Smith v. Tibbits
| Decision Date | 22 April 2021 |
| Docket Number | A20A1987 |
| Citation | 359 Ga.App. 362,857 S.E.2d 820 |
| Court | Georgia Court of Appeals |
| Parties | SMITH v. TIBBITS |
Donald F. Defoor ; Charles M. Cork III, for appellant.
Caldwell Propst & DeLoach, Robert S. Carlson, Harry W. MacDougald, Christine D. Buckler, for appellees.
Leslie Smith was an aspiring real estate agent when she met Wayne Tibbits—a wildly successful real estate developer—in 2004. They quickly began dating and Tibbits soon invited Smith and her two children to move into his home in Hiram, Georgia. And for the first five years of their relationship, all was well. But in 2009, Tibbits began drinking heavily and engaging in a pattern of abusive behavior. Even so, Smith remained in this Jekyll-and-Hyde relationship with Tibbits until his passing in 2018—caring for him until the very end. Now, in the wake of Tibbits's death, there is a dispute between Smith and Tibbits's son, Russell, over the ownership of the Hiram property, a 2016 white Cadillac Escalade, and certain jewelry. Smith claims that Tibbits gave her all three, while Russell maintains that they belong to his father's estate. The only question before us is whether Smith gets to have her day in court. We conclude that she does.
This case comes to us after the trial court's grant of summary judgment in favor of Russell Tibbits, individually and as executor of the Estate of Wayne A. Tibbits.1 Smith argues that the trial court erred in granting summary judgment against her when the evidence supported a finding that (1) a deed for realty for the Hiram property was delivered to her, (2) Wayne gifted her the white Cadillac Escalade, and (3) Wayne also gifted her certain jewelry. And because we agree with Smith that genuine issues of material fact remain as to these matters, we reverse.
Viewed de novo in the light most favorable to Smith (i.e. , the nonmovant),2 the record shows that Wayne was a real estate developer who owned multiple homes in multiple states. In 2004, he began dating Smith, and Smith moved into Wayne's home in Hiram, Georgia. Smith quit her job as a real estate agent at Wayne's request, and the two were in a mostly continuous relationship until Wayne's death in 2018. And during the course of their relationship, Wayne gave Smith horses, money, a Range Rover, furniture, and many other things.
The couple continued living together on Wayne's Hiram property, which consisted of approximately 21 acres and included, among other things, a main dwelling, a lake house, and a horse barn. And in 2009, Wayne told Smith that he was "going to deed the [Hiram] house to [her]." So, she accompanied Wayne to his attorney's office on May 11, 2009, where they discussed the deed and Smith was given an opportunity to review and approve it. Additionally, they discussed and executed an option contract, which would give Wayne the ability to purchase the property back from Smith should the need arise.
At the conclusion of this meeting, Smith was given copies of the two documents and believed Wayne had possession of the originals. And it was her understanding that she obtained ownership of the Hiram house that day. It was also her understanding that the deed need not be recorded because Wayne continued to pay the taxes andother expenses during the course of their relationship—although Wayne did tell Smith to immediately record the deed if "something happened" to him.
Shortly after this meeting, Smith grew concerned about what would happen to the Hiram house if she died before Wayne, and so, she decided to execute a will leaving the house and other assets to Wayne in the event of her death. Wayne agreed that she needed a will for this purpose, set up an appointment with one of his attorneys, hired the attorney, and accompanied Smith to the meeting.
During the final years of their sometimes tumultuous relationship (which was impacted by Wayne's substance abuse and temper), Smith continued to reside in the "main" house on the Hiram property while Wayne often stayed in the lake house. At one point, while incredibly inebriated, Wayne called the police to have Smith removed as a trespasser, claiming that he owned the property; but Smith showed officers her copy of the aforementioned deed and was allowed to remain.
In May 2017, the couple briefly separated, at which point Smith drove to Colorado in an Escalade that Wayne previously said was hers and stayed at a ranch owned by Wayne in that state. Nevertheless, she remained in contact with Wayne, who was eventually admitted to a drug-and-alcohol rehabilitation facility. After leaving rehab, Wayne flew to Colorado in October 2017 to reunite with Smith and returned again in November. Wayne then told Smith that he was ill and wished for her to return to Georgia to take care of him, which she did.
Wayne was hospitalized on February 4, 2018, and succumbed to his illness on February 23, 2018. Smith remained with Wayne at the hospital during this time. But before Wayne passed, he gave Smith certain pieces of his jewelry (a necklace, watch, and two rings), telling her to "go ahead and take it now" because he wanted her to have it. Several weeks after his death, Smith returned to Wayne's Colorado house. And when she departed, Smith left all of her belongings in the main house because she intended to return to Hiram in a few weeks. Wayne's son, Russell, agreed to manage everything when Smith departed, provided her with new keys to locks that were changed, and gave her the alarm system code. But Russell later claimed that Smith's deed was "no good" because it was never recorded.
On October 12, 2018, Smith filed a complaint for deed and motion for temporary injunction against Russell in his various capacities. In doing so, she asserted that in May 2009, well prior to his death in March 2018, Wayne deeded his Hiram home to her. She further asserted that Wayne gifted to her the aforementioned pieces of jewelry, which Russell had since taken into his own possession and refused to return. Finally, Smith alleged that Wayne also gave her the Cadillac Escalade that she drove to Colorado, to which Russell refused to hand over title. As a result, she sought return of the jewelry, title to the Escalade, and for the court to establish fee simple title to the real property and temporarily enjoin interference with her ownership and possession of same.
Attached to Smith's complaint was a copy of the quitclaim deed executed on May 11, 2009, which purported to grant title of the Hiram property from Wayne to Smith. Additionally, Smith attached a copy of the option contract, also dated May 11, 2009, which gave Wayne the exclusive opportunity to repurchase the property from Smith for $60,000.
In response to this action, Russell denied that Smith owned the aforementioned real property, Escalade, or jewelry. He counterclaimed on grounds of conversion, trespass to personal property, trespass to realty, unjust enrichment, and sought an award of attorney fees. Russell included a copy of Wayne's last will and testament, in which Wayne left his entire estate to Russell in fee simple. Then, on August 1, 2019, Russell moved for partial summary judgment on Smith's claims of ownership and his counterclaim for conversion.
Following a hearing on the matter, the trial court granted judgment in favor of Russell, concluding that Smith had not established delivery of the deed to the real property or delivery of the Escalade, entitling Russell to his claim for conversion regarding the Escalade, and that she could not show that Wayne gifted the jewelry to her.3 This appeal by Smith follows.
The test for evaluating the grant or denial of a motion for summary judgment is whether "there remains after consideration of the pleadings, depositions, answers to the interrogatories, admissions on file and affidavits any genuine issue of material fact."4 With the foregoing in mind, we address Smith's contentions on appeal.
1. First, Smith argues that the trial court erred in granting summary judgment to Russell when the evidence supported a finding that a deed for the real property was delivered to her. We agree with Smith that genuine issues of material fact exist on this issue and that the grant of summary judgment was improper.
In Georgia, a deed to lands shall be "in writing, signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness[,]" and it shall be "delivered to the purchaser or his or her representative and be made on a good or valuable consideration."5 Indeed, the Supreme Court of Georgia has explained that "[d]elivery is essential to the validity of a deed, and there can be no delivery, after the death of the alleged grantor, of a deed with the possession of which he had never in any manner parted."6 And it is indispensable to the delivery of a deed that it "pass beyond the control or dominion of the grantor; and where a grantor retains a deed which he executes in his possession and control until his death without doing anything to indicate an intention to deliver it, it is void for want of a delivery."7 Put another way, the true test of delivery of a deed of conveyance is "whether or not the grantor intended to reserve to himself the locus penitentiae,"8 which is the "opportunity for changing one's mind; an opportunity to undo what one has done[;] a chance to withdraw from a contemplated bargain or contract before it results in a definite contractual liability; a right to withdraw from an incompleted transaction."9
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