BRIXMOR/IA NORTHEAST PLAZA, LLC v. SUBLET ATLANTA REALTY, LLC D/B/A LAVA SPA

Opinion

FIRST DIVISION BARNES, P. J., MCMILLIAN and REESE, 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 29, 2018

In the Court of Appeals of Georgia A18A1239. BRIXMOR/IA NORTHEAST PLAZA LLC. v. SUBLET ATLANTA REALTY.

BARNES, Presiding Judge.

Brixmor/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 SE2d 259) (2016). OCGA § 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 statues “are closely related in effect and are to be

considered and applied together.” (Citation and punctuation omitted.) Brock, 337 Ga.

App. at 290 (1). 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

2 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 possession 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 arguments, 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

3 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 SE2d 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 SE 337) (1905). See Allison v. Hodo, 84 Ga. App.

790, 791 (67 SE2d 606) (1951) (when proceeding against intruders, “[the property

4 owner] must resort to the judicial manner prescribed in [OCGA § 44-11-32] in

ejecting the alleged intruders,” otherwise, “if [the property owner], without regard for

[OCGA § 44-11-32] forcibly ejects the alleged intruders, [the property owner] can be

held liable for any damages arising out of such wrongful ouster.”).

Here, the superior court erred in finding that the “later-filed action [seeking an

intruder warrant] must be abated according to [OCGA § 9-2-44].” Clearly, per the

explicit language of OCGA § 44-11-32, the instant case on the intruder warrant could

not have been brought in magistrate court, and the prior pending action doctrine does

not apply “[i]f it appears from the face of the pleadings in the first-filed case that the

court therein does not have jurisdiction to resolve the pending claims on the merits,

then the . . . later-filed suit may proceed forward.” Bhindi Brothers v. Patel, 275 Ga.

App. 143, 146 (619 SE2d 814) (2005).

2. In light of our decision in Division 1, we need not address whether, as

Brixmor asserts, the superior court erred in finding that the action involved the same

parties and cause of action or whether Sublet’s agent as a non-attorney could file

pleadings in the court on the company’s behalf.

Accordingly, we reverse the superior court’s order dismissing Brixmor’s action

for an intruder warrant.

5 Judgment reversed. McMillian and Reese, JJ., concur.