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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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Court of Appeals of Georgia.
STOKER et al.
v.
BELLEMEADE, LLC et al.
Bellemeade, LLC et al.
Faircloth; and James Pleydell-Bouverie (collectively referred to as 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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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
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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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.))
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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
