Lathem v. Hestley
270 Ga. 849
Ga.
1999
Check Treatment

LATHEM v. HESTLEY

S98A1901

Supreme Court of Georgia

March 15, 1999

Reconsideration Denied April 2, 1999

514 SE2d 440

HINES, Justice.

Anоther circumstance to consider is that after the court responded to the final two notes, the jury reached its verdict in less than four hours, which included a lunch break. This time period of approximately three hours is not long enough to dispel any concerns regarding coercion, especially in view of the fact that the jury‘s deliberations for the previоus 10 1/2 hours over three days had produced no signs of progress.16

Considering the totality of these circumstances, I conclude that the trial court‘s failure to address directly the threat against the holdout juror coupled with its insistence that the jury continue deliberating without meaningful guidance resulted in a coercive effect and I would reverse and remand for a retrial of the sentencing phase.

I am authorized to state that Chief Justice Benham and Justice Sears join in this dissent.

DECIDED MARCH 15, 1999 —
RECONSIDERATION DENIED APRIL 2, 1999.

Carlton C. Carter, Tanya Greene, Julian M. Treadaway, Ray B. Gary, Jr., for appellant.

Benjamin F. Smith, District Attorney, Jack E. Mallard, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.

S98A1901. LATHEM v. HESTLEY. (514 SE2d 440)

HINES, Justice.

Lathem appeals from the trial court‘s order dismissing for failure to state a claim upon which relief can be granted his petition fоr the partition of three parcels of land.1 For the reasons that follow, we reverse.

Taking Lathem‘s allegations as true, as is required when reviewing an ‍‌​‌​​​​‌​‌‌‌​​‌​​​​​‌‌‌​​​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​​‌‍order on a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6), see , the facts are as follows: The first of the three parcels of land was acquired by Hestley in 1959. In 1974, Lathem began living there with Hestley and, in 1990, Lathem enlarged the home on this property, spending over $100,000 tо do so. Hestley represented that Lathem would acquire a one-half interest in the property by making this expenditure, and Lathem relied on this representation in making the improvеments. Lathem thereafter paid half the property taxes on the parcel and made repairs and additional improvements; these expenditures were as an ownеr, not as a renter. The second parcel of land was purchased by Lathem and Hestley in 1993 as joint tenants. In 1994, timber was cut from this land and the proceeds were placed in the parties’ joint bank account. The third parcel was purchased by Hestley in 1996, with the proceeds from the 1994 timber sale; the remaining timber money went to retire the debt on the jointly held property.

The court granted Hestley‘s motion to dismiss for failure to state a claim upon which relief can be granted. See OCGA § 9-11-12 (b) (6). Such a motion should be granted only when the petition “shows with сertainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” . The non-movant‘s pleadings must be construed most favorably to him and all doubt resolved in his favor. .

The court stated that the petition did not set forth a claim because OCGA § 19-3-3.1 forbids Lathem from gaining any interest in property titled in Hestley‘s name based on a claim that the parties were “domestic partners.” Any such alleged status, however, is not the basis for Lathem‘s asserted interest. Rather, Lathem claims an interest based on an implied constructive trust.

Although Lathem did not specifically state in his petition that he sought the imposition ‍‌​‌​​​​‌​‌‌‌​​‌​​​​​‌‌‌​​​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​​‌‍of an implied trust, he did state that his right to partition was in reliance on ,2 a case in which an implied trust was imposed. On a motion to dismiss for failure to state a claim upon which relief can be granted, the issue is not whether the petition pled a claim in an ideal manner but whether it sufficiently gave Hestley fair notice of the claim and a general indication of the type of litigation involved. See ; .

A constructive trust is one form of implied trust, and is definеd by OCGA § 53-12-93 as “a trust implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial intеrest in the property without violating some established principle of equity.” See also . When, as Lathem alleges occurred here, a party is induced to make valuable imрrovements on real property, a constructive trust may be imposed. See ; . The facts alleged, the citation to , and the relief requested satisfied the requirements that Lathem give Hestley fair notice of the claim and an indication of the type of litigation involved, and set forth a claim for the imposition of a constructive trust on the three parcels of property, and a partition of these parcels.

Nor was the trial court correct in ruling that Lathem‘s claims based on Hestley‘s representations were barred by the statute of frauds. See OCGA § 13-5-30 (4). An action attempting to establish an interest in land through ‍‌​‌​​​​‌​‌‌‌​​‌​​​​​‌‌‌​​​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​​‌‍an implied trust is not barred by the statute of frauds. .

The trial court also ruled that Lathem had certain rights in the parcel of land which the parties purchаsed jointly, but that these rights did not provide him a claim upon which relief could be granted because to exercise them he must first establish the necessity of equitable partition over stаtutory partition. However, it is not a proper ground for dismissal that the petition does not disclose that Lathem‘s remedy of statutory partition is inadequate. See ; . Additionally, Lathem‘s аmended petition alternatively sought statutory partition under OCGA § 44-6-160, or equitable partition, see OCGA § 44-6-140.3

Inasmuch as Lathem‘s petition did not fail to state a cause of action, the trial court erred in dismissing it under OCGA § 9-11-12 (b) (6).

Judgment reversed. All thе Justices concur, except Benham, C. J., Fletcher, P. J., and Carley, J., who dissent.

CARLEY, Justice, dissenting.

In reversing the trial court‘s dismissal of Lathem‘s complaint, the majority holds that Lathem has stated a claim based on an “implied constructive” trust. As the majority concedes, however, Lathem did not specifically aver in his complaint or the amendment thereto that he sought the imposition of an implied trust. ” ‘Liberal construction of a pleading does not encompass the imputation or engrafting to a claim of a meaning not reasonably deductible or inferable from the explicit language of the pleading.’ [Cit.]” . See also . Compare (where complaint “alleged that it was decedent‘s intention that the appellant would hold the property in trust for the decedеnt‘s benefit“). Furthermore, Lathem does not take the position on appeal that he stated a claim for the imposition of an implied trust. Indeed, he does not even mention “imрlied” or “constructive” trusts in his appellate briefs. To the contrary, Lathem relies entirely on the amendment to his complaint, which alleged an interest in the properties at issuе through a joint venture agreement.

It appears that the trial court erred in holding that the oral joint venture ‍‌​‌​​​​‌​‌‌‌​​‌​​​​​‌‌‌​​​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​​‌‍agreement is unenforceable as against the statute of frauds. Seе . However, the allegation of an enforceable agreement, without more, does not state any claim. The complaint does not aver that the parties agreed to any transfer of title. Rather, the only alleged benefit from the joint venture agreement was the sharing of profits. Lathem may have some “interest” in the properties by means of a joint venture agreement, but the mere existence of that interest would nоt render Hestley liable to Lathem for the value thereof. ; . There has been no allegation that Hestley has violated the joint venture agreement. ; . If Lathem were dissatisfied with the vеnture, he should have alleged a breach of the joint venture agreement and sought dissolution and an accounting. . Instead, the specific averments of the complaint arе limited by their very terms to an equitable division or a partition of the properties, yet there are no allegations of any marital relationship, of any implied trust, or of any cоmmon ownership other than that allegedly arising from the joint venture agreement. See . Although Lathem has joint legal title to one of the parcels, he is not seeking a separаte partition based on that legal title, but rather he is seeking partition of all of the property based solely on the alleged joint venture agreement. “Although it need not set fоrth a cause of action, a complaint must set forth a claim for relief. [Cit.]” . Accordingly, I cannot agree with the majority that Lathem‘s complaint sets forth a claim upon which relief can be granted and, therefore, I dissent. See .

I am authorized to state that Chief Justice Benham and ‍‌​‌​​​​‌​‌‌‌​​‌​​​​​‌‌‌​​​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​​‌‍Presiding Justice Fletcher join in this dissent.

DECIDED MARCH 15, 1999 —
RECONSIDERATION DENIED APRIL 2, 1999.

L. Daniel Butler, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., Thomas R. Burnside III, for appellee.

Notes

1
The court‘s order is dated March 18, 1998, and recites that the motion came before the court on March 2, 1998. Lathem filed an amended petition on that date, and although the court‘s order is silent as to whether the amended рetition was considered, the text of the order makes it clear that the court considered the amendment in addressing the motion to dismiss.
2
Lathem requested statutory partition under OCGA § 44-6-160, or “[a]lternatively in reliance on ... equitable partition.”
3
Lathem also suggested the formation of a joint venture between the parties but the imposition of an implied constructive trust is the basis of Lathem‘s claim for statutory or equitable partition.
16
Compare (fact that jury returned death sentence soon after receiving supplemental instruction suggests the possibility of coercion).