Bishop v. Patton

• Decision Date: 28 February 2011
• Docket Number: No. S10A1601.,S10A1601.
• Citation: 706 S.E.2d 634,288 Ga. 600
• Parties: BISHOP et al.v.PATTON et al.
• Court: Georgia Supreme Court

288 Ga. 600

706 S.E.2d 634

11 FCDR 419

BISHOP et al.

v.PATTON et al.

No. S10A1601.

Supreme Court of Georgia.

Feb. 28, 2011.

Bryan Edward Busch, Jason Brian Godwin, Busch, Slipakoff & Schuh, LLP, Atlanta, for appellant.Kristine E. Brown, Acworth, Larry David Wolfe, Atlanta, for appellee.NAHMIAS, Justice.

This case involves two components of an interlocutory injunction. The trial court entered the injunction to preserve the status quo pending adjudication of the merits of plaintiffs' wrongful death and fraudulent transfer claims. The injunction barred the defendants and anyone acting in concert with them from transferring a house that one of the defendants gave to his three minor grandchildren in Florida three months before he murdered the plaintiffs' decedent, as well as almost $250,000 the same defendant's son came up from Florida to withdraw from joint bank accounts in Georgia three days after the defendant was arrested for the murder. As explained below, we hold that the trial court abused its discretion with respect to the house but not with respect to the bank account proceeds. Accordingly, we affirm in part and reverse in part.

1. On August 24, 2009, 76–year–old Richard Bishop pled guilty to the murder of his former caretaker-turned-lover, Gwendolyn Nutt. Nutt had moved in with Bishop during the course of their relationship; when she left him, she moved to another property that Bishop owned, living in a trailer that she soon began sharing with her new lover, Doyle Smith. Around the time that Nutt moved out, Bishop recorded a gift deed transferring his house, which was worth about $125,000, to his three minor grandchildren in Florida. He also listed the trailer property, which was worth about $25,000, for sale with two realty agents. Bishop continued living in the house for about three months after recording the gift deed.

On the night of August 12, 2009, Bishop confronted Nutt and Smith at the trailer. He shot and killed Nutt and shot and injured Smith. When interviewed by the police shortly after the murder, Bishop denied any involvement, but he agreed to show the police his gun collection, and the police recovered what they believed to be the murder weapon. On August 14, Bishop was arrested and denied bond.

Bishop's son Marshall lived in Florida. Marshall was the father of Kyle, one of the three grandchildren who owned Bishop's house as a result of the gift deed. Bishop and Marshall had nine joint accounts worth close to $250,000 in several Georgia banks. On August 17, 2009, three days after his father's arrest, Marshall, who had come up from Florida, emptied and closed the nine joint accounts, incurring early withdrawal fees in the process, and returned to Florida.

One week later, on August 24, Bishop pled guilty to the malice murder of Nutt and aggravated assault against Smith. At the plea hearing, Bishop admitted that he had a sexual relationship with Nutt, that it ended and she moved out, and that on the night he killed her at the trailer, he had a heated argument with her about her infidelity. Bishop denied that he went to the trailer intending to kill Nutt. Instead, he said that he simply lost his temper and that Nutt would still be alive were it not for the fact that he had a loaded gun in the glove compartment of his pickup truck that night. Bishop was sentenced to life in prison and will not be eligible for parole for 30 years, when he would be 106 years old.

The following week, on September 2, 2009, Nutt's daughter filed suit on behalf of Nutt's estate and heirs (“the plaintiffs”) against Bishop, the grandchildren who owned his house, and the realty agents engaged in selling the trailer property (“the defendants”). The verified complaint recounted some of the recent transfers, alleged that the plaintiffs intended to file a wrongful death lawsuit against Bishop, and claimed that the transfers were fraudulent and designed to put Bishop's assets beyond the reach of the court to satisfy the inevitable wrongful death judgment. The plaintiffs requested an emergency temporary restraining order (TRO) and other injunctive relief freezing the two properties, the proceeds from the joint bank accounts, and any other assets Bishop might have or have had in the six months prior to the murder. The plaintiffs asked that the injunction be directed against the defendants and anyone in active concert or participation with them.

The complaint was filed on a Friday, and the trial court granted the emergency TRO without a hearing the following Monday, September 4, 2009. The court set a hearing on an interlocutory injunction pending a final resolution of the case for September 24. On the day of the hearing, the defendants filed an answer to the complaint, and the plaintiffs filed their complaint for wrongful death against Bishop.¹ Attorney Jason B. Godwin appeared at the hearing on behalf of Bishop and the three minor grandchildren, and the two realty agents appeared pro se. Although not named as a defendant in either lawsuit, Marshall was personally served with process as guardian of his minor son, and thus he was notified of both the entry of the TRO and the hearing on the interlocutory injunction. Marshall did not attend the hearing, however, and attorney Godwin made it clear on the record that he was not authorized to enter an appearance for Marshall.

No witnesses testified at the hearing. Instead, the plaintiffs submitted documents that were admitted into evidence and explained to the court what their investigation up to that point had revealed. Title searches for the house and trailer properties, bank records of the accounts Marshall had emptied and closed, and the transcript of Bishop's guilty plea hearing were admitted without objection.

Regarding their investigations up to that point, the parties largely agreed on the historical facts and sequence of events, disagreeing mainly about the inferences that could be drawn from the facts and the application of the legal rules governing fraudulent transfers and the issuance of interlocutory injunctions. Their only major factual disagreement related to when the romantic relationship between Bishop and Nutt had ended. The plaintiffs asserted in their verified complaint that Nutt moved out “[a]t the end of April/early May, 2009,” a claim their counsel repeated at the hearing. The attorney for Bishop and the grandchildren disputed that claim, alleging that the breakup happened in June, several weeks after Bishop recorded the gift deed transferring his house to the grandchildren.

On October 2, 2009, the trial court entered a written order granting an interlocutory injunction which, among other things, barred the defendants, their agents, and anyone in active concert or participation with them with notice of the injunction, including Marshall, from “selling, transferring, removing, destroying, damaging, changing, alienating or otherwise encumbering” the house and trailer properties and “all bank accounts in the name of Defendant Richard Bishop, whether individually and/or jointly with any other or others and/or all monies received from said accounts.” The defendants filed a timely notice of appeal to the Court of Appeals, which transferred the case to this Court on June 15, 2010. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. III(2) (providing that the Supreme Court has appellate jurisdiction over “[a]ll equity cases”).²

2. The defendants' first two enumerations of error relate to Marshall, Bishop's son. The defendants claim that because Marshall was not named as a defendant in the complaint, the trial court lacked personal jurisdiction over him, and the interlocutory injunction reflects an impermissible attempt to enjoin a non-party extraterritorially (since Marshall lives in Florida). However, the defendants did not move to dismiss the complaint based on the failure to join a necessary party, see OCGA §§ 9–11–12(b)(7), 9–11–19, and Marshall did not appear or move to intervene in the proceedings in the trial court, see OCGA § 9–11–24. In addition, Marshall did not request special permission to participate in the appeal even though he is a non-party, and the defendants have not even attempted to explain why they might have third-party standing to press arguments on Marshall's behalf. See Lockey v. Bennett, 244 Ga. 339, 340, 260 S.E.2d 56 (1979) (“ ‘Only parties to the proceeding below may be parties on appeal.’ ” (citation omitted)); Feminist Women's Health Center v. Burgess, 282 Ga. 433, 435, 651 S.E.2d 36 (2007) (adopting the federal test for third-party standing). Accordingly, we will not consider the defendants' first two enumerations of error.

In their third enumeration of error, the defendants contend that the interlocutory injunction must be reversed because it attempts to prevent withdrawals from the joint bank accounts that have already taken place. As to the accounts in question, however, the trial court's order is more fairly read not to enjoin the transfers that took place shortly after Bishop's arrest but instead to prohibit further disposition of the proceeds. Thus, this enumeration of error is meritless.

3. The defendants' five remaining enumerations of error contend that reversal is required because the plaintiffs failed to satisfy the four-part test for issuance of an interlocutory injunction, and that the trial court therefore abused its discretion in enjoining further disposition of the bank account proceeds and Bishop's house. In evaluating these claims, we first set out the standards applicable to interlocutory injunctions. Next, we consider the scope of Georgia fraudulent transfer law and the Georgia Uniform Fraudulent Transfers Act (Georgia UFTA) in particular. See OCGA §§ 18–2–70 to 18–2–80. Finally, we apply interlocutory injunction and fraudulent transfer law to the trial court's order regarding the bank account proceeds and the house.

(a) Interlocutory Injunctions: There are two types of injunctions, perpetual (p...