Warshaw Properties v. Lackey

• Decision Date: 27 January 1984
• Docket Number: No. 67732,67732
• Citation: 316 S.E.2d 482,170 Ga.App. 101
• Parties: WARSHAW PROPERTIES v. LACKEY.
• Court: Georgia Court of Appeals

Page 482

316 S.E.2d 482

170 Ga.App. 101

WARSHAW PROPERTIES v. LACKEY.

No. 67732.

Court of Appeals of Georgia.

Jan. 27, 1984.

Rehearing Denied March 5, 1984.

Certiorari Denied April 18, 1984.

J. Steven Cheatwood, Atlanta, for appellant.

Ronald P. Jayson, Decatur, for appellee.

BANKE, Judge.

Appellant initiated dispossessory proceedings against appellee on March 9, 1983, seeking, in addition to a writ of possession, a judgment for unpaid rent. Appellee voluntarily vacated the premises on March 11, 1983, but answered the summons and filed a counterclaim which is still pending below. She also moved to dismiss the appellant's claim for rent, based on a contention that the appellant was not the owner of the premises.

The affidavit in support of the summons was sworn out by J. Steven Cheatwood as attorney at law for "Warshaw Properties Inc., d/b/a Midway Manor Apartments, (owner) plaintiff." After hearing evidence on the motion to dismiss, the trial court concluded that the true owners of the premises at all times pertinent to this action were Jack Zwecker, Melvin Warshaw, Joseph A. Free, Jr., Jerry Warshaw, and Mildred Nathan and that the appellant, having no title to or proprietary interest in the premises, was acting solely as their agent in bringing the action. The court offered the appellant an opportunity to amend the pleadings to substitute the true owners as plaintiffs, but counsel for appellant stated in his place that appellant did not intend to file such an amendment. Ruling that the appellee's motion to dismiss would be treated as a motion for summary judgment, the court then granted the motion and dismissed the appellant's claims. The case is now before us following the appellant's direct appeal from this order. Held:

Under OCGA § 9-11-17, "a real-party-in-interest objection is similar to the defense of failure to join an indispensable party under [OCGA § 9-11-19] and may be made at any time up to and including a trial on the merits. [Cits.] Such an objection is a matter in abatement and does not go to the merits of the action. [Cit.]" Rigdon v. Walker Sales & Service, 161 Ga.App. 459, 462(1(f)), 288 S.E.2d 711 (1982). It has often been held that "[a] summary judgment contemplates a judgment on the merits and cannot be used as a matter in abatement." See, e.g., Walsey v. Lockhart, 136 Ga.App. 624, 625(1), 222 S.E.2d 141 (1975), citing Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974). Cf. Chatham v. Royal-Globe Ins. Companies, 135 Ga.App. 59, 61, 217 S.E.2d 308 (1975). It follows that summary judgment cannot properly be granted to a defendant on the basis of a real party-in-interest objection. See Walsey v. Lockhart, supra. When it is necessary to consider matters outside the pleadings in ruling on a motion to dismiss for failure to prosecute the action in the name of the real party-in-interest, this may instead be done under the provisions of OCGA § 9-11-43(b). See Kirkpatrick v. Mackey, 162 Ga.App. 876, 877-878, 293 S.E.2d 461 (1982). See also Lott v. Liberty Mutual Ins. Co., 154 Ga.App. 474(1), 268 S.E.2d 686 (1980).

In many cases, the propriety of treating a motion to dismiss as a motion for summary judgment may be irrelevant. See, e.g., Hammer Clinic P.C. v....