Brixmor/IA Ne. Plaza LLC v. Sublet Atlanta Realty

818 S.E.2d 681, 347 Ga. App. 223
CourtCourt of Appeals of Georgia
DecidedAugust 29, 2018
DocketA18A1239
StatusPublished
Cited by1 cases

This text of 818 S.E.2d 681 (Brixmor/IA Ne. Plaza LLC v. Sublet Atlanta Realty) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brixmor/IA Ne. Plaza LLC v. Sublet Atlanta Realty, 818 S.E.2d 681, 347 Ga. App. 223 (Ga. Ct. App. 2018).

Opinion

Barnes, Presiding Judge.

*223Brixmor/IA Northeast Plaza, LLC appeals from the superior court's order dismissing its pending action for an intruder warrant against Sublet Atlanta Realty, LLC d/b/a Lava Spa (hereinafter "Sublet"). Brixmor asserts that the superior court erred when it relied on a prior pending action in magistrate court to dismiss the intruder warrant action. Following our review, and finding that dismissal was not warranted under the prior pending action doctrine, we reverse.

We conduct a de novo review of a superior court's order dismissing a case based upon the prior pending action doctrine. Brock v. C & M Motors , 337 Ga. App. 288, 290 (1), 787 S.E.2d 259 (2016).

*224OCGA § 9-2-5 (a) provides:

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 simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.

Similarly, pursuant to OCGA § 9-2-44 (a) :

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.

The doctrines embodied in the two statutes "are closely related in effect and are to be considered and applied together." (Citation and punctuation omitted.) Brock , 337 Ga. App. at 290 (1), 787 S.E.2d 259. The purpose of these statutes "is to ensure judicial economy, to avoid inconsistent judgments, and to prevent harassment of the parties through multiple proceedings." (Citations and punctuation omitted.) Id.

Here, the record demonstrates that on November 28, 2017, Sublet filed a breach of contract claim in magistrate court asserting that Brixmor was attempting to illegally evict it from its business premises despite a three year lease agreement with Brixmor. Subsequently, on December 1, 2017, Brixmor filed an affidavit for an intruder warrant in superior court asserting that Sublet was an intruder on the leased premises and demanding *683possession of the premises. In its subsequently filed counter-affidavit opposing issuance of the intruder warrant, Sublet asserted that it was not an intruder and that it possessed a valid lease. It further argued that the issues should be "settle[d] ... in court," and that there was a pending lawsuit for breach of contract. The counter-affidavit filed in superior court and statement of contract claim filed in magistrate court were signed by Sublet's registered agent and manager.

Thereafter, Brixmor filed a motion for expedited hearing on the intruder warrant in superior court, and in a responsive motion to dismiss the motion for an expedited hearing, Sublet argued, among other things, that there was a pending action for breach of contract in magistrate court and that it "was the first party to file in court." The motion was also signed by its registered agent. Brixmor then filed a motion to strike Sublet's motion to dismiss, and among its *225arguments, cited that fact that the registered agent, as a non-attorney, could not represent a corporate entity. On December 12, 2017, the superior court entered a order dismissing the intruder warrant because the "dispute ... is the subject of a pending action ... in Magistrate Court involving the same parties and the same subject matter." Following the denial of its motion for reconsideration, Brixmor appeals the dismissal.

1. An action brought under OCGA § 44-11-30 for an intruder's warrant "is a summary action to eject intruders. The sole question in such a case is whether or not the defendant in good faith claims the right to occupy the premises in question." Krasner v. Crosswell , 80 Ga. App. 134, 135, 55 S.E.2d 381 (1949). Under the procedure prescribed in OCGA § 44-11-30, a plaintiff may bring an action to eject an intruder onto land by making an affidavit attesting to her good-faith right of possession. Id. If the defendant then submits a counter-affidavit asserting his own good-faith right, "the sheriff shall not turn [the defendant] out of possession[,] but shall leave both parties in their respective positions ... [and] shall return both affidavits to the office of the clerk of the superior court of the county in which the land is located for a trial of the issue before a jury ." (Emphasis supplied.) OCGA § 44-11-32. "[T]his language [of OCGA § 44-11-32 ] strongly indicates that the superior court shall have exclusive jurisdiction of proceedings to eject intruders (especially as there can be no trial by jury in civil cases in the [magistrate] court)[.]" Chambliss v. Hawkins , 123 Ga. 361, 364, 51 S.E. 337 (1905). See Allison v. Hodo , 84 Ga. App. 790, 791, 67 S.E.2d 606

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Bluebook (online)
818 S.E.2d 681, 347 Ga. App. 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brixmoria-ne-plaza-llc-v-sublet-atlanta-realty-gactapp-2018.