Abrams v. Massell

• Decision Date: 14 August 2003
• Docket Number: No. A03A1435., No. A03A1434
• Citation: 262 Ga. App. 761,586 S.E.2d 435
• Parties: ABRAMS et al. v. MASSELL. Massell v. Abrams et al.
• Court: Georgia Court of Appeals

586 S.E.2d 435

262 Ga. App. 761

ABRAMS et al. v. MASSELL.

Massell v. Abrams et al.

Nos. A03A1434, A03A1435.

Court of Appeals of Georgia.

August 14, 2003.

Pursley, Lowery & Meeks, Roy H. Meeks, Jr., Atlanta, F. Torgrimson, for appellants.

Caldwell & Watson, Harmon W. Caldwell, Jr., Michael R. Merlino II, Atlanta, for appellee. ELLINGTON, Judge.

We granted an interlocutory appeal to defendants David Abrams, Janet Abrams, and Judith Abrams, co-executors of the estate of Bernard W. Abrams, to consider whether the trial court erred in denying their motion for summary judgment in Doreen Massell's suit to enforce a contract to make a will. Massell cross-appeals, contending the trial court should have granted her motion for summary judgment and enforced the contract. For the reasons that follow, we find the contract enforceable as a matter of law and affirm in part and reverse in part the trial court's order denying the parties' cross-motions for summary judgment.

Case No. A03A1434

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). We review the evidence de novo and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).

Viewed in this light, the record reveals the following relevant, undisputed facts. Bernard Abrams met Doreen Massell in 1990. Abrams moved into Massell's home in 1992 and they lived together for several years. With the assistance of an attorney, Abrams and Massell executed a written contract to make a will on September 30, 1996. The contract provided:

On August 2, 1996, Doreen executed a valid First Codicil ("Doreen's First Codicil") to her Last Will and Testament dated June 21, 1994, which codicil makes certain provisions for Bernie, a copy of which is attached hereto and by reference made a part hereof as Exhibit "A."

...

On March 25, 1993, Bernie executed a valid First Codicil ("Bernie's First Codicil") to his Last Will and Testament dated September 1, 1992, which makes certain provisions for Doreen, a copy of which is attached hereto and by reference made a part hereof as Exhibit "B."

...

Each of the parties agree that neither of them will change the bequest and devise to the other party reflected in Exhibits "A" and "B" without the prior written consent of the other party.

Abrams' first codicil provided that he would "bequeath the sum of Four Hundred Thousand Dollars ($400,000.00) to [his] friend, Doreen Massell, if she survives [him]." Massell's first codicil provided that she would leave Abrams "any interest [she] may own in [her residence] ... provided he survives [her] by ten (10) days." After executing this contract, Massell and Abrams continued living together in Massell's home.

On May 8, 1998, Abrams left the house to visit his brother. He did not return. Abrams' brother told Massell that Abrams was not returning to her home and that Abrams wanted no further contact with her. Massell received no explanation for Abrams' behavior and never heard directly from him again. On May 28, 1998, Abrams executed a new will which revoked all prior codicils. Massell did not consent to the revocation. On June 8, 2001, Massell sued Abrams, claiming anticipatory repudiation of the contract and seeking a constructive trust and injunctive relief. Abrams died on December 18, 2001. On January 7, 2002, Abrams' son petitioned to have his father's new will probated. On May 1, 2002, with leave of court, Massell amended her complaint against Abrams to substitute his executors, in their representative capacities, and to allege that Abrams breached the contract.

Following a hearing on the parties' cross-motions for summary judgment, the superior court entered an order denying both motions. Although the court found the contract was supported by consideration and had not been abandoned by either party, it concluded a jury issue remained as to whether the contract was unenforceable because it furthered an illicit sexual relationship. The executors challenge the court's order on several bases, contending they were entitled to summary judgment because the contract was defective, was void ab initio, or had been abandoned. The executors also argue the court erred in substituting them as parties because none reside in DeKalb County.

1. The executors contend the trial court erred in retaining jurisdiction of the case after it substituted the decedent's executors as the proper parties defendant, arguing that venue was no longer proper in DeKalb County because none of the executors resided there. Two of the executors live in Colorado; the third lives in Fulton County, Georgia, where the will is being probated. The executors correctly state that in cases involving a resident defendant and out-of-state defendants, venue is proper "in the county where a resident defendant is suable." OCGA § 9-10-93. In a case like this, involving claims of breach of contract, constructive trust, and an injunction of the probate proceedings, the Georgia Constitution requires that suit be brought in the county of the defendant's residence, Ga. Const., Art. VI, Sec. II, Par. VI, or in the case of an injunction to stay proceedings, "in the county where the proceedings are pending." OCGA § 9-10-30. Although the executors have correctly stated the black letter law with respect to venue upon commencement of a suit, that law does not resolve whether the instant substitution divests the court of venue that was proper when suit was filed.

When this suit was filed and service perfected, Abrams was alive and a resident of DeKalb County. Venue was proper and Abrams admitted this in his answer. It is axiomatic that "[v]enue will be determined as of the date of filing as long as service is subsequently perfected upon a defendant within a reasonable time period." (Citation and punctuation omitted.) Perry v. Perry, 245 Ga. 298, 264 S.E.2d 228 (1980). Even if a defendant moves out of state after suit is filed, venue remains proper in the county where he resided, e.g., Franek v. Ray, 239 Ga. 282, 285, 236 S.E.2d 629 (1977); McLain Bldg. Materials v. Hicks, 205 Ga.App. 767, 768, 423 S.E.2d 681 (1992). Thus, the fact that Abrams moved to Fulton County after the suit was filed would have been insufficient to divest the court of venue. The question, then, is whether his death divests the court of proper venue. We have found no recent Georgia cases precisely on point.

When a defendant dies, his legal obligations do not necessarily die with him. If they pass to his estate, the court may order an executor to represent the deceased and to resolve any legal claims against the estate. OCGA § 9-11-25(a)(1).¹ An executor "is a quasi court officer" and has "the sacred duty of standing in the place of the deceased and administering his estate as directed." (Citation and punctuation omitted.) Ringer v. Lockhart, 240 Ga. 82, 84, 239 S.E.2d 349 (1977). Substituting an executor or administrator for the deceased party allows the suit to continue either by or against that deceased party. See U.S. Fidelity &c Co. v. Reid, 268 Ga. 432, 433, 491 S.E.2d 50 (1997) (administrator and deceased defendant are essentially the same parties for purposes of renewal statute); Wofford v. Central Mut. Ins. Co., 242 Ga. 338, 339(2), 249 S.E.2d 21 (1978) ("[A] renewal suit by an administrator of a plaintiff is the same as a renewal suit by the plaintiff."). Substituting an executor keeps the action against the deceased alive; it does not, in and of itself, make the executor a party to the action in his or her individual capacity. Coogler v. Berry, 117 Ga.App. 614, 615, 161 S.E.2d 428 (1968) ("[A] person named as an executor is not individually a party to the action and he may not appeal [in his individual capacity] from a judgment entered adversely to the executor."); Neiman-Marcus Co. v. Lait, 17 F.R.D. 119, 120 (S.D.N.Y.1954) ("The effect of substituting the executrix is to continue the existing action against the testator and not to institute one against the executrix.").

Because the executor stands in the shoes of the decedent, in essence keeping the suit and claims against the decedent alive, we hold that the substitution of a nonresident executor is, for purposes of venue, qualitatively the same as when a resident defendant moves out of the county. Therefore, applying Perry v. Perry, 245 Ga. at 298, 264 S.E.2d 228 and Franek v. Ray, 239 Ga. at 285, 236 S.E.2d 629, we find that Abrams' death and the substitution of his executors did not divest the superior court of venue. See Walton v. Gill, 46 Ga. 600 (1872) (suit does not abate when deceased executor is replaced by nonresident executor). See also Dolgow v. Anderson, 45 F.R.D. 470, 473 (E.D.N.Y.1968) (substitution of nonresident bank as executor, even though venue statute would not have permitted bank to be sued in the district, did not oust federal court of its jurisdiction).

2. The executors contend the superior court erred in failing to address whether the contract to make a will was an unenforceable "agreement to agree." They argue the contract fails because Abrams and Massell did not state where they would continue to reside. This assertion is not supported by the record. The contract specifically states that Abrams and Massell intended to live together in Massell's home "or at such other place or places as they shall mutually agree." Moreover, the contract was not contingent upon the parties' continued cohabitation in any specific place—it was not even contingent upon the parties' continued cohabitation. The contract expressly provided for the parties' obligations to each other if they elected to cease living together. This is not an agreement to agree because no essential term of the contract was left to further negotiation. Kreimer v....