Drury v. Sec. State Bank Drury

• Decision Date: 09 July 2014
• Docket Number: Nos. A14A0679,A14A0680.,s. A14A0679
• Citation: 328 Ga.App. 39,759 S.E.2d 635
• Court: Georgia Court of Appeals
• Parties: DRURY v. SECURITY STATE BANK. Drury v. Security State Bank.

328 Ga.App. 39
759 S.E.2d 635

DRURY
v.
SECURITY STATE BANK.
Drury
v.
Security State Bank.

Nos. A14A0679, A14A0680.

Court of Appeals of Georgia.

June 27, 2014.
Reconsideration Denied July 9, 2014.

[759 S.E.2d 637]

Kathy Drury, pro se.

Carol V. Clark, James Bradley McClung, for Appellee.

BOGGS, Judge.

In these consolidated appeals,¹ Kathy and Carl Drury appeal pro se from two trial court orders in this dispossessory action that was filed in Fulton County State Court (“the state court”). They contend that the state court erred by (1) concluding that they were tenants at sufferance rather than tenants at will following Security State Bank's (“the Bank”) foreclosure; (2) dismissing their appeal “on the grounds that issues of title had been decided;” and (3) ruling upon issues involving title to land over which the state court lacked jurisdiction.

In dispossessory actions, “[w]e apply a de novo standard of review to legal issues decided by the trial court, and factual findings made by the trial court shall not be set aside unless clearly erroneous.” (Citation and footnote omitted.) Owens v. Bank of America, N.A., 304 Ga.App. 323, 696 S.E.2d 379 (2010). The record shows that on November 2, 2010, the Bank foreclosed upon Fulton County property owned by the Drurys that had been used to secure a $1.5 million loan. On July 19, 2011, the Bank filed a petition for a writ of dispossession in Fulton County State Court alleging that the Drurys were tenants at sufferance. In their answer and counterclaim, filed on August 1, 2011, the Drurys contended that the Bank entered into a lease agreement with them that created a tenancy at will and asserted promissory estoppel as a bar to summary eviction. They also asserted a claim for wrongful eviction “[s]ubject to and without waiving any claim that the underlying foreclosure is invalid and should be set aside.”

On August 19, 2011, after the Bank sought a writ of possession, the Drurys filed an action in Telfair Superior Court seeking to set aside the foreclosure of their Fulton County property and an injunction to preclude their eviction. The Bank filed a counterclaim in the Telfair County action seeking a declaration that its foreclosure was lawful. On September 23, 2011, the Drurys filed another action against the Bank in Fulton County Superior Court, seeking the same relief that they had requested in the Telfair County action. On September 26, 2011, the Drurys dismissed their Telfair County complaint, and the Bank objected to the dismissal under OCGA § 9–11–41(a)(2), based upon its pending counterclaim.

On August 25, 2011 and September 29, 2011, the trial court in the Fulton State dispossessory action held evidentiary hearings on the issue of whether the Drurys were tenants at will or tenants at sufferance. On January 12, 2012, the state court entered an order concluding that “no month to month tenancies existed or exist as was alleged and testified to by the Defendants, and that the Defendants are tenants at sufferance, following the foreclosure.” Based upon the actions pertaining to the validity of the foreclosure in the Fulton and Telfair Superior Courts, the state court stated in its order that it would consider a stay of the writ of possession. On January 18, 2012, the day before the writ of possession became effective, the Drurys filed a notice of appeal from the state court's order.

On March 14, 2012, before the December 9, 2013 docketing of this appeal of from the state court's order, the Drurys' Fulton Superior Court action was dismissed for a variety of reasons. This court affirmed the dismissal in an unpublished opinion on April 19, 2013. On May 18, 2012, the Telfair County court entered an order declaring the Bank's foreclosure valid. In April 2013, the Drurys' attempt to file an out-of-time appeal from the Telfair County order failed, because out-of-time appeals are not permitted in civil cases.

[759 S.E.2d 638]

In May of 2013, after this court resolved the pending appeals from the Fulton and Telfair Superior Court orders, the Bank moved to dismiss the Drurys' appeal in the present action on the ground of mootness and sought an immediate writ of possession. On July 25, 2013, the state court entered an order dismissing the Drurys' appeal as moot and issued another writ of possession with an immediate effective date. On July 30, 2013, the Drurys filed a notice of appeal from this order.

1. The Drurys contend that the state court erred by dismissing their first appeal in its July 2013 order, and we agree. While a trial court has authority to dismiss an appeal as moot, Attwell v. Lane Co., 182 Ga.App. 813, 814(1), 357 S.E.2d 142 (1987),² the Drurys' appeal from the state court's January 12, 2012 order was not rendered moot by the finality of the Telfair Superior Court order declaring the foreclosure legal and valid. The issue decided by the state court in its 2012 order was whether the Drurys were tenants at will or tenants at sufferance following the Bank's foreclosure. The legality and finality of the foreclosure did not render moot the Drurys' appeal of an order determining their status and legal rights following the foreclosure. We therefore reverse the state court's July 25, 2013 order dismissing the Drurys' appeal.

2. In their remaining enumeration of error, the Drurys' assert that the state court erred by concluding in its January 12, 2012 order that they were tenants at sufferance, as opposed to tenant at will, following the foreclosure. We disagree.

Tenants at will are entitled to 60 days' notice of termination under OCGA § 44–7–7, and a demand for possession following the expiration of this time period is a condition precedent to the institution of dispossessory proceedings under OCGA § 44–7–50(a). Trumpet v. Brown, 215 Ga.App. 299, 300(2), 450 S.E.2d 316 (1994).

A tenancy at sufferance differs from a tenancy at will in...