Lathem v. Hestley
Lathem v. Hestley
Opinion of the Court
Lathem appeals from the trial court’s order dismissing for failure to state a claim upon which relief can be granted his petition for the partition of three parcels of land.
Taking Lathem’s allegations as true, as is required when reviewing an order on a motion to dismiss for failure to state a claim under
The court granted Hestley’s motion to dismiss for failure to state a claim upon which relief can be granted. See OCGA § 9-11-12 (b) (6). Such a motion should be granted only when the petition “shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” Property Pickup v. Morgan, 249 Ga. 239, 240 (290 SE2d 52) (1982). The nonmovant’s pleadings must be construed most favorably to him and all doubt resolved in his favor. Alford v. Public Svc. Comm., 262 Ga. 386, n. 2 (418 SE2d 13) (1992).
The court stated that the petition did not set forth a claim because OCGA § 19-3-3.1 forbids Lathem from gaining any interest in property titled in Hestley’s name based on a claim that the parties were “domestic partners.” Any such alleged status, however, is not the basis for Lathem’s asserted interest. Rather, Lathem claims an interest based on an implied constructive trust.
Although Lathem did not specifically state in his petition that he sought the imposition of an implied trust, he did state that his right to partition was in reliance on Weekes v. Gay, 243 Ga. 784 (256 SE2d 901) (1979),
Nor was the trial court correct in ruling that Lathem’s claims based on Hestley’s representations were barred by the statute of frauds. See OCGA § 13-5-30 (4). An action attempting to establish an interest in land through an implied trust is not barred by the statute of frauds. Watkins v. Watkins, 256 Ga. 58, 59 (1) (344 SE2d 220) (1986).
The trial court also ruled that Lathem had certain rights in the parcel of land which the parties purchased jointly, but that these rights did not provide him a claim upon which relief could be granted because to exercise them he must first establish the necessity of equitable partition over statutory partition. However, it is not a proper ground for dismissal that the petition does not disclose that Lathem’s remedy of statutory partition is inadequate. See Burnham v. Lynn, 235 Ga. 207, 208 (219 SE2d 111) (1975); Sikes v. Sikes, 233 Ga. 97, 98 (209 SE2d 641) (1974). Additionally, Lathem’s amended petition alternatively sought statutory partition under OCGA § 44-6-160, or equitable partition, see OCGA § 44-6-140.
Inasmuch as Lathem’s petition did not fail to state a cause of action, the trial court erred in dismissing it under OCGA § 9-11-12 (b) (6).
Judgment reversed.
The court’s order is dated March 18,1998, and recites that the motion came before the court on March 2, 1998. Lathem filed an amended petition on that date, and although the court’s order is silent as to whether the amended petition was considered, the text of the order makes it clear that the court considered the amendment in addressing the motion to dismiss.
Lathem requested statutory partition under OCGA § 44-6-160, or “Alternatively in reliance on Weeks v. Gay et al., 243 Ga 784 (sic).. . equitable partition.”
Lathem also suggested the formation of a joint venture between the parties but the imposition of an implied constructive trust is the basis of Lathem’s claim for statutory or equitable partition.
Dissenting Opinion
dissenting.
In reversing the trial court’s dismissal of Lathem’s complaint,
It appears that the trial court erred in holding that the oral joint venture agreement is unenforceable as against the statute of frauds. See Manget v. Carlton, 34 Ga. App. 556, 559 (1) (130 SE 604) (1925). However, the allegation of an enforceable agreement, without more, does not state any claim. The complaint does not aver that the parties agreed to any transfer of title. Rather, the only alleged benefit from the joint venture agreement was the sharing of profits. Lathem may have some “interest” in the properties by means of a joint venture agreement, but the mere existence of that interest would not render Hestley liable to Lathem for the value thereof. Hines v. Johnston, 95 Ga. 629, 640-642 (1) (23 SE 470) (1895); Manget v. Carlton, supra at 560 (2). There has been no allegation that Hestley has violated the joint venture agreement. Hines v. Johnston, supra at 642 (1); Manget v. Carlton, supra. If Lathem were dissatisfied with the venture, he should have alleged a breach of the joint venture agreement and sought dissolution and an accounting. First Nat. Bank v. Vason, 164 Ga. App. 309, 311 (2) (297 SE2d 85) (1982). Instead, the specific averments of the complaint are limited by their very terms to an equitable division or a partition of the properties, yet there are no allegations of any marital relationship, of any implied trust, or of any common ownership other than that allegedly arising from the joint venture agreement. See Rossville Fed. Sav. & Loan Assn. v. Ins. Co. of N. Amer., supra at 439 (2) (b). Although Lathem has joint legal title to one of the parcels, he is not seeking a separate partition based on that legal title, but rather he is seeking partition of all of the property based solely on the alleged joint venture agreement. “Although it
I am authorized to state that Chief Justice Benham and Presiding Justice Fletcher join in this dissent.
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