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Interfinancial Midtown, Inc. v. SE-046 Choate Construction Co.

Court of Appeals of Georgia, First Division

October 20, 2017

INTERFINANCIAL MIDTOWN, INC. et al.
v.
SE-046 CHOATE CONSTRUCTION COMPANY.

          MCMILLIAN, J. MERCIER AND SELF, JJ.

          SELF, JUDGE.

         Following a five-day jury trial, Interfinancial Midtown, Inc. ("I-Midtown"), Piedmont Fountains, LLC ("Piedmont Fountains"), Scott Leventhal, and Interfinancial Properties, Inc. ("I-Properties"), appeal a judgment in favor of Choate Construction Company ("Choate Construction"). Appellants assert the trial court erred by (1) allowing Choate to recover general and punitive damages under Georgia's Uniform Fraudulent Transfers Act ("UFTA"), OCGA § 18-2-70 et seq.; (2) precluding their defense based upon reconveyance of assets; (3) allowing Choate to recover attorney fees and special master costs and expenses; (4) granting Choate's motion in limine to exclude expert evidence relevant to appellants' intent; and (5) denying their motion for a directed verdict and charging the jury on post-judgment interest. For the reasons explained below, we affirm.

         The evidence submitted at trial shows that in October 1999, Leventhal created I-Midtown. As its CEO, president, and a co-owner, he managed the daily business affairs of the company. In 2001, I-Midtown purchased property known as 700 Piedmont to develop 11 town homes through a $920, 000 acquisition and pre-development loan with Quantum National Bank ("Quantum").[1] I-Midtown then hired Choate to perform construction work on the property.[2] I-Midtown's co-owner, Kurt Kaiser, experienced financial difficulties due to the "dotcom" bubble collapse and became insolvent in the middle of 2001.

         Some time after September 11, 2001, a serious recession ensued and construction halted on the project. I-Midtown then began having issues paying its interest on the loan and property taxes. As a result, I-Midtown entered into a series of loan modification agreements with Quantum that extended the due date from 2001 through mid-2004.

         In November 2001, Choate contended that I-Midtown owed it approximately $403, 000 and demanded payment. In November 2002, Choate filed suit against I-Midtown for this amount ("Choate I"). Between 2002 and 2004, Leventhal attempted to sell the property to several different buyers with no success. He also asked Choate if it would like to become a partner in the project or assist with financing that would allow the project to move forward, but his efforts "[f]ell on deaf ears." Finally, John Williams[3] agreed to invest in the project, provided the property was "sold to a new entity of which he was a member."

         In May 2004, Leventhal incorporated Piedmont Fountains to purchase and develop the 700 Piedmont property. The organizer of Piedmont Fountains was a separate corporation created by Leventhal in 1999, I-Properties.[4] Piedmont Fountains had only two members: John Williams, with a 20 percent interest, and I-Properties, with an 80 percent interest. Piedmont Fountain's operating agreement provided that I-Properties would receive a fee of $16, 600 each month for management services for a total sum around $100, 000, which was in turn paid to a construction manager required by Williams. In separate indemnity agreements executed before the sale of the property, I-Midtown and I-Properties acknowledged that "the Property [is] subject to" the pending Choate I lawsuit and agreed to indemnify Williams for any loss or damages arising out of the Choate lawsuit. Leventhal explained that "he who holds the gold makes all the rules. Mr. Williams was setting forth various rules for him to be involved in the participation of the development of this project." Williams testified that he wanted the property transferred to a new entity against which no claims were pending, and that he wanted the purchase price to be high enough to protect against fraudulent transfer claims.

         On July 29, 2004, Piedmont Fountains purchased 700 Piedmont from I-Midtown for $1.29 million. At the time of the sale, Leventhal was the sole person making decisions on behalf of I-Midtown, as well as Piedmont Fountains. No purchase and sale agreement existed between the two parties, and Leventhal agreed that he made the decision about the purchase price on behalf of both the buyer and the seller based upon "a number of factors." These factors included "appraised value, market value, pro formas, [and] willingness of investors." Leventhal denied that he could have set the purchase price $400, 000 higher in order to pay Choate, because it would have meant that Williams would have lost money on his investment. In support of this position, Leventhal asserted that after all of the town homes were sold, the total profit for the development was less than $100, 000. A higher sales price sufficient to pay Choate would have "resulted in a loss" for Piedmont Fountains. At the time of the sale, Choate had not filed any liens on the property.

         Piedmont Fountains financed the purchase and completed construction of the project through a $3.1 million loan from Regions Bank, along with equity contributed by I-Properties ($145, 000) and Williams ($125, 000). Leventhal informed both Williams and Regions Bank about Choate's pending lawsuit against I-Midtown. Both Leventhal and Williams personally guaranteed the Regions Bank note. According to Leventhal, Regions issued the loan based primarily upon Williams' financial strength; "[t]here was no loan whatsoever to be obtained from Regions Bank without Mr. Williams being a co-guarantor on this loan."

         At closing, I-Midtown used the $1.29 million purchase price to pay the balance of the loan to Quantum, recording costs, transfer taxes, various tax liens on the property, the attorney handling the payment of the liens, and ad valorem taxes. After these payments were made, I-Midtown received $300, 660.13 at closing. Within nine months, Midtown used all but $1, 105 of these funds to pay, among others, Leventhal $175, 223, and I-Properties $13, 282. With regard to the amount he received, Leventhal explained that he used the majority of it to repay the $145, 000 sum he had placed into I-Properties so it could make a capital contribution into Piedmont Fountains. Leventhal admitted that he authorized all of the disbursements made by I-Midtown after the sale of the property.

         I-Midtown did not pay Choate with any proceeds from the sale. Leventhal testified that at the time of the sale in 2004, "[I-]Midtown did not believe that Choate had a valid right to any money whatsoever." Although money totaling $354, 000 was placed back into I-Midtown between 2005 and 2010, it was not used to pay Choate. In Leventhal's view, "Choate and [I-]Midtown were entangled in a very disputed claim on the legitimacy of whether or not it was entitled to payment." The money received by Midtown was used "for its benefit to continue to operate and to continue to defend itself in the original Choate litigation as well as for a number of other unrelated matters to Choate." He explained, "I was paying those legal fees because I continued to believe that [I-]Midtown had an absolute defense to Choate's claim in the original Choate lawsuit and that it was really best served trying to defend against that claim and seeing whether or not [I-]Midtown could prevail." Leventhal admitted during cross-examination that through 2003, a plan existed to pay Choate the money it was owed.

         Shortly after receiving proceeds from Regions Bank, construction began again on the project and the last unit was sold in 2006. In 2005, Choate filed the present case ("Choate II") alleging, in part, that the transfer of the 700 Piedmont property to Piedmont Fountains; the payment of $175, 000 to Leventhal from proceeds of the sale; the payment of $13, 282 to I-Properties from proceeds of the sale; and the transfer of $145, 000 from Leventhal to I-Properties after the sale violated Georgia's UFTA. Choate also asserted a claim for bad faith under OCGA § 13-6-11 and sought compensatory and punitive damages as a result of the alleged fraudulent transfers. In June 2006, the trial court entered a consent order staying Choate II until 45 days after a final judgment in Choate I.

         In 2010, Choate obtained a final judgment in the amount of $1, 059.511.85, plus post-judgment interest, in Choate I. In 2016, Choate II was tried before a jury, resulting in a joint and several judgment against I-Midtown, I-Properties, Piedmont Fountains, and Leventhal in the amount of $1, 731, 858.15.[5] The jury also awarded $40, 300 in punitive damages against only Leventhal. At the time of the Choate II trial, it was undisputed that I-Midtown had not paid the judgment in Choate I.

         1. Recovery of General and Punitive Damages.

         Appellants contend that the trial court erred by concluding that general and punitive damages may be recovered under the UFTA.[6] In their view,

[t]he [UFTA] exists to provide a creditor with a means to recover that which the creditor could have collected or levied upon had its debtor (or judgment debtor) not engaged in fraudulent transfers. . . . [T]he Act's central purpose is restitution: to put creditor-plaintiffs back in the position they would have been in but for any fraudulent transfers . . . by returning the fraudulently-transferred assets into their debtors' names, attaching or seizing those assets, or awarding damages based on the lesser of the value of the assets or the creditor-plaintiffs' claims.

         To support this argument, appellants point to the specific remedies provided by the Act, which they claim are the entire universe of what can be recovered.

         In its brief, Choate points to a provision of the UFTA stating that creditors may also seek "[a]ny other relief the circumstances may require, " OCGA § 18-2-77 (a) (3) (C), as well as OCGA § 51-12-2 (a), which provides that general damages may be recovered without proof of any amount for any tortious act. Choate contends that claims under the Act sound in the tort of fraud for which general damages can be recovered.

         It is clear that both general and punitive damages could be recovered in fraudulent transfer cases before the General Assembly enacted the UFTA[7] in 2002. See Kesler v. Veal, 257 Ga. 677, 678 (362 S.E.2d 214) (1987) (general and punitive damages are permissible against debtor; award of such damages against "taking party" dependent upon proof of bad faith, actual fraud, or conspiracy on his part); Cavin v. Brown, 246 Ga.App. 40, 43 (2) (538 S.E.2d 802) (2000); United States v. Tranakos, 778 F.Supp. 1220, 1225 (3) (B), n. 3 (N.D.Ga. 1991) ("creditor can obtain a personal money judgment against a transferee pursuant to OCGA § 18-2-22"). Before 2002, "Georgia's statute on fraudulent conveyances, OCGA § 18-2-22, was patterned after the English statute of 13 Elizabeth, Chapter 5 enacted by the British Parliament in 1570." (Citations and punctuation omitted.) Kipperman v. Onex Corp., No. 1:05-cv-01242-JOF, 2010 U.S. Dist. LEXIS 18669 at *10 (N.D.Ga. 2010). Under OCGA § 18-2-22, [8] certain conveyances were defined as "fraudulent in law against creditors" and described as "per se fraudulent." Chepstow Ltd. v. Hunt, 381 F.3d 1077, 1081 (III) (11th Cir. 2004). The General Assembly repealed OCGA § 18-2-22 when it enacted the UFTA in 2002. Playnation Play Systems v. Hammer, 277 Ga.App. 675, 676, n. 3 (627 S.E.2d 415) (2006).

         Like its predecessor, OCGA § 18-2-22, the UFTA also deems certain transfers or obligations "fraudulent." OCGA § 18-2-74 (a). With regard to relief, the UFTA provides:

(a) In an action for relief against a transfer or obligation under this article, a creditor, subject to the limitations in Code Section 18-2-78, may obtain:
(1) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim;
(2) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by Chapter 3 of this title;
(3) Subject to applicable principles of equity and in accordance with applicable rules of civil procedure:
(A) An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;
(B) Appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or
(C) Any other relief the circumstances may require.
(b) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.

(Emphasis supplied.) OCGA § 18-2-77. It also includes, in part, the following conditions for voidability of a fraudulent transfer:

(b) To the extent a transfer is avoidable in an action by a creditor under paragraph (1) of subsection (a) of Code Section 18-2-77, the following rules apply:
(1) Except as otherwise provided in this Code section, the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (c) of this Code section, or the amount necessary to satisfy the creditor's claim, whichever is less. . . .
. . .
(c) If the judgment under subsection (b) of this Code section is based upon the value of the asset transferred, the judgment must be for an amount equal to the value of the asset at the time of the transfer, ...

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