Hansford v. Robinson
| Decision Date | 18 March 1986 |
| Docket Number | No. 43006,43006 |
| Citation | 340 S.E.2d 614,255 Ga. 530 |
| Parties | HANSFORD et al. v. ROBINSON. |
| Court | Georgia Supreme Court |
Robert W. Lawson, Jr., Palmour and Lawson, Gainesville, for Beatrice L. Hansford, et al.
James N. Butterworth, Cornelia, for Peggy Sue L. Robinson.
Hansford and Vaughan brought suit to set aside a deed to Peggy Sue Robinson. The trial court granted Robinson's motion for summary judgment. We reverse.
Hansford, Vaughan and Robinson are daughters of Clifford Lyon. On January 4, 1974, Lyon executed a warranty deed to Robinson for property that included his gas station and residence. Lyon died on May 2, 1977. Hansford and Vaughan filed suit on October 4, 1984, claiming the deed was void because of lack of consideration and lack of mental capacity by Lyon.
Robinson filed a motion for summary judgment. In granting the motion, the trial court found no material issue of fact regarding the grounds of (1) lapse of the period of limitations for bringing suit and, (2) lack of mental capacity, and that Robinson was entitled to judgment as a matter of law.
1. The period of limitations applicable to an equitable suit for cancellation of a deed is seven years. Stephens v. Walker, 193 Ga. 330 (1), 18 S.E.2d 537 (1942).
Hansford and Vaughan correctly point out the defense of limitations is an affirmative defense and claim it was not properly raised here. OCGA § 9-11-8(c) requires affirmative defenses to be raised in a "pleading to a preceding pleading." The issue of a period of limitations was first raised orally by Robinson at the hearing on her summary judgment motion.
Robinson points to Phillips v. State Farm Mutual Automobile Ins. Co., 121 Ga.App. 342, 346, 173 S.E.2d 723 (1970), and its progeny to support her contention that the defense was properly raised. The court in Phillips held that an affirmative defense may properly be raised by motion, or by special plea in connection with the answer, or by motion for summary judgment. Robinson argues that Phillips should be extended to cover affirmative defenses orally raised at hearings on summary judgment motions.
We find Robinson's reliance on Phillips is misplaced. As the Phillips court found, a purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what must be met as a defense. Id. at 346, 173 S.E.2d 723. To allow a party to raise the issue for the first time orally at a hearing on a summary judgment motion without any notice to the opposing party is contrary to this rationale. We note that OCGA § 9-11-56(c) requires service of a motion for summary judgment on the opposing party at least 30 days prior to a hearing. We find the affirmative defense was not properly raised in this case and the trial court erred in ruling on the period of limitations in granting summary judgment.
2. Hansford and Vaughan contend the trial court erred in granting Robinson's motion for summary judgment because genuine issues of fact were raised showing their father lacked mental capacity to convey property to their sister by deed.
The test for the grant or denial of summary judgment is whether there remains after consideration of the pleadings, depositions, answers to interrogatories, admissions on file and affidavits any genuine issue of material fact. OCGA § 9-11-56(c). The burden is on the movant to show that no material issue remains, and the pleadings will be construed and inferences from the evidence interpreted favorably toward making and retaining a genuine issue of fact. See Bagley v. Firestone Tire & Rubber Co., 104 Ga.App. 736, 739, 123 S.E.2d 179 (1961).
A deed may be deemed invalid and cancelled in equity on the ground of mental incapacity if the grantor is shown to be entirely without understanding of the deed at the time of execution. Leachmon v. Leachmon, 239 Ga. 780, 238 S.E.2d 863 (1977). Thus, in order to prevail on her motion, the burden was on Robinson to show no genuine issue of fact existed as to her father's mental state when he executed the deed in question and that his mental state met the aforesaid test.
Robinson produced the affidavits of two attorneys who were present when Lyon executed...
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