No Legal Duty to Mitigate Damages in Retail Lease

The Court of Appeals affirmed summary judgment in favor of a shopping center landlord in its suit for breach of two shopping center leases.  Sirdah v. North Springs Assocs. LLLP, Case no. A10A0329, Decided June 8, 2010.  The court reiterated that, with two limited exceptions, the duty to mitigate under OCGA § 13-6-5 does not apply to lease contracts.   In Georgia, "if a tenant abandons lease premises without authorization prior to the expiration of the term, the landlord is not required to mitigate damages by reletting the premises."  Allen v. Harkness Stone Co., 271 Ga. App. 397, 400, 609 SE2d 647 (2004).  The two exceptions to this rule are (1) if the landlord accepts the tenant's surrender, and (2) if the tenant successfully terminates the lease.  If either of these two things take place the landlord must take reasonable steps to re-lease the premises.  In this case, the tenant argued that the landlord had accepted surrender of the leased premises by acknowledging in a demand letter that the tenant had "given up possession of the premises through his return of his key" and that landlord had "accepted same."  The court was not persuaded by this argument.  It is settled law that the mere taking of the keys to the leased premises by a landlord does not give rise to an inference that the landlord accepted surrender. 

Action to Enforce Condominum Lien Must Be Brought in County of Defendant's Residence

In a case of first impression the Court of Appeals reversed the denial of the defendant's motion to transfer venue of an action to enforce a condominium association lien.  Foster v. Wilmington Plantation Owners Assn. Inc., Case Nos. A10A0262; A10A0374, Decided May 28, 2010.  The first case was filed in the county where the property is located, Chatham County, rather than Twiggs County where the defendants resided.  In the second case, also filed where the property was located, one of the two defendants admitted venue in Chatham County (wrongly) and the trial court held that the other defendant was a joint obligor.  The court of appeals reversed that holding as well, finding that the two defendants were not joint obligors.

William Foster owned four units in a Savannah condominum known as Wilmington Plantation.  In 2005, he sold two units to Ingelsby & Inglesby Real Estate Holdings ("Inglesby"), which had its office and registered agent in Fulton County.  In 2006, he sold two units to EKL Georgia, LLC, like Foster a resident of Twiggs County.  In 2008, Wilmington Plantation brought two actions for unpaid condominium association fees, one against Foster and EKL for the units owned by EKL, and one against Foster and Inglesby for the units owned by Inglesby.  In both actions, Wilmington alleged that venue was proper in Chatham County as as action for the foreclosure of real property.  Foster and EKL both answered and challenged venue, but Ingelsby admitted venue was proper in Chatham county.  Foster moved to transfer in both actions.  The trial court denied the motion in both cases.

With respect to the EKL units, the trial court held that a foreclosure action for condominium assessments is an "in rem" action against the property governed by Ga. Const. of 1983 Art. VI, Par II, Sec. II as a case respecting title to land.  Thus, reasoned the trial court, venue was proper where the condominium was located.  With respect to the Inglesby units, the court also found the case was an in rem action, but also noted that Inglesby had admitted venue, and held that venue was proper as to Foster as a joint obligor with Ingelsby.  The court cited to OCGA § 9-10-31 which states that a county court other than that of the defendant's residence can enter judgment against the defendant if the Georgia resident is a joint obligor, joint tort-feasor, joint promisor, copartner, or joint trespeasser.

OCGA § 44-3-109 of the Georgia Condominum Act provides for the creation and enforcement of liens for all sums lawfully assessed against any unit owner or condominium unit.  However, it does not specifically provide for venue of a foreclosure action; it states that the lien may be foreclosed in the same manner as other liens for the improvement of real property.  Thus, the Court of Appeals decided to look to cases involving the foreclosure of mechanics' and materialmens' liens under OCGA  § 44-14-360.  Foreclosure of lien suits for mechanics' liens must be brought in the county of residence of the defendant.  The trial court erred in holding that a foreclosure action is a case respecting title to land.  Cases respecting title to land are actions at law such as ejectment in which the plaintiff relies on legal title to recover possession of the land or of the land and mesne profits.  

As for the holding in the Inglesby case that Foster was a joint obligor, the Court of Appeals found this to be error as well.  At the time of the lawsuits, Foster had sold the two units to Inglesby, taking a purchase money mortgage from Ingelsby.  Under the Condominium Act the assessments are the personal obligation of the unit owner.  As a mortgagee Foster was not a unit owner.  Thus, he was not a joint obligor of the unit owner Inglesby.  Thus, venue was not proper as against Foster in Chatham County. 

Recreational Property Act Protects City from Claims of Spectator Hit by Falling Skydiver

The Georgia Court of Appeals held that the City of Euharlee could not be liable for injuries the plaintiff suffered when she was hit by a skydiver whose parachute partially failed because of immunity bestowed by the Recreational Property Act, O.C.G.A § 51-3-20.  Lowry v. Cochran, Case No. A10A0931, Decided June 1, 2010.  As a result, the Court reversed the trial court's denial of summary judgment for the City.  In this case the plaintiff was injured when she was hit by a skydiver whose parachute collapsed.  This occurred at a City of Euharlee Park during a festival that included a skydiving demonstration.  The plaintiff was standing just outside the landing area at the time.  She sued numerous parties including the city, the skydiver, and an inspector who approved the landing area.  The City moved for summary judgment and the trial court denied the motion, finding among other things that the City was not immune from suit under the Recreational Property Act. 

The Recreational Property Act states that its purpose is to encourage both public and private landowners to make their property available to the public for recreational purposes by limiting the liability of the landowner.  The Act provides that when a landowner invites or permits without charge any person to use its property for recreational purposes, it may not be held liable for personal injuries resulting from any act or omission of the landowner unless such injuries resulted from a "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity."  Although the city charged a nominal parking fee for the festival, Georgia case law is settled that such a nominal parking fee is not a "charge"for purposes of the Recreational Property Act.  The plaintiff argued that the city willfully failed to warn of dangers related to the skydiving demonstration, but the Court found that the record was replete with evidence of warnings to the spectators, such that at most the question of the adequacy of any warning would be a question of negligence, and not of willfulness.  Because of the Recreational Property Act the city could not be included in the negligence suit against the other parties.  As an aside, the plaintiff also argued that the City could be held strictly liable for conducting an inherently dangerous activity with the skydiving show.  The Court noted that there is no law concluding that skydiving is inherently dangerous to spectators, and rejected the claim.