Sands v. Lamar Properties, Inc.
Decision Date | 08 September 1981 |
Docket Number | No. 62144,62144 |
Citation | 285 S.E.2d 24,159 Ga.App. 718 |
Parties | SANDS et al. v. LAMAR PROPERTIES, INC. |
Court | Georgia Court of Appeals |
Charles A. Mathis, Jr., Macon, for appellants.
George C. Grant, Cubbedge Snow, Macon, for appellee.
Motion to Dismiss Appeal. The twelve named appellants are trustees of the real property of Steward Chapel African Methodist Episcopal Church. Steward Chapel is the owner of certain real property in Macon. Lamar is the sublessee. The church leased this property in August, 1959 for a term of 20 years with right of renewal. Between August, 1959 and October, 1962 the lease was assigned through intermediate lessees to the appellee Lamar Properties. Lamar erected a substantial building on the leased land. The lease provided for six (6) ten year lease renewals at the expiry of the original 20-year term. The rental was to be recomputed at the time of the renewals based upon an application of the Consumer Price Index. In January, 1979 Lamar indicated its intent to exercise its right to the first ten-year renewal by written communication to Steward Chapel. Lamar submitted an increased rental (from $150 per month to $364.65) based upon an application of the current CPI in comparison with that of 1959. Steward Chapel brought a declaratory judgment action seeking a declaration of rights under the lease, contending that the rental adjustment portions of the lease were vague, indefinite and unenforceable notwithstanding the Church had accepted rental payments for twenty years under that lease. Lamar sought a counter declaratory judgment concerning its rights under the lease in view of the building it had erected on the property.
The trial court entered a pretrial order in October, 1980 seeking to refine any issues of fact and offering the parties a jury trial of those issues. The parties did not contest the facts and the trial court conducted a hearing on the declaratory petitions in December, 1980. In its order granting declaratory judgment to Lamar Properties, the trial court declared the lease validly to have been renewed. It stated in its order that the facts were not in dispute and the only issue between the parties was their differing contention of the legal conclusions based upon the undisputed facts. The declaratory judgment was entered on December 22, 1980. Appellants, trustees of Steward Chapel, submitted a motion for new trial, as amended, on January 21, 1981. This motion for new trial was denied on January 29, 1981. Appellants filed their notice of appeal on March 2, 1981, a timely filing within the required thirty days following the denial of the motion for new trial inasmuch as the 30 days expired on a Saturday. Appellee Lamar, however, has moved this court for a dismissal of the appeal on the ground that the notice of appeal was filed more than 30 days after the entry of final judgment (the declaratory judgment) on December 22, 1980 and that the filing of a motion for new trial did not have the effect of extending the time within which to file the notice of appeal. Lamar's contention is the entry of declaratory judgment was a determination of law based upon uncontested facts (the same as a summary judgment) and therefore like a summary judgment was not amenable to a motion for new trial which traditionally contemplates, in essence, a reconsideration of issues of fact leading to a verdict, or of errors of law which lead a fact finder to an erroneous verdict. Held:
The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. Jordan v. Caldwell, 229 Ga. 343, 191 S.E.2d 530; Camp v. Hamrick, 139 Ga.App. 61, 228 S.E.2d 288. Steward Chapel's notice of appeal was not filed within 30 days of the entry of declaratory judgment and unless the motion for new trial was a proper vehicle to extend the time for filing the notice of appeal, the notice filed in this case was not timely filed and deprives this court of any jurisdiction to consider this case on the merits of the appeal. Lewis & Sheron Enterprises v. Great A & P Tea Co., 136 Ga.App. 910, 222 S.E.2d 659.
The parties are in agreement that a declaratory judgment is such a final judgment that a notice of appeal may be taken therefrom. The only real procedural issue is whether the motion for new trial tolled the running of the 30 days in which to file a notice of appeal therefrom. Appellant trustees of Steward Chapel argue that there were issues of fact as to the proper application of the CPI because there had been so many changes in the manner of calculating the CPI between the date of the lease in 1959 and the time of the renewal of the lease in 1979. The trial court in its order granting declaratory judgment to Lamar stated that the facts were undisputed and no factual issues were involved in the judgment. Our examination of the record convinces us that what appellants argue as contested facts are in reality the trial court's conclusions of legal results emanating from the undisputed facts. While appellant may disagree with the trial court's legal conclusions, we are constrained to conclude that appellant has pursued the wrong channel of appeal. " " Barber v. Barber, 157 Ga. 188(1), 121 S.E. 317. In the Barber case, involving...
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