                                 SECOND DIVISION
                                  BARNES, P. J.,
                              RICKMAN and SELF, JJ.

                    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


                                                                     March 14, 2017




In the Court of Appeals of Georgia
 A16A1919. RES-GA YPL, LLC v. J. H. ROWLAND, III et al.

      RICKMAN, Judge.

      In this case alleging a violation of Georgia’s Uniform Fraudulent Transfers

Act, RES-GA YPL, LLC (“YPL”), as creditor, sued J. H. Rowland, III, as judgment

debtor (the “Judgment Debtor”), as well as Marilyn Jones Rowland, Katherine

Rowland Boudreau, Rowland Partners, L.P., Rowland Companies, Inc., and MJR

Finance, LLC, as parties to various real estate transactions (appellees collectively

referred to herein as the “Rowland Appellees”), seeking to set aside the transactions

as fraudulent and requesting a declaratory judgment as to the superiority of its interest

in certain real property. The trial court granted the Rowland Appellees’ motion to

dismiss the action. YPL appeals, contending that the trial court erred in dismissing
its lawsuit. For the reasons discussed below, we affirm in part and reverse in part the

trial court’s ruling.

       This Court conducts a de novo review of a trial court’s ruling on a motion to

dismiss. See Dove v. Ty Cobb Healthcare Systems, Inc., 316 Ga. App. 7, 9 (729 SE2d

58) (2012).

       In doing so, our role is to determine whether the allegations of the
       complaint, when construed in the light most favorable to the plaintiff,
       and with all doubts resolved in the plaintiff’s favor, disclose with
       certainty that the plaintiff would not be entitled to relief under any state
       of provable facts; however, we need not adopt a party’s legal
       conclusions based on these facts.


(Punctuation and footnotes omitted.) Id.

       The facts underlying YPL’s complaint are somewhat complex. The pertinent

background information and history of the parties necessary to put the allegations of

the complaint into context are set forth below.

                                     I. The Parties

       YPL has a deficiency judgment against the Judgment Debtor in an amount

greater than $2.1 million. Marilyn Jones Rowland (“M. Rowland”) is the Judgment

Debtor’s mother, and Katherine Rowland Boudreau (“Boudreau”) is the Judgment


                                            2
Debtor’s sister. Rowland Partners, L. P. (the “Limited Partnership”) is a limited

partnership of which it is undisputed that, at all times relevant to this action, M.

Rowland and Boudreau were officers, owners, members, affiliates, and/or partners;

YPL alleges, although the Rowland Appellees deny, that the Judgment Debtor also

held a position in the Limited Partnership. Rowland Companies, Inc. is the general

partner of the Limited Partnership. MJR Finance, LLC is a limited liability company

of which M. Rowland was, at all times relevant to this action, an officer, owner,

member affiliate, and/or incorporator; YPL alleges, although the Rowland Appellees

again deny, that the Judgment Debtor also held a position in the company.

                             II. Pertinent Background

      In March 2007, a non-party limited liability company executed a promissory

note to Alpha Bank and Trust, as lender, in order to obtain a loan totaling over $3.5

million (the “Note”). The Judgment Debtor executed a personal guaranty in which he

guaranteed the repayment of the Note (the “Guaranty”). The Note was secured by a

security deed that encumbered certain real property in Cobb County.

      In 2008, Alpha Bank and Trust was declared insolvent, and the Federal Deposit

Insurance Corporation (“FDIC”) was appointed receiver. The FDIC, as receiver,



                                         3
transferred and assigned the Note and Guaranty to a non-party limited liability

company, which in turn assigned the Note and Guaranty to YPL in 2011.

      The Note went into default, and YPL foreclosed on the collateral. The

foreclosure sale was confirmed, and YPL thereafter filed a lawsuit against the

Judgment Debtor seeking to recover a money judgment for the deficiency remaining

on the Note. YPL obtained the judgment against the Judgment Debtor on August 28,

2012, and the judgment was reduced to a writ of fieri facias that was recorded on

February 12, 2013. Payment of the judgment remains unsatisfied.

                                 III. The Transfers

      The week following the entry of YPL’s judgment against the Judgment Debtor,

several “corrective” deeds (collectively, the “Corrective Deeds”), executed on

September 4, 2012 and filed in the Superior Court of Burke County the following

day, purported to cure numerous “defective” deeds (collectively, the “Defective

Deeds”) that the Rowland Appellees allege were signed in 2003 and that transferred

four tracts of real property among and between them. These transfers (collectively,

the “Transfers”) form the basis of YPL’s complaint and are set forth in detail below.

      (A) The Herndon Transfers. The first in the series of “corrective” deeds was

executed by M. Rowland and entitled “Corrective Executor’s Deed.” It purported to

                                         4
“confirm” the conveyance of a 264-acre tract of real property (the “Herndon Tract”)

from M. Rowland, in her capacity as executor of her late husband’s estate, as grantor,

to herself (individually), the Judgment Debtor, and Boudreau, as grantees. Attached

to the corrective deed was a defective deed purporting to make the same conveyance,

which referenced the year 2003 in the opening paragraph and was allegedly signed

by M. Rowland and her late husband. The defective deed was not otherwise dated,

witnessed, or recorded.

      The second “corrective” deed was entitled “Corrective Quitclaim Deed” and

was executed by the Judgment Debtor and Boudreau, as grantors. It purported to

“confirm” a conveyance of their shares of the Herndon Tract to the Limited

Partnership, as grantee. As before, attached to the corrective deed was a defective

deed referencing the year 2003, allegedly signed by the Judgment Debtor and

Boudreau, purporting to make the same conveyance. That deed was not dated,

witnessed, or recorded.

      (B) The Multi-Tract Transfers. The third “corrective” deed was a “Corrective

Quitclaim Deed” executed by M. Rowland purporting to “confirm” the conveyance

of three separate parcels of real property totaling over 1,882 acres (the “Multi-Tract

Property”) from herself, as grantor, to the Judgment Debtor and Boudreau, as

                                          5
grantees.1 Again, attached to the corrective deed was a defective deed referencing the

year 2003, allegedly signed by M. Rowland, purporting to make the same

conveyance. That deed was not dated, witnessed, or recorded.

      The fourth and final “corrective” deed was a “Corrective Quitclaim Deed”

executed by the Judgment Debtor and Boudreau, as grantors, purporting to “confirm”

the conveyance of the Multi-Tract Property to the Limited Partnership, as grantee. As

with each of the others, attached to the corrective deed was a defective deed

referencing 2003, allegedly signed by the Judgment Debtor and Boudreau, purporting

to make the same conveyance. The deed was not dated, witnessed, or recorded.

      (C) The MJR Finance Security Deed. On December 21, 2012, the Limited

Partnership, as grantor, purported to convey an interest in both the Herndon Tract and

the Multi-Tract Property (collectively, “the Properties”) to MJR Finance, as grantee,

via a security deed, in order to secure a note in the amount of $350,000 (the “MJR

Finance Security Deed”). The MJR Finance Security Deed was recorded on

December 26, 2012.

      1
         The property description attached as an exhibit to the defective deed
purportedly being “corrected” by the deed to the Multi-Tract Property is actually a
legal description of the Herndon Tract. Because the parties do not dispute that the
property involved in the second series of transfers was the Multi-Tract Property, we
will assume that to be true for the purposes of this opinion.

                                          6
                          IV. The Trial Court Proceedings

      On August 20, 2015, YPL filed the instant lawsuit seeking damages and to

enforce its judgment by voiding the Transfers as violative of the Georgia Uniform

Fraudulent Transfers Act, OCGA §§ 18-2-70 (2012) et seq. (“UFTA”).2 YPL also

sought a declaratory judgment that it held an interest in the Properties superior to any

alleged interest held by MJR Finance. Finally, YPL sought attorney fees and litigation

costs pursuant to OCGA § 13-6-11.

      The Rowland Appellees filed a motion to dismiss YPL’s complaint,3 asserting

that YPL lacked standing under the UFTA to bring the action against the Judgment

Debtor, failed to state a cause of action against M. Rowland, Boudreau, or Rowland



      2
         The UFTA has since been amended and is now called the Uniform Voidable
Transactions Act. See Ga. L. 2015, Act 167, § 4A-1. The amendments, however,
apply only to transfers made or obligations incurred on or after July 1, 2015 and only
to a right of action accruing after July 1, 2015. See Ga. L. 2015, pp. 996, 1029, § 7-1.
      3
        Copies of each of the deeds and other record documents discussed herein
were attached as exhibits to YPL’s verified complaint and are thus properly
considered for the purposes of the Rowland Appellees’ motion to dismiss. See
Minnifield v. Wells Fargo Bank, N.A., 331 Ga. App. 512, 514 (2) (771 SE2d 188)
(2015) (“When considering a motion to dismiss for failure to state a claim, a trial
court may consider exhibits attached to and incorporated into the complaint and
answer.”) (citation omitted).



                                           7
Companies, was time-barred from pursuing its UFTA claim by the applicable statute

of limitations, and was not an “interested party” with standing to seek a declaratory

judgment. The trial court granted the motion “for the reasons stated in [the Rowland

Appellees’] brief,” and this appeal follows.

                                     V. Discussion

      1. UFTA Claim. The UFTA provides that, “[a] transfer made or obligation

incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose

before or after the transfer was made or the obligation was incurred, if the debtor

made the transfer or incurred the obligation . . . [w]ith actual intent to hinder, delay,

or defraud any creditor of the debtor . . . .” OCGA § 18-2-74 (a) (1) (2012). When

determining a debtor’s intent, consideration is given to, among other things, the

factors set forth in OCGA § 18-2-74 (b) (2012),4 which are commonly referred to as

      4
        The “badges of fraud” include whether:
      (1) The transfer or obligation was to an insider;
      (2) The debtor retained possession or control of the property transferred after
      the transfer;
      (3) The transfer or obligation was disclosed or concealed;
      (4) Before the transfer was made or obligation was incurred, the debtor had
      been sued or threatened with suit;
      (5) The transfer was of substantially all the debtor’s assets;
      (6) The debtor absconded;
      (7) The debtor removed or concealed assets;
      (8) The value of the consideration received by the debtor was reasonably

                                           8
the “badges of fraud.” See RES-GA Hightower, LLC v. Golshani, 334 Ga. App. 176,

178 (1) (a) (778 SE2d 805) (2015). The UFTA defines a “creditor” as “a person who

has a claim,”5 a “debtor” as “a person who is liable on a claim,” and a “claim” as “a

right to payment, whether or not the right is reduced to judgment, liquidated,

unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal,

equitable, secured, or unsecured.” OCGA § 18-2-71 (3), (4), (5). A transfer made with

an actual intent to defraud creditors may be avoided if the recipient did not take the

transfer in good faith and for reasonably equivalent value. See OCGA §§ 18-2-74 (a)

(1) (2012); 18-2-77 (a) (1) (2012), 18-2-78 (a) (2012); Miller v. Lomax, 266 Ga. App.

93, 100 (3) (596 SE2d 232) (2004).



      equivalent to the value of the asset transferred or the amount of the obligation
      incurred;
      (9) The debtor was insolvent or became insolvent shortly after the transfer was
      made or the obligation was incurred;
      (10) The transfer occurred shortly before or shortly after a substantial debt was
      incurred; and
      (11) The debtor transferred the essential assets of the business to a lienor who
      transferred the assets to an insider of the debtor.

OCGA § 18-2-74 (b) (2012).
      5
       The 2015 amendments to the UFTA now define the term “creditor” as “a
person who has a claim, regardless of when the person acquired the claim, together
with any successors or assigns.” See Ga. L. 2015, Act 167, §4A-1, eff. July 1, 2015.

                                          9
       In its complaint, YPL alleged that the Judgment Debtor made the Transfers

with the actual intent of hindering, delaying, or defrauding his creditors, and

specifically alleged several “badges of fraud”: the Transfers were made to insiders,

were made after the Judgment Debtor had a judgment against him, consisted of

substantially all of the Judgment Debtor’s assets, were made without the Judgment

Debtor’s receipt of consideration for a reasonably equivalent value of the assets

transferred, were made when the Judgment Debtor was insolvent or he became

insolvent as a result of the Transfers, and occurred shortly after a substantial debt was

incurred. See OCGA § 18-2-74 (b) (2012). YPL further alleged that the Rowland

Appellees knew or should have known that the Judgment Debtor was insolvent and

that the Transfers were made with the intent to hinder, delay, or defraud the Judgment

Debtor’s creditors.

       A separate statute, OCGA § 44-12-24 (2012), prohibits the assignment of “[a]

right of action . . . for injuries arising from fraud to the assignor.” Reading this statute

in conjunction with the UFTA, this Court has previously held that assignees of debt

who otherwise qualified as “creditors” with “claims” under the broad definitions of

the UFTA were nevertheless precluded by OCGA § 44-12-24 from pursuing a



                                            10
fraudulent transfer claim.6 See Merrill Ranch Properties, LLC v. Austell, 336 Ga.

App. 722, 731 (3) (784 SE2d 125) (2016); Golshani, 334 Ga. App. at 179-80 (1) (a).

      (A) The Rowland Appellees contend that OCGA § 44-12-24 (2014), in

conjunction with the holdings of Merrill Ranch Properties and Golshani, bar YPL,

as assignee of the Note and Guaranty, from pursuing an action under the UFTA.

      Construing the complaint, as we must, in the light most favorable to YPL and

resolving all doubts in its favor, neither the plain language of the statute nor this

Court’s precedent deprive YPL of standing to file its claim. Rather, OCGA § 44-12-

24 (2014) expressly prohibits the assignment of a right of action based in fraud.

Consequently, in both Merrill Ranch Properties and Golshani, we held that an

assignee of debt lacked standing under OCGA § 44-12-24 (2014) to pursue a

fraudulent transfer claim otherwise belonging to a previous debt holder for

conveyances made prior to the date of the debt assignment. See Merrill Ranch

Properties, 336 Ga. App. at 731 (3) (summarizing Golshani as holding that “an

assignee of debt is precluded [by OCGA § 44-12-24] from pursuing a pre-assignment

      6
        In the 2015 amendments to the UFTA, the Georgia General Assembly added
section 18-2-74 (c), which now provides that “[i]f a creditor is a successor or
assignee, a right of action [for fraudulent transfer under OCGA § 18-2-74 (a)] is
automatically assigned to such successor or assignee.” See Ga. L. 2015, Act 167,
§4A-1, eff. July 1, 2015.

                                         11
fraudulent transfer claim under the UFTA”) (citation and punctuation omitted;

emphasis supplied.); Golshani, 334 Ga. App. at 180 (1) (a) (holding that an assignee

of the original creditor lacked standing to set aside as fraudulent a conveyance made

before assignment of the debt).

      In contrast, YPL alleges that the Transfers at issue here were made after YPL

held the Note and the Guaranty. Thus, YPL does not seek a remedy for an injury

stemming from fraud to a previous holder of the note, but rather for an injury that was

committed directly against it. If true, although YPL is an assignee of debt, the right

of action for fraudulent conveyance was not assigned, but is its own, removing this

case from the ambit of both OCGA § 44-12-24 (2012) and our prior precedent.

      The Rowland Appellees nevertheless maintain that the Defective Deeds

attached to the later-recorded Corrective Deeds establish that the Judgment Debtor

transferred the Properties to the Limited Partnership in 2003, prior to YPL’s

acquisition of, and indeed the execution of, the Note and Guaranty. They argue that

the only post-assignment conveyances were made from the Limited Partnership to

MJR Finance and were not subject to being set aside.

      To be sure, a determination that the Judgment Debtor conveyed his interests

in the Properties to the Limited Partnership in 2003 and that the only post-assignment

                                          12
conveyances were those from the Limited Partnership to MJF Finance would be fatal

to YPL’s UFTA claim. See OCGA § 44-12-24 (2012); Merrill Ranch Properties, 336

Ga. App. at 731 (3); Golshani, 334 Ga. App. at 179-80 (1) (a); see also Maxco, Inc.

v. Volpe, 247 Ga. 212, 214 (1) (274 SE2d 561) (1981) (“A limited partner owns an

interest in the legal entity but holds no title to the assets of the partnership.”).7

       Such a determination, however, cannot be made at this stage of the litigation.

Although a deed that has been neither witnessed nor recorded may be sufficient to

bind the parties and their privies to the deed itself, it is not admissible to prove title

in the grantee without first laying the proper foundation. See Latham v. Fowler, 199

Ga. 648, 648 (34 SE2d 870) (1945) (“Where, in a suit for land, the right of the

plaintiffs was predicated upon an alleged lost and unrecorded deed . . . , proof of the


       7
         But see OCGA § 14-9A-52 (a), (b) (“On due application to a court of
competent jurisdiction by any judgment creditor of a limited partner, the court may
charge the interest of the indebted limited partner with payment of the unsatisfied
amount of the judgment debt . . . [T]he interest may be redeemed with the separate
property of any general partner, but may not be redeemed with partnership
property.”); Nigri v. Lotz, 216 Ga. App. 204, 205 (2) (453 SE2d 780) (1995) (“The
charging order remedy entitles the creditor to receive the profits and surplus of the
limited partnership, which the limited partner would otherwise have been entitled to
receive, up to the unsatisfied amount of the judgment debt, but gives no direct remedy
against specific limited partnership property.”).



                                            13
existence of a genuine original must have been established before secondary evidence

relating thereto would have been admissible.”); Hoover v. Mobley, 198 Ga. 68, 73 (31

SE2d 9) (1944) (“The penalty for failure to execute the deed in the manner prescribed

by the statute is a refusal to admit the same to record.”); see also Smith v. Forrester,

156 Ga. App. 79, 80 (1) (274 SE2d 101) (1980). On a motion to dismiss, the question

before this Court is whether the allegations of the complaint, when construed in the

light most favorable to YPL and with all doubts resolved in its favor, “disclose with

certainty that [YPL] would not be entitled to relief under any state of provable facts.”

(Punctuation and footnote omitted.) Dove, 316 Ga. App. at 9. With factual questions

remaining as to the authenticity of the Defective Deeds, we cannot say that YPL lacks

standing to pursue its UFTA claim based upon its status as an assignee of debt.8

Compare OCGA § 44-12-24 (2012); Merrill Ranch Properties, 336 Ga. App. at 731

(3); Golshani, 334 Ga. App. at 179-80 (1) (a).

         (B) The Rowland Appellees assert that YPL failed to assert any viable claims

against M. Rowland, Boudreau, and Rowland Companies, Inc. On this point, we

agree.


         8
        Our holding under the UFTA renders it unnecessary for us to address YPL’s
additional arguments regarding standing.

                                          14
      YPL, as creditor, can seek relief under the UFTA against the Judgment Debtor,

as well as any recipient of the Transfers made by the Judgment Debtor, i.e., the

Limited Partnership. See OCGA § 18-2-77 and §18-2-78. Neither M. Rowland,

Boudreau, nor Rowland Companies, Inc., however, received any interest in the

Properties from the Judgment Debtor that would render them subject to an UFTA

claim by YPL. Because they are likewise not debtors of YPL as that term is defined

under the UFTA, any transfers made by them are not subject to attack by YPL. See

OCGA § 18-2-74 (a) (2012) (“A transfer made . . . by a debtor is voidable as to a

creditor . . .”) (emphasis supplied); OCGA § 18-2-75 (a) (2012) (same); Merrill

Ranch Properties, 336 Ga. App. at 727-31 (2) (holding that creditor lacked standing

under the UFTA to set aside transfers made by non-debtors). It follows that the trial

court did not err in granting the motion to dismiss as to M. Rowland, Boudreau, and

Rowland Companies, Inc.

      (C) YPL argues that the trial court erred in dismissing its UFTA claim to the

extent that the court held that it was barred by the statute of limitations. Georgia law

mandates that a claim challenging a transfer as fraudulent must be filed within four

years of the date of the transfer, unless the transfer was made with an actual intent to

defraud a creditor, in which case the claim may be filed “within one year after the

                                          15
transfer . . . was or could reasonably have been discovered by the claimant” if later

than four years. See OCGA § 18-2-79 (1), (2) (2012).

      The Rowland Appellees assert, as they did in the trial court, that the four-year

limitations period began to run in 2003, when the Defective Deeds were allegedly

executed, and that the one year “discovery” period for intentional fraud began to run,

at the latest, on September 5, 2012, the date on which the Corrective Deeds were

recorded. They argue that YPL failed to exercise reasonable diligence in discovering

the deeds during that period and, consequently, that its UFTA claim, filed in August

2015, is time barred.

      Even assuming that the reference to the year 2003 in the first paragraph of the

otherwise undated Defective Deeds was sufficient to prove that the deeds were

executed in 2003, those deeds, as we held in Division V (1) (A), cannot prove the

passing of title for the purposes of the record without the Rowland Appellees first

laying the proper foundation for their admission. See Latham, 199 Ga. at 648;

Hoover, 198 Ga. at 73. Moreover, questions concerning a plaintiff’s diligence in

discovering an alleged fraud are generally questions for a trier of fact. Merrill Ranch

Properties, 336 Ga. App. at 733 (4). Regardless, the record does not establish as a

matter of law that YPL’s UFTA claim is time barred and, consequently, the trial court

                                          16
erred in dismissing it on this ground. See Hickson v. Bryan, 75 Ga. 392, 393 (2) (b)

(1885) (“Unless the facts from which fraud is inferred are undisputed, it is never a

question of law, and the same rule applies where fraud and concealment are replied

to a plea of the statute of limitations.”); Merrill Ranch Properties, 336 Ga. App. at

733 (4) (“[I]ssues concerning a plaintiff’s diligence usually must be resolved by the

trier of fact . . .”).

        2. Declaratory Judgment. Finally, YPL asserts that the trial court erred in

dismissing its action for a declaratory judgment that its purported interest in the

Properties is superior to any interest held by MJR Finance. The Rowland Appellees

contend that YPL lacks standing to seek declaratory relief because its interest in the

Properties is merely contingent, as opposed to an actual, legal interest.

        Georgia’s Declaratory Judgment Act is meant “to settle and afford relief from

uncertainty and insecurity with respect to rights, status, and other legal relations.”

OCGA § 9-4-1. The statute should be liberally construed, and “gives superior courts

the power to declare rights and other legal relations of any interested party in ‘cases

of actual controversy’ under OCGA § 9-4-2 (a) and ‘in any civil case in which it

appears to the court that the ends of justice require that the declaration should be

made’ [under OCGA § 9-4-2 (b)].” Walker v. Owens, 298 Ga. 516, 518 (783 SE2d

                                          17
114) (2016); see Lapolla Industries, Inc. v. Hess, 325 Ga. App. 256, 257 (1) (750

SE2d 467) (2013) (“The declaratory judgment statute is liberally construed; applies

where a legal judgment is sought that would control or direct future action; and

requires under subsection (a) or (b) the presence in the declaratory action of a party

with an interest in the controversy adverse to that of the petitioner.”). An “interested”

party within the context of the statute is one who “has a protectable interest and

asserts an adverse claim on an accrued statement of facts.” Hobgood v. Black, 144 Ga.

App. 448, 449 (241 SE2d 60) (1978).

       Construed in the light most favorable to the complaint, YPL alleges that it has

a legal interest in the Properties vis-a-vis its judgment, the writ of fieri facias, and the

UFTA due to the alleged fraudulent nature of the Transfers. That disputed factual

issues remain as to the actualization of YPL’s claimed interest does not foreclose on

its standing to seek a declaratory judgment as to the priority of that interest for the

purposes of a motion to dismiss. See generally Hobgood v. Black, 144 Ga. App. 448,

449 (2) (241 SE2d 60) (1978) (“The fact that the dispute in a declaratory judgment

action turns upon questions of fact does not withdraw it from judicial cognizance. The

legal consequences flow from the facts, and it is the province of the court to ascertain

and find the facts in accordance with the rules prescribed in the Georgia Declaratory

                                            18
Judgments Act in order to determine the legal consequences.”) (citation and

punctuation omitted.); see also OCGA § 9-4-6 (“When a declaration of right or the

granting of further relief based thereon involves the determination of issues of fact

triable by a jury and jury trial is not waived, the issues shall be submitted to a jury .

. .”); Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 314 (3) (66

SE2d 726) (1951) (reversing the trial court’s dismissal of appellant’s declaratory

action involving its ownership of real property). It follows that the trial court erred

in dismissing YPL’s claim for declaratory judgment at this stage of the litigation.

      In sum, we affirm the trial court’s dismissal of the complaint as to M. Rowland,

Boudreau, and Rowland Companies, Inc. We otherwise reverse.9

      Judgment affirmed in part and reversed in part. Barnes, P. J., and Self, J.,

concur.




      9
        We likewise reverse the trial court’s dismissal of the claim for recovery of
attorney fees and expenses to the extent it is predicated upon the surviving claims of
YPL’s complaint.

                                           19
