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Action on lease agreement. Fulton Superior Court. Before Judge Weltner.
DEEN, Presiding Judge.
1. The appellee holder of a loan deed covering land, buildings and equipment is not estopped from contending that the appellant's claim is based on a security instrument by actions of its counsel which neither improved nor jeopardized the position of either party.
2. This case involves the relative priorities of two instruments denominated respectively a lease and a deed to secure debt. The fact that both were signed by the three makers as partners is not altered by the additional fact that the signatures come under the typed partnership name "Suwanee Properties" in one instance but not in the other.
3. Construing the lease, as we must, in connection with its surrounding facts and circumstances, it is a document intended for security purposes within the purview of the Uniform Commercial Code, Art. 9. The trial court properly held that the loan deed covering equipment subsequently placed on motel property has priority over the lease to the owners by a bank supplying the equipment but which failed to file a financing statement as required by Code 109A-9--302.
A partnership of Roush, Buttrill and Trunnell d/b/a Suwanee Properties, being desirous of purchasing certain property and erecting a Ramada Inn, obtained a construction loan from Atlanta Federal Savings & Loan Assn. and gave them a properly recorded deed to secure debt covering the land, buildings, and operating equipment. Thereafter they approached the Citizens & Southern Bank for the purpose of obtaining funding for the equipment necessary to make the motel operational, including beds, rugs, draperies, kitchen and restaurant equipment, etc. For this purpose they offered an application which committed them either to execute a long term lease on the equipment, or, if they did not do so after delivery thereof, to pay the cost price plus financing. The goods were delivered to the partnership at the motel site. The bank, by means of a bookkeeping device, turned the account over to its wholly owned subsidiary via a holding company, appellant Citizens & Southern Equipment Leasing, Inc. This latter, according to the deposition of one of its officers, was not in the equipment business but in the finance business, had no warehouse, no inventory and no personnel other than executive and clerical employees. All goods were ordered by the bank and delivered to the partnership at the motel site before the lease document between the bank and partnership was executed. At the time of the first conversations regarding the equipment lease which is the basis of this litigation, the bank officials requested the partnership to furnish them with a Uniform Commercial Code Ch. 9 financing statement. The request was refused based on the stated reason that Atlanta Federal Savings already had a financing statement furnished by them in reference to the equipment, and they then proceeded to execute the lease without the financing statement and without any further inquiry. In a letter prior to Suwanee's execution of the lease, the bank agreed granting a first lien to Atlanta Federal on the equipment in exchange for a second lien on the entire property, but this plan was discarded along the way.
The lease itself provides that two inventories of equipment are being leased, one for a period of five years and the other for a period of seven, with an option to purchase at the conclusion of the lease for fair market value. Opinion testimony places the then value at less than 10 percent of the sale price. The lease further provided that the lessor did not warrant the property but would use its best efforts to obtain available warranties for the lessee's benefit, that lessee would pay all taxes, fees, charges, insurance, would hold the lessor harmless from all liabilities arising out of the ordering, delivery or installation of the equipment (in fact, the lessor never saw or inventoried the equipment at all); that in case of a default (including if "lessor feels insecure for any good reason") the entire balance of payments could be accelerated at the lessor's option, plus attorney fees and costs of repossession, whereupon both the property and the total rentals reverted to the lessor. The lessee partnership obligated itself to furnish annual financial statements. It also agreed that if any claim was made to any of the equipment by any third party by reason of its becoming attached to the realty, the partnership, if it could not settle the matter within thirty days, was obligated to pay the total unpaid balance on the equipment, whereupon "the lease of such equipment shall terminate and all of lessor's title to and rights in such equipment shall become the property of lessee."
The appellant filed a complaint for a declaratory judgment in that case which was later voluntarily dismissed as will be discussed hereafter. C & S Equipment then filed a complaint in the Superior Court of Fulton County seeking a declaratory judgment to the effect that it is the true owner of the inventory in the equipment lease, as against the claims of Atlanta Federal, which latter takes the position that its recorded deed to secure debt covered equipment placed on the motel property, that the lease executed by plaintiff is not a true lease but one for security purposes, and that, since no financing statement was filed as required by Code Ch. 109A-9, its lien is entitled to priority as to the equipment listed on the inventory. The Atlanta Federal loan deed specified that all equipment furnished was to be included as collateral and deemed "constructively attached" to the realty.
Both sides moved for summary judgment. The trial court denied the motion of Citizens & Southern Equipment, and granted that of Atlanta Federal, and the appellant, by means of regular and interlocutory appeals, questions both judgments.
1. The appellant contends that Atlanta Federal is precluded from claiming any interest in the equipment included in the lease inventory by reason of the following: First, when the complaint for declaratory judgment was dismissed in the bankruptcy court, counsel for the appellee, which was not a party to that proceeding, yielded to the request of other counsel in the case and signed a stipulation as follows: "The undersigned has read the foregoing, consents thereto, and agrees to be bound thereby." The stipulation was that "defendant agrees to and does hereby withdraw and dismiss with prejudice all of its counterclaim" including "allegations to the effect that the lease agreement . . . is not a true lease but one intended as security." Further, a letter written by one of the attorneys for the appellee during the bankruptcy proceedings, stated that the Atlanta Federal financing statement "would have no application to those items which are owned by C & S Equipment Leasing and which were placed in the motel only under an equipment lease."
Is the appellee estopped, or has it by its attorney waived, its right to insist that the lease in question is not a true lease? "The right to claim an estoppel by waiver is based on the loss or surrender of an equivalent right which would still exist but for some act of the opposite party which has altered the position of him who insists upon the waiver. To derive the benefit of an estoppel by waiver, he who asserts a waiver must show either that he has lost something or that the opposite party gained something by the act in question by reason of which it would be unjust to permit the beneficiary of the intervening act to assert his pre-existent rights." Southern Mfg. Co. v. R. L. Moss Mfg. Co., 13 Ga. App. 847 (3) (80 SE 1051). The appellee here contends that its attorney was expressing a private opinion in the letter, and was not agreeing in the dismissal of appellant's counterclaim to any proposal that the lease was a true lease, but only that the litigant had a right to dismiss a pleading making this contention. It must be remembered that the appellee was not a party to this particular aspect of the litigation. The explanations are reasonable; however, a jury question might be presented except for the fact that the appellant fails to show any of the conditions which give rise to an estoppel: that the statements were fraudulently made, or that the appellant relied upon them, or that the position of the appellant was worsened or that of the appellee ameliorated as a result. We do not believe that the statements above quoted, under the circumstances given where neither reliance nor change of position appears, should be dispositive of the case.
2. The loan deed to appellee is signed by the three partners, Roush, Buttrill, and Trunnell, as individuals. The appellee's lease has typed in "Suwanee Properties" under which each of these persons signed as a partner. "A partnership has no legal entity aside from that of the persons who unite as partners." Scoggins v. Aetna Cas. & Sur. Co., 139 Ga. App. 805, 807 (229 SE2d 683). The fact that the partnership name is included over that of the designated partner signatories in one instance and not in the other has no bearing on the respective priorities of the liens.
3. The most important, as well as the most difficult, question for decision here is whether the lease between the Suwanee partners and the appellant was intended as a security, in which event, in order to take precedence over the previously recorded loan deed to appellee also covering equipment, it was necessary for the lessor to perfect the security interest as required by the UCC, Ch. 9. "Unless a lease or consignment is intended as security, reservation of title thereunder is not a 'security interest'. . . Whether a lease is intended as security is to be determined by the facts of each case; however (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease, the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security." Code 109A-1--201 (37). A flat statement that only the lease may be considered in determining the intent of the parties is erroneous, since the Code itself requires that the question of true lease versus security lease is to be determined by "the facts of each case." "[T]he determining factor to be considered is the intention of the parties at the time the contract was entered into as construed in the light of facts and circumstances as they existed at that time . . ." In re Transcontinental Industries, Inc., 3 UCC Rep. Serv. 235, 242, citing Benton v. Comm. of Int. Rev., 197 F2d 745 and Frito-Lay, Inc. v. United States, 209 FSupp. 886. It is true that where the written lease is in fact intended as a complete and exclusive statement of the terms of the agreement, extrinsic evidence of further terms is not admissible. In re Atlanta Times, Inc., 259 FSupp. 820, 825. This is the meaning of the statement in McGuire v. Associates Capital Services Corp., 133 Ga. App. 408 (210 SE2d 862), that the conduct of the parties is governed by the terms of the lease. As stated in "The Treatment of Equipment Leases as Security Agreements." by John R. Peden, 13 Wm. & Mary Law Review, pp. 110, 140, the test prescribed under the above quoted Code section "contemplates that the parties' intention shall be judged objectively by reference to their total conduct, and not merely by overt expressions of their intention. The purpose of Art. 9 would be frustrated if evidentiary rules could be used to shield sham transactions." "Where there is no option to purchase or where the consideration approximates actual market value, no presumption is indicated under the Code definition, nor is any justified in either direction." Id., p. 154. As to option provisions for purchase by the lessee at the termination of the lease, where as here over 90 percent of the cost price of the equipment may have been paid over at the end of five years in one case and seven in the other, when the lease inventories terminate, there is neither a vesting of title in the lessee automatically or for a nominal amount on the one hand, nor is there a purchase price fixed which would clearly indicate that a "true lease" was involved: that is, one which clearly indicates the intention of the lessor to deal in the renting of objects rather than the financing of purchases. We cannot, therefore, consider this lease provision in and of itself as controlling. Further, while we are aware that the lease contains a statement that it represents the "full understanding of the parties" we do not construe this language so narrowly as to forgo considerations regarding, for example, the economic realities and consequences of the agreement. This interpretation, which appears to be adopted in practice, at least in the majority of cases, to some extent modified statements such as that in In re Crown Cartridge Corp., 220 FSupp. 914, 916, to the effect that the "test" of whether an agreement is a true lease or a conditional sale is whether the option price bears a resemblance to market value. In cases where by the end of the lease the market value has shrunk to less than 10 percent of its purchase price, this factor ceases to be controlling.
The lease contains a number of other provisions which are more common to security devices than to true leases. The lessor was not in the equipment business. It obtained the lessee's list of needs, which were ordered from manufacturers, billed to the bank, but delivered to the lessee, and never seen, checked on or inventoried by the bank or its subsidiary, the plaintiff. Another provision held to signal a security transaction in In re Pomona Valley Inn, 4 UCC Rep. Serv. 893, besides the fact that the lessor and its assignee were not in the business of leasing equipment, was acceleration of "rentals" on default. Here the lessor may declare a default not only on a large number of listed contingencies but in any case where it has "good reason to feel insecure," and in the event of default it may accelerate all "rental" payments throughout the life of the lease. The lessor also has the right to periodic financial statements, and the suggestion occurs that a feeling of insecurity over one of these statements might be sufficient to trigger a default and acceleration of payments. Also, the lessor has the right to accelerate payments upon a finding of dispute as to whether any of the equipment has become a fixture (chandeliers and stove hoods are examples which fall in this category), may accelerate payments and, when the remaining lease "rentals" are paid the title then vests in the lessee, also suggesting that rental and purchase price, at least where the former is accelerated, approximate each other. At the time the lessor bank entered into this agreement it was aware of the existence of the Atlanta Federal loan deed, and that some of the inventory would be actually attached to the building and under the terminology of the lease the remainder was "constructively attached." This provision and the lease provision, taken together, could result in payment acceleration and title placement in the lessee at any time Atlanta Federal chose to make its claim based on the loan deed provisions. Again, although paper title remains in the lessor "though the passing of title is a part of the Code definition of sale, 'title' does not hold the same position as it did under former Georgia sales law." Redfern Meats v. Hertz Corp., 134 Ga. App. 381, 392 (215 SE2d 10). That case holds, as did the trial judge here, that where many of the indicia of ownership remain in the lessee (the hold harmless clause; liability for taxes, insurance and charges naming the lessor as the insured in all-risks policy, etc.) mere paper title will not control. Granted, as stated in Mays v. C. & S. Nat. Bank, 132 Ga. App. 602, 609 (208 SE2d 614) these criteria alone are not decisive. Nor does the fact that the lessor requires a financing statement turn the
transaction ipso facto into a sale. Rollins Communications v. Ga. Institute of Real Estate, 140 Ga. App. 448 (1) (231 SE2d 397). The default provisions allow the lessor to both accelerate the remaining "rental" payments and seize the equipment, charging the lessee additionally with late costs, attorney fees and repossession costs. In Pierce v. Leasing International, 142 Ga. App. 371 (235 SE2d 752), similar default and acceleration provisions were held indicia of a conditional sale. The difference in the straight default provisions here is that the lessor appears to acquire all accelerated lease payments plus costs and attorney fees, plus the property itself, a result that would appear unjustifiable under either view of the transaction.
Other surrounding facts and circumstances listed in "The Treatment of Equipment Leases as Security Agreements," Peden, supra, p. 137 et seq., include a consideration of the length of the lease in relation to its economic life, relation between lease rental and market value, between option and list price, between option and actual depreciated value, acceleration of payments on default or on the occurrence of other circumstances, whether the property was acquired specifically for the customer, etc. Still other considerations are whether the lessor is truly in the leasing business, whether the rental payments build up equity, whether the lessee primarily wants the asset, not just its use, whether its economic life substantially exceeds the lease period, and like factors. "A lease will therefore create a security interest if: (a) it secures payment or performance of an obligation upon personal property reserved by the lease; and (b) the lease is intended as security. Such intention is to be determined objectively on the basis of the facts of the case, so that the parties' [self serving] declarations are not conclusive." Id., p. 136. The effect of the option to purchase, the third factor, has already been discussed.
We agree with the appellant that estimates of the remaining useful life of the equipment at the end of the lease term is in the nature of opinion evidence and will not of itself sustain a motion for summary judgment. There is, however, also evidence that by the end of the lease term the lessor would have recovered its entire capital outlay plus interest. "[T]he degree by which the total rentals exceed the purchase value of the equipment compels the conclusion that no residual proprietary rights were contemplated . . ." Leasing Service Corp. v. American Nat. Bank & Trust Co., 19 UCC Rep. Serv. 252, 260 (in that case, as here, the excess ran approximately 8 percent per year). And in a similar fact situation in WOCO v. Benjamin Franklin Corp., 20 UCC Rep. Serv. 1015, with a lease remarkably like the one here under consideration, including the exclusion of warranties of merchantability and fitness for the purpose intended, which are normally included in a true lease, and the inclusion of repossession clauses, along with the fact that the lessor had no facilities for and did not hold itself out to be in the "leasing business," the court held, in its opinion that the agreement was by nature one for security rather than bailment, that: "This is precisely the type of agreement which Article 9 of the UCC was designed to cover."
Except for the opinion evidence as to the value of this personal property at the conclusion of the lease, the facts, as distinguished from their legal significance, are not in dispute, and a summary judgment one way or the other is therefore in order. We have considered the lease in the context of the facts and circumstances surrounding its execution and determine, in spite of the stipulation for an option to purchase at the conclusion of the agreement for its then market value, that it could not have been the intention of either party to expect that this would exceed a nominal amount, that the instrument in question is in fact a lease for security purposes under Code Ch. 109A-9 and that such was the true, although unstated, intention of the parties.
Judgments granting summary judgment to Atlanta Federal and denying it to Citizens & Southern Equipment Leasing Inc. affirmed. Smith and Banke, J., concur.
Mitchell, Clarke, Pate & Anderson, Paul H. Anderson, Paul H. Anderson, Jr., for appellee.
McClain, Mellen, Bowling & Hickman, James W. Culbreth, A. O. Bracey, III, for appellant.
Friday May 22 03:51 EDT

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