Case Summary: BOOKER v. J. T. BICKERS REALTY COMPANY et al.

Factual and Procedural Background

This action, filed in the Civil Court of Fulton County, was brought by a tenant against her landlord alleging the landlord refused numerous requests to repair or replace a faulty hot water heater and a leaking water pipe despite a statutory duty to do so. The complaint alleged the tenant notified the landlord around the first of June and that, because of the failure to repair, the tenant's gas bills rose substantially. The complaint sought $70 (later amended to $95) for excess gas charges and $50 for diminution in value, and the plaintiff added a claim for exemplary damages of $400. The defendant denied the material allegations. At trial certain facts were undisputed: notice to the landlord in June, inadequate repair attempts by the landlord, continued requests by the tenant, and a replacement of the hot water heater (disputed as to whether late September or late October). The trial judge found that the "plaintiff failed to establish the claim as required by law" and entered judgment for the defendant. After denial of a motion for new trial, the plaintiff appealed to the Court of Appeals of Georgia.

Legal Issues Presented

Whether a landlord's failure to make repairs within a reasonable time after due notice renders the landlord liable to the tenant for damages proximately resulting from that failure.
Whether the amount of damages for increased gas bills and diminution in value was shown with sufficient certainty to allow recovery.
Whether the trial court was required to make special findings of fact and state separately its conclusions of law under Section 52(a) of the Civil Practice Act when entering judgment.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Stack v. Harris, 111 Ga. 149, 150 (36 S.E. 615).	Landlord's failure to make repairs within a reasonable time after due notice renders him liable to the tenant for resulting damages.	The court cited Stack to state the basic rule establishing landlord liability for failure to repair after notice.
Williamson v. May, 44 Ga. App. 532 (162 S.E. 162)	Landlord remains responsible until repairs are actually accomplished, even if he attempts repairs.	Used to support the proposition that attempted but inadequate repairs do not relieve landlord responsibility.
Dempsey v. Hertzfield, 30 Ga. 866.	Landlord responsibility for repairs until completed (supporting authority).	Cited along with Williamson to reinforce that attempted repairs do not absolve liability.
Thomas v. Campbell, 126 Ga. App. 675 (3) (191 S.E.2d 619)	When suing for specific damages, plaintiff must show amount of loss with sufficient certainty to permit calculation and avoid guesswork.	Cited for the principle that specific damages must be established with sufficient evidentiary certainty; court found the gas bills furnished a basis for computation.
Ayers v. John B. Daniel Co., 35 Ga. App. 511, 512 (133 S.E. 878)	Uncertainty as to damages concerns causation more than measure; difficulty in fixing exact amount does not bar recovery if damages proximately flow from injury and can be established with reasonable certainty.	Applied to permit recovery where amount can be reasonably computed from available data despite difficulties in precise calculation.
Atlanta Tallow Co. v. John W. Eshelman Sons, 110 Ga. App. 737, 744 (140 S.E.2d 118)	Support for the proposition that damages proximately flowing from injury may be awarded when reasonably certain from the evidence.	Referenced alongside Ayers to show the trior of fact could determine damages by comparing pre- and post-notice gas bills.
Spivey v. Mayson, 124 Ga. App. 775, 777 (186 S.E.2d 154)	Section 52(a) of the Civil Practice Act requires the trial court to find facts specially and state conclusions of law when applicable; this requirement is mandatory.	Relied upon to conclude the trial court erred by failing to make required special findings of fact and conclusions of law, necessitating remand.
Garrison v. Perkins, 137 Ga. 744, 755 (74 S.E. 541)	Support for the requirement that courts make findings supporting their judgments (historical authority).	Cited to corroborate the mandatory nature of making findings when required.
5A Moore's Federal Practice 2718, § 52.06 [2].	Procedural guidance regarding remand for entry of findings and conclusions under analogous practice.	Referenced in support of the remand procedure directing the trial judge to vacate judgment and prepare findings and conclusions.

Court's Reasoning and Analysis

The court first stated the governing rule that a landlord who fails to make repairs within a reasonable time after notice is liable for resulting damages (citing Stack v. Harris) and that attempted but inadequate repairs do not relieve the landlord of responsibility (citing Williamson v. May and Dempsey v. Hertzfield). The court then addressed the evidentiary sufficiency for damages, citing Thomas v. Campbell for the requirement that specific damages be shown with certainty but also citing Ayers and Atlanta Tallow Co. for the principle that difficulty in exact measurement does not bar recovery where damages proximately flow from the injury and can be reasonably ascertained. Applying these principles to the undisputed evidence (notice to landlord, inadequate repairs, increased gas bills with monthly amounts provided), the court concluded there was a clear showing of notice, failure to make repairs within a reasonable time, and damages that could be readily computed by comparing pre- and post-notice gas bills. Despite this, the trial court entered a judgment for the defendant with the statement that the plaintiff failed to establish the claim, without special findings. The Court of Appeals held that, because Section 52(a) of the Civil Practice Act required the trial court to find facts specially and state conclusions of law where applicable, the absence of such findings required remand for preparation of appropriate findings and entry of a new judgment. The court therefore remanded the appeal with directions that the trial judge vacate the judgment, prepare findings of fact and conclusions of law, and enter a new judgment, after which the losing party may appeal again if desired.

Holding and Implications

Holding: Appeal remanded with direction.

Implications: The trial court's judgment in favor of the defendant was vacated and the trial judge was directed to prepare and file special findings of fact and conclusions of law pursuant to Section 52(a) of the Civil Practice Act, then enter a new judgment. After entry of that judgment, the losing party is free to appeal. The opinion does not announce a new rule of law; it applies established authorities to the facts and enforces the procedural requirement of making findings where required.

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BOOKER v. J. T. BICKERS REALTY COMPANY et al.

QUILLIAN, Judge.

This is an action from the Civil Court of Fulton County brought by a tenant against her landlord. The complaint alleged that the defendant refused numerous requests from the plaintiff to repair or replace a faulty hot water heater and a leaking water pipe despite the defendant's duty under Georgia law to do so; that the plaintiff reported the problem to the defendant around the first of June and her gas bill increased enormously over its regular rate due to the defendant's failure to make necessary repairs. The complaint sought the recovery of $70 in damages, the amount the plaintiff had paid the Gas Company beyond the amount of her regular bill, and $50 for diminution of the value of the premises for the lack of hot water.

The defendant answered and denied the material allegations of the complaint. The plaintiff later amended her complaint to increase the amount of damages claimed from $70 to $95 and also to seek exemplary damages in the amount of $400.

The case came on for trial in which the following evidence was undisputed. The plaintiff notified the defendant with regard to the defect in the hot water system in June. The defendant sent someone to make repairs but such repairs were inadequate. The plaintiff continued to request repairs so that she would have hot water, the number of times she did so being in dispute.

The hot water heater in the plaintiff's apartment was replaced in late September according to the defendant's testimony. The plaintiff's testimony was that the defect was not corrected until late in October. During the time the plaintiff's apartment was without hot water, the plaintiff's gas bill went up from $5.54 after the first month to $24.44, then the following bills were $22.45, $43.03 and $33.17. Thereafter the bill for October 21 to November 22, 1971 was $16.06. Thus, it appears during the time the plaintiff contends the defect existed, over a period of some 4 months, plaintiff's bill was $123.09, or an average around $31 per month compared to a previous bill of $5.54, and a subsequent bill of $16.06 during a "cold weather" month.

The trial judge found that the "plaintiff failed to establish the claim as required by law" and entered judgment for the defendant. Upon the overruling of the motion for new trial, appeal was taken to this court. Held:

The landlord's failure to make repairs within a reasonable time after due notice is given renders him liable to the tenant for damages resulting from the failure to make such repairs. Stack v. Harris, 111 Ga. 149, 150 ( 36 S.E. 615). This is true even though the landlord attempts to make repairs since he is responsible until the repairs are actually accomplished. Williamson v. May, 44 Ga. App. 532 ( 162 S.E. 162); Dempsey v. Hertzfield, 30 Ga. 866.

In a case of this nature the amount of damages should be shown with certainty. See Thomas v. Campbell, 126 Ga. App. 675 (3) ( 191 S.E.2d 619), which held: "Where a party sues for specific damages he has the burden of showing the amount of loss claimed in such a way that the jury may calculate the amount of the loss from the data furnished and will not be placed in a position where an allowance of the loss is based on guesswork." Nevertheless, as held in Ayers v. John B. Daniel Co., 35 Ga. App. 511, 512 ( 133 S.E. 878): "The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted." See Atlanta Tallow Co. v. John W. Eshelman Sons, 110 Ga. App. 737, 744 ( 140 S.E.2d 118). Here the trior of fact could arrive at a proper measure of damages by comparing the first gas bill with the subsequent gas bills of June to September.

There was a clear and positive showing here of notice to the landlord, of failure to accomplish the necessary repairs within a reasonable time, of damages to the tenant (the plaintiff) and of an amount of damages which could be readily computed.

Nevertheless, the trial judge stated to the plaintiff's counsel, "I just don't think you have made out your case. So, I will find for the defendant." The final judgment recited that the "plaintiff failed to establish the claim as required by law." In view of the evidence adduced, we can only speculate as to the basis for such judgment, but this is not necessary under Georgia law.

The trial court was required by Section 52 (a) of the Civil Practice Act ( Code Ann. § 81A-152 (a); Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171) (made applicable to Civil Court of Fulton County by Ga. L. 1970, p. 2446 et seq., in cases where the amount sought to be recovered exclusive of interest, attorney fees and costs, is $300 or more) to "find the facts specially and state separately its conclusions of law thereon and judgment shall be entered pursuant to § 81A-158 ..." Such action is mandatory and not discretionary. Spivey v. Mayson, 124 Ga. App. 775, 777 ( 186 S.E.2d 154). See also Garrison v. Perkins, 137 Ga. 744, 755 ( 74 S.E. 541).

Since there was a failure to make the requisite findings, the appeal must be remanded with direction that the trial judge vacate the judgment and that he prepare, or cause to be prepared, appropriate findings of fact and conclusions of law, and enter a new judgment thereon. Thereafter, the losing party shall be free to enter another appeal if he should wish to do so. 5A Moore's Federal Practice 2718, § 52.06 [2]. Spivey v. Mayson, 124 Ga. App. 775, supra, and cits.

Appeal remanded with direction. Hall, P. J., and Pannell, J., concur.

SUBMITTED SEPTEMBER 11, 1972 — DECIDED NOVEMBER 22, 1972.

BOOKER v. J. T. BICKERS REALTY CO