                              SECOND DIVISION
                                MILLER, P. J.,
                           ANDREWS and BROWN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       June 7, 2018




In the Court of Appeals of Georgia
 A18A0497. SMITH v. BELL.

      MILLER, Presiding Judge.

      Simone Smith sued her former girlfriend, Martha Jean Bell, to recover either

half of the equity in a home titled in Bell’s name or a portion of the money Smith

invested in the home during the parties’ 14-year relationship. The trial court granted

summary judgment to Bell on Smith’s claims, and Smith now appeals, alleging in

several related enumerations of errors that the trial court erred by sua sponte granting

summary judgment despite material factual disputes. We find that the basis on which

the trial court granted summary judgment was in error as it was premised on a

disregard of evidence submitted by Smith, and that the insufficiency of the record

before the trial court prevents us from determining the proper disposition of this case
at this time. Consequently, we vacate the trial court’s order and remand the case for

further proceedings consistent with this opinion.1

      Summary judgment is proper when there is no genuine issue of material
      fact and the movant is entitled to judgment as a matter of law. OCGA §
      9-11-56 (c). We apply a de novo standard of review to an appeal from
      a grant of summary judgment and view the evidence, and all reasonable
      conclusions and inferences drawn from it, in the light most favorable to
      the nonmovant.


(Citations omitted.) Higgins v. Food Lion, Inc., 254 Ga. App. 221 (561 SE2d 440)

(2002).

      So viewed, the evidence shows that Smith and Bell were romantically involved

in a same-sex relationship for years. In December 2001, Bell purchased a house that

was titled solely in her name. She and Smith entered into an oral agreement that

Smith would be entitled to a 50 percent equitable interest in the house as long as she

paid a portion of the purchase price, equally shared in the bills and mortgage



      1
        We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of hearing
en banc on the question of overruling America Net, Inc. v. U.S. Cover, Inc., 243 Ga.
App. 204 (532 SE2d 756) (2000), and Atlanta J’s, Inc. v. Houston Foods, Inc., 237
Ga. App. 415 (514 SE2d 216) (1999).

                                          2
payments for the property, and made repairs to the property. The parties agreed that

if the relationship ended prior to the couple getting married, Bell would sell the house

and Smith would be entitled to 50 percent of the equity. Alternatively, the parties

agreed that if there was no equity in the home at the time of the break-up, Smith

would be compensated for her contributions to the house expenses. During the 14

years Smith and Bell lived together, Smith contributed equally to mortgage payments,

paid half of the bills and expenses for the house, and performed home improvements.

      After the relationship ended, Smith sued Bell in the Superior Court of DeKalb

County for misrepresentation, breach of contract, unjust enrichment, and quantum

meruit, seeking to recover under the oral agreement between the parties, or,

alternatively, to recover her contributions to the house over the years. In response to

Smith’s lawsuit in superior court, Bell denied all of Smith’s claims and

counterclaimed to dispossess her from the home and recover unpaid rent and attorney

fees.2 The parties do not dispute that around the same time that Smith filed her lawsuit




      2
        Due to the existence of the magistrate court proceeding, the superior court
ultimately dismissed Bell’s counterclaim to dispossess Smith and recover unpaid rent,
and Bell does not appeal this ruling. Thus, she has abandoned this claim. Court of
Appeals Rule 25 (c) (2).

                                           3
in superior court, Bell also filed suit against Smith in the Magistrate Court of DeKalb

County seeking to evict Smith and recover unpaid rent.3

      The superior court, on its own initiative, entered an order titled “Order

Directing Submission of Authority on Subject-Matter Jurisdiction.” This order noted

that magistrate courts have jurisdiction over dispossessory matters, and it instructed

the parties to brief whether the superior court had subject-matter jurisdiction over the

dispute in light of such fact. Although not related to subject-matter jurisdiction, the

order also identified the law concerning oral agreements to transfer an interest in real

property and the Statute of Frauds.

      In response to the superior court’s order, Smith submitted a filing which briefly

stated that the superior court had subject-matter jurisdiction and primarily focused on

the merits of her claims. Attached to the brief was Smith’s affidavit, which mirrored




      3
         The record includes a copy of various pleadings from the dispossessory
action, but those documents are not authenticated certified copies and, thus, we do not
consider them. See Hungry Wolf/Sugar & Spice, Inc. v. Langdeau, 338 Ga. App. 750,
751-752 (791 SE2d 850) (2016) (“The admissibility of evidence on motion for
summary judgment is governed by the rules relating to form and admissibility of
evidence generally . . . [T]o admit a document, the proponent must both authenticate
the document and address any hearsay concerns . . . “) (citations omitted).

                                           4
the allegations in her complaint concerning the oral agreement between the parties.4

Bell responded to the superior court’s order by filing a motion for summary judgment

as to Smith’s claims, arguing, in relevant part, that res judicata precluded Smith’s

claims because those claims were required to be litigated in the dispossesory

proceeding pending in magistrate court.

      The superior court never ruled on the issue of subject-matter jurisdiction, but

instead entered an “Order Permitting Submission of Authority” which indicated that

it was considering granting summary judgment to Bell on Smith’s claims and inviting

the parties to submit argument and authority. Smith responded with a brief and

affidavit restating the legal and factual arguments she previously made. Bell

submitted an affidavit disputing both the existence of any oral agreement as well as

Smith’s claims that she had split expenses with Bell.




      4
       We note that Smith submitted cancelled checks, receipts, photographs, and
other documents in support of her claims, but again, none of these records are
properly before this Court, nor were they properly before the superior court, as none
of them were authenticated. Hungry Wolf/Sugar & Spice, Inc., supra, 338 Ga. App.
at 751-752. Further, Smith alleged in her brief that the magistrate court stayed its
proceedings pending the disposition of the superior court case and that the
dispossessory action was mooted because she moved out of the house. There is no
admissible evidence in the record to support these unsworn contentions either.

                                          5
      The superior court granted summary judgment to Bell on Smith’s claims

without a hearing, concluding that Smith had no evidentiary support for her claims,

whereas Bell had stated in an affidavit that she had never agreed to give Smith any

interest in the home nor had she entered into any agreement whatsoever with Smith

concerning the home. In doing so, the superior court ignored the sworn allegations

in Smith’s own affidavits, which directly contradicted the allegations in Bell’s

affidavit. Smith appeals from this order. The superior court never addressed the other

issues in the case, including the threshold issue Bell raised: that Smith’s claims were

precluded by res judicata because her claims should have been raised and litigated in

the magistrate court dispossessory proceeding.

      As an initial matter, we note that we cannot affirm the trial court’s order based

on the reasoning contained therein. The trial court entirely disregarded Smith’s

affidavits, which were sufficient to create a factual dispute as to the existence of an

oral agreement between the parties and performance under that purported agreement.5



      5
         Bell invites this Court to likewise disregard Smith’s affidavits on the basis
that they were filed as exhibits to her briefs rather than entered as separate documents
on DeKalb County’s e-filing system. Bell cites no authority for the proposition that
an affidavit must be e-filed as a separate document before it must be considered by
the trial court or this Court, and we decline to adopt such an arbitrary rule.

                                           6
Consequently, the trial court erred in basing its ruling exclusively on a lack of sworn

evidence supporting Smith’s contentions.

      Further, reviewing the record de novo, we are required to find that Smith’s

claims in superior court were not barred by res judicata because those claims could

not have been litigated in magistrate court.

      The doctrine of res judicata prevents the re-litigation of all claims which
      have already been adjudicated, or which could have been adjudicated,
      between identical parties or their privies in identical causes of action.
      Before res judicata applies, three prerequisites must be satisfied – (1)
      identity of the cause of action, (2) identity of the parties or their privies,
      and (3) previous adjudication on the merits by a court of competent
      jurisdiction.


(Emphasis supplied; citation and punctuation omitted.) Setlock v. Setlock, 286 Ga.

384, 385 (688 SE2d 346) (2010).

      As is relevant to this case, we must determine whether the magistrate court

where Bell’s dispossessory proceeding was pending would have been a court of

competent jurisdiction for Smith to litigate her claims against Bell.6


      6
        Smith did not specifically plead the value of her claims against Bell, however,
given her indication that she contributed half of the mortgage and expenses of a home
for 14 years and paid a portion of the purchase price, we will assume for purposes of
this analysis that Smith seeks damages in excess of $15,000.00.

                                            7
      The basis for the magistrate court’s jurisdiction over Bell’s dispossessory

action appears in OCGA § 15-10-2 (2015). Under subsection 6, the magistrate court

has jurisdiction over “[t]he issuance of summons, trial of issues, and issuance of writs

and judgments in dispossessory proceedings and distress warrant proceedings.” Id.

This Court has previously held that, when a magistrate court obtains jurisdiction over

a dispossessory dispute pursuant to OCGA § 15-10-2 (6), related civil claims in the

case exceeding the $15,000 jurisdictional limit imposed by OCGA § 15-10-2 (5)

could still proceed before the magistrate court.7 America Net, Inc. v. U.S. Cover, Inc.,

243 Ga. App. 204, 206 (1) (532 SE2d 756) (2000); Atlanta J’s, Inc. v. Houston

Foods, Inc., 237 Ga. App. 415, 417 (1) (514 SE2d 216) (1999). Thus, this Court has

previously held that the magistrate court was authorized to hear all related claims

between the parties, and if such claims were not raised in the magistrate court

proceeding, res judicata would prevent a party from later asserting those claims

against the other party in a different proceeding. See e.g. Atlanta J’s, Inc., supra, 237

Ga. App. at 419 (5).




      7
      At the time America Net and Atlanta J’s were decided, the jurisdiction limit
imposed by OCGA § 15-10-2 (5) was $5,000.

                                           8
      In later analyzing a situation procedurally analogous to the one present here,

however, our Supreme Court implicitly held that the $15,000 limitation contained in

OCGA § 15-10-2 (5) also applies to claims brought in magistrate court pursuant to

OCGA § 15-10-2 (6). Setlock, supra, 286 Ga. at 385-386. In Setlock, the Supreme

Court found, in relevant part, that the magistrate court did not have jurisdiction to

render a judgment on a claim for damages exceeding $15,000, thus, res judicata did

not bar a tenant’s claims from later being litigated in superior rather than magistrate

court. Id. (the tenant’s claims were for title to land, equity, and money damages in

excess of $15,000). Consequently, although Setlock did not explicitly overrule

America Net and Atlanta J’s, we conclude that its finding concerning the magistrate

court’s jurisdiction to adjudicate civil claims exceeding $15,000 in a dispossessory

proceeding implicitly overruled them. Our Court adopted the findings of Setlock in

WPD Center, LLC v. Watershed, Inc., 330 Ga. App. 289, 290 (1) (a) (765 SE2d 531)

(2014), reconsideration denied (December 10, 2014). In that case, we concluded that

the magistrate court lacked jurisdiction to consider counterclaims in a dispossessory

proceeding where the counterclaims exceeded the jurisdictional limitation for

magistrate court and thus, res judicata did not preclude subsequent litigation of civil

claims seeking damages in excess of $15,000. Id.

                                          9
      Although our Court has not explicitly acknowledged that America Net and

Atlanta J’s were overruled by Setlock, we take this opportunity to acknowledge that

the cases of America Net and Atlanta J’s have been overruled as to their findings that

a magistrate court can adjudicate claims for damages exceeding $15,000 even when

they arise in a dispossesory proceeding.

      Consequently, we are required to find that because magistrate court was not a

“court of competent jurisdiction” for Smith’s claims and would not have been able

to adjudicate them, res judicata does not preclude those claims in the present lawsuit.

      Smith’s claims, however, may nonetheless have been compulsory

counterclaims that she was required to bring in magistrate court in order to preserve

them. OCGA § 9-11-13; Setlock, supra, 286 Ga. at 385-386. In Setlock, our Supreme

Court found that, even though the magistrate court did not have jurisdiction to

actually adjudicate the claims, “[t]o avoid potential waiver of [the purported tenant’s]

counterclaims that arose out of the transaction or occurrence that was the subject

matter of [the purported landlord’s] dispossessory action, [the purported tenant] was

required to raise them in magistrate court” even though raising them would not confer

jurisdiction on the magistrate court to adjudicate the claims. Setlock, supra, 286 Ga.

at 386.

                                           10
         Here, the record is devoid of any properly submitted evidence demonstrating

what transpired in the magistrate court. We cannot ascertain whether Smith asserted

any claims in magistrate court, the timing of any such claims as compared to the

timing of claims asserted in the superior court, or the current status of the

dispossessory proceeding other than to note that neither party contends that the

magistrate court entered a disposition on any of Smith’s claims. Consequently, we

cannot determine whether Smith’s claims were compulsory counterclaims and, if so,

whether they were filed in magistrate court and properly preserved. See Setlock,

supra, 286 Ga. at 386. Accordingly, we must vacate the trial court’s order and remand

this case with instructions for the trial court to make both a factual determination as

to the status of the dispossessory proceeding and a legal determination as to the

impact such status has on Smith’s ability to pursue her claims before the superior

court.

         Judgment vacated and case remanded. Andrews and Brown, JJ., concur.




                                          11
