Dataforensics, LLC v. Boxer Property Management A/A/F Boxer F2, L.P.Dataforensics, LLC v. Boxer Property Management A/A/F Boxer F2, L.P.
- Reporters:
- , ,
- Before:
- Brown, Doyle, Reese
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
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 services areas of the Building . . .
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
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
[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
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.” (Citations omitted.) Mariner Healthcare v. Foster, 280 Ga. App. 406, 409 (2) (634 SE2d 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 SE2d 864) (2019).
Dataforensics’ contention that Section 7 (c) is inapplicable or alternatively that its applicability is ambiguous is without merit. By its own terms, Section 7 (c) of the lease applies to 7 (a), which includes Boxer‘s obligation to keep the premises at “reasonable temperatures . . . defined as 72 to 74 degrees Fahrenheit.” As the trial court found in its order, this provision contemplates a failure to provide, stoppage, or interruption of water, electricity, heat, and air conditioning, and “[t]hat did not occur here. [Boxer] provided heating and air, just not at the agreed-upon temperature.” In essence, Dataforensics seeks to rewrite the lease for repeated rather than continuous temperatures outside the “reasonable” range. This we cannot do. See Miller v. GGNSC Atlanta, 323 Ga. App. 114, 123 (2) (746 SE2d 680) (2013).
The nearest support in Georgia law for Dataforensics’ contention in this regard is
“A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.”
(b) Spoliation. Dataforensics also contends that the trial court erred in granting summary judgment to Boxer because “genuine issues of material fact remain regarding whether [Boxer] spoliated evidence.” We conclude that Dataforensics failed to preserve this argument as a ground to preclude the entry of summary judgment in Boxer‘s favor.
On the day prior to the summary judgment hearing, Dataforensics filed a motion for sanctions against Boxer for spoliation of evidence, asserting that Boxer had failed to preserve “temperature readings from the Energy Management System (EMS)” as well as “readings from portable temperature loggers placed within [the premises] for several months beginning in either 2018 or 2019.” Dataforensics pointed to a June 4, 2018 letter sent to Boxer, “provid[ing] notice to [Boxer] to
In the analogous context of a discovery motion, this Court has held that a failure to invoke a ruling by the trial court on discovery issues prior to the court‘s resolution of a motion for summary judgment does not render the summary judgment ruling premature. See Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 34 (1) (766 SE2d 497) (2014) (finding summary judgment issues were ripe for adjudication in case where “the record contains no indication that [appellant] asked the trial court for a continuance of the summary judgment hearing or a delay in its ruling until the
In the case before us, Dataforensics apparently seeks to avoid the waiver issue by asserting spoliation only as a genuine issue of material fact precluding summary judgment as opposed to enumerating as error the trial court‘s failure to rule on its motion for spoliation sanctions. Without a ruling by the trial court on its claim of spoliation, Dataforensics cannot use the unresolved issue of spoliation to assert that
(c) Limitation of Liability. Dataforensics also contends that the trial court erred in granting summary judgment in favor of Boxer on Dataforensics’ counterclaim for breach of contract based on a limitation of liability clause in the lease. We agree.
Relying on
“Provisions severely restricting remedies[, such as Section 25 of the lease] act as exculpatory clauses and therefore should be explicit, prominent, clear and unambiguous.” (Citation and punctuation omitted.) Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 644-645 (1) (490 SE2d 124) (1997) (contract provision precluding either party from recovering any lost profits, or any incidental, special, or consequential damages acted as exculpatory clause).
In determining whether a limitation of liability clause or an exculpatory clause is sufficiently prominent, courts may consider a number of factors, including whether the clause is contained in a separate paragraph; whether the clause has a separate heading; and whether the clause is distinguished by features such as font size.
(Citation and punctuation omitted.) Warren Averett, 349 Ga. App. at 484 (1) (b). The provision at issue is the same font size as that used throughout the entirety of the lease, and it is not capitalized, italicized, or set in bold type for emphasis. See, e.g., Parkside Center v. Chicagoland Vending, 250 Ga. App. 607, 611 (2) (552 SE2d 557) (2001) (clause at issue had no separate paragraph heading, and the typeface was the same size as in the surrounding paragraphs). Nor is this provision set off in a separate
Boxer contends summary judgment on Dataforensics’ counterclaim was proper because Dataforensics only plead for special damages, and “when allegations are insufficient to authorize recovery of any special damages and there is no prayer for general damages, plaintiff is not entitled to nominal damages.” East Side Lumber & Coal Co. v. Barfield, 195 Ga. 505 (24 SE2d 681) (1943). However, this principle arose prior to the adoption of the Civil Practice Act and is no longer applicable.
While after the advent of the Civil Practice Act this [C]ourt in at least two instances brought forward the old rule disallowing nominal damages where only unrecoverable special damages are sued for[,] those holdings appear suspect in view of the demise of the old procedural rules concerning issue pleading and the construction of the pleading against the pleader.
(Citations and punctuation omitted.) Bradley v. Godwin, 152 Ga. App. 782, 786-787 (3) (264 SE2d 262) (1979) (physical precedent only). “[U]nder the Civil Practice Act it is not necessary to pray specifically for general or nominal damages in order to
Because “the lack of evidence regarding the actual amount of damages is not dispositive on a motion for summary judgment in a breach of contract case,” and Dataforensics is not precluded from recovering nominal damages,5 the trial court erred in granting summary judgment to Boxer on the counterclaim. (Citation and punctuation omitted.) 6428 Church Street, LLC v. SM Corrigan, LLC, 352 Ga. App. 437, 444 (3) (834 SE2d 603) (2019) (“because in every case of breach of contract, the injured party has a right to damages, but, if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action“) (citation and punctuation omitted).
2. Dataforensics also appeals the trial court‘s order disbursing to Boxer the rent Dataforensics had paid into the court registry. According to Dataforensics, the funds
“When, in an action for rent, title is shown in the plaintiff and occupation by the defendant is proved, an obligation to pay rent is generally implied.”
The court shall order the clerk of the court to pay to the landlord the payments claimed under the rental contracts paid into the registry of the court as said payments are made; provided, however, that, if the tenant claims that he or she is entitled to all or any part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the landlord without delay only that portion of the funds to which the tenant has made no claim in the proceedings or may make such other order as is appropriate under the circumstances. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a determination of the issues by the trial court. If either party appeals the decision of the trial court, that part of the funds equal to any sums found by the trial court to be due from the
landlord to the tenant shall remain in the registry of the court until a final determination of the issues. The court shall order the clerk to pay to the landlord without delay the remaining funds in court and all payments of future rent made into court pursuant to paragraph (1) of subsection (a) of this Code section unless the tenant can show good cause that some or all of such payments should remain in court pending a final determination of the issues.
Given our holding in Division 1, affirming the trial court‘s grant of summary judgment to Boxer on its claim to collect rent and finding that Dataforensics is not entitled to abate rent under the plan language of the lease, the rent paid into the registry is no longer “an issue of controversy in the litigation.” Additionally, the language of
Judgment affirmed in part and reversed in part. Doyle, P. J., and Reese, J., concur.
Notes
(1) that the landlord in consequence of his failure to keep the rented building repaired allowed it to deteriorate to such an extent that it had become an unfit place for the defendant to carry on the business for which it was rented, and (2) that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant‘s business.(Citation and punctuation omitted.) Delta Cleaner Supply Co. v. Mendel Drive Assoc., 286 Ga. App. 227, 229 (1) (648 SE2d 651) (2007). Moreover, “there must be some grave act of a permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises before a constructive eviction will result.” (Citation and punctuation omitted; emphasis in original.) Id. In this case, there is no evidence to support any of these elements.