Avery v. Grubb, A15A2068.
| Decision Date | 28 March 2016 |
| Docket Number | No. A15A2068.,A15A2068. |
| Citation | 784 S.E.2d 817,336 Ga.App. 452 |
| Parties | AVERY v. GRUBB et al. |
| Court | Georgia Court of Appeals |
Warner Russell Hodges, for Appellant.
Halsey George Knapp Jr., Peter Werdesheim, Atlanta, for Appellee.
This appeal was brought from the trial court's dismissal of the complaint filed by appellant Victoria Ann Avery, individually and as remainder beneficiary of VM Trust # 1 and third-party beneficiary of G & M International, LLC (hereinafter "Avery"), against John G. Grubb, Jr, Dale Schwartz, and Snap Line Services (collectively "appellees"). Upon our review, we affirm.
OCGA § 9–11–12(b)(6) provides that an action can be dismissed upon the merits where the complaint fails to state a claim upon which relief can be granted. Dismissal is appropriate only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. We review the dismissal de novo, construing the complaint's allegations and all possible inferences therefrom in favor of the plaintiff.
(Citation and punctuation omitted.) Northeast Ga. Cancer Care v. Blue Cross & Blue Shield of Ga., 297 Ga.App. 28, 29, 676 S.E.2d 428 (2009).
Generally affirmative defenses are sustained by contents of the answer and thereby convert a motion to dismiss into a judgment under the pleadings pursuant to OCGA § 9–11–12(c). Murrey v. Speciality Underwriters, 233 Ga. 804, 807–808, 213 S.E.2d 668 (1975). However, under the Federal Rules of Civil Procedure, "[r]elease is an affirmative defense ... and such a defense will support a motion to dismiss ... where it is (1) definitively ascertainable from the complaint and other sources of information that are reviewable at this stage, and (2) the facts establish the affirmative defense with certitude [.]" Citibank Global Markets, Inc. v. Santana, 573 F.3d 17, 23 (1st Cir.2009). "Because Georgia's Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of the federal courts interpreting the federal rules are persuasive authority." WellStar Health Systems v. Kemp, 324 Ga.App. 629, 638(2), n. 19, 751 S.E.2d 445 (2013).
So construed, the record reveals that Grubb served for 20 years as the trustee of VM Trust # 1 (the "Trust"), and that Avery's ex-husband, G.V. Matthews, is the lifetime beneficiary of the Trust. Avery was named as the sole grantor of the Trust, with the authority to remove the trustees at any time for any reason. In May of 2013, after Avery and Matthews divorced, Avery, as grantor of the Trust, and suspecting Grubb of undertaking a fraudulent scheme to defund the Trust, removed him as the trustee for alleged breach of his fiduciary duties. Per the provisions in the Trust, Schwartz was appointed as the successor trustee. The Trust provided that if neither Grubb nor Schwartz could serve, then a trust appointment committee consisting of Grubb, Schwartz, and Riley R. Taylor would name a successor. It further provided that if any member of the appointment committee could not perform that task, then Avery, as the grantor, would take the committee member's place.
In June of 2013, Avery filed a complaint in the Superior Court of Fannin County for a temporary restraining order and injunctive relief against Grubb, seeking to remove him from the Trust's appointment committee, so that she could serve in that capacity. Among other things, Avery maintained that Grubb had breached his fiduciary duties by, among other things, awarding himself a 10 percent ownership interest in companies owned and funded by the Trust, personally profiting from the sales of various Trust properties, and improperly serving as counsel to the Trust's business ventures without informing Avery. One of the aforementioned companies was G & M International, which was managed by Matthews and owned 90 percent by the Trust and 10 percent by Grubb, and whose net proceeds on average of $150,000, were "the sole income producing asset of the Trust."
Avery maintained that Grubb's presence on the appointment committee prevented her from selecting a trustee who would "administer the affairs of the Trust properly" because of his relationship with Schwartz. Avery complained that Schwartz "will not vote for or even consider any nominee submitted by [Avery,] ... [and] he intends to liquidate the Trust's assets and pay all of the proceeds over to the lifetime beneficiary, ... Matthews."
On July 26, 2013, Snap Line Services, Inc. was incorporated as a Georgia Corporation with Grubb listed as the listed registered agent and incorporator. On August 15, 2013, G & M sold its "furniture, fixtures, and equipment (including computer and telecommunications equipment)" to Snap Line for $9,500. The Bill of Sale was signed by Matthews, as manager of G & M International.
The agreement further provided that in consideration for the release and dismissal of the suit, Grubb would resign from the appointment committee of the Trust. The "Entire Agreement" clause stipulated that "[t]his Agreement constitutes the entire Agreement of the Parties, and supersedes all prior and contemporaneous negotiations and agreements, oral or written ... [and] [n]o representations, oral or written, are being relied upon by the parties in executing this Agreement other than the express representations of this Agreement."
Avery dismissed as trustee on October 23, 2013, and on October 31, 2013, the appointment committee consisting of Avery, Schwartz, and a third member confirmed a new trustee, William Hadsell. In early November of 2013, Hadsell visited the offices of G & M International and met with Matthews, who purportedly told him that the company no longer existed and "that all of the business is now conducted by a company known as Snap Line Services." Hadsell resigned as trustee since "the Trust no longer own[ed] an income producing asset other than ... real estate." On November 14, 2013, the appointment committee appointed Avery as trustee.
Approximately one year later, on October 15, 2014, Avery filed a complaint for rescission of the sales contract between Snap Line and G & M International, for damages for imposition of constructive trust, and for injunctive relief in Forsyth County against Grubb, Schwartz, and Snap Line. In the complaint, she alleged that Grubb and Schwartz had breached various fiduciary duties while trustees, including colluding with Matthews to defraud the trust by selling G & M's tangible assets to Snap Line for $9,500. In addition to rescission of the sale between Snap Line and G & M International, Avery sought, among other things, the removal of Schwartz from the Trust's appointment committee, and various damages. Avery later amended the complaint to add herself as a plaintiff in her capacity as trustee of the Trust, Matthews as a defendant, and to allege Georgia Rico violations, civil conspiracy, and tortious interference with business relation claims.
The appellees answered, denying liability, and Grubb and Schwartz asserted affirmative defenses of waiver and release based on the settlement agreement. On November 20, 2014, the appellees filed a motion to dismiss Avery's complaints, contending, among other things, that Avery's claims against Grubb and Schwartz failed as a matter of law because they had been waived and released by the settlement agreement, and that she had failed to state a viable claim against Snap Line. Thereafter, Avery filed a motion to have the settlement agreement declared void ab initio.
The trial court granted appellants' motion to dismiss, finding that Avery lacked "standing to prosecute her claims against [Grubb]" because of the settlement agreement, and denied Avery's motion to have the settlement declared void ab initio. This appeal ensued.
1. Avery first contends that the trial court erred in not ruling on the merits of her motion to have the settlement and release agreement declared void ab initio before ruling on the appellees' motion to dismiss. She asserts that at the time of the negotiation of the agreement, she was unaware of Grubb's participation in the liquidation of G M International from the Trust's assets, and that she would not have entered into the agreement to release Grubb from all liability had the liquidation been disclosed to her.
Grubb filed a motion to dismiss and several affirmative defenses based on the settlement agreement, including that Avery had...
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