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Lawskills.com Georgia Caselaw
GREENHILL v. ALLEN et al.
73548.
SOGNIER, Judge.
Dispossessory action. DeKalb State Court. Before Judge Carlisle.
Robert G. and Dean Allen brought dispossessory proceedings against Roy Greenhill, Sr., which Greenhill contested. The trial court granted the Allens' motion for partial summary judgment on the issue of possession and Greenhill appeals.
1. Appellees' motion to dismiss is denied.
We agree with appellant that the record shows he presented a complete defense to appellee's action under OCGA 44-7-52. We are not persuaded by appellees' argument that because the tender was in multiples of the $850 monthly rental, no portion of it could cover court costs without rendering future rent payments insufficient. Future rent payments were not then due and owing, and appellant was not required to tender them. Further, although there is no competent evidence in the record before us as to the actual cost of the warrant, it is inconceivable that a tender of $1,700 would not cover both the $850 rent then past due and the cost of the warrant. For that reason, appellant's tender met the requirements of OCGA 44-7-52 and was a complete defense to the dispossessory action. Terrell v. Griffith, 129 Ga. App. 675 (200 SE2d 485) (1973), cited by appellees, is distinguishable in that the only tender made by the tenant in Terrell was for the precise amount of rent past due. Here, both appellant and appellees admit appellant tendered an amount $850 greater than the amount required as rent by OCGA 44-7-52. Appellees' affidavits are silent as to when this tender was made and thus there is no evidence to contradict appellant's allegation that the tender was timely.
Since the evidence proffered by appellees in support of their motion for summary judgment failed to pierce appellant's defensive pleadings, appellant was under no duty to respond to the motion. See Sun First Nat. Bank v. Gainesville 75, 155 Ga. App. 70, 74 (270 SE2d 293) (1980). The trial court thus erred by granting possession to appellees as a matter of law on their motion for partial summary judgment.
Dean M. Allen, Robert G. Allen, pro se.
J. Steven Cheatwood, for appellant.
DECIDED JANUARY 15, 1987.
Thursday May 21 13:45 EDT


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