Delta Cleaner Supply v. Mendel Drive

• Decision Date: 30 May 2007
• Docket Number: No. A07A0761.,A07A0761.
• Citation: 648 S.E.2d 651,286 Ga. App. 227
• Parties: DELTA CLEANER SUPPLY COMPANY v. MENDEL DRIVE ASSOCIATES.
• Court: Georgia Court of Appeals

286 Ga. App. 227

648 S.E.2d 651

DELTA CLEANER SUPPLY COMPANY v. MENDEL DRIVE ASSOCIATES.

No. A07A0761.

Court of Appeals of Georgia.

May 30, 2007.

Reconsideration Denied July 2, 2007.

Chorey, Taylor & Feil, Otto F. Feil III, Atlanta, for Appellant.

Meriwether & Tharp, Patrick Lehmon Meriwether, Alpharetta, William Clinton Rhodes, for Appellee.

SMITH, Presiding Judge.

In this case involving a commercial lease, Delta Cleaner Supply Company ("Delta") appeals from the trial court's order granting partial summary judgment in favor of Delta's landlord, Mendel Drive Associates ("Mendel"). For the reasons set forth below, we affirm in part, and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations omitted.) Murray v. Fitzgerald Convenient Centers, 239 Ga.App. 799, 521 S.E.2d 915 (1999).

Viewed in this light, the record shows that on March 10, 1998, Mendel and Delta entered into an initial lease agreement for a three-year term. The lease contained a provision requiring Delta "to install on tenant's water line a submeter and pay for its water useage." Mendel agreed to construct improvements in the space, including a bathroom. It is undisputed that during construction, Mendel decided to tie the water line for Delta's space into the line of an existing, adjacent tenant in order to expedite its completion of construction. As a result, Delta never installed a submeter. According to Delta's president, Mendel waived the requirement that it install a submeter, as well as the requirement that it pay for its water useage.

During the term of the first lease, the parties entered into a second one-year lease with the term beginning on April 15, 2001. The new lease contained no provision requiring Delta to install a separate submeter for its water useage. Instead, it obligated Delta to "pay all utility bills, including, but not limited to water. . . ." It is undisputed that Delta was never billed for and did not pay for its water use. The adjacent tenant, who paid the water bill for it and Delta's water use directly to the city, moved out between August and October 2001. Mendel then turned off the water, claiming that he forgot that the same line also supplied Delta. Delta had no water for six days.

During the first and second lease periods, Delta complained about security issues to Mendel, because some of its vehicles were being broken into in the parking lot and the back security door to its premises was damaged when someone tried to break in. Delta complained that the parking lot was not kept adequately lit, that a security gate was not kept locked after business hours, and that there was no sign posted that warned of video surveillance or stated "no trespassing" as agreed upon by Mendel in response to Delta's security complaints.

In July 2001, Mendel filed a claim in magistrate court against Delta for late fees and past due rent. Delta filed an answer in August 2001 and asserted a counterclaim for diminution in rent based upon Mendel's failure to keep the premises safe. In November 2001, Delta amended its counterclaim to add a claim for a diminution of rent based upon Mendel turning off the water to its premises and for the unreimbursed expense of repairing the back service door. In December 2001, Delta vacated the premises based upon alleged constructive eviction by Mendel.

Mendel moved for partial summary judgment in its favor on its amended complaint for rent, late fees, and Delta's failure to pay its tax proration, as well as on Delta's counterclaim. Delta opposed the motion, arguing that genuine issues of fact existed as to its constructive eviction defense, as well as Mendel's liability to it for diminished rental value and property damage expenses. The trial court granted Mendel's motion for rent, late fees, prejudgment interest, and the tax proration. It also granted summary judgment in favor of Mendel on Delta's counterclaim for diminution in rent based upon the termination of its water supply. The trial court denied summary judgment to Mendel on the remaining portions of Delta's counterclaim.

1. Delta asserts that the trial court should have denied summary judgment to Mendel on its claim for rent and late fees based upon its constructive eviction defense. The two...