Tate v. Habif

• Court: Georgia Court of Appeals
• Writing for the Court: Brown, Judge.
• Citation: Tate v. Habif, 367 Ga.App. 435, 886 S.E.2d 389 (Ga. App. 2023)
• Docket Number: A23A0461
• Decision Date: 04 April 2023
• Parties: TATE v. HABIF et al.

367 Ga.App. 435

886 S.E.2d 389

TATE

v.HABIF et al.

A23A0461

Court of Appeals of Georgia.

April 4, 2023

Geffry Tate, pro se.

Busby & Negin, Eric Michaud Jenniges, Ronald Foster Negin, Christopher Reed Stovall, for Appellee.

Brown, Judge.

Geffry Tate, pro se, appeals the superior court's order dismissing his claims against defendants Michael A. Habif d/b/a Habif Properties and Habif Properties, LLC (collectively "Habif"). Because the superior court incorrectly concluded that Tate's claims were barred by the doctrine of res judicata, we reverse.

"We review de novo the trial court's grant of a motion to dismiss. A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of the plaintiff's claim." (Citation and punctuation omitted.) Burrowes v. Tenet Healthsystem GB , 319 Ga. App. 389, 390-391, 735 S.E.2d 131 (2012). So viewed, the record shows that Habif filed a dispossessory action against Tate "and all other occupants" of a commercial lease in the Magistrate Court of Fulton County on November 2, 2020, in which it sought possession of the premises and past due rent in the amount of $28,941. Tate filed an answer and counterclaim seeking damages in the amount of $198,700 as a result of Habif's failure to repair the property. Tate also filed statements in support of his answer and counterclaim as to why Habif was not entitled to evict Tate or secure a money judgment and why Habif "owe[d]" Tate, which provided that Habif "committed a breach of the Lease Agreement and Fraud to induce me into signing a lease. Which caused our Business and Church to suffer a loss of over $198,700.00. Repairs and replacement to interior, exterior and grounds [were] not completed per our agreement and Georgia Law OCGA [§] 13-6-14." Following a hearing, the magistrate court issued an order on February 5, 2021, awarding Habif a writ of possession and $15,000 in rental payments through February 12, 2021. The court's order indicated that Tate's counterclaim was "VOLUNTARILY DISMISSED by tenant so that he can file in state court — damages of $198,700 claimed by tenant which exceeds Magistrate Court jurisdiction per OCGA [§] 15-10-2 (5)." This portion of the order was handwritten by the magistrate judge, and the pre-printed words "DISMISSED WITHOUT PREJUDICE" were crossed out with the words "VOLUNTARILY DISMISSED" written above.

Tate filed this action against Habif in the Superior Court of Fulton County on November 29, 2021, alleging claims for fraud, breach of contract, harassment, false reporting to credit bureaus, and personal injury, and seeking damages in the amount of $2,091,654. In particular, Tate alleged that Habif committed fraud by inducing Tate to "sign[ ] a lease ... stating all grounds, roof repairs or replacement ... would be immediately replaced or repaired"; that the failure to repair caused flooding which resulted in mildew and black mold; and that this continued exposure to mildew and black mold has caused health problems for Tate and other family members. Tate also alleged that on August 3, 2021, Habif opened a derogatory account with a credit bureau stating that Tate owes Habif $59,507, causing Tate's credit score to drop dramatically. Habif moved to dismiss the complaint on the ground of res judicata. The superior court granted the motion, finding that the claims brought by Tate in the instant action

were conclusively litigated in the prior action in the Magistrate Court of Fulton County and cannot be re-litigated. [Tate] explicitly asserted his claims that [Habif] breached the lease by failing to make repairs to the subject property and fraudulently induced him into entering the lease by promising to make such repairs as both defenses and counterclaims in the dispossessory action. The Magistrate Court of Fulton County heard and considered these claims and entered judgment in favor of [Habif] and [Tate] did not appeal. The judgment of the Magistrate Court is, therefore, conclusive as to the claims that [Tate] now attempts to relitigate against [Habif] in this action. OCGA § 9-12-40.

1. While Tate is incorrect that Habif waived the affirmative defense of res judicata by failing to raise it in its answer, see Gerschick & Assocs., P.C. v. Pounds , 266 Ga. App. 852, 855 (1) (a), 598 S.E.2d 522 (2004) ("if [res judicata] is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver") (citation and punctuation omitted), Tate is correct that his claims in superior court were not barred by res judicata.

The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Before res judicata applies, three prerequisites must be satisfied — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.

(Citations and punctuation omitted.) Setlock v. Setlock , 286 Ga. 384, 385, 688 S.E.2d 346 (2010). See also OCGA § 9-12-40 ("[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside"). Assuming that the first two prerequisites have been satisfied here, the third prerequisite has not. With regard to the third prerequisite, the Supreme Court of Georgia's holding in Setlock applies.

In Setlock , a son filed a dispossessory action against his father in magistrate court seeking possession of a lake house. 286 Ga. at 384, 688 S.E.2d 346. The father filed counterclaims seeking to quiet title, a declaratory judgment, an injunction, and a money judgment in excess of the $15,000 jurisdictional limit of the magistrate court. Id. The magistrate court denied the father's petition to transfer the case to superior court and entered a judgment granting possession of the lake house to the son and granting a writ of possession in favor of the son. Id. The...