Dataforensics, LLC v. Boxer Prop. Mgmt.

• Decision Date: 04 October 2021
• Docket Number: A21A0996
• Citation: 864 S.E.2d 140,361 Ga.App. 311
• Parties: DATAFORENSICS, LLC v. BOXER PROPERTY MANAGEMENT A/A/F Boxer F2, L.P. et al.
• Court: Georgia Court of Appeals

361 Ga.App. 311

864 S.E.2d 140

DATAFORENSICS, LLC

v.BOXER PROPERTY MANAGEMENT A/A/F Boxer F2, L.P. et al.

A21A0996

Court of Appeals of Georgia.

October 4, 2021

Skedsvold & White, Craig Raymond White, Atlanta, for Appellant.

The Breedlove Law Firm, Mario Damian Breedlove Breedlove, Atlanta, for Appellee.

Brown, Judge.

In this appeal from a dispossessory action, Dataforensics, LLC, challenges the trial court's grant of summary judgment to Boxer Property Management A/A/F Boxer F2, L.P. and Boxer F2, L.P. (collectively "Boxer"), as well as the trial court's order allowing Boxer to withdraw funds from the court registry. For the reasons explained below, we affirm in part and reverse in part.

"Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of appellate review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." (Citation and punctuation omitted.) Siarah Atlanta Hwy v. New Era Ventures , 350 Ga. App. 59, 60-61 (1), 828 S.E.2d 4 (2019).

On February 3, 2016, Dataforensics and Boxer entered a commercial lease contract under which Dataforensics leased property for a term in excess of five years, through August 31, 2021. The lease reflects that Dataforensics was leasing the property for "office purposes." Relevantly, Section 7 of the lease is titled "Landlord's Obligations" and is divided into three subsections: (a), (b), and (c). Section 7 (a) pertinently provides:

(a) Landlord will furnish to Tenant at Landlord's expense:

1) water at those points of supply provided for the general use of tenants of the Building;

2) heated and refrigerated air conditioning from Monday through Friday 7:00 am to 6:00 pm, Saturday 8:00 am to 1:00 pm at such temperatures and in such amounts as reasonably considered necessary by Landlord; service on Sundays, and holidays are optional on the part of the Landlord (there is an additional $45.00 per hour after hours HVAC usage charge). Landlord will furnish to Tenant heated and refrigerated air conditioning in season, at reasonable temperatures and amounts ("reasonable" being defined as 72 to 74 degrees Fahrenheit[)].

3) janitorial services to the Premises ...

4) passenger elevators for ingress to and egress from the Premises ...

5) replacement of Building standard light fixtures; and

6) electric lighting for public areas and special service areas of the Building. ...

(Emphasis supplied.) Section 7 (b) provides details regarding electrical services. Section 7 (c) provides:

Failure to furnish, stoppage, or interruption of these services resulting from any cause shall not render Landlord liable in any respect for damages to either person, property, or business, or be construed as an eviction of Tenant, work an abatement of rent, or relieve Tenant from performance of its obligations.

Should any equipment furnished by Landlord cease to function properly, Landlord shall use reasonable diligence to repair the same promptly. Landlord shall not be obligated to furnish these services if Tenant is in default under this Lease. Notwithstanding the foregoing, if any particular service (designated in section 6(a) or 6(b) and within the sole control of Landlord) is discontinued for any continuous fifteen (15) day period, Tenant shall have the right to abate rent payments on a per diem basis.

While this section refers to the services "designated in section 6(a) or 6(b)," it is clear from the lease, as a whole, that this is a scrivener's error and the section intends to refer to the services designated in 7 (a) and 7 (b).¹

The lease also provides that "[a]ny failure by Tenant to pay the Rent when due, after five (5) days written notice to cure" constitutes an "event of default" and that upon any event of default,

Landlord may, in addition to all other rights and remedies afforded Landlord hereunder or by law or equity, take any of the following actions: (a) Terminate this Lease by written notice to Tenant, in which event Tenant shall immediately surrender the Premises.... (b) Terminate Tenant's right to possession of the Premises without terminating this Lease by written notice to Tenant, in which event Tenant shall immediately surrender the Premises....

On June 4, 2018, Dataforensics sent a letter to Boxer requesting a rent abatement for the months of March and April 2018, stating that Boxer had failed to meet its obligation under the lease to keep the premises at a temperature between 72 and 74 degrees. Beginning in June 2018, Dataforensics stopped paying rent. In August 2018, Boxer sent Dataforensics a notice of default and demand for possession.

Boxer filed a dispossessory action against Dataforensics and Scott Deaton, the managing member of Dataforensics, in the Magistrate Court of DeKalb County. Dataforensics answered and filed a counterclaim for breach of contract, alleging that Boxer failed to meet its obligation under the lease to keep the premises at a temperature between 72 and 74 degrees for the months of January, March, April, May, June, July, August, and September 2018. Dataforensics was ordered to pay into the registry of the court $32,219.61 in unpaid rent as well as $3,697.28 each month thereafter. By consent of the parties, the action was transferred to the State Court of DeKalb County.²

Following Dataforensics’ request for a jury trial and six months of discovery, Boxer filed a motion to draw funds from the court registry, asking that all rent payments remitted to the registry be disbursed to Boxer. The court granted Boxer's motion, ordering that the registry funds be "disbursed in full" to Boxer. Boxer then filed a motion for summary judgment on its claims as well as on Dataforensics’ counterclaim for breach of contract, asking that the court award it unpaid rent through December 2019 and late fees in the amount of $179,764.75.

After a hearing, the trial court granted Boxer's motion for summary judgment, issuing a writ of possession and finding that Boxer was entitled to rent in the amount of $68,091.67 and $218 in court costs. The court declined to award Boxer late fees on the rent totaling $111,673.08 because Boxer failed to show that it provided written notice to Dataforensics of the assessed late fees, as required by the lease. The court found that the evidence, viewed in the light most favorable to Dataforensics, shows that Boxer breached the provision of the lease requiring it to maintain the temperature between 72 and 74 degrees, but even if Boxer breached this provision, Dataforensics was not entitled to withhold rent. According to the trial court's order,

[i]f Section 7 (c) of the lease applies in this case, then [Dataforensics] has no right to recover damages for [Boxer's] breach and can only abate rent if service was discontinued for a continuous 15-day period, and then only on a per diem basis. [Dataforensics] argues that Section 7 (c) is not applicable because it relates only to a failure to furnish, stoppage, or interruption of heating and air conditioning. That did not occur here. [Boxer] provided heating and air, just not at the agreed-upon temperature.

Assuming that Section 7 (c) does not apply, [Dataforensics] could not refuse to pay rent in response to [Boxer's] breach. [Boxer's] obligation to keep the temperature between 72 and 74 degrees was not a condition precedent to payment of rent.... Nor is there any evidence that the failure to maintain temperatures amounted to a constructive eviction.

[Dataforensics’] remedy was to recover damages for the breach.

Additionally, the court's order explained that Boxer had received a disbursement of $71,899.69 in rent from the court registry, which included $3,607.28 for January 2020 rent, satisfying Dataforensics’ liability for the $68,091.67 in past due rent through December 2019, and $200.74 of the court costs. Thus, the trial court entered judgment in favor of Boxer for the remaining amount of court costs, $17.26.

Dataforensics now appeals the trial court's order granting summary judgment to Boxer, contending that genuine issues of material fact remain, including whether Boxer spoliated evidence. Dataforensics also appeals the court's order allowing Boxer to withdraw the rental funds paid into the court registry.

1. Dataforensics contends the trial court erred in granting summary judgment to Boxer on its claims as well as on Dataforensics’ counterclaim. We conclude that the court did not err in granting summary judgment to Boxer on its claims, but did as to Dataforensics’ counterclaim.

(a) The Lease. As it did below, Dataforensics contends that Section 7 (c) of the lease is inapplicable to this dispute, or at least ambiguous as to whether it applies, and that Boxer's obligation under 7 (a) to keep the premises at 72 to 74 degrees is a separate contractual duty not subject to the terms of 7 (c). According to Dataforensics, because this provision is ambiguous, its interpretation must be determined by a jury. Essentially, Dataforensics argues that Boxer's breach of the temperature requirement entitled Dataforensics to abate rent. Neither the plain language of the lease nor Georgia law supports this contention.

"The construction of a lease, which is a contract, is generally a question of law for the court. If the language of a contract is clear and unambiguous, we enforce those terms and need not look elsewhere to assist in the contract's interpretation." (Citation omitted.) Mariner Healthcare v. Foster , 280 Ga. App. 406, 409-410 (2), 634 S.E.2d 162 (2006). "[T]he issue of interpretation becomes a jury question only when there appears to be an ambiguity in the contract which cannot be negated by the court's application of the statutory rules of construction." (Citation and punctuation omitted.) Warren Averett, LLC v. Landcastle Acquisition Corp. , 349 Ga. App. 479, 482, 825 S.E.2d 864 (2019) (physical precedent only).

Dataforensics’ contention that Section...