SHADDER et al.
BARNES, P. J., MERCIER and BROWN, JJ.
Shadder and John Shadder ("the Shadders") appeal
from the trial court's order granting partial summary
judgment in favor of Heather Shadder's aunt, Naomi
Holland, in connection with real property she purchased for
the Shadders. On appeal, the Shadders contend that the trial
court erred by imposing a constructive trust on the property.
For the reasons explained below, we reverse.
appeal, we review the grant or denial of summary judgment de
novo, construing the evidence and all inferences in a light
most favorable to the nonmoving party." (Citation and
punctuation omitted.) LeCroy v. Bragg, 319 Ga.App.
884, 885 (1) (739 S.E.2d 1) (2013). The record evidence which
can be considered in support of the trial court's grant
of partial summary judgment in this case is limited to the
facts contained in Holland's verified complaint,
Shadders' responses to Holland's requests for
admission,  and admissions in judicio within other
pleadings filed by the Shadders. See Georgia-Pacific v.
Fields, 293 Ga. 499, 501 (1) (748 S.E.2d 407) (2013)
("admissions or allegations appearing in the pleadings
are treated as admission in judicio and, if not withdrawn,
are conclusive of the facts contained therein").
the record includes the Shadders' responses to
Holland's interrogatories, they are not verified and
cannot be considered in opposition to Holland's
motion. OCGA § 9-11-33 (a) (2) ("[e]ach
interrogatory shall be answered separately and fully in
writing under oath"); Lee v. CSX Transp., 233
Ga.App. 30, 31 (2) (503 S.E.2d 309) (1998) (plaintiff's
unverified interrogatory responses not considered to oppose
defendant's summary judgment motion). Similarly, we can
consider only the admissions in judicio within the
Shadders' answer, because their verification stated that
"facts contained" were "true and correct to
the best of [their] information, knowledge, and belief[,
]" rather than personal knowledge. See Sirdah v.
North Springs Assoc., 304 Ga.App. 348, 352 (3) (696
S.E.2d 391) (2010); Fletcher v. Hatcher, 278 Ga.App.
91, 93 (2) (628 S.E.2d 169) (2006).
alleges in her verified complaint that in 2013, she gave the
Shadders approximately $122, 000 to purchase property with an
address of 17 Hunters View. On August 27, 2013, the Shadders
obtained an unencumbered warranty deed for the Hunters View
property. In early 2017, "the Shadders again sought Ms.
Holland's assistance to purchase a larger home, which
they . . . need[ed] due to their growing family. Ms. Holland
again agreed to assist the Shadders, this time by providing
approximately $199, 900 to purchase the improved real
property located at 50 Ferguson Drive. . . ." Holland
gave the money to the Shadders for both properties based upon
"their representation . . . that they intended to live
in [them]." After moving from the Hunters View property
to the Ferguson property, the Shadders subsequently moved out
of the Ferguson property and back into the Hunters View
their response to Holland's request for admission, the
Shadders admitted the following facts: both properties were
"given" to them "so that [their] family could
reside there;" that they have listed both the Hunters
View and Ferguson properties for sale with the intention of
buying another property in which to live; that they have no
intention to return any of the purchase money for the Hunters
View and Ferguson properties to Holland; and that they have
received a benefit from the properties. The Shadders have
refused to comply with Holland's "demand[ to]
quit-claim the Ferguson [p]roperty to her so that she [can]
recoup her investment in that [p]roperty" or return the
funds used to purchase it.
complaint, as amended, asserted theories of recovery against
the Shadders based upon money had and received (Counts 1 and
3), unjust enrichment (Counts 2 and 4), bad faith attorney
fees (Count 5), and constructive trust (Counts 6 and 7).
After conducting only limited written discovery, Holland
moved for partial summary judgment in her favor on her claims
for money had and received, unjust enrichment, and imposition
of a trust under OCGA § 44-5-87. Although the trial
court heard oral argument on the motion, a transcript of this
hearing does not appear in the record before us.
the hearing, the trial court entered an order granting the
motion for partial summary judgment. The only legal
analysis employed by the trial court to reach this
"A constructive trust is a trust implied whenever the
circumstances are such that the person holding legal title to
the property, either from fraud or otherwise, cannot enjoy
the beneficial interest in the property without violating
some established principle of equity." OCGA §
53-12-132 (a). It is undisputed [that] Plaintiff purchased
the Ferguson Property for Defendants as a gift, and that the
purpose of the gift was so that the Defendants could live in
the Ferguson Property. However, Georgia law is clear that
"[i]f a gift is made for a specific purpose which is . .
. expressed . . . and the purpose . . . from some other cause
fails or cannot be accomplished, the donee shall hold the
object of the gift as trustee for the donor or [her] next of
kin." OCGA § 44-5-87. It is undisputed [that] the
Ferguson Property was given to Defendants so that they could
live there. It is further undisputed Defendants do not live
in the Ferguson Property. Accordingly, the Court concludes -
as a matter of law - that the gift has failed of its purpose,
within the meaning of . . . 44-5-87, and therefore Defendants
hold title to the Ferguson Property in trust for Plaintiff.
finding that the Shadders hold title in trust for Holland,
the trial court then ordered the Shadders to convey fee
simple title to the Ferguson property to Holland.
appeal, the Shadders contend that the trial court erred by
failing to conclude that issues of fact preclude the
imposition of a constructive trust in this case. We agree.
The record in this case is too sparse and inadequate to apply
the doctrine embodied in OCGA § 44-5-87 in favor of
Holland as a matter of law. This Code section provides:
If a gift is made for a specific purpose which is either
expressed or is secretly understood and the purpose is
illegal or from some other cause fails or cannot be
accomplished, the donee shall hold the object of the gift as
trustee for the donor or his next of kin.
Although there is a dearth of existing case law in Georgia
interpreting this Code section, a treatise explains that
"[w]hether a gift is conditional . . . is a question of
the donor's intent, to be determined from any express
declaration by the donor at the time of the making of the
gift or from the circumstances." 38 Am. Jur2d, Gifts,
§ 67. See also In re Stoltz, 283 BR 842, 844
(D. Md. 2002). Additionally, "the mere fact that the
donee fails to do what the donor hopes and expects of the
donee does not warrant the revocation of a completed
gift." 38 Am. Jur2d, Gifts, § 67. Based upon the
particular facts and circumstances of this case and the
present state of the record, we cannot say as a ...