Swim Dixie Pool Corp. v. Kraemer

• Decision Date: 11 February 1981
• Docket Number: No. 61024,61024
• Citation: 278 S.E.2d 448,157 Ga.App. 748
• Parties: SWIM DIXIE POOL CORPORATION v. KRAEMER et al.
• Court: Georgia Court of Appeals

Page 448

278 S.E.2d 448

157 Ga.App. 748

SWIM DIXIE POOL CORPORATION v. KRAEMER et al.

No. 61024.

Court of Appeals of Georgia.

Feb. 11, 1981.

Rehearing Denied March 4, 1981.

Tyler Dixon, Atlanta, for appellant.

William R. King, Atlanta, for appellees.

McMURRAY, Presiding Judge.

This action arose from a dispute between landlords (Dianne E. Kraemer and June C. Hoffman as trustee under the estate of Henry C. Kraemer) and tenant (Swim Dixie Pool Corporation) in regard to the lease of a building specially adapted and used for the retail merchandising of swimming pools and accessories. The lease was entered into on August 29, 1977, and provided for a term of 5 years beginning January 1, 1978, and ending December 31, 1982.

Soon after the tenant assumed possession of the premises disputes began to arise between the landlords and the tenant as to the condition and state of repair of the premises. In October, 1979, the tenant removed its business from the leased premises and had the utilities turned off.

The landlords (Kraemer and Hoffman, trustee, as plaintiffs) brought this action alleging several breaches of the lease agreement on the part of the defendant (tenant) and seeking judgment against defendant for rental arrearages, damages sustained by other breaches of the provisions of the lease, damages for defendant's removal and conversion of a sign, and 10% attorney fees. The defendant answered denying that the landlords were entitled to recover any sum in this action and raising several affirmative defenses.

Defendant's answer was filed December 1, 1979, and an amendment filed January 23, 1980, added an additional affirmative defense. On May 12, 1980, the day before the trial of the case, the defendant filed another amendment to its answer raising several additional issues identified as defenses.

On the trial of the case the jury returned a verdict in favor of the landlords for 8 months' rent in the sum of $25,800, plus 10% attorney fees of $2,580, and $1,200 for the sign which defendant had removed from the premises for a total verdict of $29,580. The defendant's motion for new trial was denied, and the defendant now appeals. Held :

1. Among the claims contained in defendant's second amendment to its answer filed the day before trial were allegations raising issues involving setoff and recoupment arising from the diminution in rental value of the premises due to the landlords' failure to maintain the premises in proper repair. Contrary to defendant's contention, setoff and recoupment are counterclaims and not defenses. See Gwinnett Commercial Bank v. Flake, 151 Ga.App. 578, 579-580(1), 260 S.E.2d 523.

As the setoff and recoupment claims arose from the same transaction as that set forth in the original pleading of the plaintiffs' complaint, these counterclaims are compulsory and should have been raised in defendant's original answer. See Code Ann. § 81A-113(a) (Ga.L.1966, pp. 609, 625). In view of the defendant's knowledge, at the time of its original answer, of the compulsory counterclaims set up in the second amendment to its answer, the length of time between the original answer and the attempt to raise these counterclaims, and the fact that the attempt to raise these counterclaims was on the eve of the trial, we cannot say that the trial court abused its discretion in denying leave to defendant to set up these counterclaims by amendment under the authority of Code Ann. § 81A-113(f), supra. Aycock v. Household Finance Corp. of Ga., 142 Ga.App. 207, 208(1), 235 S.E.2d 578.

"Where a landlord covenants to keep premises in repair, his failure to do so, whereby their use by the tenant is impaired, will not work a forfeiture of the rent, unless the premises become untenantable and a constructive eviction results. The remedy of the tenant is, after reasonable opportunity to the landlord, and failure by him to repair, to make the repairs himself and look to the landlord for reimbursement, or to occupy the premises without repair, and hold the landlord responsible for damages by action, or by recoupment to an action for the rent." Lewis & Company v. Chisolm, 68 Ga. 40(3). Thus any issue of partial failure or lack of consideration which did not amount to a constructive eviction could not be asserted by defendant as a defense but only as a counterclaim. The trial court was correct in so ruling. See also Dougherty v. Taylor & Norton Co., 5 Ga.App. 773, 774, 63 S.E. 928; Clark v. Sapp, 47 Ga.App. 91(1), 169 S.E. 692.

Defendant's first amendment to its answer raises only the defense of constructive eviction. Even if the second amendment to defendant's answer is so broadly construed as to present a counterclaim based on partial failure or lack of consideration, those claims were properly stricken. Code Ann. § 81A-113(f), supra; Aycock v. Household Finance Corp. of Ga., 142 Ga.App. 207, 208(1), 235 S.E.2d 578, supra.

2. Defendant enumerates as error the trial court's charge to the jury as to the law of mitigation of damages as contained in plaintiffs' requests 1 (repudiation and abandonment), 2 (notice of abandonment), 4 (not given), and 5 (constructive eviction). Plaintiffs' request to charge No. 4 was not given in charge to the jury; therefore defendant's enumeration of error in regard to plaintiffs' request to charge No. 4 will be disregarded.

Defendant contends that as a prerequisite before a landlord may allow property to stand idle and hold the tenant who has abandoned the premises liable for the entire rent, the landlord must notify the tenant of its refusal to accept the surrender of the premises. Defendant apparently draws this argument from a reading of Noble v. Kerr, 123 Ga.App. 319(1), 180 S.E.2d 601, upon which plaintiffs' request to charge No. 2 is predicated. Defendant contends that plaintiffs' request to charge No. 2 is not authorized by the evidence as there was no showing of the satisfaction of the prerequisite notice by the landlords to the tenant of their refusal to accept the surrender of the premises. Additionally defendant contends that plaintiffs' request to charge No. 1 is incorrect because it contains no language setting forth such a prerequisite.

These contentions apparently arise from the defendant mistakenly perceiving the facts set forth in Division 1 of Noble v. Kerr, 123 Ga.App. 319, 180 S.E.2d 601, supra, as setting forth a mandatory requirement. The facts in Noble v. Kerr, 123 Ga.App. 319, 180 S.E.2d 601, supra, include the statement that the landlord, upon receiving notice of the tenant's abandoning the premises, notified the tenant of his refusal to accept surrender of the premises and that he would attempt to relet the premises or sell the same, holding the tenant liable for any unpaid rental. These facts, along with others, were held to authorize the verdict in favor of the landlord and against the tenant for unpaid rentals in that case. Neither the language in this court's decision in Noble v. Kerr, 123 Ga.App. 319, 180 S.E.2d 601, supra, nor the cases cited in support thereof offer any support to defendant's contention that the notice made by the landlord to the tenant in that case was required as a prerequisite to the landlord's allowing the property to stand idle and hold the tenant liable for the entire rent. Therefore, plaintiffs' request to charge No. 1 is not deficient due to the absence of the language in regard to such prerequisite. Dehco, Inc. v. Greenberg, 105 Ga.App. 236, 238(2), 124 S.E.2d 311; Szabo Assocs. v. Peachtree-Piedmont Assoc., 141 Ga.App. 654, 655(1), 234 S.E.2d 119; Love v. McDevitt, 114 Ga.App. 734(1), 152 S.E.2d 705. However, any error in plaintiffs' request to charge No. 2 as to notice of abandonment favored the defendant and therefore must be deemed harmless. Mendel v. Pinkard, 108 Ga.App. 128, 137-138(4), 132 S.E.2d 217; Delta Corp. v. Knight, 109 Ga.App. 3, 7(5), 135 S.E.2d 56; Kickasola v. Jim Wallace Oil Co., 144 Ga.App. 758, 760(6), 242 S.E.2d 483. There is no merit in this complaint.

Plaintiffs'...