                              SECOND DIVISION
                                DOYLE, C. J.,
                          MILLER, P. J., and REESE, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 21, 2017




In the Court of Appeals of Georgia
 A17A0184. RABUN v. RABUN.

      REESE, Judge.

      Mildred Rabun (hereinafter “the widow”) appeals from an order of summary

judgment in favor of her stepson, Timothy Rabun (“the executor”), in the widow’s

action to impose a constructive trust on assets transferred to the executor from

Elwood Rabun, Sr. (“the decedent”) during the decedent’s lifetime. The widow also

seeks review of that portion of the trial court’s order that awarded certain properties

in her possession to the executor. For the reasons set forth, infra, we affirm the grant

of summary judgment as to the trial court’s refusal to impose a constructive trust, but
reverse that portion of the order directing the return of certain personal property to

the executor.1

      Viewing the evidence in the light most favorable to the widow, as the

nonmoving party,2 the evidence shows that the decedent, the widow’s husband of 17

years, died testate on April 20, 2014, after a battle with lung cancer that had lasted

several years. The will which the decedent had executed in November 2012 granted

a life estate in the marital residence to the widow, with the remainder to go to the

executor, and devised adjacent property to the executor’s siblings.3 The will left the

remainder of the decedent’s estate to the executor.

      Prior to the filing of the widow’s complaint in the superior court, a probate

court had awarded the widow as year’s support4 “all of the decedent’s interest in the


      1
        The Supreme Court’s “equity jurisdiction is not invoked if the issue raised on
appeal involves only whether the evidence is sufficient to authorize the imposition
of an implied trust.” Robertson v. Robertson, 333 Ga. App. 864, 867, n. 4 (778 SE2d
6) (2015) (citation omitted).
      2
          See Ansley v. Raczka-Long, 293 Ga. 138, 140 (2) (744 SE2d 55) (2013).
      3
        The executor testified in his deposition that the decedent was his biological
grandfather who had adopted him when he was four or five years old. References to
the executor’s siblings are to the decedent’s children, i.e., the executor’s biological
aunts and uncles.
      4
          See OCGA § 53-3-1 et seq.

                                          2
household furniture and furnishings, appliances, and all other personal property

located at the marital residence.” The probate court found that the widow was in poor

health and was being cared for by her daughter (the decedent’s stepdaughter) at the

daughter’s home and that, at the time the will was probated, it was questionable

whether the widow would be able to return to the marital residence in which she had

been devised a life estate.

      The decedent and the widow had maintained a joint checking account in which

the executor claimed no interest; the account balance was approximately $41,000 at

the time of the decedent’s death. In addition, the decedent’s estate included three

accounts with SunTrust Bank: (1) a joint checking account in the names of the

decedent, the executor, and the widow (the “three-party account”); (2) a money

market account in the names of the decedent and the executor (the “two-party

account”); and (3) an individual money market account with a provision that the

proceeds were payable on death to the executor (the “individual account”).

      The estate also included a life insurance annuity worth approximately $88,000,

a $5,000 life insurance policy, and a life insurance annuity worth approximately

$50,000. Each of these designated the executor as the sole beneficiary.



                                         3
      In her complaint, the widow alleged that, after she and the decedent both

became ill, the decedent rewrote his will and transferred substantial assets to the

executor with the intent that the executor would provide and care for the widow after

the decedent’s death. The widow contended that, as a result, the executor held more

than $200,000 in cash and various accounts in a constructive trust for the benefit and

use of the widow.

      The executor moved for summary judgment, arguing that he was the sole owner

of the financial assets and that the insurance policies, annuity contracts, and bank

deposit documents created no legal obligation for him to care for the widow as a

matter of law. The executor also sought the return of various estate items in the

widow’s possession that the executor contended had neither been devised to the

widow nor included in the year’s support.

      The superior court granted summary judgment to the executor, finding that

there had been no constructive trust imposed on any of the SunTrust accounts or life

insurance policies and annuities. The court also directed the widow to return certain

estate items, as requested in the executor’s summary judgment motion.

             A party is entitled to summary judgment if there is no genuine
      issue of material fact and the moving party is entitled to judgment as a


                                          4
      matter of law. On appeal from the grant of summary judgment, [the
      reviewing court] construe[s] the evidence most favorably toward the
      nonmoving party, who is given the benefit of all reasonable doubts and
      possible inferences.5


We will affirm the grant of summary judgment if it is right for any reason.6 With these

guiding principles in mind, we turn now to the widow’s specific claims of error.

      1. The widow argues that the trial court erred in granting summary judgment

in favor of the executor because factual disputes remained as to the existence of a

constructive trust.

      “A constructive trust is a trust implied whenever the circumstances are such

that the person holding legal title to property, either from fraud or otherwise, cannot

enjoy the beneficial interest in the property without violating some established

principle of equity.”7

      The record on appeal includes the deposition of the widow’s daughter, Janet

Bennier. Bennier testified that, in 2010, after the widow suffered a second stroke and

      5
          Ansley, 293 Ga. at 140 (2) (citations omitted).
      6
          Phinazee v. Interstate Nationalease, 237 Ga. App. 39, 40 (514 SE2d 843)
(1999).
      7
        OCGA § 53-12-132 (a). See also Aetna Life Ins. Co. v. Weekes, 241 Ga. 169,
172 (1) (244 SE2d 46) (1978) (applying former Ga. Code Ann. §§ 108-106, 108-107).

                                            5
was in failing health, the decedent came to visit Bennier in West Virginia, where she

was then living. According to Bennier, the decedent told her that the executor would

take care of the widow because the executor lived closer to the widow than did

Bennier or her children. The decedent added that he had taken “care of everything”

and that the decedent’s money “would be in [the executor’s] name . . . where he

would have the funds to take care of [the widow].”

       The two revisited the conversation after the decedent discovered his cancer had

returned. “[W]e were talking about it because I was taking him for his last . . .

radiation treatments and all, and . . . I said, [‘]Papa, are you sure about [the

executor]?[’] He said [‘]yes, sister. Don’t worry. . . . [T]he money is there. . . . There’s

more than enough money to take care of her in her lifetime.[’]” The decedent told

Bennier that he and the widow had talked to the executor and “explained everything”

and that the executor had “assured” the decedent that he was going to take care of the

widow.

       The record also contains the deposition of Ernest Martin, a longtime, close

friend of the decedent. Shortly after the decedent found out he had cancer, Martin

asked him if he had his “affairs straight.” The decedent responded that he had a will

and that the Appellee was the executor. The decedent added that he and the executor

                                             6
had a long conversation in which “[the executor had] assured [him] that [the widow]

would be taken care of.” Although the decedent did not go into specifics, he said the

widow would stay in the house and that there was enough money to take care of her.

      The executor argues on appeal that the decedent’s statements to Bennier and

Martin constituted inadmissible hearsay that lacked any probative value. In her reply

brief, the widow contends that the testimony fell within the hearsay exception of

OCGA § 24-8-807, because the decedent was unavailable as a witness and the close

relationships between the decedent and the witnesses demonstrated sufficient

guarantees of trustworthiness to warrant admission of the statements. Although not

specifically noted in the summary judgment order,8 the trial court’s finding that no

genuine issue of material fact existed implies that the court did not consider this

hearsay testimony in reaching the judgment. We find that the trial court did not abuse

its discretion9 in not considering this hearsay evidence.10

      8
        The record on appeal does not contain a transcript of the summary judgment
hearing. In her notice of appeal, the widow stated that the “[t]ranscript of evidence
and proceedings [would] not be filed for inclusion in the record on appeal[,]” and the
clerk of the trial court certified that the record forwarded to this Court was a complete
copy of those portions of the record directed to be transmitted to this Court pursuant
to the Notice of Appeal.
      9
        See Maloof v. MARTA, 330 Ga. App. 763, 765 (1) (769 SE2d 174) (2015)
(“This Court will not disturb a trial court’s ruling on whether to admit evidence as an

                                           7
       OCGA § 24-8-804 (b) provides certain exceptions to the hearsay rule if the

declarant is unavailable as a witness. “‘[U]navailable as a witness’ includes situations

in which the declarant . . . [i]s unable to be present or to testify at the hearing because

of death[.]”11 The widow does not argue that any of the specific exceptions of § 24-8-

804 (b) apply, but contends that the hearsay evidence was admissible under the

“residual” exception.12 The “residual” hearsay exception of the new Evidence Code,

OCGA § 24-8-807, provides in part:


exception to the hearsay rule absent an abuse of discretion.”) (citation omitted).
       10
        See Yetman v. Walsh, 282 Ga. App. 499, 500 (1) (639 SE2d 491) (2006)
(“The burden is upon the party assigning error to show it affirmatively by the record.
Where no transcript is included in the record on appeal, we must assume that the
evidence was sufficient to support the judgment.”) (citations and punctuation
omitted).
       11
            OCGA § 24-8-804 (a) (4).
       12
        To the extent the widow argues that the statements were admissible under the
“necessity” exception, she improperly relies on decisions that applied the former
Evidence Code. “Under Georgia’s former Evidence Code, for a statement to be
admissible under the necessity exception to the rule against hearsay, its proponent
must show a necessity for the evidence, a circumstantial guaranty of the statement’s
trustworthiness, and that the hearsay statements are more probative and revealing than
other available evidence.” Hornbuckle v. State, 300 Ga. 750, 758 (6) (b) (797 SE2d
113) (2017) (citations and punctuation omitted). Because the hearing on the
executor’s motion for summary judgment took place after January 1, 2013, however,
the provisions of Georgia’s new Evidence Code apply. See Ga. L. 2011, pp. 99, 214,
§ 101.

                                            8
      A statement not specifically covered by any law but having equivalent
      circumstantial guarantees of trustworthiness shall not be excluded by the
      hearsay rule, if the court determines that:
      (1) The statement is offered as evidence of a material fact;
      (2) The statement is more probative on the point for which it is offered
      than any other evidence which the proponent can procure through
      reasonable efforts; and
      (3) The general purposes of the rules of evidence and the interests of
      justice will best be served by admission of the statement into evidence.13

      Rule 807 was intended to be used only rarely, and was not intended to provide

a broad license for trial judges to admit hearsay statements that do not fall within one

of the other exceptions contained in Rules 803 and 804 (b).14 In order for hearsay


      13
          Because OCGA § 24-8-807 mirrors Fed. R. Evid. 807, we will look to case
law from federal courts within the Eleventh Circuit for guidance in interpreting that
statute. See Maloof, 330 Ga. App. at 765, (1) (a), n. 3 (regarding Rule 803); see also
Fed. R. Evid. 807 (a) (“Under the following circumstances, a hearsay statement is not
excluded by the rule against hearsay even if the statement is not specifically covered
by a hearsay exception in Rule 803 or 804: (1) the statement has equivalent
circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material
fact; (3) it is more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts; and (4) admitting
it will best serve the purposes of these rules and the interests of justice.”).
      14
         See United States v. Mathis, 559 F2d 294, 299 (5th Cir. 1977) (quoting the
legislative history to former Federal Rule of Evidence 803 (24), which was
transferred to Rule 807); see also Bonner v. City of Prichard, Alabama, 661 F2d
1206, 1207 (11th Cir. 1981) (adopting as binding precedent all decisions of the
former Fifth Circuit handed down on or before September 30, 1981).

                                           9
evidence to be admitted under Rule 807, there must be “circumstances evidencing a

clear basis of trustworthiness” to support the out-of-court statement.15 Otherwise,

“exceptions to the rule against hearsay could swallow the rule.”16 “[T]he burden is on

the party seeking to invoke the residual exception to clearly demonstrate the existence

of the requisite guarantees of trustworthiness.”17

      Particularly in the absence of a hearing transcript, the widow has not shown

that the trial court abused its discretion in refusing to admit the vague hearsay

testimony of Bennier and Martin.18 It necessarily follows that, without the hearsay

evidence detailed above, no genuine issue of material fact existed, and summary

judgment was proper.19


      15
        Nat. Labor Relations Bd. v. United Sanitation Svc., 737 F2d 936, 941 (11th
Cir. 1984) (applying former Federal Rule of Evidence 804 (b) (5)) (citation and
punctuation omitted).
      16
           Id. (citation and punctuation omitted).
      17
           Id. (citation omitted).
      18
         See Herzog v. Castle Rock Entertainment, 193 F3d 1241, 1254-1255 (B) (1)
(11th Cir. 1999) (affirming decision to exclude hearsay testimony under Federal Rule
of Evidence 807 because there was no way “to verify the accuracy of the testimony
or of the out-of-court statements that the testimony report[ed], and the reliability of
the testimony c[ould] not be taken for granted”) (citation omitted).
      19
           See Urban v. Lemley, 232 Ga. App. 259, 260-261 (1) (501 SE2d 529) (1998).

                                           10
      2. The widow argues that the trial court clearly erred in awarding certain estate

items to the executor.

      The widow admitted in her deposition that she had possession of various items

of personal property that were sought by the executor. The record is unclear,

however, as to whether these items had been taken from the marital residence and,

thus, were included in the award of year’s support. Construing the evidence in the

light most favorable to the widow, we find that a genuine issue of material fact

existed as to whether these items were included in the year’s support awarded to the

widow. Consequently, the trial court erred in granting summary judgment to the

executor on that claim.

      Judgment affirmed in part and reversed in part. Doyle, C. J., and Miller, P. J.,

concur.




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