Abernethy v. Cates, 73472

• Decision Date: 17 March 1987
• Docket Number: No. 73472,73472
• Citation: 182 Ga.App. 456,356 S.E.2d 62
• Parties: ABERNETHY et al. v. CATES et al.
• Court: Georgia Court of Appeals

Page 62

356 S.E.2d 62

182 Ga.App. 456

ABERNETHY et al. v. CATES et al.

No. 73472.

Court of Appeals of Georgia.

March 17, 1987.

Rehearing Denied April 1, 1987.

Certiorari Denied May 7, 1987.

Robert M. Martin, Leslie A. Dent, Atlanta, for appellants.

J. Garland Peek, Atlanta, for appellees.

BENHAM, Judge.

Appellants leased commercial property from appellees under a lease which provided that the tenants were financially responsible for maintaining and repairing the leased premises and were to return the premises to the landlords in as good a condition and state of repair as when first received, normal wear and tear and casualty damage excepted. Appellants subsequently sublet the premises, with appellees' permission. The subleasing agreement, signed by appellants and appellees as well as the subtenants, provided that nothing in the subleasing agreement altered or amended the duties and obligations of appellants under the original lease. When the subtenants vacated the premises prior to the termination of the lease, appellees reentered the premises and repaired the damage done to the building after appellants refused to do so. Appellees then filed this lawsuit to recover the amount expended to repair the damages incurred during appellants' lease. Judgment in favor of appellees in the amount of $13,835.48 was entered following a jury verdict in that amount. This appeal followed.

1. Each of appellants' initial three enumerated errors concerns the trial court's decision permitting a lay witness to testify as to the amount of the damages attributable to ordinary wear and tear. The trial court allowed the owners' agent to testify that between five and ten percent of the monies expended to repair the building after the subtenants vacated was attributable to fixing ordinary wear and tear. Appellants contend that such an opinion can be rendered only by an expert witness and, even if lay testimony on the subject is permissible, no factual basis for the witness' opinion was established.

"Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor ..." OCGA § 24-9-65. " 'The class of questions here referred to must be such as lie within the range of common opinion.' [Cit.] That is, an opinion which is supposed to be within the common knowledge, experience, and education of men. [Cit.]" Cone v. Davis, 66 Ga.App. 229(6), 17 S.E.2d 849 (1941). Expert testimony is permitted "[i]f the nature of the question is such that factors leading to a conclusion are not known to the common or average man, but are among those things shrouded in the mystery of professional skill or knowledge ..." Smith v. State, 247 Ga. 612, 616, 277 S.E.2d 678 (1981). Inasmuch as the concept of ordinary wear and tear is within the common knowledge of man and is not shrouded in the mystery of professional skill or knowledge, we agree with the trial court that expert testimony on the subject was not necessary.

We turn to appellants' argument that the agent/witness did not have a sufficient opportunity to form a correct opinion as to the amount of damage attributable to normal wear and tear. The witness testified that he had been in the real estate business for 33 years; had constructed the building at issue; had maintained an office in the building up until three years before the effective date of appellants' lease; and knew the condition of the building at the time it was leased to appellants. "The question of whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court. [Cits.] We have found no abuse of discretion by the trial judge." Dept. of Transp. v. McLaughlin, 163 Ga.App. 1(3), 292 S.E.2d 435 (1982). Through the testimony of their agent, appellees established "the specific acts of waste or damage alleged and the reasonable cost of restoration in relation to the specific injuries shown." Zeeman Mfg. Co. v. L.R. Sams Co., 123 Ga.App. 99, 101, 179 S.E.2d 552 (1970). The agent's testimony, coupled with documents admitted into evidence, established a "basis upon which the jury could compute the cost of restoration ... which may be required in repairing or replacing damage, if any, chargeable to the lessee." Id. at 103, 179 S.E.2d 552.

Appellants argue the trial court should have directed a verdict in their favor because appellees did not present evidence that the value of what they received at the end of the tenancy (after repairs were made) was equal to the value of the premises at the inception of the lease, less normal wear and tear over the term of the lease. "[I]t is essential that the [landlord] prove with a reasonable degree of certainty and specificity the condition of the premises ... both at the inception and at the termination of the tenancy, or that he show specific acts of waste or damage the results of which at the end of the term had not been repaired." Spacemaker, Inc. v. Borochoff Properties, 112 Ga.App. 512, 514, 145 S.E.2d 740 (1965). (Emphasis supplied). If it is shown that the tenant's actions resulted in such gross and extensive injuries as to require complete reconstruction of the entire premises or portions thereof, the cost of the complete reconstruction, if reasonable, will suffice as proof of damages. Under the terms of the lease, appellants were required to maintain and repair the building and improvements. Thus, appellants would have been required to replace the lighting that had been removed; the broken acoustical tile ceiling; the floor tiles; the broken plate glass windows; and the broken air conditioner. Zeeman Mfg. Co. v. L.R. Sams Co., supra, is distinguishable from the case at bar. There, the lessor sought compensation for repairing the roof, a portion of the structure the lessor was contractually obliged to maintain. Since, under the lease, appellants would have had to replace those items so extensively damaged as to require replacement, they were not entitled to a credit of pre-lease depreciation as a mitigation of the replacement costs. The trial court did not err in denying appellants' motion for directed verdict on the proof of damages.

2. Appellants' next three enumerated errors concern appellees' failure to give appellants notice of default and an opportunity to cure that default, as allegedly called for in the lease. As appellees point out, the lease required them to give appellants notice and opportunity to cure as a condition precedent to appellees' termination of the lease. There was no contractual requirement to give notice and opportunity to cure when appellees were seeking unpaid rent and compensation for repair of the damaged premises. Enumerations 4 through 6 are without merit.

3. In light of our holding in Division 2, the trial court erred in giving a jury instruction on the issue of the notice and opportunity to cure. However, the charge given was favorable to appellant and, therefore, must be deemed harmless. Swim Dixie Pool Corp. v. Kraemer, 157 Ga.App. 748(2), 278 S.E.2d 448 (1981). "To obtain a reversal of the judgment of which complaint is made, the burden is upon [appellant] to show not only error but injury. [Cit.]" Williams v. Kerns, 153 Ga.App. 259, 268, 265 S.E.2d 605 (1980).

4. In the next set of enumerated errors, appellants claim a right of setoff. Appellants maintain their right arises out of appellees' failure to give notice of default and opportunity to cure. In light of the holding in Division 2, there was no error in limiting testimony on setoff and in refusing to give requested charges on the subject.

5. Appellants next find error in the trial court's refusal to charge the jury on the doctrine of equitable estoppel and refusal to admit into evidence the document upon which appellants base their estoppel theory. Appellants claim the document, a letter written by appellees' agent to appellants' subtenants putting the subtenants on notice of appellants' intent to enforce strict compliance with the lease, caused the subtenants to vacate the premises. However, abandonment was not the issue in the case at bar. Rather,...