JESSIE TUGGLE v. AMERIS BANK AS SUCCESSOR OF HAMILTON STATE BANK ( 2022 )

THIRD DIVISION
DOYLE, P. J.,
REESE, J., and SENIOR APPELLATE JUDGE PHIPPS
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
April 6, 2022
In the Court of Appeals of Georgia
A22A0256. TUGGLE et al. v. AMERIS BANK.
PHIPPS, Senior Appellate Judge.
In this action to set aside fraudulent transfers, defendants Jessie Tuggle and his
wife DuJuan Tuggle appeal from the trial court’s order denying their motion for
summary judgment and granting summary judgment to plaintiff Ameris Bank, as
successor of Hamilton State Bank (“HSB”). The Tuggles challenge several of the trial
court’s rulings under Georgia’s Uniform Fraudulent Transfers Act (“UFTA” or the
“Act”), OCGA § 18-2-70 et seq. (2014).1 They also argue that the trial court erred
1
Because the transfers at issue here occurred in 2014, they are governed by the
UFTA. See OCGA § 18-2-70 et seq. (2014). The UFTA was superseded by Ga. L.
2015, pp. 996, 1019-1027, 1029, §§ 4A-1, 7-1, effective July 1, 2015, and is now
known as the Uniform Voidable Transactions Act. See OCGA § 18-2-70 et seq.
(2021); Ga. Commercial Stores v. Forsman, 342 Ga. App. 542, 542, n. 1 (803 SE2d
805) (2017). Unless otherwise noted, all Georgia statutes cited in this opinion are the
ones in effect in 2014.
when it (a) rejected their claims that OCGA § 9-12-93 and the doctrine of laches bar
Ameris’s action and (b) awarded attorney fees to Ameris under OCGA § 13-6-11. For
the reasons that follow, we reverse the OCGA § 13-6-11 attorney fee award but
otherwise affirm the trial court’s rulings.
The record shows that, in February 2012, Hammer Investments LLC executed
a renewal promissory note in favor of Douglas County Bank (“DCB”) in the amount
of $464,138.94. At that time, Jessie — Hammer Investments’s sole member —
executed a guaranty of the indebtedness on the note in favor of DCB. As security for
the indebtedness, Hammer Investments granted DCB security interests in parcels of
real property in Spalding and Fayette Counties. HSB acquired the promissory note in
2013. Hammer Investments and Jessie subsequently failed to make payments as
required under the promissory note, and, in April 2014, HSB foreclosed on the
Spalding and Fayette County properties. In June 2016, HSB obtained a default
judgment totaling $149,019.43 against Jessie and Hammer Investments, representing
the remaining balance due on the promissory note following the foreclosure sales.
Ameris Bank subsequently acquired HSB. In the interim, on November 14, 2014,
Jessie executed quitclaim deeds transferring two parcels of real property in Johns
Creek to DuJuan for one dollar each and for “Love and Affection,” as “Deed[s] of
2
Gift.”2 The Tuggles estimated the two properties to be worth a total of more than $1
million at the time of the transfers.
The current action began in April 2019, when Ameris, as successor of HSB,
sued the Tuggles, seeking to set aside the transfers of the Johns Creek properties as
fraudulent under OCGA §§ 18-2-74 and 18-2-75. Ameris alleged, in relevant part,
that the purpose of the transfers was to place the properties beyond the reach of
Jessie’s creditors, including Ameris, which currently is owed more than $150,000
from the June 2016 default judgment. Ameris also sought attorney fees under OCGA
§ 13-6-11.
Following discovery, Ameris moved for summary judgment on its claims for
fraudulent conveyance under OCGA § 18-2-75 (a) and attorney fees under OCGA
§ 13-6-11. The Tuggles filed a cross-motion for summary judgment, presumably on
all claims against them, arguing that Jessie’s conveyances to DuJuan were valid and
2
Jessie later executed a corrective quitclaim deed again transferring one of the
Johns Creek properties to DuJuan in July 2015. The corrective deed identifies the
consideration as “One Dollar and other good and valuable consideration delivered to
Grantor by Grantees [sic] at and before the execution” of the deed. The Tuggles do
not contend that the “other good and valuable consideration” listed in the corrective
deed refers to any additional consideration for the property beyond that identified in
the initial deed. According to the Tuggles, the purpose of the corrective deed was “to
correct the names in the execution block of the original conveyance.”
3
binding and that any liens on the transferred properties were discharged four years
after the conveyances under OCGA § 9-12-93. In their opposition to Ameris’s
summary judgment motion, the Tuggles also contended that the doctrine of laches
barred Ameris’s claims.
The trial court granted summary judgment to Ameris and denied summary
judgment to the Tuggles. As to the fraudulent conveyance claims, the court concluded
that: (i) Jessie’s indebtedness to Ameris arose before he transferred the Johns Creek
properties; (ii) the transfers were not for “reasonably equivalent value”; and
(iii) Jessie became insolvent as a result of the transfers. See OCGA § 18-2-75 (a). The
court further rejected the Tuggles’ claims that Ameris was guilty of laches for failing
to levy on the Johns Creek properties earlier and that OCGA § 9-12-93 barred
Ameris’s suit. Finally, the court granted Ameris’s request for OCGA § 13-6-11
attorney fees after finding that the Tuggles acted in bad faith by fraudulently
transferring the properties. This appeal followed.
1. The Tuggles first challenge the grant of summary judgment to Ameris,
contending that the trial court erred when it (a) ruled that Jessie did not receive
reasonably equivalent value when he transferred the Johns Creek properties,
(b) determined that Jessie was insolvent following the transfers, and (c) awarded
4
OCGA § 13-6-11 attorney fees to Ameris. We agree that the trial court erred by
awarding attorney fees in this case but otherwise reject the Tuggles’ claims.
We review de novo a grant or denial of summary judgment, viewing the
evidence and all reasonable conclusions and inferences drawn from it in the light
most favorable to the nonmovants. City of St. Marys v. Reed, 346 Ga. App. 508, 508-
509 (816 SE2d 471) (2018). Summary judgment is proper when there is no genuine
issue of material fact and the movant is entitled to judgment as a matter of law. Id. at
508; see OCGA § 9-11-56 (c). “[T]he burden on the moving party may be discharged
by pointing out by reference to the affidavits, depositions and other documents in the
record that there is an absence of evidence to support the nonmoving party’s case.”
Ellison v. Burger King Corp., 294 Ga. App. 814, 819 (3) (a) (670 SE2d 469) (2008)
(citation and punctuation omitted); see OCGA § 9-11-56 (c). If the movant meets this
burden, the nonmovants “cannot rest on [their] pleadings, but rather must point to
specific evidence giving rise to a triable issue.” Ellison, 294 Ga. App. at 819 (3) (a)
(citation and punctuation omitted); see OCGA § 9-11-56 (e).
(a) At the time the transfers at issue here were made, fraudulent transfers under
Georgia’s UFTA “were broadly separated into two classifications: actual fraud and
constructive fraud.” Agricommodities, Inc. v. Moore, 359 Ga. App. 1, 2-3 (1) (854
5
SE2d 781) (2021) (citations and punctuation omitted). The Code section for
constructive fraud, OCGA § 18-2-75 (a) — the statute primarily at issue here —
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
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.
Thus, while a creditor proceeding under OCGA § 18-2-75 (a) need not show an actual
intent to defraud, “the creditor must show that the debtor did not receive ‘reasonably
equivalent value’ for the exchange.” Agricommodities, Inc., 359 Ga. App. at 3 (1). In
that regard, the UFTA provided that “[v]alue is given for a transfer or an obligation
if, in exchange for the transfer or obligation, property is transferred or an antecedent
debt is secured or satisfied . . . .” OCGA § 18-2-73 (a). The Act defined “property”
as “anything that may be the subject of ownership.” OCGA § 18-2-71 (10).
(i) The Tuggles first maintain that Ameris cannot satisfy the elements of this
claim because the transfers of the Johns Creek properties “were made for Love and
Affection,” which, they claim, constitutes “valuable consideration.” They also assert
6
that the conveyances were predicated, in part, on cognitive impairments experienced
by Jessie.
The UFTA is modeled on the Uniform Fraudulent Transfer Act
promulgated by the National Conference of Commissioners on Uniform
State Laws and adopted in various forms by 43 states and the District of
Columbia. For this reason, and in light of the dearth of Georgia
decisions construing the provisions of the Georgia UFTA, we look to the
decisions of other jurisdictions for guidance.
Truelove v. Buckley, 318 Ga. App. 207, 209 (1) (733 SE2d 499) (2012) (citations and
punctuation omitted).
We first note that the question presented here is not — as the Tuggles suggest
— whether “love and affection” may constitute “valuable consideration” under the
UFTA. Rather, the question is whether “love and affection” may constitute
“reasonably equivalent value” for the property exchanged. See OCGA § 18-2-75 (a).
The parties have not cited, and research has not revealed, any Georgia appellate
decisions addressing this question. Several decisions from other jurisdictions,
however, each have answered this question in the negative. See In re Marlar, 267 F3d
749, 752, 755-756 (II) (8th Cir. 2001) (applying Ark. Code Ann. § 4-59-205 (a)
(2001), part of the Arkansas Fraudulent Transfer Act, and concluding that “ten dollars
7
with love and affection” did not constitute “reasonably equivalent value” for the
transfer of more than 700 acres of farmland to the transferor’s son); Truist Bank v.
Farmer, No. 2:20-cv-00139, 2021 U.S. Dist. LEXIS 64484, at *3, 5 (II) (B), 9-10
(III) (B) (S.D. W. Va. Apr. 2, 2021) (concluding that, under the West Virginia UFTA,
“[l]ove and affection, while nice, d[id] not constitute reasonably equivalent value in
exchange for” two interests in real property valued at $90,750 each); In re Blair, 594
BR 712, 752 (V) (A) (7) (Bankr. D. Colo. 2018) (“love and affection” do not
constitute “reasonably equivalent value,” which “means some sort of economic
benefit,” under the Colorado UFTA); DWC3, Inc. v. Kissel, 246 N.C. App. 361 (784
SE2d 237), 2016 N.C. App. LEXIS 261, at *11 (II), n. 1, 13-16 (II) (2016) (“love and
affection” do not constitute “reasonably equivalent value” with respect to a transfer
of real property and other assets for purposes of the North Carolina UFTA); see also
In re Treadwell, 699 F2d 1050, 1051 & n. 1 (11th Cir. 1983) (holding that a debtor’s
transfer of $4,000 to his daughters for “love and affection” could be avoided under
the Bankruptcy Code’s fraudulent transfer provisions because the transfer was made
for “less than a reasonably equivalent value” under former 11 USC § 548 (a) (2) (A),
currently codified at 11 USC § 548 (a) (1) (B) (i), which is largely analogous to
8
OCGA § 18-2-75 (a))3; McPherson Oil Co. v. Massey, 643 S2d 595, 596-597 (Ala.
1994) (holding that a transfer of property to a family member for “love and
consideration” was fraudulent as to a creditor under Ala. Code 1975 § 8-9A-4, part
of the Alabama UFTA); see also generally SE Property Holdings v. Center, No. 15-
0033-WS-C, 2016 U.S. Dist. LEXIS 180248, at *21-30 (III) (D) (S.D. Ala. Dec. 30,
2016) (concluding that neither “emotional support” received from the transferees nor
benefits in the form of tax savings and improved asset management expected to be
realized by the debtor from the transfers of real property, interests in an LLC, and
stock shares constituted “reasonably equivalent value” under the Alabama UFTA).
The decisions cited above are in accord with the proposition that, because the
UFTA’s purpose is to protect creditors from the depletion of a debtor’s estate to the
prejudice of unsecured creditors, the adequacy of consideration for purposes of the
Act should be determined from the standpoint of the creditor, not the debtor. See
3
“Because UFTA’s definition of ‘value’ is based on . . . the Bankruptcy Code,
courts interpreting UFTA-based statutes consider analogous bankruptcy authority to
be instructive of the proper meaning and application of that term and the related
concept of reasonably equivalent value.” Janvey v. Golf Channel, 59 Tex. Sup. Ct.
J. 587 (II) (C) (I) (487 SW3d 560, 572) (2016); accord Schempp v. Lucre Mgmt.
Group, 18 P3d 762, 764 (I) (Colo. App. 2000) (because § 548 of the Bankruptcy
Code has similar language to, and the same purpose as, the UFTA, “interpretations
of § 548 are instructive” in UFTA cases).
9
Warfield v. Byron, 436 F3d 551, 557-558, 560 (III) (B) (5th Cir. 2006) (observing,
in a case applying the Washington UFTA, that “[t]he primary consideration in
analyzing the exchange of value for any transfer is the degree to which the
transferor’s net worth is preserved”); SE Property Holdings v. Braswell, 255
FSupp.3d 1187, 1198 (IV) (B) (S.D. Ala. 2017) (under the Alabama UFTA, “courts
must examine the nature and adequacy of the consideration from the standpoint of the
creditor, not that of the debtor or the transferee of the subject property”); accord In
re Marlar, 267 F3d at 756 (II) (“Reasonably equivalent value is a means of
determining if the debtor received a fair exchange in the market place for the goods
transferred.”) (citation and punctuation omitted; emphasis supplied); DWC3, Inc.,
2016 N.C. App. LEXIS 261, at *11-12 (II) & n. 1 (observing that, under the North
Carolina UFTA, “‘[v]alue’ is to be determined in light of the purpose of the [UFTA]
to protect a debtor’s estate from being depleted to the prejudice of the debtor’s
unsecured creditors”) (citation and punctuation omitted); Janvey v. Golf Channel, 59
Tex. Sup. Ct. J. 587 (487 SW3d 560, 564) (2016) (holding that the “reasonably
equivalent value” requirement under the Texas UFTA “can be satisfied with evidence
that the transferee (1) fully performed under a lawful, arm’s-length contract for fair
market value, (2) provided consideration that had objective value at the time of the
10
transaction, and (3) made the exchange in the ordinary course of the transferee’s
business”).4
We agree with the analyses in each of the above decisions and hold that
consideration of one dollar and love and affection in exchange for the Johns Creek
properties did not constitute “reasonably equivalent value” under OCGA § 18-2-75
(a). And while the Tuggles contend that the conveyances also were based on Jessie’s
“dementia and decline in cognitive functioning,” they neither elaborate any arguments
nor cite any authority supporting their suggestion that Jessie’s condition has any
bearing on the value determination under OCGA § 18-2-75 (a), much less that his
condition somehow renders the stated consideration objectively valuable to a creditor
or the marketplace. See Warfield, 436 F3d at 560 (III) (B); In re Marlar, 267 F3d at
756 (II); SE Property Holdings, 255 FSupp.3d at 1198-1199 (IV) (B); DWC3, Inc.,
2016 N.C. App. LEXIS 261, at *12 (II). We therefore deem any such claim
abandoned. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error that is
not supported in the brief by citation of authority or argument may be deemed
4
The Texas UFTA, unlike Georgia’s version of the Act, specifically defines
“reasonably equivalent value” as “includ[ing] without limitation, a transfer or
obligation that is within the range of values for which the transferor would have sold
the assets in an arm’s length transaction.” Tex. Bus. & Com. Code § 24.004 (d).
11
abandoned.”); Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d 106) (2014)
(“[A]n appellant must support enumerations of error with argument and citation of
authority, and mere conclusory statements are not the type of meaningful argument
contemplated by our rules.”) (citation and punctuation omitted); Karlsberg v. Hoover,
142 Ga. App. 590, 594 (236 SE2d 520) (1977) (“[A]n appellant is required in its
initial brief to file an argument which supports any enumerations of error it does not
wish to waive.”). Consequently, we affirm the trial court’s ruling that the transfers of
the Johns Creek properties were not for “reasonably equivalent value” under the
Georgia UFTA.
(ii) The Tuggles further contend that Ameris cannot satisfy OCGA § 18-2-75
(a) because Ameris’s claim against Jessie first arose in June 2016, when HSB
obtained a default judgment against him, well after he transferred the Johns Creek
properties in November 2014. We disagree.
For purposes of the UFTA, a “claim” is defined as “a right to payment, whether
or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.”
OCGA § 18-2-71 (3). Here, the Tuggles do not dispute that Ameris and/or its
predecessors-in-interest held a right to payments under the terms of the February
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2012 promissory note and that the obligation to make such payments extended to
Jessie no later than April 2014, when HSB foreclosed on the Spalding and Fayette
County properties. Consequently, their claim that “there was no antecedent debt at the
time of the [November 2014] transfer[s]” is unsupported by the record.5
(b) The Tuggles also challenge the trial court’s ruling that Jessie was insolvent
following the transfers of the Johns Creek properties. We again discern no error.
For purposes of Georgia’s UFTA, “[a] debtor is insolvent if the sum of the
debtor’s debts is greater than all of the debtor’s assets, at a fair valuation,” and “[a]
debtor who is generally not paying his or her debts as they become due is presumed
to be insolvent.” OCGA § 18-2-72 (a), (b); see Ga. Commercial Stores v. Forsman,
342 Ga. App. 542, 553 (2) (803 SE2d 805) (2017).
In his interrogatory responses, Jessie acknowledged that: (i) he had only one
asset to his name — his pension payments (the amounts of which he did not disclose)
— from November 14, 2014 (the date of the Johns Creek property transfers), through
5
Contrary to the Tuggles’ assertion in their reply brief, nothing in Truelove,
318 Ga. App. 207, reasonably may be read to stand for the proposition that “[t]he
term claim or obligation, in connection with [OCGA § 18-2-75 (a)], means a
judgment lien.” Rather, as stated above, the plain language of the UFTA defined
“claim” as, inter alia, “a right to payment, whether or not the right is reduced to
judgment.” OCGA § 18-2-71 (3) (emphasis supplied).
13
November 2018 (when he submitted his interrogatory responses); and (ii) he or an
entity in which he maintained an interest owed a past-due debt of $454,611.45 during
that same time period. While this record evidence is minimal, Jessie’s
acknowledgment of a past-due debt and lack of liquid assets was sufficient to
establish the presumption that, as of the date of the Johns Creek property transfers,
he was insolvent. See Ga. Commercial Stores, 342 Ga. App. at 548 (1), 553 (2)
(evidence that an entity was unable to repay all of its debts as they matured and that
its debts exceeded its assets was sufficient to show that the entity was insolvent).
Notably, the Tuggles made no argument to the contrary in their cursory opposition
to Ameris’s summary judgment motion, and, in their appellate briefs, they identify no
record evidence rebutting the statutory presumption of insolvency.6 Consequently,
6
Importantly, the Tuggles point to no record evidence suggesting that Jessie’s
pension payments — his only asset — are adequate to satisfy his nearly half-million-
dollar past-due debt. Moreover, their conclusory assertion in their Reply Brief that
they currently are jointly paying the mortgages on the Johns Creek properties finds
no support in the portions of the record they cite as a basis for that claim. Finally,
while the Tuggles correctly maintain that insolvency generally is a jury question, see,
e.g., Hadlock v. Anderson, 246 Ga. App. 291, 293 (1) (540 SE2d 282) (2000), it
remains amenable to summary judgment, just like any other question of fact. See
Rapp v. Escante, Inc., 304 Ga. App. 262, 263, 265-266 (1) (695 SE2d 744) (2010)
(concluding that “[t]he trial court did not err in deciding as a matter of law that [the
appellant] was insolvent when the property was transferred” and granting summary
judgment on that basis in a case brought under Georgia’s UFTA); also generally
OCGA § 9-11-56 (c).
14
they have not met their burden of establishing error in this regard, and we affirm the
trial court’s ruling on this issue. See generally Tolbert v. Toole, 296 Ga. 357, 363 (3)
(767 SE2d 24) (2014) (“It is [the appellant]’s burden, as the party challenging the
ruling below, to affirmatively show error from the record on appeal.”).
(c) The Tuggles further challenge the trial court’s ruling awarding OCGA § 13-
6-11 attorney fees to Ameris. We agree that the award is improper.
OCGA § 13-6-11 provides: “The expenses of litigation generally shall not be
allowed as a part of the damages; but where the plaintiff has specially pleaded and has
made prayer therefor and where the defendant has acted in bad faith, has been
stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the
jury may allow them.” (Emphasis supplied.)
[A]ttorney fees cannot be awarded by a trial court pursuant to OCGA
§ 13-6-11 at the summary-judgment stage of proceedings because the
very language of the statute prevents a trial court from ever determining
that a claimant is entitled to attorney fees as a matter of law. . . .
[B]ecause both the liability for and amount of attorney fees pursuant to
OCGA § 13-6-11 are solely for the jury’s determination, a trial court is
not authorized to grant summary judgment in favor of a claimant
therefor. And although a trial court is permitted to grant such fees when
it sits as a trier of fact, it is not a trier of fact on a motion for summary
15
judgment. Accordingly, the trial court here was without authority to
grant attorney fees pursuant to OCGA § 13-6-11 on summary judgment.
Sherman v. Dickey, 322 Ga. App. 228, 233-234 (2) (744 SE2d 408) (2013) (citations
and punctuation omitted). We therefore reverse the trial court’s award of OCGA § 13-
6-11 attorney fees.
2. The Tuggles also challenge the denial of their motion for summary
judgment, arguing that: (a) the trial court erred when it ruled that love and affection
do not constitute sufficient consideration under the UFTA; (b) when making that
determination, the trial court erred by failing to consider a psychologist’s affidavit the
Tuggles submitted in support of their claims; and (c) the court also erred when it
rejected the Tuggles’ contentions that Ameris’s claims are barred by OCGA § 9-12-
93 and by laches. The Tuggles have not shown reversible error on any of these
claims.
(a) Our ruling in Division 1 (a) disposes of the Tuggles’ contention that love
and affection may constitute sufficient consideration for purposes of the UFTA.
(b) In support of their motion for summary judgment, the Tuggles submitted
an affidavit by a licensed clinical psychologist, who attested that Jessie suffers from
significant cognitive problems and psychological issues, including dementia,
16
executive dysfunctioning, memory disturbance, and mild visual motor disturbance.
On that basis, the psychologist determined that all of Jessie’s important business or
financial decisions should be made with his wife or a financial advisor.
The Tuggles contend that the trial court erred by failing to consider the
psychologist’s affidavit when it denied their motion for summary judgment. However,
the Tuggles do not explain — much less cite any legal authority shedding any light
on — how the psychologist’s opinions bear any relevance to the trial court’s
determination that Jessie did not receive “reasonably equivalent value” when he
transferred the Johns Creek properties to DuJuan. We therefore deem this issue
abandoned.7 See Court of Appeals Rule 25 (c) (2); Brittain, 329 Ga. App. at 704 (4)
(a); Karlsberg, 142 Ga. App. at 594.
(c) (i) The Tuggles contend that Ameris’s fraudulent transfer claim is barred
by OCGA § 9-12-93. That statute provides, in relevant part:
When any person has bona fide and for a valuable consideration
purchased real or personal property and has been in the possession of
the real property for four years or of the personal property for two years,
7
Neither of the two appellate decisions the Tuggles cite in support of this
enumeration of error address the UFTA or the concept of “reasonably equivalent
value.” See generally Jones v. Gordon, 182 Ga. App. 29 (354 SE2d 658) (1987);
Nelson v. M & M Products Co., 168 Ga. App. 280 (308 SE2d 607) (1983).
17
such property shall be discharged from the lien of any judgment against
the person from whom it was purchased or against any predecessor in
title of real or personal property.
OCGA § 9-12-93 (emphasis supplied). The Tuggles contend that any lien on the
Johns Creek properties resulting from the June 2016 default judgment against Jessie
has been discharged because DuJuan has been in possession of the properties for
more than four years.
It is undisputed, however, that the conveyances of the Johns Creek properties
to DuJuan were gifts. As a result, DuJuan is not a “purchaser” under the statute,
which therefore has no application here. See generally Huggins v. Powell, 315 Ga.
App. 599, 605-606 (3) (726 SE2d 730) (2012) (observing that “[a] purchaser seeking
the benefit and protection of [OCGA § 9-12-93] must prove three things: (1) that he
acted in good faith; (2) that he paid a valuable consideration; and (3), in cases
involving realty, that he has been in possession for four years,” and that “[t]he burden
of proof is placed upon the purchaser to prove good faith”) (citation and punctuation
omitted; emphases supplied).
Regardless, it also is undisputed that both Johns Creek properties are subject
to mortgages. And the four-year period in OCGA § 9-12-93 does not begin to run
18
while the property at issue is encumbered. See Cohutta Mills, Inc. v. Hawthorne
Indus., 179 Ga. App. 815, 818 (2) (348 SE2d 91) (1986). Consequently, the Tuggles
have not shown that OCGA § 9-12-93 bars Ameris’s suit, and we affirm the trial
court’s ruling that it does not.
(ii) Finally, the Tuggles contend that Ameris’s claims against them are barred
by the doctrine of laches. Once again, however, they do not cite any legal authority
in support of this claim, which we deem abandoned. See Court of Appeals Rule 25
(c) (2); Brittain, 329 Ga. App. at 704 (4) (a); Karlsberg, 142 Ga. App. at 594. We
therefore similarly affirm the trial court’s ruling on laches.
Judgment affirmed in part and reversed in part. Doyle, P. J., and Reese, J.,
concur.
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