Cert. applied for.
Contract. Fulton Superior Court. Before Judge Schwall.
Schreeder, Wheeler & Flint, John A. Christy, Scott D. McAlpine, Knight Johnson, Bryan M. Knight, Todd N. Robinson, Beal & Blitch, Andrew M. Beal, for appellant.
Bruce P. Brown, for appellees.
Plaintiff Sean McElvaney brings this appeal from the trial court's grant of summary judgment to defendants Roumelco, LLC and its principal, Constantine Roumel (collectively, " Roumelco" ), in McElvaney's suit for breach of contract concerning his investment of nearly $300,000 in Roumelco and its Atlanta real estate venture. The trial court held that McElvaney and Roumelco failed to reach a sufficiently definite agreement as to McElvaney's ownership interest in the company but that McElvaney could proceed on his unjust enrichment claim. On appeal, McElvaney argues that genuine questions of material fact remain as to his breach of contract claim and that the trial court also erred when it denied his request to appoint a receiver for Roumelco. Because we agree with the first of these contentions, we reverse the grant of summary judgment to Roumelco, vacate the denial of McElvaney's motion for a receiver, and remand [331 Ga.App. 730] for further proceedings.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.
Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991) (emphasis omitted).
Viewed in favor of McElvaney, the record shows that in the fall of 2010, McElvaney hired Roumel to work for Armada Group, Inc. (" Armada" ), a company owned solely by McElvaney. While working at Armada, Roumel learned of an opportunity to buy an apartment complex in southeast Atlanta and approached McElvaney for help in acquiring the property. At Roumel's request, McElvaney provided all of a $100,000 deposit required to enter into a contract to purchase the property as well as an additional $38,000 in legal fees. Before the closing, which was set for June 2011, McElvaney and Roumel orally agreed that in exchange for 50 percent ownership of and shared decisionmaking concerning the property, they would together give or otherwise " find," " from friends, relations, wherever," an additional $150,000 in cash necessary to close on the property. As McElvaney testified:
It was always the agreement between ... me and Mr. Roumel that we would find the money, together, [that] we would work our best in both directions to raise the money. It didn't matter whether it was him putting the money or me putting the money, but it was $300,000 ... needed to close this deal, as I thought.
The parties also agreed that " when the apartment complex would be sold, or when [it] generated operating profits, the monies that were used to fund the purchase of the complex were to be repaid first to [McElvaney]," with " the remaining profits divided equally between" him and Roumel.
In May and June 2011, McElvaney made arrangements to borrow $144,350 from Kevin McKenna, a friend in Ireland, to be paid back to McKenna within three months at 25 percent annual interest. [331 Ga.App. 731] On June 3, Roumel wrote an e-mail to a third party naming McElvaney as his " partner" in the property. On June 9, Roumelco purchased the property for cash and debt in the amount of $1,400,000. That same day, Roumel sent an e-mail to McElvaney noting, " DONE DEAL PARTNER!!!!!!!!!" On June 14, McElvaney wired the $144,000 he had borrowed from McKenna to ...