Agricommodities, Inc. v. Wilbur H. Moore, Jr. ( 2021 )

FIFTH DIVISION
REESE, P. J.,
MARKLE and COLVIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 2, 2021
In the Court of Appeals of Georgia
A20A1745. AGRICOMMODITIES, INC. v. MOORE et al.
REESE, Presiding Judge.
In this fraudulent conveyance action, Agricommodities, Inc., appeals from the
superior court’s denial of its motion for new trial in favor of Pamela Moore and
Joseph Moore. For the reasons set forth infra, we affirm the court’s decision regarding
Pamela Moore because some evidence presented at the bench trial supported the trial
court’s conclusion. However, we reverse the trial court’s decision regarding Joseph
Moore because the court should have entered a default judgment against him, and
remand for further proceedings consistent with this opinion.
Construed in favor of the judgment,1 the record shows the following. Pamela
and Joseph are the adult children of Wilbur Moore, Jr.2 In 2012, Agricommodities
obtained a default judgment against “Buddy Moore,” an alias used by Wilbur, for
approximately $33,000. Wilbur subsequently filed for bankruptcy, and listed his debt
to Agricommodities as part of the petition. The bankruptcy court dismissed his
petition in 2014.
Wilbur executed a quitclaim deed in 2014 giving his dairy farm to Joseph and
a quitclaim deed in 2015 giving his home to Pamela and Virginia Moore, Wilbur’s
wife. Virginia and Wilbur divorced in 2016. In the divorce decree, the court, “[r]ather
than . . . set[ting] aside such transfers or tak[ing] other legal actions regarding same,”
ordered that the home be sold for $81,500. At the home’s closing, the court ordered
that $40,000 be disbursed to Virginia, $6,600 to the lawyers and title company, and
the remainder to Wilbur. The court also ordered that the dairy farm remain with
Joseph. Although a non-party to the divorce, Pamela complied with the court’s order.
Pamela and Virginia sold their interest in the house to a third party, and they
1
See Braswell v. Benton, 351 Ga. App. 372 (830 SE2d 758) (2019).
2
For the sake of clarity, we will refer to the Moore family members by their
first names.
2
disbursed the funds as specified in the court’s order. Consistent with the order,
Pamela did not receive anything from the sale.
In 2017, Agricommodities sued Pamela, Joseph, and Wilbur, asserting that
Wilbur’s transfers of the dairy farm and the home to Joseph and Pamela were
fraudulent conveyances. Agricommodities sought a lien on the dairy farm, Pamela’s
proceeds from the sale of the house, and any other remedy justified by the fraudulent
conveyance statute. Pamela responded to the complaint and testified at trial, but
Joseph did not. Wilbur died shortly after Agricommodities filed the complaint. After
a bench trial, the court found in favor of Joseph and Pamela. Agricommodities filed
a motion for new trial, which the trial court denied, and this appeal followed.
On appellate review of a bench trial, the factual findings shall not
be set aside unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of the witnesses.
The clearly erroneous test is the any evidence rule. If there is any
evidence to support the findings of fact by a trial court sitting without
a jury, then the appellate court affirms without interference with or
disturbing such factfindings.3
3
Braswell, 351 Ga. App. at 372 (citations and punctuation omitted).
3
“We review any questions of law decided by the trial court, however, de novo.”4 With
these guiding principles in mind, we now turn to Agricommodities’s claims of error.
1. In related claims of error, Agricommodities argues that the trial court erred
in failing to find that the transfer of the home from Wilbur to Pamela was a fraudulent
conveyance, and for failing to order a money judgment against her.
At the time the transfers were made, fraudulent transfers under Georgia’s
Uniform Fraudulent Transfers Act (“UFTA”)5 were “broadly separated into two
classifications: actual fraud and constructive fraud.”6 The code section for
constructive fraud, OCGA § 18-2-75 (a) (2014), provided:
A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor whose claim arose before the transfer was made or the
obligation was incurred if the debtor made the transfer or incurred the
obligation without receiving a reasonably equivalent value in exchange
4
Davison v. Citizens Bank & Trust Co., 338 Ga. App. 671, 672 (791 SE2d 437)
(2016).
5
The UFTA was superseded by Ga. L. 2015, pp. 996 & 1029, effective July 1,
2015, and is now known as the Uniform Voidable Transactions Act. See OCGA § 18-
2-70 et seq.
6
Truelove v. Buckley, 318 Ga. App. 207, 210 (1) (733 SE2d 499) (2012)
(citation and punctuation omitted) (noting the similarities between Georgia’s UFTA
and North Dakota’s UFTA).
4
for the transfer or obligation and the debtor was insolvent at that time or
the debtor became insolvent as a result of the transfer or obligation.
A creditor proceeding under OCGA § 18-2-75 need not show an actual intent to
defraud, and the fact that the transferee had no knowledge of the debtor’s insolvency
is irrelevant under this code section.7 Still, the creditor must show that the debtor did
not receive “reasonably equivalent value” for the exchange.8 By contrast, a creditor
proceeding under OCGA § 18-2-74 (a) (1) (2014), the code section for actual fraud,
must show an “actual intent to hinder, delay, or defraud any creditor of the debtor[.]”
OCGA § 18-2-74 (b) (2014) lists “badges of fraud” that a court may consider in
determining intent.9
In this case, neither party requested findings of fact, and the court did not issue
any factual findings in its order.10 Nevertheless, applying the “any evidence” standard
7
See Truelove, 318 Ga. App. at 210-211 (1).
8
See OCGA § 18-2-75 (a) (2014).
9
See Target Corp. v. Amerson, 326 Ga. App. 734, 737-738 (1) (755 SE2d 333)
(2014).
10
See Dasher v. Dasher, 283 Ga. 436, 437 (1) (658 SE2d 571) (2008) (“[A]
superior court judge is not required to make findings of fact in a nonjury trial unless
requested to do so by one of the parties prior to the entry of the written judgment[.]”)
(citation and punctuation omitted); see also OCGA § 9-11-52 (a).
5
of review,11 some evidence presented at trial supported the court’s judgment in favor
of Pamela. Pamela complied with the divorce court’s order to sell the marital home
and to give the bulk of the proceeds to Wilbur and Virginia. The evidence thus
supported a finding that Wilbur received reasonably equivalent value for his interest
in the marital home, which would defeat a claim for a constructive fraudulent
conveyance. Moreover, given that Wilbur and Pamela complied with the divorce
court’s order to sell the home, the evidence also supported a finding that their intent
was not to defraud the creditor. Accordingly, because some evidence supported the
court’s judgment, we affirm the trial court’s decision in favor of Pamela.12
2. Agricommodities argues that the trial court erred in failing to enter a default
judgment against Joseph. We agree.
The record shows that the sheriff served Joseph at his residence to someone
who resided with Joseph.13 Joseph never filed an answer, and he did not appear at
11
See Braswell, 351 Ga. App. at 372.
12
See OCGA §§ 18-2-74 (a) (1) (2014); 18-2-75 (a) (2014); see also Crowder
v. Crowder, 281 Ga. 656, 658-659 (642 SE2d 97) (2007) (affirming the decision of
the trial court because “the issues on appeal depend[ed] upon the factual
determinations made by the trial court as factfinder and neither party asked the trial
court to make factual findings[ ]”).
13
See Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108)
(1995) (“The sheriff’s return of service constitutes prima facie proof of the facts
6
trial. Thus, Joseph was in default, and Agricommodities was “entitled to judgment ‘as
if every item and paragraph of the complaint or other original pleading were
supported by proper evidence.’”14 Additionally, unlike the transfer with Pamela, the
record does not indicate that Wilbur received any proceeds from the transfer of the
dairy farm to Joseph. Accordingly, we reverse and remand for entry of a default
judgment against Joseph and a determination of damages under OCGA §§ 18-2-77
and 18-2-78 (2014).15 Possible remedies under these sections include a voidance of
the transfer, attachment of the property, a money judgment for the value of the
property or the value of the debt, whichever is less, or any other relief the
circumstances may require.16
Judgment affirmed in part and reversed in part, and case remanded. Markle
and Colvin, JJ., concur.
recited therein[.]”); see also OCGA § 9-11-4 (e) (7).
14
Willis v. Allstate Ins. Co., 321 Ga. App. 496, 498 (740 SE2d 413) (2013)
(quoting OCGA § 9-11-55 (a)).
15
See Moss v. Wilkie, 210 Ga. App. 688, 689 (2) (437 SE2d 367) (1993).
16
See OCGA §§ 18-2-77 (2014); 18-2-78 (2014).
7