Singh v. Sterling United, Inc.

• Decision Date: 22 September 2014
• Docket Number: A14A0441.,Nos. A13A2104,s. A13A2104
• Citation: 326 Ga.App. 504,756 S.E.2d 728
• Court: Georgia Court of Appeals
• Parties: SINGH v. STERLING UNITED, INC. Singh v. Sterling United, Inc.

326 Ga.App. 504

756 S.E.2d 728

SINGH

v.STERLING UNITED, INC.

Singh

v.Sterling United, Inc.

Nos. A13A2104, A14A0441.

Court of Appeals of Georgia.

March 24, 2014.

Certiorari Denied Sept. 22, 2014.

Miles Patterson Hansford Tallant, Lauren Clipp Giles, Dana B. Miles, Cumming, for Appellant.

Mary Trachian-Bradley, Atlanta, Steven Jay Strelzik, for Appellee.

McMillian, Judge.

Inderjit Singh owns a tract of commercial property in Forsyth County. Singh leased a portion of that property to Sterling United, Inc., which operated a gas station and convenience store thereon. After Singh filed a dispossessory action in magistrate court, Sterling United counterclaimed for breach of contract and for specific performance of a purchase option, which Singh had granted to Sterling United under the lease. The magistrate court transferred the case to superior court, where Singh dismissed the dispossessory claim and asserted a breach of contract claim and sought a declaratory judgment against Sterling United.

Following a trial, the jury rendered a verdict for Sterling United on Singh's breach of contract claim and awarded Sterling United $1 in nominal damages and $266,218.09 in attorney fees and costs on its breach of contract claim. The jury also answered an interrogatory in connection with Sterling United's specific performance claim. The trial court, which had reserved ruling thereon, then ordered that the Purchase Option be enforced. The trial court later found Singh in contempt of court for failing to comply with its order that Singh provide certain information to Sterling United.

In Case No. A13A2104, Singh contends, among other things, that the trial court erred in concluding that the lease was clear and certain enough to permit an award of specific performance and in entering a judgment for attorney fees which included Sterling United's costs in defending Singh's action. For the reasons set forth below, we agree. In Case No. A14A0441, Singh contends that the trial court erred in finding him in contempt of court, denying his cross-motion to find Sterling United in contempt of court, and in clarifying the terms of the lease. We find that the trial court did not err in finding Singh to be in contempt, but that Singh's other claims are moot.

Case No. A13A2104

After a verdict is rendered, “all the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict.” (Citation and punctuation omitted.) Esprit Log & Timber Frame Homes, Inc. v. Wilcox, 302 Ga.App. 550, 550, 691 S.E.2d 344 (2010). So viewed, the evidence shows that Singh owns commercial property in Forsyth County. In 2004, Singh leased a portion of the property, consisting of a convenience store and gas station, to Sterling United for a ten-year term (the “Lease”). The Lease required, among other things, that Sterling United pay $8,000 a month in rent, and, contemporaneously with the execution of the Lease, purchase “the goodwill located at the Premises” for $350,000.

The Lease also granted Sterling United an option to purchase certain real property associated with the Lease (the “Purchase Option”).¹ The Purchase Option was prefaced with the condition “provided tenant is not in default,” and the option price was the fair market value of the “Property” as determined by an appraiser chosen by Singh. Upon closing of the Purchase Option, the parties agreed that the $350,000 Sterling United paid for the goodwill would be credited against the option price.

On March 14, 2011, Sterling United provided Singh with written notice that it was invoking its rights under the Purchase Option and that it intended to proceed with the closing. Consistent with the Purchase Option, Sterling United asked Singh to designatean appraiser to determine the fair market value of the property. After Sterling United sent a second letter to the same effect, Singh responded that Sterling United could not exercise the option because it was in default under the Lease.

On June 10, 2011, Singh filed a dispossessory action in magistrate court claiming that Sterling United was in breach of material terms of the Lease. In its answer, Sterling United denied Singh's claims and counterclaimed for specific performance of the Purchase Option as well as two counts of breach of contract. The magistrate court determined that it lacked jurisdiction over the case and transferred the matter to the superior court. Singh then filed an amended complaint setting forth claims for breach of contract and declaratory judgment, and he voluntarily dismissed his dispossessory claim. The case proceeded to trial.

In response to an interrogatory, the jury found that, as of March 14, 2011, Sterling United was not in default in performing any of the terms and provisions of the Lease. In its verdict, the jury found in favor of Sterling United as to Singh's breach of contract claim. The jury also found in favor of Sterling United on its counterclaim for breach of contract and awarded $1 as nominal damages and $266,218.09 in attorney fees and costs of litigation. The trial court incorporated the jury's verdict into its judgment and then, based on the jury's finding that Sterling United had not been in default, ordered Singh to sell the property to Sterling United pursuant to the Purchase Option.

On appeal, Singh claims that the trial court erred (i) in finding that the Lease was certain enough to be enforced by specific performance, (ii) in entering a judgment including both a decree of specific performance and nominal damages for breach of contract, (iii) in awarding attorney fees, (iv) in ruling that evidence of Sterling United's breach of the Lease after it exercised the Purchase Option was irrelevant, and (v) in requiring Singh to fully credit Sterling United, at closing, with rent paid from July 2011, until the date of trial.

1. As a threshold issue, Sterling United argues that this Court lacks jurisdiction over Singh's appeal because the notice of appeal was not filed within seven days of the entry of the trial court's judgment. OCGA § 44–7–56 is part of Article 3, Chapter 7 of Title 44, which governs dispossessory proceedings, and requires that as to “any judgment,” an “appeal shall be filed within seven days of the date such judgment was entered.” Here, Singh's notice of appeal was filed 21 days after entry of the judgment. See, e.g., Register v. Elliott, 285 Ga.App. 741, 743, 647 S.E.2d 406 (2007) (noting that “[t]he proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon an appellate court.” (citation and punctuation omitted)).

In determining the proper procedure to follow on appeal, “the underlying subject matter generally controls over the relief sought.” (Citation and punctuation omitted.) Ray M. Wright, Inc. v. Jones, 239 Ga.App. 521, 522, 521 S.E.2d 456 (1999). Thus, where “the action began and continued as a dispossessory action,” an appeal from any judgment in the action is required to be filed within seven days. Radio Sandy Springs, Inc. v. Allen Rd. Joint Venture, 311 Ga.App. 334, 335, 715 S.E.2d 752 (2011) (although the issue of possession had been resolved, the notice of appeal from the trial court's order awarding past due rent was required to be filed within seven days because the case retained its character as a dispossessory action); Ray M. Wright, Inc., 239 Ga.App. at 523, 521 S.E.2d 456 (appeal from order confirming arbitration award in dispossessory proceeding was required to be filed within seven days).

Nevertheless, a case which is initially filed as a dispossessory action will not always continue as a dispossessory action. For example, in America Net, Inc. v. United States Cover, 243 Ga.App. 204, 532 S.E.2d 756 (2000), we recognized that although an action was filed in the magistrate court as a dispossessory action, it was “possible for the parties to stipulate to the transfer of the contractual dispute to the state court, leaving the summary provisions of the dispossessory statutes behind.” Id. at 207, 532 S.E.2d 756.

In this case, after the magistrate court transferred the case to the superior court, Singh filed an amended complaint for breach of contract and declaratory judgment and dismissed his dispossessory claim. Thereafter, the litigation proceeded without reliance on the provisions of the dispossessory statute,² and Sterling United remained in possession of the property. Compare Ray M. Wright, Inc., 239 Ga.App. at 523, 521 S.E.2d 456 (finding that “not only did this action begin as a dispossessory proceeding instituted by Wright, but Wright continued to rely upon the provisions of the dispossessory statutes throughout the litigation”). Moreover, as in America Net, the underlying subject matter was no longer a dispute over immediate possession of the premises, once Singh dismissed the dispossessory claim. America Net, 243 Ga.App. at 207, 532 S.E.2d 756.

Accordingly, we conclude that this case did not retain its character as a dispossessory proceeding,³ and Singh was not required to file his notice of appeal within seven days of the judgment. See id. at 205, 532 S.E.2d 756 (finding limitations of OCGA § 44–7–56 did not apply, “particularly in view of our strong public policy to avoid the dismissal of an appeal and to reach the merits of a case whenever it is reasonable to do so”).

2. Turning to the merits of the appeal, Singh contends that the trial court erred in ruling that the Lease's Purchase Option was clear and certain enough to be enforced by specific performance. We agree.

In a pre-trial motion and later in his motion for directed verdict, Singh contended that Sterling United could not prevail on its counterclaim for specific performance of the Lease's Purchase Option because that contract did not specify the land to be sold with sufficient definiteness. The trial court denied the motions. “The adequacy of a property description is a legal question for the court.”...