author: Rickman, Judge.

text:
    A17A0138.
    ROBERTS v. JP MORGAN CHASE BANK, NATIONAL ASSOCIATION et al.
    (802 SE2d 880)
   Rickman, Judge.

Homeowner James Roberts filed a complaint against JP Morgan Chase Bank, National Association (“Chase”), and Associated Credit Union (“ACU”), alleging claims for breach of contract, emotional distress, fraud, negligent misrepresentation, punitive damages, and attorney fees. The trial court, in two separate orders, granted separate motions to dismiss filed by Chase and ACU, on the ground that the complaint failed to state a claim upon which relief can be granted. Roberts appeals. For the reasons that follow, we affirm the trial court’s rulings as to the claim for emotional distress; we reverse the rulings as to the claims for breach of contract, fraud, negligent misrepresentation, and attorney fees; we affirm in part and reverse in part as to the claim for punitive damages; and we remand this case with direction and for further proceedings not inconsistent with this opinion.

“We review de novo the dismissal of a complaint for failure to state a claim.” (Citation omitted.) Benedict v. State Farm Bank, 309 Ga. App. 133, 134 (1) (709 SE2d 314) (2011). This Court will “accept as true all well-pled material allegations in the complaint and . . . resolve any doubts in favor of [Roberts].” (Citation and punctuation omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010). And in this appeal, because there is no indication that the trial court converted the motions to dismiss into motions for summary judgment, we consider documents attached only to the complaint and answers, and not any additional document attached to Roberts’ pleadings opposing the motions to dismiss. See Babalola v. HSBC Bank, USA, 324 Ga. App. 750, 751, n. 4 (751 SE2d 545) (2013).

The complaint, answers, and the exhibits attached thereto show the following. In June 2009, Roberts obtained a loan from Chase in the amount of $265,255, to refinance a prior loan secured by Roberts’ home property. The June 2009 loan (hereinafter “the Chase Loan” or “mortgage loan”) is secured by a security deed executed by Roberts in favor of Chase and filed on July 9, 2009. The security deed provides that Roberts and Chase did “covenant and agree” to the provisions set forth in 26 paragraphs of the security deed. Paragraph 19 of the security deed, entitled “Borrower’s Right to Reinstate After Acceleration,” provides the mechanism for reinstatement, which includes curing the default of any covenant or agreement under the deed or note. Paragraph 19 further provides: “Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain fully effective as if no acceleration had occurred.”

In October 2009, Roberts entered into a home equity line of credit agreement with ACU, in the amount of $100,000. The October 2009 loan (hereinafter “the HELOC Loan”) is secured by a “Deed to Secure Debt” executed by Roberts in favor of ACU and filed on October 8, 2009. Paragraph 5 of the deed to secure debt pertinently provides:

If Borrower fails to perform the covenants and agreements contained in this Deed, or if any action or proceeding is commenced which materially affects Lender’s interest in the Property,... then Lender at Lender’s option, upon notice to Borrower, may . . . disburse such sums and take such action as is necessary to protect Lender’s interest, including, but not limited to, disbursement of reasonable attorney’s fees .... Any amounts disbursed by Lender pursuant to this paragraph 5, with interest thereon, shall become additional indebtedness of Borrower secured by this Deed.

In 2013, Roberts fell behind on both his mortgage loan and the HELOC Loan. Chase began foreclosure proceedings; Chase also notified Roberts of the amount due in order to stop the foreclosure sale and reinstate his mortgage loan, and of the time period within which to pay the reinstatement amount.

Three days before the expiration of the reinstatement period, Roberts paid the requisite amount to stop foreclosure and reinstate the Chase Loan, i.e., his mortgage loan with Chase, and on that same day he executed a document entitled “Reinstatement Agreement.” The reinstatement agreement listed Chase as the “Lender” and Roberts as the “Borrower,” and provided that henceforth “strict and complete compliance with the terms of the Note and Security Deed in effect immediately prior to Borrower’s default . . . including prompt payment of each monthly installment when due” would be required. A representative from a company employed by Chase’s law firm also signed the reinstatement agreement, acknowledging receipt of the funds “to cancel the pending foreclosure sale.”

One day past the reinstatement period, ACU paid Chase $261,410.43, representing the full amount of the Chase Loan. Thereafter, Chase cancelled the security deed and closed Roberts’ mortgage loan account. ACU added the Chase Loan pay-off amount to Roberts’ HELOC Loan.

After ACU’s pay-off to Chase, Roberts’ monthly loan payment/ indebtedness on his property increasedby $1,225.97. Roberts repeatedly contacted Chase and requested a reinstatement of the Chase Loan, and although Chase promised to resolve the matter, the Chase Loan was not reinstated, resulting in Roberts filing the instant complaint. Roberts also alleged that as a consequence of the increased payment on his home indebtedness, he had to forego helping his daughter with college tuition, and he complains of fees and costs “incurred by ACU for their error” that have been added to the balance of his loan.

As against both Chase and ACU, Roberts asserted separate claims for breach of contract, and joint claims for emotional distress, punitive damages, and attorney fees. As against only Chase, Roberts asserted additional claims for fraud and negligent misrepresentation.

At a minimum, a complaint must contain “[a] short and plain statement of the claims showing that the pleader is entitled to relief,” OCGA § 9-11-8 (a) (2) (A), and this short and plain statement must include enough detail to afford the defendant fair notice of the nature of the claim and a fair opportunity to frame a responsive pleading. If a complaint gives the defendant fair notice of the nature of the claim, it should be dismissed for failure to state a claim only if, as our Supreme Court has explained, its allegations disclose with certainty that no set of facts consistent with the allegations could be proved that would entitle the plaintiff to the relief he seeks. Put another way, if, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. In assessing the sufficiency of the complaint, we view its allegations of fact in the light most favorable to the plaintiff.

(Citations and punctuation omitted.) Benedict, 309 Ga. App. at 134 (1). “[I]t is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim.” (Citation omitted.) Scott v. Scott, 311 Ga. App. 726, 729 (1) (716 SE2d 809) (2011).

1. Breach of Con tract. Roberts contends that the trial court erred in granting Chase’s and ACU’s motions to dismiss his breach of contract claims.

“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Citation and punctuation omitted.) Houghton v. Sacor Financial, 337 Ga. App. 254, 256 (1) (a) (786 SE2d 903) (2016). The security deed Roberts executed in favor of Chase contained a power of sale and was thus “a contract and its provisions are controlling as to the rights of the parties thereto and their privies.” (Citation and punctuation omitted.) Stewart v. SunTrust Mtg., 331 Ga. App. 635, 638 (3) (770 SE2d 892) (2015). Likewise, regarding the deed to secure debt Roberts executed in favor of ACU, “powers contained in a deed to secure debt are matters of contract, and will be enforced as written.” (Citation and punctuation omitted.) Hilton v. Millhaven Co., 158 Ga. App. 862, 863 (282 SE2d 415) (1981).

(a) Chase. Roberts’ breach of contract claim against Chase is based on Chase’s acceptance of payment from ACU after Roberts had timely paid the requisite amount to stop the foreclosure and reinstate his mortgage loan. The security deed and reinstatement agreement reflect that after Roberts cured the default on his mortgage loan, Roberts had the right to have enforcement of the security deed discontinued, and the security deed and the obligation secured thereby would remain fully effective under the terms applicable immediately prior to Roberts’ default, as if no acceleration of the debt had occurred. The complaint, coupled with the attached security deed and reinstatement agreement as exhibits thereto, was sufficient to put Chase on notice of the breach of contract claim being asserted against it. Therefore, the trial court erred in dismissing the breach of contract claim against Chase. See James v. Bank of America, 332 Ga. App. 365, 367-368 (2) (772 SE2d 812) (2015) (physical precedent only); Stewart, 331 Ga. App. at 638-639 (3); Babalola, 324 Ga. App. at 755 (2) (b).

(b) ACU. Roberts’ breach of contract claim against ACU is based on ACU’s payment in full of the mortgage loan after Roberts was no longer in default and was current on said loan. The deed to secure debt pertinently provides that ACU could “disburse such sums and take such action as is necessary to protect” its interest in the property The complaint, coupled with the attached deed to secure debt, security deed, and reinstatement agreement as exhibits thereto, was sufficient to put ACU on notice of the breach of contract claim being asserted against it. Therefore, the trial court erred in dismissing the breach of contract claim against ACU. See James, 332 Ga. App. at 367-368 (2); Stewart, 331 Ga. App. at 638-639 (3); Babalola, 324 Ga. App. at 755 (2) (b).

2. Emotional Distress. Roberts alleged that he suffered “mental anguish and emotional distress” due to the “negligent or intentional acts and/or omissions” of Chase and ACU.

“A claim of intentional infliction [of emotional distress] requires conduct that is of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.” (Citations and punctuation omitted.) Benedict, 309 Ga. App. at 138 (1) (b). Roberts’ complaint “says nothing at all about humiliation, embarrassment, fright, extreme outrage, or severe emotional distress,” and the allegations therein do not give fair notice to either Chase or ACU of a claim for intentional infliction of emotional distress. Id. “[F]or this reason, [Roberts] fails to state a claim for intentional infliction upon which relief can be granted.” Id. See James, 332 Ga. App. at 368 (3).

To the extent that Roberts asserts a claim for negligent infliction of emotional distress, he also fails. “In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” (Citation, punctuation and footnote omitted.) Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 584 (I) (533 SE2d 82) (2000). See Coon v. Med. Center, 300 Ga. 722, 734 (4) (797 SE2d 828) (2017) (explaining that in Lee, the Supreme Court of Georgia “recognize[d] a single, carefully circumscribed exception to the physical impact rule, [and] authorized] recovery of damages by a parent where the parent and her child both suffered a physical impact that caused them both physical injuries, even [where] the parent’s emotional distress arose not only from her physical injury but also from watching her child suffer and die”). In the instant case, there is no allegation of a physical impact. Therefore, the trial court did not err in granting the motions to dismiss as to the emotional distress claim. See generally Coon, 300 Ga. at 734-735 (4).

3. Fraud and Negligent Misrepresentation. “The tort of fraud requires a willful misrepresentation of a material fact, made to induce another to act, upon which such person acts [or avoids acting] to his injury” (Citation and punctuation omitted.) Weathers v. Dieniahmar Music, 337 Ga. App. 816, 824 (3) (788 SE2d 852) (2016). “[F]raud must be pled with particularity under OCGA § 9-11-9 (b)[.]” Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 284 Ga. App. 387, 394 (2) (b) (643 SE2d 864) (2007). But in Cochran v. McCollum, the Supreme Court of Georgia

held with respect to an initial motion to dismiss, or motion to strike, that a claim of fraud should not be dismissed unless it appears beyond doubt that the pleader can prove no set of facts in support of the claim which would entitle him to relief, and that the remedy at that stage of the pleading is not a motion to dismiss but a motion for more definite statement under [OCGA § 9-11-12 (e)].

(Footnotes omitted.) Tucker v. Chung Studio of Karate, 142 Ga. App. 818, 819-820 (3) (237 SE2d 223) (1977); OCGA § 9-11-12 (e). “[T]he only real distinction between negligent misrepresentation and fraud is the absence of the element of knowledge of the falsity of the information disclosed.” (Citations and punctuation omitted.) Holmes v. Grubman, 286 Ga. 636, 640-641 (1) (691 SE2d 196) (2010). Accordingly, we consider the two claims in conjunction with each other.

Roberts alleged that his fraud and negligent misrepresentation claims against Chase are based on Chase’s representations to reinstate the mortgage loan after Roberts paid the requisite reinstatement amount, and on subsequent promises made by Chase on “numerous occasions” to “rectify the mistake by reinstating his mortgage.” Roberts alleged that he justifiably relied upon Chase’s representations to his detriment, and that as a result of Chase’s conduct, he incurred “damages ... in an amount to be determined at trial.” It is too early in these proceedings for us to say beyond doubt that Roberts can prove no set of facts in support of the fraud and negligent misrepresentation claims which would entitle him to relief. But “[a]t the very least [Roberts] should designate the occasions on which affirmative misstatements were made and by whom and in what way they were acted upon.” (Citation omitted.) Diversified Holding Corp. v. Clayton McLendon, Inc., 120 Ga. App. 455, 456 (2) (170 SE2d 863) (1969). Roberts did not meet the requisite pleading standard, but the remedy is not dismissal of the claims. The trial court’s dismissal of the fraud and negligent misrepresentation claims is reversed, and the case is remanded with direction to treat the motion to dismiss as to those claims as a motion for a more definite statement under OCGA § 9-11-12 (e). See Tucker, 142 Ga. App. at 820 (3); see also Babalola, 324 Ga. App. at 755 (2) (c).

4. Punitive Damages. “[P]unitive damages are not available in breach of contract claims.” (Citations omitted.) Servicemaster Co. v. Martin, 252 Ga. App. 751, 757 (2) (c) (556 SE2d 517) (2001). But “[f]raud, if found, is tortious conduct [,] ” and will justify punitive damages. Diana v. Monroe, 132 Ga. App. 669, 671-672 (2) (209 SE2d 70) (1974). See Clark v. Aenchbacher, 143 Ga. App. 282, 284 (1) (238 SE2d 442) (1977) (“in an action for breach of contract, where there were matters of record relating to fraud, punitive damages can be awarded”) (citations omitted).

As concluded in Division 3, supra, the claim for fraud is not subject to dismissal at this stage of the proceedings. Therefore, the trial court did not err in dismissing the punitive damages claim as to ACU because the fraud claim, which can sustain punitive damages, was not asserted against ACU; but the court erred in dismissing the punitive damages claim as to Chase.

Decided June 27, 2017.

The Gibson Law Firm, Catherine Gibson McCauley, for appellant.

Kutak Rock, Brian F. Hansen; Gordon & Rees, Leslie K. Eason, Kimberly C. Sheridan, Parks K. Stone, Jeffrey W. Melcher, for appel-lee.

5. Attorney fees. Roberts alleged that pursuant to OCGA § 13-6-11, he is entitled to attorney fees on the ground that Chase and ACU have acted in bad faith, have been stubbornly litigious, and have caused him unnecessary trouble and expense.

“The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” (Citation and punctuation omitted.) Speir Ins. Agency v. Lee, 158 Ga.App. 512, 514 (4) (281 SE2d 279) (1981); OCGA § 13-6-11. “Successful plaintiffs may recover under OCGA § 13-6-11 attorney fees and expenses of litigation only to the extent they are attributable solely to the claims on which they prevailed.” (Citation omitted.) Magnus Homes v. DeRosa, 248 Ga. App. 31, 34 (3) (545 SE2d 166) (2001). If Roberts succeeds on any of his claims, fees expended in pursuit of the claims upon which he prevails are recoverable if he satisfies the requirements of OCGA § 13-6-11. See generally Fowler’s Holdings v. CLP Family Investments, 318 Ga. App. 73, 76(2) (732 SE2d 777) (2012) (“If the claim for breach of contract was successful, fees expended in pursuit of that claim are recoverable,” under OCGA § 13-6-11) (citation and emphasis omitted); Magnus Homes, 248 Ga. App. at 31, 33-34 (3) (affirming award of damages under OCGA § 13-6-11, in breach of contract and negligent construction case); Kopp v. First Bank of Ga., 235 Ga. App. 520, 524 (3) (509 SE2d 384) (1998) (“Every intentional tort, such as fraud, invokes the species of bad faith that under the provisions of . . . OCGA § 13-6-11 entitles the person wronged to recover the expense of litigation involving attorney’s fees.”) (citation and punctuation omitted). Accordingly, the trial court erred in dismissing the claim for attorney fees.

Judgment affirmed in part and reversed in part, and case remanded with direction and for further proceedings.

Ellington, P. J., and Andrews, J., concur.

       See McConnell v. Dept. of Labor, 337 Ga. App. 457 (787 SE2d 794) (2016) (“In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff. As an appellate court, we review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff’s favor.”) (citation and punctuation omitted).

       Chase and ACU each filed separate motions to dismiss on the ground of OCGA § 9-11-12 (b) (6), failure to state a claim upon which relief can be granted. There were no documents attached to either motion. But Roberts filed responses to each separate motion, and attached thereto various documents.

       Copies of the following documents were attached to the complaint as exhibits: a security deed executed in favor of Chase; a deed to secure debt executed in favor of ACU; a facsimile transmittal cover letter to Roberts, advising of a pending foreclosure sale and that payment of “[rjeinstatement funds” would stop the sale; a document entitled “Reinstatement Quote,” and providing the date the “ [r] einstatment amount” quoted therein is “ [g] ood through”; a document entitled “Reinstatement Agreement”; and a cashier’s check in the reinstatement amount. Chase attached to its answer a copy of a cancellation of deed to secure debt, executed by Chase. ACU attached to its answer a copy of a home equity line of credit note, and a document reflecting the principal balance on the HELOC note and amounts past due on the note.

       (Emphasis supplied.)

       See City Dodge v. Gardner, 232 Ga. 766, 770, n. 1 (208 SE2d 794) (1974) (“The five elements of fraud and deceit in Georgia are: (1) false representation made by the defendant; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from acting in reliance by the plaintiff; (4) justifiable reliance by the plaintiff; (5) damage to the plaintiff.”) (citation omitted).

       233 Ga. 104 (210 SE2d 13) (1974).

       See Tucker, 142 Ga. App. at 820-821 (3) (setting forth cases addressing the standard for pleading fraud, including Diversified Holding Corp., supra).


source: Caselaw Access Project

license: Public Domain

text:
    A17A0235.
    PATEL et al. v. PATEL.
    (802 SE2d 871)
   Rickman, Judge.

In this quiet title action, Roshni Patel and Chandani Patel (“the Patels”), acting at all times pro se, appeal the trial court’s dismissal of their notice of appeal as well as numerous orders preceding that dismissal, commencing with the trial court’s refusal to grant them a default judgment and its sua sponte appointment of a special master. Because we conclude that the error in this case began when the Patels were denied the entry of a default judgment and permeated throughout essentially every stage of these proceedings, we reverse in part, vacate in part, and remand this case for further proceedings consistent with this opinion.

The record shows that in September 2013, the Patels, who are brother and sister, filed a verified petition against their former stepmother, Deepali Patel (the “Defendant”), pursuant to OCGA § 23-3-40 et seq., seeking to quiet title to four tracts of real property located in Gwinnett County, Georgia (“the Properties”). The petition alleged that the Patels were the lawful owners of the Properties, and included copies of four deeds purporting to convey interest in the Properties to them, either jointly or individually. The petition further alleged that the Patels’ title to the Properties was clouded by four separate and allegedly defective deeds purporting to convey interest in the Properties to the Defendant. Of the deeds alleged to have been defective, two were allegedly signed by the Patels’ father, acting as the Patels’ attorney in fact, although the petition included a sworn affidavit in which he denied having executed the deeds on their behalf. The remaining two deeds were alleged to have been executed by an individual lacking the authority to do so.

After numerous attempts to serve the Defendant were unsuccessful, on December 3, 2013, the trial court issued an order authorizing the Patels to serve her by publication, and service by publication was thereafter effected. The Defendant never filed an answer or otherwise made an appearance in the case.

In March 2014, the Patels moved for a default judgment against the Defendant. Following a hearing attended by Roshni Patel, the trial court acknowledged that the Patels were seeking a default judgment, but instead of granting their motion, sua sponte appointed a special master pursuant to OCGA § 23-3-63, a statutory scheme not invoked by the Patels’ petition (the “Appointment Order”). The Appointment Order gave the special master full authority to control case management; entertain all motions and discovery; hold eviden-tiary hearings; and submit a report, which was to include findings of fact, conclusions of law, and a proposed final judgment and order, to the trial court. It further required the Patels to bear the costs of the special master at an hourly rate of $275.

The following week, the special master sent out a request pursuant to OCGA § 23-3-60 et seq. that the Patels file with the clerk “[a]ny abstract of title, title examination, and/or title report upon which [they] rely in the prosecution of this case; and . . . [p]lat of survey for each of the tracts of real property at issue in this case to the extent [the] same are not filed as part of any title examination.” Additionally, the special master filed an “initial report and recommendation,” in which he stated that the Defendant had not been served; noted that the petition lacked certain information required by OCGA § 23-3-62, namely a plat of survey and a recorded lis pendens for each of the Properties; and recommended that the Patels amend their petition to include the missing documents or face dismissal and serve the amended petition upon the Defendant.

The Patels filed a timely motion to set aside the Appointment Order, strenuously objecting to the appointment of a special master and explicitly stating that they were unable and unwilling to pay for a special master’s services. The Patels reasserted their position that they were entitled to a default judgment and encouraged the trial court to rule on their motion. Alternatively, the Patels requested that the trial court issue a ruling based solely upon the petition and exhibits submitted.

The Patels contemporaneously forwarded their motion directly to the special master, requesting that he not perform any work on the case and informing him that they “[were] not in position to incur any additional cost” and “[would] not be able to pay [his] invoice.” The Patels also informed the special master that the Defendant had been served by publication in accordance with the trial court’s order authorizing such service, and they objected to the special master’s assertion that plats of surveys were needed to resolve the action, which alleged cloud on title caused solely by fraudulent or defective deeds as set forth and included in the verified petition.

In a summary order, the trial court denied the Patels’ motion to set aside the Appointment Order. In a separate order, the trial court adopted the special master’s initial report and recommendation, thereby commanding the Patels to comply with the special master’s direction to amend their petition to submit the additional documentation and to serve the amended petition upon the Defendant.

The Patels filed a timely motion to reconsider, again reiterating their objection to the appointment of a special master and reemphasizing that they “are NOT WILLING to spend” money on a special master. They further pointed to alleged inaccuracies in the special master’s initial report and recommendation regarding the lack of service on the Defendant and repeated their belief that a special master was unnecessary to address the allegations against the named Defendant as set forth in the petition. Finally, the Patels stated that “[i]f [the] court deems that [it] cannot make [a] determination without [a special master’s] report, [the Patels] ask the court to enter default judgment or dismiss the action,” noting that the court’s imposition “of [an] additional financial burden on [them]” would “forc[e] [them] to withdraw a legitimate claim.”

The trial court issued a notice of hearing on the Patels’ motion to reconsider. The Patels in turn filed a motion for summary judgment and contemporaneously therewith filed a motion to continue the hearing, requesting that the hearing be rescheduled until a date and time on which the trial court would be willing to consider their summary judgment and all other outstanding motions.

On August 8, 2014, following the originally scheduled hearing date and without ruling on the Patels’ motion for a continuance, the trial court issued an order noting that the Patels failed to appear at the hearing and thereafter “grant[ed] their motion to dismiss” and dismissed the case “for want of prosecution” (the “Dismissal Order”). The trial court then ordered that the Patels remit payment to the special master “for all costs incurred for his work” in the case within 60 days of its order and warned that “[f]ailure to comply may result in contempt proceedings” against them.

The Patels filed a motion to set aside and/or modify the Dismissal Order, arguing that the trial court’s dismissal of their petition under these circumstances was unjust and constituted an abuse of judicial power. The Patels again asserted that they were entitled to a default judgment and that the trial court erred in appointing a special master sua sponte, explicitly noting that the statutory scheme invoked by their petition authorized the appointment of a special master only “[a]t the option of the complainant.” They further objected to the trial court’s order requiring them to pay the special master without any evidence or testimony in the record justifying his expenses, and asked at the very least that the order be modified to eliminate the mandate to pay. The Patels also filed a notice of appeal seeking review of the Dismissal Order.

Approximately two months later, the special master filed a “report on nonpayment of fees,” informing the trial court that his “fees in the amount of $1,155.00 remain unpaid” despite the mandate in the Dismissal Order that they be paid within 60 days. This is the first mention in the record of the special master’s claimed expenses and it was otherwise unsupported by any documentation or other evidence.

The trial court noticed a hearing to address the Patels’ motion to set aside and/or modify the Dismissal Order, to “[sjhow cause why [the Patels] shouldn’t be held in contempt for failure to pay the [s]pecial [m]aster as ordered,” and to “[s]how cause why [the Patels’] [n]otice of [a]ppeal shouldn’t be dismissed for their failure to comply with the [c]lerk’s deficiency memo.” The record does not contain a copy of a “deficiency memo” or any other correspondence sent from the court clerk to the Patels related to their notice of appeal, nor is any such correspondence reflected on the trial court’s record index of filings.

The Patels filed a motion to waive and/or continue the hearing, or alternatively, for permission to be represented at the hearing by their father. In the motion, the Patels asserted that they were students living in Texas caring for their mentally impaired mother, and that they did not have the financial means to travel to Georgia or to retain an attorney They again set forth the procedural history of the case and asserted that they should not be held in contempt because they did not request the special master and his appointment constituted legal error, and maintained that they did not have the funds to pay his fees. The Patels repeated their request that the trial court make a ruling based upon the filings and/or grant them a continuance; alternatively, they requested that their father be permitted to attend and represent their interests. Finally, the Patels denied having received any “deficiency memo” or other correspondence from the clerk of the court with regard to their notice of appeal.

On December 4,2014, following the date of the scheduled hearing and without ruling on the Patels’ motion to waive and/or continue the hearing, the trial court noted that the Patels failed to attend and entered a summary order denying their motion to set aside and/or modify the Dismissal Order. In addition, the trial court dismissed the Patels’ notice of appeal “for failure to comply with the statutory mandates regarding the same.” And finally, the trial court stated that it had “received evidence from” the special master, who had attended the hearing, and found the Patels “jointly and severally, in willful contempt in the amount of $1,358.09” (the “Contempt Order”). The trial court ordered that the Patels pay that amount to the special master within ten days, and stated that the failure to pay “shall result in an order for [their] immediate incarceration.”

The Patels timely filed a motion to set aside the Contempt Order. They again repeated the history of the case, citing statutory and other legal authority in support of their objection to the special master’s appointment, and reiterated that they had promptly communicated to both the court and the special master that they could not afford to pay for his services. They reasserted that they did not receive any “deficiency notice” or other correspondence from the clerk regarding their notice of appeal. Finally, they objected to the reasonableness of the special master’s fees, requesting that the court set aside the Contempt Order or, alternatively, “reduce the amount of billing from [the] [s]pecial [m]aster to [a] reasonable amount that [they] can pay.”

Around the same time, the Patels filed a notice of appeal seeking review of the Contempt Order, a motion to stay the order pending appeal, and a motion to transfer venue. The special master filed a “response” to the Patels’ various motions, asserting that they each lacked merit.

The trial court summarily denied the Patels’ motions and on December 17, 2014, issued an order of incarceration based upon their failure to pay the special master’s fees (the “Incarceration Order”). The trial court ordered the Patels “to be immediately incarcerated... and held . . . until such time when . . . they purges (sic) themselves of this contempt by paying the arrearages of $1,358.09 by payment of cash . . . including any interest therein accrued.”

Due to a procedural deficiency in the Patels’ pro se appellate brief, this Court was unable to reach the merits of their appeal of the Contempt Order and in an unpublished opinion, affirmed the trial court’s dismissal of their notice of appeal. The case was remitted back to the trial court in February 2016.

Meanwhile, on January 28, 2016, the special master filed a “supplemental report on nonpayment of fees,” asserting that his fees in the amount of $1,358.09 remained unpaid, thereby requesting that the trial court reissue its order of incarceration. The special master also requested an additional award of $932.66 for “time which [he] spent in dealing with the [Patels’] appeal and in drafting these pleadings,” and requested that a total amount of $2,290.75 be reduced to a judgment and that a writ of fieri facias issue on the same. The special master requested a hearing “to consider [his] requests.”

The trial court thereafter issued an order that its Incarceration Order “[was] in full force and effect” and noticed a hearing as requested by the special master. The special master subsequently sent e-mail correspondence to the Patels, informing them that he “will also be asking for $275/hour for all of the time [he] will incur” at the requested hearing, which he “assume[d] . . . will at least be 2 hours,” and that if they “wish to avoid the additional hourly time,” he would accept $2,290.75 by certified funds prior to the day of the hearing.

The Patels filed a response to the special master’s supplemental report on nonpayment of fees, noting that the trial court lacked jurisdiction to order them to continue paying the special master after dismissing the action and strenuously objecting to the demand for additional funds without any evidence justifying the additional expenses. They further opposed the trial court holding a hearing on the matter, noting that the special master would charge them to appear at the hearing and that due to the Incarceration Order, they were afraid to enter the courtroom unless and until they had the money to pay They also made a motion for sanctions against the special master “for filing [a] frivolous and fraudulent” request for additional money.

Ultimately, the Patels deposited $1,358.09 into the registry of the court and filed an emergency motion to cancel the hearing and vacate the Incarceration Order. On February 16, 2016, the trial court issued an order setting aside the Incarceration Order, noting that the Patels “purged themselves of contempt” by remitting payment.

Nevertheless, the trial court conducted the scheduled hearing, noted that the special master appeared and the Patels did not, and issued an order that “the proper foundation for an award of additional fees and costs to the [s]pecial [m]aster has been laid” and awarded him “an additional $1,482.66 against the [Patels] for his fees and costs associated with efforts ... since the original order was entered.” Thus, while recognizing that the Patels had deposited the original amount of $1,358.09 into the court’s registry, the trial court ordered that they “shall remit” the additional payment to the special master within 60 days of the order and “[f]ailure to comply may result in contempt proceedings against” them (the “Order Awarding Additional Fees”).

The Patels filed a timely motion to set aside the Order Awarding Additional Fees and a motion to recuse, and filed a notice of appeal. The trial court scheduled a hearing on the motion to set aside and in a separate order, set a hearing on a different day for the Patels to “show cause why [their] [n] otice of [a]ppeal shouldn’t be dismissed for failure to pay appellate costs.” Ultimately, the hearings were rescheduled to occur on the same day, and Roshni Patel appeared. Following the hearing, the trial court denied the Patels’ motion to set aside the Order Awarding Additional Fees and the motion to recuse. It further dismissed their notice of appeal after concluding that “there has been an unreasonable delay in the filing of the transcript and it has been shown that the delay was inexcusable and was caused by the [Patels]

The Patels filed a motion to reinstate the notice of appeal, asserting that they had not requested that any transcript be included in their appeal and were not aware that any hearing or proceeding had been transcribed. The trial court denied their motion in a summary order. This appeal follows.

1. The Patels assert that the trial court erred in dismissing their notice of appeal of the Order Awarding Additional Fees. We agree.

The trial court’s authority to dismiss a notice of appeal is governed by OCGA § 5-6-48. Subsection (c) provides that, in appeals that involve the filing of a transcript, “the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” In cases that involve only the transmission of a record in the absence of a transcript,

the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.

OCGA § 5-6-48 (c). The trial court’s discretion to dismiss a notice of appeal “is a legal discretion which is subject to review in the appellate courts.” (Citation and punctuation omitted.) Ray v. Williams, 144 Ga. App. 155 (1) (240 SE2d 577) (1977).

The trial court justified its dismissal of the Patels’ latest notice of appeal on the ground of an “unreasonable delay in the filing of the transcript,” which the court concluded “was inexcusable and was caused by the [Patels].” The record is completely devoid, however, of evidence that any hearing or proceeding in this case was ever transcribed. Indeed, the Patels have asserted that none was. More importantly, however, 15 days after filing the notice of appeal at issue, the Patels amended the notice in order to specify that “[n]o transcripts” were to be transmitted with the record. Thus, there was no basis in law or fact for the trial court to dismiss the notice of appeal due to an alleged delay in filing a transcript and the court clearly abused its discretion in doing so. See generally Hammontree v. Hammontree, 186 Ga. App. 819, 820 (368 SE2d 576) (1988) (reversing the trial court’s dismissal of appellant’s notice of appeal); White v. Olderman Realty & Dev. Co., 163 Ga. App. 57 (293 SE2d 726) (1982) (same); Ray, 144 Ga. App. at 155-156 (1). Accordingly, the trial court’s judgment dismissing the Patels’ notice of appeal of the Order Awarding Additional Fees is hereby reversed.

2. Having reversed the trial court’s dismissal ofthe Patels’ notice of appeal, we will now address the merits of the underlying appeal. See generally OCGA § 5-6-34 (d) (“Where an appeal is taken ... all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court....”); McKinnon v. McKinnon, 158 Ga. App. 776, 777 (2) (282 SE2d 220) (1981).

(a) The Appointment Order. Proper resolution of this appeal requires us to first return to the trial court’s refusal to grant the Patels a default judgment and instead appoint, sua sponte, a special master. Both were erroneous.

(i) Under Georgia law, a defendant may be served with process by publication upon order ofthe court in accordance with OCGA § 9-11-4 (f). A defendant has 60 days from the order of publication in which to file an answer. OCGA § 9-11-4 (f) (1) (C). “If in any case an answer has not been filed within the time required by [statute], the case shall automatically become in default unless the time for filing the answer has been extended as provided by law.” OCGA § 9-11-55 (a). With exceptions not applicable here, if the default has not been opened within 15 days, “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury . . . (Emphasis supplied.) Id.

Here, the Patels obtained a court order on December 3, 2013 to serve the Defendant by publication, and service by publication was thereafter effected. As set forth in the published notice, the Defendant had 60 days from the date ofthe order in which to file an answer, yet failed to do so. The case thus automatically went into default on February 3, 2014. See OCGA §§ 9-11-4 (f) (1) (C); 9-11-55 (a). After the Defendant made no effort to open the default within 15 days, the Patels were entitled to default judgment as a matter of law. See OCGA § 9-11-55 (a); Cavender v. Taylor, 285 Ga. 724, 724-725 (2) (681 SE2d 139) (2009) (affirming the trial court’s entry of default judgment in a quiet title action); SRM Realty Svcs. Group v. Capital Flooring Enterprises, 274 Ga.App. 595, 604(2) (617 SE2d 581) (2005) (“The plain language of [OCGA § 9-11-55 (a)] ‘entitles’ a plaintiff to default judgment where ... a defendant has failed to serve an answer timely, 15 days have elapsed from the time an answer was due without an answer served and costs paid, the defaulting defendant has made no attempt to open the default, and the action does not fall within any of the exceptions set forth in that Code section.”); see also H. N. Real Estate Group v. Dixon, 298 Ga. App. 124, 125-126 (679 SE2d 130) (2009). Accordingly, the trial court erred in denying their motion for default judgment.

(ii) Compounding that error, the trial court appointed a special master, sua sponte, over the Patels’ objection. This was also in direct contravention of Georgia law.

“To quiet title to real property, one may seek relief under the procedures and standards for conventional quia timet, see OCGA § 23-3-40[] et seq., or under those for quia timet against all the world, see OCGA § 23-3-60[] et seq.” Vatacs Group v. U. S. Bank, 292 Ga. 483 (1) (738 SE2d 83) (2013). The contemplated procedures of the two proceedings are entirely distinct from each other. See Vatacs Group, 292 Ga. at 483(1); compare OCGA § 23-3-40 et seq. with OCGA § 23-3-60 et seq. In their petition, the Patels filed a conventional quiet title action, expressly invoking OCGA § 23-3-40 et seq., asserting cloud on title resulting solely from the allegedly defective and/or fraudulent deeds held by the Defendant.

By the plain language of the statutory authority, when a quiet title action is instituted pursuant to OCGA § 23-3-40 et seq., the appointment of a special master is made “[a]t the option of the complainant.” OCGA § 23-3-43. Here, the trial court’s sua sponte invocation of OCGA § 23-3-60 et seq. and its appointment of a special master over the Patels’ objection — particularly in light of their immediate and repeated declarations that they were unable to pay for the services — was patently unauthorized. See OCGA § 23-3-43; Boyd v. JohnGalt Holdings, LLC, 294 Ga. 640, 643 (2) (755 SE2d 675) (2014) (recognizing that the power to dictate the appointment of a special master in an action under OCGA § 23-3-40 et seq. rests exclusively with the plaintiff). Cf. Stephens v. Dept. of Transp., 170 Ga. App. 784, 787-788 (1) (318 SE2d 167) (1984) (holding, under a separate statutory scheme, that the trial court erred in sua sponte appointing a special master when the statute contemplated that appointment was to occur upon the petition of a party). Therefore, the trial court’s Appointment Order is hereby reversed.

(b) The Contempt Order, the Incarceration Order, and the Order Awarding Additional Fees. Although clear legal error permeates each of these orders for separate and distinct reasons, we need go no further than holding that each is void because each was issued after the trial court dismissed the Patels’ petition.

Under Georgia law, the unqualified dismissal of a case terminates the action, divests the trial court of jurisdiction to take further action in the case, and renders all orders entered after the dismissal a mere nullity. Furthermore, upon dismissal of the case, all prior orders that were entered in the case are superseded and can no longer be enforced against the parties. Thus, the dismissal of a case divests the court of jurisdiction to consider a subsequent contempt motion and precludes the court from finding a party in contempt of an order previously entered in that case.

(Citations omitted.) Lewis v. City of Savannah, 336 Ga. App. 126, 129 (1) (784 SE2d 1) (2016); Montgomery v. Morris, 322 Ga. App. 558, 559-561 (1) (745 SE2d 778) (2013) (trial court lacked jurisdiction to hold party in contempt after dismissing the case despite its order purporting to retain jurisdiction “to re-open the action if necessary”); see also Gallagher v. Fiderion Group, 300 Ga. App. 434, 436-437 (1) (685 SE2d 387) (2009).

Upon issuing the Dismissal Order, the propriety of which we need not address, on August 8,2014, the trial court no longer retained jurisdiction over the action. See Lewis, 336 Ga. App. at 129 (1); Montgomery, 322 Ga. App. at 561 (1); Gallagher, 300 Ga. App. at 436 (1). It follows that the Contempt Order, the Incarceration Order, and the Order Awarding Additional Fees were mere nullities without force or effect. See Lewis, 336 Ga. App. at 129 (1); Montgomery, 322 Ga. App. at 561 (1); Gallagher, 300 Ga. App. at 436 (1). We therefore vacate those orders as void.

Decided June 27, 2017.

Chandani V. Patel, pro se.

Roshni V. Patel, pro se.

3. The Motion to Recuse. The Patels assert as error the trial judge’s refusal to recuse herself from this case. We cannot say that the judge’s denial of the Patels’ motion was erroneous because the motion itself was legally deficient. See Uniform Superior Court Rule 25.1 (“All motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be timely filed in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded.”). We note, however, that the legal deficiency of the Patels’ motion did not in any way diminish the judge’s obligations under the Code of Judicial Conduct. See Rule 2.11 (A) (“Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. . . .”) (emphasis in original); see also Rule 2.3 (A), (B) (“Judges shall perform judicial duties without bias or prejudice . . . [and] shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice[.]”); Rule 2.4 (A) (“Judges shall be faithful to the law and maintain professional competence in it.”) (emphasis in original); Rule 2.13 (A) (1), (2) (“In making administrative appointments, a judge . . . shall exercise the power of appointment impartially and on the basis of merit; and . . . shall avoid nepotism, favoritism, and unnecessary appointments.”) (emphasis in original).

4. In summary, the Patels were entitled to an entry of default judgment as a matter of law when they filed their motion in March 2014, and the trial court’s decision to instead issue an order appointing a special master is hereby reversed. Moreover, all orders issued subsequent to the dismissal of the petition demanding that the Patels pay for a special master whose appointment was neither lawful nor necessary are hereby vacated.

Judgment reversed in part and vacated in part, and case remanded.

Ellington, R J., and Andrews, J., concur.

       The petition included two additionally named defendants, whom the Patels later dismissed from the action.

       The published notice of service ran for four consecutive weeks, beginning on January 2, 2014, in accordance with OCGA § 9-11-4 (f) (1) (C).

       The Patels’ petition included a claim for fraud and sought punitive damages against the Defendant, but in an effort to facilitate an entry of default judgment, they dismissed the fraud claim and moved forward solely on the quiet title action.

       The trial court appointed James P. Blum, Jr., of Beloin, Brown & Blum, LLC as special master.

       The Appointment Order also provided that in any given month, “[t]he parties appearing in the case” shall each pay a pro rata share of the special master’s invoice ; the Patels, however, were the only parties appearing in the case because the Defendant was in default and the other defendants had been dismissed.

       (Emphasis in original.)

       The only record evidence evincing the special master’s work is his letter request to the Patels that they obtain and file additional documentation and his initial report and recommendation to the trial court that the Patels amend their petition to include the additional documentation and serve the amended petition upon the Defendant.

       See OCGA § 23-3-43.

       Indeed, although the trial court’s notice was issued on November 20, 2014, the first notice to the Patels contained in the record relating to court costs associated with their notice of appeal is dated December 18, 2014.

       The record contains no evidence supporting the special master’s expenses, nor does it explain why the contempt amount differed from the originally claimed unpaid balance of $1,155.

       (Emphasis in original.)

       The Patels’ motion also included an allegation that the special master had “misled” them by advising them that he had no objection to their father representing them at the hearing and indicating that their father would have the opportunity to speak in court.

       The special master denied having misled the Patels, asserting that he told them only that he did not object to their father speaking on their behalf at the hearing, but that the trial court may not allow it.

       The Patels subsequently amended their notice of appeal, and the trial court thereafter issued a stay of the Incarceration Order only as to Roshni Patel because although the notice of appeal was in both their names, it contained only his signature. The Patels filed a motion to modify the order staying the Incarceration Order to include both of them, but that motion was denied.

       Because this Court expressly declined to rule on the underlying merits, the law of the case rule does not foreclose us from addressing them now. SeeOCGA § 9-11-60 (h) (“[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”) (emphasis supplied); Parks v. State Farm Gen. Ins. Co., 238 Ga. App. 814, 815 (1) (520 SE2d 494) (1999) (“[T]he [law of the case] rule applies only to actual decisions, not to issues raised by the parties but never ruled upon.”) (citation and punctuation omitted); see also Hicks v. McGee, 289 Ga. 573, 578-579 (2) (713 SE2d 841) (2011).

       The Patels filed a motion to add their father as an additional plaintiff to the lawsuit, asserting that he had communicated with the special master on their behalf and would be the one ultimately responsible for paying his fees, but that motion was denied.

       (Emphasis in original.)

       The only record evidence purporting to support the special master’s claimed expenses is an invoice he sent to the Patels containing nothing more than a non-itemized list of his charges and the Patels’ alleged overdue balance.

       In the interim, the Patels filed a motion to transfer venue, a motion for sanctions against the special master, a motion to reduce the original judgment, a motion to add party, and a motion to enter an order on the pleadings and/or a motion to continue. The trial court denied each motion in summary orders. The Patels moved to set aside each denial order in their motion to set aside the Order Awarding Additional Fees.

       (Emphasis in original.)

       A conventional quiet title action
      is sustained in equity for the purpose of causing to be delivered and canceled any instrument which has answered the object of its creation or any forged or other iniquitous deed or other writing which, though not enforced at the time, either casts a cloud over the complainant’s title or otherwise subjects him to future liability or present annoyance, and the cancellation of which is necessary to his perfect protection.
      OCGA § 23-3-40.

       A quiet title action against all the world
      is ... a procedure for removing any cloud upon the title to land, including the equity of redemption by owners of land sold at tax sales, and for readily and conclusively establishing that certain named persons are the owners of all the interests in land defined by a decree entered in such proceeding, so that there shall be no occasion for land in this state to be unmarketable because of any uncertainty as to the owner of every interest therein.
      OCGA § 23-3-60.


text:
    A17A0303, A17A0539.
    ALPHA BALANCED FUND, LLLP v. IRONGATE PERFORMANCE FUND, LLC et al.; and vice versa.
    (802 SE2d 357)
   Rickman, Judge.

After Alpha Balanced Fund, LLLP (an investor) requested a full withdrawal/redemption of its balance in the hedge fund Irongate Performance Fund, LLC (“the Fund”) and waited the requisite time period for its right to its investment balance to purportedly vest, Irongate DPS, LLC (“the Fund Manager”) suspended all Fund withdrawal requests indefinitely and terminated the Fund five months later, consequently depriving Alpha of its purportedly vested Fund balance. Alpha sued the Fund and the Fund Manager (collectively “Irongate”), alleging claims for breach of contract, breach of fiduciary duty, conversion, and unjust enrichment. As of the last hearing in the trial court, the Fund was still in the process of winding-up, and more than $4 million had thus far been dispersed in cash distributions to all Fund members/investors, including Alpha, which had received $430,000 of its purportedly vested Fund balance of $1,008,229.78. The gravamen of Alpha’s complaint was that since it had submitted a withdrawal request before the decision was made to suspend all withdrawal requests, and its right to withdraw had vested, it should have been, but was not, treated as a creditor of the Fund and given priority (i.e., paid first) over other Fund members/investors; instead, Alpha asserts, it was “forced” to share in Fund losses that diminished its investment balance in the Fund.

The trial court granted Irongate’s motion for summary judgment and denied Alpha’s cross-motion for partial summary judgment. In Case No. A17A0303, Alpha appeals the summary judgment rulings. In Case No. A17A0539, Irongate appeals the trial court’s denial of its motion to dismiss Alpha’s appeal/Case No. A17A0303. For the reasons that follow, we affirm in both cases.

Case No. A17A0539

In Case No. A17A0539, Irongate appeals the trial court’s denial of its motion to dismiss Alpha’s appeal in the underlying action, Case No. A17A0303. The material facts are undisputed. On October 26, 2015, Alpha timely filed a notice of appeal from the trial court’s summary judgment rulings, and said notice of appeal included direction to the trial court clerk that “No portion of the record shall be omitted from the record on appeal,” and a notice that “A transcript of evidence and proceedings WILL be transmitted as part of the record on appeal.”

Pursuant to OCGA § 5-6-42, absent the grant of an extension of time, it was Alpha’s responsibility to “cause [the motions for summary judgment transcript] to be filed within 30 days after filing of the notice of appeal[,]” or risk possible dismissal of the appeal. See In the Interest of D. M. C., 232 Ga. App. 466, 467 (2) (b) (501 SE2d 305) (1998). Although the transcript should have been filed by November 25, 2015, it was filed on August 18, 2016, about nine months late, and the appeal was thus docketed on September 15, 2016, almost one year after the notice of appeal was filed. Notably, it was in April 2016 (six months from when the notice of appeal was filed), however, that Alpha discovered that the transcript had not been filed; Alpha was alerted to the problem after Irongate filed a motion to dismiss on the ground that the transcript had not been filed. Apparently, Alpha attempted to have the transcript filed in April 2016, but Irongate objected, and the court reporter was prohibited from filing the transcript until the matter was resolved. In August 2016, a hearing was held on the matter.

At the hearing, Irongate argued that Alpha’s appeal should be dismissed due to Alpha’s failure to ensure that transcripts were timely filed in the trial court. But the trial court issued an order denying Irongate’s motion, and finding that the delay in filing the transcript was excusable and was not caused by Alpha.

If a trial court finds that the delay in filing a transcript was: “(1) unreasonable; (2) inexcusable; and (3) caused by appellant, it can dismiss the notice of appeal.” (Citations omitted.) In the Interest of D. M. C., 232 Ga. App. at 467 (2) (b); OCGA § 5-6-48 (c). “The trial court has discretion in passing on these questions, [and] that discretion is subject to appellate review for abuse.” (Citation omitted.) Atlanta Orthopedic Surgeons v. Adams, 254 Ga. App. 532, 535 (562 SE2d 818) (2002). “The court must find all these conditions before an exercise of discretion is authorized.” (Citation and punctuation omitted; emphasis supplied.) In the Interest of D. M. C., 232 Ga. App. at 468 (2) (b); Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991).

Here, the trial court’s findings that the delay in filing the transcript was excusable and was not caused by Alpha are supported by the record. The record reflects that before Alpha filed its timely notice of appeal, Alpha asked the court reporter to prepare the summary judgment hearing transcript, and to file it with the clerk of court and send Alpha a copy; Alpha paid the court reporter for a copy of the transcript; and Alpha received an e-mailed copy of the transcript from the court reporter. And well within 30 days after filing its notice of appeal, Alpha paid invoices from the clerk of court, for appeal costs. Alpha’s counsel stated that he had had cases in the trial court’s judicial circuit “that have taken two months, six months . . . for the record to get transmitted after the transcript has been filed,” and he had had cases “that took over a year for the record from the notice of appeal being filed until it is docketed at the Court of Appeals.” Consequently, according to counsel, he had no reason to suspect any problem with the transcript until Irongate filed a motion to dismiss the appeal about six months after the notice of appeal was filed.

The court reporter testified that she had received Alpha’s written request to file the transcript with the clerk; that she thought that she had filed the transcript on the 8th or 9th of October 2015; that the e-filing system was “very new,” and that “[t]his may have been the first or one of the very first transcripts that I filed through e-filing”; and that when this matter was brought to her attention and she started looking into it, she realized that the transcript had not been filed and instead “had gone to the draft folder.” The court reporter also testified that she did not recall whether she had communicated to Alpha either that she would file the transcript, or that she had in fact filed the transcript; and she affirmed that the error could be corrected “in a matter of minutes.” It is, in part, based on this latter testimony that Irongate argues that Alpha caused the delay in filing the transcript.

True, “[t]he statutory duty to file timely a transcript does not rest with the court reporter[.]” (Citation and punctuation omitted.) In the Interest of D. M. C., 232 Ga. App. at 468 (2) (b). But it is also likewise true that pursuant to OCGA § 5-6-48 (f), “the failure of a court reporter to [timely] file the transcript will not constitute cause for dismissal ‘unless it affirmatively appears from the record that the failure was caused by the appellant.’ ” (Citation and punctuation omitted.) Welch v. Welch, 212 Ga.App. 667, 668 (442 SE2d 857) (1994). The trial court found that when the court reporter tried to file the transcript, “we [had] just switched over to the electronic filing system. . . . [T]he attorneys . . . asked for the transcript to be filed, submitted a check for the transcript. . . . [T]he attorneys received a copy of the transcript.” The trial court stated to counsel:

You each have dealt with the Fulton County clerk’s office in getting appeals up to the higher courts, and it is not a 30-day ritual. It sometimes does last 4 months, 6 months, a year to get a transcript to go up from the clerk’s office; and I think in this case since they received the transcript, [they] had every indication that everything was good, that there was a reliance on the court reporter, but not an unjust reliance on the court reporter given her track record in this courthouse.

The trial court iterated the court reporter’s good record for following through with tasks, and concluded that whether it was “her glitch” or a “system glitch,” the transcript “didn’t get filed where it should have,” but that she “tried to do it,” and was “mortified when she found out that it didn’t go through.”

Given the circumstances of this case, the trial court did not abuse its discretion by finding that Alpha did not cause the delay in filing the transcript and that the delay in filing the transcript was excusable. See generally Brandenburg v. All-Fleet Refinishing, 252 Ga. App. 40, 43-44 (6) (555 SE2d 508) (2001) (finding that delay was not inexcusable when it appeared to have been caused by an insurance company, rather than the party); Welch, 212 Ga. App. at 667-669 (holding that trial court abused its discretion in dismissing appeal where the record did not affirmatively establish that the appellants were the cause of the delay). Therefore, the trial court did not err in denying Irongate’s motion to dismiss Alpha’s appeal.

Case No. A17A0303

In Case No. A17A0303, Alpha appeals the trial court’s grant of Irongate’s motion for summary judgment and denial of Alpha’s motion for partial summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial, the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. And if the defendant does so, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate.

(Citations and punctuation omitted.) Maree v. ROMAR Joint Venture, 329 Ga. App. 282, 283 (763 SE2d 899) (2014).

It is undisputed that the parties’ relationship is governed by the terms of the Fund’s Operating Agreement, and that by investing in the Fund, Alpha became a signatory to the Operating Agreement, which formed the contract between Alpha and the Fund Manager and set forth the Fund’s withdrawal procedures. The following material facts are also undisputed. On September 23, 2010, Alpha submitted a written request for a full withdrawal of its balance in the Fund; Alpha was subsequently informed that its withdrawal request would be fulfilled; on December 22, 2010, the Fund Manager suspended all withdrawal requests, including Alpha’s; and in May 2011, the Fund Manager terminated the Fund and began the winding-up process to close the Fund.

1. Breach of contract. Alpha contends that Irongate breached the terms of the Operating Agreement, specifically Section 4.2 (a) (i), when: (a) Alpha’s right of redemption purportedly vested, but Alpha was not given priority over other Fund members during the winding-up process; and (b) Irongate failed to exercise good faith in its decision to suspend redemptions and terminate the Fund before satisfying Alpha’s redemption request.

To establish a breach of contract claim, a party must prove: (1) the existence of a contract; (2) the breach of an obligation imposed by the contract; and (3) damages that the plaintiff suffered as a result of the breach. See VLIW Tech., LLC v. Hewlett-Packard Co., 840 A2d 606, 612 (2003). In this action, the existence of a valid contract is uncontested.

(a) Purportedly vested redemption right. Alpha contends that Irongate breached the terms of the Operating Agreement, specifically Section 4.2 (a) (i), when Alpha’s right of redemption purportedly vested, but Alpha was not given priority over other Fund members during the winding-up process.

In contract interpretation, [Delaware courts] give priority to the parties’ intentions as reflected in the four corners of the agreement. [The] Court construes the agreement as a whole, giving effect to all provisions therein. The meaning inferred from a particular provision cannot control the meaning of the entire agreement if such an inference conflicts with the agreement’s overall scheme or plan. [The] Court will interpret clear and unambiguous terms according to their ordinary meaning.

(Citations and punctuation omitted.) La Grange Communities v. Cornell Glasgow, LLC, 74 A3d 653 (11) (2013).

Even assuming that pursuant to Section 4.2 (a) (i), Alpha had a right to a full withdrawal/redemption because 70 days had passed from the time of its request, which Irongate disputes, said right was not absolute. The beginning clause of Section 4.2 (a) (i) states that the right to a withdrawal applies “Except as otherwise provided herein,” and was limited by other provisions of Section 4.2 (a) which, the evidence showed, applied here and authorized the suspension of withdrawal requests. See generally Bartley v. Holden , 338 A2d 137, 141, n. 4 (1975) (noting that the phrase “unless otherwise provided” limited the effect of statutory provision where a contrary statute existed); United Rentals v. RAM Holdings, 937 A2d 810, 833 (III) (C), n. 106 (2007) (terms such as “subject to” imposed hierarchy among contract provisions).

The record shows that the Fund’s investment manager was Irongate Capital Management (“ICM”), and that the person who managed ICM deposed that the Fund was experiencing liquidity issues and that, although he tried, he was unable to generate sufficient liquidity — and particularly from an option related to the separate, reference entity (Irongate Diversified Fund, LLC) — to pay the various pending withdrawal requests, including Alpha’s request. According to the Fund’s memorandum of offering, the investment objective and strategy of the Fund was to earn its returns primarily by entering into a particular type of “option” with a designated counterparty whereby the Fund would “obtain, on a leveraged basis, the investment returns of Irongate Diversified Fund, LLC (the ‘Reference Entity’) without directly investing in the same.” According to the ICM manager, the counterparty that entered into the option contract with the Fund owned the reference entity to “serve the purpose of meeting the agreement that was the option. . . . [The counterparty] was invested on behalf of [the Fund] investors in order to meet the obligations of that option agreement, that derivative agreement.” Under the agreement between the counterparty and the Fund, the counterparty had the right to allow or deny the withdrawal of cash from the reference entity, and, in this case, did not allow the release of cash from the reference entity to satisfy redemption requests from the Fund because the reference entity was not meeting set goals related to its liquidity of underlying investments, or its diversification or concentration of the total pool.

Alpha labels the ICM manager’s explanation for the decision to suspend withdrawals and terminate the Fund as “false and pretex-tual.” But the only evidence to which Alpha points to refute the evidence establishing the insufficiency of the Fund’s cash balance is the cash balance of the separate reference entity, faulting the Fund Manager for refusing to “allocate cash” from said reference entity to pay Alpha’s withdrawal request. However, Alpha points to no provision authorizing such action; and we found none. Instead, as set out above, the evidence established the indirect nature of the Fund’s relationship to the reference entity, and the inability of the Fund to liquidate its option related to the referenced entity. Section 4.2 (a) (iv) and (v) of the Operating Agreement permitted the Fund Manager to suspend withdrawal requests due to the inability to liquidate securities and/or its option related to the reference entity.

Furthermore, Section 7.1 of the Operating Agreement permitted the Fund Manager to terminate the Fund “at any time” before the automatic termination date in the year 2054. And pursuant to Section 7.2 (a) (i) and (b) (i), Alpha’s withdrawal request which, at the time, had not been paid in any amounts, was “deemed suspended in favor of the winding up process,” and distributions of Fund assets would be made first to creditors, the description of which expressly excluded Alpha (“Members’ interests in withdrawals that were suspended under Sec. 7.2 (a) (i),” i.e., “whether or not such withdrawal requests have been accepted” by the Fund, Fund Manager, any Affiliate, or duly appointed administrator).

(b) Implied covenant of good faith. Alpha contends that Irongate breached the terms of the Operating Agreement when Irongate failed to exercise good faith in its decision to suspend redemptions and terminate the Fund before satisfying Alpha’s redemption request. Specifically, Alpha asserts that because Fund Manager members who comprised the majority members of the Fund and were the Fund’s general partner, were involved in the decision to suspend withdrawal requests and later terminate the Fund, and nonmanaging Fund members were not, it is “apparent” that Irongate’s “ulterior motive” and “true motivation” in suspending withdrawal requests and terminating the Fund was to “serve their own self-interests” and that of their family members who were Fund members. The foregoing, Alpha argues, demonstrates a “bad faith breach of the Operating Agreement.”

Under Delaware law, bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different, from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.

(Citations and punctuation omitted.) SIGA Technologies v. Pharma-thene, Inc., 67 A3d 330, 346 (III) (B) (2013).

The implied covenant of good faith and fair dealing involves a “cautious enterprise,” inferring contractual terms to handle developments or contractual gaps that the asserting party pleads neither party anticipated. One generally cannot base a claim for breach of the implied covenant on conduct authorized by the agreement. We will only imply contract terms when the party asserting the implied covenant proves that the other party has acted arbitrarily or unreasonably, thereby frustrating the fruits of the bargain that the asserting party reasonably expected. When conducting this analysis, we must assess the parties’ reasonable expectations at the time of contracting and not rewrite the contract to appease a party who later wishes to rewrite a contract he now believes to have been a bad deal. Parties have a right to enter into good and bad contracts, the law enforces both.

(Citations and punctuation omitted.) Nemec v. Shrader, 991 A2d 1120, 1125-1126 (2010). “A party does not act in bad faith by relying on contract provisions for which that party bargained where doing so simply limits advantages to another party” Id. at 1128.

At the outset, we note that the uncontroverted evidence showed that the decision to suspend withdrawals was unanimous and included involvement by the Fund Manager, as well as by nonFund members. The decision to terminate the Fund also included input from a nonFund member, the ICM manager. The Operating Agreement expressly permitted the complained-of actions; uncontroverted evidence revealed the financial position in which the Fund had found itself — investors seeking to bail and an inability to sufficiently liquidate; and Alpha pointed to no specific evidence showing that Irongate’s decisions were arbitrary, unreasonable, or undertaken with conscious doing of a wrong because of a dishonest purpose or moral obliquity.

According to the ICM manager, Alpha’s redemption request was not the only one that was suspended and not given priority in the winding-up process; all pending redemptions were treated in the same manner, with investors receiving, inter alia, cash on a pro rata basis. And Alpha did not offer any evidence to support a reasonable expectation at the time it entered into the Operating Agreement that it could require Irongate to redeem Alpha’s interest during a time of financial insecurity Under the circumstances, the implied covenant of good faith and fair dealing did not apply See generally Nemec, 991 A2d at 1122-1128 (company did not violate good faith covenant by exercising option to redeem retired stockholders’ shares to the benefit of working stockholders; company, whose directors stood to benefit from redemption, exercised an express contractual right); Ross Holding & Mgmt. Co. v. Advance Realty Group, 2013 Del. Ch. LEXIS 58, *4-7 (2) (2013) (applying New Jersey law).

As Alpha has failed to meet its burden of pointing to any evidence giving rise to a triable issue on the element of breach, the trial court did not err in granting judgment as a matter of law in favor of Irongate and in denying Alpha’s motion for partial summary judgment on the breach of contract claim.

2. Breach of fiduciary duties. Alpha contends that Irongate breached its fiduciary duties for the same reasons that it allegedly breached the contract.

Delaware law is clear that, under traditional principles of equity, a manager of an LLC would qualify as a fiduciary of that LLC and its members. This Court has held that an LLC manager owes fiduciary duties because it has more than an arms-length, contractual relationship with the members of the LLC, and is vested with discretionary power to manage the business of the LLC. ... As a general matter, corporations and other business entities can owe fiduciary duties, as most easily exemplified in the situation where a corporation, LLC, or other entity is the managing member of an LLC[.]

(Citations and punctuation omitted.) CMS Inv. Holdings v. Castle, 2015 Del. Ch. LEXIS 169, *65-68 (V) (A) (2) (2015). Fiduciary duties may involve studying proposed action, determining the appropriateness of the proposed action, setting forth a dissenting view to appropriate parties if necessary, and informing those who would be affected about potential adverse effects of the proposed action. See Ross Holding & Mgmt. Co., 2013 Del. Ch. LEXIS 58, *10 (3). In this case, as allowed by statute, the Operating Agreement exculpated the Fund Manager from liability to “any Member . . . for action . . . which [the Fund Manager] reasonably believed to be in the best interests of the Company[.]”

Notably, as a matter of law, the Fund owed no fiduciary duties to Alpha. See generally Onex Food Svcs. v. Grieser, 1996 U. S. Dist. LEXIS 2797, *23-24 (D) (S.D. N.Y. 1996) (under Delaware law, a corporation does not owe a fiduciary duty to its shareholders nor may it be held vicariously liable for breaches of fiduciary duty committed by its officers). Regarding the Fund Manager, no member of the Fund Manager was identified as being a member of the counterparty, which entity held the right to allow or deny the withdrawal of cash from the reference entity and, in this case, did not allow proceeds to exit the reference entity; and multiple meetings and discussions were held to address the liquidation issues the Fund was facing. Alpha did not point to any competent evidence showing that the Fund Manager did not study the choice of actions and that its decisions were not informed. See generally Ross Holding & Mgmt. Co., 2013 Del. Ch. LEXIS 58, *8-11 (3).

Moreover, this claim is foreclosed as it arises from a dispute related to the exercise of a contractual right. See generally Nemec, 991 A2d at 1128-1130. Consequently the trial court did not err in granting judgment as a matter of law to Irongate.

Alpha’s reliance on Caspian Select Credit Master Fund v. Gohl, 2015 Del. Ch. LEXIS 246 (2015), for the proposition that its breach of fiduciary duty claim should survive summary judgment is misplaced, as in that case, fiduciary duty claims survived a motion to dismiss, which involves a different standard than summary judgment. Id at *2-3, *23-24 (III) (C) (2015). Alpha’s reliance on Paige Capital Mgmt. v. Lerner Master Fund, 2011 Del. Ch. LEXIS 116 (2011), is also misplaced, as that case involved admitted self-dealing by a fund manager. Id at *119-127 (4).

3. Con version. Alpha contends that Irongate converted Alpha’s money by refusing to “surrender” Alpha’s purportedly vested Fund balance, upon demand.

Alpha’s conversion claim is based on the same grounds as alleged in its breach of contract claims. Alpha has not pointed to any evidence establishing that Irongate violated an independent legal duty, apart from the duty imposed by contract. Therefore, the trial court did not err in granting judgment as a matter of law in favor of Irongate and denying Alpha’s motion for partial summary judgment on this claim. See generally Akzo Nobel Coatings v. Dow Chemical Co., 2015 Del. Ch. LEXIS 157, *32-33 (III) (D) (2) (2015); Kuroda v. SPJS Holdings, 971 A2d 872, 890 (II) (F) (2009) (“to establish a claim for conversion apart from the contract claim, [complainant] would have to show that he had a right to the money — other than a right pursuant to the contract — that was violated by the defendants’ exercise of dominion over the money”).

4. Unjust Enrichment. Alpha’s challenge to the trial court’s summary judgment ruling on the unjust enrichment claim is deemed abandoned due to Alpha’s failure to present any argument or authority regarding this issue in its appeal brief. See generally Roca v. E. I. du Pont de Nemours Co., 842 A2d 1238, 1242 (2004) (“The failure of a party appellant to present and argue a legal issue in the text of an opening brief constitutes a waiver of that claim on appeal.”) (citations and punctuation omitted); Nguyen v. Barrett, 2016 Del. Ch. LEXIS 147, *8 (2016).

Decided June 27, 2017.

Hungeling Law, David J. Hungeling, Adam S. Rubenfield; Craig H. Kuglar, for Alpha Balanced Fund, LLLP.

Stanley, Esrey & Buckley, D. Gregory Michell, Garrett E. Land, Marlie A. McDonnell, for Irongate Performance Fund, LLC et al.

Judgments affirmed.

Ellington, P. J., and Andrews, J., concur.

       Irongate DPS, LLC is also a member of the Fund, and is the Fund’s general partner.

       Alpha also sought a declaratory judgment, but the trial court dismissed that claim. That ruling is not being appealed herein.

       Alpha invested a total of $2,700,000 in Irongate between February 2007 and September 2008. In September 2008, immediately prior to investing an additional $1,000,000, Alpha’s capital account had already lost approximately $800,000 of the $1,700,000 that it had originally invested.

       Irongate moved for summary judgment on all of Alpha’s pending claims (breach of contract, breach of fiduciary duty, conversion, and unjust enrichment).

       Alpha moved for partial summary judgment on its claims for breach of contract and conversion.

       (Emphasis in original.)

       See also Holy Fellowship Church of God in Christ v. First Community Bank of Henry County, 242 Ga. App. 400, 402 (530 SE2d 24) (2000) (“Without question, it is an appellant’s obligation to complete the record. In so doing, an appellant must timely pay the costs and ensure the timely preparation of any needed transcripts or evidence.”) (citations and punctuation omitted); OCGA § 5-6-48 (c).

       See Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359) (1994) (“Determination of relevant factual issues rests in the sound discretion of the trial court. Thus, the cause of delay in the processing of an appeal is a fact issue for trial court determination and, in making that determination, the trial court exercises a broad legal discretion subject to appellate review only for abuse.”) (citations omitted).

       See, e.g., Pistacchio v. Frasso, 309 Ga. App. 583-584 (711 SE2d 98) (2011) (trial court’s dismissal of appeal was vacated and case remandedfor findings as to whether the delay in filing transcript was unreasonable; held, “In the absence of this finding, the trial court had no discretion to dismiss the appeal, and we are unable to review the exercise of its discretion.”) (citations omitted).

       See generally OCGA § 24-2-201 (authorizing trial court to sua sponte take judicial notice of adjudicative fact, not subject to reasonable dispute in that it is generally known within the territorial jurisdiction of the court).

       Pursuant to Section 9.7 of the Operating Agreement (which was amended and restated in 2008), “all of the terms and provisions hereof shall be construed under the laws of the State of Delaware and, without limitations thereof,... the [Delaware Limited Liability Company] Act shall govern [the Fund] aspects of this Agreement.”

       See 6 Del. C. § 18-101 (7) (“A member or manager of a limited liability company or an assignee of a limited liability company interest is bound by the limited liability company agreement whether or not the member or manager or assignee executes the limited liability company agreement.”).

       Section 4.2 (a) (i) of the Operating Agreement is entitled “Withdrawals” and pertinently provides:
      Except as otherwise provided herein (including with respect to Special Situation Investments) and subject to the Withdrawal Fee (as defined herein), Members have the right, upon seventy (70) days’ prior written notice to the Administrator, to make a partial or total withdrawal from their Capital Accounts (and not from their Special Situation Sub-Accounts) as of the last Business Day of each calendar quarter or at such other times as the Manager determines in its sole discretion. The withdrawal amount shall be calculated based upon the Net Asset Value of the withdrawing Member’s Capital Account on the effective date of the withdrawal (the “Withdrawal Date”)_Subject to the Manager’s right to establish reserves, approximately ninety percent (90%) of the amount being withdrawn will generally be paid to the withdrawing Member approximately forty-five (45) days following the applicable Withdrawal Date, with the balance being payable as soon as practicable following the completion of the [Fund’s] year-end audit for such year.

       Sections 4.2 (a) (iv) and (v) of the Operating Agreement pertinently provide, respectively:
      (iv) Compulsory Withdrawals and Suspension of Withdrawals'. The [Fund] shall have the right to require the compulsory withdrawal of all Interests held by a Member at any time, in the Manager’s discretion. In circumstances where the [Fund] is unable to liquidate securities or option positions in an orderly manner in order to fund withdrawals or where the value of the assets and liabilities of the [Fund] cannot reasonably be determined, the [Fund] may take longer than forty-five (45) days to effect settlement of withdrawals or it may even suspend withdrawals as discussed below. In addition, the [Fund] may withhold a portion of any withdrawal if necessary to comply with applicable regulatory requirements.
      (v) Suspension of Withdrawals. The Manager reserves the right to temporarily suspend or limit withdrawals by the Members if it determines, in its sole discretion, that (A) such withdrawals would negatively affect the [Fund’s] financial integrity, (B) there exists a state of affairs that constitutes a state of emergency, as a result of which disposal of the assets owned by the [Fund] is not reasonably practicable or it is not reasonably practicable to determine fairly the value of its assets, (C) there is a breakdown in any of the means normally employed in ascertaining the value of a substantial part of the assets of the [Fund] or when for any other reason the value of such assets cannot reasonably be ascertained (including an inability to make a withdrawal from an Investment Vehicle or termination of an option), (D) the amount of requested withdrawals would result in a disorderly liquidation of [Fund] investments or a violation of the [Fund’s] investment policies, (E) it is appropriate or advisable in light of the circumstances under or relating to the Option or other derivative transactions to which the [Fund] is a party, or (F) there exists such other extraordinary circumstances, as determined in good faith by the Manager, that cause withdrawals or such payments to be impracticable under existing economic or market conditions or conditions relating to the [Fund].

       ICM was engaged by the Fund Manager to act on behalf of Fund members to, among other things, monitor underlying investments of the Fund, maintain records of members, speak with members, and make recommendations. ICM served as an investment manager for other funds besides the Irongate Performance Fund, LLC.

       None of the persons who were members both of the Fund and the Fund Manager had outstanding redemption requests in December 2010. And none of them made any withdrawals from the Fund between December 2010 and May 2011.

       (Emphasis supplied.)

       See generally Elder v. Hayes, 337 Ga. App. 826, 831 (1) (788 SE2d 915) (2016) (“[A] witness’s uncontradicted testimony cannot simply be disbelieved in order to eliminate the evidence it provides. Rather, on summary judgment, what one witness says on a material point must be genuinely contradicted by some other evidence — what another witness says, a prior statement by the witness, or a document or other piece of physical evidence. Once the pleadings are pierced with actual evidence, the plaintiff must point to admissible evidence showing a genuine issue of fact as summary judgment cannot be avoided based on mere speculation or conjecture.”) (citations and punctuation omitted).

       Section 7.1 of the Operating Agreement, entitled “Duration,” provides as follows: “The [Fund] shall continue until December 31, 2054, unless sooner terminated. The [Fund] may be terminated earlier, at any time, by the Manager or otherwise in accordance with applicable law.”

       Sections 7.2 (a) (i) and (b) (i) of the Operating Agreement, entitled “Termination,” pertinently provide, respectively:
      (a) At the time a termination event has occurred in accordance with Sec. 7.1 above: (i) any withdrawal requests that have been submitted to the [Fund] (whether or not such withdrawal requests have been accepted by the [Fund], the Manager or any Affiliate or administrator appointed by the Manager to handle withdrawals) . . . shall be deemed suspended in favor of the winding up process in which all remaining Members (including Members whose withdrawals have been suspended, as set forth in this Sec. 7.2 (a) (i)) will be treated equitably ....
      (b) On termination of the business of the [Fund], the Manager (or any duly appointed liquidator, as the case may be) shall... make distributions out of [Fund] assets in the following manner and order: (i) to creditors, including Members or former Members who are creditors (but expressly excluding Members’ interests in withdrawals that were suspended under Sec. 7.2 (a) (i) above or any other section of this Agreement ....

       See 6 Del. C. § 18-1101 (a)-(e) (allowing parties to define, limit, or even eliminate certain duties, including fiduciary duties).

       We do not consider Alpha’s supplemental responses to Irongate Performance Fund, LLC’s first interrogatories and request for production of documents. The interrogatory responses purport to submit an expert witness’s proposed testimony that the Fund Manager’s conduct “constituted a breach of fiduciary duty.” But the interrogatory responses appear to be unsworn statements made by counsel and not statements made under oath by an officer of Alpha, and thus, are not competent evidence. See generally U. S. Lawns, Inc. v. Cutting Edge Landscaping, 311 Ga. App. 674, 677 (1), n. 1 (716 SE2d 779) (2011); Gregory v. King Plumbing, 127 Ga. App. 512 (1) (a) (194 SE2d 271) (1972) (“The plain and unambiguous terms of [OCGA § 9-11-33] require a party to answer personally his opponent’s interrogatories under oath. Interrogatories are not pleadings and counsel cannot answer them.”). Georgia law properly governs this issue. See Mills v. Berlex Laboratories, 235 Ga. App. 873, 876, n. 1 (510 SE2d 621) (1999) (“choice of law provision in a contract does not. . . govern the procedural law applied in the forum state”) (citation omitted); Abalene Pest Control Svc. v. Orkin Exterminating Co., 196 Ga. App. 463 (1) (395 SE2d 867) (1990) (“Rules of evidence, the methods of shiftingthe burden of proof, and the presumptions arising from a given statement of facts, are matters affecting the remedy or procedure.”) (citations and punctuation omitted).

       The result would be the same under Georgia law. See generally ULQ, LLC v. Meder, 293 Ga. App. 176, 181 (3) (666 SE2d 713) (2008) (“tort claim for conversion cannot be based on the breach of a contractual duty alone”).

       The result would be the same under Georgia law. See generally Estate of Nixon v. Barber, 340 Ga. App. 103, 110 (2) (796 SE2d 489) (2017) (enumerated error abandoned by failing to provide citation to authority in support of same).