Southeast Reducing Co., Inc. v. Wasserman, A97A1444
| Citation | 493 S.E.2d 201,229 Ga.App. 1 |
| Decision Date | 08 October 1997 |
| Docket Number | No. A97A1444,A97A1444 |
| Parties | , 97 FCDR 4425 SOUTHEAST REDUCING COMPANY, INC. et al. v. WASSERMAN. |
| Court | United States Court of Appeals (Georgia) |
William E. Hicks, Robert M. Gardner, Jr., Winder, for appellants.
Friedman & Montalto, Atlanta, Jill A. Barker, for appellee.
Norman Wasserman as lessor sued Southeast Reducing Company, Inc. (Southeast), James Mathews and Nancy Mathews as lessees alleging the defendants breached a commercial lease agreement. All three defendants filed answers denying liability and bringing counterclaims for breach of the lease and fraud. The trial court granted Wasserman's motion for summary judgment on his complaint against all three defendants and on all the defendants' counterclaims and entered judgment in favor of Wasserman in the amount of $55,571.70 for the amount due under the lease. 1 All three defendants appeal.
In reviewing the trial court's grant of Wasserman's motion for summary judgment, we construe the evidence and all reasonable presumptions and inferences arising therefrom in favor of the non-movants. Jenkins v. Hall, 226 Ga.App. 437, 438, 487 S.E.2d 66 (1997).
In support of summary judgment, Wasserman produced a lease agreement under which he, as lessor, leased commercial space for use as a weight loss clinic. The lessees under this lease were Southeast (by James Mathews as president), James Mathews and Nancy Mathews. The lease term commenced on August 1, 1987, and ended on September 15, 1992. It provided for monthly rent in the amount of $1,915.52 and included a provision for the lessor to provide up to $41,000 to construct improvements to the premises. Wasserman stated by affidavit that the lessees breached this lease when they failed to make monthly rent payments in January, February and March 1991 and abandoned the premises without further payment of rent on March 3, 1991. 2 The affidavit calculated the total amount due under the terms of the lease through the September 15, 1992 expiration date as $55,571.70.
The defendants provided affidavits in response to the motion. James Mathews stated by affidavit that the lease relied upon by Wasserman and signed by all three defendants (the Wasserman lease) was voided by the parties after it was agreed that his wife, Nancy Mathews, would have no personal liability as a lessee. He stated that, after the Wasserman lease was voided, a second lease (the Mathews lease) was agreed upon and signed by Wasserman as lessor and by Southeast (by James Mathews as president) and James Mathews as lessees. The Mathews lease was produced in response to the motion and showed the same commencement date as the Wasserman lease (August 1, 1987), but a different expiration date of July 31, 1991. The Mathews lease also differed in that it provided for less monthly rent in the amount of $1,619.52 in addition to a provision that the lessor would provide up to $21,300 to construct improvements to the premises. He stated that the first month's rent and a security deposit of one month's rent, both in the amount of $1,619.52, were paid in accordance with the Mathews lease.
James Mathews further averred that after the Mathews lease was entered into, the parties agreed in October or November 1987, to increase the monthly rental to $1,915.52 (the same rental amount as the Wasserman lease), and that a third lease was entered into by the parties to reflect the change in the monthly rent. He purports to produce a single page from the third lease showing monthly rent due of $1,915.52. The page, except for initials at the bottom, appears identical to page 2 of the 11 page Wasserman lease. The rest of the alleged third lease, including evidence of all of its remaining terms and signatories, is nowhere to be found in the record. The affidavit also states that Wasserman failed to pay for improvements to the premises as agreed. Mr. Mathews admitted that the lessees vacated the premises in March 1991.
Nancy Mathews' affidavit also states that the Wasserman lease which she signed was voided by all the parties. She also contends that the Wasserman lease was the first lease agreement and that it was superseded by a second lease agreement, the Mathews lease, to which she was not a party. However, contrary to James Mathews and Southeast, she makes no reference to a third lease and states that the Mathews lease "accurately reflects the relationship between all parties concerning the lease of the premises."
Wasserman provided additional affidavits in response to these claims in which he explained that in August 1987, he initially signed the Mathews lease which was signed by lessees Southeast and James Mathews. He stated that a second lease agreement, the Wasserman lease, was subsequently negotiated by the lessees with him and executed in or about August 1987, by him and lessees Southeast and James and Nancy Mathews. He further stated that beginning with the October 1987 payment, the parties began operating under the Wasserman lease. He stated that he paid the sums due under the lease for improvements to the premises. The record also shows rent checks to Wasserman from the lessees from 1987 to 1991, reflecting payments for monthly rent in the amount due under the terms of the Wasserman lease.
1. James Mathews and Southeast claim that the applicable lease is not the Wasserman lease or the Mathews lease but a third lease which they failed to produce. It may be inferred from James Mathews' affidavits that he claims this third lease retained an expiration date of July 31, 1991; that it was not signed by Nancy Mathews; and that it materially varied from the Mathews lease only in the increase of monthly rent from $1,619.52 to $1,915.52. We conclude, however, that the failure to produce the third lease or to explain its absence is fatal to any consideration of the evidence of it supplied by affidavit in opposition to summary judgment.
OCGA § 24-5-2. OCGA § 24-5-21; see Miller v. Steelmaster Material Handling Corp., 223 Ga.App. 532, 534-535, 478 S.E.2d 601 (1996); OCGA § 24-5-4. James Mathews made no attempt to explain the absence of the claimed third lease or to show he exercised any diligence to find it. Accordingly, the evidence he presented in support of the claimed third lease was of no probative value in response to the motion.
In the absence of any probative evidence of the terms of the claimed third lease agreement, James Mathews' testimony is contradictory. He claims that the Wasserman lease calling for monthly rent of...
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