Richards v. D. R. Horton, Inc.

740 S.E.2d 732, 320 Ga. App. 771, 2013 Fulton County D. Rep. 1053, 2013 WL 1197931, 2013 Ga. App. LEXIS 275
CourtCourt of Appeals of Georgia
DecidedMarch 26, 2013
DocketA12A1814
StatusPublished
Cited by3 cases

This text of 740 S.E.2d 732 (Richards v. D. R. Horton, Inc.) 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
Richards v. D. R. Horton, Inc., 740 S.E.2d 732, 320 Ga. App. 771, 2013 Fulton County D. Rep. 1053, 2013 WL 1197931, 2013 Ga. App. LEXIS 275 (Ga. Ct. App. 2013).

Opinions

MCMILLIAN, Judge.

Mark A. Richards, pro se, filed the present appeal after the trial court dismissed his claims against his homebuilder D. R. Horton, Inc., various subcontractors and an insurance company (collectively referred to as appellees).1 We now conclude that the trial court erred by dismissing Richards’ claims against D. R. Horton, but affirm the dismissal of his claims against the remaining appellees.

The pertinent facts, insofar as we can glean them from the voluminous record on appeal,2 show the following: In September 2010, Richards filed suit against D. R. Horton asserting claims based on the allegedly defective construction of his home. That case apparently was removed to federal district court, and in January 2011, Richards filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code in which he disclosed his “fraud” suit against “D. R. Horton.” In June 2011, the district court concluded that, because of the bankruptcy filing, the trustee was now the real party in interest to prosecute the claims asserted in Richards’ negligent construction suit and dismissed the complaint without prejudice.

[772]*772In late April 2011, the trustee entered a report of no distribution, and the bankruptcy court approved that report, discharged Richards and the trustee, and closed the estate by order dated July 19,2011. On August 25, 2011, Richards filed a “Complaint for Breach of Contract, Breach of Warranty, Fraud, Bad Intent and Improper Site Preparation” against the appellees in this appeal. Each of the appellees answered and moved to dismiss Richards’ claims, based in part on the doctrine of judicial estoppel and standing. On September 30, 2011, Richards filed a responsive pleading asserting, among other things, that appellees’ motions to dismiss should be denied because his bankruptcy case had been closed and his claims against the appellees abandoned back to him. The trial court rejected these contentions and dismissed Richards’ complaint, finding that he lacked standing to pursue his claims. Richards timely filed his notice of appeal from that order on March 13, 2012.

Thereafter, on April 30, 2012, the United States Bankruptcy Court for the Northern District of Georgia entered an order on Richards’ motion to reopen his Chapter 7 case and for an order of abandonment. The bankruptcy court refused Richards’ request to reopen, noting that Richards had disclosed his claim “against his homebuilder,” the trustee had filed a report of no distribution on April 25, 2011, and the bankruptcy court discharged Richards and closed his case on July 19, 2011. Thus, the bankruptcy court concluded

that, by operation of 11 USC § 554 (c), [Richards’] cause of action against D. R. Horton, Inc. was abandoned to [Richards] on July 19, 2011, is presently vested in [Richards] and [Richards] alone, and only [Richards] has the right to pursue this cause of action. The bankruptcy estate has no further interest in it.

With this procedural backdrop in place, we now consider whether the trial court properly dismissed Richards’ complaint.

1. In his first, second, third and fifth enumerations of error, Richards makes various assertions concerning the merits of his underlying claims or other matters irrelevant to the disposition of the standing issue, which is the only issue before us. Thus, because these enumerations present nothing for this Court to review, we will not consider them.

2. We now turn to the pivotal issue in this case, which is whether the trial court erred by dismissing Richards’ complaint for lack of standing because his claims remained property of the bankruptcy estate.

[773]*773D. R. Horton argues on appeal that there was no evidence in the record before the trial court that the trustee had abandoned the cause of action against it. Pertinent to this issue, the record shows that Richards’ claims against D. R. Horton were clearly disclosed in the schedules he filed with his bankruptcy petition and, under well-settled law, became part of the bankruptcy estate. Parker v. Wendy’s Intl., Inc., 365 F3d 1268 (11th Cir. 2004) (causes of action belonging to the debtor at the commencement of the bankruptcy case vest in the bankruptcy estate upon filing of the petition). Further, those claims were not “otherwise administered” by the trustee, who entered a report of no distribution. Cf. Period Homes, Ltd. v. Wallick, 275 Ga. 486 (569 SE2d 502) (2002) (bankruptcy estate closed by successful distribution).

Based on this record, the starting point of our analysis is 11 USC § 554, which governs the abandonment of property of the bankruptcy estate. Subsection (c) provides in relevant part: “Unless the court orders otherwise, any property scheduled under section 521 (a) (1) of this title .. . not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title . . . .” Thus, pursuant to 11 USC § 554 (c), Richards’ claims against D. R. Horton were abandoned back to him at the time his bankruptcy case was closed in July 2011. We, therefore, agree with the bankruptcy court that Richards, and Richards alone, had standing from that date forward to pursue this cause of action.3 Accordingly, at the time he filed the present action in August 2011, Richards had standing to pursue his claims against D. R. Horton and the trial court erred by dismissing his claims against that defendant.

But we reach a different result concerning the dismissal of Richards’ claims against the remaining appellees. These claims, like Richards’ claims against D. R. Horton, all related to the negligent construction of his home, clearly accrued prior to the filing of his bankruptcy petition, and therefore became an asset of the bankruptcy estate when Richards filed his petition. Parker v. Wendy’s Intl., 365 F3d at 1272. However, unlike his claims against D. R. Horton, Richards did not list his claims against these appellees on his bankruptcy schedule, and this “[f]ailure... leaves that interest in the bankruptcy estate.” Id. Further, Richards’ attempt to re-open the case after it was closed was unsuccessful. Thus, it appears that Richards only had standing to pursue his claims against D. R. Horton, [774]*774and his claims against the remaining appellees were properly dismissed. Kittle v. ConAgra Poultry Co., 247 Ga. App. 102, 106-107 (1) (543 SE2d 411) (2000); see also Sevostiyanova v. Tempest Recovery Svcs., Inc., 307 Ga. App. 868, 870-871 (1) (705 SE2d 878) (2011); Zahabiuon v. Automotive Finance Corp., 281 Ga. App. 55, 56 (1) (635 SE2d 342) (2006); Battle v. Liberty Mut. Fire Ins. Co., 276 Ga. App. 434, 436 (623 SE2d 541) (2005); Cochran v. Emory Univ., 251 Ga. App. 737, 738-739 (1), (2) (555 SE2d 96) (2001).

Judge McFadden argues in his dissent, however, that instead of affirming the dismissal of Richards’ claims against the other defendants, “[w]e should vacate and remand for the trial court to conduct a hearing to determine whether Richards sufficiently itemized his claims to put the trustee on notice to investigate further, . . . , and whether Richards had a motive to conceal his claims.” But, unlike the cases cited by the dissent, this case does not involve the use of a mere “misnomer,” which nevertheless clearly identified the defendant (Kuehn v. Cadle Co., 2007 U. S. Dist. LEXIS 18387 (M.D. Fla.

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740 S.E.2d 732, 320 Ga. App. 771, 2013 Fulton County D. Rep. 1053, 2013 WL 1197931, 2013 Ga. App. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richards-v-d-r-horton-inc-gactapp-2013.