Strickland v. Mcelreath

• Decision Date: 23 March 2011
• Docket Number: No. A10A1619.,A10A1619.
• Citation: 308 Ga.App. 627,708 S.E.2d 580
• Parties: STRICKLANDv.McELREATH et al.
• Court: Georgia Court of Appeals

308 Ga.App. 627
708 S.E.2d 580

STRICKLAND
v.
McELREATH et al.

No. A10A1619.

Court of Appeals of Georgia.

March 23, 2011.

[708 S.E.2d 581]

N. David Wages, for appellant.John W. Timmons Jr., Athens, for appellees.MIKELL, Judge.

[308 Ga.App. 627] We granted an interlocutory appeal to Joe Paul Strickland, the administrator of the estate of his late mother-in-law, Geraldine McElreath (“Geraldine”), to review the trial court's denial of his motion to transfer the underlying suit against him to the county of his residence. Because the claims at issue sound in equity, venue lies in the county of Strickland's residence. Therefore, we reverse the trial court's judgment.

The trial court's application of the law to the allegations of the [308 Ga.App. 628] complaint is subject to de novo review.¹ Jerry McElreath and Fred McElreath (“the McElreaths”), Geraldine's surviving sons, filed the complaint in equity in Madison County against Strickland individually and as administrator of Geraldine's estate. The complaint alleges that the McElreaths' father, Robert Hoyle McElreath (“Robert”), began acquiring various parcels of land in Madison County in the 1950s; that he and Geraldine had announced their intention to divide the real property equally among their children; that Robert died in 1971 survived by Geraldine and their five children; that the children conveyed their interests in the property to Geraldine, thereby creating an implied resulting trust; and that Geraldine died on March 8, 1997.

The complaint also alleges that ten hours before her death, Geraldine purportedly executed a deed conveying all of the real property to her daughter Flora Diane McElreath Strickland (“Flora”), who was married to Strickland; that Flora placed the pen in Geraldine's

[708 S.E.2d 582]

hand and moved it to sign her name; that Geraldine lacked the mental or physical capacity to execute the deed; that the McElreaths acquired an interest in the real property by virtue of an implied resulting trust; that Flora made several conveyances to effectuate the trust but then died in 2003; that although Strickland is Flora's surviving spouse and sole heir, he has never probated her estate; that Strickland, individually, made additional conveyances consistent with the implied resulting trust; but that as the administrator of Geraldine's estate, he has breached his fiduciary duty to distribute the remaining property in accordance with the laws of intestacy. The McElreaths seek to set aside the deed from Geraldine to Flora, to remove Strickland as administrator, and to have the property declared included in the corpus of the trust and subject to the McElreaths' interests therein.

Strickland moved to transfer the case to Barrow County, where he resides, asserting that venue is proper there because the McElreaths seek equitable relief. The trial court denied the motion, ruling that, regardless of the title of the complaint as one in equity, “the suit involves the deed/title to land and whether or not the deed executed was valid.” The court issued a certificate of immediate review, and we granted Strickland's application for interlocutory appeal.²

Strickland argues that, with the exception of the claim seeking to remove him as administrator, venue lies in the county of his residence because the remaining claims sound in equity. We agree. [308 Ga.App. 629] Pursuant to our Constitution, “[c]ases respecting titles to land shall be tried in the county where the land lies,” while “[e]quity cases shall be tried in the county where a defendant resides...