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Shoenthal v. Dekalb County

Court of Appeals of Georgia, Fourth Division

September 28, 2017

SHOENTHAL et al.
v.
DEKALB COUNTY SE-040 EMPLOYEES RETIREMENT SYSTEM PENSION BOARD et al.

          DILLARD, C. J., RAY, P. J., and SELF, J.

          Self, Judge.

         In the third appearance of this case before this Court, [1] Rachel and Rebecca Shoenthal (collectively "Plaintiffs"), daughters of the late Judge Elliott Shoenthal, contend that the trial court erred in awarding attorney fees to the DeKalb County Employees Retirement System Pension Board ("the Board") pursuant to OCGA § 9-15-14. We agree and reverse.

         The underlying facts as set out in Shoenthal v. Shoenthal, 337 Ga.App. 515 (788 S.E.2d 116) (2016) (hereinafter "Shoenthal II") are:

On October 25, 2013, about a month before his scheduled surgery, Judge Shoenthal changed the beneficiaries on employer-provided life insurance policies by reducing [his wife Fran's] share of the benefit from 100 percent to 50 percent and designating that each of the Plaintiffs receive 25 percent of the benefit. On the morning of November 18, 2013, Judge Shoenthal e-mailed the clerk of the Board, inquiring about changing the beneficiaries on his pension plan. Specifically, Judge Shoenthal asked, "[w]hat happens to my pension if I die - does it go to my wife? Can I split it between my wife and my children? Second, if I'm able to split it, what do I need to do to modify the beneficiary?" The clerk responded on November 20, 2013, informing Judge Shoenthal that he could change designated beneficiaries by completing a form available on a county website. Judge Shoenthal replied that he would complete a new beneficiary form.
That same month, Judge Shoenthal told his sister that he had revised his will to reflect his "intention to leave everything to [Plaintiffs] and little to nothing to Fran." At a November 23 lunch, Judge Shoenthal told his sister that he was in the process of changing the beneficiary designation for his pension. On November 25, 2013, Judge Shoenthal completed and signed the change-of-beneficiary form, designating the Plaintiffs as the sole beneficiaries. Judge Shoenthal also handwrote, "I want each of my children to receive 50% of my pension." Attached to the change-of-beneficiary form was a Post-It note containing the Board's address. Judge Shoenthal placed the form on or in his desk. Over the next two days, Judge Shoenthal worked in his office and handled repairs to his car.
Judge Shoenthal had surgery on November 27, was released from the hospital the next day, and died from an embolism on December 1, 2013. Judge Shoenthal never mailed or delivered the change-of-beneficiary form.
Around the time Judge Shoenthal was released from the hospital, Fran discovered that he had changed or intended to change the beneficiaries on his pension plan. About a week after Judge Shoenthal's death, Fran submitted an application to receive Judge Shoenthal's pension benefits. Later that month, the change-of-beneficiary form was found on or in Judge Shoenthal's desk, and Fran was told about it. On January 1, 2014, the Board began sending monthly pension payments to Fran. A few days later, one of the Plaintiffs hand-delivered the signed change-of-beneficiary form to the Board and requested that it be honored. The Board informed Plaintiffs that it would not recognize the change-of-beneficiary form, but did not provide a reason.

Id. at 516-517. Plaintiffs subsequently sued the Board and their mother, Fran,

alleging that the Board wrongfully disbursed and Fran improperly claimed their deceased father's entire pension benefits when their father had designated that benefits be paid to them. The trial court granted the Board's and Fran's motions for judgment on the pleadings on the ground that Judge Shoenthal did not provide notice to the Board of a change in beneficiaries.

Id. at 516.

         We affirmed the trial court, finding that "Judge Shoenthal did not provide written notice to the Board as required by [Section 908 of the] Pension Code, [2] and thus did not effectuate the change in beneficiaries upon which Plaintiffs' claims rest." Id. at 516. The trial court then granted the Board's motion for attorney fees under OCGA § 9-15-14 (a) and (b), on the ground that Plaintiffs' claims against the Board "suffer from a complete absence of any justiciable issue of law or fact" and that "Plaintiffs lacked substantial justification for bringing this action against [the Board], in that their positions and claims against [the Board] are substantially frivolous and substantially groundless." In awarding $71, 318.71 in fees, [3] the trial court noted that

[t]here is simply no reasonable interpretation of Section 908 of the Pension Code that could conceivably support Plaintiff's contention that the Pension Board received the requisite written notice that they, and not Defendant Fran Shoenthal, are ...

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