Mobley v. Sewell , 226 Ga. App. 866 ( 1997 )

Judge Harold R. Banke.

Susan R. Lawrence and Charles Lawrence filed this action on behalf of their ward, Rubye M. Mobley, nee Ruff ("Ruff”) who was adjudicated incapacitated. They sued Ruff’s now deceased husband, Herbert M. Mobley, his daughter, Evelyn Sewell, and her husband, Don F. Sewell, seeking to vacate and set aside a deed on the grounds of fraud, conspiracy, and breach of contract. On appeal, the Lawrences challenge the superior court’s dismissal of their case.¹

This case arose after Rubye Ruff conveyed a share in property located at 121 Lakeshore Boulevard to her future husband, Herbert Mobley, in 1981. This conveyance to both Ruff and Mobley created a joint tenancy with a right of survivorship. Ruff and Mobley married shortly after this transaction.

In February 1991, Herbert Mobley conveyed his interest in the property to his daughter, Evelyn Sewell. See Tower Financial Svcs. v. Mapp, 198 Ga. App. 563, 564-565 (1) (402 SE2d 286) (1991) (grantor can convey no greater interest than he owns). Days later, Mobley and Sewell petitioned to have Ruff declared incapacitated due to dementia or possible Alzheimer’s disease, seeking to become guardians of her property. Ruff underwent a medical evaluation which resulted in a finding that she was incapable of managing her business affairs. After a hearing in which Ruff contested the proceedings, stated she felt threatened by her husband, and requested that if a guardian was appointed, it not be her husband, the probate court adjudicated Ruff incapacitated. It declined, however, to appoint Mobley or Sewell as guardian of Ruff’s property, opting eventually for the Lawrences. The probate court ordered Mobley to return $9,000 he withdrew from a joint account and pay half of the ongoing household expenses.

In August 1992, over a year later, Evelyn Sewell filed a petition in superior court to partition the Lakeshore Boulevard property. The petition alleged that because the property had a residence thereon, a metes and bounds partition of Sewell’s undivided half interest was impossible and the property would have to be sold. Ruff, who was confined to a nursing home, opposed the action and moved to dismiss. In addition, the Lawrences filed cross-complaints and an amendment to the answer in which they alleged fraud in the conveyance of the property and breach of contract. The superior court, agreeing that the property was not capable of a metes and bounds division, appointed two appraisers.

In June 1993, at Ruff’s request, the probate court found Mobley in wilful contempt for violating its order requiring him to pay half the household bills and expenses. Six months later, the probate court issued an order stating that it would be inappropriate to hold Mobley in contempt. Notwithstanding the facts that the issue was not before it and the conveyance between Mobley and Sewell occurred before the probate proceedings commenced, this order also stated that because Ruff was incompetent at the time of the conveyance, the deed was voidable and illegal.²

Three months later, in March 1994, the superior court granted the Sewells’ motion to strike the Lawrences’ amendment to the answer alleging fraud in the conveyance of the property. It then ordered that the property be sold at public auction pursuant to OCGA § 44-6-167. These decisions were not appealed.

In May 1994, Don Sewell purchased the property when it was offered for sale on the courthouse steps by the court-appointed appraisers. Sewell subsequently sold the property to a non-party.

In September 1995, the Lawrences commenced this action seeking, inter alia, declarations that the warranty deed between Mobley and his daughter and the conveyance on the courthouse steps between Evelyn Sewell and her husband were void. The superior court dismissed this action, holding it was barred by res judicata, estoppel by judgment, and OCGA § 9-11-13. Held-.

The trial court correctly held that this action was barred by the doctrine of res judicata. This doctrine, codified at OCGA § 9-12-40, provides: “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” Miller v. Charles, 211 Ga. App. 386, 387 (439 SE2d 88) (1993). Res judicata prevents plaintiffs from asserting claims arising from the same transaction piecemeal or presenting only a portion of the grounds on which relief is sought and leaving the rest for a second suit if the first fails. Cooper v. Public Fin. Corp., 146 Ga. App. 250, 252 (1) (246 SE2d 684) (1978); Sorrells Constr. Co. v. Chandler &a, 214 Ga. App. 193, 194 (447 SE2d 101) (1994). “A dismissal with prejudice is res judicata of all questions which might have been litigated in the action and is a final disposition, barring the right to bring another action on the same claim. [Cit.]” Hutcheson Med. Center v. Scealf, 205 Ga. App. 204, 206 (1) (422 SE2d 20) (1992).

This case turns on the fact that the Lawrences failed to appeal the superior court’s orders striking the amendment to their answer in which they alleged fraud in the conveyance of the property and directing that the property at issue be sold at public auction. Nor did they contest the sale itself. Instead, over a year after the orders were issued, they commenced this action, seeking to vacate and set aside the deeds between Mobley and his daughter and between the Sewells on the grounds of fraud, conspiracy, and breach of contract. The failure to appeal the superior court’s orders implicitly and explicitly resolving the issues raised in the instant case allowed the disposition to become final. See Lanier v. Gay, 195 Ga. 859, 860 (25 SE2d 642) (1943); Reid v. Reid, 201 Ga. App. 530, 532-533 (411 SE2d 754) (1991); OCGA § 5-6-48 (b) (1). This triggered the doctrine of res judicata, which now prohibits the Lawrences from reasserting their allegations of fraudulent transfer of the property in this action. The Lawrences’ erroneous assertion that the superior court lacked jurisdiction over the partition action does not alter this conclusion. See Ga. Const. of 1983, Art. VI, Sec. IV, Par. I (1).

The underlying controversy is, of course, troubling. The probate court’s findings raise the issue of whether Mobley and the Sewells took unfair advantage of Ruff’s incapacity. However, the conveyance granting Mobley a joint tenancy with right of survivorship was executed in 1981, before any question of Ruff’s incompetence arose. At least some authorities postulate that neither the co-owner’s permission nor knowledge are necessary to sever the survivorship provision. Cogburn & Warren, “Joint Ownership of Georgia Real Property with Right of Survivorship” 16 Ga. St. Bar J. 54 (1979); see OCGA § 44-6-190 (a); see Wallace v. Wallace, 260 Ga. 400, 401, n. 4 (396 SE2d 208) (1990) (“The effect of such a sale [as between Mobley and his daughter] on the right of survivorship is unclear.”); compare Williams v. Studstill, 251 Ga. 466, 467-468 (306 SE2d 633) (1983); see Pindar, Ga. Real Estate Law & Procedure, §§ 7-81, 19-13, 19-13.1 (observing that OCGA § 44-6-190 (a) created confusion on the severance issue). Thus, the transfer between Mobley and his daughter may have effected a severance notwithstanding Ruff’s incapacity.

In their reply brief, the Lawrences have reframed their enumerations of error, raising a substantial number of new issues. Statements in the briefs cannot enlarge or alter the scope of review to include issues not reasonably contained in the enumeration of error. Jabaley v. Jabaley, 208 Ga. App. 179, 180 (2) (430 SE2d 119) (1993).

Judgment affirmed.

Birdsong, P. J, Smith, Ruffin and Eldridge, JJ., concur. McMurray, P. J., and Beasley, J., dissent.

1 The Lawrences originally filed this appeal in the Supreme Court, which transferred the case to this Court, finding that the issues involving title to land were merely ancillary to the application of the principle of res judicata. Our review of this case is impeded by the fact that the only records from the probate court proceedings are selected exhibits attached to the Lawrences’ complaint. The probate court proceedings address matters of relevance to this appeal (particularly the resolution of issues raised by Mobley’s notice of appeal challenging the probate court’s December 28, 1993 order finding the transfer between Mobley and Sewell “voidable and illegal”). But neither that case nor its full record are before us. See Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273, 274 (2) (441 SE2d 684) (1994) (appellant bears burden of providing appellate record).

2 Because the probate court clearly lacked subject matter jurisdiction to determine the validity of the deed, this order is subject to collateral attack at any time under OCGA § 9-11-60 (d) (1). See In re Estate of Adamson, 215 Ga. App. 613 (1) (451 SE2d 501) (1994) (probate court’s orders determining matters of title to property are void for lack of jurisdiction); see Ga. Const. of 1983, Art. VI, Sec. TV, Par. I (giving superior courts exclusive jurisdiction over cases respecting title to land). This fact undermines any argument that the probate court’s order respecting the conveyance deprived the superior court of jurisdiction.