Aрpellant Howell Mill/Collier Associates appeals the final order and judgment in this case, and enumerates several errors pertaining to the trial court’s grant, without motion, of partial summary judgment to appellee/defendant as to aрpellant/plaintiff’s complaint, and asserts that the trial court also erred by denying it the opportunity to be heard in connection with the rendition of summary judgment.
Appellant/plaintiff leased store space to appellee/defendаnt in a shopping center. Subsequently, appellant’s agent claimed that appellee was in breach of contract by failing to pay rent in accordance with the terms of the lease, and made a demand for immediate possеssion of the premises. Demand for possession allegedly was made by appellant not in termination of the lease, but in accordance with options therein provided. Appellee’s president responded by asserting that the leasе was now rendered null and void, and stated its intent to relinquish possession of the premises subject to receipt of a certain legal document. Appellee, however, did not immediately vacate the premises. The record reflects thе trial court denied appellant’s motion for summary judgment, and in doing so entered various findings and conclusions. Among the trial court’s conclusions were that appellant breached the lease agreement by demanding rental payments and immediаte possession of the premises, and by evicting appellee by taking the keys to the premises at times when no rents were due; and, that appellee under such circumstances had the right to rescind the contract. Held:
1. Appellant asserts that the trial court denied it an adequate opportunity to address the proposition that there is no genuine issue of material fact to be tried, and that the party to whom summary judgment is rendered, without motion, is entitled to such an opportunity as a mаtter of law.
The record does not disclose that the trial court expressly granted partial summary judgment to appellee in its order filed September 10, 1987. However, the effect of this order, which denied appellant’s motion for summary judgment, clearly included a grant of partial summary judgment to appellee as asserted. There is no magic in nomenclature; thus, in classifying the order of a trial court, we will construe it to serve the best interests of justice, judging the order by its function rather than by its name. See
Frost v. Frost,
It is well-settled that summary judgment can be granted to a non-moving party provided the grant is proper in all other respects.
Golston v. Garigan,
In
Cruce v. Randall,
supra at
In this case, the issues contained in appellant’s motion for summary judgment and those inherently contained in a grant of partial summary judgment to appellee substantially were not the same. For example, appellant’s motion did not contain any direct issues of contract rescission or constructive eviction, and such issues could not readily be discerned from the posture of admissible evidence of record either in support of or in opposition to appellаnt’s motion. Hence, appellant had inadequate notice within the meaning of Cruce u. Randall, and the trial court erred in sua sponte granting summary judgment without first placing appellant on adequate notice thereof so that he could meet and attempt to controvert the assertions inherently contained in such a grant. We decline to speculate regarding what particular defenses appellant might also have raised in view of appellee’s conduct in subsequently retaining possession of the premises after sending its letter asserting a qualified acquiescence, without *171 protest, in response to appellant’s initial demand for immediate possession. Suffice it to say appellant in this instance has been denied the оpportunity, provided by law, to attempt to controvert.
2. Appellant asserts that the trial court erred in rendering partial summary judgment for appellee because its findings that no genuine issue of fact existed as to certain matters was basеd upon evidence that was not admissible within the meaning of OCGA § 9-11-56 (e).
In particular, the trial court’s order reflects “[t]he [c]ourt finds the facts to be as set out in [d]efendant’s brief.” It is well settled that unsupported factual assertions in briefs cannot be considerеd in the appellate process.
Behar v. Aero Med Intl.,
Exhibit I is a letter from appellant’s assistant property manager to appellee’s owner. This letter and certain other correspondence were attached to the affidavits submitted by appellant and appellee. The letter pertinently states: “According to the lease, rental commencement is 30 days from occupancy or date [t]enant opens for business. Since there is so much confusion in the actual rental commencement date, we will agree with you and acknowledge the effective date of the lease to be October 20, 1985.” Certain other corrеspondence thereafter made reference to this letter and to concessions therein made.
Appellee asserts that because appellant raised no objections to the affidavits or letters in the trial court, he mаy not raise this issue for the first time on appeal. See generally
Chapman v. McClelland,
*172
Appellee contends that the information contained in the correspondence constituted an admission of the plaintiff. “[J]udicial admissions [which may include admissions in pleadings, stipulations, affidavits, and other documents and trial conduct of the parties] define the issues in the suit. . . . They are conclusive, and as such, they should be clearly distinguished from admissions introduced as evidence.” Green, Ga. Law of Evidence (2d ed.), Admissions § 238, p. 393. Hоwever, “[a]n admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact. Thus, allegations which are conclusory, or whiсh assert mere opinions of the pleader are not admissions in judicio. There may be an admission in judicio as to the existence of a legal relationship between the parties, but not concerning the effect of such relationship, as this would be a legal conclusion.” Id. at p. 394. The rule pertaining to admissions in pleadings or other admissions in judicio are not applicable “where the admission is merely the opinion on the part of the party making it as to the legal effect оf the instrument sued on, since it is the rule that ... to recover on the contract set out therein, the fact that the plaintiff may have erroneously
construed
the contract sued on would not operate to effect a dismissal of the action.” (Emphasis supplied.)
Clift & Goodrich v. Mincey Mfg. Co.,
In view of our holding we need not determine whether the opinions and conclusions contained in the letter further constituted a “proposition . . . made with a view to a compromise” within the meaning of OCGA § 24-3-37.
3. As our above holdings result in the reversal of judgment in this case, it is necessary in the interest of judicial economy to construe the rental commencement date of the lease, as it appears that the trial court will again be faced with this issue.
The lease pertinently provides: “RENTAL COMMENCEMENT *173 DATE: Either (i) September 1, 1985 or (ii) thirty (30) days following the date on which the [p] remises are [r]eady for [o]ccupancy or the date upon which [t]enant opens the [premises to the [p]ublic, whichever shall first occur.” (Emphasis supplied.)
This particular clause of the lease is not ambiguous. Under the terms of this clause, the rental commencement date is September 1, 1985, as the improvements required to make the premises ready for occupancy apparently were not completed until September 20, 1989. Though having to resort to use of a magnifying glass to examine the multi-paged, mini-printed copy of the lease found in this record, we find no other provisions of the written lease that purport to modify the above discussed clause pertaining to rental commencement date. Moreover, the lease expressly provides that “[t]his lease contains the entire agreement between the parties and no agreement, representation or inducement shall be effective to change, modify or terminate this lease in whole or in part unless in writing and signed by the parties.”
“Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.”
Health Svc. Centers v. Boddy,
In view of our holdings in Divisions 1 and 2 above, appellant’s remaining enumerations of error need not be addressed.
Judgment reversed.