Patel v. Gingrey Associates , 196 Ga. App. 203 ( 1990 )

On Motion for Rehearing.

Patel contends that our determination that Mr. Gingrey’s agreement, which promised only not to unreasonably withhold his consent to a proposed sale, was unenforceable is inconsistent with our earlier opinion in Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586 (337 SE2d 29), Stern’s Gallery found enforceable a provision in a commercial lease not to unreasonably withhold consent to a sublease. We find Stern’s Gallery to be distinguishable because the provision in that case was subject to enforcement on commercial reasonableness standards. Such standards are inapplicable to the agreement in this case since Mr. Gingrey’s agreement reserved his right of approval of even qualified, i.e., commercially reasonable, buyers, and thus eliminated commercial reasonableness as a standard for determining what was unreasonable.

Decided June 11, 1990 Rehearing denied July 3, 1990 — Cert, applied for. J. Patrick Claiborne, for appellant. Broyles, Dunstan & Dunstan, Mark A. Cleary, for appellees.

Further, since we found as a matter of law that under the facts of this case Patel had waived any rights he may have had under Mr. Gingrey’s agreement, no jury issue was created on this issue. Kusuma v. Metametrix, Inc., 191 Ga. App.. 255 (381 SE2d 322).