Callaway v. Willard, A19A0139

• Decision Date: 25 June 2019
• Docket Number: A19A0139
• Citation: 351 Ga.App. 1,830 S.E.2d 464
• Parties: CALLAWAY v. WILLARD.
• Court: Georgia Court of Appeals

351 Ga.App. 1

830 S.E.2d 464

CALLAWAY

v.WILLARD.

A19A0139

Court of Appeals of Georgia.

June 25, 2019

William J. Neville Jr., Claxton, for Appellant.

Luke A. Lantta, Atlanta, Lloyd Dan Murray Sr., Richmond Hill, J. Franklin Edenfield, Swainsboro, for Appellee.

Dillard, Chief Judge.

William Callaway appeals the trial court’s grant of partial summary judgment to Lucinda Durham Willard ("Lucinda")¹ in her action against Callaway, individually and as trustee of the Marjorie H. Durham Irrevocable Trust (the "Durham Trust" or "Trust"), seeking a final accounting of the Trust, which designated her and her three siblings as remainder beneficiaries.²

Callaway asserts that the trial court erred in finding as a matter of law that (1) he was required to distribute the trust corpus to the remainder beneficiaries immediately upon Durham’s death; (2) he was required to disgorge trustee fees, attorney fees, and certain costs paid to him by the Trust after May 3, 2012; (3) he violated his duty of loyalty by making a pre-litigation settlement offer to Lucinda; (4) he lacked the authority to distribute trust assets to or for the benefit of Lawrence, without resolving Lucinda’s pending motion for set-off and his motion for approval of his accounting; (5) he lacked the authority to lease trust property to a remainder beneficiary without first resolving the issues raised in the aforementioned motions; (6) he violated his duty to provide reports and accounts of the Trust without first addressing the issues presented by his motion for review and approval of accounting; and (7) the Trust did not hold title to a property known as Dowdy Farm prior to May 12, 2017. Callaway also contends that the trial court erred in striking affidavits he submitted in response to Lucinda’s motion for partial summary judgment. For the reasons set forth infra , we affirm.

Viewing the evidence in the light most favorable to Callaway (i.e. , the nonmovant),³ the record shows that on April 13, 2000, Durham created an irrevocable trust, designating herself as the sole lifetime beneficiary and Callaway as the trustee. In doing so, Durham conveyed to Callaway and his successors property referred to as Trust Track A and Trust Track B, which were described in an attachment to the trust instrument and were collectively referred to as "the Trust Estate." Durham also indicated that additional properties may be added to the Trust Estate from time to time if acceptable to the trustee. And relevant to the instant dispute, the Trust provided that upon Durham’s death, all of the remaining trust property "shall be distributed to [her] four children, with properties designated as Trust Tract A being conveyed to Lawrence H. Durham in fee simple, and the properties designated as Trust Tract B being conveyed to Bryant Durham, Lee Durham, and Lucinda D. Willard in fee simple." Tract A and Tract B were comprised of real property, and for purposes of management and final distribution of the Trust Estate, the Trust required that the fair-market value of the properties in Tract A were equal to the fair-market value of the properties in Tract B. Additionally, the Trust provided that certain indebtedness must be paid before the two trust tracts were distributed to Durham’s children (i.e. , the remainder beneficiaries). Durham passed away on May 3, 2009, and notwithstanding these trust provisions, Callaway did not distribute the trust property to the remainder beneficiaries. Indeed, there is nothing in the record or the parties’ briefs to suggest that—at least as of the 2018 order that is the subject of this appeal—he ever made such distributions.⁴

On January 9, 2014, Lucinda filed a verified petition for a final accounting under OCGA § 53-12-243 against Callaway, individually, and in his capacity as trustee of the Durham Trust. Lucinda also sought attorney fees and costs of litigation against Callaway personally. Thereafter, the court issued an order compelling Callaway to submit a trust accounting. On May 1, 2015, Lucinda amended her petition, adding a claim for distribution of the Trust Estate and detailing specific instances in which Callaway allegedly engaged in improper or unauthorized conduct as trustee. Discovery ensued, and on April 25, 2017, Lucinda filed a motion for partial summary judgment, seeking a judgment establishing Callaway’s liability for his various actions or inactions that she alleged violated his fiduciary duties and provisions of the trust instrument. But throughout her supporting brief, Lucinda contended that the exact amount of "credits" owed by Callaway to the Trust for certain claims should be "set by the finder of fact." Ultimately, following a hearing, the trial court granted Lucinda’s motion for partial summary judgment, and agreed with her that the exact amount Callaway owed to the Trust must be determined by the factfinder. This appeal follows.

1. Callaway first argues that the trial court erred in striking three affidavits that he submitted at the summary-judgment hearing. We disagree.

At the hearing on Lucinda’s motion for partial summary judgment, Callaway sought to submit affidavits executed by himself, Jimmy Sands, and Randy Waters. Specifically, Callaway’s affidavit detailed the history of the bank stock owned by the Trust.⁵ Sands—who is a real estate broker, auctioneer, and general appraiser—averred that, on a number of occasions, he assisted Callaway with various matters regarding the trust property. His affidavit primarily relates to appraisals of various trust properties and his assessment that the fair-market value of six of those properties had been reduced as a result of conservation easements. Waters—who is a registered forester—averred that he had been retained on a number of occasions by Durham and some of her family members to manage and periodically arrange for sales of their timber holdings. And his affidavit relates primarily to his relationships with Durham and Callaway, the process by which they decided to sell timber, and how those sales were conducted.

Lucinda moved to strike the affidavits, arguing that they contained hearsay and were not relevant to the issues before the trial court. A discussion then ensued between the court and parties, during which the court and Lucinda repeatedly expressed concerns that, while the affidavits might be relevant to the issues submitted to the fact finder in a later proceeding, they were not relevant to the limited issues before the court in Lucinda’s motion for partial summary judgment. And even Callaway agreed several times that, if the issues raised by the affidavits would not be decided at the summary-judgment phase, excluding them at that time was appropriate. Indeed, at one point, Callaway indicated that if issues regarding whether his actions as trustee were justified or prudent would not be addressed at the summary-judgment stage, "[he] [did] [not] think the affidavits properly relate[d]" to the proceedings. Ultimately, finding that the affidavits were not relevant to the instant proceedings, the trial court excluded them from consideration only with respect to Lucinda’s motion for partial summary judgment. And while Callaway objected "just for the record[,]" he provided no basis for this objection, and he did not withdraw his earlier statements regarding whether the affidavits were relevant in the context of Lucinda’s motion for partial summary judgment.

The determination of whether evidence is relevant, of course, "lies within the discretion of the trial court, whose decision will not be disturbed on appeal absent an abuse of discretion."⁶ And although Georgia law favors the admission of relevant evidence, "evidence that does not bear directly or indirectly on the questions being tried should be excluded as irrelevant."⁷

Callaway now argues, generally, that the trial court erred in excluding the affidavits summarized above because its order granting partial summary judgment "resolve[d] issues as a matter of law with respect to which the affidavits clearly and unequivocally create genuine issues of fact that must be resolved by a jury." He further contends that the trial court was required to determine which parts of the affidavits were admissible and could not strike them in their entirety without first making findings of fact and conclusions of law. But Callaway does not identify any specific portions of the trial court’s ten-page order that decides an issue to which any of the affidavits were relevant. Likewise, Callaway does not specify which portions of which affidavit he believes are relevant to the issues ultimately decided by the court. Furthermore, in addition to Callaway’s complete lack of specificity, we are further impeded in reviewing this claim of error by the voluminous record in this case, which includes 17 volumes comprised of several transcripts as well as a 2,751 page record. As we have previously explained, we will not "cull the record on behalf of a party, particularly in a case such as this where the record is voluminous."⁸ Thus, because Callaway has not identified which portions of the affidavits he believes were erroneously excluded and the trial court findings to which they were relevant, he fails to provide us with any specific error to review.⁹

2. Next, Callaway asserts several claims of error related to the trial court’s findings as to whether his actions or inactions in his capacity as trustee of the Durham Trust violated the terms of the Trust or his fiduciary duties. As explained infra , each of his claims of error in this regard lack merit.¹⁰

The cardinal rule in construing a trust instrument is to "discern the intent of the settlor and to effectuate that intent within the language used and within what the law will permit."¹¹ And in the event of doubtful or ambiguous language, we adhere to the "rule of contra proferendum, construing the language against the maker of the document."¹² But in construing an express trust, such as the Durham Trust, we...