Z-SPACE, INC., et al.
DANTANNA'S CNN CENTER, LLC.
McFADDEN, P. J., RICKMAN and MARKLE, JJ.
Inc., Z-Space Design, Inc., and their individual principals,
defendants in the case below, appeal from the trial
court's order denying their motions to dismiss, for
judgment on the pleadings, and for more definite statement.
The plaintiff, Dantanna's CNN Center, LLC, alleges,
generally, that the defendants have fraudulently hidden their
assets to avoid paying a judgment that was obtained by the
plaintiff in an earlier suit.
reasons that follow, we conclude that the trial court erred
in failing to dismiss the plaintiff's claim for account
stated/unjust enrichment and its claim for theft as a
predicate offense under the Georgia RICO statute, and we
reverse the trial court's order as to these claims. We
further find that the trial court properly denied the motion
to dismiss the plaintiff's claim for mail and wire fraud
as a predicate offense under the Georgia RICO statute, and
claims for fraudulent conveyance, fraudulent sale, and
fraudulent attempt to avoid judgment, but that it erred in
not requiring the plaintiff to make a more definite statement
with regard to these claims. Therefore, we affirm the trial
court's denial of the motion to dismiss, but vacate the
denial of the motion for more definite statement and remand
with instructions that the trial court direct the plaintiff
to provide a more definite statement.
review the trial court's denial of a motion to dismiss
for failure to state a claim de novo, construing the
complaint in the plaintiff's favor. Northway v.
Allen, 291 Ga. 227, 229 (728 S.E.2d 624) (2012).
viewed, the record shows that the plaintiff and Z-Space
entered into a contract for construction of Dantanna's
CNN Center restaurant. In 2009, the plaintiff filed an
initial and separate action against Z-Space, Peter Zakas, and
Spiros Zakas, seeking to recover compensation and damages
for, among other things, breach of contract, and fraud in
connection with the design service contract. Following a
trial, a jury returned a verdict in favor of the plaintiff in
the amount of $118, 500. The plaintiff filed a motion for
attorney fees and expenses, and the trial court awarded the
plaintiff $185, 372.50 in attorney fees and $14, 758.91 in
expenses, plus $14, 203.79 in interest on the verdict amount,
for a total judgment of $332, 835.20. The plaintiff then sent
a letter to Z-Space's attorney offering to settle the
matter and, in response, the attorney advised the plaintiff
that Z-Space was unable to pay the judgment because it had no
assets and was no longer in business. On September 30, 2015,
the plaintiff obtained a writ of fieri facias in the total
amount of the judgment. The plaintiff has been unable to
collect on this judgment.
2017, the plaintiff filed the instant action against Z-Space,
Z-Space Design, and their individual principals Peter Zakas
and Silvia Milic, raising claims of (1) account stated/unjust
enrichment; (2) civil RICO; (3) alter ego liability; (4)
fraudulent transfer/conveyance; (5) fraudulent sale/transfer
of business; (6) conspiracy to fraudulently convey assets;
and (7) "continuation theory" or "fraudulent
attempt to avoid judgment." The plaintiff also requested
punitive damages, attorney fees under OCGA § 13-6-11,
complaint, the plaintiff alleged that shortly after the
jury's verdict in the initial action, Z-Space ceased
operations and became insolvent. Zakas and Milic then created
and incorporated Z-Space Design, Inc. in the State of
Florida. Zakas served as the CEO, and Milic served as the
plaintiff alleged that shortly after the initial suit was
filed, the defendants began siphoning money from Z-Space and
conspired with each other to transfer the assets of Z-Space
to Z-Space Design in an effort to liquidate Z-Space, defraud
the plaintiff, and engaged in conduct to avoid having to pay
the plaintiff the outstanding judgment.
defendants filed a joint answer, motion to dismiss, and
motion for judgment on the pleadings. They also filed a
motion for more definite statement with respect to the RICO,
fraudulent conveyance, fraudulent sale, conspiracy, and
fraudulent attempt to avoid judgment claims. The trial court
held a hearing on the motions, and subsequently issued a
summary order denying same. The defendants requested a
certificate of immediate review, which the trial court
entered. This Court granted the defendants' application
for interlocutory appeal, and this appeal followed.
motion to dismiss pursuant to OCGA § 9-11-12 (b) (6)
will not be sustained unless:
(1) the allegations of the complaint disclose with certainty
that the claimant would not be entitled to relief under any
state of provable facts asserted in support thereof; and (2)
the movant establishes that the claimant could not possibly
introduce evidence within the framework of the complaint
sufficient to warrant a grant of the relief sought ....
(Citation omitted.) Northway v. Allen, 291 Ga. 227,
229 (728 S.E.2d 624) (2012). Further,
It is not 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. Rather, the Georgia
Civil Practice Act requires only notice pleading and, under
the Act, pleadings are to be construed liberally and
reasonably to achieve substantial justice consistent with the
statutory requirements of the Act. Thus, a motion to dismiss
for failure to state a claim should not be granted unless the
allegations of the complaint disclose with certainty that the
claimant would not be entitled to relief under any state of
provable facts asserted in support thereof. 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.
(Citations and punctuation omitted.) Campbell v.
Ailion, 338 Ga.App. 382, 384-385 (790 S.E.2d 68) (2016).
See also OCGA § 9-11-8 (a) (2) (A). With this framework
in mind, we turn to the defendants' arguments on appeal.
defendants first argue that the trial court erred in denying
their motion to dismiss the claim for account stated or
unjust enrichment because the plaintiff has not alleged that
an account exists between the parties, and the prior judgment
did not create an account. They further assert that there can
be no unjust enrichment because the plaintiff failed to
identify any benefit it conferred on them. We agree.
account stated is an agreement by which persons who have had
previous transactions with each other fix the amount due in
respect to such transactions and the one indebted promises
payment of the balance." (Citation omitted.) Lawson
v. Dixie Feed & Seed Co., 112 Ga.App. 562, 563 (2)
(145 S.E.2d 820) (1965). Agreement as to the amount and a
promise to pay are essential requisites. Id. at 564
plaintiff alleged in its complaint that the prior judgment
established a judgment-creditor relationship between the
parties, and that Z-Space is indebted to the plaintiff on an
account in the principal amount of the judgment; thus, the
judgment itself is the account stated. However, we have never
held that a judgment, standing alone, can be an account
stated, and we decline to do so here. See OCGA § 9-11-69
("Process to enforce a judgment for the payment of money
shall be a writ of execution unless the court directs
otherwise."); Black v. Black, 245 Ga. 281, 282
(2) (264 S.E.2d 216) (1980) ("A garnishment proceeds
from a money ...