Bagwell v. Trammel

In the Supreme Court of Georgia

Decided: October 5, 2015

S15A0820. BAGWELL v. TRAMMEL et al.

THOMPSON, Chief Justice.

Following a bench trial in this action arising out of a joint venture contract

between appellant Thomas Bagwell and appellees Bobby and Oretta Trammel

(the “Trammels”), the trial court denied Bagwell’s claim for specific

performance of the contract but granted his claims for an equitable partition of

real property jointly owned by the parties and dissolution of the joint venture.

Bagwell challenges the trial court’s final order on several grounds, and for the

reasons that follow, we affirm.

The record shows that in January 2000, Bagwell and the Trammels entered

into a Joint Venture Agreement (the “Agreement”), which created an entity

known as Etowah Ventures. As part of the Agreement, Bagwell agreed to

cancel notes to him that were owed or guaranteed by the Trammels and valued

in excess of $1,875,000. In exchange, the Trammels conveyed to Bagwell a
one-half undivided interest in approximately 103 acres of real estate to be held

as joint tenants in common. The Agreement further provided that legal title to

the joint venture property would be held by either or both of the Trammels in

trust for the benefit of Etowah Ventures and that upon the sale of the joint

venture property, Bagwell would be entitled to be paid the original principal

amounts of the cancelled notes, as well as the interest that already had accrued

and interest that would have accrued under the cancelled notes. Any additional

proceeds were to be evenly divided between Bagwell and the Trammels.

By August 2002, none of the joint venture property had been sold and the

Trammels were in need of additional monies, so the parties entered into a second

contract (the “Redemption Agreement”) which amended the original Agreement.

Pursuant to the terms of the Redemption Agreement, Bagwell agreed to advance

$600,000 to the Trammels against their share of future sales proceeds from the

sale of joint venture property and a new formula (the “Redemption Formula”)

was established for the redemption of Etowah Ventures which enhanced

Bagwell’s equity position by entitling him to a greater percentage of future sales

proceeds.

By August 2004, approximately 73.6 acres of the joint venture property

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had been sold and the Redemption Formula had been applied to distribute the

proceeds from those sales, leaving unsold approximately 29 acres of joint

venture property. On September 1, 2004, however, the Trammels transferred the

remaining 29 acres by warranty deed to their sons. Bagwell discovered the

transfer and immediately filed a title affidavit to dispute the validity of the

transfer. Six years later, while still negotiating with the Trammels’ sons to

reconvey the property for the benefit of Etowah Ventures, Bagwell filed the

complaint in this action seeking, inter alia, a declaratory judgment, cancellation

of the deed, a constructive trust, dissolution of the joint venture under OCGA

§ 14-8-32 (a) (3)-(5) of the Georgia Uniform Partnership Act, see OCGA § 14-

8-1 et seq., and an accounting under OCGA § 14-18-22 (4) consistent with the

Redemption Formula.

In May 2013, the Trammels’ sons agreed to quitclaim the property back

to their parents. Bagwell thereafter filed several amendments to his complaint

reflecting the transfer of the property back to the Trammels to be held for the

benefit of Etowah Ventures, eliminating those counts that had factually relied

on the transfer of the property, and adding claims for an equitable dissolution

and accounting of Etowah Ventures under OCGA § 23-2-70 (5) and according

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to the terms of the Redemption Agreement, an equitable partitioning, OCGA §

44-6-140, and specific performance of the Redemption Agreement, see OCGA

§ 23-2-130.

After a three-day bench trial, the trial court entered a final judgment (1)

granting Bagwell’s requests for an equitable accounting and equitable

partitioning and providing for the equitable dissolution of Etowah Ventures and

(2) directing that upon the sale of the joint venture property, the Trammels,

collectively, and Bagwell would each be entitled to one-half of the net sales

proceeds.1 In granting this relief, the trial court specifically held that the

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The trial court entered a contemporaneous order appointing a receiver to carry out
the equitable accounting and partitioning, charging the receiver with

overseeing the sale of the property [the “Joint Venture Property]’ obtaining an
appraisal of the property if necessary, obtaining a survey of the property if
necessary, and ensuring that the property is partitioned and sold within a
reasonable period of time and at the highest price available in the market.

Upon the sale of the property, the Trammels are, collectively, entitled to fifty
(50) percent of the net sales proceeds and Bagwell is entitled to fifty (50)
percent of the net sales proceeds as an equitable accounting and partitioning
of the dissolved joint venture.

See Waycross Military Ass’n v. Hiers, 209 Ga. 812, 813-814 (4) (76 SE2d 486) (1953)
(holding that equitable partition may be accomplished through and by receivership). The trial
court previously had granted summary judgment in favor of the Trammels on Bagwell’s
claims seeking dissolution of the joint venture under OCGA § 14-8-32 of the Georgia
Uniform Partnership Act, an accounting under OCGA § 14-8-22 (4), and a constructive trust.
Bagwell’s remaining claims were either dismissed by him or rendered moot by the

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Agreement operated as a valid deed under OCGA § 44-5-30 and that the

Redemption Formula found in the Redemption Agreement and giving Bagwell

an enhanced equity position did not govern the trial court’s grant of equitable

relief in this case. This appeal followed.

1. Bagwell in several enumerations of error argues that the trial court

erred by denying his claim for specific performance of the Redemption

Agreement insofar as it applied to the remaining 29 acres of joint venture

property.

The record reflects the trial court’s holding that Bagwell was not entitled

to the equitable remedy of specific performance because what he was actually

seeking in his complaint was to recover his interest in the value of the remaining

29 acres, and therefore, monetary damages available through the filing of a

contract claim would have provided him with adequate compensation. Bagwell

challenges the trial court’s rulings regarding the availability and adequacy of

legal damages on numerous grounds. We need not address these grounds,

however, because our review of the record demonstrates an alternate basis for

the trial court’s determination that Bagwell failed to show his entitlement to the

reconveyance of the 29 acres.

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extraordinary remedy of specific performance.

As a general rule, a party to a contract may seek specific performance of

a contract upon a showing that damages recoverable at law would not constitute

adequate compensation for another parties’ nonperformance. See OCGA § 23-

2-130. The contract for which specific performance was sought in this case was

the Redemption Agreement, a contract entered into for the purpose of

“conclusively establishing their respective interests in [Etowah Ventures] by

mutually adopting a formula and program of redemption which settles any and

all issues between the parties and provides for a self[-]effectuating dissolution”

of [Etowah Ventures] upon the sale of all of the joint venture property. The

contract sought to be enforced, therefore, was one providing for the distribution

of proceeds obtained by the joint venture following the future sale of certain real

property, and the complaint filed sought application of that contract’s

Redemption Formula to the distribution of sales proceeds. The complaint,

however, did not allege that there were in existence any proceeds from the sale

of joint venture property that had not been paid to Bagwell. In fact, it was

undisputed that the Redemption Formula had been applied to the distribution of

proceeds from the sale of the first 73.6 acres of joint venture property and that

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the remaining 29 acres had not yet been sold. There clearly could be no claim

for specific performance when the time stated for the Trammels’ performance

of their obligations under the Redemption Agreement with regard to the

remaining 29 acres had not yet arrived and the object of the contract, i.e., the

sales proceeds, were not yet in existence. See Kingsdale Apartments, Inc. v.

Board of Lights & Waterworks, 219 Ga. 49, 50 (131 SE2d 557) (1963) (petition

for specific performance premature where time for performance has not yet

arrived); Gilleland v. Welch, 199 Ga. 341 (3) (34 SE2d 517) (1945) (suit for

specific performance brought before time for performance had arrived was

premature); East Side Lumber & Coal Co. v. Barfield, 195 Ga. 505, 508 (24

SE2d 681) (1943) (plaintiff had no right to specific performance of contract

where evidence showed impossibility of performance); Gabrell v. Byers, 178

Ga. 16, 21 (172 SE 227) (1933) (“It is well settled that a court of equity will not

render a decree which is impossible of performance, or which the court has not

power to enforce.”). See also OCGA § 23-2-130 (“Specific performance of a

contract, if within the power of the party, will be decreed, generally, whenever

the damages recoverable at law would not be an adequate compensation for

nonperformance.” (Emphasis added)). We conclude, therefore, under the right

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for any reason rule, that the trial court properly denied Bagwell’s claim for

specific performance. See Engram v. Engram, 265 Ga. 804, 807 (2) (463 SE2d

12) (1995) (affirming denial of claim for unjust enrichment under right-for-any-

reason rule); Griffin v. Tift County, 242 Ga. 746, 747 (251 SE2d 262) (1978)

(affirming dismissal of equitable petition under right-for-any-reason rule).

2. We similarly find no error in the trial court’s determination that the

original Agreement could be construed as a valid deed. Pursuant to OCGA §

44-5-30, a “deed to lands shall be an original document, in writing, signed by

the maker, attested by an officer as provided in Code Section 44-2-15, and

attested by one other witness.” This statute, however, does not provide that

unless so attested, a deed is void. In fact, a deed without witnesses is legal and

binding between the parties themselves. See OCGA § 44-5-33 (no prescribed

form is essential to the validity of a deed to lands); Hoover v. Mobley, 198 Ga.

68, 73 (31 SE2d 9) (1944); Johnson v. Jones, 87 Ga. 85, 89 (13 SE 261) (1891).

See also Howard v. Russell, 104 Ga. 230 (30 SE 802) (1898) (“A deed to land,

though not attested as required by law, conveys the title as against the grantor

and his heirs.”).

It is undisputed that within section two of the original, written Agreement

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signed by the parties, the Trammels conveyed to Bagwell a one-half undivided

interest in the joint venture property specifically described in the note attached

to and incorporated by reference. Accordingly, we find no error in the trial

court’s ruling that this section of the Agreement operated as a valid deed

granting Bagwell a one-half interest in the joint venture property.

3. As alternatives to his claim for specific performance, Bagwell sought

an equitable partition of the remaining 29 acres and an equitable accounting and

dissolution of Etowah Ventures. The trial court ruled in Bagwell’s favor as to

each of these claims and directed that upon the sale of the remaining joint

venture property, Bagwell was entitled to one-half of the net sales proceeds.

Bagwell argues that the trial court erred by refusing to apply the Redemption

Formula to the distribution of these sales proceeds as that was the formula

contractually agreed to by the parties.

In ruling on a claim for an equitable partition, a trial court has broad

discretion to consider all of the circumstances that make a proceeding in equity

more suitable and just, including the need to adjust the accounts or claims of the

co-tenants. See OCGA § 44-6-140 (authorizing equitable partition “whenever

the remedy at law is insufficient or peculiar circumstances render the proceeding

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in equity more suitable and just); OCGA § 44-6-141 (court in equitable partition

proceeding will “mold its decree to meet the general justice and equity of each

cotenant”); Coker Properties v. Brooks, 278 Ga. 638, 640 (604 SE2d 766)

(2004). See also 3A K. Morgan Varner III & Robert H. Turner III, Georgia

Jurisprudence Property § 33:13 (courts of equity are empowered, among other

things, “to settle the rights of collaterally interested parties brought into the

proceedings as defendants, to protect the interest of absent parties presumed

dead,” and “to protect [by] appropriate decree the interest of all parties by

unraveling complicated factual situations involving joint ownership of

improvements, insolvency, foreclosure and purchase of assets, and the

continuation of business”). Thus, while the Redemption Agreement may have

remained a valid and enforceable contract between the parties, the trial court was

not bound by its terms in making its equitable partition award.2

Instead, OCGA § 44-6-140 and OCGA § 44-6-141 granted the trial court

the authority to adjust the accounts and claims of the parties as required by the

2
To the extent a provision of the contract may have been nullified at all in this case,
as suggested by the dissent, it was not nullified by the trial court’s ruling. It was, instead,
nullified by Bagwell’s election to seek an early, equitable dissolution of the parties’ joint
venture rather than follow the terms of their contract.

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circumstances, and more specifically, authorized the trial court to consider all

of the circumstances, including any circumstances that occurred after the making

of the contract or that may have led to the desire of one of the parties to seek an

equitable partition rather than wait to enforce the contract. For instance, by

seeking an equitable partition and a premature dissolution of Etowah Ventures,

Bagwell acted contrary to the terms of the Redemption Agreement and sought

to force the sale of the property at what the Trammels believed would be a

substantially reduced price. The trial court was authorized, and indeed had the

responsibility, to consider these facts, together with the terms of the Redemption

Agreement and all of the other evidence presented at trial, when making its

award. We find it clear from the trial court’s final order, which expressly

adopted that court’s detailed factual findings from its order on summary

judgment, that the trial court did so in this case.3

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The dissent incorrectly states that the trial court makes no mention of the
Redemption Agreement in its final order. The trial court made factual findings in its order
on summary judgment and these findings were expressly adopted into the trial court’s final
order. Included in the trial court’s findings on motion for summary judgment is that court’s
recognition that the parties entered into the Redemption Agreement and that the Redemption
Agreement (1) established their respective interests in Etowah Ventures by adopting the
Redemption Formula and (2) provided for a self-effectuating dissolution of Etowah
Ventures. The court in its summary judgment order also acknowledged the continuing
validity of Redemption Agreement when it stated that Bagwell could seek legal remedies
based on the parties’ contracts to protect his interest in the joint venture property. Finally,

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 Accordingly, we find no abuse of the trial court’s broad discretion in

making its equitable award. Although the dissent would seek a more affirmative

confirmation from the trial court that it considered the Redemption Agreement,

it cites no legal authority imposing such a requirement upon the courts of this

state. And even is there was such an obligation, the trial court’s consideration

of the circumstances in this case, including the existence of an enforceable

contract between the parties that contemplated a continuing joint venture, is

beyond reasonable dispute. The burden of establishing an abuse of the trial

court’s discretion on this issue rested upon Bagwell, and he has failed to meet

his burden.

Judgment affirmed. All the Justices concur except Melton, J., who

concurs in part and dissents in part.

the findings incorporated into the final order include an acknowledgment of the parties’
intention when entering into their contracts that Etowah Ventures would continue to exist
until all joint venture property was sold, the parties mutually agreed to termination of the
joint venture, the death of one of the parties, or the impossibility of performance.

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 S15A0820. BAGWELL v. TRAMMEL, et al.

MELTON, Justice, concurring in part and dissenting in part.

While I agree with Divisions 1 and 2 of the majority opinion, I must

respectfully dissent from Division 3. My problem is not with the majority’s

analysis in Division 3, but with the fact that the trial court employed none of

this analysis when it decided, contrary to the terms of the parties’ Redemption

Agreement, that Bagwell and the Trammels were each entitled to one-half of the

net sales proceeds from the sale of the Etowah Ventures property. Following the

closing on the property, there was a subsequent meeting of the minds between

the parties, consummated in a Redemption Agreement. The Redemption

Agreement called for a 70/30 split in the sales proceeds from the sale of the

Etowah Ventures property, rather than a 50/50 split as was imposed by the trial

court. There is no question as to the validity of the parties’ contract. Therefore,

it is the key document to be considered with respect to the division of sales

proceeds from the sale of the Etowah Ventures property. However, the trial

court provided no analysis at all in its final order regarding the impact of the

Redemption Agreement on the division of proceeds from the sale of the Etowah
Ventures property. That being the case, we have no way of knowing whether the

trial court actually engaged in the necessary analysis to reach the result that it

did here. I therefore do not believe that we can affirm the trial court’s decision

on the grounds stated by the majority. I believe that we must vacate the trial

court’s order and remand this case to the trial court with the direction that it

analyze the impact of the Redemption Agreement on its equitable partition

decision.

The trial court’s decision to completely omit any actual analysis relating

to the Redemption Agreement in its final order on the bench trial in this case is

troubling, especially when one considers that the trial court itself recognized the

importance of this agreement in its order on the Trammels’ motion for summary

judgment:

[O]n August 31, 2002, Bagwell [and the Trammels] entered into
[an] Agreement of Redemption of Joint Venture Interests
(hereinafter “Redemption Agreement”). The purpose of the
redemption Agreement was to ‘conclusively establish their
respective interests in Etowah Ventures by mutually adopting a
formula and program of redemption which settles any and all issues
between the parties and provides for a self effectuating dissolution
in the future of Etowah Ventures. The parties to the Redemption
Agreement stated . . . that upon the sale of the properties, the parties
would divide the proceeds based upon a distribution formula
through Etowah Ventures.

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The trial court then goes on in its summary judgment order to state that

Section Three of the Redemption Agreement is clear and
unambiguous. It describes the self-effectuating dissolution of
Etowah Ventures. It discusses the parties’ respective payment
obligations. It refers to the earlier provisions within the Redemption
Agreement describing the calculations of the parties’ shares of the
closing moneys resulting from the sale of the property.
Accordingly, there is no question as to the redemption process.

Despite the fact that there was “no question as to the redemption process,”

and despite the fact that the Redemption Agreement allowed Bagwell to receive

roughly 70% of the proceeds from any sale of the joint venture property and

allowed the Trammels to receive roughly 30% of such proceeds, the trial court

makes no mention of this legally binding contract in its final order on the bench

trial in which it awards a 50/50 split of the sales proceeds to each of the parties.

Even if we assume that, because the trial court referenced the Redemption

Agreement in its prior summary judgment order, it must have also considered

the Redemption Agreement in its final order, that still does not change the fact

that the trial court engaged in absolutely no analysis in its final order to explain

why the Redemption Agreement was no longer a factor that weighed in favor of

a 70/30, rather than a 50/50, split of the sales proceeds from the sale of the

Etowah Ventures property. Indeed, without such an analysis, the trial court’s

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final decision appears to run counter to its prior finding in its summary

judgment order that there was “no question as to the [70/30] redemption

process” under this “clear and unambiguous” agreement.

Worse still, through its ruling, that trial court has essentially nullified the

legally binding Redemption Agreement. Specifically, now that the trial court has

declared that a 50/50 split shall take place with respect to the sale of the Etowah

Ventures property, that ruling has become binding on the parties and Bagwell

can do nothing to challenge it – despite the fact that he holds a valid legal

agreement requiring a 70/30 split of the proceeds. At the very least, the trial

court must offer some analysis as to why it would be authorized to basically

ignore, and essentially nullify, the parties’ previously agreed to 70/30 split of

sales proceeds in its ruling on equitable partition when it had previously ruled

that there was “no question as to the [70/30] redemption process.” However,

based on the trial court’s final order, it appears as though the trial court may

have failed to consider the Redemption Agreement altogether. As a result, it

cannot be conclusively said that the trial court did not abuse its discretion when

it decided, contrary to the clear and unambiguous terms of the Redemption

Agreement, that it was authorized to discount the agreement entirely and impose

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a 50/50 split on sales proceeds in a manner that runs directly contrary to the

parties’ prior agreement.

I would therefore vacate the trial court’s decision and remand this case for

further proceedings.

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