978-1285770178 Case Printout Case CPC-03-10 Part 1

615 S.E.2d 1

Page 1

272 Ga.App. 817, 615 S.E.2d 1, 2005 WL 357420 (Ga.App.), 5 FCDR 501, 5 FCDR 1304

(Cite as: 615 S.E.2d 1, 2005 WL 357420 (Ga.App.))

Court of Appeals of Georgia.

STOKER et al.

v.

BELLEMEADE, LLC et al.

Bellemeade, LLC et al.

Stoker et al.

Westbury Properties, Inc.; Casa Cajco, Inc.; Benjh, LLC; Edward E.

Faircloth; and James Pleydell-Bouverie (collectively referred to as the

Westbury group), and included claims asserting breach of contract;

prejudice all of their claims against the LLC group, the LLC group filed

various counterclaims against the Stokers prior to the dismissal, which

remained pending. [FN1] The present appeal in Case No. A04A2108

and that the undisputed facts, viewed in the light most favorable to the

S.E.2d

618

(1998).

Case

No.

summa

615 S.E.2d 1

Page 2

272 Ga.App. 817, 615 S.E.2d 1, 2005 WL 357420 (Ga.App.), 5 FCDR 501, 5 FCDR 1304

(Cite as: 615 S.E.2d 1, 2005 WL 357420 (Ga.App.))

on their unjust enrichment claim against Casa Cajco, Inc. set forth in

Count 3 of their restated complaint. [FN2] Members of the Westbury

group, including Casa Cajco, were owners, managers, and developers of

a large tract of real property located in Houston County. The Stokers,

who were in the business of developing real property, entered into

various joint venture agreements with members of the Westbury group

pursuant to which the parties formed LLCs to develop various parcels of

recovery of damages on this claim was sought solely against Casa

Cajco, Inc.

**2 [1][2][3] The Stokers concede they have no enforceable contract with

Accordingly, the Stokers claim they are entitled to restitution from Casa

Cajco for the portion of the increased commercial property value

attributable to their participation in the development of the residential

Arthur Enterprises, Inc., 219 Ga.App. 124, 464 S.E.2d 225 (1995).

[4][5] The Stokers claim Casa Cajco and others induced them to jointly

develop the residential parcels by the oral promise of future participation

conferr

ed by

the

work

did not

unjustly

enrich

uez v.

Vision

Correct

S.E.2d

266

(2003);

530

S.E.2d

208

615 S.E.2d 1

Page 3

272 Ga.App. 817, 615 S.E.2d 1, 2005 WL 357420 (Ga.App.), 5 FCDR 501, 5 FCDR 1304

(Cite as: 615 S.E.2d 1, 2005 WL 357420 (Ga.App.))

received a benefit from another, he is liable to pay therefor only if the

circumstances of its receipt or retention are such that, as between the

two persons, it is unjust for him to retain it. The mere fact that a person

benefits another is not of itself sufficient to require the other to make

restitution therefor. Thus, one who improves his own land ordinarily

benefits his neighbors to *6 some extent, and one who makes a gift or

voluntarily pays money which he knows he does not owe confers a

decision right for any reason will be affirmed. Rodriguez, 260 Ga.App. at

480, 580 S.E.2d 266; Lau’s Corp., supra.

**3 2. The Stokers alleged in Count 1 of their restated complaint that,

LLCs and entered into LLC operating agreements. The written LLC

agreements were created for the purpose of developing portions of the

larger tract, but none of the agreements contained a description of the

OCGA ß 13-5-30(4); see Smith v. Cox, 247 Ga. 563, 277 S.E.2d 512

(1981); OCGA ß ß 13-5-31; 23-2-131(b).

[7] The Stokers contend that, when members of the Westbury group

include

d the

Stokers

‘

acquisit

ion of

an

d a

writing

to be

Piedmo

nt 120

Assoc.

101

(1993);

OCGA

615 S.E.2d 1

Page 4

272 Ga.App. 817, 615 S.E.2d 1, 2005 WL 357420 (Ga.App.), 5 FCDR 501, 5 FCDR 1304

(Cite as: 615 S.E.2d 1, 2005 WL 357420 (Ga.App.))

ledge this but contend there was a part performance of the oral

agreement which satisfied the Statute of Frauds.

[8] The writing requirement of the Statute of Frauds does not apply

“[w]here there has been such part performance of the contract as would

render it a fraud of the party refusing to comply if the court did not compel

a performance.” OCGA ß 13-5-31(3). The Stokers contend that the

written LLC agreements pursuant to which they and members of the

omitted); Rose v. Cain, 247 Ga.App. 481, 484-485, 544 S.E.2d 453

(2001). The Stokers’ joint development of some parcels pursuant to the

written LLC agreements may be consistent with an oral agreement to

agreements, so this result works no fraud within the meaning of OCGA ß

13-5-31(3). Accordingly, we find no evidence of part performance

sufficient to remove the alleged oral agreement from the Statute of

summary judgment against them on Count 6 of their restated complaint

asserting a direct claim (as members of the LLCs) that Westbury

Properties, Benjh, and Pleydell-Bouverie breached fiduciary duties owed

similar

circums

tances

in the

context

of

closely

corpora

te

context

damag

es for

breach

be

brought

as a

615 S.E.2d 1

Page 5

272 Ga.App. 817, 615 S.E.2d 1, 2005 WL 357420 (Ga.App.), 5 FCDR 501, 5 FCDR 1304

(Cite as: 615 S.E.2d 1, 2005 WL 357420 (Ga.App.))

tion. Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585, 397

S.E.2d 699 (1990). A shareholder has standing to bring a direct action,

seeking recovery on behalf of the shareholder individually, only if the suit

alleges a special injury separate and distinct from that suffered by other

shareholders, or alleges a wrong involving a shareholder contractual right

existing apart from any right of the corporation. Grace Bros., Ltd. v.

Farley Indus., 264 Ga. 817, 818-820, 450 S.E.2d 814 (1994). Applying

be proper in the context of a closely held corporation where the

circumstances show that the reasons for the general rule requiring a

derivative suit do not apply. Thomas v. Dickson, 250 Ga. 772, 774-775,

shareholders by increasing their share values. Id. at 774, 301 S.E.2d 49.

Because none of these reasons applied in the context of the closely held

corporation in Thomas, supra, the court found that a direct action by the

funds held by the LLC; and (3) improperly excluding the Stoker member

from LLC affairs. Since both members of the LLC in each claim are

parties to the suit, we find no danger of multiple suits and no concern that

creditor

s, the

record

does

not

reflect

any

rs have

offered

evidenc

court

properl

y

these

claims

in a

615 S.E.2d 1

Page 6

272 Ga.App. 817, 615 S.E.2d 1, 2005 WL 357420 (Ga.App.), 5 FCDR 501, 5 FCDR 1304

(Cite as: 615 S.E.2d 1, 2005 WL 357420 (Ga.App.))

775, 301 S.E.2d 49; LLC Member and Limited Partner Breach of

Fiduciary Duty Claims: Direct or Derivative Actions? 7 J. Small and

Emerging Bus. L. 19, 52-61 (2003).

In support of their argument that the Stokers were required to assert

these claims derivatively, the Westbury group defendants point out that in

Jamal v. Pirani, 227 Ga.App. 713, 714, 490 S.E.2d 140 (1997) and in

Carter v. Murphey, 256 Ga.App. 150, 152, 567 S.E.2d 326 (2002), which

statement first made in Jamal, supra, and followed in Carter, supra, that

the direct action exception applies only where evidence shows a close

corporation created pursuant to OCGA ß 14-2-901 et seq. We

found in Thomas, 250 Ga. 772, 301 S.E.2d 49, are present, even though

the corporation was not created pursuant to OCGA ß 14-2-901 et seq.

Grace Bros., 264 Ga. 817, 450 S.E.2d 814, does not hold otherwise.

shareholder in a statutory close corporation created pursuant to OCGA ß

14-2-901 et seq. has a statutory right to bring a direct action under

circumstances set forth in OCGA ß 14-2-940(a)(1). This merely

analog

ous

situatio

ns.

Accordi

ngly,

we now

The

Stokers

claim

r of *9

the

LLC

Bouveri

e)

violated