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Thompson v. Lovett

Court of Appeals of Georgia

July 15, 2014

THOMPSON
v.
LOVETT

Reconsideration denied July 29, 2014.

Page 247

Note. Walton Superior Court. Before Judge Benton.

Stuart J. Oberman, Michelle L. Wein, for appellant.

Jones & Duff, Don M. Jones, for appellee.

BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.

OPINION

Page 248

Branch, Judge.

Russell Eric Thompson appeals entry of summary judgment against him in a suit on a note. We hold that the trial court erred in concluding that the Statute of Frauds and the statutory requirement of unanimous action by personal representatives of an estate bar Thompson's defenses, and we therefore reverse.

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. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 S.E.2d 564) (2003).

Construed in favor of Thompson, the record shows that, on February 15, 2003, Thompson purchased his father's residential property in Loganville. The transaction is evidenced by a warranty deed, a $250,000 promissory note, and a related deed to secure [328 Ga.App. 574] debt/security agreement. The promissory note provides that, beginning on March 15, 2003, Thompson would pay his father 107 monthly installments of interest in the amount of $833.33, followed by a balloon payment of $250,833.33 on February 15, 2012. Since the purchase, Thompson has resided at the property, maintained it, and paid the insurance and taxes. Thompson's sister, Carrie Laann Thompson Lovett, owns and resides on the adjoining property along with her children.

Thompson's father died on March 12, 2004.[1] Pursuant to his will, Thompson and Lovett were named as co-executors, and they were each devised the remainder (i.e., all property other than personal effects and certain itemized property not relevant to this case) of their father's estate " equally, share-and-share alike, in fee simple, per stirpes." Shortly after their father's death, according to Thompson, the parties entered into an oral agreement that Thompson described as follows:

Ms. Lovett and I agreed that instead of making monthly mortgage payments under the Promissory Note to my father's Estate, for which we were co-executors, we would wait until Ms. Lovett's children had grown up and moved out of her home, and then sell the Property ... . Ms. ...

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