Vakili et al v. Wells Fargo Home Mortgage, Inc.
Filing
50
ORDER granting in part and denying in part 29 Motion for Summary Judgment. Signed by Chief Judge Lisa G. Wood on 7/24/2013. (csr)
In the 11niteb Otattz Disttttt Court
for the Aoutbern Afartet of Qeorgta
Ihunthttk Aibtoton
ABBAS VAKILI and
PARVIN VAKILI,
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*
*
Plaintiffs,
*
*
vs.
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WELLS FARGO HOME MORTGAGE, INC. *
*
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Defendant.
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CV 212-104
ORDER
Presently before the Court is Defendant's Motion for
Summary Judgment. See Dkt. No. 29. Upon due consideration,
Defendant's motion is GRANTED IN PART and DENIED IN PART.
I. FACTUAL
This action is predicated on Defendant's allegedly wrongful
foreclosure of Plaintiffs' property and allegedly wrongful
eviction of Plaintiffs' from that property. See Dkt. Nos. 1-1,
24. The relevant facts are taken principally from the parties'
Statements of Material Facts and responses thereto. See Dkt.
Nos. 29-1, 32, 34, 38-7. where the parties offer conflicting
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accounts of the events in question, this Court draws all
inferences and presents all evidence in the light most favorable
to Plaintiffs. See Hamilton v. Southland Christian Sch.. Inc.
680 F.3d 1316, 1318 (11th Cir. 2012) (citing Moton v. Cowart
631 F.3d 1337, 1341 (11th Cir. 2011)).
In 2003, Defendant loaned Plaintiffs one million dollars to
purchase the property which is the subject of this suit
("Property") . Plaintiffs executed a promissory note ("Note") in
favor of Defendant. See Dkt. No. 29-8. Plaintiffs also
executed a security deed ("Security Deed") that conveyed a
security interest in the Property as collateral for the Note.
The Security Deed gave Defendant a Power of Sale upon default on
the Note. See Dkt. No. 29-9. The Security Deed also defined
Defendant's rights if the Property was sold pursuant to the
Power of Sale. Specifically, the Security Deed stated
[Plaintiffs] . . . shall immediately
surrender possession of the Property to the
purchaser at the [foreclosure] sale. If
possession is not surrendered, [Plaintiffs]
shall be [] tenant[s] holding over and
may be dispossessed in accordance with
Applicable Law.
See id. ¶ 22. The Security Deed also gave Defendant the power
to secure the Property if Plaintiffs failed to comply with the
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terms of the Security Deed or if Plaintiffs abandoned the
Property. Specifically, the Security Deed stated
If . . . [Plaintiffs have] abandoned the
Property, then [Defendant] may do and pay
for whatever is reasonable or appropriate to
protect [Defendant's] interest in the
Property and rights under [the Security
Deed], including . . . securing and/or
repairing the Property.
See Id. ¶ 9(c).
Michael Roberts ("Roberts") was a licensed real estate
agent and broker. Dkt. No. 29-1 ¶ 8. He was an authorized Real
Estate Owned ("REO") Agent of Defendant's REO properties (i.e.,
post-foreclosure, bank-owned properties) . Id.
In approximately 2011, Plaintiffs had difficulty making
their mortgage payments and defaulted on the Note. Id. ¶ 4;
Dkt. No. 32 ¶ 4. Pursuant to the "Making Home Affordable
Program," Plaintiffs twice applied for a loan modification from
Defendant. Dkt. Nos. 29-1 ¶ 9; 32 ¶ 9. Plaintiffs provided all
materials that Defendant requested to evaluate Plaintiffs' loan
modification application. Dkt. No. 34 ¶ 3. Defendant denied
1
The "Making Home Affordable Program" is part of the Home Affordable
Modification Program ("HAMP"). HANP was authorized by Congress as part of
the Emergency Economic Stabilization Act of 2008, see 12 U.S.C. § 5219a(a),
which has the stated purpose of giving the Secretary of the Treasury the
"authority and facilities" necessary "to restore liquidity and stability to
the financial system of the United States." 12 U.S.C. § 5201(1).
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Plaintiffs' requests in writing on November 9, 2011 and
February 23, 2012. Dkt. Nos. 29-1 ¶ 10; 32 ¶ 10. Defendant did
not make a written offer to modify the loan or to postpone the
foreclosure sale. Dkt. Nos. 29-1 ¶I 24-25; 32 ¶J 24-25.
On March 1, 2012, Defendant sent Plaintiffs foreclosure
notices that advised Plaintiffs (1) that they were in default,
(2) that Defendant elected to accelerate the sums due under the
Note, (3) the total amount due, and (4) that Plaintiffs had ten
(10) days to pay the total amount due. The notices also advised
Plaintiffs that a foreclosure sale would occur on April 3, 2012,
if Defendant did not reinstate the loan. The notices also
included copies of the foreclosure advertisements that would be
published in the appropriate legal organ in anticipation of the
foreclosure sale.
On April 3, 2012, Defendant foreclosed on the Property.
Dkt. No. 29-1 ¶ 6. Thereafter, Roberts acted as Defendant's
agent to secure the Property and prepare it for resale.
Defendant did not file a dispossessory proceeding or obtain a
writ of possession. Dkt. No. 34 ¶ 8. Nor did Defendant demand
possession of the Property. Id. ¶ 10.
Between April 5 and April 9, 2012, Roberts conducted daily
exterior inspections of the Property multiple times per day and
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at various times each day. Dkt. No. 29-1 I 11. During his
visits to the Property, Roberts knocked on the exterior doors to
try to reach any potential occupants. Id. No one answered.
Id. He visited neighbors to ask if the property was occupied.
Dkt. No. 29-1 ¶ 11. He saw no lights on in the home, even at
night. Id. He peered through the unblocked windows and
observed items that remained in the same place during each of
his visits and that appeared to be broken and discarded. He
observed an overgrown lawn. Id. He also observed a vehicle in
the driveway that was not moved for multiple days and that was
covered in a deep layer of pollen, including on and around the
tires. Id. At no point did Roberts observe occupants or
visitors entering or leaving the Property. Id. From these
observations, Roberts concluded that the Property was abandoned.
Id.
Contrary to Roberts's belief, Plaintiffs had not abandoned
the Property. They simply had not visited it for as many as ten
(10) days. Dkt. No. 29-3, at 42. The items within the Property
appeared to be in disarray because Plaintiffs were in the
process of organizing their home. See Dkt. No. 29-7. They
sometimes slept at the Property. Dkt. No. 29-3, at 39-40.
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However, at other times, they slept at a relative's house or at
a hotel that they owned. Id.
On April 10, 2012, Roberts changed the locks on the
Property and entered the Property. Dkt. No. 29-1 ¶I 12-13.
Roberts discovered that the water and electricity services to
the Property were disconnected. Id. ¶ 13. However, Plaintiffs
had not disconnected these services. Dkt. No. 29-3, at 46-47.
In fact, Plaintiffs allege that they continued to store food in
the refrigerator. Dkt. No. 29-3, at 49. Once inside the
Property, Roberts observed bare mattresses; piles of items in
corners, on tables, and on desks; and clothes piled on the floor
and on the furniture. Dkt. No. 29-1 ¶ 14.
On April 11, Plaintiffs discovered that Roberts had changed
the locks on the Property. Id. ¶ 20. From April 11 to
April 13, Plaintiffs stayed at a relative's home. Id. ¶ 21.
They compensated the relative for using his home. Dkt. No. 293, at 44-45. On April 13, Roberts gave Plaintiffs keys to the
new locks on the Property. Id. ¶ 15. Roberts did not enter the
Property after April 13, 2012.
Plaintiffs are not aware of any professional complaints
filed against Roberts. Id. ¶ 17.
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After receiving keys to the Property, Plaintiffs allege
that the Property had been "rummaged through." See Dkt. No. 34
¶ 8. They also allege that some of their personal property was
missing. Id. ¶ 11. Specifically, jewelry, a computer, personal
papers, and thousands of dollars in cash were taken from the
Property without Plaintiffs' knowledge or permission. Id. As a
result of Defendant's actions, Plaintiffs allege that they
suffered anxiety, embarrassment, and mental pain and suffering.
II. PROCEDURAL BACKGROUND
Plaintiffs filed this action in the Superior Court of Glynn
County, Georgia. See Dkt. No. 1-1. The Superior Court enjoined
Defendant from "interfering with Plaintiffs' peaceful possession
of the [Property] and [Plaintiffs'] personal property therein
until further hearing." See id. at 14-15. Subsequently,
Defendant removed the action to this Court. See Dkt. No. 1.
The Court granted Plaintiffs' request to amend their Complaint.
See Dkt. No. 23. The Amended Complaint named Roberts as a codefendant. See Id. However, Roberts was subsequently dismissed
from the case. See Dkt. No. 45.
Plaintiffs assert nine (9) causes of action. Specifically,
Plaintiffs bring claims for (1) breaking and entering;
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(2) criminal trespass; (3) theft by conversion; (4) wrongful
eviction; (5) trespass; (6) conversion; (7) intentional
infliction of emotional distress; (8) wrongful foreclosure; and
(9) negligence. See Dkt. Nos. 1-1; 24; see also Dkt. No. 33, at
6, 9 (clarifying Plaintiffs' assertion of civil trespass and
conversion claims). Plaintiffs seek damages and attorney's
fees. See id.
Currently before the Court is Defendant's Motion for
Summary Judgment on all claims. See Dkt. No. 29. This motion
is fully briefed. See Dkt. Nos. 33, 38.
III. Legal Standard
Summary judgment is appropriate "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). A fact is "material" if it "might affect the
outcome of the suit under the governing law." FindWhat Investor
Grp. v. FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A dispute over such a fact is "genuine" if the
"evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Id. In making this determination,
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the court is to view all of the evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Johnson v. Booker T.
Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir.
2000)
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325. If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson, 477 U.S. at 257.
IV. DISCUSSION
A. Criminal Claims
Plaintiffs allege that the actions of Defendant's agent,
Roberts, "constitute[d] Breaking and Entering, Criminal Trespass
and Theft by Conversion." See Dkt. No. 1-1 ¶ 6; see also Id.
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Plaintiffs lack standing to assert these criminal claims.
In particular, "Georgia criminal statutes for trespassing and
theft do not expressly provide for a civil remedy, and thus, a
civil remedy cannot arise from a violation of these statutes."
Goia v. CitiFinancial Auto, 499 F. App'x 930, 937 (11th Cir.
2012) (per curiam) (citing O.C.G.A. §§ 16-7-21 (criminal
trespass), § 16-8-2 (theft by taking)); O.C.G.A. § 16-7-1
(burglary); see also Anthony v. Mi. Gen. Fin. Servs., Inc.,
697 S.E.2d 166, 171-72 (Ga. 2010) (providing that, where there
is nothing in the provisions of the criminal statute creating a
private cause of action in favor of the victim purportedly
harmed by the violation of the penal statute, there is no
private civil cause of action arising from the criminal
statute). Because Plaintiffs lack standing to assert these
criminal claims, Defendant's motion for summary judgment on
Plaintiffs' claims of breaking and entering, criminal trespass,
and theft by conversion is GRANTED.
B. Wrongful Eviction
Plaintiffs allege that they were wrongfully evicted from
the Property. See Dkt. No. 1-1 ¶ 7. Specifically, Plaintiffs
allege that Defendant evicted them by "changing the locks on the
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[Property] and depriving the Plaintiffs of access to the
[Property] and their personal property located [] therein." Id.
Defendant asserts that Plaintiffs abandoned the Property and
that Plaintiffs suffered no damages. See Dkt. No. 29-2, at 912.
"Where former owners of real property remain in possession
after a foreclosure sale, they become tenants at sufferance."
Steed v. Fed. Nat. Mortgage Corp., 689 S.E.2d 843, 848 (Ga. Ct.
App. 2009). "The exclusive method whereby a landlord may evict
a tenant is through a properly instituted dispossessory action
filed pursuant to O.C.G.A. § 44-7-50 et seq." Id.
It is undisputed that Defendant did not institute
dispossessory proceedings in accordance with O.C.G.A. § 44-7-50.
Dkt. No. 34 IT 8, 10. Consequently, Defendant violated O.C.G.A.
§ 44-7-50 unless Plaintiffs abandoned the Property. See Dkt.
No. 29-9 ¶ 9(c) (allowing Defendant to secure the Property upon
Plaintiffs' abandonment).
An issue of fact exists as to whether Plaintiffs abandoned
the Property. Roberts observed no use of the Property for
four (4) or five (5) days. He also observed that the Property
was in a general state of disarray and in a condition that is
uncommon for a residence that is actively being used. However,
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Plaintiffs maintain that they used the Property intermittently,
that they lived in the property largely in the state that
Roberts found it, that they mowed the lawn as-needed, that they
kept food in the refrigerator, and that they never disconnected
any utility services. Viewing the disputed facts in Plaintiffs'
favor, Plaintiffs had not abandoned the Property.
Furthermore, Defendant concedes that Plaintiffs were locked
out of the Property for three (3) days. See Dkt. No. 29-2.
Plaintiffs stated that they stayed at a relative's house during
this time and that they compensated that relative for the use of
his home. Dkt. No. 29-3, at 44-45. Consequently, if Defendant
wrongfully evicted Plaintiffs, the facts viewed in Plaintiffs'
favor support the inference that Plaintiffs sustained damages as
a result of that eviction.
An issue of fact exists as to whether Defendant wrongfully
evicted Plaintiffs from the Property. Consequently, Defendant's
motion for summary judgment on Plaintiffs' claim of wrongful
eviction is DENIED.
C. Trespass
Plaintiffs allege that Defendant's actions constituted
civil trespass. See Dkt. No. 1-1 ¶ 6; see also Dkt. No. 33, at
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6. "If the landlord evicts a tenant without filing a
dispossessory action and obtaining a writ of possession, or
without following the dispossessory procedures for handling the
tenant's personal property, the landlord can be held liable for
wrongful eviction and trespass." Ikomoni v. Executive Asset
Mgmt., LLC, 709 S.E.2d 282, 286 (Ga. Ct. App. 2011) (citing
Swift Loan & Fin. Co., Inc. v. Duncan, 394 S.E.2d 356 (Ga. Ct.
App. 1990)); see also Duncan, 394 S.E.2d at 358 ("A landlord may
not forcibly dispossess a tenant without subjecting himself to
an action for trespass even if the tenant is holding over beyond
his term, is in arrears in his rent, and has received legal
notice to vacate.").
Viewing the facts in Plaintiffs' favor, a jury could
conclude that Defendant wrongfully evicted Plaintiffs. See
supra Part IV.B. By extension, a jury could conclude that
Defendant's actions constituted trespass. See Duncan, 394
S.E.2d at 358. Consequently, Defendant's motion for summary
judgment on Plaintiffs' trespass claim is DENIED.
D. Conversion
Plaintiffs allege that—by changing the locks on the
Property—Defendant converted their personalty, in violation of
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O.C.G.A § 51-10-1. See Dkt. No. 1-1 ¶ 6; see also Dkt. No. 33,
at 9. O.C.G.A. § 51-10-1 provides that "[t]he owner of
personalty is entitled to its possession."
"Any deprivation of
such possession is a tort for which an action lies." O.C.G.A.
§ 51-10-1. In Georgia, "[c]onversion consists of an
unauthorized assumption and exercise of the right of ownership
over personal property belonging to another, in hostility to his
rights; an act of dominion over the personal property of another
inconsistent with his rights; or an unauthorized appropriation."
Williams v. Nat'l Auto Sales, Inc., 651 S.E.2d 194, 197 (Ga. Ct.
App. 2007) (citation omitted). Where a person "comes into
possession of the property unlawfully," he commits conversion if
(1) another person had title to the property or the right of
possession and (2) the alleged converter had actual possession
of the property. See Williams, 651 S.E.2d at 197 (noting that
demand and refusal is not required where a person comes into
possession of personalty unlawfully).
Viewing the facts in Plaintiffs' favor, a jury could
conclude that Defendant wrongfully evicted Plaintiffs. See
supra Part IV.B. By extension, a jury could conclude that
Defendant's actions denied Plaintiffs access to their personalty
for the time that the locks were changed until Defendant
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provided Plaintiffs with a key to the Property. Thus, an issue
of fact exists as to whether Defendant converted Plaintiffs'
personalty during that time period. Consequently, Defendant's
motion for summary judgment on Plaintiffs' conversion claim is
DENIED.
E. Intentional Infliction of Emotional Distress
Plaintiffs assert a claim for intentional infliction of
emotional distress ("lIED"). See Dkt. No. 1-1 ¶ 8.
Specifically, Plaintiffs allege that Defendant's actions "were
done in a willful, wanton and reckless manner, thereby causing
Plaintiffs to suffer extreme embarrassment and mental anguish."
Id.
To prevail on an lIED claim, "a plaintiff must demonstrate
that: (1) the conduct giving rise to the claim was intentional
or reckless; (2) the conduct was extreme and outrageous; (3) the
conduct caused emotional distress; and (4) the emotional
distress was severe." Racette v. Bank of Am., N.A., 733 S.E.2d
457, 465 (Ga. Ct. App. 2012) (citations omitted) . "The
defendant's conduct must be so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."
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Id. (citations omitted). "Whether a claim rises to the
requisite level of outrageousness and egregiousness to sustain a
claim for intentional infliction of emotional distress is a
question of law." Id. (citations omitted)
Defendant's pursuit of a foreclosure sale despite knowing
that Plaintiffs desired to modify their loan was not extreme or
outrageous conduct. Defendant acted within its rights to
foreclose after Plaintiffs failed to cure their default. See
infra Part IV.F. Defendant's actions were routine, commercial
business. The actions were not wrongful. Consequently,
Defendant's actions were not extreme or outrageous.
Furthermore, entering the Property and changing the locks
after reasonably attempting to discern occupancy was not extreme
or outrageous conduct. First, Defendant attempted to act in
accordance with its rights after the foreclosure sale. Second,
Defendant's agent took many actions over multiple days to
determine whether the Property was occupied. He visited the
Property at varying times. He knocked on all of the exterior
doors, peered through the windows, attempted to speak with
neighbors, observed the overgrown lawn and unused vehicle, and
observed no indication that items within the Property were moved
or that the Property was otherwise being used. Entering the
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Property and examining the personal property contained therein
after taking precautions to ensure that the Property was
abandoned was not extreme, outrageous, atrocious, or intolerable
conduct. Consequently, Defendant's motion for summary judgment
on Plaintiffs' lIED claim is GRANTED.
F. Wrongful Foreclosure
Plaintiffs allege that Defendant wrongfully foreclosed on
their Property. See Dkt. No. 24 191 1-8. Specifically,
Plaintiffs assert that Defendant acted in bad faith in refusing
to modify Plaintiffs' loan. 2 Id. ¶ 8.
To recover on a wrongful foreclosure claim, a plaintiff
must establish that (1) the defendant owed the plaintiff a legal
duty, (2) the defendant breached that duty, (3) causation, and
(4) damages. See Gregorakos v. Wells Fargo Nat. Ass'n, 647
S.E.2d 289, 292 (Ga. Ct. App. 2007) . Plaintiffs have not
alleged that Defendant breached any explicit contractual duty.
2
Plaintiffs also asserted that Defendant violated the "Making Home Affordable
Program and their duty to Plaintiffs" when it foreclosed on the Property
without modifying the loan and without informing Plaintiffs of its decision
not to modify the loan or its reasons for not doing so. Dkt. No. 24 ¶ 7.
However, in their response brief, Plaintiffs concede that Defendant is
entitled to summary judgment with respect to this claim because "the 'Home
Affordable Mortgage Program' ("HANP") does not provide Li a private right of
action." See Dkt. No. 33, at 3.
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Consequently, unless Defendant breached an implied duty,
Defendant is entitled to summary judgment on Plaintiffs'
wrongful foreclosure claim.
Georgia law implies a duty of good faith and fair dealing
in all contracts. See Tommy McBride Realty, Inc. v. Nicholson,
648 S.E.2d 468, 470 (Ga. Ct. App. 2007); see also O.C.G.A. § 232-114 ("Powers of sale in deeds of trust, mortgages, and other
instruments . . . shall be fairly exercised."). However, "there
can be no breach of an implied covenant of good faith where a
party to a contract has done what the provisions of the contract
expressly give him the right to do." Ameris Bank v. Alliance
Inv. & Mqmt. C., LLC, 739 S.E.2d 481, 486 (Ga. Ct. App. 2013);
see e.g., Martin v. Hamilton State Bank, 723 S.E.2d 726, 727
(Ga. Ct. App. 2012) (affirming summary judgment for lender on
claim of breach of the implied covenant of good faith and fair
dealing based on lender's refusal to restructure the debt
because, after borrower's default, lender had explicit right to
declare default and pursue collection of debt).
After Plaintiffs failed to cure their default, Defendant
exercised its express right under the Security Deed to invoke
its Power of Sale and foreclose on the Property. In so doing,
Defendant complied with the Security Deed's terms. Thus,
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Plaintiffs' claim of breach of an implied covenant of good faith
fails as a matter of law. See Ameris Bank, 739 S.E.2d at 486.
Defendant did not wrongfully foreclose on the Property.
Nor did Defendant breach an implied duty of good faith with
respect to the Note or Security Deed. Consequently, Defendant's
motion for summary judgment on Plaintiffs' claim of wrongful
foreclosure is GRANTED.
G. Negligence
Plaintiffs allege that Defendant acted negligently. See
Dkt. No. 24 191 9-12. Specifically, Plaintiffs assert that
"Defendant was negligent in hiring Roberts to go into [the
Property] without adequate investigation of his professional
credentials, without adequate instructions for his actions and
without adequate supervision of his actions." Id. ¶ 11.
Plaintiffs further assert that Defendant breached its duty "to
safeguard [Plaintiffs'] property while it was in Defendant's
control." Id. 91 12.
1. Negligent Hiring
Plaintiffs assert that Defendant negligently hired Roberts.
An employer must "exercise ordinary care in the selection of
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employees and [must] not [] retain them after knowledge of
incompetency." O.C.G.A. § 34-7-20. Thus, "an employer may be
liable for hiring or retaining an employee the employer knows[,]
or in the course of ordinary care should have known[,] was not
suited for the particular employment." Munroe v. Universal
Health Servs., Inc., 596 S.E.2d 604, 605 (Ga. 2004) (footnote
and citation omitted). Consequently, "an employer may be held
liable only where there is sufficient evidence to establish that
the employer reasonably knew or should have known of an
employee's 'tendencies' to engage in certain behavior relevant
to the injuries allegedly incurred by the plaintiff." Id. at
AM
The evidence does not support the inference that Defendant
breached its duty when hiring Roberts. Specifically, Plaintiffs
directed the Court to no evidence that Roberts was not suited to
act as an REQ agent. Nor have Plaintiffs directed the Court to
any evidence that Defendant knew or should have known that
Roberts was not suited to act as an REQ agent. Without such
evidence, Plaintiffs' claim of negligent hiring fails as a
matter of law.
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2.
Negligent Supervision
Plaintiffs assert that Defendant negligently instructed and
supervised Roberts. "For an employer to be held liable for
negligent supervision, there must be sufficient evidence to
establish that the employer reasonably knew or should have known
of an employee's tendencies to engage in certain behavior
relevant to the injuries allegedly incurred by the plaintiff."
Novare Grp., Inc. v. Sarif, 718 S.E.2d 304, 309 (Ga. 2011)
(citation and internal quotation marks omitted).
The evidence does not support the inference that Defendant
breached its duty when instructing or supervising Roberts.
Specifically, Plaintiffs directed the Court to no evidence that
Roberts had a tendency to mistakenly enter properties that were
not abandoned. Nor have Plaintiffs directed the Court to any
evidence that Defendant knew or should have known that Roberts
had such a tendency. Without such evidence, Plaintiffs' claims
of negligent instruction and supervision fail as a matter of
law.
3.
Negligent Safeguarding
Plaintiffs assert that Defendant failed to safeguard their
Property. To state a cause of action for negligence, a
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plaintiff must establish: "(1) a legal duty; (2) a breach of
[that] duty; (3) an injury; and (4) a causal connection between
the breach and the injury." R & R Insulation Servs., Inc. v.
Royal Indem. Co., 705 S.E.2d 223, 232 (Ga. Ct. App. 2010)
(citing Dozier Crane & Mach. v. Gibson, 644 S.E.2d 333 (Ga. Ct.
App. 2007)).
Plaintiffs failed to articulate a source for Defendant's
alleged duty to safeguard their property. Without a legal duty,
Plaintiffs' claim of negligent safeguarding the Property fails
as a matter of law.
4. Conclusion
Even construing the facts in Plaintiffs' favor, the
evidence does not support the elements of Plaintiffs' negligence
claims. Consequently, Defendant's motion for summary judgment
on Plaintiffs' negligence claims is GRANTED.
V. CONCLUSION
For the reasons stated above, Defendant's Motion for
Summary Judgment is GRANTED IN PART and DENIED IN PART.
Dkt.
No. 29. Defendant's motion is GRANTED with respect to the
claims for breaking and entering, criminal trespass, theft by
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conversion, intentional infliction of emotional distress,
wrongful foreclosure, and negligence. Defendant's motion is
DENIED with respect to the claims for wrongful eviction, civil
trespass, and civil conversion.
SO ORDERED, this 24th day of July, 2013.
0~
~
L SA GODBEY OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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