Lathem v. Hestley

Carley, Justice,

dissenting.

In reversing the trial court’s dismissal of Lathem’s complaint, *852the majority holds that Lathem has stated a claim based on an “implied constructive” trust. As the majority concedes, however, Lathem did not specifically aver in his complaint or the amendment thereto that he sought the imposition of an implied trust. “ ‘Liberal construction of a pleading does not encompass the imputation or engrafting to a claim of a meaning not reasonably deductible or infer-able from the explicit language of the pleading/ [Cit.]” McCombs v. Southern Regional Med. Center, 233 Ga. App. 676, 681 (2) (504 SE2d 747) (1998). See also Rossville Fed. Sav. & Loan Assn. v. Ins. Co. of N. Amer., 121 Ga. App. 435, 439 (2) (b) (174 SE2d 204) (1970). Compare Whitworth v. Whitworth, 233 Ga. 53, 55 (2) (a) (210 SE2d 9) (1974) (where complaint “alleged that it was decedent’s intention that the appellant would hold the property in trust for the decedent’s benefit”). Furthermore, Lathem does not take the position on appeal that he stated a claim for the imposition of an implied trust. Indeed, he does not even mention “implied” or “constructive” trusts in his appellate briefs. To the contrary, Lathem relies entirely on the amendment to his complaint, which alleged an interest in the properties at issue through a joint venture agreement.

It appears that the trial court erred in holding that the oral joint venture agreement is unenforceable as against the statute of frauds. See Manget v. Carlton, 34 Ga. App. 556, 559 (1) (130 SE 604) (1925). However, the allegation of an enforceable agreement, without more, does not state any claim. The complaint does not aver that the parties agreed to any transfer of title. Rather, the only alleged benefit from the joint venture agreement was the sharing of profits. Lathem may have some “interest” in the properties by means of a joint venture agreement, but the mere existence of that interest would not render Hestley liable to Lathem for the value thereof. Hines v. Johnston, 95 Ga. 629, 640-642 (1) (23 SE 470) (1895); Manget v. Carlton, supra at 560 (2). There has been no allegation that Hestley has violated the joint venture agreement. Hines v. Johnston, supra at 642 (1); Manget v. Carlton, supra. If Lathem were dissatisfied with the venture, he should have alleged a breach of the joint venture agreement and sought dissolution and an accounting. First Nat. Bank v. Vason, 164 Ga. App. 309, 311 (2) (297 SE2d 85) (1982). Instead, the specific averments of the complaint are limited by their very terms to an equitable division or a partition of the properties, yet there are no allegations of any marital relationship, of any implied trust, or of any common ownership other than that allegedly arising from the joint venture agreement. See Rossville Fed. Sav. & Loan Assn. v. Ins. Co. of N. Amer., supra at 439 (2) (b). Although Lathem has joint legal title to one of the parcels, he is not seeking a separate partition based on that legal title, but rather he is seeking partition of all of the property based solely on the alleged joint venture agreement. “Although it *853need not set forth a cause of action, a complaint must set forth a claim for relief. [Cit.]” Hogan v. Peters, 181 Ga. App. 670, 671 (353 SE2d 601) (1987). Accordingly, I cannot agree with the majority that Lathem’s complaint sets forth a claim upon which relief can be granted and, therefore, I dissent. See Hatcher v. Moree, 133 Ga. App. 14, 16 (1) (209 SE2d 708) (1974).

Decided March 15, 1999 — Reconsideration denied April 2,1999. L. Daniel Butler, for appellant. Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., Thomas R. Burnside III, for appellee.

I am authorized to state that Chief Justice Benham and Presiding Justice Fletcher join in this dissent.