Om Shiv 2007, LLC v. Varsha 6-1-73, LLC

• Docket Number: A23A0613
• Decision Date: 06 June 2023
• Parties: OM SHIV 2007, LLC v. VARSHA 6-1-73, LLC
• Court: Georgia Court of Appeals

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OM SHIV 2007, LLC v. VARSHA 6-1-73, LLC

No. A23A0613

Court of Appeals of Georgia, Fourth Division

June 6, 2023

RICKMAN, C. J., DILLARD, P. J., and PIPKIN, J.

PIPKIN, Judge.

In this dispossessory action, Appellant landlord OM SHIV 2007, LLC appeals the trial court's ruling denying its motion for an amended order requesting a default judgment against Appellee tenant Varsha 6-1-73, LLC. For the reasons discussed below, we affirm.

Appellant initiated this dispossessory action on January 21, 2022, and named Varsha Patel as the defendant tenant of the property in question. After some procedural mishaps, Appellant filed a first amended affidavit for dispossessory on April 20, 2022 and served the affidavit and summons on Patel. Patel timely filed her answer and defenses, and also filed a motion to dismiss for failure to join the leasee - Appellee - as a necessary party to the action. The trial court held a hearing on the motion to dismiss and then, sua sponte, added Appellee to the action as a party defendant. Relevant to the issue at hand, the trial court stated in its order the following: "It is further ordered that [Appellee] shall file any answer or responsive pleading to this action within seven (7) days of service of the Summons or Acknowledgment of Service."

Thereafter, Appellant filed a second amended affidavit for dispossessory, adding Appellee as a party defendant. Appellee acknowledged service of the affidavit and summons on June 7, 2022, but did not file an answer to the amended pleading. Ten days later, a bench trial was held on the merits of the dispossessory action. During closing arguments, Appellant argued, for the first time, that it was entitled to a default judgement based upon Appellee's failure to file an answer to Appellant's second amended affidavit. On August 11, 2022, the trial court entered an order on the merits ruling in Appellee's favor; the order did not, however, address Appellant's claim to a default judgment. Appellant timely filed a "Motion to Amend and for New Trial" requesting, in part, that the trial court amend its August 11, 2022 order and conclude that Appellee "never filed an answer to controvert [Appellant's] claim for possession" and issue an immediate writ of possession. The trial court denied the motion, determining that Appellant's "filing of the Second Amended Affidavit for Dispossessory perfected the pleading for the assertion of the dispossessory claim against [Appellee], but, as an amended pleading, a responsive pleading by [Appellee] was not mandatory."

On appeal, Appellant's sole enumeration is that the trial court erred by failing to enter a default judgment against Appellee after failing to timely answer Appellant's second amended afidavit. In response, Appellee argues that, because the dispossessory affidavit was an amended pleading, Appellee was not required to file an answer. We agree with Appellee.

OCGA § 44-7-51 (b) requires a tenant to answer a dispossessory affidavit and summons "either orally or in writing within seven days from the date of the actual service[.]" If the tenant fails to file an answer within the statutory prescribed time, "the court shall issue a writ of possession instanter . . . and the plaintiff shall be entitled to a verdict and judgment by default for all rents due as if every item and paragraph of the affidavit provided for in Code Section § 44-7-50 were supported by proper evidence." OCGA § 44-7-53 (a). Appellant argues that the plain language of these statutes required the trial court to enter a default judgment against Appellee when it failed to file a responsive pleading to Appellant's amended action. However, contrary to Appellant's assertion, nothing in OCGA § 44-7-50 et seq., addresses whether a later-added defendant is required to file an answer to an amended affidavit for dispossessory. And, because there is no specific statutory provision within the Dispossessory Code that governs this issue, we apply the relevant sections of the Civil Practice Act. See OCGA § 9-11-81; Trust Co. Bank of Northwest Ga. v. Shaw, 182 Ga.App. 165, 166 (1) (355 S.E.2d 99) (1987) (holding that dispossessory proceedings are governed by the Civil Practice Act absent specific statutory provisions to the contrary); see also Outfront Media, LLC v. City of Sandy Springs, 356 Ga.App. 405, 409 (1) (a) (847 S.E.2d 597) (2020) (noting that plaintiffs are allowed to amend their original dispossessory affidavit under the Civil Practice Act).

Turning to the relevant portion of the Civil Practice Act, OCGA § 9-11-15 (a) provides that "[a] party may plead or move in response to an amended pleading and, when required by an order of the court, shall plead within 15 days after service of the amended pleading, unless the court otherwise orders." Interpreting this code section, "this Court has held that where the trial court,...