SECOND DIVISION
MILLER, P. J.,
ANDREWS and BROWN, 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
June 7, 2018
In the Court of Appeals of Georgia
A18A0497. SMITH v. BELL.
MILLER, Presiding Judge.
Simone Smith sued her former girlfriend, Martha Jean Bell, to recover either
half of the equity in a home titled in Bell’s name or a portion of the money Smith
invested in the home during the parties’ 14-year relationship. The trial court granted
summary judgment to Bell on Smith’s claims, and Smith now appeals, alleging in
several related enumerations of errors that the trial court erred by sua sponte granting
summary judgment despite material factual disputes. We find that the basis on which
the trial court granted summary judgment was in error as it was premised on a
disregard of evidence submitted by Smith, and that the insufficiency of the record
before the trial court prevents us from determining the proper disposition of this case
at this time. Consequently, we vacate the trial court’s order and remand the case for
further proceedings consistent with this opinion.1
Summary judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. OCGA §
9-11-56 (c). We apply a de novo standard of review to an appeal from
a grant of summary judgment and view the evidence, and all reasonable
conclusions and inferences drawn from it, in the light most favorable to
the nonmovant.
(Citations omitted.) Higgins v. Food Lion, Inc., 254 Ga. App. 221 (561 SE2d 440)
(2002).
So viewed, the evidence shows that Smith and Bell were romantically involved
in a same-sex relationship for years. In December 2001, Bell purchased a house that
was titled solely in her name. She and Smith entered into an oral agreement that
Smith would be entitled to a 50 percent equitable interest in the house as long as she
paid a portion of the purchase price, equally shared in the bills and mortgage
1
We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of hearing
en banc on the question of overruling America Net, Inc. v. U.S. Cover, Inc., 243 Ga.
App. 204 (532 SE2d 756) (2000), and Atlanta J’s, Inc. v. Houston Foods, Inc., 237
Ga. App. 415 (514 SE2d 216) (1999).
2
payments for the property, and made repairs to the property. The parties agreed that
if the relationship ended prior to the couple getting married, Bell would sell the house
and Smith would be entitled to 50 percent of the equity. Alternatively, the parties
agreed that if there was no equity in the home at the time of the break-up, Smith
would be compensated for her contributions to the house expenses. During the 14
years Smith and Bell lived together, Smith contributed equally to mortgage payments,
paid half of the bills and expenses for the house, and performed home improvements.
After the relationship ended, Smith sued Bell in the Superior Court of DeKalb
County for misrepresentation, breach of contract, unjust enrichment, and quantum
meruit, seeking to recover under the oral agreement between the parties, or,
alternatively, to recover her contributions to the house over the years. In response to
Smith’s lawsuit in superior court, Bell denied all of Smith’s claims and
counterclaimed to dispossess her from the home and recover unpaid rent and attorney
fees.2 The parties do not dispute that around the same time that Smith filed her lawsuit
2
Due to the existence of the magistrate court proceeding, the superior court
ultimately dismissed Bell’s counterclaim to dispossess Smith and recover unpaid rent,
and Bell does not appeal this ruling. Thus, she has abandoned this claim. Court of
Appeals Rule 25 (c) (2).
3
in superior court, Bell also filed suit against Smith in the Magistrate Court of DeKalb
County seeking to evict Smith and recover unpaid rent.3
The superior court, on its own initiative, entered an order titled “Order
Directing Submission of Authority on Subject-Matter Jurisdiction.” This order noted
that magistrate courts have jurisdiction over dispossessory matters, and it instructed
the parties to brief whether the superior court had subject-matter jurisdiction over the
dispute in light of such fact. Although not related to subject-matter jurisdiction, the
order also identified the law concerning oral agreements to transfer an interest in real
property and the Statute of Frauds.
In response to the superior court’s order, Smith submitted a filing which briefly
stated that the superior court had subject-matter jurisdiction and primarily focused on
the merits of her claims. Attached to the brief was Smith’s affidavit, which mirrored
3
The record includes a copy of various pleadings from the dispossessory
action, but those documents are not authenticated certified copies and, thus, we do not
consider them. See Hungry Wolf/Sugar & Spice, Inc. v. Langdeau, 338 Ga. App. 750,
751-752 (791 SE2d 850) (2016) (“The admissibility of evidence on motion for
summary judgment is governed by the rules relating to form and admissibility of
evidence generally . . . [T]o admit a document, the proponent must both authenticate
the document and address any hearsay concerns . . . “) (citations omitted).
4
the allegations in her complaint concerning the oral agreement between the parties.4
Bell responded to the superior court’s order by filing a motion for summary judgment
as to Smith’s claims, arguing, in relevant part, that res judicata precluded Smith’s
claims because those claims were required to be litigated in the dispossesory
proceeding pending in magistrate court.
The superior court never ruled on the issue of subject-matter jurisdiction, but
instead entered an “Order Permitting Submission of Authority” which indicated that
it was considering granting summary judgment to Bell on Smith’s claims and inviting
the parties to submit argument and authority. Smith responded with a brief and
affidavit restating the legal and factual arguments she previously made. Bell
submitted an affidavit disputing both the existence of any oral agreement as well as
Smith’s claims that she had split expenses with Bell.
4
We note that Smith submitted cancelled checks, receipts, photographs, and
other documents in support of her claims, but again, none of these records are
properly before this Court, nor were they properly before the superior court, as none
of them were authenticated. Hungry Wolf/Sugar & Spice, Inc., supra, 338 Ga. App.
at 751-752. Further, Smith alleged in her brief that the magistrate court stayed its
proceedings pending the disposition of the superior court case and that the
dispossessory action was mooted because she moved out of the house. There is no
admissible evidence in the record to support these unsworn contentions either.
5
The superior court granted summary judgment to Bell on Smith’s claims
without a hearing, concluding that Smith had no evidentiary support for her claims,
whereas Bell had stated in an affidavit that she had never agreed to give Smith any
interest in the home nor had she entered into any agreement whatsoever with Smith
concerning the home. In doing so, the superior court ignored the sworn allegations
in Smith’s own affidavits, which directly contradicted the allegations in Bell’s
affidavit. Smith appeals from this order. The superior court never addressed the other
issues in the case, including the threshold issue Bell raised: that Smith’s claims were
precluded by res judicata because her claims should have been raised and litigated in
the magistrate court dispossessory proceeding.
As an initial matter, we note that we cannot affirm the trial court’s order based
on the reasoning contained therein. The trial court entirely disregarded Smith’s
affidavits, which were sufficient to create a factual dispute as to the existence of an
oral agreement between the parties and performance under that purported agreement.5
5
Bell invites this Court to likewise disregard Smith’s affidavits on the basis
that they were filed as exhibits to her briefs rather than entered as separate documents
on DeKalb County’s e-filing system. Bell cites no authority for the proposition that
an affidavit must be e-filed as a separate document before it must be considered by
the trial court or this Court, and we decline to adopt such an arbitrary rule.
6
Consequently, the trial court erred in basing its ruling exclusively on a lack of sworn
evidence supporting Smith’s contentions.
Further, reviewing the record de novo, we are required to find that Smith’s
claims in superior court were not barred by res judicata because those claims could
not have been litigated in magistrate court.
The doctrine of res judicata prevents the re-litigation of all claims which
have already been adjudicated, or which could have been adjudicated,
between identical parties or their privies in identical causes of action.
Before res judicata applies, three prerequisites must be satisfied – (1)
identity of the cause of action, (2) identity of the parties or their privies,
and (3) previous adjudication on the merits by a court of competent
jurisdiction.
(Emphasis supplied; citation and punctuation omitted.) Setlock v. Setlock, 286 Ga.
384, 385 (688 SE2d 346) (2010).
As is relevant to this case, we must determine whether the magistrate court
where Bell’s dispossessory proceeding was pending would have been a court of
competent jurisdiction for Smith to litigate her claims against Bell.6
6
Smith did not specifically plead the value of her claims against Bell, however,
given her indication that she contributed half of the mortgage and expenses of a home
for 14 years and paid a portion of the purchase price, we will assume for purposes of
this analysis that Smith seeks damages in excess of $15,000.00.
7
The basis for the magistrate court’s jurisdiction over Bell’s dispossessory
action appears in OCGA § 15-10-2 (2015). Under subsection 6, the magistrate court
has jurisdiction over “[t]he issuance of summons, trial of issues, and issuance of writs
and judgments in dispossessory proceedings and distress warrant proceedings.” Id.
This Court has previously held that, when a magistrate court obtains jurisdiction over
a dispossessory dispute pursuant to OCGA § 15-10-2 (6), related civil claims in the
case exceeding the $15,000 jurisdictional limit imposed by OCGA § 15-10-2 (5)
could still proceed before the magistrate court.7 America Net, Inc. v. U.S. Cover, Inc.,
243 Ga. App. 204, 206 (1) (532 SE2d 756) (2000); Atlanta J’s, Inc. v. Houston
Foods, Inc., 237 Ga. App. 415, 417 (1) (514 SE2d 216) (1999). Thus, this Court has
previously held that the magistrate court was authorized to hear all related claims
between the parties, and if such claims were not raised in the magistrate court
proceeding, res judicata would prevent a party from later asserting those claims
against the other party in a different proceeding. See e.g. Atlanta J’s, Inc., supra, 237
Ga. App. at 419 (5).
7
At the time America Net and Atlanta J’s were decided, the jurisdiction limit
imposed by OCGA § 15-10-2 (5) was $5,000.
8
In later analyzing a situation procedurally analogous to the one present here,
however, our Supreme Court implicitly held that the $15,000 limitation contained in
OCGA § 15-10-2 (5) also applies to claims brought in magistrate court pursuant to
OCGA § 15-10-2 (6). Setlock, supra, 286 Ga. at 385-386. In Setlock, the Supreme
Court found, in relevant part, that the magistrate court did not have jurisdiction to
render a judgment on a claim for damages exceeding $15,000, thus, res judicata did
not bar a tenant’s claims from later being litigated in superior rather than magistrate
court. Id. (the tenant’s claims were for title to land, equity, and money damages in
excess of $15,000). Consequently, although Setlock did not explicitly overrule
America Net and Atlanta J’s, we conclude that its finding concerning the magistrate
court’s jurisdiction to adjudicate civil claims exceeding $15,000 in a dispossessory
proceeding implicitly overruled them. Our Court adopted the findings of Setlock in
WPD Center, LLC v. Watershed, Inc., 330 Ga. App. 289, 290 (1) (a) (765 SE2d 531)
(2014), reconsideration denied (December 10, 2014). In that case, we concluded that
the magistrate court lacked jurisdiction to consider counterclaims in a dispossessory
proceeding where the counterclaims exceeded the jurisdictional limitation for
magistrate court and thus, res judicata did not preclude subsequent litigation of civil
claims seeking damages in excess of $15,000. Id.
9
Although our Court has not explicitly acknowledged that America Net and
Atlanta J’s were overruled by Setlock, we take this opportunity to acknowledge that
the cases of America Net and Atlanta J’s have been overruled as to their findings that
a magistrate court can adjudicate claims for damages exceeding $15,000 even when
they arise in a dispossesory proceeding.
Consequently, we are required to find that because magistrate court was not a
“court of competent jurisdiction” for Smith’s claims and would not have been able
to adjudicate them, res judicata does not preclude those claims in the present lawsuit.
Smith’s claims, however, may nonetheless have been compulsory
counterclaims that she was required to bring in magistrate court in order to preserve
them. OCGA § 9-11-13; Setlock, supra, 286 Ga. at 385-386. In Setlock, our Supreme
Court found that, even though the magistrate court did not have jurisdiction to
actually adjudicate the claims, “[t]o avoid potential waiver of [the purported tenant’s]
counterclaims that arose out of the transaction or occurrence that was the subject
matter of [the purported landlord’s] dispossessory action, [the purported tenant] was
required to raise them in magistrate court” even though raising them would not confer
jurisdiction on the magistrate court to adjudicate the claims. Setlock, supra, 286 Ga.
at 386.
10
Here, the record is devoid of any properly submitted evidence demonstrating
what transpired in the magistrate court. We cannot ascertain whether Smith asserted
any claims in magistrate court, the timing of any such claims as compared to the
timing of claims asserted in the superior court, or the current status of the
dispossessory proceeding other than to note that neither party contends that the
magistrate court entered a disposition on any of Smith’s claims. Consequently, we
cannot determine whether Smith’s claims were compulsory counterclaims and, if so,
whether they were filed in magistrate court and properly preserved. See Setlock,
supra, 286 Ga. at 386. Accordingly, we must vacate the trial court’s order and remand
this case with instructions for the trial court to make both a factual determination as
to the status of the dispossessory proceeding and a legal determination as to the
impact such status has on Smith’s ability to pursue her claims before the superior
court.
Judgment vacated and case remanded. Andrews and Brown, JJ., concur.
11