Claire v. Rue de Paris, Inc.
| Decision Date | 08 June 1977 |
| Docket Number | 32141 and 32160,Nos. 32140,s. 32140 |
| Citation | 236 S.E.2d 272,239 Ga. 191 |
| Parties | Serge CLAIRE v. RUE de PARIS, INC. Serge CLAIRE v. RUE de PARIS OF BUCKHEAD, INC. RUE de PARIS, INC., et al. v. Serge CLAIRE. |
| Court | Georgia Supreme Court |
Ridley & Nordin, Randy A. Nordin, Atlanta, for Claire.
Nicholson & Meals, Robert N. Meals, Jr., Alembik & Alembik, Judith M. Alembik, Atlanta, for Rue de Paris et al.
Cases numbered 32140 and 32141 are appeals to this court from an order of the Superior Court of Fulton County, Georgia, granting summary judgment in favor of the defendant in each case. Appellant here, plaintiff in the court below, filed identical petitions in Fulton Superior Court against the respective defendants, alleging in each that he is a shareholder in each of the defendant corporations, owning 331/3 per cent of all outstanding shares. Each complaint says that the acts of those in control of each corporation are illegal and/or fraudulent and the corporations and the plaintiff will suffer irreparable injury unless a dissolution is ordered. He alleges that the corporation assets are being misapplied and/or wasted. Each complaint is brought under Georgia Code Ann. § 22-1317. He seeks to recover attorney fees and by way of relief, asks that an injunction issue enjoining the officers and directors of each corporation from disposing of the corporate assets, that each corporation be dissolved, that costs be taxed against the defendant and general relief. Each defendant filed a timely answer, and Rue de Paris, Inc. filed a counterclaim against plaintiff. There was substantial discovery including the deposition of the plaintiff. Each defendant filed a motion for summary judgment. In opposition to those motions, plaintiff filed with the court four affidavits. One affiant said he had personally purchased and consumed on the premises of the Rue de Paris Restaurant alcoholic beverages on Sunday. Another said as a bartender he had been personally instructed by an owner of the Rue de Paris Restaurant how to mix water with alcoholic beverages sold and served at the restaurant and had been instructed to serve "watered down" alcoholic beverages to patrons. Another affiant declared that he had seen alcoholic beverages served on Sunday at Rue de Paris of Buckhead, Inc. and that he had been served alcoholic beverages on Sundays by employees of Rue de Paris of Buckhead, Inc. Another affiant confirmed that he had purchased and consumed on the premises of the Rue de Paris Restaurant alcoholic beverages on Sundays. Another confirmed that she had been employed by the defendants as a bookkeeper from the date of incorporation until June, 1975. She swore that during that period cash sales were regularly voided on the cash register and the proceeds therefrom were not reflected on defendants' accounting statements or tax returns as income; and that this practice was instituted on the express instructions of Aaron Alembik, an officer and director of defendants; that cash so withheld from defendants' income was received by the current officers of the corporation; and that the accounting records of the defendants after the termination of plaintiff's services led the witness to believe that the practice was continuing and that the shareholders were being damaged thereby.
The deposition of the plaintiff showed that he and two other principals organized each of the corporations for the purpose of carrying on restaurant businesses and each of the parties received one-third of the outstanding capital stock in each corporation; that Rue de Paris, Inc., was organized first, with plaintiff in charge of the day to day operation of that restaurant business which was located in what is known as the Underground area of the City of Atlanta; and that there were intercompany transactions. He also testified that he took money from the cash register for his friends to drink; that the three of them, witness, and the other two principals, took $50.00 a week cash out of the business; and that he also charged personal expenses such as long distance telephone calls to Europe and flowers for his wife to the company for which no reimbursement was made. He testified that he had an agreement with the other owners to take home food and liquor for personal consumption, and he also gave to a personal friend a case of wine because "we did not have it on the inventory, anyway." He admitted receiving money from liquor sales the bartender did not account for on the register. The trial judge sustained defendants' motions for summary judgment and plaintiff appeals. We affirm.
Georgia Code Section 22-1317(a)(1)(B). "Jurisdiction of court to liquidate assets and business of corporation....
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