Am. Mgmt. Servs. E., LLC v. Fort Benning Family Cmtys., LLC, A15A0125.
Citation | 333 Ga.App. 664,774 S.E.2d 233 |
Decision Date | 15 July 2015 |
Docket Number | No. A15A0125.,A15A0125. |
Parties | AMERICAN MANAGEMENT SERVICES EAST, LLC, et al. v. FORT BENNING FAMILY COMMUNITIES, LLC, et al. |
Court | Georgia Court of Appeals |
Greenberg Traurig, Michael J. King, Stephanie O. Mitchell, Page, SCrantom, Sprouse, Tucker & Ford, William L. Tucker, Marcus B. Calhoun, Jr., Thomas F. Gristina, for Appellants.
Buchanan and Land, Jerry A. Buchanan, Lori M. Leonardo, Bondurant, Mixson & Elmore, Michael B. Terry, Bret R. Hobson ; The Finley Firm, James B. Finley, Andrew M. Gibson, Austin J. Hemmer, R. Walker Garrett, for Appellees.
This appeal from two summary judgment orders is the third appearance of this case before this court.1 In American Management I, the court stated the facts as follows.
In American Management I, AMS and AMSE (hereinafter collectively “Pinnacle”) appealed the trial court's grant of Fort Benning Family Communities LLC (hereinafter “FBFC”) and Fort Belvoir Residential Communities, LLC's (hereinafter “FBRC”) motion to enjoin Pinnacle from pursuing a Virginia action, which action it filed after it had filed in the instant (Georgia) suit an answer, counterclaim, motion to dismiss the action, and motion to dismiss the declaratory judgment claim related to the termination of the Fort Belvoir property management agreement (“PMA”) under the doctrine of forum non conveniens. Pinnacle also appealed the trial court's denial of its motion to dismiss the declaratory judgment claim for forum non conveniens.6 This court affirmed the judgment of the trial court.7
In American Management II, Pinnacle appealed the trial court's order (entered October 2011) which lifted the restriction in an earlier injunction that had prohibited FBRC from removing Pinnacle as property manager at the Fort Belvoir facility.8 This court affirmed that judgment, too.9
While American Management II was on appeal, Pinnacle filed in the instant action an amended counterclaim, adding, inter alia, a claim against FBFC alleging breach of contract for wrongful termination; Pinnacle asserted that in June 2010, it was “physically ... forced out ... as the property manager,” and “others” were installed to perform its duties. Pinnacle later filed a “Second Amended Counterclaim,” wherein it, among other things, added a claim against FBRC for breach of contract for wrongful termination.
FBFC and FBRC (hereinafter, collectively “the Owners”) amended their complaint seven times, ultimately dropping their claims for declaratory judgment as to whether their PMAs with Pinnacle automatically terminated for cause, adding a claim for violation of Georgia's RICO statute, and maintaining their initial claims for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, fraud, conspiracy to commit fraud, and unjust enrichment.
On January 17, 2014, the Owners filed a motion for summary judgment, which they later amended after Pinnacle filed its second amended counterclaim; in an amended brief the Owners asserted that they were entitled to judgment as a matter of law on four counts of Pinnacle's second amended counterclaim, which counts alleged a breach of contract for wrongful termination of both PMAs (two counts), the failure to pay AMSE for reimbursable expenses, and the failure to pay AMSE a certain fee for supervising a mold abatement project to completion and under budget. On January 24, 2014, Pinnacle filed a motion for partial summary judgment as to claims alleged in the Owners' seventh amended complaint, including those for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, fraud, conspiracy to commit fraud, RICO, and unjust enrichment.
On March 20, 2014, the trial court entered an order granting the Owners' motion for summary judgment as to Pinnacle's two wrongful termination claims, and denying the Owners' motion with regard to Pinnacle's claims based on the failure to pay AMSE the expenses and fee (as set out above). On the same day, in a separate order, the trial court denied Pinnacle's motion for partial summary judgment with regard to the Owners' complaint. It is from these two orders that Pinnacle appeals.
On appeal, Pinnacle contends that the trial court erred by: (1) granting summary judgment in favor of the Owners as to AMSE's counterclaim for wrongful termination of the PMAs; (2) failing to apply Virginia's economic loss rule to bar FBRC's tort claims; (3) denying Pinnacle's motion for summary judgment as to the Owners' claim for breach of fiduciary duty; (4) denying Pinnacle's motion for summary judgment as to the Owners' claim for aiding and abetting a breach of fiduciary duty; (5) denying Pinnacle's motion for summary judgment as to FBRC's claims under Georgia's RICO statute; and (6) denying Pinnacle's motion for summary judgment as to the Owners' unjust enrichment claim.
(a) Pinnacle argues that statements in affidavits upon which the trial court relied “raised myriad issues of disputed facts,” precluding summary judgment.
The PMAs provided that AMSE would receive an annual base fee (plus reimbursement of certain expenses) as well as the opportunity to earn a property management incentive fee. AMSE's incentive fee was based on various factors, including its timeliness (evaluated on a “pass/fail” basis) in responding to resident requests for maintenance; the requests were entered by Pinnacle as “work orders” into a certain database utilized by Pinnacle. An investigation undertaken at Pinnacle's behest revealed that although managers at Fort Belvoir did not direct...
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