SANDRA CLARKE v. DYE-MASTER, GROUP, INC.

• Court: Court of Appeals of Georgia
• Decided: June 25, 2024
• Docket: A24A0093
• Status: Published

Opinion

SECOND DIVISION MILLER, P. J., MARKLE and LAND, 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. https://www.gaappeals.us/rules

June 25, 2024

In the Court of Appeals of Georgia A24A0093. CLARKE v. DYE-MASTER GROUP, INC. et al.

MARKLE, Judge.

After Sandra Clarke failed to pay Dye-Master Group, Inc. and American

Property Restoration, Inc. (collectively “Appellees”) for renovation work completed

on her home, the Appellees sued Clarke for breach of contract, conversion, violations

of the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act, and

to foreclose on liens they filed on the property.1 A jury found in Appellees’ favor, and

awarded more than $365,000 in damages and attorney fees. Clarke now appeals,

arguing that the trial court erred by (1) denying her motion for summary judgment;

1 Appellees originally named Clarke’s mortgage company, Specialized Loan Servicing, LLC, in the complaint because it held some of the funds, but they later dismissed that defendant. (2) granting a motion for contempt and striking her pleadings due to discovery

violations; (3) denying her motion to dismiss or for judgment on the pleadings; (4)

granting a motion in limine to exclude evidence showing that Dye-Master Group was

not licensed to act as a contractor; (5) denying her motion to recuse based on

comments the trial court made during a motions hearing; and (6) denying her motion

for judgment notwithstanding the verdict. For the reasons that follow, we affirm.

The record shows that, in 2016, Clarke’s home was damaged by fire, and she

hired Dye-Master Group (“DMG”) to perform remediation services.2 During the

clean-up, Clarke asked DMG about some renovation work, and DMG advised her that

it was not a licensed contractor. DMG recommended American Property Restoration

(“American”), which was licensed as a contractor. DMG and American then entered

into an agreement in which DMG would finance the renovation, American would

obtain the permits and perform the work, and the two companies would split the

profits. Clarke’s insurance company prepared an estimate of the repairs, which Clarke

gave to DMG. DMG and American prepared their own estimate, matching the same

amount, and Clarke approved it. DMG then provided funding to American to cover

2 DMG completed this work and was paid. 2 the renovation work. Clarke later made changes that added to the cost, bringing the

total to $198,498.75.

After American completed the work and the insurance company verified it,

Clarke signed a certification of completion, indicating that she was satisfied with the

renovation. Clarke’s insurance company then released the funds to Clarke’s

mortgagor. Despite her acceptance of the work, however, Clarke notified her

mortgage company that she had already paid the contractor, and she requested that

payment be sent to her directly.3 Once she received the money from the mortgagor,

Clarke deposited the funds into her own bank account, and refused to pay DMG.

DMG sent Clarke a demand letter and, when she failed to remit payment, DMG

and American filed suit against Clarke for breach of contract, conversion, and RICO

violations.4 They also placed liens on the property. Clarke answered and filed a

counterclaim, arguing that the allegations in the complaint demonstrated that DMG

3 Clarke did not merely make a single misleading statement to the mortgagor. She made several misrepresentations that she and the contractor were in dispute over the work, that the dispute had been resolved, and that she had already paid the contractor for the work. These statements are unsupported by the record. 4 The Appellees also pled, in the alternative, unjust enrichment, quantum meruit, and money had and received. 3 violated various statutes, including OCGA § 43-41-17, by providing renovation work

without the proper license.5

During her deposition testimony, Clarke stated that she had evidence showing

that she had paid DMG and purchased materials consistent with the information she

gave her mortgage company. She further stated that the work performed had been

substandard, requiring costly repairs. Clarke agreed to provide copies of those

financial documents to the Appellees. But after the deposition, counsel withdrew, and

the documents were not produced. DMG then sent Clarke’s new counsel another

request, but he failed to submit any responses despite his assurances that he would do

so. Appellees then moved for sanctions due to Clarke’s failure to respond to discovery

requests. Counsel responded that there were no documents that were relevant to the

request, and that Clarke had been unable to locate any of the financial records.

Counsel then argued that DMG acted unlawfully by representing that it had a license

to provide contractor services, and that, because it was in violation of the licensing

requirements, it had no right to seek payment or to obtain discovery.

5 Clarke made additional allegations that DMG improperly acted as an insurance adjustor, but she seems to have abandoned that argument during the proceedings and on appeal. 4 Clarke then moved for summary judgment, arguing that DMG violated

licensing regulations and thus any contract was unenforceable. In response, the

Appellees argued that there were no such violations because American completed all

the work, American was properly licensed, and American and DMG entered into a

joint venture for completion of the renovations. Clarke later supplemented her motion

to include the outcome of a complaint she filed with the state licensing board, which

resulted in DMG agreeing to a cease and desist order.

Following a hearing, the trial court denied the motion for summary judgment,

and ordered Clarke to respond to the pending discovery request within 30 days.

Despite the trial court’s order, Clarke did not provide any discovery, and the

Appellees filed a second motion for sanctions and for contempt. The trial court

deferred its ruling on the motion for sanctions and contempt and again ordered Clarke

to comply with discovery. When she failed to do so, the trial court granted the motion

for sanctions, noting that the discovery request had been pending for three years and

that Clarke had twice ignored the trial court’s orders to respond. Accordingly, the trial

court struck Clarke’s answer and entered a default judgment as to liability. The trial

5 court further found Clarke in criminal contempt for ignoring the court’s order, and

ordered her to pay a fine.

Clarke moved to vacate the order under OCGA § 9-11-60 (d) (3), and to dismiss

the complaint, or to grant judgment on the pleadings. In doing so, Clarke repeated her

argument that DMG violated licensing regulations and thus could not enforce the

contract. The trial court denied the motion, finding that the motion improperly relied

on documents outside the pleadings. The court further found that relief from

judgment under OCGA § 9-11-60 was not warranted.

Prior to trial, the Appellees filed a motion in limine to exclude any evidence of

the cease and desist order, as well as any argument that they could not collect because

DMG was unlicensed. The trial court granted the motion.

At trial, Clarke again raised the issue of DMG’s alleged violation of licensing

requirements and argued that she should be permitted to submit evidence to show that

the Appellees failed to state a claim and to have a jury instruction on the licensing

violations under OCGA § 43-41-17. The trial court reminded Clarke that she was in

default and the issue of liability was not before the jury. DMG and American then

testified to the amount of damages, and the Appellees’ attorneys testified to the

6 amount of their fees and expenses. The jury ultimately awarded damages, including

attorney fees, expenses, interest, and punitive damages, in excess of $365,000. Before

the trial court entered judgment, Clarke moved for judgment notwithstanding the

verdict (JNOV). Thereafter, the trial court entered judgment, without expressly

denying the motion for JNOV, and this appeal followed.

1. Summary judgment.

Clarke first argues that the trial court erred by denying her motion for summary

judgment because DMG was not licensed to act as a contractor; the agreement

between DMG and American did not create a valid joint venture; and as a result, the

Appellees could not enforce the contract. We disagree.

We review the denial of a motion for summary judgment de novo, viewing the

evidence and drawing all reasonable inferences from it in the light most favorable to

DMG and American as the nonmovants. Five Star Athlete Mgmt. v. Davis, 355 Ga.

App. 774, 775 (845 SE2d 754) (2020). “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.” (Citation omitted.) Id.

Generally, a ruling on a motion for summary judgment becomes moot following the verdict and judgment. However, a party may appeal

7 the denial of summary judgment as part of the direct appeal from the final judgment if the legal issues raised and resolved in denying the motion for summary judgment were not considered at trial.

(Citation and punctuation omitted.) Smith v. Saulsbury, 286 Ga. App. 322, 323 (1) (a)

(649 SE2d 344) (2007); see also City of College Park v. City of Sandersville, 361 Ga.

App. 529, 531 (1) (864 SE2d 680) (2021). Here, the jury did not consider whether the

statute barred the Appellees’ claims. Thus, we may reach this issue in Clarke’s direct

appeal. Smith, 286 Ga. App. at 323 (1) (a); see also Coregis Ins. Co. v. Nelson, 282 Ga.

App. 488, 489 (1) (639 SE2d 365) (2006).

Clarke contends that she was entitled to summary judgment based on violations

of OCGA § 43-41-17. That statute requires a contractor’s license for anyone

performing contracting work. OCGA § 43-41-17 (b). “Contracting” is defined as,

inter alia, “[t]he offering of contracting services and the negotiation of or bid or

proposal for engagement or a contract requiring performance of these services[.]”

OCGA § 43-41-2 (3); see also OCGA § 43-41-2 (4).

Generally, OCGA § 43-41-17 (b) bars enforcement of a contract where a license

was required and the performing party did not possess one. Restor-It v. Beck, 352 Ga.

App. 613, 623 (6) (835 SE2d 398) (2019); see also Bennett v. Cashin, 370 Ga. App. 335,

8 336-337 (2) (897 SE2d 483) (2024). However, “[n]otwithstanding any other provision

of law to the contrary, if a contract is rendered unenforceable under this

subsection, . . . [t]his subsection shall not affect the rights of parties other than the

unlicensed contractor to enforce contract, lien, or bond remedies.” OCGA § 43-41-17

(b).

Any determination of whether DMG violated the statutory licensing

requirements is only relevant if it engaged in contracting work. The evidence

presented at the summary judgment stage, viewed in the light most favorable to DMG

and American, creates genuine issues of material fact as to whether DMG engaged in

conduct that qualified as “contracting.” Clarke points to the Appellees’ own

allegations, the estimate submitted, and to the lien DMG filed indicating its was

licensed. She further contends that the so-called “joint venture” was not valid

because the agreement was insufficient to establish a joint venture and both DMG and

American had to possess licenses. DMG and American presented evidence, however,

that American was properly licensed, American created the estimate, and only

American did the work. Because there remained a factual question about DMG’s

conduct, the trial court properly denied summary judgment. Moreover, it is

9 undisputed that American possessed a license, and there is evidence that American

performed the work. As a result, regardless of the status of DMG’s claims, American

would not be barred from seeking payment for the work it performed. OCGA § 43-41-

17 (b). As a result, Clarke was not entitled to summary judgment as to American’s

claims.

2. Motion for contempt and stricken pleadings.

Clarke argues that the trial court erred by granting the motion for contempt and

striking her answer because the court’s order was “overreaching” and was drafted by

DMG’s counsel. She further asserts that, once her answer was stricken, the allegations

in the complaint still showed that DMG unlawfully acted as a contractor and, as such,

it could not seek to enforce the contract.

Although Clarke purports to challenge the contempt finding, striking of the

complaint, and issuance of a default judgment, the argument she offers in her brief is

just a continuation of her claims that DMG was unlicensed and could not collect

payment on a void contract. But Clarke cannot challenge the entry of default on the

grounds that no claim existed because the trial court entered the default judgment as

a discovery sanction. See Hansford v. Veal, 369 Ga. App. 641, 644 (1) (894 SE2d 215)

10 (2023) (“A party who has had a default judgment entered against it as a discovery

sanction has forfeited the right to argue that the complaint against that party is

inadequately pled.”) (citation and punctuation omitted); see also Jones v. Zezzo, 162

Ga. App. 281, 283 (290 SE2d 312) (1982) (“By his wilful contempt of the orders of

discovery of two judges, appellant has as a sanction suffered a default judgment and

thereby forfeited any claim that the cross complaint fails to state a cause of action.”).

Accordingly, this enumeration provides no basis to reverse the trial court’s judgment.

3. Motion to dismiss or for judgment on the pleadings.

Clarke next argues that the trial court erred by denying her motions to dismiss

and for judgment on the pleadings because DMG was unlicensed and the arrangement

between DMG and American was not a valid joint venture. In lieu of any argument,

however, Clarke directs this Court to the arguments and case law cited in her motions

before the trial court. Although her brief contains a recitation of the relevant

procedural history, she has cited no case law and failed to set out any argument

concerning the trial court’s alleged errors.

“To the extent that [Clarke] is attempting to incorporate by reference

additional arguments into her appellate brief, that practice is not approved by this

11 [C]ourt, and we decline to look in the record for matters which should have been set

forth in the brief.” (Citation and punctuation omitted.) Lundy v. Hancock County, 368

Ga. App. 772, 776 (3) (b) (890 SE2d 92) (2023); see also R&G Investments & Holdings

v. American Family Ins. Co., 337 Ga. App. 588, 591 (1) (787 SE2d 765) (2016) (in order

to comply with page limit for brief, appellant could not simply incorporate argument

from its motions in the trial court to raise argument on appeal); Court of Appeals Rule

23 (a) (“Parties may adopt, and are encouraged to adopt, all or a portion of another

brief in the same case or from another case pending in this Court. The party adopting

language from another brief shall specify precisely what portion of the other brief the

party is adopting and list the case number, if different.”) (emphasis supplied).

Accordingly, Clarke has not shown reversible error.

4. Motion in limine.

Clarke next argues that the trial court erred by granting the Appellees’ motion

in limine, precluding her from arguing that the contract was void because DMG was

in violation of OCGA § 43-41-17. But again, she has offered no argument in her brief

and instead merely adopts her motions filed in the trial court. Moreover, as she

mentions in her brief, the motion in limine excluded several different pieces of

12 evidence, but she has not argued how or why that evidence should have been admitted

at her trial for damages. Instead, she merely directs this court to the filings in the trial

court. As noted, doing so is insufficient to place the issue before this Court. Lundy,

368 Ga. App. at 776 (3) (b) Court of Appeals Rule 23 (a). Accordingly, there is no basis

to find reversible error.6 Lundy, 368 Ga. App. at 776 (3) (b).

5. Motion to recuse.

Clarke argues that the trial court abused its discretion by denying her motion

to recuse because, as evidenced by its comments, the trial court ignored legal authority

in order to ensure its own notions of fairness. Our review is for abuse of discretion,

and we cannot say the trial court abused its discretion here. Serdula v. State, 356 Ga.

App. 94, 97 (1) (845 SE2d 362) (2020); see also Bass v. Medy, 358 Ga. App. 827, 830

(2) (854 SE2d 763) (2021).

During a pre-trial hearing, the trial court indicated that it was surprised that

there was no criminal case against Clarke for theft by conversion, and expressed the

opinion that “people need to be paid for work they do.” Based on these comments,

6 In reaching this conclusion, we express no opinion on the merits of her argument that the contract was void because DMG and American violated OCGA § 43-41-17 (b). 13 Clarke moved the trial court to recuse under Uniform Superior Court Rule (USCR)

25.

Once again, Clarke’s brief fails to comply with our rules, as she cites no legal

authority to support her argument. Accordingly, we do not address it. Court of

Appeals Rule 25 (d) (1) (“Any enumeration of error that is not supported in the brief

by citation of authority or argument may be deemed abandoned”).

6. JNOV.

In her final enumeration of error, Clarke argues that the trial court erred by

denying her motion for JNOV. This enumeration presents nothing for us to review.

First, the trial court never ruled on this motion. “This court is for the

correction of errors of law, and where the trial court has not ruled on an issue, we will

not address it.” Williamson v. Strickland & Smith, 296 Ga. App. 1, 6 (7) (673 SE2d

858) (2009).

14 Moreover, Clarke merely adopts the motion she filed in the trial court and

presents no other argument in her brief. Thus, we need not address it.7 Lundy, 368 Ga.

App. at 776 (3) (b); Court of Appeals Rule 23 (a).

Judgment affirmed. Miller, P. J., and Land, J., concur.

7 Even if Clarke could overcome these hurdles, she failed to move for a directed verdict. And because she did not do so, she cannot raise these arguments in a motion for JNOV. Wilson v. Wernowsky, 355 Ga. App. 834, 837-838 (1) (846 SE2d 101) (2020). 15