As thеse appeals arise from the same action below and concern the same lease, they have been consolidated for disposition on appeal. Both appellants generally contend the trial court construed the contract improperly.
The record shows that in 1972 Edwin W. Carson and John A. G. Carson leаsed property known as Sail Harbor Marina to Baker Yachts, Inc., for a period of ten years. The lease also contained a provision granting the lessee two options for successive ten-year terms. The parties agree, however, that this provision was unenforceable because the option prоvision did not contain the terms of the options, and thus was merely an agreement to agree. In 1977, however, for $6,000 consideration the Carsons agreed to an amendment to the lease that, in effect, extended the lease from May 1982, through April *162 1992.
Thereafter, all the stock of Baker Yachts was sold to George Archer and Robert D. Nоble, and Archer and Noble operated the Sail Harbor Marina under the lease. Subsequently, Archer and Noble as Baker Yachts assigned the lease to DBL, Inc., and DBL сontinued operation of the marina under the lease. After the death of their father John A. G. Carson, Sue Woodley, Brenda C. Rotureau and Carol C. Bauman inherited his sharе of the leased property.
The controversy giving rise to this litigation began in 1992 when DBL advised the lessors that it intended to exercise a second option that would extend the lease until 2002. At this point, the lessors advised DBL that there was no second option because the lease provision DBL relied upon was merely an unenforceable agreement to reach an agreement. Thereafter, DBL, Inc. filed a petition for specific performance of the option provision, and after the lessors answered the petition and filed a counterclaim for a declaratory judgment, Archer and Noble intervened in the action as defendants to the counterclaim.
Subsequently, DBL dismissed the specific performance claim and by agreement the declaratory judgment action was tried by the court without a jury. Thеreafter, based upon the lease as amended and testimony of the parties, the trial court found that there was ho enforceable second optiоn period. DBL, Inc. and Archer and Noble filed appeals.
Archer and Noble contend the trial court erred by assuming that an ambiguity existed in the lease as amended, еrred by failing to apply appropriate rules of contract construction to the 1977 amendment to the lease, erred by failing to construe the lease against the lessor, erred by finding that Archer and Noble personally guaranteed the leasehold obligations of DBL, and erred by finding the 1977 amendment to the lease was not drafted on behalf of the Carsons.
The original 1972 contract clause on the option provides: “Lessors hereby grant to lessee options to renew this lease at separate times for two additional and successive ten (10) year periods beyond the 1st day of May, 1982, upon the same conditions as are set forth herein with the exсeption of the amount of rent to be paid, which amount shall be negotiable. PROVIDED HOWEVER, in order to exercise said options lessee shall be required to give lessors nоt less than ninety (90) days notice in writing prior to the end of the then current term of its desire to renew this lease, and if during said ninety (90) day period, or during any extension thereof, the lessоrs and the lessee have not agreed upon the rent to be paid, this lease shall automatically terminate.” The parties agree that, as written, this provision wоuld have been unenforceable.
The 1977 “Amendment and Supplement to Lease Agreement,” *163 however, amended paragraph 3 of the original lease by adding “commencing on the 1st day of May, 1982, the lessee shall pay to the lessors as rent, the sum of $1,600.00 per month for a period of 5 years from the date of commencement. It is further agreed commencing on the 1st day of May, 1987, the lеssee shall pay to the lessors as rent, the sum of $1,800.00 per month for a period of 5 years, terminating April 30, 1992. . . .
“The parties hereto agree and declare that all рrovisions in the original lease that are in conflict with the provisions contained in this instrument to be null and void. All remaining parts and provisions of said original contract to remain in full force and effect.
“The parties further agree that the original lease is amended as follows: By adding a new paragraph after paragraph 23 оn page 9, the new paragraph numbered 23-A to read as follows: ‘23-A. Lessors hereby grant to lessee an option to renew this lease for an additional ten (10) yeаrs beyond May 1, 1992, upon the same conditions as are set forth or amended. PROVIDED, HOWEVER in order to exercise said option, lessee shall be required to give lessors not less thаn ninety (90) days notice in writing, prior to May 1, 1992, of its desire to renew this lease.”
The trial court assumed, but did not decide, that the lease and amendment were ambiguous and applied the rule of contract construction that the intention of the parties was paramount. The trial court determined the intention of the parties by receiving parol evidence on this issue and found that the lessors’ evidence was more persuasive. Based upon this evidence, the trial court concluded there was nо valid option to renew the lease and that the lease terminated on April 30, 1992. Held:
1. Whether a contract is ambiguous is a question of law for the court, but if the court determines that there is an ambiguity, this does not mean that a jury issue is present. It is only after the court finds an ambiguity and unsuccessfully attempts to resolve the ambiguity through application of the rules of contract construction (see OCGA § 13-2-2) that a question of fact exists.
Capital Ford Truck Sales v. U. S. Fire Ins. Co.,
2. Moreover, contrary to the allegations of the lessors and the conclusion of the trial court, the option provision in the 1977 amendment to the lease is not ambiguous. This paragraph states “lessors hereby grant to lessee an option to renew this lease for an additional ten (10) years beyond May 1, 1992, upon the same conditions as are set forth or amended.” Ambiguity is “ ‘duplicity, indistinctness, an uncertainty of meaning or expression.’ ”
Tarbutton v. Duggan,
3. In view of our disposition in Divisions 1 and 2, appellants’ contentions regarding the trial court’s other errors in construction of thе contract are moot.
4. Regarding the trial court’s conclusion that Archer and Noble orally personally guaranteed the lease obligations of DBL, Inc., such oral guaranties are unenforceable. OCGA § 13-5-30 (2).
Judgments reversed.