Higgins v. BENNY'S VENTURE, INC.
309 Ga. App. 102
Ga. Ct. App.2011Background
- Benny's operated a used-car dealership and emissions testing business on Higgins' property under lease.
- A dispute over lease renewal led Higgins to terminate the lease and execute a writ of possession.
- During eviction, Benny's owner explained the emission-testing machine was connected to the State grid and could not be moved without State permission.
- Deputies told Higgins to cooperate and allow removal later after State permission; the machine remained in place.
- After permission was obtained, Benny's attempted to retrieve the machine, but Rosie Higgins prohibited removal; she began using the machine.
- Benny's sued for trover; a bench trial awarded Benny's the machine and damages; Higgins appealing contends abandonment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Abandonment under OCGA § 44-7-55(c). | Higgins argues property was abandoned once writ executed and left behind. | Benny's argues abandonment only if property was placed on landlord's property as required by statute. | Not abandoned; statute requires placement on landlord property, which did not occur. |
| Effect of eviction directive on liability for loss or removal of property. | Higgins asserts landlord had no duty and property can be seized or disposed of by landlord. | Benny's maintains landlord failed to enable timely removal and thus should bear burden. | Trial court's judgment supported by evidence showing obstruction of retrieval. |
Key Cases Cited
- Washington v. Harrison, 299 Ga.App. 335 (2009) (abandonment analysis under writ of possession; need to place property on landlord's property)