Porter v. Moschella ( 1979 )

Underwood, Judge.

In this dispossessory proceeding the landlord appeals from a grant to tenants of partial summary judgment on the question of his liability to them on their counterclaim seeking actual and punitive damages for his alleged failure to keep the premises in repair. Code Ann. §§ 61-111, 61-112. Landlord resisted the motion below asserting that he had properly responded to tenants’ notices and requests within a "reasonable time” of being notified (Stack v. Harris, 111 Ga. 149, 150 (36 SE 615) (1900)), in support thereof producing evidence as to the nature, date, and cost of repairs which he made. Tenants denigrate these efforts.

While we might resolve the issues of fact as did the trial court, "[o]n motion for summary judgment the court is not authorized to try and resolve issues of fact; the function of the court, and its only authorized function under this procedure, is to determine the existence of a genuine issue of material fáct.” Watkins v. Nationwide &c. Ins. Co., 113 Ga. App. 801, 802 (149 SE2d 749) (1966). As we are unable to hold that movants have carried their "burden to produce evidence which conclusively eliminates all material issues” as to the landlord’s liability (Metropolitan Life Ins. Co. v. Forsyth, 122 Ga. App. 463, 464 (177 SE2d 505) (1970)), we reverse and remand for further proceedings.

Judgment reversed.

McMurray, P. J., and Banke, J., concur. Argued May 2, 1979 — Decided. December 4, 1979. John F. Sweet, Valeria Edwards, for appellant. Richard K. Greenstein, for appellees.