Steed v. Federal Nat. Mortg. Corp.

• Decision Date: 30 December 2009
• Docket Number: No. A09A1634.,A09A1634.
• Citation: 689 S.E.2d 843,301 Ga. App. 801
• Parties: STEED v. FEDERAL NATIONAL MORTGAGE CORPORATION et al.
• Court: Georgia Court of Appeals

689 S.E.2d 843

301 Ga. App. 801

STEED v. FEDERAL NATIONAL MORTGAGE CORPORATION et al.

No. A09A1634.

Court of Appeals of Georgia.

December 30, 2009.

Ellery Steed, pro se.

Duncan & Adair, George E. Duncan, Jr., Jennifer C. Adair, Morris, Schneider & Prior, Paul G. Wersant, Atlanta, for appellees.

BERNES, Judge.

Ellery Steed, proceeding pro se, commenced this action against Federal National Mortgage Corporation ("Fannie Mae") and Safeguard Properties, Inc. alleging that he had been wrongfully evicted from the upstairs and downstairs units of a home that he formerly owned but that had been purchased by Fannie Mae in a foreclosure sale. The trial court entered an order granting summary judgment to the defendants on all of Steed's claims; denying partial summary judgment to Steed on his claims relating to the upstairs unit; and declining to enter a default judgment against Safeguard based on alleged discovery abuse. Steed appeals these rulings. For the reasons discussed below, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. We review de novo a trial court's grant of summary judgment. A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.

(Citations and punctuation omitted.) Duke Galish, LLC v. Manton, 291 Ga.App. 827, 827-828, 662 S.E.2d 880 (2008).

So viewed, the record reflects that in July 2004, Steed purchased a residential property that was divided into an in-law suite in the downstairs unit and a three-bedroom upstairs unit (the "Property"). Steed lived in the downstairs unit and leased the upstairs unit to tenants. Beginning in September 2007, Steed leased the upstairs unit to Helene Webster on a month-to-month basis.

On or about December 17, 2007, Steed received correspondence from his mortgage company advising him that he was in arrears on his mortgage payments and a Notice of Sale Under Power, which informed him that the Property would be sold under foreclosure on February 5, 2008. After being informed of the impending foreclosure sale, Steed commenced dispossessory proceedings against Webster for the nonpayment of rent. Steed and Webster, however, resolved the rent issue in mediation and entered into a consent judgment purportedly entitling Webster to remain in the upstairs unit until February 13, 2008.

On February 5, 2008, the Property was sold in a foreclosure action on the courthouse steps. The Property was purchased at auction by Fannie Mae. No court has reversed or overturned the foreclosure of the Property.

Following the foreclosure sale, Fannie Mae hired Safeguard, a company that specializes in securing and maintaining foreclosed properties. Fannie Mae instructed Safeguard to secure the Property if it was unoccupied, and, if the Property was occupied, to make contact with the occupant and attempt to negotiate a "cash for keys" agreement in which cash would be paid to the occupant in exchange for an agreement to vacate. Safeguard thereafter engaged the services of an independent contractor to carry out Fannie Mae's instructions.

On February 8, 2008, the Safeguard contractor traveled to the Property and unsuccessfully attempted to make contact with Steed, who was not at home in the downstairs unit. The contractor did make contact with Webster and provided her with a toll free number to call Safeguard so that she could negotiate a cash for keys agreement with respect to the upstairs unit. Webster subsequently entered into a cash for keys agreement with Safeguard and vacated the upstairs unit in return for $1,000.

After Webster had vacated the premises, the Safeguard contractor changed the locks on the upstairs unit and installed a lockbox on February 18, 2008. The contractor also affixed a sticker to the door of the upstairs unit identifying Safeguard as the entity responsible for securing the unit and providing contact information for Safeguard. According to the contractor, he also entered and inspected the upstairs unit on that date and saw no evidence that anyone was residing in the unit at that time. In contrast, Steed alleged that he had moved some of his own personal items into the upstairs unit after Webster had vacated the premises and was spending most of his days there, although he continued to sleep at night in the downstairs unit. According to Steed, his personal items were taken from the upstairs unit without his permission on February 18.

Despite the foreclosure sale, Steed continued to live in the downstairs unit. Fannie Mae demanded that Steed relinquish possession and, when he refused to do so, filed a dispossessory action in magistrate court on February 27, 2008. On April 8, 2008, the magistrate court entered a judgment of writ of possession in favor of Fannie Mae as to the downstairs unit. The magistrate court ordered Steed to pay rent during the pendency of the appeal of $500 per month. Steed's appeal from the judgment granting the writ of possession remains pending.¹

Steed alleged that subsequent to the grant of the writ of possession, some unknown person or persons entered the downstairs unit on May 29, 2008 and broke the door lock, changed the deadbolt, and "snoop[ed] around" the unit while Steed was at work. He regained entry into the downstairs unit on the day of the incident and has continued living there.

Claiming that he had been wrongfully evicted from the upstairs and downstairs units, Steed brought the instant pro se action against Fannie Mae and Safeguard seeking compensatory and punitive damages. With respect to the upstairs unit, Steed alleged that when the defendants changed the locks on February 18, 2008, he was in possession of that unit as a tenant at sufferance. As such, he contended that the defendants were liable for wrongful eviction, trespass, and negligence for locking him out of the upstairs unit without first obtaining a writ of possession in a dispossessory action. With respect to the downstairs unit, Steed alleged that the defendants had carried out the break-in and changing of the door lock that occurred on May 29, 2008, and, consequently, had violated the Fair Business Practices Act of 1975 ("FBPA"), OCGA § 10-1-390 et seq., and were liable for intentional infliction of emotional distress.²

The defendants answered and, following discovery, moved for summary judgment on all of Steed's claims. Steed cross-moved for partial summary judgment on his claims for wrongful eviction, trespass, and negligence pertaining to the upstairs unit. Steed also moved for entry of a default judgment against Safeguard based on its failure to timely produce certain company policy manuals in response to a request for production. After conducting two hearings related to the various motions, the trial court granted the defendants' motion for summary judgment, denied Steed's motion for partial summary judgment, and denied Steed's motion for entry of a default judgment against Safeguard. This appeal followed.

1. In his first enumeration of error, Steed contends that the trial court erred by granting summary judgment to the defendants, and by denying partial summary judgment in his favor on his claims for wrongful eviction, trespass, and negligence relating to the upstairs unit. We disagree.

(a) Steed first asserts that "it is sufficient to assume . . . that [he] was a tenant at sufferance following foreclosure" of the upstairs unit, and that, consequently, the defendants as a matter of law were not entitled to lock him out of that unit on February 18, 2008 without first obtaining a writ of possession. But Steed is asking this Court to assume a primary point of contention between the parties, namely, his legal status with respect to the upstairs unit as of February 18. The burden is on Steed to provide citation to authority and legal argument to support his assertion, see Court of Appeals Rule 25(a)(3), rather than rely on assumptions. In any event, we have reviewed the record and conclude that, as a matter of law, the defendants did not have to initiate dispossessory proceedings and obtain a writ of possession prior to changing the locks on the upstairs unit because Steed was not a tenant at sufferance under the circumstances of this case.

The 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. See Roberts v. Roberts, 205 Ga.App. 371, 372(2), 422 S.E.2d 253 (1992). Thus, a landlord who forcibly evicts a tenant without filing a dispossessory action and obtaining a writ of possession is subject to damages in tort for the wrongful eviction. See id.; Entelman v. Hagood, 95 Ga. 390, 392-393, 22 S.E. 545 (1895); Lanier v. Kelly, 6 Ga.App. 738, 739-740, 65 S.E. 692 (1909).

A landlord-tenant relationship exists between a legal title holder and a tenant at sufferance such that the dispossessory procedures set forth in OCGA § 44-7-50 et seq. are applicable. See Frank v. Fleet Finance, Inc. of Ga., 227 Ga.App. 543, 547(1)(c), 489 S.E.2d 523 (1997); Cloud v. Ga. Central Credit Union, 214 Ga.App. 594, 598(8), 448 S.E.2d 913 (1994); Stevens v. Way, 167 Ga. App. 688, 690(5), 307 S.E.2d 507 (1983). In contrast, because a landlord-tenant relationship must exist before a dispossessory action will lie, see Stevens, 167 Ga.App. at 690(5), 307 S.E.2d 507; Crain v. Daniel, 79 Ga.App. 647, 651-652(3), 54 S.E.2d 487 (1949), such an action is not a legal prerequisite to removing a mere...