Smith v. Suntrust Bank

754 S.E.2d 117, 325 Ga. App. 531, 2014 Fulton County D. Rep. 60, 2014 WL 128684, 2014 Ga. App. LEXIS 13
CourtCourt of Appeals of Georgia
DecidedJanuary 15, 2014
DocketA13A2256
StatusPublished
Cited by12 cases

This text of 754 S.E.2d 117 (Smith v. Suntrust Bank) 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
Smith v. Suntrust Bank, 754 S.E.2d 117, 325 Ga. App. 531, 2014 Fulton County D. Rep. 60, 2014 WL 128684, 2014 Ga. App. LEXIS 13 (Ga. Ct. App. 2014).

Opinion

BARNES, Presiding Judge.

Appellants Rob Smith, Don Smith, Roy Smith, Jr., and Christie Romano are income beneficiaries of a trust created in 1969, and they claim that the trustees breached their fiduciary duties in several respects. Specifically, the appellants claim that the trustees sold the primary asset of the trust to one of the co-trustees and her husband for inadequate consideration in an alleged straw man transaction; that the corporate trustee distributed all of the income in a sub-trust to the same co-trustee in violation of the means-of-support test applicable to the sub-trust; and that the trustees failed to provide them with an annual accounting of the sub-trust as required by the terms of the trust. The trial court held that these claims were barred by the applicable statute of limitation and granted summary judgment to the trustees. On appeal, the appellants argue that the trial court erred in granting summary judgment to the trustees because a genuine issue of material fact exists as to whether the trustees fraudulently concealed their breaches of fiduciary duty, creating a jury issue as to whether the limitation period had been tolled. For the reasons discussed below, we affirm in part, vacate in part, and remand with instruction.

Summary judgment is proper if the pleadings and evidence “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.” OCGA § 9-11-56 (c). “Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Citation omitted.) Gayle v. Frank Callen Boys and Girls Club, 322 Ga. App. 412 (745 SE2d 695) (2013).

On summary judgment, a trial court is not authorized to resolve disputed issues of material fact. A trial court is authorized only to determine whether disputed issues of material fact remain. If, and only if, no disputed issue of material fact remains is the trial court authorized to grant summary judgment.

(Citation omitted.) Ly v. Jimmy Carter Commons, LLC, 286 Ga. 831, 833 (1) (691 SE2d 852) (2010). Guided by these principles, we turn to the record in this case.

The Fisher Family Trust. T. Orr Fisher created the Fisher Family Trust (the “Trust”) in 1969 for the benefit of his only child, Emily Fisher Crum, and seventeen other relatives and their lineal descendants. Mr. Fisher named three trustees: Ms. Crum and S. Spencer [532]*532Linder as the individual trustees and Trust Company of Georgia n/k/a SunTrust Bank (“SunTrust”) as the corporate trustee (collectively, the “Trustees”).

The original corpus of the Trust was a 15 percent interest in real estate located along Clairmont Road and Interstate 85 in DeKalb County, Georgia, known as Century Center (the “Century Center Property”). The Century Center Property is under a 90-year ground lease to an office park developer that was signed in 1968 and expires in 2058. The Century Center Property is comprised of approximately 88 acres of land and now contains a large office park development.

Mr. Fisher specifically provided in the Trust that it was his “wish that the trustees retain the interest in the [Century Center Property],” but that he was “imposing] no requirement that the same be retained if the trustees determine that it is wise in view of the purposes of the trust that said interest be disposed of.” The Trust further provided that during the lifetime of Mr. Fisher and his wife, Bessie Fisher, the interest of the Trust in the Century Center Property could not be disposed of by the Trustees “without the permission of those living of [Mr. Fisher] and his wife.”

The Trust established three sub-trusts, referred to by the parties as Trusts A, B, and C. Ten percent of the Trust’s interest in the Century Center Property was allocated to Trust A, with the income to be distributed to Mr. Fisher’s daughter, Trustee Crum, during her lifetime. Trust A is not at issue in this case. Sixty percent was allocated to Trust B, with the income to be distributed equally among 17 named beneficiaries or their descendants per stirpes. The remaining 30 percent was allocated to Trust C, which had the same beneficiaries as Trust B, but also included Trustee Crum as a beneficiary and was to be administered by the corporate trustee, SunTrust. All or a portion of the income from Trust C was to be distributed

among any one or more of a group consisting of the beneficiaries of [Trust C] as [SunTrust] shall determine necessary for the maintenance, health, support and education of each member of such group, taking into consideration any means of support which any such member is known by [SunTrust] to have, and accumulating any income not so paid.

The Trust further provided that the Trustees “shall each year render an account of their administration of each trust under this instrument to [Mr. Fisher], and if he is not living, to the beneficiaries of a present beneficial interest in each trust hereunder.”

Lastly, the Trust contained a termination provision for Trusts B and C stating that “any trust established by this instrument shall [533]*533terminate, if it has not previously terminated, twenty-one (21) years after the death of the survivor of the [seventeen named beneficiaries of Trust B] living on the date that this instrument is executed.” The Trust stated that upon termination, the Trustees were to pay “the then remaining principal and undistributed income” of Trusts B and C to the Fisher Foundation, Inc. or to an alternative remainder beneficiary if the foundation was no longer in existence.1

Mr. Fisher died in August 1969, only a few months after creating the Trust. He was survived by his wife, Bessie Fisher, and by his daughter, Trustee Crum. The four appellants are descendants of one of the original seventeen named beneficiaries of Trusts B and C (collectively, the “Appellant Beneficiaries”).2

Sale of the Century Center Property. The Appellant Beneficiaries contend that a decade after the death of Mr. Fisher, on October 1, 1979, the Trustees, unbeknownst to them, conveyed the Trust’s ownership interest in the Century Center Property to Trustee Crum and her husband in a straw man transaction. On that date, the Trustees first conveyed the Trust’s 15 percent interest in the Century Center Property to Mr. Fisher’s widow, Bessie Fisher, in exchange for $300,000. Deed records reflect that Mrs. Fisher then immediately conveyed her interest in the Century Center Property to Trustee Crum and her husband. The deeds for the two conveyances were signed the same day, had the same witnesses for the signatures of Mrs. Fisher and Trustee Crum, and were recorded within minutes of one another.3

The price paid to the Trust for the Century Center Property was the amount of an appraisal the Trustees had obtained five months earlier. There is no indication in the record that the Century Center Property was otherwise exposed to the market, or that any judicial [534]*534proceeding was conducted to approve the sale of the Trust’s primary asset.

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Cite This Page — Counsel Stack

Bluebook (online)
754 S.E.2d 117, 325 Ga. App. 531, 2014 Fulton County D. Rep. 60, 2014 WL 128684, 2014 Ga. App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-suntrust-bank-gactapp-2014.