Fennelly v. Lyons

• Citation: 775 S.E.2d 587,333 Ga.App. 96
• Decision Date: 13 July 2015
• Docket Number: No. A15A0506.,A15A0506.
• Parties: FENNELLY v. LYONS.
• Court: United States Court of Appeals (Georgia)

333 Ga.App. 96
775 S.E.2d 587

FENNELLY
v.
LYONS.

No. A15A0506.

Court of Appeals of Georgia.

July 13, 2015.

775 S.E.2d 589

Pekor & Associates, David Andrew Cox, Charles B. Pekor Jr., Atlanta, for Appellant.

Carlock, Copeland & Stair, Douglas W. Smith, William Kent Owens Jr., Atlanta, for Appellee.

Opinion

DILLARD, Judge.

333 Ga.App. 96

William Fennelly appeals the trial court's grant of summary judgment in favor of Samuel Lyons, his former landlord, as to his complaint alleging claims for invasion of privacy; trespass; wrongful eviction; trover and conversion; negligent and intentional infliction of emotional distress; and interference with enjoyment of property. On appeal, Fennelly argues that (1) the trial court's decision was contrary to Georgia law; (2) the trial court erred in finding that Lyons could legally take possession of or destroy his personal property after obtaining a writ of possession; (3) the magistrate court had the authority to vacate Lyons's writ of possession, and thus, the writ was void on its face; (4) the trial court erred in finding that Lyons was not liable for conversion; and (5) the trial court erred in finding that he could not recover damages for negligent or intentional infliction of emotional distress. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to Fennelly (i.e., the nonmoving party),¹ the evidence shows that Lyons owned property located at 254 Acres Way in Woodstock, Georgia (the “Property”), and on May 1, 2010, he leased that residence to Fennelly with the option to purchase it. Then, on October 3, 2011, the parties amended the lease to be a month-to-month agreement, which allowed either party to terminate the lease at any time by giving the other party 30 days' notice. And on July 12, 2012, Lyons sent such a notice to Fennelly, terminating the lease and informing him that he must vacate the Property on or before August 15, 2012. The notice, which misspelled Fennelly's name as “Billy Fennell,” was sent to the leased address via certified mail.

On August 16, 2012, when Fennelly had still not vacated the Property, Lyons filed an affidavit for a summons of dispossessory, alleging that Fennelly owed $3,550 in past-due rent, that he had held

333 Ga.App. 97

the property over beyond the term of the lease, and that he refused to deliver possession of the premises to Lyons. In addition, Lyons requested that the summons—which also misspelled Fennelly's surname as “Fennell”—be delivered via “tack and mail” if personal service was unsuccessful. The sheriff's entry of service indicated that the summons was filed on August 17, 2012, and three days later, it was posted to the door of the Property and sent via first class mail to the leased address.

In a letter dated August 18, 2012, Fennelly informed Lyons that he was spending the month of August in New Jersey with family and that he planned to vacate the Property during the last week of September. The letter also notified Lyons of two mailing addresses for Fennelly, one of which was in Kennesaw, Georgia, and one of which was in Oceanport, New Jersey. The certified-mail receipt indicated that Fennelly's letter was mailed on August 20, 2012, but Lyons testified

775 S.E.2d 590

that he did not receive the letter until after evicting Fennelly in mid-September.

Subsequently, on August 29, 2012, Lyons requested a writ of possession from the magistrate court, alleging that Fennelly had not filed an answer in the eviction proceedings. The court granted the request on September 6, 2012, and issued a writ of possession to Lyons's attorney, who was acting as his agent. In a letter postmarked September 10, 2012, which was mailed to Fennelly's New Jersey address, Lyons informed Fennelly that, unless he vacated the Property by September 15, 2012, Lyons would exercise his legal right under the writ of possession to remove and dispose of any personal property left inside the house.

On September 17, 2012, when Fennelly had still not vacated the leased residence, Lyons, along with a deputy sheriff, executed the writ of possession and evicted Fennelly from the Property. The sheriff advised Lyons that Fennelly had 24 hours to claim his property or it would be deemed abandoned and Lyons could then dispose of it in any manner that he saw fit. Lyons hired a moving company to remove Fennelly's personal property from the home and place it in the driveway. Then, after 24 hours had passed and most of Fennelly's property was still in the driveway, Lyons began disposing of it. Lyons testified that many of Fennelly's personal items were donated to charity and some items, including several cars, were hauled off to unknown locations. Further, he testified that, at some point after the eviction, Fennelly returned to the Property and asked if he could have his dining-room table and chairs. Lyons offered to sell him the dining-room set for $200, but by the time Fennelly returned with the money, Lyons had already sold it to someone else. When asked why he would offer to sell Fennelly his own property, Lyons reiterated that he

333 Ga.App. 98

had been advised that, after the first 24 hours, he could dispose of Fennelly's property in any manner he saw fit.

On December 7, 2012, approximately three months after the writ of possession was issued, Fennelly filed a motion with the magistrate court asking the court to reconsider its dispossessory judgment and arguing that there were numerous deficiencies in the eviction process. Subsequently, on December 17, 2012, the magistrate court granted Fennelly's motion and vacated the September 2012 writ of possession. In relevant part, the court found that the writ of possession was a nullity because the supporting affidavit and sheriff's return of service both used the name “Billy Fennell,” which is different than “William A. Fennelly,” the name used in Fennelly's lease and in all of his correspondence. Thus, because the affidavit and return of service were addressed to the wrong party, the court found that it lacked “jurisdiction” over Fennelly and the Property when it issued the writ of possession.²

On April 10, 2013, Fennelly filed the instant action against Lyons, alleging claims of wrongful eviction, trespass, and conversion.³ Discovery ensued, and on April 1, 2014, Lyons filed a motion for summary judgment as to all of Fennelly's claims. But before responding to the motion, Fennelly filed an amended complaint, adding claims for invasion of privacy, negligent and intentional infliction of emotional distress, and interference with enjoyment of property. After Fennelly responded to the summary-judgment motion, Lyons filed a reply, seeking summary judgment as to the new claims raised in the amended complaint.

Ultimately, the trial court granted summary judgment in favor of Lyons, finding that, as to the claims of invasion of privacy, trespass, and interference with enjoyment of property, none of the alleged tortious conduct occurred before the writ of possession was executed, and that once a writ of possession is issued, a “landlord should not be liable for his subsequent entry onto the property, eviction, and removal of [the] tenant's property.” The court further determined that, even though the writ of possession was later vacated, it was nevertheless a valid court order when it was executed by law enforcement under the color of law. Thus, because

775 S.E.2d 591

Lyons had a valid writ of possession at the time of the eviction, the court found that he was not liable for the alleged tortious conduct stemming from the eviction. Further, as to Fennelly's conversion claim, the trial court noted that,

333 Ga.App. 99

after the writ of possession was executed, his personal property was deemed abandoned and Lyons was not liable to him for the disposition of that property. In addition, the court found that Fennelly could not recover for negligent infliction of emotional distress because he did not suffer a physical injury, which is a prerequisite to recovery. Finally, as to Fennelly's claim for intentional infliction of emotional distress, the court determined that no rational trier of fact could find that Lyons's conduct was “extreme and outrageous” because his actions in evicting Fennelly were taken based on the issuance of a writ of possession.

Thereafter, Fennelly filed a motion for the trial court to reconsider its grant of summary judgment to Lyons. On August 21, 2014, the court denied this motion, but the next day, contemporaneously with his notice of appeal, Fennelly filed new evidence—i.e., an affidavit and three depositions. Lyons moved to dismiss Fennelly's appeal or to strike the post-judgment evidence from the record. This motion was denied, but the court noted that an appellate court will not consider evidence that the trial court did not have in the record when an appealed decision was rendered.⁴ This appeal by Fennelly follows.

To begin with, we note that summary judgment is appropriate when the moving party can show that there is “no genuine...