Cardin v. Outdoor East

468 S.E.2d 31, 220 Ga. App. 664, 96 Fulton County D. Rep. 1415, 1996 WL 109351, 1996 Ga. App. LEXIS 308

• Court: Court of Appeals of Georgia
• Decided: March 14, 1996
• Docket: A95A2407
• Status: Published

Opinions

Ruffin, Judge.

C. Dewayne Cardin and Cathy Cardin sued Outdoor East for breach of a lease agreement. Outdoor East moved for judgment on the pleadings on the grounds that the lease did not contain a definite description of the property and was not executed by Outdoor East. The trial court granted the motion, and the Cardins appeal from that order. For reasons which follow, we reverse.

The complaint alleges that Outdoor East agreed to lease property belonging to the Cardins for the purpose of erecting and maintaining an advertising billboard for a period of 18 years. The lease, which was incorporated in the complaint, described the subject property as “I-75.” While the lease was executed by the Cardins, it was not signed by Outdoor East.

“[W]hen a motion for judgment on the pleadings is based on the insufficiency of the complaint said motion should not be granted ‘unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. . . .’ [Cit.]” Frady v. Irvin, 245 Ga. 307, 311 (5) (264 SE2d 866) (1980).

Applying this standard to the complaint in this case, we find that the trial court erred in granting Outdoor East’s motion. The trial court’s order states that “[t]he purported lease upon which [the Cardins’] Complaint is based does not contain a definite description of the property. Also, said purported lease is not executed on behalf of Defendant.” However, even if the description were insufficient for uncertainty or vagueness, the taking of actual possession by Outdoor East would have cured the deficiency. Barto v. Hicks, 124 Ga. App. 472 (1b) (184 SE2d 188) (1971). See also Turner Communications Corp. v. Hickcox, 161 Ga. App. 79 (3) (289 SE2d 260) (1982). Likewise, even if Outdoor East did not sign the lease, it would still be enforceable if Outdoor East partially performed under its terms. OCGA § 13-5-31. See also Valiant Steel &c. v. Roadway Express, 205 Ga. App. 237 (3) (421 SE2d 773) (1992). Thus, while the Cardins’ complaint “clearly does not state all of the essential elements of a proper cause of action to enforce [the lease], the complaint does not disclose with certainty that the [Cardins] would not be entitled to relief under any state of provable facts.” Frady, supra at 312. Accordingly, the trial court’s order granting judgment in favor of Outdoor East must be reversed.

Judgment reversed.

Pope, P. J., concurs. Beasley, C. J., concurs specially.