THIRD DIVISION ANDREWS, P. J., DILLARD and MCMILLIAN, 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/
November 21, 2013
In the Court of Appeals of Georgia A13A1055. PETRAKOPOULOS et al. v. VRANAS.
MCMILLIAN, Judge.
George A. Petrakopoulos, Sam Mellas and Alpha Soda Company (“Alpha
Soda”) appeal, claiming error in the trial court’s appointment of a “receiver/special
master” and its grant of preliminary and permanent injunctive relief without the
proper notice and hearing in an action filed by Gus Vranas arising out of a business
dispute among the parties. Petrakopoulos, Mellas and Alpha Soda also appeal the trial
court’s denial of their motions for summary judgment as to certain claims for
damages asserted by Vranas in his complaint as amended. For the reasons set forth
below, we reverse the trial court’s order appointing a receiver/special master, and we
affirm in part and reverse in part the denial of summary judgment. In 1991, Mellas, Vranas, and Petrakopoulos formed a partnership known as
“MVP Investment Company” (“MVP”)1 “for the purpose of conducting the general
business of developing, buying, selling, renting and investing in real property.”2 Each
partner had a one-third share of the partnership’s profits and losses. Petrakopoulos
was named as managing partner in MVP’s “Partnership Agreement” (the “Partnership
Agreement”), which required him, inter alia, to “keep accurate books of account in
which all matters relating to the [p]artnership, including all income, expenditures,
assets, and liabilities thereof, shall be entered.” Additionally, Petrakopoulos and
Mellas were given the duties of collecting and receiving rentals on the partnership’s
1 Although MVP was named as a defendant in this lawsuit, it is not a party to this appeal. 2 We note at the outset that Vranas’s brief fails to comply with Court of Appeals Rule 25 requiring that “[r]ecord and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.” (Emphasis supplied.) Instead, the brief cites to the original page numbers found on the deposition transcripts incorporated into the appellate record. This lack of compliance has greatly hampered the Court’s review, as the deposition page numbers appear at the top of the page, under the appellate record binding. Additionally, both sides, when citing to documents, failed to cite to the pages in the appellate record where those documents actually appear, instead citing to pages where such documents were discussed, further hampering our review.
2 property, paying bills and expenses incurred in the operation and management of the
property, and supervising and coordinating maintenance personnel.
The Partnership Agreement provided that the partnership was to survive until
dissolved by mutual agreement of the partners or upon other specified events. It also
provided that if a partner defaulted, a majority interest of the remaining partners could
elect, upon giving the proper notice, to terminate the defaulting partner’s interest,
“without affecting a termination of the Partnership.”3 The partners who choose to
terminate a defaulting partner’s interest are then required to purchase the terminated
partner’s interest according to a formula set out in the Partnership Agreement, either
in cash or by note, at the purchasing partners’ election.
In 1999, MVP entered into a ten-year lease with Alpha Soda (the “Lease”)
whereby Alpha Soda rented restaurant space in a building owned by MVP.
Petrakopoulos and Mellas owned Alpha Soda, and Petrakopoulos executed the Lease
both as MVP’s managing partner and as Alpha Soda’s president. Under the terms of
the Lease, Alpha Soda paid $8,000 per month for the first lease year, with a five
3 It appears that the use of the word “affecting” may have been a typographical error, and that the provision should more properly read “without effecting a termination of the Partnership.”
3 percent increase per year through the ten-year lease term. Vranas described Alpha
Soda as MVP’s “major tenant.”
In December 2008, Petrakopoulos notified Vranas that Alpha Soda was having
economic difficulties and was cutting its rent back to $6,000 per month. Under the
terms of the Lease, the monthly rent would have been around $13,000 at that time.
Vranas told Petrakopoulos that the rent reduction “[was] not right,” and he should
handle the situation “as [if] the landlord was a stranger and not us.” Vranas felt that
a $6,000 rental payment was below the market.
Despite the disagreement about Alpha Soda’s reduced rent, however, Vranas
agreed to sign a guaranty of MVP’s refinancing of a bank loan in May 2009 (the
“May 2009 Guaranty”).4 Shortly thereafter, Petrakopoulos notified Vranas that Alpha
Soda was “no longer profitable” and could no longer pay rent. And in a series of
letters and emails, Petrakopoulos asked Vranas for additional capital contributions
to pay MVP’s debts and to cover management fees he claimed were owing to him and
to his son, who had assisted him in managing the partnership.
4 The bank has not made a demand on Vranas’s guaranty, and the loan is not in default.
4 But Vranas contends that during this same period, Petrakopoulos and Mellas
were, inter alia, taking funds from MVP’s accounts without authorization, improperly
crediting Alpha Soda’s account with payments that were never made to MVP, and
paying Petrakopoulos’s son management fees and other amounts with MVP funds
without the approval of the other partners. Vranas also presented evidence that
Petrakopoulos and Mellas had not properly accounted for all of these transactions in
the partnership records.
On December 10, 2009, Petrakopoulos notified Vranas that “[due] to personal
and health reasons,” he would not longer be able to serve as MVP’s managing partner
and requested that Vranas take over the management duties. And on December 16,
2009, Petrakopoulos sent Vranas a certified letter giving him ten days to pay a capital
contribution of $51,446.73 or he would be in default, entitling Mellas and
Petrakopoulos to exercise their rights under the Partnership Agreement to buy Vranas
out.5 Vranas replied by letter dated December 28, 2009, refusing to make any
payment and asserting that the other partners were not in compliance with the
5 Nevertheless, Petrakopoulos stated that he returned Vranas’s $15,000 check sent as a capital contribution in July 2009.
5 Partnership Agreement. His letter further indicated that his partnership interest was
“up for sale.”
On March 10, 2010, Petrakopoulos, as MVP’s managing partner, sent Vranas
a letter declaring him to be in default under the Partnership Agreement and proffering
notes from Petrakopoulos and Mellas in payment for Vranas’s partnership interest.
But by letter dated March 18, 2010, Vranas notified Petrakopoulos and Mellas that
they were in default of the Partnership Agreement by failing to fulfill their duties
thereunder and that Vranas “[was] prepared to vigorously defend his interests in the
[p]artnership.” Subsequently, Mellas and Petrakopoulos had Vranas removed from
the tax records of the partnership and allegedly split Vranas’s capital account between
them.
Vranas filed suit on February 16, 2011, and the lawsuit as amended seeks an
accounting, dissolution of the partnership, removal of the managing partner and
damages based on various theories of liability. Petrakopoulos,6 Mellas and Alpha
Soda each filed answers and motions to dismiss and later filed motions for summary
judgment. But the trial court denied those motions, and on September 6, 2012,
scheduled a status hearing for September 24, 2012, “for the parties to show cause why
6 Petrakopoulos also filed a counterclaim.
6 an auditor should or should not be appointed pursuant to OCGA § 9-7-3. See also
OCGA § 9-7-17. Williams v. Tritt, 262 Ga. 173 (1992).” In the interim, on September
21, 2012, Vranas filed a motion to appoint an auditor.
At the status hearing, the trial court heard argument from the parties and then
orally granted Vranas’s motion for the appointment of an auditor, naming attorney
Joseph Randazzo as his appointee. Randazzo indicated, however, that he would be
“more comfortable” being characterized as a “special master,”explaining that this case
was unique because it appeared to require a combination of a receiver and a special
master. The trial court directed Randazzo to prepare his own appointment order and
to circulate it among the parties.
Although the appellate record suggests that Randazzo prepared such an order,7
the limited record designated by the parties contains no indication of whether the
proposed order was circulated to counsel or whether any party objected to it before
the trial court signed it on November 7, 2012. The order appointed Randazzo as
“Receiver/Special Master for the remainder of the pendency of this litigation” (the
“Appointment Order”). The trial court also entered a separate “Order Opening
7 The order indicates that it was prepared by Randazzo, but the line for his signature is blank.
7 Registry Account and Requiring Registry Payment,” also apparently prepared by
Randazzo, to pay him for his services (collectively with the Appointment Order, the
“November 7 Orders”).8
The Appointment Order provided that:
[the] Receiver/Special Master shall determine as a result of his own examination or after hearing evidence from all related parties the following:
1) The value of assets held by [MVP];
2) Whether any of the [MVP] partners are in default of their obligations under the partnership agreement;
3) Whether [Alpha Soda] or any [MVP] partners have been unjustly enriched based on loans and rent transactions between the two parties;
4) Whether [MVP] should undergo a partnership dissolution;
5) Whether any parties have breached any fiduciary duties and any related damages;
8 That same day, and just a few minutes after the trial court entered the November 7 Orders, Vranas filed an amended motion to request the appointment of “an auditor or a receiver.” Thus, it appears that the trial court did not consider this amended motion before issuing the November 7 Orders.
8 6) Whether attorney fees should be awarded to any parties; and
7) Any other issues that may arrive or become relevant.
The Appointment Order also “immediately, preliminarily and permanently enjoined”
Petrakopoulos, Mellas and Alpha Soda from interfering with the Receiver/Special
Master or taking certain actions in connection with their business. Petrakopoulos,
Mellas and Alpha Soda subsequently filed a direct appeal of the November 7 Orders.
1. As an initial matter, we must determine whether we have jurisdiction to
consider this appeal. See American Mgmt. Svcs. East, Inc. v. Fort Benning Family
Communities, LLC, 318 Ga. App. 827, 828 (1) (734 SE2d 833) (2012) (“It is
incumbent upon this Court to inquire into its own jurisdiction”) (citation and
punctuation omitted). Vranas filed a motion to dismiss the appeal, arguing that a
direct appeal was not authorized from the November 7 Orders because although the
trial judge stated in the Appointment Order that he was appointing a “receiver/special
master,” he was actually appointing an auditor, which Vranas asserts is not an
appealable order.
However, in addition to appointing a “receiver/special master,” the
Appointment Order issued an immediate, preliminary and permanent injunction
9 against Petrakopoulos, Mellas, and Alpha Soda. Subsection (a) (4) of OCGA § 5-6-34
allows direct appeals from “[a]ll judgments or orders . . . for interlocutory or final
injunctions.” (Emphasis supplied.) Vranas argues that the injunctive relief ordered by
the trial court in the Appointment Order was insufficient to allow for a direct appeal
because it was merely ancillary to the appointment of Randazzo as an auditor. But
because the Appointment Order’s injunction is both permanent and extremely broad,
it goes beyond merely facilitating Randazzo’s appointment. For example, as written,
the injunction permanently prevents Petrakopoulos, Mellas, and Alpha Soda from
“making any business related disbursements,” from “making any . . . loans,” and from
“selling, destroying or depleting any asset” in their possession without limiting the
injunction to the partnership accounts, assets or business. The November 7 Orders,
therefore, are appealable under OCGA § 5-6-34 (a) (4). See also OCGA § 5-6-34 (d).
Accordingly, we find that we have jurisdiction over this appeal, and Vranas’s
motion to dismiss is denied.
2. Petrakopoulos, Mellas and Alpha Soda assert that the trial court erred in
appointing a receiver/special master and granting injunctive relief without notice and
a hearing. But Vranas again asserts that Randazzo was appointed as an auditor, not
10 a receiver, and the parties received notice and a hearing with regard to the
appointment of an auditor.
We review the trial court’s decision appointing an auditor, a receiver, and/or
a special master for an abuse of discretion. See Alston & Bird, LLP v. Mellon
Ventures II, L.P., 307 Ga. App. 640, 647 (6) (a) (706 SE2d 652) (2010); E. I. DuPont
de Nemours & Co. v. Waters, 287 Ga. 235, 236 (695 SE2d 265) (2010); Treu v.
Humanism Inv., Inc., 284 Ga. 657, 659 (670 SE2d 409) (2008).
It is undisputed that the trial court provided the parties notice and a hearing
with regard to the appointment of an auditor. And it was at that hearing that the
appointee, Randazzo, first raised the possibility that he should be appointed as a
receiver and/or a special master. Thus, the parties had no prior notice that the
appointment of a receiver or a special master would be considered by the trial court.
And although at one point, the trial court referred to Randazzo as a “special master,
receiver/special master – he is what he is,” the court also subsequently referred to
Randazzo as an “auditor.” Accordingly, the trial court never specifically indicated
that it would be appointing Randazzo as a receiver/special master at the hearing.
Georgia law distinguishes between the role played by a receiver and an auditor.
A trial court may appoint an auditor in all cases “involving matters of account, if the
11 case shall require it,” “to investigate the matters of account and report the result to the
court.” OCGA § 9-7-3. Thus, “unless modified by the order of appointment,”an
auditor generally is granted the authority “to hear motions, allow amendments, and
pass upon all questions of law and fact,” including the “power to subpoena and swear
witnesses and compel the production of papers.” OCGA § 9-7-6. And “[u]nder
OCGA § 9-7-1, the duties previously performed by a ‘master’ in the superior court
are now performed by an ‘auditor,’ although Uniform Superior Court Rule (“USCR”)
46, which was adopted effective June 4, 2009, permits the trial court to appoint a
special master to perform certain duties enumerated therein.” (Citation omitted.)
Mellon, 307 Ga. App. at 642 (1).
Uniform Superior Court Rule 46 lists a number of tasks for which a special
master may be appointed, including “to investigate and report to the court on matters
identified by the court,” USCR 46 (A) (1) (e), “to conduct an accounting,” USCR 46
(A) (1) (f), and to “make or recommend findings of fact on issues to be decided by the
court without a jury if appointment is warranted by . . . the need to perform an
accounting, to resolve a difficult computation of damages.” USCR 46 (A) (1) (h) (ii).
The rule also requires that “[t]he court must give notice and an opportunity to be
heard before appointing a master.” USCR 46 (B) (1).
12 In contrast, a receiver is generally appointed “[w]hen any fund or property is
in litigation and the rights of either or both parties cannot otherwise be fully protected
or when there is a fund or property having no one to manage it.” OCGA § 9-8-1.
Thus, for example, “[e]quity may appoint receivers to take possession of and protect
trust or joint property,” OCGA § 9-8-2, or to hold “assets charged with the payment
of debts where there is a manifest danger of loss, destruction, or material injury to
those interested.” OCGA § 9-8-3. Additionally, the Georgia Code provides that “[t]he
power of appointing receivers should be prudently and cautiously exercised and
except in clear and urgent cases should not be resorted to.” OCGA § 9-8-4. Although
in extraordinary circumstances, “a receiver may be appointed . . . without notice to
the . . . person having charge of the assets,” OCGA § 9-8-3, “[a] receiver ordinarily
should not be appointed without notice and hearing.” (Citations omitted.) Dixie-Land
Iron & Metal Co., Inc. v. Piedmont Iron & Metal Co., 233 Ga. 970, 972 (213 SE2d
897) (1975).
Thus, auditors and special masters primarily assist the trial court in resolving
issues in the litigation, while a receiver acts as a guardian over funds or property at
issue in the litigation and should be appointed only in clear and urgent cases. As the
Appointment Order makes no finding that this case presents a clear and urgent
13 situation and nothing in the order vests Randazzo with guardianship of the
partnership accounts or its other assets, it appears that, despite the order’s language
appointing Randazzo as a “receiver/special master,” the trial court actually intended
to appoint him in the capacity of an auditor and/or a special master to assist the trial
court in determining the issues in the case.
And even though the parties were on notice that the trial court was considering
the appointment of an auditor, the trial court’s failure to provide notice to the parties
and an opportunity to be heard before also appointing Randazzo as a special master
violated USCR 46 (B) (1) and thus was an abuse of discretion. See Standard Bldg.
Co., Inc. v. Schofield Interior Contractors, Inc., 315 Ga. App. 516, 520 (3) (726 SE2d
760) (2012).9 Moreover, Rule 46 requires that an order of appointment,
itself, must also contain specific enumerated provisions. . . . [For example,] the order must set forth, among other things, the special master’s duties, specific limits on the special master’s authority, and
9 This Court nevertheless refused to consider the issue of notice in that case because the appellants did not appeal or otherwise object to the appointment order, but rather waited until after the special master issued his report before contesting his appointment without notice. Standard Bldg. Co., 315 Ga. App. at 520 (3). We find that the appellants in this case raised a timely objection by appealing the appointment order.
14 standards for reviewing the special master’s orders, findings, and recommendations. Rule 46 (B) (2).
E.I. DuPont de Nemours, 287 Ga. at 238. The Appointment Order also fails to
comply with Rule 46 because it does not address all the issues mandated by the rule.
We find, therefore, that the Appointment Order is subject to reversal based upon its
failure to comply with Rule 46.
Additionally, Georgia law provides that no interlocutory injunction shall be
issued without notice to the adverse party, OCGA § 9-11-65 (a) (1), and likewise no
permanent injunction may be issued without the proper notice.
Before a court enters a permanent injunction, it must give notice of a hearing at which permanent injunctive relief will be considered, unless the parties agree otherwise. Here, the trial court failed to give such notice before the hearing[, nor was any injunctive relief mentioned at the hearing], and nothing in the record indicates that [Petrakopoulos, Mellas or Alpha Soda] consented to the entry of [any] injunction[, permanent or otherwise].
(Citation omitted.) Wang v. Liu, 292 Ga. 568, 572-573 (2) (740 SE2d 136) (2013).
See also Ferdinand v. City of Atlanta, 285 Ga. 121, 124 (674 SE2d 309) (2009) (trial
court’s erroneous issuance of a permanent injunction after hearing on city’s motion
for interlocutory injunction violated procedural notice requirements and could not be
15 affirmed under the “right for any reason” rule); Smith v. Guest Pond Club, Inc., 277
Ga. 143, 144-145 (1) (586 SE2d 623) (2003) (absent agreement of parties and entry
of consolidation order, trial court was not authorized to enter permanent injunction,
where scheduling order provided fair notice only of hearing to address request for
temporary restraining order). Here, the trial court issued both preliminary and
permanent injunctive relief without providing any prior notice that it was considering
such an award. The Appointment Order, therefore, is also subject to reversal on this
basis.
Accordingly, we reverse and remand for further proceedings in accordance
with this opinion.
3. Petrakopoulos, Mellas and Alpha Soda also assert that the trial court erred
in denying their motions for summary judgment as to certain of Vranas’s claims
seeking damages against Petrakopoulos, Mellas and Alpha Soda.10
10 We consider only the claims Petrokopoulos, Mellas and Alpha Soda properly raise and brief on appeal, and we deem abandoned for appeal any other arguments raised below in conjunction with the motions for summary judgment. See Sparks v. Jackson, 238 Ga. 599 (234 SE2d 514) (1977); Capital Land USA, Inc. v. Mitsubishi Motors Credit of America, Inc., 308 Ga. App. 71, 73 (2) (706 SE2d 590) (2011). For example, in their reply brief, the appellants reply to Vranas’s argument in his Appellee’s Brief regarding the application of the statute of limitation , but they do not assert on appeal that they are entitled to summary judgment on this ground, even though Petrakopoulos made such an argument below. Accordingly, we do not address
16 Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Citation omitted.) Davis v. VCP South, LLC, 321 Ga. App. 503, 503 (740 SE2d 410)
(2013).
In considering the issues on summary judgment, we note that the transactions
among the parties were numerous and somewhat complex, and in the absence of a full
accounting, factual questions remain as to their nature and scope. We now turn to the
individual claims asserted by Vranas.
(a) Fraud and Misrepresentation.11 In Vranas’s third amended complaint, he
asserted a claim of fraud based on allegations that Petrakopoulos and Mellas assured
him that Alpha Soda would continue to pay rent of $13,500 per month and common
area expense if Vranas would agree to sign the May 2009 Guaranty. He also alleged
the statute of limitation argument on appeal. 11 Because the parties share common arguments as to some of the claims, we address the arguments on summary judgment by claim, rather than by party.
17 that Petrakopoulos and Mellas fraudulently manipulated the partnership books and
commingled funds in an effort to oust him from the partnership.
We find that Vranas has presented sufficient evidence to raise jury issues with
regard to his fraud claims. For example, Vranas averred that Petrakopoulos assured
him that Alpha Soda would continue to pay over $13,000 in monthly rent it owed,
which induced Vranas to sign the May 2009 Guaranty, but Alpha Soda immediately
stopped paying rent after Vranas signed the guaranty. Vranas also asserted that
Mellas assured him that Alpha Soda had enough money to continue paying although
they did not discuss a particular amount of rent, inducing Vranas to sign the guaranty.
Petrakopoulos, Mellas and Alpha Soda argue on appeal that these representations
cannot be actionable, because they represent promises as to future events.
Although Petrakopoulos, Mellas and Alpha Soda are correct that “actionable
fraud cannot be based on statements and promises as to future events, there is an
exception to this proposition, which is that fraud may be predicated on a promise
made with a present intention not to perform.” (Citation omitted.) Kirkland v. Pioneer
Mach., Inc., 243 Ga. App. 694, 695 (534 SE2d 435) (2000). And the immediacy of
Alpha Soda’s announcement that it would no longer pay rent after Vranas signed the
guaranty raises factual issues as to whether the alleged representations of
18 Petrakopoulos and Mellas were made with such an intent. Moreover, Mellas’s alleged
statement also included a representation that Alpha Soda was sufficiently solvent to
pay its rent. “[F]alse representations of existing or current facts are actionable even
if combined with promises as to future events.” (Citation omitted.) Greenwald v.
Odom, 314 Ga. App. 46, 53 (1) (723 SE2d 305) (2012).
Accordingly, factual issues remain as to whether these representations were
false, whether they were made with a present intent not to perform, whether Vranas
reasonably relied on such representations, whether the representations and the May
2009 Guaranty prolonged Petrakopoulos’s and Mellas’s control of the partnership
affairs, and whether that resulted in damage to Vranas. Additionally, factual issues
remain as to whether Perakopoulos and Vranas were acting in their capacity as agents
for Alpha Soda in making these representations to Vranas. In Georgia, a corporation
is vicariously liable for the torts of its agents that are committed in the prosecution
of and within the scope of its business, Smith v. Hawks, 182 Ga. App. 379 (355 SE2d
669) (1987), including the agent’s fraudulent misrepresentations. Velten v. Regis B.
Lippert, Intercat, Inc., 985 F.2d 1515, 1522 (11th Cir. 1993).12 Further, factual issues
12 Having found that factual issues exist regarding Alpha Soda’s vicarious liability for fraud by its agents, which precludes summary judgment, we need not address the “reverse veil-piercing” argument raised by Alpha Soda in reply to
19 remain as to whether Petrakopoulos and Mellas supplied him with false or incomplete
partnership records or whether they fraudulently manipulated the books in order to
declare Vranas in default.
Accordingly, the trial court properly denied summary judgment on Vranas’s
fraud claims.
(c) Breach of Contract. Vranas asserted that Alpha Soda had agreed to repay
MVP for over $400,000 in loans, which loans included funds improperly diverted
from the partnership. In addition, he alleged that Alpha Soda owed MVP on account
past due rent, prorated taxes, insurance, utilities and common area expenses.
However, Alpha Soda argues, and we agree, that Vranas has no standing in his
individual capacity to seek recovery on Alpha Soda’s direct contractual obligations
to MVP; rather any such claim must be brought on behalf of the partnership. Hendry
v. Wells, 286 Ga. App. 774, 786-787 (2) (d) (650 SE2d 338) (2007); Thompson v.
McDonald, 84 Ga. 5 (2) (10 SE 448) (1889). Accordingly, the trial court erred in
Vranas’s assertion of this defense in his appellate brief. We note, however, that this Court recently rejected the application of such a theory in the context of fraud. Holiday Hospitality Franchising, Inc. v. Noons, __ Ga. App. __ (Case No. A12A2570, decided September 30, 2013). See also Acree v. McMahan, 276 Ga. 880, 881 (585 SE2d 873) (2003).
20 denying summary judgment to the extent that Vranas sought recovery individually on
any of Alpha Soda’s direct contractual obligations to MVP.
Nevertheless, the Complaint also alleges that Petrakopoulos and Mellas
improperly declared funds paid by Alpha Soda to MVP as their own loans and capital
contributions to the partnership and otherwise commingled the funds of Alpha Soda
and MVP in an effort to declare Vranas to be in default of the Partnership Agreement.
And we find that Vranas has presented sufficient evidence of unexplained or
contested transactions between Alpha Soda and the partnership to raise jury issues as
to whether Petrakopoulos and Mellas breached their obligation to Vranas under the
Partnership Agreement. Accordingly, the trial court properly denied summary
judgment on any breach of contract claims arising out of the Partnership Agreement.
21 (d) Unjust Enrichment. Alpha Soda asserts that Vranas also cannot assert a
claim against it for unjust enrichment because that theory applies only when no
contract exists.13 “Unjust enrichment applies when as a matter of fact there is no legal
contract, but when the party sought to be charged has been conferred a benefit by the
party contending an unjust enrichment which the benefitted party equitably ought to
return or compensate for.” (Citations and punctuation omitted.) Engram v. Engram,
265 Ga. 804, 807 (2) (463 SE2d 12) (1995). See also Smith v. McClung, 215 Ga. App.
786, 789 (3) (452 SE2d 229) (1994).
But as Alpha Soda argued with regard to the breach of contract claims, Vranas
had no contractual relationship with the company in his individual capacity. And
Vranas has asserted that Alpha Soda, as well as Petrakopoulos and Mellas in their
capacity as Alpha Soda shareholders, were unjustly enriched as a result of various
transactions at the expense of his interest in the partnership. Given the uncertainty
13 Only Alpha Soda briefed the issue of unjust enrichment on appeal, and based its argument on the Lease. Although Mellas and Petrokopoulos, both non-signatories to the Lease, asserted in their reply brief that Vranas’s appellate brief failed to address their arguments on the insufficiency of Vranas’s claim for unjust enrichment, they never raised any such arguments in their initial appellate brief. Accordingly, we do not address Vranas’s claims of unjust enrichment against Petrakopoulos and Mellas individually.
22 surrounding those transactions, Alpha Soda has failed to establish that it is entitled
to summary judgment on Vranas’s claims for unjust enrichment.
(e) Other claims. Similarly, because factual issues remain surrounding issues
of default under the Partnership Agreement, the breach of any duty owing thereunder,
and whether Petrakopoulos dissolved the partnership, we find that the trial court
properly denied summary judgment on Vranas’s claims of wrongful dissolution of the
partnership and breach of fiduciary duty. See Moses v. Jordan, 319 Ga. App. 706, 706
(738 SE2d 297) (2013) (“the gravamen of a wrongful dissolution claim is a partner’s
attempt to appropriate, through the dissolution, the assets or business of the
partnership, which may include prospective business, without adequate compensation
to the remaining partners.”) (citation and punctuation omitted); AAF-McQuay, Inc.
v. Willis, 308 Ga. App. 203, 211 (1) (c) (707 SE2d 508) (2011) (“Partners owe
fiduciary duties to one another to act in the “utmost good faith” and with the “finest
loyalty.”) (citation and punctuation omitted).14
14 Although Mellas argues that he should have been granted summary judgment on Vranas’s conversion claim, it does not appear that Vranas is asserting a separate claim based on that cause of action. Although the prayer for relief under Vranas’s claim for breach of contract, promissory estoppel and fraud in the Third Amended Complaint does use the word “conversion,” the complaint does not raise such a claim, and Vranas does not argue such a claim in opposition to the summary judgment motions or on appeal.
23 Accordingly, the trial court properly denied summary judgment as to those
claims.
Judgment affirmed in part and reversed in part. Andrews, P. J., and Dillard,
J., concur.