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Tyler v. Thompson

The trial court erred in granting summary judgment to the plaintiff against one defendant in a fraudulent entrustment case based solely on a civil conspiracy cause of action.

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Kenan S. Thompson sued Herman Tyler and his brother, Ernest Tyler, to recover money Thompson entrusted to Herman Tyler as a financial advisor to manage and invest. Thompson claimed on various grounds, including money had and received, fraud, conversion, and breach of fiduciary duty, that Herman Tyler unlawfully took the entrusted money. Thompson claimed that Ernest Tyler conspired with Herman Tyler to unlawfully take the entrusted money when a portion of the money was used to buy and sell real property in Ernest Tyler’s name. Herman Tyler A11A0019 and Ernest Tyler A11A0020 appeal pro se from the trial court’s grant of summary judgment in favor of Thompson in the amount of $1,224,499.66 of the entrusted money, plus attorney fees and costs pursuant to OCGA § 13-6-11 in the amount of $47,493.08.1 As to the grant of summary judgment for $1,224,499.66 of the entrusted money, we affirm the grant of summary judgment against Herman Tyler, and reverse the grant of summary judgment against Ernest Tyler. We reverse the grant of summary judgment against Herman and Ernest Tyler for attorney fees and costs in the amount of $47,493.08. 1. Both Tylers claim that the grant of summary judgment for attorney fees and costs pursuant to OCGA § 13-6-11 was error, and Thompson concedes this was error. We agree. As set forth in Covington Square Assoc., LLC v. Ingles Markets, Inc. , 287 Ga. 445 696 SE2d 649 2010, awarding summary judgment in favor of a claimant for expenses of litigation under OCGA § 13-6-11 is error because the issue is for the trier of fact. Accordingly, we reverse to the extent the trial court granted summary judgment in favor of Thompson for attorney fees and costs under OCGA § 13-6-11 in the amount of $47,493.08.

2. As to the grant of summary judgment for the sum of $1,224,499.66, both Tylers claim that procedural errors in the grant of summary judgment require reversal.2

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