Gibbs v. Dodson

CourtUnited States Court of Appeals (Georgia)
Citation492 S.E.2d 923,229 Ga.App. 64
Docket NumberNo. A97A1982,A97A1982
Parties, 97 FCDR 3933 GIBBS v. DODSON.
Decision Date29 October 1997

Page 923

492 S.E.2d 923
229 Ga.App. 64, 97 FCDR 3933
GIBBS

v.
DODSON.
No. A97A1982.
Court of Appeals of Georgia.
Oct. 29, 1997.

Page 924

[229 Ga.App. 69] Kitchens, Kelley & Gaynes, Mark A. Kelley, Atlanta, for appellant.

Moore, Ingram, Johnson & Steele, Robert D. Ingram, Robert E. Jones, Michael W. Kitchens, Marietta, for appellee.

[229 Ga.App. 64] BIRDSONG, Presiding Judge.

This appeal arises from a suit for damages for breach of fiduciary relationship filed by appellant/plaintiff H. Barry Gibbs and from a counterclaim for imposition of a constructive trust for the benefit of cross-appellant/defendant Charles L. Dodson. Gibbs appeals from the order of the superior court granting summary judgment to Dodson and from the order denying Gibbs' summary judgment motion. Gibbs enumerates as error the grant of summary judgment to Dodson on all counts of Gibbs' complaint and the denial of summary judgment to Gibbs as to Count 1 of Dodson's counterclaim seeking a constructive trust on an insurance policy, which Gibbs claims he owns, insuring Dodson's life.

Gibbs and Dodson each owned 50 percent interest in a general partnership and in two corporations (Rose Haven Chapel, Inc. and Rose Haven Cemetery, Inc.), which legal entities owned and operated the Rose Haven Funeral Home and the Rose Haven Cemetery. In [229 Ga.App. 65] early 1991, both Dodson and Gibbs purchased life insurance policies naming the other as policy owner and beneficiary; the evidence is in conflict as to the reason for this purchase. In March 1992, both policies were pledged as collateral on an SBA loan; following the sale of the funeral business, the SBA loan was satisfied by Dodson. From date of issue through the first quarter of 1995, both policies were paid for by Rose Haven Chapel, Inc.; thus, for a period of time, Rose Haven Chapel, Inc. paid premiums on the policy on Dodson's life after Dodson purchased Gibb's interest in the funeral business. From the inception of the Dodson policy through on or about March 29, 1995, Rose Haven Chapel, Inc. paid premiums on this policy in the amount of $21,645.71. Thereafter, and at least through the

Page 925

date of his affidavit (September 12, 1996), Gibbs paid the premium on the policy on Dodson's life. (Apparently, after the assignment of these two policies to the SBA, Gibbs allowed the policy insuring his own life to lapse and replaced it with another policy which Dodson did not own. Thus, Dodson was no longer listed as the beneficiary or owner of any policy on the life of Gibbs, while Gibbs remained the listed owner and beneficiary of the policy on Dodson's life.) In February 1995, after the SBA loan was satisfied and a demand was made on Gibbs for the return of the policy on Dodson's life, Gibbs asserted a claim of ownership on the policy and declined to return it. In his counterclaim, Dodson asserts inter alia that a constructive trust for his benefit should be imposed on the policy insuring his life.

In late 1993, Dodson informed Gibbs that he wanted Gibbs to give up his interest in the funeral business. On March 4, 1994, Dodson and Gibbs executed a Put/Call Agreement which detailed the procedure for buying out each other's interest in the business. Gibbs initially controlled the option to purchase Dodson's business interest under the terms of the agreement. However, on October 2, 1994, the option reverted back to Dodson. Two weeks before Gibbs' option expired, Stewart Enterprises representatives visited the funeral home unannounced and notified Dodson of its desire to purchase Rose Haven; Dodson had not previously met with these representatives. Dodson informed the agents of Stewart Enterprises that he lacked the power to sell the business at that time but might be able to do so at a later date. Dodson did not inform Gibbs of the inquiry by Stewart Enterprises. Subsequently, Gibbs elected not to exercise his buy-out option; on December 1, 1994, Dodson signed a promissory note with Stewart Enterprises and obtained the financial backing to buy out Gibbs. To facilitate closing, a mutual release was executed by Dodson and Gibbs on December 1, 1994. On February 12, 1995, except for certain assets not here at issue, Dodson sold the funeral business assets to a subsidiary of Stewart Enterprises. As the SBA loan was satisfied as a result of this sale, the SBA released their lien [229 Ga.App. 66] on the policy insuring Dodson's life. This policy was not listed as an asset excluded from the sale under the terms of the applicable purchase agreement.

Gibbs filed suit averring a breach of fiduciary duty due to Dodson's failure to inform him of Stewart Enterprises interest in purchasing Rose Haven. Dodson moved for summary judgment averring that there he owed no fiduciary duty to Gibbs. The trial court granted Dodson's motion for summary judgment as to all of Gibbs' claims of breach of fiduciary duty on the grounds that there exists no...

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11 cases
  • Allen v. Devon Energy Holdings, L.L.C.
    • United States
    • Court of Appeals of Texas
    • March 9, 2012
    ...908, 804 N.Y.S.2d 580, 587–88 (N.Y.Sup.Ct.2005); Haussler v. Wilson, 164 Cal.App.2d 421, 330 P.2d 670, 674 (1958); Gibbs v. Dodson, 229 Ga.App. 64, 492 S.E.2d 923, 925–26 (1997); Mansfield Hardwood Lumber Co. v. Johnson, 268 F.2d 317, 318–19 (5th Cir.1959); Blakesley v. Johnson, 227 Kan. 49......
  • Greaves v. McAuley, CIV.A.1:03-CV-0207-B.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • February 7, 2003
    ...Inc. v. Stauffer, 598 F.Supp. 934 (N.D.Ga.1984) (Hall, J.); King Mfg. Co. v. Clay, 216 Ga. 581, 118 S.E.2d 581 (1961); Gibbs v. Dodson, 229 Ga.App. 64, 492 S.E.2d 923 (1997). Accordingly, IRT's argument that Greaves' duty of disclosure claims are really federal securities claims is unconvin......
  • Tench v. GALAXY APPLIANCE & FURNITURE SALES
    • United States
    • United States Court of Appeals (Georgia)
    • June 13, 2002
    ...does not discharge a party for unknown conduct already committed unless the release clearly expresses such intent. Gibbs v. Dodson, 229 Ga.App. 64, 68(2), 492 S.E.2d 923 (1997). Unless clearly appearing within the release as a subject matter of release, parties will not be presumed to inten......
  • Bo Phillips Co. v. R.L. King Props., LLC, A15A2003.
    • United States
    • United States Court of Appeals (Georgia)
    • March 23, 2016
    ...over their property, summary judgment was not proper as to the claim for imposition of a constructive trust. See Gibbs v. Dodson, 229 Ga.App. 64, 69(2), 492 S.E.2d 923 (1997) (trial court did not err in denying summary judgment on appellee's counterclaim for a constructive trust on an insur......
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