Continental Inv. Corp. v. Cherry, Nos. 46181
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | DEEN; BELL; WHITMAN; EBERHARDT; PANNELL; I am authorized to say that EBERHARDT |
| Citation | 124 Ga.App. 863,186 S.E.2d 301 |
| Parties | CONTINENTAL INVESTMENT CORPORATION v. James D. CHERRY et al. CONTINENTAL INVESTMENT CORPORATION v. E. W. VanHOUTEN |
| Decision Date | 13 October 1971 |
| Docket Number | Nos. 1,2,46182,Nos. 46181,3 |
Page 301
v.
James D. CHERRY et al.
CONTINENTAL INVESTMENT CORPORATION
v.
E. W. VanHOUTEN.
Rehearing Denied Nov. 16, 1971.
Syllabus by the Court
1. The motion to dismiss the appeal is denied.
2. In a complaint by a corporation against its directors on the theory of conspiracy to defraud, the facts constituting the fraudulent dealing must be alleged with sufficient specificity to show a relation to identifiable transactions. Mere conclusions with no showing of a basis of fact are insufficient. Only after this statutory requirement is met can the rule be applied that the complaint will not be dismissed unless it appears that the plaintiff would not be entitled to relief under any state of facts that could be proved to support the claim.
The appellant corporation sued its defendant directors for damages based on their alleged fraud and breach of fiduciary obligations to it. A motion to dismiss for failure to state a claim and a motion for more definite statement were filed; the
Page 302
plaintiff amended and grounded its claim on the averments that between [124 Ga.App. 864] 1958 and 1965 the defendants conspired together to exploit the plaintiff's corporate assets for their personal benefit; that properties owned by the defendants were sold to the plaintiff at grossly inflated prices; that they wrongfully realized substantial profits at the expense of the plaintiff; that they regularly received salaries and other compensation for which no services were rendered; that through the use of dummy corporations, strawmen and other individuals and organizations unknown to plaintiff they purchased parcels of real estate and resold them to plaintiff at grossly inflated prices; that they sold property owned by the plaintiff to other corporations, organizations and individuals at prices much less than their true value in order to benefit themselves individually, that they misrepresented the true facts surrounding their purchases and sales to the plaintiff and its stockholders and that these fraudulent misrepresentations of the facts and circumstances surrounding the purchase and sale of real estate were in violation of their fiduciary duty and obligations to plaintiff's shareholders and constituted fraud. The court sustained the motion for dismissal on the pleadings. The dual appeal was necessitated by the fact that orders taken as to various defendants were sustained on separate dates.Peek, Whaley & Haldi, Glenville Haldi, J. Robert Hardcastle, Atlanta, for appellant.
Arnall, Golden & Gregory, Cleburne E. Gregory, Jr., Alexander Cocalis, Elliott H. Levitas, Jones & Somers, John Paul Jones, Sam G. Dettelbach, Atlanta, for appellees.
DEEN, Judge.
1. Defendants have moved to dismiss the appeal in this court in Case No. 46181 on the ground that an unreasonable time elapsed between the mailing by the clerk of the trial court of a second bill for costs (the initial bill having been paid and additional costs having accrued thereafter) payment for which latter was not received until thirteen days after the billing date. The trial court may only dismiss on such a motion when there has been 'an unreasonable delay in the transmission of the record to the appellate court, and it is seen that such delay was inexcusable and was caused by the failure of a party to pay costs in the trial court.' Code Ann. § 6-809(b). The statute does not indicate what amount of delay will be adjudged unreasonable and inexcusable, [124 Ga.App. 865] but this is a rule for the benefit of the appellate court and the length of time involved to reach such result must be presumed within its discretion under the circumstances of the case. It has been suggested in our previous decisions that a delay of over thirty days may prima facie be so considered. Jones v. State, 123 Ga.App. 672, 182 S.E.2d 190; Lake Spivey Parks, Inc. v. Jones, ...
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Sisk v. Patel, A94A1929
...214 Ga.App. 7, 9(1), 446 S.E.2d 774 (1994). 2 This view goes back to a statement by this court in Continental Invest. Corp. v. Cherry, 124 Ga.App. 863, 865(2), 186 S.E.2d 301 (1971), regarding claims of fraud under OCGA § 9-11-9(b). At that time, the requirement for malpractice affidavits d......
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Gwinnett Property, N.V. v. G+H Montage GmbH, s. A94A1813-A94A1815
...of the claim which he must meet." (Citations and punctuation omitted; emphasis in original.) Continental Invest. Corp. v. Cherry, 124 Ga.App. 863, 865(2), 186 S.E.2d 301 (1971). In a fraudulent conveyances claim asserted under OCGA § 18-2-22, the requirement that fraud be pled with particul......
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Robbins v. National Bank of Georgia, 33524
...that fraud has been committed, as required by Code Ann. § 81A-109(b) (Ga.L.1966, pp. 609, 620). Continental Investment Corp. v. Cherry, 124 Ga.App. 863(2), 186 S.E.2d 301 (1971). As we have held in Division 1, supra, the appellees were under no duty to discover and inform the appellant of t......
-
Cochran v. McCollum, 29062
...recognized by this court in Martin v. Approved Bancredit Corp., 224 Ga. 550, 163 S.E.2d 885. In Continental Investment Corp. v. Cherry, 124 Ga.App. 863, 865, 186 S.E.2d 301, 302, it was said: 'Code Ann. § 81A-109(b) which is in the language of Rule 9(b) of the Federal Rules of Civil Procedu......
-
Sisk v. Patel, A94A1929
...214 Ga.App. 7, 9(1), 446 S.E.2d 774 (1994). 2 This view goes back to a statement by this court in Continental Invest. Corp. v. Cherry, 124 Ga.App. 863, 865(2), 186 S.E.2d 301 (1971), regarding claims of fraud under OCGA § 9-11-9(b). At that time, the requirement for malpractice affidavits d......
-
Gwinnett Property, N.V. v. G+H Montage GmbH, s. A94A1813-A94A1815
...of the claim which he must meet." (Citations and punctuation omitted; emphasis in original.) Continental Invest. Corp. v. Cherry, 124 Ga.App. 863, 865(2), 186 S.E.2d 301 (1971). In a fraudulent conveyances claim asserted under OCGA § 18-2-22, the requirement that fraud be pled with particul......
-
Robbins v. National Bank of Georgia, 33524
...that fraud has been committed, as required by Code Ann. § 81A-109(b) (Ga.L.1966, pp. 609, 620). Continental Investment Corp. v. Cherry, 124 Ga.App. 863(2), 186 S.E.2d 301 (1971). As we have held in Division 1, supra, the appellees were under no duty to discover and inform the appellant of t......
-
Cochran v. McCollum, 29062
...recognized by this court in Martin v. Approved Bancredit Corp., 224 Ga. 550, 163 S.E.2d 885. In Continental Investment Corp. v. Cherry, 124 Ga.App. 863, 865, 186 S.E.2d 301, 302, it was said: 'Code Ann. § 81A-109(b) which is in the language of Rule 9(b) of the Federal Rules of Civil Procedu......