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HAMIL v. STANFORD et al. (two cases).
S94A1083.
S94A1084.
BENHAM, Presiding Justice.
Title to land. Cobb Superior Court. Before Judge Kreeger.
Appellant Petrelia Hamil filed suit seeking to set aside a conveyance of real property from her former husband, appellee Loue Hamil, to appellees Fay and R. L. Stanford. The Stanfords filed a counter-claim in which they alleged appellant was liable for damages for interference with their right of enjoyment of the property, as well as for attorney fees. When appellant concluded the presentation of her evidence at the nonjury trial, the Stanfords sought dismissal of the suit against them (see OCGA 9-11-41 (b)), and the trial court entered judgment in their favor on appellant's complaint. After all the evidence was presented, the trial court found in favor of the Stanfords on their counterclaim, and in favor of appellant against her ex-husband, and entered judgment in accordance with its findings. Appellant appeals from the entry of judgment in favor of the Stanfords on appellant's claim (S94A1083) and the entry of the final judgment (S94A1084). We have consolidated the appeals.
1. When the Hamils were divorced in 1977, the marital home was titled in Mr. Hamil's name. The settlement agreement incorporated into the divorce decree provided that Mr. Hamil was to make the monthly mortgage payment on the house, appellant and the couple's children were to occupy the home, appellant had the right of first refusal if and when the home was put up for sale, and appellant was entitled to one-half the equity upon the sale of the house. In 1990, while appellant was imprisoned, Mr. Hamil sold the marital home for $150,000 to his secretary, Fay Stanford, and her husband. Pursuant to the Stanfords' motion at the close of appellant's case, the trial court found that the house was sold for a reasonable price; there was no evidence that the Stanfords were aware of any restrictions on the sale of the property; and, even if they had been aware of such restrictions, they had no obligation to appellant. The trial court concluded that the Stanfords were bona fide purchasers for value and entered judgment in their favor on appellant's claims.
The trial court, sitting as trier of fact in a nonjury trial, was authorized to adjudicate the case on the merits upon the Stanfords' motion to dismiss at the close of appellant's case and its findings of fact, analogous to a jury verdict, will not be disturbed if there is any evidence to support them. Safeway Ins. Co. v. Holmes, 194 Ga. App. 160 (1) (390 SE2d 52) (1989). See also OCGA 9-11-41 (b). The factfinder's determinations will not be disturbed on appeal since they are supported by the testimony of the Stanfords and Mr. Hamil.
2. After hearing all the evidence, the trial court determined that appellant had interfered with the Stanfords' right of enjoyment of the property they had purchased, and assessed damages against appellant. While testimony established that appellant had threatened the Stanfords with bodily harm, had gotten a temporary restraining order against the Stanfords' improvement of the property, and had caused the Stanfords to be unable to convey good title to any potential purchaser of the property, there was no evidence that appellant ever interfered with the Stanfords' possessory interest in the realty. In the absence of such evidence, the trial court erred in concluding that appellant had violated OCGA 51-9-1 (Tower Fin. Svcs. v. Mapp, 198 Ga. App. 563 (1) (402 SE2d 286) (1991)), and erred in entering judgment for the Stanfords on that claim.
4. The Stanfords' motion for assessment of a frivolous appeal penalty against appellant is denied.
A. Sidney Parker, Richard L. Moore, J. Stephen Schuster, for appellees.
Notes
1  OCGA 9-15-14 (e) was amended by the legislature in 1994 to permit a request for attorney fees and expenses to he made by motion at any time during the course of the action but not later than 45 days after the final disposition of the action. * The homicide occurred on April 22, 1991. Brown was indicted on July 9, 1991 in Richmond County. Brown was found guilty on February 11, 1994 and on February 14, 1994 was sentenced to life in prison for malice murder, and given a life sentence for each of the five armed robbery convictions, a term of twenty years for each of the two aggravated assault convictions, a term of ten years for each of the two attempted armed robbery convictions, and a term of five years for each of the five convictions for possession of a firearm during the commission of a crime, with each sentence upon each count to be served consecutively to each other. Brown filed a notice of appeal on January 28, 1994, seeking to appeal the court's order entered October 18, 1993, denying his motion to dismiss for failure to grant a speedy trial. He filed a second notice of appeal on March 3, 1994, seeking to appeal from the convictions and sentences. Both cases were docketed in this Court on April 15, 1994, and submitted on June 6, 1994.
Walter M. Henritze, Jr., Donald C. Turner, for appellant (case no. S94A1084).
Sylvia K. Morrow, for appellant (case no. S94A1083).
DECIDED NOVEMBER 7, 1994 -- RECONSIDERATION DENIED DECEMBER 20, 1994.
Thursday May 21 06:36 EDT


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