ELLINGTON, P. J., BETHEL and GOBEIL, JJ.
ELLINGTON, PRESIDING JUDGE.
Copeland appeals from the order of the Superior Court of Tift
County granting Elizabeth Miller's motion to dismiss his
complaint for failure to state a claim upon which relief can
be granted. Copeland contends that the trial court erred in
granting Miller's motion to dismiss because his complaint
stated claims recognized under Georgia law. He also contends
the trial court erred by acting as the trier of fact on the
motion to dismiss and in finding that he was not entitled to
recover under the verified facts alleged in the complaint.
For the reasons explained below, we affirm.
Copeland contends that his complaint stated causes of action
for fraud, interference with the expectation of a gift or
inheritance, and constructive trust and, therefore, that the
trial court erred in granting Miller's motion to dismiss.
A motion to dismiss for failure to state a claim upon which
relief can be granted should not be sustained unless (1) the
allegations of the complaint disclose with certainty that the
claimant would not be entitled to relief under any state of
provable facts asserted in support thereof; and (2) the
movant establishes that the claimant could not possibly
introduce evidence within the framework of the complaint
sufficient to warrant a grant of the relief sought. In
deciding a motion to dismiss, all pleadings are to be
construed most favorably to the party who filed them, and all
doubts regarding such pleadings must be resolved in the
filing party's favor.
(Citation and punctuation omitted.) Stendahl v. Cobb
County, 284 Ga. 525 (1) (668 S.E.2d 723) (2008).
"In ruling on a motion to dismiss, the trial court must
accept as true all well-pled material allegations in the
complaint and must resolve any doubts in favor of the
plaintiff." (Citation, punctuation, and footnote
omitted.) Wright v. Waterberg Big Game Hunting Lodge
Otjahewita (PTY), Ltd., 330 Ga.App. 508, 509 (767 S.E.2d
in this light, Copeland's complaint alleges the following
facts. Copeland filed the instant action for injunctive
relief and damages against Miller after his brother Carlton
Bruce Copeland ("the decedent") died. In his
verified complaint, Copeland prayed for an injunction
prohibiting Miller's use and sale of certain of the
decedent's real and personal property and for
compensatory and punitive damages. Copeland amended his
complaint to also pray that the Court impose a resulting or
constructive trust over any and all property fraudulently
placed in the name of Miller.
alleged that, in April and May 2011, the decedent was
hospitalized for approximately four weeks. Copeland alleged
that the decedent and Miller defrauded Emory University
Medical Center and others by deeding certain of the
decedent's real estate to Miller. Copeland contends that,
although the deeds were "not executed, delivered,
witnessed or notarized with the proper formalities required
by law," Miller nonetheless transferred the properties
to a limited liability corporation she created. Although not
included in his prayer for relief, Copeland asked that the
May 2011 deeds be set aside.
further alleged that Miller and the decedent claimed to be
married at common law and "conspired to and did
fabricate, falsify and create a fake divorce when they were
never married." Pursuant to the divorce settlement, the
2012 divorce decree purported to convey to Miller the same
real property as purportedly conveyed to Miller in the May
2011 deeds. Also not included in his prayer for relief,
Copeland asked that the 2012 divorce decree be set aside.
Copeland alleged that Miller submitted a will to probate that
was executed by the decedent in 2013 that did not reflect the
wishes and desires of the decedent, but those of Miller.
Instead, he contends that the decedent executed a will in
2001 that continues to be the valid will. This will left only
the decedent's house and two acres of land to Miller. The
remainder of the decedent's farm land and real estate was
bequeathed to his four nieces and nephews. Copeland further
contends that absent a valid will, he is an heir-at-law of
the decedent. Additionally, he alleged that he has filed a
caveat to the 2013 will in the probate court.
Miller's motion to dismiss, she concentrated her argument
on Copeland's attack on the 2012 divorce decree. She
argues that the complaint failed either as a new action in
equity or as a motion to set aside under OCGA § 9-11-60.
The trial court, in a summary order, granted the motion to
contends that his complaint states a cause for fraud,
specifically based on the May 2011 deeds, the April 2012
divorce decree, and the 2013 will. First, to the extent
Copeland's claim for fraud is based on the May 2011
deeds, his complaint specifies that the deeds were not even
executed. Because such deeds are unenforceable on their face,
would be impossible for him to prove that he justifiably
relied on them.
to the extent his fraud claim is based on the
"sham" marriage and the 2012 divorce decree, this
action fails and the trial court properly granted the motion
to dismiss because a fraud claim based on that decree was
time barred. In Georgia, the statute of limitation for fraud
claims is four years. See OCGA § 9-3-31; Hamburger
v. PFM Capital Mgmt., Inc., 286 Ga.App. 382 (649 S.E.2d
779) (2007). Additionally, the statute of limitation to set
aside a judgment based on fraud is three years under OCGA
§ 9-11-60. Thus, even if Copeland had the standing to
ask for the 2012 divorce decree to be set aside, both
Georgia's general fraud statute of limitation and the
statute of limitation to set aside a judgment based on fraud
had run before he filed the complaint on September 22,
Copeland argues on appeal that Georgia law provides for
tolling of the statute of limitation in circumstances
involving fraud, citing OCGA § 9-36-96, his complaint
failed to allege facts that would permit the tolling of the
statute of limitation. Consequently, even if Copeland were able