ALSTON v. GEORGIA CREDIT COUNSEL, INC

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Docket Number

52923.

Attorney(S)

Schwall Heuett, Donald J. Goodman, for appellants. Raborn L. Davis, for appellee.

Judges

BELL, Chief Judge.

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Smart Summary

Factual and Procedural Background

Plaintiffs sued under three written leases seeking rent due, pro rata shares of increased taxes and operating expenses, and attorney fees. Defendant admitted execution of the leases, denied liability, and affirmatively asserted the defense of constructive eviction. The case was tried by the court in Fulton Civil Court (before Judge Bradford), which found that defendant had been constructively evicted and entered judgment accordingly.

The record shows: one suite leased in February 1971 for three years and renewed in February 1974; a second suite leased in April 1972; an air conditioning failure for three days on or about June 21, 1974; defendant's president gave notice and vacated the premises on August 31, 1974; defendant did not pay the monthly rent amounts claimed; leases provided for payment of 10% attorney fees if rent collected through an attorney. No evidence was presented regarding the claim for increased taxes and operating expenses. At the close of defendant's evidence, plaintiffs' motion for judgment was denied.

Legal Issues Presented

Whether the defendant's asserted defense of constructive eviction was supported by the evidence.
Whether plaintiffs proved entitlement to the monthly rent claimed and the contractual 10% attorney fees.
Whether plaintiffs proved their claim for pro rata increased taxes and operating expenses.

Arguments of the Parties

Plaintiffs' Arguments

Sought recovery of monthly rent due under the leases.
Sought pro rata shares of increased taxes and operating expenses agreed to in the leases.
Sought contractual attorney fees (10%) if rent collected through an attorney.

Defendant's Arguments

Admitted execution of the leases but denied liability.
Asserted constructive eviction as an affirmative defense, citing failures in air conditioning, heating, and janitorial service.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Overstreet v. Rhodes, 212 Ga. 521 (93 S.E.2d 715)	Defines the two essential elements of the defense of constructive eviction.	The court recited these elements and applied them to conclude the evidence did not establish that the landlord allowed the premises to become unfit or untenantable.
Fleming Bowles v. King, 100 Ga. 449, 453 (28 S.E. 239)	States that a grave act of a permanent character by the landlord is required before constructive eviction will result.	The court relied on this statement to find that the evidence showed discomfort but not the grave, permanent act required for constructive eviction.

Court's Reasoning and Analysis

The court first stated the two essential elements of constructive eviction (citing Overstreet v. Rhodes): (1) landlord's failure to keep the premises repaired allowing deterioration to an unfit condition for the tenant's business, and (2) that ordinary repairs could not restore fitness without unreasonable interruption. The court determined the evidence did not support the first element: at most the premises were uncomfortable (air conditioning/ heating issues and some janitorial complaints), not untenantable. The court cited Fleming Bowles v. King for the requirement of a grave act of permanent character by the landlord to support constructive eviction, which was not shown here. Having rejected constructive eviction, the court found the evidence demanded a finding for plaintiffs on the monthly rental claimed and the 10% attorney fees, but it also found plaintiffs did not prove their claim for increased taxes and operating expenses. The court therefore directed conditional relief: if plaintiffs voluntarily withdraw their unproven claims within ten days, judgment should be entered for rent and attorney fees; otherwise the prior judgment is reversed unconditionally.

Holding and Implications

Judgment reversed with direction on condition.

Direct effect: The Court of Appeals reversed the trial court's finding of constructive eviction and directed that, if plaintiffs withdraw their unproven claims for increased taxes and operating expenses within ten days, judgment be entered for plaintiffs for the monthly rent due plus 10% attorney fees; if plaintiffs do not withdraw those claims within ten days, the judgment is unconditionally reversed. The opinion does not announce broader legal changes or a new precedent beyond applying established constructive eviction principles.

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ALSTON et al. v. GEORGIA CREDIT COUNSEL, INC.

BELL, Chief Judge.

Plaintiffs sued under three written leases of realty seeking to recover for rent due, pro rata shares of increased taxes, and attorney fees. Defendant admitted execution of the leases but denied any liability and affirmatively asserted the defense of constructive eviction.

The case was tried by the court and it found that defendant had been constructively evicted and a judgment was entered accordingly.

The admissions of defendant in the answer and the evidence revealed that defendant leased one suite of offices from plaintiffs in February 1971 for a three-year term. On expiration of this lease in February 1974, this lease was renewed. A second lease was executed for an additional suite of offices in April 1972. On or about June 21, 1974, the air conditioning was inoperable for three days. At this time defendant's president gave notice and vacated the premises on August 31, 1974. The parties stipulated that defendant had not paid the amounts of monthly rent. The leases also provided that if rent is collected through an attorney, defendant agreed to pay 10% attorney fees. In addition to the breakdown of the air conditioning in June 1974, there was other testimony that the air conditioning and heating did not meet personal comfort standards. Additionally there was some evidence that the plaintiffs' janitorial service was unsatisfactory but defendant's president testified that he "could live with that," and "I could clean up a little bit on my own." No evidence was submitted with regard to the claim for the pro rata share of increased taxes or operating expenses which defendant had agreed to pay. At the close of defendant's evidence, plaintiffs' motion for judgment was denied. Held:

1. The defense of constructive eviction has two essential elements. They are: (1) That the landlord in consequence of his failure to keep the premises repaired allowed it to deteriorate to an extent that it had become an unfit place for the defendant to carry on the business for which it was rented; and (2) that the premises could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant's business. Overstreet v. Rhodes, 212 Ga. 521 ( 93 S.E.2d 715). The evidence in this case does not authorize a finding of fact that the plaintiffs allowed the premises to become unfit or untenantable, the first essential element of the defense. At the most the evidence only showed the premises as being uncomfortable but not untenantable. As was stated in Fleming Bowles v. King, 100 Ga. 449, 453 ( 28 S.E. 239), there must be some grave act of a permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises before a constructive eviction will result. This was not shown here.

2. The evidence demands a finding for plaintiffs that the monthly rental claimed was due plus 10% of that amount for attorney fees. However, plaintiffs failed to prove that part of its claim for increased taxes and operating expenses. Accordingly, if plaintiffs voluntarily withdraw their claims for these unproven amounts within 10 days of the date of this judgment, we direct the entry of judgment for plaintiffs for the monthly rental due and the attorney fees. Otherwise the judgment is unconditionally reversed.

Judgment reversed with direction on condition. Clark and Stolz, JJ., concur.

ARGUED OCTOBER 7, 1976 — DECIDED DECEMBER 3, 1976 — REHEARING DENIED DECEMBER 15, 1976.