Renee Unlimited, Inc. v. City of Atlanta

• Decision Date: 20 November 2009
• Docket Number: No. A09A1306.,A09A1306.
• Citation: Renee Unlimited, Inc. v. City of Atlanta, 301 Ga. App. 254, 687 S.E.2d 233 (Ga. App. 2009)
• Parties: RENEE UNLIMITED, INC. et al. v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

687 S.E.2d 233

301 Ga. App. 254

RENEE UNLIMITED, INC. et al. v.CITY OF ATLANTA.

No. A09A1306.

Court of Appeals of Georgia.

November 20, 2009.

Breedlove, Lassiter & York, Jule C. Lassiter, Decatur, for appellants.

Hollowell, Foster & Gepp, Gary W. Diamond, Atlanta, LaShawn W. Terry, for appellee.

MILLER, Chief Judge.

The City of Atlanta(the "City") filed a complaint against Simbic, Inc.("Simbic"), Renee Unlimited, Inc.("Renee"), Joseph T. Bickers, MGG Properties, Inc.("MGG"), and Onward Financial, Inc.("Onward") alleging its entitlement to recover money the City loaned to Simbic under a federal housing loan program that was never repaid.The case proceeded to a jury trial on the City's claim that Renee and Bickers, as Simbic's alter egos, were unjustly enriched by loan proceeds disbursed by the City.The jury returned a verdict in the City's favor in the amount of $731,409.

Renee and Bickers now appeal, arguing that the trial court erred in (i) failing to decide, prior to trial, whether the City's claim against them was barred by the statute of limitation and (ii) failing to grant a directed verdict in their favor at trial.We conclude that Renee and Bickers failed to invoke a ruling before trial on their motion to dismiss on grounds that the City's claim was filed outside the statute of limitation and have waived the right to complain that the trial court erred in failing to rule on the motion.Renee and Bickers also failed to move for a directed verdict at trial.Thus, there is no error on that account.Renee and Bickers are nevertheless entitled to challenge the sufficiency of the evidence on appeal.We have reviewed the trial court's denial of their motion for new trial and entry of judgment on the jury's verdict.As there is some evidence to support the jury's verdict, we affirm.

"In reviewing a trial court's denial of a motion for new trial on the ground there was no evidence to support the verdict, this Court examines the record to determine whether there is any evidence to support the verdict."(Citation omitted.)Maddox v. Maddox,278 Ga. 606(1), 604 S.E.2d 784(2004).

Renee and Bickers were the only remaining defendants at the time of trial because the trial court previously entered default judgments against Simbic and MGG and granted the City and Onward's joint motion to dismiss, with prejudice, the City's claims against Onward and Onward's counterclaims against the City.SeeOCGA § 9-11-41(a)(2).The trial court also granted Renee's and Bickers's motion for summary judgment to the extent the City was attempting to recover from them on theories of fraud, fraudulent transfer, fraudulent misrepresentation, misappropriation of funds, and equitable lien.¹The trial court concluded, however, that "there is a question of fact for the jury as to whether or not [Bickers] and Renee were corporate alter egos of Simbic, and therefore whether or not they were unjustly enriched."

Prior to trial, Renee and Bickers's counsel agreed that his clients would not object to the authenticity of documents the parties previously had relied upon in their summary judgment motions.As such, the City offered a series of documents into evidence at trial but called no witnesses.Renee and Bickers rested after the City presented its case.

Viewed in the light most favorable to the jury's verdict (ALEA London Ltd. v. Woodcock,286 Ga.App. 572, 576(2), 649 S.E.2d 740(2007)), the City's evidence shows that at all relevant times, Bickers was the chief executive officer ("CEO") of Renee and also served as the CEO of Simbic until Simbic was dissolved in 2005.Bickers was also an owner of Renee and Simbic.On August 22, 1995, the Lucy Rucker Aiken Foundation (the "Foundation") sold its interest in an Atlanta apartment complex, West Lake Court Apartments ("West Lake"), to Simbic.In May 1999, Simbic transferred its ownership interest in West Lake to Renee by quitclaim deed but remained indebted to the Foundation under a Purchase Money Deed to Secure Debt and Security Agreement.Bickers executed the quitclaim deed on Simbic's behalf.

On August 9, 1999, the City and Bickers, on behalf of Simbic, executed a Loan Funding Agreement which provided that the City would loan Simbic up to $500,000 in U.S. Department of Housing and Urban Development funds for projects to be carried out at West Lake.On October 3, 2001, the City and Bickers, again on Simbic's behalf, entered into another such Loan Funding Agreement.This provided for an additional loan to Simbic of up to $400,000.

Between October 22, 1999 and July 18, 2002, the City issued a series of checks to "JT Bickers d/b/a Simbic—West Lake Court Apartments" totaling $731,409.Bickers signed a receipt for each of the checks.One of the checks, a December 1, 2000 check in the amount of $275,000, was endorsed by Bickers for the Foundation.The City issued a second check in the amount of $275,000 to Bickers on October 5, 2001, which was also used to make a payment to the Foundation.The remainder of the funds the City disbursed were paid over to a project management firm for rehabilitation work it performed at West Lake.After receiving payment of $550,000, the Foundation released its security interest in West Lake.

On July 24, 2004, Renee entered into a Commercial Purchase and Sale Agreement (the "Purchase Agreement") to sell West Lake to MGG for $1,777,778.The Purchase Agreement contained a special stipulation:

In the event that the $500,000.00 loan the seller received from the City of Atlanta becomes due and owing or payable, the seller agrees that it is the seller's obligation and responsibility to pay the debt and the seller agrees to subtract the $500,000.00 debt from the purchase price of the property to pay off the $500,000.00 loan.

At closing, Renee received $18,567.75 in cash and agreed to hold a second mortgage on West Lake in the amount of $956,850.54.

In connection with purchasing West Lake, MGG obtained financing from Property Funding Sources, Inc.("PFS"), but on or about September 29, 2005, MGG refinanced its indebtedness with a loan from Onward.In doing so, Renee agreed to subordinate its second mortgage to Onward's security interest in West Lake.MGG defaulted on this loan, and Onward foreclosed on West Lake and took title to the property under a deed under power.Neither Simbic, Renee, nor Bickers ever repaid the money the City disbursed via checks to Bickers.In its responses to the City's request for admissions, Renee admitted that it was aware that the City's disbursements constituted a loan that was meant to be repaid.There is no evidence, however, that Simbic and the City reached a written agreement as to the terms of repayment, including the due date.

1.Renee and Bickers claim that the trial court erred in failing or refusing to rule on whether the statute of limitation barred the City's unjust enrichment claim.We disagree.

Renee and Bickers raised the statute of limitation issue in their motion for summary judgment, but the matter was not specifically addressed by the trial court in its order denying the motion as to the City's unjust enrichment claim.Renee and Bickers then filed a motion to dismiss the City's unjust enrichment claim on statute of limitation grounds.The trial court initially declined to hear argument on the motion on the morning of trial, but Renee and Bickers raised the issue again after jury selection but before the presentation of evidence.The trial court again declined to rule on the motion to dismiss, eventually ruling that "I'll continue to keep that under advisement.Once we get a record, you can look at that record and maybe it will help you further deal with that aspect of the case.All right?"Renee's and Bickers's counsel responded, "All right."

Renee and Bickers argue that the trial court should have ruled as a matter of law that the statute of limitation had run and not left the issue for the jury."A litigant[, however,] cannot submit to a ruling, acquiesce in the ruling, and still complain of same."(Citation and punctuation omitted.)Fletcher v. Ellenburg,279 Ga. 52, 56(2), 609 S.E.2d 337(2005).Renee and Bickers did not object to the trial court's pronouncement that it would take the motion to dismiss under "advisement" and then failed to invoke a ruling at trial.Accordingly, they cannot now complain of the trial court's failure to rule on the motion.SeeDover v. State,250 Ga. 209, 212(4), 296 S.E.2d 710(1982).

2.In their second enumeration of error, Renee and Bickers claim that the trial court erred "in failing to grant Appellant's Directed Verdict at trial."The transcript shows, however, that Renee and Bickers failed to move for directed verdict at trial.Rather, after the jury returned its verdict, Renee and Bickers moved for a judgment notwithstanding the verdict.²"Failure to move for a directed verdict ... bars the party from contending on appeal that he is entitled to judgment as a matter of law because of insufficient evidence.This failure does not, however, bar the party from contending that he is entitled to a new trial on that ground."(Citations omitted.)Ga. Farm etc. v. Hyers,291 Ga.App. 316, 317(2), 661 S.E.2d 682(2008).SeeAldworth Co. v. England,281 Ga. 197, 198-201, 637 S.E.2d 198(2006).Renee and Bickers also moved for a new trial, which motion the trial court denied.Accordingly, we will "review the sufficiency of the evidence under the `any evidence' standard of review to determine if [Renee and Bickers] were entitled to a new trial" on the issues of unjust enrichment and alter ego.Id. at 201(2), 637 S.E.2d 198.

(a) Renee and Bickers contend that the evidence demanded a finding that the City's unjust enrichment claim was filed outside the four-year statute of limitation.SeeEvans v. Evans,237 Ga. 549, 553, 228 S.E.2d 857(1976)."The statute of limitation begins to run on any given claim on the date the claim accrues — in other words, on the date that suit on...