Shadder v. Holland

828 S.E.2d 418, 350 Ga. App. 191
Court of Appeals of Georgia·Decided May 22, 2019·No. A19A0444·Published·Cited by 3 cases

Opinion

Brown, Judge.

*191Heather Shadder and John Shadder ("the Shadders") appeal from the trial court's order granting partial summary judgment in favor of Heather Shadder's aunt, Naomi Holland, in connection with real property she purchased for the Shadders. On appeal, the Shadders contend that the trial court erred by imposing a constructive trust on the property. For the reasons explained below, we reverse.

"On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party." (Citation and punctuation omitted.) LeCroy v. Bragg , 319 Ga. App. 884, 885 (1), 739 S.E.2d 1 (2013). The record evidence which can be considered in support of the trial court's grant of partial summary judgment in this case is limited to the facts contained in Holland's *419verified complaint,1 the *192Shadders' responses to Holland's requests for admission,2 and admissions in judicio within other pleadings filed by the Shadders. See Georgia-Pacific v. Fields , 293 Ga. 499, 501 (1), 748 S.E.2d 407 (2013) ("admissions or allegations appearing in the pleadings are treated as admission in judicio and, if not withdrawn, are conclusive of the facts contained therein").

While the record includes the Shadders' responses to Holland's interrogatories, they are not verified and cannot be considered in opposition to Holland's motion. OCGA § 9-11-33 (a) (2) ("[e]ach interrogatory shall be answered separately and fully in writing under oath"); Lee v. CSX Transp ., 233 Ga. App. 30, 31 (2), 503 S.E.2d 309 (1998) (plaintiff's unverified interrogatory responses not considered to oppose defendant's summary judgment motion). Similarly, we can consider only the admissions in judicio within the Shadders' answer, because their verification stated that "facts contained" were "true and correct to the best of [their] information, knowledge, and belief[,]" rather than personal knowledge. See Sirdah v. North Springs Assoc. , 304 Ga. App. 348, 352 (3), 696 S.E.2d 391 (2010) ; Fletcher v. Hatcher , 278 Ga. App. 91, 93 (2), 628 S.E.2d 169 (2006).

Holland alleges in her verified complaint that in 2013, she gave the Shadders approximately $122,000 to purchase property with an address of 17 Hunters View. On August 27, 2013, the Shadders obtained an unencumbered warranty deed for the Hunters View property. In early 2017, "the Shadders again sought Ms. Holland's assistance to purchase a larger home, which they ... need[ed] due to their growing family. Ms. Holland again agreed to assist the Shadders, this time by providing approximately $199,900[ ] to purchase the improved real property located at 50 Ferguson Drive. ..." Holland gave the money to the Shadders for both properties based upon "their representation ... that they intended to live in [them]." After moving from the Hunters View property to the Ferguson property, the Shadders subsequently moved out of the Ferguson property and back into the Hunters View property.

In their response to Holland's request for admission, the Shadders admitted the following facts: both properties were "given"

*193to them "so that [their] family could reside there;" that they have listed both the Hunters View and Ferguson properties for sale with the intention of buying another property in which to live; that they have no intention to return any of the purchase money for the Hunters View and Ferguson properties to Holland; and that they have received a benefit from the properties. The Shadders have refused to comply with Holland's "demand[ to] quit-claim the Ferguson [p]roperty to her so that she [can] recoup her investment in that [p]roperty" or return the funds used to purchase it.

Holland's complaint, as amended, asserted theories of recovery against the Shadders based upon money had and received (Counts 1 and 3), unjust enrichment (Counts 2 and 4), bad faith attorney fees (Count 5), and constructive trust (Counts 6 and 7). After conducting only limited written discovery, Holland moved for partial summary judgment in her favor on her claims for money had and received, unjust enrichment, and imposition of a trust under OCGA § 44-5-87. Although the trial court heard oral argument on the motion, a transcript of this hearing does not appear in the record before us.

After the hearing, the trial court entered an order granting the motion for partial summary *420judgment. The only legal analysis3 employed by the trial court to reach this result follows:

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Shadder v. Holland, 828 S.E.2d 418, 350 Ga. App. 191 (Ga. Ct. App. 2019).

828 S.E.2d 418 (Shadder v. Holland) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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