Premium Funding Solutions, LLC v. Metro Atlanta Task Force for the Homeless, Inc.

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
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/
August 10, 2015
In the Court of Appeals of Georgia
A15A1399. PREMIUM FUNDING SOLUTIONS, LLC v. METRO
ATLANTA TASK FORCE FOR THE HOMELESS, INC.
MILLER, Judge.
The parties to this action, as well as parties in related suits, have been litigating
questions of title, right to possession, and rent due on the real property located at the
corner of Peachtree and Pine Streets in Atlanta (hereinafter the “Property”) for several
years. At least four appeals and five cross-appeals involving the Property are
currently pending in the Supreme Court of Georgia (hereinafter the “Related
Actions”).1
1
See Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Community
Trust et al., S15A1021 (March 24, 2015); Premium Funding Solutions, LLC v. Metro
Atlanta Task Force for the Homeless, Inc., et al., S15A1028 (March 24, 2015);
Central Atlanta Progress et al. v. Metro Atlanta Task Force for the Homeless, Inc.,
et al., S15A1027 (March 24, 2015); and Fialkow v. Metro Atlanta Task Force for the
Homeless, Inc., et al., S15A1029 (March 24, 2015). See also Central Atlanta
The present action arose when Premium Funding Solutions, LLC filed a
dispossessory complaint against the Metro Atlanta Task Force for the Homeless, Inc.
(“MATF”) MATF filed a motion to dismiss and plea in abatement, pursuant to OCGA
§ 9-2-44, contending that this case involves the same parties, the same real property
and substantially the same questions as to possession and title to land that are present
in the Related Actions which were then pending in the trial court and are now
pending on appeal in the Supreme Court of Georgia. Following a hearing, the trial
court granted MATF’s plea in abatement and stayed this case pending final resolution
of the Related Actions. The trial court found that the Related Actions and this case
concern the same parties and ownership of the same land, i.e., the Property.
Premium Funding appeals, contending that (1) OCGA § 9-2-44’s prior pending
action rule is inapplicable because the same causes of action are not at issue in this
case and the Related Actions and (2) that the trial court erred in not ordering MATF
to pay rent into the court registry. For the reasons that follow, we affirm.
Progress et al. v. Metro Atlanta Task Force for the Homeless, Inc., et al., S15X1022
(March 24, 2015); Premium Funding Solutions, LLC v. Metro Atlanta Task Force for
the Homeless, Inc., et al., S15X1023 (March 24, 2015); Fialkow v. Metro Atlanta
Task Force for the Homeless, Inc., et al., S15X1024 (March 24, 2015); Metro Atlanta
Task Force for the Homeless, Inc. v. Ichthus Community Trust et al., S15X1030
(March 24, 2015); Ichthus Community Trust et al. v. Metro Atlanta Task Force for
the Homeless, Inc., et al., S15X1031 (March 24, 2015).
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“When, as here, a question of law is at issue we owe no deference to the trial
court’s ruling and apply a de novo standard of review.” (Citation omitted.) Artson,
LLC v. Hudson, 322 Ga. App. 859, 860 (747 SE2d 68) (2013).
The record shows that MATF acquired the Property in 1997, and four years
later borrowed $900,000 in order to make improvements. The loans were secured by
security deeds on the Property. MATF subsequently entered into forbearance and
subordination agreements with the lenders and their successors-in-interest who held
security interests in the Property.
In January 2010, a Nevada entity known as Ichthus Community Trust
purchased MATF’s loans and security deeds with money borrowed from Premium
Funding. Ichthus initiated foreclosure proceedings and, on May 4, 2010, purchased
the Property at the foreclosure sale as the sole bidder.
In May 2010, following the foreclosure sale, Ichthus
filed an action in superior court for temporary and permanent injunctive
relief against the Task Force, pertinently alleging that Ichthus owned a
security interest in and had foreclosed on the [P]roperty occupied by the
shelter and that [MATF] was wrongfully occupying and denying it
access to the [P]roperty. . . . Ichthus also filed a dispossessory action in
magistrate court against [MATF], but in June 2010, that action was
stayed, transferred and consolidated with the injunction action, with
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Ichthus reserving the right to move forward with the dispossessory claim
and [MATF] having the right to respond to that claim. In November
2010, Ichthus dismissed the dispossessory action without prejudice,
stating that it had been consolidated with the superior court action.
Metro Atlanta Task Force for the Homeless, Inc. v. Premium Funding Solutions, 321
Ga. App. 100 (741 SE2d 225) (2013). Ichthus subsequently defaulted on its own loan
to Premium Funding, and, on February 1, 2011, executed a deed in lieu of
foreclosure, thereby transferring the Property to Premium Funding. MATF
subsequently filed an action against Premium Funding and multiple other defendants,
asserting claims for, inter alia, quiet title, injunctive relief and damages.
See id.Premium Funding then filed a dispossessory action against MATF, which
resulted in the superior court’s grant of a writ of possession to Premium Funding in
February 2012. In Metro Atlanta Task Force, supra, 321 Ga. App. at 101-102 (1), this
Court reversed the grant of the writ of possession to Premium Funding, holding that
MATF did not receive the required notice and trial on the issues.
Premium Funding subsequently filed a renewed request for leave to file a
dispossessory action, which the trial court granted. MATF then filed an emergency
motion for supersedeas and stay in the Supreme Court of Georgia. In denying
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MATF’s motion, the Supreme Court noted that, in similar circumstances, a plea in
abatement has been held to lie where dispossessory proceedings are commenced
while other litigation is pending between the same parties in which substantially the
same questions to title, and possession of, the same land are presented. Following the
Supreme Court’s denial of its emergency motion, MATF filed a motion to dismiss and
plea in abatement, which the trial court granted. This Court subsequently granted
Premium Funding’s application for interlocutory review.2
1. Premium Funding contends that the trial court erred in interpreting and
applying the prior pending action rule because the same causes of action are not at
issue in this case and the Related Cases. We disagree.
OCGA § 9-2-5 (a) provides in relevant part: No plaintiff may
prosecute two actions in the courts at the same time for the same cause
of action and against the same party. If two such actions are commenced
at different times, the pendency of the former shall be a good defense to
the latter. Similarly, OCGA § 9-2-44 (a) provides: A former recovery or
the pendency of a former action for the same cause of action between the
same parties in the same or any other court having jurisdiction shall be
a good cause of abatement.
2
This Court transferred Premium Funding’s application to the Supreme Court
of Georgia. The Supreme Court returned the application to this Court.
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(Punctuation omitted.) Sadi Holdings, LLC v. Lib Properties, Ltd., 293 Ga. App. 23,
24 (1) (666 SE2d 446) (2008).
The general rule under OCGA §§ 9-2-5 (a) and 9-2-44 (a) is that when
there are two lawsuits involving the same cause of action and the same
parties that were filed at different times but that both remain pending in
Georgia courts, the later-filed suit must be dismissed.
(Citations and punctuation omitted.) Id. at 24 (1).
Moreover,
[a] plea in abatement has been held good even where the causes of
action are, technically speaking, legally disparate and rest in opposite
parties, if they arise out of the same transaction and if the second suit
would resolve the same issues as the first pending suit and would
therefore be unnecessary, and consequently oppressive.
(Citations and punctuation omitted.) Schoen v. Home Federal S & L Assn., 154 Ga.
App. 68, 69 (267 SE2d 466) (1980). “A judgment in a prior suit adjudicating the legal
or equitable title to the same land will estop a later . . . dispossessory proceeding[.]”
Id. at 70. Because the Related Actions are on appeal, they are still considered to be
pending. See Sadi Holdings, supra, 293 Ga. App. at 24-25 (1).
Here, the pendency of the Related Actions is good cause for abatement of this
case because the Related Actions and this case both involve MATF’s alleged rights
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to title and possession of the same land – the Property. See Shoen, supra, 154 Ga.
App. at 71 (dispossessory proceedings should have been abated where cause of action
was title and possession of same land in both prior pending suit and dispossessory
action ). Moreover, MATF has properly asserted its claims of wrongful foreclosure
in the prior pending Related Actions and a decision in MATF’s favor on its wrongful
foreclosure claims in the Related Actions could estop the present dispossessory
proceeding. See Sadi Holdings, supra, 293 Ga. App. at 24-25 (1); see also Atlanta
Airmotive v. Newnan-Coweta Airport Authority, 208 Ga. App. 906, 907 (1) (432
SE2d 571) (1993) (holding that trial court erred in denying tenant’s plea in abatement
where favorable decision in tenant’s prior pending action on its lease would bar later
filed dispossessory action). Accordingly, the trial court did not err in granting
MATF’s plea in abatement and staying this action pending the outcome of the appeals
in the Related Actions.
2. In light of our holding in Division 1, we need not reach Premium Funding’s
remaining enumeration of error.
Judgment affirmed. Andrews, P. J., concurs. Branch, J., concurs in judgment
only.
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