I have negotiated and drafted leases. I have read code sections and treatises (especially William J. Dawkins’ “Georgia Landlord and Tenant Breach and Remedies with Forms”). I have lectured on leases. Until last year, I had never enforced a lease. Until this year, I had never enforced a lease and had the tenant contest. I readily confess that I know far less about leases than I thought I did. I now understand that knowing what the books say is essential, but not sufficient. There’s what the books say. Then there’s how the courts implement what the books say.
A client called me back in the fall to represent them at a commercial dispossessory hearing. The agent for the owner had filed the affidavit (asking only for possession, no back rent) and the court had set the hearing date. The client wanted representation because there were indications that the tenant would not go quietly and intended to make the case a public relations issue for the landlord: my client was a church; the tenant was another church. I was happy to do it. The matter seemed straightforward. The lease had expired by its terms on June 30, 2010, but the tenant remained in possession without paying further rent. The landlord had sent repeated notices that it would not renew the lease and strongly encouraging the tenant to find other premises. No problem.
My client and I appeared for the 2:00 calendar call on October 26, 2010. First order of business was mandatory mediation. The mediator, a law school student, was good; I was impressed. I wished that I had experienced something like that in law school. Proposals and counter proposals ensued, with no resolution. So, before the judge we went. I think we finally made it somewhere between 6 and 7. That being said, I was extremely impressed with the manner in which judge processed the voluminous number of cases.
Waiting for our case, I saw a wide variety of clothing—surprising, to me, in the lack of respect for the court, but I now attribute that to my naiveté. Then there was the tenant–unhappy about the seven days the judge had just given him–stomping out of the court and under his breath, but perfectly audible at the same time, complaining about the judge and either reminding or trying to convince himself that “God will take care of me”.
A couple of trials preceded my case. One was a suit by a landlord to evict a young mother for allegedly stabbing another female tenant in the eye. This was not the first appearance of this case before the judge, because the alleged victim this time brought an attorney due to the judge’s instructions in the prior appearance to bring a toothbrush in case he sent her to jail. I sensed that the earlier hearing had not gone well for her. One of the witnesses, the defendant’s brother, testified that he had earlier on the day of the alleged attack, while waiting at a bus stop, seen the alleged victim at a service station across the street. He left the bus stop to go meet her because she had a good body. Seeing her myself, I did not agree. My guess is that he was already high on something when he first saw her, because he continued to testify about how the two of them did cocaine and liquor the rest of the day. Yes, all this before the judge. Having heard the testimony, the judge leaned back in his chair, looked up at the ceiling and thought. At one point he lowered his head and looked at the purported victim to inform her that he was considering whether to send her to jail, for perjury I guess. He then told the brother that he was not going to send him to jail for admitting to at least two felonies because—well I forget why not. He then told the alleged victim that he was dismissing the case because he found her totally noncredible. She started to argue, but the judge cut her off with, “In other words, I do not believe you.” Case closed. She-of-the-fine-body pranced out with a gaze and a gait that hinted at continuing chemical influence.
The judge finally called our case. I and my client approached the dais, as did the pastor of the tenant church and his counsel. I explained to the judge that the lease had expired end of June, that the tenant remained in possession without paying rent, here are copies of the notices and demand for possession, case closed. Not so fast . . .
Tenant’s counsel told the judge that there were questions about the propriety of the demand for possession (I think whether given after the expiration of the lease) and whether the landlord had breached obligations to maintain the roof (the lease contained no such obligation absent notice from the tenant) and that tenant intended to appeal. The judge, reviewing the documents, told tenant’s counsel that he thought it likely that the landlord would win on summary judgment on the appeal, but so be it. The judge signed an order that the writ of possession would issue on November 1, 2010; that the tenant, if it filed an appeal, must pay into court $3,000 per month as rent, commencing November 1, 2010, failing which the landlord “shall be entitled to an immediate WRIT OF POSSESSION without further Order of the Court.” The tenant’s attorney filed notice of appeal on October 28.
The tenant failed to pay the rent by November 1. On November 9, I filed motions to dismiss the appeal and for immediate issuance of writ of possession on two grounds: (1) failure to pay rent as required by the order and (2) failure of tenant’s counsel to show authority as required by O.C.G.A. § 5-3-3. As to the authority issue, we had information that the pastor was not authorized to pursue the appeal without approval of the church hierarchy and that the church leaders had not given that authority. The Court issued Rule Nisi for November 30, 2010.
My nerves once again attacked when we approached the podium. First, the judge asked why we were there, which surprised me—had he not read my motions ahead of time (naïve again)? When I reminded him that we were there to dismiss the appeal and issue the writ of possession, his response confused me. First, he told me that I needed no further order from him for the writ, because the order by its terms said that the writ would issue if the tenant failed to pay the rent. So, all I had to do was go to the clerk’s office and apply for the writ. Then, the real issue on dismissal of the appeal was whether or not the tenant had paid the appeal costs as required by the “costs letter”. I had filed my affidavit that, based on my discussions with the clerk’s office, nothing had been paid. The judge told me that, while the affidavit might be totally accurate, it was not “best evidence”. I needed to get a copy of the costs letter, together with evidence that the tenant had received it but not paid, and then come back to court. We rescheduled a follow-up hearing two weeks later. In my nerves, I failed to raise the issue of O.C.G.A. § 5-3-3. I’d still like to know how the judge might have responded to that.
So, I traipsed back to the clerk’s office a couple of days later and applied for the writ of possession. The clerk told me that she would forward it to the marshal, who would call me to schedule the eviction.
I showed up for the next hearing, only to have the tenant dismiss the appeal, with TV cameras there. Frankly, with that kind of publicity, I expected more.
Next morning I called the marshal’s office to check on the eviction; I had filed the application about two weeks earlier. The marshal’s office told me that the last thing their system showed was the dismissal of the appeal and that I should call the clerk. I called the clerk, who instructed me to come apply for another writ. I did that the next day.
Several questions. If I was entitled to a writ of possession for failure of the tenant to pay rent under the first order, and my client was not seeking any back-rent, what was left to be decided in the appeal? Why did the judge tell me that I was entitled to an immediate writ of possession for the tenant’s failure to pay the rent into court only to have the system hold up my application for that writ because of the appeal and then make me go in and apply again?
Part of me says that I might have simplified all this with more diligent review of the law. Another part tells me maybe not.