Fedina v. Larichev

744 S.E.2d 72, 322 Ga. App. 76, 2013 Fulton County D. Rep. 1775, 2013 WL 2350441, 2013 Ga. App. LEXIS 454
CourtCourt of Appeals of Georgia
DecidedMay 30, 2013
DocketA13A0570, A13A0571
StatusPublished
Cited by16 cases

This text of 744 S.E.2d 72 (Fedina v. Larichev) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fedina v. Larichev, 744 S.E.2d 72, 322 Ga. App. 76, 2013 Fulton County D. Rep. 1775, 2013 WL 2350441, 2013 Ga. App. LEXIS 454 (Ga. Ct. App. 2013).

Opinion

DOYLE, Presiding Judge.

Following their divorce, Yuliya Fedina sued Alexi Larichev, seeking title to a condominium, cancellation of a security deed and promissory note, an accounting for Larichev’s business, and repayment of money she alleges Larichev owes to her. Larichev filed counterclaims for breach of contract and conversion. Following a bench trial, the trial court entered judgment in favor of Larichev as to Fedina’s claims and in favor of Larichev as to his counterclaims, but awarded him $0 in damages. Fedina appeals in two related cases, arguing in Case No. A13A0570 that the trial court erred by failing to cancel the security deed and promissory note and by finding in favor of Larichev as to her claim that he owed her money. In Case No. A13A0571, Fedina argues that the trial court erred by awarding Larichev attorney fees under OCGA § 9-15-14 (b) and by denying her post-judgment motions to unseal records from the Georgia Department of Human Services (“GDHS”) regarding Larichev and for an accounting of Larichev’s safe deposit box. We have consolidated the cases for review, and for the reasons that follow, we affirm in part, vacate the award of attorney fees, and remand.

When an appeal is taken from a judgment entered following a bench trial, we owe no deference to the way in which the court below resolved questions of law, but we accept its factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the judgment.1

So viewed, the evidence in this case shows that Fedina and Larichev were married on April 9, 2008. The couple separated several months later, and they decided to purchase a condominium for Larichev. On August 28, 2008, Fedina closed on the property. Because Larichev had poor credit, the property was titled in Fedina’s name. [77]*77Although both parties provided funds for the purchase, in an effort to give Larichev “some financial interest in [the] property,” Fedina executed a promissory note and security deed, both of which listed Fedina as the borrower and Larichev as the lender.2 Larichev subsequently repaid Fedina in full for the amounts she paid toward the condominium.

The couple divorced shortly thereafter on January 14,2009, after reaching a settlement. On the day of the divorce, Fedina provided Larichev with a quitclaim deed for the condominium.3

On May 11, 2010, Fedina filed the instant lawsuit against Larichev, seeking title to the condominium; cancellation of the security deed and promissory note, which Fedina characterized as “a sham”; an accounting for Larichev’s business, A&Y Trade, LLC; and repayment of money she alleged Larichev owed to her. Larichev filed an answer and counterclaim, asserting claims for breach of contract with respect to the promissory note and conversion based on Fedina’s alleged failure to reimburse him for money he lent to her.

After the quitclaim deed was recorded, Fedina filed a lis pendens on the condominium. Thereafter, Fedina filed an adverse claim bond pursuant to OCGA § 7-1-353 (b) (3), seeking access to a safe deposit box owned by Larichev. Following an emergency hearing, the trial court entered an order dissolving the bond and finding that Fedina was not entitled to restrict Larichev’s access to his safe deposit box or to have the contents delivered to the trial court (as requested by Fedina), but ordered that Larichev and his attorney conduct an inventory of the contents of the safe deposit box.4

On June 3, 2011, Fedina filed a request for production on GDHS seeking Larichev’s federal income tax returns for 2008, 2009, and 2010 and copies of any financial statements filed by Larichev “in connection with any application for welfare benefits, including but not limited to Temporary Family Assistance, Food Stamps, [and] Medicaid.” GDHS filed a motion to quash the request, arguing that the requested documents are statutorily restricted by OCGA § 49-4-1 [78]*78et seq. and by federal guidelines limiting the disclosure of public assistance records. The trial court, without holding a hearing, entered an order on July 12, 2011, sealing the GDHS records relating to Larichev.

The case proceeded to a bench trial on August 22, 2011.5 At the conclusion, the trial court entered an order finding in favor of Larichev as to Fedina’s claims and finding in favor of Larichev as to his counterclaim, but awarding damages in the amount of $0.

On October 7, 2011, Larichev filed a motion for attorney fees under OCGA § 9-15-14 (b), which motion the trial court granted, ordering Fedina to pay him $12,000. On December 6, 2011, Fedina filed a motion to unseal the GDHS records regarding Larichev and a motion to require Larichev to file the results of the inventory of his safe deposit box. The trial court denied both motions. These appeals followed.

Case No. A13A0570

1. Fedina argues that the trial court erred by failing to grant her request to cancel the promissory note that she executed, which she characterizes as “a sham.”6 We disagree.

In the final order, the trial court concluded that Fedina was not entitled to the equitable relief of cancelling the promissory note because she “has [u]nclean [h]ands with respect to this transaction.”7

“Unclean hands” is a shorthand reference to OCGA § 23-1-10, which states, “He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action.” . . . OCGA § 23-1-10 embodies both the “unclean hands” doctrine and the concept that “one will not be permitted to take advantage of his own wrong.” However, relief is precluded only if the inequity so infects the cause of action that to entertain it would be violative of conscience.8

[79]*79The inequity “must relate directly to the transaction concerning which complaint is made. The rule refers to equitable rights respecting the subject-matter of the action. It does not embrace outside matters.”9

Here, Fedina specifically characterizes the promissory note as a sham, testifying that at the time it was executed the parties actually intended that Larichev repay her, rather than agreeing that she owed Larichev. This evidence supports the trial court’s conclusion that Fedina had unclean hands, and her wrongdoing directly relates to her claim against which the doctrine is asserted.10 Moreover, Fedina’s self-serving testimony that the promissory note was “a sham” is an insufficient basis to cancel a promissory note.11 For these reasons, the trial court did not err by denying Fedina’s request to cancel the promissory note.

2.

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Cite This Page — Counsel Stack

Bluebook (online)
744 S.E.2d 72, 322 Ga. App. 76, 2013 Fulton County D. Rep. 1775, 2013 WL 2350441, 2013 Ga. App. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fedina-v-larichev-gactapp-2013.