On October 14, 1993, Mansell 400 Associates, L. P. and Entex Information Services, Inc. entered into a written commercial lease agreement whereby Mansell leased to Entex approximately 6,492 square feet of office space in Building 20 of a complex of buildings known as the Mansell 400 Businеss Center. The lease term was five years and two months, running from November 1, 1993 through December 31, 1998.
Paragraph 40 of the lease provided:
If Tenant is not nor has been in Default hereunder, thirty-two (32) months or forty-four (44) months, respectively, after the Lease Commencement Date, Tenant may notify Landlord in writing that it desires to expand the Premisеs by at least thirty-five percent (35%) and Landlord and Tenant shall enter into negotiations to expand or relocate the Premises within the Mansell 400 Business Center owned by Landlord. If Landlord does not have space to expand or relocate Tenant, then within ten days after Landlord notifies Tenant that there is no available space for Tenant to expand or relocate, Tenant may give notice of its intent to cancel this Lease one-hundred eighty (180) days after such notice (hereinafter called the “Cancellation Date”). On the Cancellation Date, Tenant shаll have complied with all terms and conditions of this Lease and shall pay to Landlord $60,220.32 if the Cancellation Date is during the thirty-eighth (38th) month of the Lease Term or $48,025.54 if the Cancellation Date is during the fiftieth (50th) month of the Lease Term. If the Premises are expanded or relocated as a result of the notice during the thirty-second month (32nd) of the Lease Term, then this paragraph shall be of no further force in effect during the Lease Term.
On June 26, 1996, during the 32nd month, Entex notified Man-sell that in accordance with paragraph 40 it desired to expand the leased premises by at least 35 percent. On July 5, Mansell responded contending that the First Amendment rendеred paragraph 40 of the original agreement inoperative. One month later Mansell conveyed a proposal for additional space (Suite 200 in Building 20) “conditioned on [an] existing tenant moving to other space they have identified.” The letter indicated Mansell was negotiating a lease termination with the existing tenant. On August 15, Entex notified Mansell in writing that it needed a firm commitment for additional space and that the terms offered by Mansell for the proposed expansion were not acceptable. Entex requested a reply no later than August 19 and stated, “If the issues set forth above cannot be resolved, we intend to exercise our termination option under paragraph 40 of the Lease.” Mansell’s reply four days later indicated the current tenant of Suite 200 had yet to cancel its lease. On August 21, Entex gave written notice of its intent to exercise its termination option. On September 23, Mansell gave formal notice that the tenant in Suite 200 agreed to move. Entex vacated the premises in early 1997.
Mansell filed suit for rent owing on the remainder of the original term of the lease or, in the alternative, for the cancellation fee, and moved for summary judgment on these grounds. Entex filed a cross motion on the grounds it properly canceled the lease and no further rent was due. Entex agreed it owed the cancellation fee; its earlier tender of the fee had been rejected by Mansell. The superior court granted in part and denied in part Mansell’s motion and granted summary judgment in favor of Entex finding the termination was valid and effective and Entex owed the cancellation fee. Mansell appeals. On appeal frоm a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the moving party. Maddox v. Southern Engineering Co.,
1. Mansell contends paragraph 40 is not enforceable because it is nothing more than an agreement to negotiate in the future. There are at least four provisions in paragraph 40: an agreement the parties may negotiate at two specific points in the future about a possible expansion, a right for Entex to cancel if there is no available space, thе terms of cancellation, and a limitation on future expansion if expansion results from notice in the 32nd month.
Whether the first provision is enforceable is not relevant to the
If any term or provision of this Lease shall be invalid or unеnforceable, the remaining terms and provisions hereof shall not be affected thereby; if the application of any term or provisions of this Lease to any person or circumstance shall to any extent be invalid or unenforceable, such term or provision shall remain applicable as to those persons or circumstances to which it shall be valid and enforceable; and each term and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
By this paragraph the parties аgreed the cancellation provision would remain enforceable even if the provision for future negotiations was held invalid.
2. Mansell contends Entex could not exercise its option under paragraph 40 because it was in default since it vacated the spaсe on January 16,1997. Under a plain reading of paragraph 40 the parties’ intentions are clear; Entex was required not to be in default either prior to or at the time it exercised the option to request expansion. See OCGA § 13-2-3. There is no evidence Entex failed to meеt this requirement. Any subsequent possible default by Entex is irrelevant. If Entex’s cancellation was effective, it was bound by the lease to vacate “[n]o later than the last day of the Term.” We find no provision prohibiting Entex from vacating earlier.
3. Mansell contends the First Amendment eliminated Entex’s option to request expansion in the 32nd month of the agreement. The last sentence of paragraph 40 makes clear the parties intended that Entex could request expansion only once, at either the 32nd or the 44th month. Pursuant to the First Amendment the parties agreed to an additional expansion in the eighth month. However, the amendment also provided, “Except as expressly modified by this First Amendment, the Lease shall remain in full force and effect.” The First Amendment is not ambiguous; Entex’s option to request expansion in either the 32nd or 44th month was not eliminated.
4. Mansell contends it never triggered the cancellation provision because it never gave notice that there was no available space; rather
The plain terms of pаragraph 40 provide that Entex could cancel the lease “within ten days after Landlord notifies Tenant that there is no available space. . . .” The paragraph does not provide a deadline for when Mansell was required to notify Entex that there was no availablе space. If no definite time is stated for the performance of a contract, the presumption is that the parties intended that performance would be had within a reasonable time. Parker v. Futures Unlimited,
Therefоre we reverse and remand for a factual determination of whether Mansell gave notice of no available space or failed to give notice of available space in a reasonable time. If it did either, then Entex properly terminated the lease and Entex owes the cancellation fee. If Mansell gave reasonable notice of available space, cancellation was not triggered and Entex is liable for the full term of the original lease. Accordingly, issues of interest and attorney fees must be revisited.
5. During discovery, the trial court granted in part and denied in part Mansell’s motion to compel based on Entex’s failure to properly respond to Mansell’s discovery requests. Mansell sought an order regarding four interrogatories and eight document requests. The court granted reliеf on all but two of the document requests. The court also granted Mansell’s corresponding request for attorney fees but only awarded $600 of the $2,300 which Mansell’s counsel testified he incurred pursuing the motion. Mansell contends it was entitled to its entire fee.
Mansell relies on the trial court’s finding that most of Entex’s discovery objections were not substantially justified and on OCGA
But OCGA § 9-11-37 (a) (4) (C) provides: “If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.” The court here determined that two of Mansell’s discovery requests were not made with sufficient particularity. Thus OCGA § 9-11-37 (a) (4) (C) aрplies.
It is the general policy that absent abuse of discretion, Georgia appellate courts do not interfere with a trial court’s broad discretion with regard to discovery matters. Freeman v. Ripley,
Judgment reversed and remanded.
On Motion for Reconsideration.
With regard to Division 2 of thе opinion, Mansell claims we overlooked a material fact in the record: a solemn admission in judicio by Entex that it vacated the premises on January 16, 1997. Entex never moved to withdraw the admission. Mansell contends this conclusively establishes that Entex failed to meet one rеquirement of cancellation found in paragraph 40: that in order to cancel, Entex had to be in full compliance with the lease on the cancellation date, February 17, 1997, and that Entex was in default because it vacated on
Solemn admissions in judicio as made in the pleadings are conclusive against the party making them, unless formally withdrawn from the pleadings [cit.], and a party to a suit will not be allowed to disprove an admission made in his pleadings, unless it has been withdrawn from the record. [Cit.]
Nat. Advertising Co. v. North American Ins. &c. Co.,
Here the term “vacate” is used but not defined in thе lease, and therefore it could mean either that all personnel have left the premises, that all personnel have left and all equipment and other property have been removed, or that the tenant has departed and ceased paying rent. Where a term is ambiguous, its construction is for the court and is a matter of law. OCGA § 13-2-1; see, e.g., Kusuma v. Metametrix, Inc.,
Notes
An agreement to negotiate in the future may be different than an agreement to agree in the future. Compare Southeastern Underwriters v. AFLAC,