Fennelly v. Lyons

Fennelly v. Lyons

Opinion

 [*96]  [**589]   Dillard, Judge.

William Fennelly appeals the trial court's grant of summary judgment in favor of Samuel Lyons, his former landlord, as to his complaint alleging claims for invasion of privacy; trespass; wrongful eviction; trover and conversion; negligent and intentional infliction of emotional distress; and interference with enjoyment of property. On appeal, Fennelly argues that (1) the trial court's decision was contrary to Georgia law; (2) the trial court erred in finding that Lyons could legally take possession of or destroy his personal property after obtaining a writ of possession; (3) the magistrate court had the authority to vacate Lyons's writ of possession, and thus, the writ was void on its face; (4) the trial court erred in finding that Lyons was not liable for conversion; and (5) the trial court erred in finding that he could not recover damages for negligent or intentional infliction of emotional distress. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to Fennelly (i.e., the nonmoving party),¹ the evidence shows that Lyons owned property located at 254 Acres Way in Woodstock, [***2]  Georgia (the “Property”), and on May 1, 2010, he leased that residence to Fennelly with the option to purchase it. Then, on October 3, 2011, the parties amended the lease to be a month-to-month agreement, which allowed either party to terminate the lease at any time by giving the other party 30 days' notice. And on July 12, 2012, Lyons sent such a notice to Fennelly, terminating the lease and informing him that he must vacate the Property on or before August 15, 2012. The notice, which misspelled Fennelly's name as “Billy Fennell,” was sent to the leased address via certified mail.

On August 16, 2012, when Fennelly had still not vacated the Property, Lyons filed an affidavit for a summons of dispossessory, alleging that Fennelly owed $3,550 in past-due rent, that he had held [*97]  the property over beyond the term of the lease, and that he refused to deliver possession of the premises to Lyons. In addition, Lyons requested that the summons—which also misspelled Fennelly's [***3]  surname as “Fennell”—be delivered via “tack and mail” if personal service was unsuccessful. The sheriff's entry of service indicated that the summons was filed on August 17, 2012, and three days later, it was posted to the door of the Property and sent via first class mail to the leased address.

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