Anita Holdings, LLC v. Outlet Mall of Savannah, LLC.

• Decision Date: 27 October 2020
• Docket Number: A20A0980
• Citation: 357 Ga.App. 403,850 S.E.2d 843
• Parties: ANITA HOLDINGS, LLC v. OUTLET MALL OF SAVANNAH, LLC.
• Court: Georgia Court of Appeals

357 Ga.App. 403

850 S.E.2d 843

ANITA HOLDINGS, LLC

v.OUTLET MALL OF SAVANNAH, LLC.

A20A0980

Court of Appeals of Georgia.

October 27, 2020

Ellis Painter Ratterree & Adams, Quentin L. Marlin, Philip M. Thompson, for appellant.

Oliver Maner, Patrick T. O'Connor, T. Lawrence Evans, for appellee.

Hodges, Judge.

In this appeal from a dispossessory action, Anita Holdings, LLC ("Anita") challenges orders by the State Court of Chatham County that awarded a writ of possession to Outlet Mall of Savannah, LLC ("Outlet Mall"). Specifically, Anita contends that the trial court failed to: (1) credit its tender of the amount due as a complete defense to the dispossessory pursuant to OCGA § 44-7-52 (a) ; and (2) require Outlet Mall to follow the correct dispossessory procedures outlined in OCGA § 44-7-55 rather than simply attempting to renew expired writs of possession. Because we conclude that Outlet Mall failed to properly initiate a dispossessory action and the trial court failed to adhere strictly to the dispossessory provisions codified at OCGA § 44-7-50 et seq., we vacate the trial court's orders and remand this case with instruction to dismiss Outlet Mall's purported dispossessory action.

The procedural history of this case, though somewhat convoluted, is critical to a proper evaluation of the parties’ arguments. Anita and Outlet Mall entered into a lease agreement on February 3, 2015, allowing Anita to operate a Johnny Rockets restaurant in the Tanger Outlets shopping center in Pooler, Chatham County. Relevant to this appeal, Section 17 (a) of the parties’ lease defined "Default" as occurring, in part,

(i) If Tenant fails to make any payment of rent (or any part thereof) required to be paid hereunder when the same shall become due and payable and such failure continues for five (5) days after written notice that the same is due;

... or

(ix) If Tenant shall be given three (3) notices of monetary breach in any rolling twelve (12) month period pursuant to this Section 17 (a) notwithstanding any subsequent cure of the breach identified in such notices (hereinafter a "Chronic Default").

Following a prolonged period in which Anita failed to pay rent as agreed, Outlet Mall terminated its lease on August 31, 2018, and filed a dispossessory affidavit seeking a writ of possession on September 13, 2018, asserting that Anita "[f]ails to pay rent now due on said building and premises" and claiming an amount due of $52,660.40. Anita answered, denied liability for the amount stated, and tendered instead the amount of $13,495.46. However, Outlet Mall asserted that Anita's continued failure to pay rental amounts due constituted a "Chronic Default" and rejected Anita's tender. In an October 31, 2018 order, the trial court ordered Anita to deposit "all past due and current rent due" under the parties’ lease within ten days. But Anita's tender of the amounts due was tardy and, following a bench trial, the trial court granted Outlet Mall's petition for a writ of possession on January 8, 2019, and issued a writ of possession on the same date. Anita appealed the trial court's orders to this Court, but we dismissed Anita's appeal on May 22, 2019, due to its failure to file an appellant's brief.¹

After Anita filed its notice of appeal, the trial court, in a February 6, 2019 consent order, ordered Anita to pay an additional $22,764.62 in past due rent and future monthly rent payments, for the duration of Anita's appeal, into the court's registry pursuant to OCGA § 44-7-56. When Anita failed to pay the past due rent amounts by the date required in the trial court's order, Outlet Mall moved for immediate possession of the premises. Although Anita paid the past due rent and monthly rents for March and April 2019 into the registry of the court, the trial court determined that each payment was late and, therefore, awarded Outlet Mall a second writ of possession on April 3, 2019.

Anita then filed a voluntary petition for bankruptcy on April 19, 2019. Outlet Mall moved for relief from the automatic stay in bankruptcy on May 1, 2019, which the bankruptcy court granted on October 24, 2019.² The trial court issued another writ of possession on October 25, 2019; however, in response to Anita's arguments that the trial court erred in awarding a writ of possession in the absence of an application, the trial court vacated the writ in an October 31, 2019 order.³

Outlet Mall filed a pleading titled "Application for Writ of Possession" on November 1, 2019, in which it asked the trial court to take judicial notice of the prior dispossessory proceedings and issue a "new writ of possession pursuant to OCGA § 44-7-55 (d)." Anita answered and tendered $60,000, relying upon an account ledger provided by Outlet Mall on October 28, 2019, showing a balance due of $57,137.14, and claimed the tender as a complete defense. In reply, Outlet Mall asserted that the purported tender did not provide Anita a defense because Outlet Mall's dispossessory action was not based upon a nonpayment of rent and that, in any event, the amount tendered was incorrect.⁴ The trial court, relying upon its findings from the prior dispossessory action, granted Outlet Mall's "application" and issued a writ of possession on November 14, 2019. After the trial court signed the order and the writ, but before each had been docketed with the clerk's office and served upon the parties, Anita filed a response to Outlet Mall's reply, which the trial court construed as a motion for reconsideration and denied in a November 15, 2019 order. Anita filed its notice of appeal on the same date, and this appeal followed.

1. Considering Anita's second enumeration first,⁵ Anita argues that the trial court erred in failing to enforce the correct process to obtain a writ of possession pursuant to OCGA § 44-7-50 et seq. Specifically, Anita asserts that Outlet Mall should have applied for a new writ of possession rather than simply attempting to revive the allegedly expired writs, as there is no method to renew a writ of possession in view of the amendment adding OCGA § 44-7-55 (d). On this point, due to the manner in which the parties have addressed this issue, we agree.

In Georgia, "[t]he exclusive method whereby a landlord may evict a tenant is through a properly instituted dispossessory action filed pursuant to OCGA § 44-7-50 et seq." Steed v. Fed. Nat. Mtg. Corp. , 301 Ga. App. 801, 805 (1) (a), 689 S.E.2d 843 (2009) ; see also Taylor v. Carver State Bank , 177 Ga. App. 856, 858 (3), 341 S.E.2d 502 (1986) ("A dispossessory is a summary proceeding to determine the disposition of the property pending trial of any contested issues."), abrogated on other grounds by Hill v. Levenson , 259 Ga. 395 (1), 383 S.E.2d 110 (1989). "A dispossessory proceeding is statutory and must be strictly construed and observed." (Citation and punctuation omitted.) Skelton v. Hill Aircraft & Leasing Corp. , 175 Ga. App. 144, 145, 333 S.E.2d 14 (1985). And

[w]here the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. In fact, where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. Accordingly, the ordinary signification shall be applied to all words.

(Citations and punctuation omitted.) Blakemore v. Dirt Movers, Inc. , 344 Ga. App. 238, 241, 809 S.E.2d 827 (2018).

To that end, "[i]n all cases when a tenant ... fails to pay the rent when it becomes due ..., [the] owner may ... demand the possession of the property so rented, leased, held, or occupied." OCGA § 44-7-50 (a).⁶ If the tenant refuses or fails to deliver possession upon demand, the owner may present an affidavit seeking a writ of possession to a court with appropriate jurisdiction. Id. A summons is then issued to the tenant notifying the tenant that an answer to the petition is due within seven days. OCGA § 44-7-51 (a), (b). If the tenant files an answer, "a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record[,]" and "[e]very effort should be made by the trial court to expedite a trial of the issues."⁷ (Emphasis supplied.) OCGA § 44-7-53 (b).

If, on the trial of the case, the judgment is against the tenant, judgment shall be entered against the tenant for all rents due and for any other claim relating to the dispute. The court shall issue a writ of possession, both of execution for the judgment amount and a writ to be effective at the expiration of seven days after the date such judgment was entered....

OCGA § 44-7-55 (a). Finally, and of particular relevance to this case, the General Assembly recently added OCGA § 44-7-55 (d), effective July 1, 2019, which provides that

applications for execution of a writ of possession shall be made within 30 days of issuance of the writ of possession unless such application for said writ is accompanied by an affidavit showing good cause for the delay in applying for execution of the writ. The failure to execute a writ in conformity with this Code section shall require the applicant to apply for a new writ.

(Emphasis supplied.)

In this case, Outlet Mall previously obtained writs of possession against Anita on January 8, 2019 and April 3, 2019. However, neither was executed: the first writ was the subject of a dismissed appeal, while the second was stayed by Anita's bankruptcy petition. Believing that the prior writs were unenforceable in view of the amendment adding OCGA § 44-7-55 (d),⁸ rather than applying to execute either writ, with an affidavit explaining the delay, Outlet Mall filed a pleading it titled "application for a writ of possession" on November 1, 2019. OCGA § 44-7-55 (d). Stated otherwise, rather than attempting to execute either of the prior writs it successfully obtained, Outlet Mall sought an additional, renewed writ in a new civil action. It is here that Outlet Mall and the trial court departed from the requirements of...