Lacava v. Smith

276 S.E.2d 612, 247 Ga. 427, 1981 Ga. LEXIS 724

• Court: Supreme Court of Georgia
• Decided: April 8, 1981
• Docket: 37268
• Status: Published

Opinion

Undercofler, Justice.

This Appeal involves a motion to dismiss for failure to state a claim in $ suit to set aside several conveyances. The trial court granted the motion and the plaintiffs, the Lacavas, appeal. We affirm.

The pleadings and exhibits attached thereto aver that the Smiths sold some land to the Lacavas and also agreed in a separate contract termed a “Right of First Refusal” not to sell or convey their remaining adjoining property without first offering it to the Lacavas. “This agreerrient is subject, however, to the following: First Parties [Smiths] expressly reserve the right to deed and convey the subject property to feither or all of their children. All parties hereto agree that these rights áre superior to those granted to Second Parties [Lacavas].” The Lacavas’ attorney drafted this agreement.

The Sfiiiths conveyed some of their remaining property to their daughter, Stephanie Chester, who in turn conveyed a portion of it to Phillip W. Hunter. The Lacavas seek to have these deeds set aside under the terms of the contract.¹ We agree with the trial court that as a matter of law the Lacavas have no claim under their “Right of Refusal” contract.

Decided April 8, 1981. Butterworth & Verdery, James N. Butterworth, for appellants. Stephen D. Frankum, for appellees.

Judgment affirmed.

All the Justices concur, except Hill, P. J., who concurs in the judgment only.

1 After the appeal was docketed in this court, the Lacavas amended their complaint, adding a fraud count, in the trial court. This amendment is too late. Hagan v. Robert & Co. Assoc., 222 Ga. 469 (150 SE2d 663) (1966); Duvall v. Cox, 217 Ga. 488 (123 SE2d 546) (1962).