Author: Jeff

Landlord Wins Wrongful Eviction Case

There is a lot of confusion when it comes to evicting a tenant. One of the questions is the amount of damages a tenant is entitled to if wrongly evicted. The issue was addressed recently by the Georgia Court of Appeals in Hart v. Walker, A18A1320. In that case, the landlord clearly wrongfully evicted the tenant by changing the locks when she and the tenant got into a dispute.

Please don’t do this—in almost all instances, a landlord in Georgia must file an eviction in court in order to deprive a tenant of possession. Georgia is not a self-help state.

The tenant sued the landlord claiming wrongful eviction and damage to personal property. He also claimed out-of-pocket expenses.

The trial court ruled that although the tenant was wrongfully evicted, the tenant wasn’t entitled to recover any damages against the landlord. The appeals court agreed. At trial, the tenant had an expert testify to the fair market value of the items, but he was unable to convince the trial court that he in fact owned the items in question. The appeals court explained that the trial court is entitled to evaluate the credibility of a witness, and, if the witness isn’t credible, it can reject the witness’ testimony. Here, obviously, the trial court didn’t believe the tenant that he owned the items in question. Regarding the tenant’s out-of-pocket expenses for food and a motel, the appeal court noted that the tenant would have to incur such expenses regardless of the wrongful eviction. Therefore, these damages were too remote.

While this case addressed damages, as a landlord, if there’s anything you take away from this blog, it should be that changing the locks isn’t the way to go. The landlord in this case was fortunate that the tenant was unable to make a case for damages.

The Insurability of Tax Titles

If you’ve purchased a tax deed in Georgia, what do you need to do to obtain ownership of the property? That’s a question we get frequently. First and foremost, following a non-judicial tax sale, you need to bar the right of redemption of the owner who didn’t pay taxes and any party who holds an interest in the property. This has been covered in several other blogs on this website. But what about after you’ve barred the right to redeem, are you able to put up for sale sign and sell the property?

Generally, if there’s a non-judicial tax sale on the property within the past 20 years, the answer is no. In other words, most title insurance companies won’t title insure such properties. So what to do. There are generally three ways to obtain full title or what is known as “marketable title.”

The first way is to adversely possess the property for more than four years. This means taking full possession of the property in a manner that is (i) hostile (against the right of the true owner and without permission); (ii) actual (exercising control over the property); (iii) exclusive; (iv) open and notorious (using the property as the real owner would, without hiding occupancy); and (v) continuous.

The second way is to get a quitclaim deed from the of the owner who didn’t pay taxes and any party who holds an interest in the property.

The third way is to file a quiet title action in the Superior Court in which the property is located. In such a lawsuit the owner who didn’t pay taxes and any party who holds an interest in the property are named and given an opportunity to object.

Please call with any questions regarding tax deeds or any of the above methods of obtaining marketable title once a barment notices have been completed.

Medical Malpractice Affidavits: Causation

A recent appellate case provides a cautionary tale for persons making a claim for injuries due to medical malpractice. Edokpolor v. Grady (A16A1031, decided 9/14/2018) is a recent medical malpractice case that was thrown out of court because the injured party’s expert affidavit was deficient.

In Georgia, negligence claims against professionals such as doctors, lawyers, and engineers require  an expert affidavit verifying the wrongdoing. This affidavit is a mandatory requirement in all malpractice claims in Georgia.

For example, in a malpractice claim against a doctor, the affidavit must be from another doctor who practices the same type of medicine and the affidavit must state that culpable doctor’s treatment of the injured patient fell below the standard of care for similar doctors; importantly, the affidavit must also explain how the alleged negligence caused the injury to the patient.

In Edikpolor, the patient reported to Grady Memorial Hospital with cardiac disease and other issues. After spending 30 days in the hospital, the doctors determined the patient needed a colonoscopy. To prepare for the examination, the doctors ordered that bowel preparation medicine be administered to the patient via a feeding tube. Contrary to these instructions, the nurses administered the medication by mouth. The patient allegedly choked on the medication, which caused fluid to enter her lungs, and she died several weeks later as a result.

The patient’s family sued the hospital, which included a malpractice affidavit from another doctor. The affidavit stated that the nurses were negligent in not following the doctor’s order to use a feeding tube, and that the negligence was the cause of the patient’s death.

The problem in this case is that the affidavit was ruled inadequate because it didn’t explain how and why feeding fluid by mouth is more risky than feeding through a tube. On the other hand, the hospital introduced a contradictory expert affidavit, which stated that choking could occur whether taken by mouth or feeding tube because  what happens is the liquid ends up in the stomach and is then regurgitated into the throat; it is at this point when the liquid is inhaled into the lungs. In other words, administering the fluid by mouth was not necessarily the cause of the injuries.

This case shows that “[a] plaintiff must show that the purported violation or deviation [by the medical professional] is the proximate cause of the injuries sustained. He must prove that the injuries complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. There can be no recovery where there is no showing to any reasonable degree of medical certainty that the injuries could have been avoided.”

It’s easy to be critical after the fact, but the case underscores that not only must you show negligence, but you must be able to show with relative certainty that the negligence caused the injuries.

Can a tax commissioner apply excess funds to post-tax sale property taxes?

Iglesia Del Dios Vivo Columna Y Apoyo De La Verdad La Luz Del Mundo, Inc. v. Downing, 321 Ga. App. 778 (2013) addressed this issue, and the answer, quite simply, is NO. (Bonus points for being able to say the plaintiff’s name in that case three times fast.)

The guiding statute is O.C.G.A. § 48-4-5, which provides that any excess funds existing “after paying taxes, costs, and all expenses of a sale made by the tax commissioner” shall be distributed “to the owner or owners as their interests appear in the order of priority in which their interests exist.”

So, while a tax commissioner is authorized to apply excess funds to satisfy outstanding property taxes owed by the delinquent taxpayer that accrued before the tax sale, it can’t do so after the tax sale. This reasoning for this is that the tax deed purchaser, not the delinquent taxpayer, is liable for post-tax sale property taxes.

What about a situation in which post-tax sale property taxes accrue before the tax deed purchaser has barred the right of redemption? In this situation, the delinquent taxpayer still has possession and the tax deed purchaser doesn’t have full title. Is the delinquent taxpayer jointly liable with the tax deed purchaser? According to the Downing case, the answer is no.  Only the tax deed purchaser is liable for post-tax sale property taxes; this is regardless of whether the right to redeem has been barred.

Discovery From Third-Parties

Once a lawsuit is filed, there is a period of discovery in which the parties exchange evidence and take depositions. In almost every case, there is tension in regard to what must be disclosed to the other side. Georgia law says that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

What does this mean? Well, it means that most anything that is or may become an issue in the litigation must be disclosed. The same rationale applies to discovery to a third-party (i.e., a party that is not named in the lawsuit). The way this is applied, as a practical matter, is that the court will look at issue in dispute and decide whether the information or documents sought are relevant or likely to lead to the discovery of admissible evidence. This is a liberal standard but there must be some connection between the evidence sought and a dispute in the lawsuit.