Godwin v. Mizpah Farms, LLLP

• Decision Date: 21 November 2014
• Docket Number: No. A14A1020.,A14A1020.
• Citation: Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 766 S.E.2d 497 (Ga. App. 2014)
• Court: Georgia Court of Appeals
• Parties: GODWIN v. MIZPAH FARMS, LLLP et al.

330 Ga.App. 31

766 S.E.2d 497

GODWIN

v.MIZPAH FARMS, LLLP et al.

No. A14A1020.

Court of Appeals of Georgia.

Nov. 21, 2014.

Malia Phillips–Lee, Thomasville, Whitehurst, Blackburn & Warren, Ronald B. Warren, for Appellant.

Robert D. Howell, Moultrie, for Appellees.

Opinion

McMILLIAN, Judge.

Walter P. Godwin appeals the trial court's grant of summary judgment on his claims, inter alia, for fraud, breach of fiduciary duty, and breach of contract against Mizpah Farms, LLLP (“Mizpah Farms”); his son, Bobby I. Godwin; and his grandchildren, John Godwin, Summer Godwin Hall, and Casey Godwin¹ on the ground that the claims are barred by the applicable statutes of limitation. We affirm the trial court's order of summary judgment in part and reverse in part, as set forth below.

This Court reviews the grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant. See Whitfield v. Tequila Mexican Restaurant, No. 1, Inc., 323 Ga.App. 801, 802(2), 748 S.E.2d 281 (2013). So viewed, the evidence shows that Walter began farming his family's land around 1949 and eventually accumulated over 600 acres of land in Grady and Decatur Counties. And as early as 1967, Walter's son, Bobby, began farming alongside his father, growing primarily corn and peanuts. They farmed in partnership until 1992, when Walter retired “on paper.” Despite this “retirement,” Walter continued to help Bobby with the farm until 2009.

After the death in April 2000 of Maggie Godwin, Walter's first wife and Bobby's mother, Walter and Bobby consulted legal counsel in connection with planning Walter's estate. On counsel's advice, Walter, Bobby, and the Grandchildren formed Mizpah Farms, LLLP, as Walter explained, “[t]o help on estate taxes.” Walter signed the Mizpah Farms limited partnership agreement (the “LLLP Agreement”) as both the sole general partner and a limited partner, and the others signed as limited partners.

According to both Bobby and Dale Davidson, Walter's tax attorney, Mizpah Farms was formed to hold real estate and the only income to the partnership was rental income from the land. Although Walter said in his deposition that he thought the farming operations also were to be run through the partnership, he concedes on appeal that the farming operations and Mizpah Farms “are distinct and separate entities, each with [its] own federal tax ID.”

To fund Mizpah Farms, Walter signed a deed dated November 21, 2000, conveying his interest in ten parcels of land to the partnership. Additionally, Walter signed an assignment dated November 21, 2000, transferring all of his “Limited Partnership Units and Partnership Rights in [Mizpah Farms]” to Bobby and the Grandchildren, effective December 31, 2000, “in consideration of the love and affection among [Walter, Bobby and the Grandchildren] ... as a gift” (the “Assignment”). The Mizpah Farms partnership documents reflect that as of November 20, 2000, Walter held 811,395 partnership units, while Bobby and the Grandchildren each held 10,000 partnership units.² After the Assignment, however, as of December 31, 2000, Walter's partnership certificate was stamped “cancelled” and his partnership units were divided among the Grandchildren with each receiving 270,465 units. Bobby retained his original 10,000 partnership units.

Walter now asserts that he did not understand the partnership documents and that he was tricked into signing them.³ However, the attorneys who prepared the documents and witnessed Walter's signatures stated that they explained the legal import of the documents to Walter and believed that Walter understood them before he signed them. As one of the attorneys explained, the limited partnership arose out of a “discussion over a period of time. This didn't just happen in one day or one moment.”

The record demonstrates that Walter began to have questions about Mizpah Farms in 2003, when he became concerned that he was not receiving any farming income from working alongside Bobby on the farm. In his verified complaint, Walter said that he asked Bobby why he was not receiving any farming income, and Bobby told him that the farm was not making money after the payment of all the bills and expenses of farming. At his deposition, Walter testified that he did “nothing” in response to his concerns about the farming income because he “had too much trust in [his] son, ... that he'd make it right.” However, Walter acknowledged that he had access to documentation at the Farm Service Agency (the “FSA”) of the United States Department of Agriculture (the “USDA”), where he continued to sign documentation relating to the farming business. He also had access to records at the Bank, where he was a signatory on the farm account. Yet, Walter took no steps to investigate these financial records at the time, and he conceded that he “didn't chase it down like [he] should have.”

Around the same time period, however, Walter asked Davidson a series of questions about Mizpah Farms and other farming-related matters. He also asked whether it was a conflict of interest for Davidson “to represent BOTH general partners in a business contract, or any other partners?” In response, Davidson wrote Walter a letter dated January 23, 2004, explaining, inter alia, that the only property in Mizpah Farms was the real estate; that according to the LLLP Agreement, Walter was the sole general partner of Mizpah Farms; that Bobby and the Grandchildren were the limited partners; that the partnership could not act except through Walter as the general partner; and that Davidson did not believe a conflict existed because he was under “the distinct impression that the partners, both General and Limited, are ‘on good terms' ” but if he were mistaken in that impression Walter needed to let Davidson know “immediately.”⁴

Additionally, in January 2004, Walter, Bobby, and the Grandchildren entered into an agreement giving Walter the right to collect all proceeds from the sale of timber on the land owned by Mizpah Farms (the “Timber Agreement”). The Timber Agreement identifies Walter as the general partner of Mizpah Farms, but not as a limited partner, and identifies Bobby and the Grandchildren as limited partners.

In July 2010, Walter again began to have concerns about Mizpah Farms, and he once again went to Davidson for information and partnership documents. Subsequently, on December 17, 2010, Walter filed an “Application for Decree of Dissolution” of Mizpah Farms (“First Application”). And on March 30, 2012, Walter filed a “Verified Second Amended Application & Complaint” (“Second Amended Application”), asserting claims against the individual Appellees in addition to the request for dissolution of Mizpah Farms. Walter testified that his primary goal in this litigation is to get his land back.

The Appellees subsequently filed a motion for summary judgment, asserting that Walter's claims were barred by the applicable statutes of limitation and that Walter lacked standing to seek dissolution of the partnership as he had divested all of his partnership interests in 2000. Following a hearing, the trial court granted the motion for summary judgment as to all of Walter's claims. The trial court found that “any claim of right would have to have been brought within the applicable statute of limitation from December 31, 2003, when Walter Godwin began to question his lack of income and inclusion in partnership activities,” and “that all partnership shares are vested in the names” of the Appellees and thus Walter had no standing to seek dissolution of the partnership.

1. Walter first asserts that the trial court's July 22, 2013 summary judgment order was premature, because five months earlier, in an order dated February 11, 2013, the trial court had allegedly reserved ruling on certain discovery. However, Walter designated only portions of the trial court record for inclusion in the record on appeal, and the February 11, 2013 order was not among the designated documents.⁵ As a result, he is unable to show the existence of any outstanding discovery issues. “In order for an appellate court to make a determination about the correctness of a judgment at issue, it is the appellant's duty to include in the record on appeal the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to the judgment.” Kirkendall v. Decker, 271 Ga. 189, 191, 516 S.E.2d 73 (1999). Accordingly, “[i]n the absence of the relevant information, and there being a presumption in favor of the regularity of court proceedings,” we must presume that the summary judgment issues were ripe for the trial court's consideration. See id.

Moreover, the record contains no indication that Walter asked the trial court for a continuance of the summary judgment hearing or a delay in its ruling until the alleged discovery issue could be resolved. Thus, Walter did not present this issue to the trial court for its consideration. It is axiomatic that “our appellate courts are courts for the correction of errors of law committed in the trial court.... Therefore, absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal.” (Citation and punctuation omitted.) Safe Shield Workwear, LLC v. Shubee, Inc., 296 Ga.App. 498, 500 –501(2), 675 S.E.2d 249 (2009). See also 915 Indian Trail, LLC v. State Bank & Trust Co., 328 Ga.App. 524, 534 –535(3), 759 S.E.2d 654 (2014) (physical precedent only) (rejecting argument that trial court prematurely ruled on summary judgment motion in light of pending motion to compel discovery, where party seeking discovery failed to meet the requirements of OCGA § 9–11–56(f) ).

2. Walter also argues that the trial court erred in making certain findings of fact in its summary judgment order because the record contains conflicting evidence on those issues. We agree that the trial court erred to the extent that it acted as a finder of fact to resolve conflicting issues in response to the...