Huggins v. Powell

315 Ga.App. 599

726 S.E.2d 730

12 FCDR 1377

HUGGINS

v.POWELL et al.

Calloway Title & Escrow, LLC

v.Huggins.

Nos. A11A2228, A11A2229.

Court of Appeals of Georgia.

March 28, 2012.

Reconsideration Denied April 12, 2012.

Jeff F. Hollis, for appellant.

Ballard, Stephenson & Waters, William Michael Waters, James, Bates, Pope & Spivey, William Joseph Sheppard, Moore, Ingram, Johnson & Steele, Joyce Waldrop Harper, Heyman & Sizemore, William B. Brown, Jacqueline Marcucci, Hawkins, Parnell, Thackston & Young, Christine Lupo Mast, Matthew George McLaughlin, for appellees.

PHIPPS, Presiding Judge.

Dorothy Huggins, individually and as administrator of an estate, filed suit against several individuals and corporations to recover certain real property which she contended belonged to the estate and had been fraudulently conveyed. Huggins also claimed she held a lien against the property and asserted that recovery of the property was necessary to pay debts of the insolvent estate, including her lien—which also, she alleged, may be satisfied by levy.

Three groups of defendants moved for summary judgment, and the trial court issued three separate orders—one in connectionwith the Hilltop defendants,¹ one in connection with the J & A defendants,² and one in connection with Calloway Title & Escrow, LLC. Finding that, among other things, the statute of limitation had expired, the trial court granted summary judgment to the Hilltop defendants; it denied summary judgment to Calloway, due to its failure to timely respond to requests for admissions which consequently were deemed admitted by operation of law and negatively impacted Calloway's standing on substantive fraud claims. As to the J & A defendants, the trial court granted summary judgment on various grounds, including the insufficiency of the evidence.

Huggins appeals the grant of summary judgment to the Hilltop defendants and the J & A defendants in Case No. A11A2228. And Calloway appeals the denial of his motion for summary judgment in Case No. A11A2229.

Because we agree that the evidence was insufficient to show a fraudulent conveyance by the J & A defendants, we affirm the grant of summary judgment to the J & A defendants (for the fraudulent conveyance claims) in Case No. A11A2228. Because the statute of limitation had expired, suit on the fraudulent conveyance claims was barred as to the Hilltop defendants and Calloway. Therefore, we affirm the trial court's grant of summary judgment to the Hilltop defendants (for the fraudulent conveyance claims) in Case No. A11A2228 and reverse the trial court's denial of summary judgment to Calloway in Case No. A11A2229. Because Huggins's individual claim for levy is a matter for a jury to determine, we reverse the trial court's grant of summary judgment to the defendants on that claim in Case No. A11A2228.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ³ “In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” ⁴

This is the second appearance of this case before this court. On the first appearance,⁵ we reviewed the decision of a probate court which, on February 26, 2007, denied Huggins's petition which was “in form and substance a leave to sell” real property of the estate.⁶ We affirmed the probate court's denial of a motion for new trial because of Huggins's failure, pursuant to the applicable statute, to satisfy the requisite notice provisions.⁷

The matter presently before this court for review is a superior court action wherein Huggins contended that the chain of title and conveyances of the property at issue were as follows. Vernon H. Powell died intestate on April 28, 1996. Upon his death, Powell owned an undivided 20 percent interest in certain real property. On June 1, 2000, Powell's heirs at law ⁸ conveyed their interest in the property by warranty deeds to Hilltop Land Company, LLC. On November 1, 2001 and December 31, 2001, Hilltop Land Company conveyed the property to Harris Hilltop,LLC and Brannan Hilltop, LLC. On January 3, 2006, Harris Hilltop and Brannan Hilltop conveyed the property to Double Feature, LLC, High Cotton Properties, LLC, and Turning the Tide, LLC, which on November 14, 2006, conveyed the property to J & A Group, Inc. Huggins contended that despite knowing about her lien on the property, Calloway Title & Escrow, LLC “issued title insurance policies [to Hilltop Land Company] omitting any reference to the known judgment lien[ ] against the estate of” the decedent. On January 31, 2007, the probate court appointed Huggins as administrator of Vernon Powell's estate.

On May 30, 2007, Huggins filed a complaint to recover the property and alleged, among other things:

None of the Decedent's Heirs at law, or any party dealing with the hereinafter described Property subsequent to the death of the Decedent, has ever notified the known judgment creditors of Decedent's Estate, as to any of the following: (1) the death of Decedent, (2) the attempt by Decedent's heirs at Law, to dispense with Administration of the unrepresented Estate without paying the debts of the Estate, (3) the attempted conveyance of the property of the Estate by Decedent's Heirs at Law, without first paying the debts of the Estate, or (4) the attempt to convey the property of the Estate without paying the liens appearing of record in the chain of title [sic] to the property.

1. Contending that she had a vested right to application of a seven-year statute of limitation in effect prior to the enactment of OCGA § 18–2–79, effective July 1, 2002, which provides a four-year statute of limitation (for actions involving the fraudulent conveyance of real property), Huggins argues that application of the four-year statute of limitation to her case violates the constitutional prohibition against retroactive laws.⁹ Although we agree that the substantive law at the time of the occurrence giving rise to the suit applies,¹⁰ we do not agree that the procedural law at the time of the occurrence is applicable.

In support of her contention, Huggins points to Bank of Norman Park v. Colquitt County¹¹ for the proposition that “[l]aws prescribe only for the future. Retrospective statutes are forbidden by the first principles of justice. The settled rule for the construction of statutes is not to give them retrospective operation, unless the language so imperatively requires.” ¹² But that proposition does not apply to this case, as the law that changed in that case was substantive; ¹³ it comprised “an essential element of the obligation of the contract,” concerning the priority of payment of claims against an insolvent bank. ¹⁴ The law applicable to this case is that

[w]here a statute governs only procedure of the courts, ... it is to be given retroactive effect absent an expressed contrary intention.... The presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the courts, even where the alteration which the statutes make has been disadvantageous to one of the parties.¹⁵

“Statutes of limitation look only to the remedy and so are procedural.” ¹⁶ “Where the new statute of limitation is in effect at the time the action was filed, there is no question of retroactivity....” ¹⁷ “There is no vested right in a statute of limitation....” ¹⁸ “Georgia statutes addressing procedural and remedial rights may be retroactively applied.” ¹⁹

In Atlanta Country Club v. Smith,²⁰ an expelled country club member filed suit for an injunction and damages, under claims for tort and breach of contract, for his alleged wrongful expulsion from the club.²¹ He commenced his initial suit, which carried four- and six-year statutes of limitation, the same year he was expelled, but soon thereafter he dismissed the case.²² Three years and eleven months later, he refiled suit. ²³ But between the time he had dismissed his prior suit and the time he recommenced the action, a new statute of limitation was enacted, which provided: “Any proceeding challenging an expulsion, suspension, or termination, including a proceeding in which defective notice is alleged, must be commenced within one year after the effective date of the expulsion, suspension or termination.” ²⁴ We held that “[b]ecause a plaintiff has no vested right in a statute of limitation which existed at the time of his alleged injury, as against a newly enacted limitation ... he does not acquire one merely by virtue of having once filed a suit within the statute of limitation and dismissed it.” ²⁵ The newly enacted one-year statute of limitation applied, and because the plaintiff refiled suit three years and eleven months after he was expelled from the country club, long after the new statute was enacted making the statute of limitation one year, the suit was barred.²⁶

Prior to the 2002 enactment of the Uniform Fraudulent Transfers Act (UFTA), ²⁷ when fraud in the procurement of title to land was claimed, it was so claimed under OCGA § 18–2–22 and the applicable statute of limitation within which to commence an action was seven years after discovery of fraud. ²⁸ Under the UFTA, it is four years after the transfer was made or the obligation was incurred (or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant). ²⁹ Here, Huggins contended that the first alleged fraudulent transfer of the property occurred in June 2000, when Calloway issued title insurance to Hilltop Land Company for the purchase of the property. At that time, the statute of limitation was seven years. When Huggins filed suit nearly seven years later, in ...