. 439

PETTIT v. GRAY et al.

No. A93A1981.

Court of Appeals of Georgia.

Nov. 22, 1993.

Reconsideration Denied Dec. 16, 1993.

Certiorari Denied Feb. 3, 1994.

Hine, Niedrach & McClellan, John F. McClellan, Jr., Rome, for appellant.

Mark J. Pettit, pro se.

Chance, Maddox & Smith, J.C. Maddox, Suzanne H. Hutchinson, Calhoun, for appellees.

BIRDSONG, Presiding Judge.

Mark Pettit appeals the grant of summary judgment to Susie Gray and Calhoun Outlet Center Limited Partnership in his suit seeking specific performance, injunctive relief and damages, arising out of Gray's termination of Pettit's ground lease of billboard property. Pettit contends that he and Gray entered a five-year ground lease, at a rent of $700 per year, payments to be made annually; that he was not in default under the lease and that he paid the rent as soon as he got Gray's termination notice. He had declared bankruptcy three months prior to termination of the lease for nonpayment of rent, and listed the lease as an exempt property interest. He contends Gray terminated the lease because she intended to sell, and did sell, the property unencumbered to Calhoun Outlet Center.

Pettit contends that as there was no provision in the lease stating the date each annual payment was to be made, he was not in default, and that the equities of the parties should be considered by a jury. Appellees argue that as the bankruptcy trustee never assumed the lease, Pettit had no interest in the property after Gray terminated the lease and returned Pettit's tardily-tendered payment. Held:

We find independent reasons sustaining the trial court's grant of summary judgment to appellees. The lease agreement states no date for the yearly payment and is silent as to the lessor's right to terminate upon nonpayment. It is unenforceable under the statute of frauds as to material terms which are not specifically stated in the contract, or which have not been performed in accordance with part performance as established by the parties. See OCGA §§ 13-5-30(4); 13-5-31. To comply with the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol. F.C. Brooks & Sons v. Shell Oil Co., 226 Ga. 435, 175 S.E.2d 557. To be valid and to authorize specific performance, a contract conveying an interest in land, including a lease (Newton v. Allen, 220 Ga. 681, 141 S.E.2d 417), must be certain enough to enable either party to enforce it according to its terms. See Powell v. Adderholdt, 230 Ga. 211, 196 S.E.2d 420; Morgan v. Hemphill, 214 Ga. 555, 105 S.E.2d 580; Pierce v. Rush, 210 Ga. 718, 82 S.E.2d 649; Peacock v. Horne, 159 Ga. 707, 126 S.E. 813. The failure of the parties to agree to specifics of payment is fatal to the contract where it is sought to be enforced on that issue. Zappa v. Basden, 188 Ga.App. 472, 373 S.E.2d 246.

The writing, executed December 12, 1989, provides that the lease was "for a term of five (5) years beginning December 15, 1989.... The consideration for the lease contract is the sum of Seven Hundred Dollars ($700) per year, rental, payable by Lessee annually." Nothing in the lease contemplates that the lessee might fail to pay the rent "annually," or what the lessor's remedy might be if the lessee failed to pay the rent "annually." Pettit contends he paid the first annual payment at the inception of the lease (December 15, 1989). If he was to comply with the terms of the contract and pay "annually," he must pay on December 15 of each year for the term of the lease. He contends he paid the second annual payment in late December of 1990; whatever day he paid it, he evidently paid it on December 15, for judging the evidence in Pettit's favor as respondent on motion for summary judgment (Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474), we must assume he paid the second payment "annually." Nothing to the contrary appears.

If Pettit were to comply with the terms of the lease as far as they can be determined and as the parties had established by their conduct, he had to pay "annually," that is, on December 15. Gray terminated the lease on December 17, 1991, for nonpayment of rent. The payment of $700 "annually" was an express consideration of the agreement. When Pettit failed to pay the rent "annually," that is, by December 15, 1991, he was in default, and the consideration for the lease "agreement" (such as it was) failed. The agreement does not provide that he was entitled to retain...