Mary Allen Realty & Management, LLC v. Jesse Harris

• Court: Court of Appeals of Georgia
• Decided: April 7, 2020
• Docket: A20A0523
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules).

April 7, 2020

In the Court of Appeals of Georgia A20A0523. MARY ALLEN REALTY & MANAGEMENT, LLC et al. v. HARRIS et al.

PHIPPS, Senior Appellate Judge.

In October 2018, Jesse Harris, Arquaviaus Harris and Andria Cox (collectively,

“Plaintiffs”) filed a pro se action in the Magistrate Court of Rockdale County against

their landlord, Sharon Shahadat, and her property manager, Mary Allen Realty &

Management, LLC (“Mary Allen Realty”), (collectively “Defendants”) for the

“violation of quiet enjoyment” because of events that gave rise to the early

termination of their lease. The Defendants filed an answer and a counterclaim,

seeking late fees owed under the lease as well as $25,000 in damages allegedly

caused by Plaintiffs’ water damage to the leased property and attorney fees. The case

was then transferred to the State Court of Rockdale County. After a bench trial, the trial court entered a judgment in favor of Plaintiffs in the amount of $15,145 because

the trial court found “a pattern of behavior on the part of the Defendants that rises to

the level of a breach of the implied covenant of quiet enjoyment.” Defendants appeal

from that order,1 arguing that the Plaintiffs had not proved the breach of the implied

covenant of quiet enjoyment and that the management company should not have been

liable for the damages. For the following reasons, we affirm.

“In a bench trial, the trial court’s findings will be upheld on appeal where there

is any evidence to support them. Findings of fact made by the trial court in a nonjury

trial may not be set aside unless they are clearly erroneous.” Hayes v. Alexander, 264

Ga. App. 815, 815 (592 SE2d 465) (2003).

Viewed in this light, the evidence shows that Shahadat is the owner and

landlord of 2220 Primrose Place Lane in Lawrenceville. Shahadat entered into an

“Exclusive Leasing/Management Agreement” with Mary Allen Realty to “exclusively

rent, lease, operate and manage” the property on Shahadat’s behalf. Mary Allen

Realty was authorized to procure a tenant and act as property manager.

On October 30, 2017, Shahadat entered into a 36-month lease with Plaintiffs

for the rental of the property at the rate of $1,945 per month. The lease identified

1 Plaintiffs did not file a response brief with this Court.

2 Shahadat as the landlord and Mary Allen Realty as the “Listing Broker” and

“Manager” of the property. The lease provided that the landlord had “the right to

terminate the Lease early upon not less than 60 days notice.”

During the move-in inspection, issues with the basement bathroom were

identified that caused a delay in the move in date.

Within the first month of moving into the home, Plaintiffs reported issues with the

plumbing and electricity to Mary Allen Realty. An electrician was dispatched to the

house, who determined that the electrical issue was merely a quirk of the house

requiring a switch to be flipped before the wall outlets would activate. The Plaintiffs

also emailed Mary Allen Realty about a plumbing issue involving a toilet that

frequently overflowed and low water pressure. After these complaints and other

instances where the Plaintiffs informed Mary Allen Realty, per the terms of the lease,

of issues in the house, Mary Allen Realty threatened the Plaintiffs in January 2018

with early termination because they made too many requests to repair things around

the house.

In July 2018, Mary Allen Realty instructed the Plaintiffs to be present at the

home so that a garage repairman could come. Mary Allen and the repairmen were late

to the scheduled appointment, so Mr. Harris left for work and let his minor child

3 escort Mary Allen into the home. While the adults were away from the house, the

Plaintiffs locked the master bedroom to keep a suicidal family member away from

harmful things, such as cleaning supplies and medicine. Mary Allen Realty threatened

to charge the Plaintiffs a $150 fine because the room was locked. During this

inspection, Mary Allen threatened the minor children and told them that they were

being evicted.

A year later, on September 10, 2018, Plaintiffs reported that the kitchen sink

“completely collapsed” while the family was cooking. They reported the issue to

Mary Allen Realty, who told them that Artisan Kitchen and Bath would call them to

arrange a repair. When the issue had not been repaired by September 20, 2018, the

Plaintiffs called code enforcement. It was repaired on September 21, 2018. The

Plaintiffs also reported an issue with the HVAC unit not being adequate to cool the

home appropriately.

Mary Allen Realty then exercised the early termination clause in the lease and

gave the Plaintiffs sixty days notice to vacate for failure to pay rent. The Plaintiffs

fought the termination in the Magistrate Court of Gwinnett County, showing that they

had timely tried to pay rent in cash, but that the bank did not accept it because of a

new policy.

4 The Plaintiffs notified Mary Allen Realty that the plumbing problems persisted:

there was smell of sewage in the home and low water pressure. Mary Allen wrote a

letter to the Plaintiffs instructing them that a plumber would arrive on October 17,

2018. However, the plumber never arrived. Plaintiffs continued to report the smell of

sewage and rotten eggs in the home to Mary Allen Realty.

Plaintiffs again reported a foul sewage smell in the home to Mary Allen Realty.

The plumber that was dispatched to the home stated that the home’s sump pump was

not working, that sewage was backed up into the home, and that it could not be fixed

that day because he needed to order a part. The plumbers did not return and on

November 7, 2018, the home flooded. The home became uninhabitable because there

was sewage-filled water damage on all three floors of the home, and the kitchen

ceiling was about to cave in. Rather than hire a restoration company to remediate the

damage, Mary Allen Realty sent a 17-year-old with a shop vac. Although the

Plaintiffs had to move to another home during this period, the rent was not prorated.

The Plaintiffs lost some furniture and possessions due to the flood and were

financially harmed as a result of having to move at the last minute.

The Plaintiffs then filed a pro se action in the Magistrate Court of Rockdale

County, which was later transferred to the Rockdale County State Court, for the

5 “violation of quiet enjoyment” because of events that gave rise to the early

termination of their lease. The Defendants’ counterclaim alleged that the Plaintiffs

“negligent[ly] caused this flood or intentionally did it in retaliation for the notice of

termination.” At the conclusion of the bench trial held in July 2019, the trial court

issued an order concluding that there “was a pattern of behavior on the part of the

Defendants that rises to the level of a breach of the implied covenant of quiet

enjoyment on a consistent basis for over half of the term the plaintiffs resided in the

lessor’s premises.” The trial court found in favor of the Plaintiffs and awarded them

$15,000 plus court costs. The trial court also found in favor of the Plaintiffs on the

Defendants’ counterclaim.

1. Appellants argue that the trial court erred by finding that they breached the

implied covenant of quiet enjoyment. Citing to George v. Hercules Real Estate Svcs.,

Inc., 339 Ga. App. 843 (795 SE2d 81) (2017), the Defendants argue that the Plaintiffs

did not prove their claim that the Defendants breached the implied covenant of quiet

enjoyment. It is true that in George, supra, this Court held that

[t]o constitute a breach of the covenant of . . . quiet enjoyment, an eviction or equivalent disturbance by title paramount must occur, and the mere existence of an outstanding paramount title will not constitute a breach. Further, a covenant for quiet enjoyment of the premises is

6 necessarily implied in every lease and goes to the extent of representing that the landlord has a good title and can give a free and unencumbered lease of the premises for the term stipulated. Thus, to establish a breach of quiet enjoyment, [the plaintiff] has the burden to prove that [the landlord] did not have good title to lease him the premises or that someone else had paramount title.

(Punctuation and footnotes omitted; emphasis omitted). Id. at 88 (2) (a) (i). Because

the plaintiff’s claims in George, supra, did not concern the issue of paramount title,

this Court held that they did not implicate the covenant of quiet enjoyment. In doing

so, this Court explicitly disapproved a long line of cases that conflated the standard

for the implied warranty of quiet enjoyment with constructive eviction. Id. See, e. g.,

Jaraysi v. Sebastian, 318 Ga. App. 469, 473 (1) (733 SE2d 785) (2012); Myung Sung

Presbyterian Church, Inc. v. North American Assoc. of Slavic Churches & Ministries,

Inc., 291 Ga. App. 808, 812-813 (3) (662 SE2d 745) (2008) (holding that “[a] lessee

who remains in possession of the leased premises may establish a breach of the

implied covenant of quiet enjoyment by showing that the lessor substantially

interfered with the lessee’s right to use and enjoy of the premises.” (citations and

punctuation omitted.))

7 However, the Defendants did not bring George, supra, decided nearly three

years before, to the trial court’s attention during the bench trial or in a motion for new

trial. In fact, the Defendants’ trial counsel argued to the trial court the law as it existed

under the cases recently disapproved by George, supra. See George, at 849-850 (2)

(a). The Defendants cannot now complain since they induced the error through their

own argument at trial. “A party will not be heard to complain of error induced by

[their] own conduct, nor to complain of errors expressly invited by him.” (Citation

omitted.) Video Warehouse, Inc. v. Newsome, 285 Ga. App. 786, 788 (648 SE2d 124)

(2007). “To consider the case on a completely different basis from that presented

below would be contrary to the line of cases holding, ‘He must stand or fall upon the

position taken in the trial court.’” (Punctuation and footnotes omitted.) Pfeiffer v. Ga.

Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002). Accordingly, the

Defendants have failed to assert a valid ground for reversing the trial court. See

Harper v. Hurlock, 281 Ga. App. 265, 266 (635 SE2d 874) (2006) (“Self-induced

error furnishes no ground for reversal”).

2. Appellants argue that the trial court erred by finding Mary Allen Realty, an

agent of the landlord, liable for a breach of implied covenant of quiet enjoyment.

However, because the Defendants did not raise this argument during the bench trial

8 below, they are now estopped from raising it for the first time in this Court. See

Nugent, supra.

Judgment affirmed. Barnes, P. J., and Gobeil, J., concur.