Rushin v. Ussery, A09A0266.

• Decision Date: 09 July 2009
• Docket Number: No. A09A0266.,A09A0266.
• Citation: 681 S.E.2d 263,298 Ga. App. 830
• Parties: RUSHIN et al. v. USSERY.
• Court: Georgia Court of Appeals

681 S.E.2d 263

298 Ga. App. 830

RUSHIN et al. v. USSERY.

No. A09A0266.

Court of Appeals of Georgia.

July 9, 2009.

Lane & Jarriel, Walter J. Lane Jr., Macon, for appellants.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Macon, for appellee.

BERNES, Judge.

This case arises from an alleged oral contract to make a will. Prior to her death, Leila Rushin filed an action against two of her stepchildren to recover allegedly misappropriated funds. The defendants asserted numerous counterclaims, several of which were based upon an alleged oral contract with Leila to make a will. Leila died before the action was heard and Eunice Ussery, the executrix of Leila's estate, was substituted as a party plaintiff. Ussery moved for partial summary judgment on the counterclaims arising from the alleged oral contract to make a will. The trial court granted the motion, and defendants appeal. For the reasons set forth below, we affirm the grant of Ussery's motion for partial summary judgment on the defendants' counterclaims for specific performance and quantum meruit, but reverse the grant of summary judgment as to the defendants' claim for breach of contract.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Footnote omitted.) Aames Funding Corp. v. Henderson, 275 Ga.App. 323, 620 S.E.2d 503 (2005). "To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim." Mansell v. Starr Enterprises/Texaco, 256 Ga. App. 257, 568 S.E.2d 145 (2002). In reviewing the grant or denial of summary judgment, we review the evidence de novo. Federated Mut. Ins. Co. v. Ownbey Enterprises, 278 Ga.App. 1, 627 S.E.2d 917 (2006).

So viewed, the evidence shows that Heyward Rushin and Leila Rushin married in 1973. They each had four children from a previous marriage. The defendants, Esther Rushin and Gloria Robinson, are Heyward Rushin's daughters. Ussery is Leila Rushin's daughter.

In 1995, Heyward and Leila decided to "move back closer to home" in light of health issues associated with their advancing age. The defendants had previously purchased a house on a three-acre tract of land in or near Macon. Esther suggested that her father and stepmother build a second home on the property so defendants "could look after them." Heyward and Leila funded construction of the house and moved into the home in August 1995.

Following the move, Heyward established several joint bank accounts in his, Leila's and Esther's names. According to Esther, her father wanted her to "oversee the safety of the accounts, particularly the ones he had basically earmarked for his children." These included a certificate of deposit ("CD") and money market account at SunTrust Bank and two CDs at the First Community Bank in Lizella.

Heyward died on March 15, 2001, after which his name was removed from the accounts, leaving Leila and Esther as joint account holders. On February 27, 2006, Leila gave a total of $25,000 to her four children and her brother from one of the accounts she held jointly with Esther. Esther, who was upset about the gifts, subsequently transferred most of the money in the joint accounts to accounts solely in her name. On March 24, 2006, Leila filed a complaint against Esther to recover the monies removed from the joint accounts. Leila died in May 2006, and Ussery was substituted as party plaintiff. By stipulation of the parties, Robinson was later added as a party defendant.

In their verified answer, defendants contended that they had entered into an oral agreement with Heyward and Leila. Pursuant to the alleged contract, Heyward and Leila agreed to make wills, which they promised not to revoke, bequeathing certain accounts to defendants, the defendants' brother, Cliff Rushin, and the defendants' nephew, William Joseph Roberts.¹ They also alleged that Heyward and Leila agreed not to draw down the principal and interest in the accounts. For their part, defendants agreed that the Rushins could build a structure on defendants' property and reside on the property rent free for the term of their natural lives, and that the defendants would provide personal living care and assistance for the same term. Defendants contended that Leila had breached this agreement² and asserted numerous counterclaims, including breach of contract, specific performance, and quantum meruit.

Ussery moved for partial summary judgment on defendants' claims arising from Leila's alleged oral contract to make a will. The trial court granted the motion, finding that the evidence did not show a mutual consent to contract, that the alleged agreement was not sufficiently definite to be enforced, and that ordering specific performance of the alleged contract would be unjust.

1. Defendants contend that the trial court erred in finding that the alleged oral contract to make a will lacked the mutual assent to contract. We agree.

A contract to make a will, supported by valuable consideration, is valid. Wyrick v. Wyrick, 256 Ga. 408, 408-409, 349 S.E.2d 705 (1986). An oral contract to make a will also may be valid and enforceable if entered into before January 1, 1998, as was alleged here.³ See Rigby v. Powell, 233 Ga. 158, 160(4), 210 S.E.2d 696 (1974), overruled on other grounds, Wilson v. Nichols, 253 Ga. 84, 85-86(3), 316 S.E.2d 752 (1984). "However, such a contract must be definite, certain, and precise in its terms and its existence must be established beyond a reasonable doubt." Id. See McLendon v. Priest, 259 Ga. 59, 60, 376 S.E.2d 679 (1989); Salmon v. McCrary, 197 Ga. 281, 284-286, 29 S.E.2d 58 (1944). In this context, "the `reasonable doubt' criterion, if the burden is to be couched in these words, refers not to the standard used by this court but to the jury's finding of the existence of the contract." Peters v. Joyce, 156 Ga.App. 183, 184(1), 275 S.E.2d 343 (1980).

In their depositions, both Esther and Glenn Warren, the husband of Esther's niece, testified to Leila's assent to the alleged oral agreement. Ussery argues that Esther's contradictory testimony must nevertheless be construed against her. According to Esther, the terms of the agreement were reached when she met with Leila and her father. Esther deposed:

She [Leila] was just present during the discussion. I don't recall that she had a great deal to say one way or the other, because like I said, Dad was the one in charge of the money, you know, that type of thing, and so she pretty much went with whatever he recommended.

Ussery argues that Esther therefore testified two ways—one that Leila assented and the other that she was "just there," and that, in light of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986), there was no evidence that Leila assented to the alleged agreement. See OCGA § 13-3-2 ("[t]he consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract").

"Prophecy Corp. stands for the proposition that self-contradictory testimony is construed against the equivocator, absent a reasonable explanation for the contradiction." Korey v. BellSouth Telecommunications, 269 Ga. 108, 108-109, 498 S.E.2d 519 (1998). However, "the opposing party is entitled to judgment only where the favorable portion of the party's self-contradictory testimony is the only evidence of his right to recover or of his defense." (Citation and punctuation omitted; emphasis in original.) Id. at 109, 498 S.E.2d 519. Pretermitting whether Esther's testimony is contradictory, Warren testified that he witnessed the discussion at issue and that Leila assented to the agreement; therefore, any application of the rule in Prophecy Corp. to Esther's testimony does not entitle Ussery to summary judgment. Id.

2. Defendants also contend that the trial court erred in finding as a matter of law that the details of the alleged contract lacked the specificity necessary to constitute an enforceable oral contract to make a will. We agree.

To be enforceable, an oral contract to make a will "must be definite, certain, and precise in its terms." Rigby, 233 Ga. at 160(4), 210 S.E.2d 696. See McLendon, 259 Ga. at 60, 376 S.E.2d 679. Ussery argues that the agreement was indefinite as to the ultimate beneficiaries of the agreement and the specific accounts subject thereto. However, both are identified with particularity. According to Esther's affidavit, her father's and Leila's "wills were to be drawn to leave certain funds to each other for life with remainders over to Esther Rushin, Gloria Robinson, Cliff Rushin, and William Joseph Roberts."⁴ Other testimony shows that these monies were to be divided equally between the beneficiaries. As to the accounts, Esther's affidavit and deposition identifies the specific assets to be devised.⁵ Defendants' promise to provide "personal living care and services" was defined during the meeting in which the contract terms were agreed upon.⁶

Ussery also relies on the trial court's finding that the alleged contract was not sufficiently specific to be enforced. The trial court refers to numerous provisions which the contract "did not provide," including, for example, whether Heyward and Leila could sublet the premises, who made decisions as to repairs, rights of inspection, and whether pets were allowed. However, the parties need only agree to the essential terms of the contract, and the absence of agreement on nonessential terms does not render the agreement unenforceable. See Henry v. Blankenship, 275 Ga.App. 658, 660-661(1)(a), 621 S.E.2d 601 (2005) (where claimant averred the parties had reached agreement on all essential terms of oral contract, the alleged agreement was not unenforceable as a matter of...