Cunina Brown Agard v. Prp Property Management, LLC

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, JJ.

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.
http://www.gaappeals.us/rules

March 3, 2020

In the Court of Appeals of Georgia
A19A2280. AGARD v. PRP PROPERTY MANAGEMENT, LLC
et al.

REESE, Judge.

Cunina Brown Agard filed a complaint for breach of contract, negligence, and

other related claims against PRP Real Estate, LLC, and US Diversified Residential

2JV LLC (the “Defendants”). She alleged that the Defendants failed to repair her

apartment, resulting in dangerous conditions and damages. The trial court entered two

summary judgment orders in favor of the Defendants. For the reasons set forth infra,

we dismiss the appeal to the extent Agard challenges the court’s first summary

judgment order, and affirm the court’s second summary judgment order.

The record shows that the Defendants are the owner and manager of an

apartment complex in Atlanta. Agard signed a lease with the Defendants beginning
in January 2016. In August 2016, Agard did not pay her rent, and the Defendants

initiated dispossessory proceedings in magistrate court. The magistrate court

ultimately issued a default judgment for the unpaid rent and a writ of possession in

September 2016. Agard vacated the apartment that month.

While living in the apartment, Agard complained about mold, frogs, bugs, and

snakes. She emailed her concerns to the Defendants on July 23, 2016. The Defendants

responded by having pest control treat her unit on July 27, August 10, and August 11.

The Defendants also inspected and cleaned her apartment for mold, and informed her

that the problem was due to not running the air conditioner. Agard, however, attested

in a deposition that she ran the air conditioner that summer.

After Agard left the apartment, she filed a complaint against the Defendants,

asserting claims for, inter alia, breach of contract, negligence, prejudice, and fraud,

and seeking compensatory and punitive damages. The Defendants filed a motion for

summary judgment, which the trial court granted on August 20, 2018, on all claims

except the breach of contract claim. The court certified the order as final under

OCGA § 9-11-54 (b).

The Defendants later filed a second motion for summary judgment on the

breach of contract claim. Agard responded to the motion, arguing that her pictures of

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the mold, snakes, and frogs created a genuine issue of material fact. She contended

that she was constructively evicted because she repeatedly complained about the

problems in the unit, but the Defendants did not make repairs.

After a hearing, which was not transcribed, the trial court granted the

Defendants’ motion for summary judgment on March 4, 2019. The court found that

the Defendants promptly responded to Agard’s concerns, and that Agard vacated the

unit due to her failure to pay rent, not because she was constructively evicted. Agard

filed a notice of appeal on March 25, 2019, seeking to appeal the court’s August 20,

2018 and March 4, 2019 summary judgment orders. This appeal followed.

“On appeal from the grant or denial of summary judgment, we conduct a de

novo review, with all reasonable inferences construed in the light most favorable to

the nonmoving party.”1 With these guiding principles in mind, we turn now to

Agard’s specific claims of error.

1. Agard seeks to appeal the trial court’s August 20, 2018 order, which denied

her motion to put the case on the next available trial calendar, denied her motion to

exclude certain evidence, and granted the Defendants’ motion for summary judgment

1
Forsyth County v. Waterscape Svcs., 303 Ga. App. 623 (694 SE2d 102)
(2010) (citation omitted).

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on all of her claims except for her breach of contract claim. We, however, lack

jurisdiction to consider that order because Agard did not file a notice of appeal within

30 days.

Ordinarily, where a grant a summary judgment does not dispose of all issues

in the case, a party has the option to appeal that order directly or wait until after the

entry of final judgment.2 However, “[b]ecause the trial court’s order designated its

grant of summary judgment as final under OCGA § 9-11-54 (b), [Agard] was required

to appeal any adverse rulings in that order within 30 days of [that] judgment’s entry.”3

“If an appellant fails to file a notice of appeal within 30 days of such an order, the

right to review the order is lost.”4

Here, the trial court certified its August 20, 2018 order as final under OCGA

§ 9-11-54 (b), and Agard’s March 25, 2019 notice of appeal was not filed with 30

days of that order. Accordingly, any portion of this appeal challenging the rulings in

2
See OCGA § 9-11-56 (h); OCGA § 5-6-34 (d); Jarallah v. Aetna Cas. & Sur.
Co., 199 Ga. App. 592, 593 (405 SE2d 510) (1991).
3
Bienert v. Dickerson, 276 Ga. App. 621, 622 (1) (624 SE2d 245) (2005)
(citation, punctuation, and footnote omitted).
4
Id. (citation, punctuation, and footnote omitted).

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the court’s August 20, 2018 order is not properly before us and is dismissed.5 What

remains is Agard’s challenge to the court’s March 4, 2019 order denying her motion

to add her husband as a party and granting the Defendants’ motion for summary

judgment on her breach of contract claim.

2. Agard argues that there were issues of material fact as to her breach of

contract claim. She contends that the Defendants did not make the repairs necessary

to fix the hazardous conditions of her apartment.

The trial court construed Agard’s remaining breach of contract claim as one

alleging constructive eviction.6 A tenant must establish two essential elements to

demonstrate constructive eviction:

(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

5
See Bienert, 276 Ga. App. at 621-622 (1); Jarallah, 199 Ga. App. at 593.
6
Agard’s complaint did not point to a specific breach of the lease agreement,
but instead alleged a breach generally. She stated later in the complaint that she was
constructively evicted. After the trial court issued its first summary judgment order,
the Defendants summarized her remaining breach of contract claim as a claim of
constructive eviction, and Agard did not dispute this characterization. We cannot
consider Agard’s arguments on appeal to the extent she claims that the Defendants
caused damages due to the Defendants’ negligence or the Defendants’ duty to repair
under OCGA §§ 44-7-13 and 44-7-14, because the trial court rejected her claims for
damages in its first summary judgment order. As discussed in Division 1, we lack
jurisdiction to review that order on appeal.

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 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.7

Put another way, there must be proof of

either an actual expulsion of the tenant, or some act of a grave and
permanent character done by the landlord with the intention of depriving
the tenant of the use of the demised premises. An act may be considered
grave in character if it renders the premises untenantable or unfit for the
use and benefit of the tenant in accomplishing one or more of the
substantial purposes of the lease.8

A tenant must show that her “use and enjoyment of the premises is not merely

rendered ‘uncomfortable.’”9

In this case, the trial court properly concluded that there was no evidence from

which a jury could find constructive eviction. Agard’s complaints did not render her

7
Jenkins v. Brice, 231 Ga. App. 843, 844 (1) (499 SE2d 734) (1998)
(punctuation and footnotes omitted).
8
George v. Hercules Real Estate Svcs., 339 Ga. App. 843, 852 (2) (b) (795
SE2d 81) (2016) (punctuation and footnote omitted).
9
Jenkins, 231 Ga. App. at 844 (1) (punctuation and footnotes omitted).

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unit uninhabitable.10 Nor did Agard demonstrate “acts of a grave and permanent

character”11 such that her use of the apartment “could not be restored to a fit condition

by ordinary repairs[.]”12 The Defendants promptly responded to her complaints by

cleaning the mold and deploying pest control. Accordingly, we affirm the trial court’s

grant of the Defendants’ motion for summary judgment on Agard’s breach of contract

claim.

3. Agard argues that the trial court erred in denying her motion to add her

husband as a party.

At the time Agard attempted to add her husband as a party, the only remaining

claim was her breach of contract claim. Her husband was not a party to the lease

agreement. “In order for a third party to have standing to enforce a contract, it must

10
See Jenkins, 231 Ga. App. at 844-845 (1) (leaky roof did not render house
uninhabitable).
11
George, 339 Ga. App. at 852 (2) (b) (punctuation and footnote omitted).
12
Id. (punctuation and footnote omitted).

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clearly appear from the contract that it was intended for his benefit.”13 A third party

beneficiary may only be created by the express terms of the contract.14

Here, Agard’s husband was not listed as a resident, tenant, or occupant under

the lease agreement. Accordingly, the lease did not clearly indicate that he was an

intended third-party beneficiary, and we affirm the trial court’s denial of Agard’s

motion to add her husband as a party.15

Judgment affirmed in part and appeal dismissed in part. Miller, P. J., and

Rickman, J., concur.

13
Perry Golf Course Dev. v. Housing Auth., 294 Ga. App. 387, 388 (1) (670
SE2d 171) (2008) (punctuation and footnote omitted).
14
Id. at 388-389 (1).
15
See Perry, 294 Ga. App. at 388-389 (1); Davis v. Phoebe Putney Health
Systems, 280 Ga. App. 505, 508-509 (3) (634 SE2d 452) (2006).

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