## Facts

- Samuel Lyons owned a residential property that he leased to William Fennelly.
- The parties’ lease arrangement allowed either party to terminate the tenancy with 30 days’ notice (after the lease became a month-to-month arrangement).
- On July 12, 2012, Lyons sent Fennelly written notice terminating the tenancy and requiring him to vacate by August 15, 2012; the notice was addressed to “Billy Fennell.”
- When Fennelly had not vacated by August 16, 2012, Lyons filed an affidavit in magistrate court seeking a summons of dispossessory, alleging thousands of dollars in past-due rent, holdover, and refusal to surrender possession, and requesting “tack and mail” service if personal service failed.
- Service was completed by posting the summons on the door of the leased property and mailing it by first-class mail to the premises.
- Fennelly sent Lyons a letter dated August 18, 2012, stating he was in New Jersey and intended to move out during the last week of September; Lyons testified he did not receive the letter until after the eviction in mid-September.
- On August 29, 2012, Lyons requested a writ of possession, stating that Fennelly had not filed an answer in the dispossessory action.
- The magistrate court issued the writ of possession on September 6, 2012.
- Lyons sent Fennelly a letter (postmarked September 10, 2012) stating that if Fennelly did not vacate by September 15, Lyons would remove and dispose of any personal property left inside the house.
- On September 17, 2012, Lyons executed the writ of possession and evicted Fennelly with a sheriff’s deputy present.
- The deputy told Lyons that Fennelly had 24 hours to claim his personal property; after that, it would be treated as abandoned and Lyons could dispose of it.
- Lyons hired movers to place Fennelly’s belongings in the driveway; after 24 hours passed and most items remained, Lyons donated or otherwise disposed of the property and arranged removal of several vehicles.
- After the eviction, Fennelly returned and asked for a dining-room set; Lyons offered to sell it for $200, but sold it to someone else before Fennelly returned with the money.
- On December 17, 2012, the magistrate court vacated the writ of possession, calling it a nullity based on the use of “Billy Fennell” rather than “William A. Fennelly” in the affidavit and service return.
- Fennelly later sued Lyons in superior court for wrongful eviction, trespass, conversion/trover, invasion of privacy, negligent and intentional infliction of emotional distress, and interference with enjoyment of property.
- The superior court granted summary judgment to Lyons on all claims, and Fennelly appealed.

## Issues

1. Whether Lyons could be liable for wrongful eviction, trespass, conversion, or related torts for actions taken while executing a writ of possession that was issued by the court and executed with law enforcement, even though the writ was later vacated.
2. Whether Fennelly’s personal property, removed during execution of the writ and left unclaimed after a 24-hour period identified by the deputy, could be treated as abandoned so as to defeat conversion/trover and similar claims.
3. Whether Fennelly’s negligent infliction of emotional distress claim failed for lack of evidence of physical injury.
4. Whether Lyons’s conduct in executing the writ and disposing of property could satisfy the “extreme and outrageous” requirement for intentional infliction of emotional distress.

## Decision

- The Court of Appeals of Georgia affirmed summary judgment for Lyons on all claims.
- The court treated the writ of possession as a valid court order at the time it was executed and held that the later vacatur did not retroactively make Lyons’s earlier actions tortious.
- The court agreed that, after execution of the writ and the 24-hour period to reclaim belongings, Fennelly’s remaining personal property was deemed abandoned and Lyons was not liable for disposing of it.
- The court affirmed judgment against the negligent infliction of emotional distress claim because Fennelly did not show the physical injury required under Georgia law.
- The court affirmed judgment against the intentional infliction of emotional distress claim because conduct tied to executing a court-issued writ did not meet the “extreme and outrageous” standard on this record.

## Legal Principles

- A party acting under a court-issued writ of possession executed with law enforcement is generally not subject to tort liability for entry, eviction, and removal of items carried out as part of that execution.
- A later order vacating a writ of possession does not automatically render actions taken earlier under the writ wrongful for purposes of tort damages when the writ appeared valid when executed.
- Personal property removed during execution of a writ and left unclaimed after the allowed retrieval period may be treated as abandoned, which defeats conversion/trover claims based on later disposal of that property.
- Negligent infliction of emotional distress in Georgia requires proof of physical injury; emotional harm alone is not enough.
- Intentional infliction of emotional distress requires conduct that is extreme and outrageous; carrying out an eviction under court process, without more, does not satisfy that standard.

## Conclusion

The Court of Appeals affirmed summary judgment for the landlord because Lyons acted under a court-issued writ of possession when he evicted Fennelly, and the magistrate court’s later vacatur did not retroactively convert Lyons’s execution of the writ into tortious conduct. After the deputy informed Lyons that Fennelly had 24 hours to reclaim his belongings, the remaining property was treated as abandoned, defeating conversion and related theories, and Fennelly’s emotional-distress claims failed under Georgia requirements for physical injury (negligent infliction) and extreme and outrageous conduct (intentional infliction).


Fennelly v. Lyons, 775 S.E.2d 587 (2015)