Trust Co. Bank of Northwest Georgia v. Shaw

• Decision Date: 13 March 1987
• Docket Number: No. 73481,73481
• Citation: 355 S.E.2d 99,182 Ga.App. 165
• Parties: TRUST COMPANY BANK OF NORTHWEST GEORGIA v. SHAW.
• Court: Georgia Court of Appeals

Page 99

355 S.E.2d 99

182 Ga.App. 165

TRUST COMPANY BANK OF NORTHWEST GEORGIA v. SHAW.

No. 73481.

Court of Appeals of Georgia.

March 13, 1987.

Robert L. Berry, Jr., Walter J. Matthews, Terri S. Patterson, Rome, for appellant.

Wade C. Hoyt III, Rome, for appellee.

BENHAM, Judge.

This appeal is brought from a Floyd County Superior Court order denying appellant's motion for summary judgment based on res judicata and consolidating cases involving a former landlord and tenant relationship. We granted appellant's application for interlocutory review.

On September 20, 1984, the First National Bank of Rome (appellant's predecessor), as trustee under a will and acting as landlord, filed dispossessory proceedings against appellee Jack Shaw, d/b/a Shaw's Furniture Company, seeking possession of leased premises and back rent. Shaw answered, setting up several defenses. On October 9, 1984, the landlord moved for a writ of possession due to the tenant's failure to make payments into the registry of the court as required by OCGA § 44-7-54. The tenant filed a demand for jury trial on October 16, and a writ of possession was issued on October 17, 1984, leaving the issue of unpaid rent for jury determination. Fifteen months later, on January 15, 1986, the tenant filed a tort action against appellant for damages allegedly incurred due to appellant's failure to fix the roof of the leased premises from which appellee had been evicted in October 1984. Appellant answered the second action and, after completion of discovery, filed a summary judgment motion claiming res judicata, laches, waiver and estoppel, but arguing mainly the res judicata doctrine. The trial court denied summary judgment and sua sponte consolidated the damages suit with what remained of the dispossessory action. This interlocutory appeal followed.

1. We must first determine whether the proceedings in question are governed by the Civil Practice Act. Citing State of Ga. v. Britt Caribe, Ltd., 154 Ga.App. 476, 268 S.E.2d 702 (1980), appellee argues that the initial dispossessory proceeding was a special proceeding and, therefore, not governed under the Civil Practice Act. Unquestionably the statutory scheme provides for a speedy disposition of certain landlord tenant disputes (see OCGA §§ 44-7-50 et seq.); however, our dispossessory proceedings do not dispense with the applicability of the Civil Practice Act except in certain designated limited circumstances, none of which is present here. Unlike the situation in State of Ga. v. Britt Caribe, Ltd., supra, a condemnation of property case where the statutory provision involved (now OCGA § 16-13-49(e)) made inapplicable certain specific provisions of the Civil Practice Act, the law as to dispossessory proceedings makes no such exclusion. Therefore, we find the language of the Civil Practice Act, OCGA § 9-11-81, applicable: "This chapter shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law...."

2. Having determined that the Civil Practice Act is applicable, we turn to the thrust of one of appellant's enumerations of error, viz., that the trial court erred in ruling that the second lawsuit, appellee's suit for damages, was not a compulsory counterclaim.

Idowu v. Lester, 176 Ga.App. 713, 714, 337 S.E.2d 386 (1985), quotes OCGA § 9-11-13(a), the provision of the CPA dealing with compulsory counterclaims, and states the rule of law applicable thereto: "OCGA § 9-11-13(a) provides: 'A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.' The term 'occurrence' or 'same transaction' has been given a broad and realistic interpretation by the courts. Thus, the test to be applied in determining whether a counterclaim is compulsory is whether there is a logical relationship between the claim advanced by the plaintiff and the claim asserted by the defendant. Any claim that is logically related to another claim that is being sued on is properly the basis of a compulsory counterclaim. [Cit.]"

The initial dispossessory proceeding by appellant was for failure to pay rent; appellee's lawsuit dealt with the "same transaction" by asserting a claim for damages due to failure to repair. Therefore, under the analytical framework of OCGA § 9-11-13(a) and Idowu v. Lester, supra, appellee's suit was a compulsory counterclaim and should have been advanced in the original dispossessory proceeding. " '[A] party may not raise issues arising out of the same transaction which should have been pled as a compulsory counterclaim in another separate suit. If the first suit is completed, then...