In this breach of contract suit arising out of the September 11, 2001 terrorist attacks and the resulting permanent security measures imposed at the Atlanta airport, the City of Atlanta appeals from the final order and judgment entered in favor of appellees WH Smith Airport Services, Inc., Airport Management Services, LLC, and Hartsfield Air Ventures “HAV”. The City contends that it is entitled to a new trial because there was insufficient evidence to support the jury verdict. We disagree and therefore affirm.If a jury has returned a verdict, which has been approved by the trial judge, then the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the verdict will be upheld on appeal.Footnote omitted. Dailey v. Echols , 265 Ga. App. 459, 460 594 SE2d 658 2004. See also Dumas & Assocs. v. Nalecz , 249 Ga. App. 662, 663 549 SE2d 730 2001. With these principles in mind, we turn to the record in the present case. The City of Atlanta owns the Hartsfield-Jackson Atlanta International Airport the “Airport”. In April 1995, HAV entered into a lease with the City under which HAV agreed to lease retail concessions space at the Airport located in Concourse A and the Atrium, the lobby area prior to the main security checkpoint the “Lease”.1 The Lease subsequently was amended twice and was set to expire in April 2007. Under the Lease, HAV’s annual rental obligation owed to the City was based on either a percentage of annual gross revenues from the concession operations or a minimum annual guarantee, whichever was greater. Significantly, however, Section 11 of the Lease, “Suspension and Abatement,” provided for an abatement of rent under certain defined circumstances. Specifically, Section 11 stated in relevant part:If the number of enplanements from Concourse A is severely restricted for longer than seven 7 days by action of the United States of America or the State of Georgia, resulting in material adverse effect on Landlord the City or Tenant HAV, either party hereto shall have the right, upon written notice to the other, to a suspension of this Agreement and an abatement of a just proportion of the services and facilities to be afforded hereunder, or a just proportion of the rental to become due hereunder from the time of such notice until such restriction shall have been removed; provided, however, after a suspension and abatement are properly implemented pursuant to this Section, Landlord shall determine, unilaterally and in good faith, the date when the suspension and abatement ends, and provide notice of such date to Tenant in writing . . . . A separate provision in the Lease defined “enplanements” as the “total number of domestic revenue passengers boarding airline carriers.”
Following the September 11, 2001 terrorist attacks, the federal government imposed far reaching security mandates on airports and air travel throughout the nation. On September 26, 2001, HAV sent written notice to the City that it was invoking its right to rent abatement under Section 11 of the Lease. In the letter, HAV asserted that the security measures recently imposed at the Airport had severely restricted the number of enplanements in Concourse A, causing a material adverse effect upon HAV’s retail sales in the Atrium and triggering the relief afforded by Section 11. The City, however, would not agree to an abatement in the rent. For several years thereafter, HAV continued to argue that the security measures were adversely affecting its Atrium retail sales and continued to seek a rent abatement from the City, but to no avail. Ultimately, appellees brought the instant action against the City for breach of contract, contending that the City had breached Section 11 of the Lease by failing to provide an abatement in rent.2
