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Lewis v. Ikner

Court of Appeals of Georgia, Second Division

March 1, 2019


          MILLER, P. J., BROWN and GOSS, JJ.


         Carolyn Ann Lewis, the plaintiff in this action to collect on a promissory note, appeals from the trial court's grant of partial summary judgment to her son, Paul Ikner, based on its finding that the note failed for want of consideration. We affirm because we agree with this finding.

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. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) L.D.F. Family Farm, Inc. v. Charterbank, 326 Ga.App. 361, 361 (756 S.E.2d 593) (2014).

         So viewed, the evidence shows that in April 2012, Lewis and her husband gave Ikner approximately $80, 000 to use as a down payment on a house, with Lewis personally giving $27, 457.39. For purposes of the mortgage and taxes, Lewis and her husband each signed gift letters indicating that they were making a gift. The gift letters stated that there were no terms or conditions associated with the gift, and the gift was "given freely with the understanding that [Ikner] has no obligation to pay it back either in money, in future services or otherwise."[1] Ikner also signed the letters. Lewis and her husband filed gift tax returns with the IRS and paid taxes on the money given. Lewis also contributed approximately $6, 600 toward termite repairs around the time Ikner closed on the house in May 2012.

         Lewis and Ikner both expected that Lewis and her husband would live in the house with Ikner following the purchase. Lewis expected that she would be added to the mortgage and the deed, but when the mortgage company refused to allow her to be added to the mortgage, she insisted that her name be added to the deed after the closing. After the closing, Lewis moved in with Ikner, but her husband did not, and she and her husband eventually separated. Due to a clause in the mortgage documents, Ikner was not able to add Lewis to the deed without accelerating the debt and making the mortgage due in full immediately.

         On December 17, 2013, about 19 months after the closing and 20 months after the gift letters, Ikner signed a promissory note in which he promised to pay Lewis $100, 000 "payable on demand." The note stated:

This promissory note is supported by good and valuable consideration in that my mother, extended to me, sufficient money, to make a handsome down payment, and certain alterations to my home place . . . . Additionally, simultaneously, I have prepared a Last Will and Testament, which shall make reference to this obligation, and is proof certain that in the event of my death, prior to the death of my mother, I have a true obligation to my mother on and above any obligation to my children, or any other person . . . . As referenced in the note, Ikner also signed a will leaving Lewis $100, 000 if the debt remained outstanding upon his death. Shortly thereafter, Ikner changed the locks on the doors and did not allow Lewis to return to the house.

         In 2016, Lewis sent Ikner a demand letter, seeking payment on the note within 30 days as well as the return of her personal property still in the house. In response to the list of items Lewis sought, Ikner handwrote the following note: "I'm working to get the house ready for sale. I would like to work to get the money as soon as I can. If I can have a extension on this matter til Sept. 1[, ] 2017 . . . If I cann't [sic] sale by this time. I will take whatever loans out to pay what is owed." When Ikner did not pay Lewis, Lewis filed the underlying suit against him to collect on the note.[2]

         Ikner testified in his deposition that the money Lewis gave him for the down payment and the termite repairs was a gift, and while he did not believe he had any obligation to repay Lewis, he signed the note intending she would get money from the sale of the house from his estate after he died.

         Lewis testified in her deposition that the money she put toward the house was an "investment," allowing her to live with Ikner and be named on the mortgage and the deed, and she and Ikner "understood" his obligations under this arrangement or agreement from the time she expended the money. Lewis claimed that Ikner signed the promissory note because she and Ikner had "an understanding all along" that the money she put toward the house belonged to her. However, as illustrated by the following exchange, Lewis admitted that she and Ikner never discussed this understanding and the money was "considered a gift":

Q: . . . Is it your testimony today that there was, in fact, a term and condition connected to the gift and that was that [Ikner] put your name on the deed?
A: I'm saying that all the money that has been transferred to him probably everything that I've ever given him has been considered a gift. He has never even mentioned the fact, and neither have I, that he owed me. Never. I was so concerned that the promissory note was written because I was afraid I would be out of a house with him dead and that ...

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