Dismuke v. Abbott

505 S.E.2d 58, 233 Ga. App. 844, 98 Fulton County D. Rep. 2935, 1998 Ga. App. LEXIS 1047
CourtCourt of Appeals of Georgia
DecidedJuly 29, 1998
DocketA98A1536, A98A1537
StatusPublished

This text of 505 S.E.2d 58 (Dismuke v. Abbott) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dismuke v. Abbott, 505 S.E.2d 58, 233 Ga. App. 844, 98 Fulton County D. Rep. 2935, 1998 Ga. App. LEXIS 1047 (Ga. Ct. App. 1998).

Opinion

Blackburn, Judge.

Following a bench trial, Diane Dismuke Abbott, as executor of the estate of R. T. Dismuke (Estate), appeals the trial court’s finding that Larry Dismuke was not indebted to the Estate for rent on a home he was inhabiting. Larry appeals the trial court’s findings: (1) that Larry was indebted to the Estate for rent on a storage shelter; (2) that Abbott, as administratrix, was not accountable for not renting certain real property held by the Estate; (3) that Larry acted unreasonably in failing to close an agreement with Abbott to buy certain residential real property held by the Estate; and (4) that certain bearer bonds were the property of the Estate. Because they arise from the same origin, Abbott’s appeal and Larry’s appeal have been consolidated herein for review.

Now in its third appearance before this Court,1 this case concerns the troubled administration of the estate of R. T. Dismuke. R. T. died on August 22, 1988, survived by his wife, Greta, and his four children, Diane Dismuke Abbott, Robert Larry Dismuke, Keith Dismuke, and Debbie Dismuke. Greta died in May 1991, and Larry became the executor of her estate. On March 15, 1993, Abbott, acting as administratrix of the estate of her father, filed for a declaratory judgment to determine whether certain assets belonged to the Estate. In this action, Abbott contended, among other things, that her brother Larry had inappropriately taken assets belonging to the Estate. Larry, in both his individual capacity and as executor of Greta’s estate, counterclaimed, alleging, among other things, that Abbott had mishandled their father’s estate. After a bench trial, the trial court, in a 35-page opinion, carefully considered 14 different points of contention between the parties. Both parties now appeal, contending that the trial court made numerous errors.

As an initial matter, we must note that “[t]he findings of fact in a nonjury trial are analogous to a jury verdict and will not be interfered with if there is any evidence to support them.” Lowry v. Hamilton, 268 Ga. 373, 374 (2) (489 SE2d 827) (1997).

1. Abbott contends that the trial court erred in finding that Dismuke was not indebted to the Estate for rent accruing from September 8, 1995 on Estate property located at 202 E. Franklin Street. We agree.

At the time of her death, Greta had a life estate in this property, [845]*845and Larry was living with her. After Greta died, this house became property of R. T.’s Estate; however, Larry remained in the house and continues to reside there. Initially, Larry paid no rent to the Estate. Abbott then brought suit against Larry, and, on October 28, 1994, a jury awarded back rent to the Estate in the amount of $12,350. On October 28, 1994, the trial court ordered Larry to vacate the property within 30 days, but he remained therein, and controversy concerning rent owed to the Estate continued. On December 5, 1994, the Estate notified Larry that rent was accruing as of that month on both the house in which he was residing, in the amount of $450 per month, and a storage shelter behind the house, in the amount of $200 per month. On September 8, 1995, the parties appeared in trial court on the Estate’s motion to evict Larry and announced that they had reached an agreement whereby Larry would buy the residential real property held by the Estate, including the house in which he was living. Both parties concur that this agreement is valid and enforceable against them. At that hearing, Larry’s counsel claimed that his client would carry out the sale within two to three weeks. At the present time, the sale remains unconsummated.

Based on these facts, the trial court concluded that, as of December 1994, an implied tenancy at will was created, whereby Larry agreed to rent the house and storage shelter for $650 per month. Larry does not appeal this finding, at least with regard to the house. The judge further found, however, that the purchase agreement entered on September 8, 1995 terminated this landlord-tenant relationship. As such, the trial court determined that Larry did not owe rent to the Estate following this date. We must disagree.

While it is true that “[wjhere a party enters upon land under a contract of purchase, landlord and tenant relationship does not come into existence,” MacKenna v. Jordan, 123 Ga. App. 801 (1) (182 SE2d 550) (1971), Larry was already occupying the property in question as a tenant on the date that the sales agreement was reached. At no point during the hearing at which this agreement was related to the court were there any discussions regarding the termination of Larry’s rental responsibilities. Rather, the discussion centered only on the basic terms of the sale, which Larry’s counsel indicated could be closed in a matter of weeks. Furthermore, there is no evidence that either party attempted to terminate the tenancy at will subsequent to September 8, 1995 pursuant to OCGA § 44-7-7. As such, there is no evidence that the agreement to sell the property terminated the tenancy, and the rental agreement must be considered separate and distinct from the sales contract. Accordingly, the tenancy at will between Larry and the Estate remains until appropriately terminated, and Larry is liable to the Estate for rent accruing after September 8, 1995.

[846]*8462. Larry contends that the trial court erred in finding that he was indebted to the Estate for rent on a storage shelter located behind the home in which he was residing. We disagree.

The trial court found that Larry actually used the storage structure, even though he claimed that he did not. Evidence was presented at trial that Larry stored certain items in the storage house and that he used the structure as a workshop. Furthermore, as with the house at 202 E. Franklin Street to which the storage facility was appurtenant, Larry became a tenant at will of the storage structure pursuant to his continued use thereof following the Estate’s December 5 letter. Accordingly, there was sufficient evidence to support the trial court’s determination that Larry was indebted to the Estate for rental of the storage facility. In addition, Larry remained liable for such rent following the sales agreement on September 8, 1995. See Division 1, supra.

3. Larry contends that the trial court erred in finding that Abbott, as administratrix, was not accountable for not renting Estate property located at 410 North Madison Avenue, arguing that the Estate lost money because insurance on the house was significantly more expensive due to its uninhabited state. We disagree.

Although a personal representative has a general duty to preserve and protect the value of an estate, there was some evidence produced at trial supporting the trial court’s determination that Abbott had not breached such duty by not renting the house in question. Evidence was produced at trial showing that this house lacks a working kitchen and has no central heating and air. Furthermore, Abbott testified that significant repairs would have to be made to the house to restore it to a habitable condition. In addition, the trial court found that Larry contributed to the Estate’s failure to rent the property. The record supports this finding, as, among other things, Larry admitted to using the driveway of this property for parking his cars. Although Larry contended that the house could be rented, he had no proof of the conditions inside the structure.

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Related

Dismuke v. Dismuke
394 S.E.2d 371 (Court of Appeals of Georgia, 1990)
Daniell v. Clein
425 S.E.2d 344 (Court of Appeals of Georgia, 1992)
MacKenna v. Jordan
182 S.E.2d 550 (Court of Appeals of Georgia, 1971)
Lowry v. Hamilton
489 S.E.2d 827 (Supreme Court of Georgia, 1997)
Williams v. McElroy
133 S.E. 297 (Court of Appeals of Georgia, 1926)
Dismuke v. Abbott
457 S.E.2d 837 (Court of Appeals of Georgia, 1995)

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Bluebook (online)
505 S.E.2d 58, 233 Ga. App. 844, 98 Fulton County D. Rep. 2935, 1998 Ga. App. LEXIS 1047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dismuke-v-abbott-gactapp-1998.