Cleveland v. Midfirst Bank , 335 Ga. App. 465 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J, and PETERSON, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 12, 2016
In the Court of Appeals of Georgia
A15A2294. CLEVELAND v. MIDFIRST BANK. DO-112
DOYLE, Chief Judge.
In her suit against MidFirst Bank (“the Bank”) for an allegedly wrongful
eviction, Mary Frances Cleveland appeals from the grant of the Bank’s motion to
dismiss for failure to state a claim. Cleveland contends that the trial court erred
because her verified complaint pleaded provable facts sufficient to support a claim.
We agree and reverse.
It is well established that a motion to dismiss for failure to state
a claim upon which relief may be granted should not be sustained unless
(1) the allegations of the complaint disclose with certainty that the
claimant would not be entitled to relief under any state of provable facts
asserted in support thereof; and (2) the movant establishes that the
claimant could not possibly introduce evidence within the framework of
the complaint sufficient to warrant a grant of the relief sought. In
deciding a motion to dismiss, all pleadings are to be construed most
favorably to the party who filed them, and all doubts regarding such
pleadings must be resolved in the filing party’s favor.
A plaintiff is not required to plead in the complaint facts sufficient to set
out each element of a cause of action so long as it puts the opposing
party on reasonable notice of the issues that must be defended against.
If within the framework of the complaint, evidence may be introduced
which will sustain a grant of relief to the plaintiff, the complaint is
sufficient. We review the trial court’s ruling on a motion to dismiss for
failure to state a claim upon which relief can be granted under the de
novo standard of review.1
Here, Cleveland’s complaint alleges that she was wrongfully evicted after the
Bank foreclosed on its security interest and purchased her residence at the foreclosure
sale. Thereafter, the Bank obtained a writ of possession, which Cleveland appealed,
subject to an order to pay rent into the registry of the superior court (“Rent Order”).
When Cleveland failed to make rent payments, the Bank obtained a writ of possession
based on Cleveland’s violation of the Rent Order.
Cleveland’s complaint further alleges that when the writ was executed, the
Bank’s agents
1
(Punctuation and footnotes omitted.) TechBios, Inc. v. Champagne, 301 Ga.
App. 592, 592-593 (688 SE2d 378) (2009).
2
wrongfully broke the locks on Plaintiff’s doors, . . . broke and damaged
plaintiff’s personal property, antiques and furnishing[s,] and placed
them in the dumpster. They refused to allow Plaintiff on the property to
protect, secure[,] and retrieve her furniture, antiques[,] and furnishings[,]
and hauled her furniture, antiques[,] and furnishings off to a place
unknown to Plaintiff. . . .
Defendant MidFirst [or its agents] denied her the right to retrieve . . . her
property . . . and . . . . maliciously destroyed and carried away [her
personal property].
Based on this and other conduct, Cleveland’s complaint asserts that she is entitled to
damages for trespass, emotional distress, theft, and conversion.
The Bank answered and proffered evidence that it held a security interest in the
property and properly foreclosed on the security interest, secured a writ of possession,
and executed the writ. The Bank then moved to transfer venue to the county where
the property was located, which motion the court granted. The Bank’s motion also
sought to dismiss the suit for failure to state a claim upon which relief could be
granted, which the superior court ultimately granted in a one-page order.
Cleveland now appeals that ruling, arguing that her complaint asserts facts
sufficient to state tort claims based on the allegedly wrongful eviction process. After
a foreclosure sale, former owners remaining in possession of real property become
3
tenants at sufferance, and the dispossessory procedures set forth in OCGA § 44-7-50
et seq. apply.2 OCGA § 44-7-55 (c) provides as follows:
Any writ of possession issued pursuant to this article shall authorize the
removal of the tenant or his or her personal property or both from the
premises and permit the placement of such personal property on some
portion of the landlord’s property or on other property as may be
designated by the landlord and as may be approved by the executing
officer; provided, however, that the landlord shall not be a bailee of such
personal property and shall owe no duty to the tenant regarding such
personal property. After execution of the writ, such property shall be
regarded as abandoned.
Addressing the practical effect of that provision, this Court has concluded that
[w]hile the statute provides that the landlord shall not be a bailee and
shall owe no duty to the tenant with regard to his personal property, we
interpret that provision as being contingent upon the landlord first
placing the tenant’s property on some portion of the landlord’s property
or on other specific property designated by the landlord and approved
by the executing officer.3
2
See Ikomoni v. Exec. Asset Mgmt., LLC, 309 Ga. App. 81, 84 (2) (709 SE2d
282) (2011).
3
Washington v. Harrison, 299 Ga. App. 335, 339 (1) (682 SE2d 679) (2009).
4
Based on this, the Court has held that a claim for conversion may lie when a landlord
“neither placed [the tenant’s] personal property on a portion of the [property] . . . nor
on other property, which they designated and which the executing officer approved.”4
This was because the landlord “hired a salvage crew to simply remove [the tenant’s]
personal property from the [property] with no consideration given as to its ultimate
fate.”5
Here, under a similar analysis, Cleveland’s complaint alleges facts sufficient
to establish the framework for a grant of relief.6 She alleges that the Bank’s agents
destroyed or stole her personal property, thereby failing to follow the statutory
procedure outlined in OCGA § 44-7-55 (c), and the Bank has not demonstrated that
her claims fail as a matter of law. Accordingly, the trial court erred by dismissing her
complaint for failure to state a claim.7
4
Id.
5
Id.
6
See id. See also Higgins v. Benny’s Venture, Inc., 309 Ga. App. 102, 104 (709
SE2d 287) (2011) (landlord did not “have carte blanche to do whatever he or she
liked with the tenant’s personal property, including even destroying it, at the moment
the writ of possession is issued”) (punctuation omitted).
7
See TechBios, Inc., 301 Ga. App. at 595 (1) (a).
5
Judgment reversed. Phipps, P. J., and Peterson, J., concur.
6