Fennelly v. Lyons

775 S.E.2d 587 (2015)

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Nature of the Case

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Facts

D owned property and leased that residence to P with the option to purchase it. The parties amended the lease to be a month-to-month agreement, which allowed either party to terminate the lease at any time by giving the other party 30 days' notice. On July 12, 2012, D sent such a notice to P, terminating the lease and informing him that he must vacate the Property on or before August 15, 2012. The notice, which misspelled P's name as “Billy Fennell,” was sent to the leased address via certified mail. On August 16, 2012, P had still not vacated the Property. D filed an affidavit for a summons of dispossessory, alleging that P owed $3,550 in past-due rent, that he had held the property over beyond the term of the lease, and that he refused to deliver possession of the premises to D. In addition, D requested that the summons-which also misspelled P's surname as “Fennell”-be delivered via “tack and mail” if personal service was unsuccessful. The summons was filed on August 17, 2012, and three days later, it was posted to the door of the Property and sent via first class mail to the leased address. In a letter dated August 18, 2012, P informed D that he was spending the month of August in New Jersey with family and that he planned to vacate the Property during the last week of September. The letter also notified D of two mailing addresses for P, one of which was in Kennesaw, Georgia, and one of which was in Oceanport, New Jersey. The certified-mail receipt indicated that P's letter was mailed on August 20, 2012, but D testified that he did not receive the letter until after evicting P in mid-September. On August 29, 2012, D requested a writ of possession from the magistrate court, alleging that P had not filed an answer in the eviction proceedings. The court granted the request on September 6, 2012, and issued a writ of possession to D's attorney. In a letter postmarked September 10, 2012, which was mailed to P's New Jersey address, D informed P that, unless he vacated the Property by September 15, 2012, D would exercise his legal right under the writ of possession to remove and dispose of any personal property left inside the house. On September 17, 2012, D along with a deputy sheriff, executed the writ of possession and evicted P from the Property. The sheriff advised that P had 24 hours to claim his property or it would be deemed abandoned, and D could then dispose of it in any manner that he saw fit. P's personal property was placed in the driveway. After 24 hours D disposed of it. At some point after the eviction, P returned to the Property and asked if he could have his dining-room table and chairs. Before P returned with the money, D had already sold them to someone else. P filed a motion with the magistrate court to reconsider its dispossessory judgment and arguing that there were numerous deficiencies in the eviction process. The magistrate court granted P's motion and vacated the September 2012 writ of possession. P sued D alleging claims of wrongful eviction, trespass, and conversion. P also added claims for invasion of privacy, negligent and intentional infliction of emotional distress, and interference with enjoyment of property. The trial court granted summary judgment in favor of D, finding that, as to the claims of invasion of privacy, trespass, and interference with enjoyment of property, none of the alleged tortious conduct occurred before the writ of possession was executed, and that once a writ of possession is issued, a “landlord should not be liable for his subsequent entry onto the property, eviction, and removal of [the] tenant's property.” It held that even though the writ of possession was later vacated, it was nevertheless a valid court order when it was executed by law enforcement under the color of law. D was not liable for the alleged tortious conduct stemming from the eviction. After the writ of possession was executed, P's personal property was deemed abandoned and D was not liable to him for the disposition of that property. P appealed.