Pure Hospitality Solutions, Inc. v. Canouse.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 12, 2018
In the Court of Appeals of Georgia
A18A1119. PURE HOSPITALITY SOLUTIONS, INC. v.
CANOUSE.
REESE, Judge.
Pure Hospitality Solutions, Inc. (“Appellant”) appeals from the trial court’s
grant of a default judgment to Joseph Canouse (“Appellee”), who had sued the
Appellant after it defaulted on a promissory note. The Appellant contends that the
trial court erred in finding that the note provided for liquidated damages, in failing
to conduct an evidentiary hearing to determine the amount of unliquidated damages
arising from the default, and in awarding attorney fees. For the reasons set forth,
infra, we affirm the trial court’s grant of a default judgment to the Appellee on the
issue of the Appellant’s liability on the Note, but we vacate the court’s award of
damages, interest, and attorney fees to the Appellee, and we remand this case for an
evidentiary hearing on those issues.
The record shows the following undisputed facts. On May 12, 2015, the
Appellant executed a $25,000 Convertible Note (“Note”) in favor of Tarpon Bay
Partners, LLC (“Tarpon Bay”). The Note contained a provision that allowed Tarpon
Bay, as the holder of the Note, to convert all or a portion of the amount due on the
Note into shares of common stock in the Appellant. The Note required the Appellant
to “reserve and keep available” at least thirty million (30,000,000) shares of common
stock in case Tarpon Bay decided to exercise its conversion option. In addition, the
Note included a provision assessing $1,000 per day in late fees if the Appellant failed
to comply with a notice of conversion submitted by Tarpon Bay.
On January 23, 2017, Tarpon Bay executed a “Notice of Conversion” (the
“January Conversion Notice”) seeking to convert $25,610.27 of the outstanding
principal and accrued interest on the Note, plus fees, into 256,102,700 conversion
shares of the Appellant’s common stock. According to the notice, upon completion
of the conversion, the outstanding balance on the Note would be $4,500. Although
the Appellant did not respond to or honor the January Conversion Notice, Tarpon Bay
2
took no further action to compel the Appellant to do so or to otherwise complete the
conversion.
On June 6, 2017, Tarpon Bay sold and assigned the Note to the Appellee. The
assignment stated that the Appellant was in default on the Note and that the
outstanding amount due on the Note was approximately $31,178.08. The next day,
the Appellee executed a “Conversion Notice” (the “June Conversion Notice”) in
which he sought to convert $34,000 in principal he claimed was due on the Note into
340,000,000 shares of the Appellant’s common stock. In response to the notice, the
Appellant’s Chief Executive Officer sent the Appellee an e-mail informing him that
“the issuer [did] not have enough shares at treasury[ ]” to execute the conversion.
On August 16, 2017, the Appellee filed a verified complaint against the
Appellant for breach of contract and theft by conversion. Attached to the complaint
were several documents, including the Note, the conversion notices, and the
assignment. According to the complaint, the Appellant’s failure to honor the June
Conversion Notice damaged the Appellee in an amount not less than $68,000, i.e., the
alleged value of 340,000,000 shares traded at a rate of $0.0002 per share.1 In addition,
1
Attached to the Appellee’s complaint was a document that appears to show
the daily “Bid Price” of the Appellant’s stock from November 28, 2016, through
January 27, 2017. Because we are vacating the trial court’s award of damages and
3
according to the complaint, the Appellant’s failure to honor the January Conversion
Notice entitled the Appellee to $1,000 per day in late fees for 202 days, totaling
$202,000 in liquidated damages under the Note. The complaint also sought attorney
fees pursuant to OCGA §§ 13-1-11 and 13-6-11.
On September 14, 2017, the Appellee filed a “Notice of Filing of Proof of
Service” showing that the Appellant had been served with process on September 1,
2017, at the address of its registered agent. The Appellant did not file a responsive
pleading by the due date, October 2, 2017, nor did it move to open default within the
15-day period that expired on October 17, 2017.2
On October 27, 2017, the Appellee filed a motion for a default judgment for
liquidated damages in the amount of $68,000 in principal; $202,000 in late fees
accrued since January 26, 2017; pre- and post-judgment interest; and attorney fees
pursuant to OCGA § 13-1-11. On November 6, 2017, the trial court issued an order
granting a default judgment to the Appellee. In the same order, the court found that
remanding this case for an evidentiary hearing, see Division 2, infra, we offer no
opinion on whether the document was properly authenticated to constitute admissible
evidence in this case.
2
See OCGA § 9-11-55 (a).
4
all of the damages sought by the Appellee were liquidated and awarded him
$282,501.61, plus post-judgment interest. This appeal followed.3
OCGA § 9-11-55 (a) provides, in relevant part, as follows:
If in any case an answer has not been filed within the time required by
this chapter, the case shall automatically become in default unless the
time for filing the answer has been extended as provided by law. The
default may be opened as a matter of right by the filing of such defenses
within 15 days of the day of default, upon the payment of costs. If the
case is still in default after the expiration of the period of 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, unless the action is one ex
3
Although the Appellant filed a motion to open the default on November 20,
2017, it also filed its notice of appeal from the default judgment on December 4,
2017, before the trial court had ruled on the motion to open default. Once the
Appellant filed its notice of appeal, the trial court no longer had jurisdiction to alter
the default judgment or rule on the motion to open the default. See Shropshire v.
Alostar Bank of Commerce, 314 Ga. App. 310, 312 (1) (724 SE2d 33) (2012)
(“OCGA § 5-6-46 (a) provides that the filing of a notice of appeal serves as
supersedeas when all costs in the trial court are paid. This automatic supersedeas
deprives the trial court of jurisdiction to modify or alter the judgment in the case
pending the appeal.”) (punctuation and footnote omitted). Because the Appellant
failed to obtain a ruling on its motion to open the default, any arguments raised in the
motion are not before this Court and will not be addressed. See Bell v. Owens, 230
Ga. App. 826, 828 (3) (497 SE2d 591) (1998) (“It is the duty of counsel to obtain a
ruling on his motions or objections, and the failure to do so will ordinarily result in
a waiver.”) (citations and punctuation omitted).
5
delicto or involves unliquidated damages, in which event the plaintiff
shall be required to introduce evidence and establish the amount of
damages before the court without a jury, with the right of the defendant
to introduce evidence as to damages[.]
Thus, “a defendant in default is in the position of having admitted each and every
material allegation of the plaintiff’s petition except as to the amount of damages
alleged. The default concludes the defendant’s liability, and estops him from offering
any defenses which would defeat the right of recovery.”4
“Since this appeal involves questions of law concerning the nature of damages
in [the Appellee’s] complaint and the trial court’s entry of default judgment for
liquidated damages, this Court must review the record de novo and apply a ‘plain
legal error’ standard of review.”5 With these guiding principles in mind, we turn now
to the Appellant’s specific claims of error.
4
Fink v. Dodd, 286 Ga. App. 363, 364-365 (1) (649 SE2d 359) (2007)
(citations and punctuation omitted).
5
GMC Group v. Harsco Corp., 304 Ga. App. 182 (695 SE2d 702) (2010)
(citation omitted).
6
1. As an initial matter, the Appellant does not challenge the trial court’s grant
of a default judgment on the issue of its liability on the Note. Consequently, that
ruling is affirmed by operation of law.6
2. The Appellant contends that the trial court erred in finding that the
Appellee’s damages were liquidated and in awarding such damages without
conducting an evidentiary hearing, pursuant to OCGA § 9-11-55 (a),7 to determine
the amount to which the Appellee was entitled. In response, the Appellee argues that
his complaint and the documents attached thereto (collectively, “the pleadings”)
established all of the necessary facts to support his claim and that the trial court was
able to calculate the specific amount of damages to be awarded by applying the
mathematical formula8 in the Note to those facts.
6
See Cotton v. Smith, 310 Ga. App. 428, 429 (1) (714 SE2d 55) (2011)
(Because the appellant failed to assert any error as to a specific ruling in the trial
court’s order, any error as to that ruling was deemed abandoned, and that ruling was
affirmed by operation of law.); see also Court of Appeals Rule 25 (c) (2).
7
See OCGA § 9-11-55 (a) (If a cause of action is in default and involves
unliquidated damages, “the plaintiff shall be required to introduce evidence and
establish the amount of damages before the court without a jury, with the right of the
defendant to introduce evidence as to damages and the right of either to move for a
new trial in respect of such damages[.]”).
8
In this case, the Note contained the following provision, which explained the
process for the “Holder” (Tarpon Bay and, by assignment, the Appellee) to convert
7
principal due on the Note into shares of common stock in the “Company” (the
Appellant) and the methodology for determining the price of such shares:
The Holder of this Note is entitled, at its option, at any time after the
issuance of this Note, to convert all or any lesser portion of the
Outstanding Principal Amount and accrued but unpaid Interest into
Common Stock at a conversion price (the “Conversion Price”) for each
share of Common Stock at a 50% discount from the lowest closing bid
price in the 30 trading days prior to the day that the Holder requests
conversion, unless otherwise modified by mutual agreement between the
Parties . . . ; provided that if the closing bid price for the common stock
on the Clearing Date (defined below) is lower than that used for the
Conversion Price, then the Conversion Price shall be adjusted such that
the Discount shall be taken from the closing bid price on the Clearing
Date, and the Company shall issue additional shares to [the] Holder to
reflect such adjusted conversion price. For interest that accrues pursuant
to the terms of this Note, the conversion price shall be at $.001, par
value, regardless of the trading price (“Interest Conversion”). . . . For
purpose of this Section, the closing bid price of the Common Stock shall
be the closing bid price as reported by the Nasdaq Stock Market, or on
the over-the-counter market or, if the Common Stock is listed on another
stock market or exchange, the closing bid price on such exchange as
reported by Bloomberg LP. In the event that [the Holder] elects to
convert this Note in part, the conversion price for each conversion event
shall be calculated at the time of conversion in part. The Holder may
convert this Note into Common Stock by delivering a conversion notice
. . . executed by the Holder of the Note evidencing such Holder’s
intention to convert the Note. For purposes of this Agreement, the
Clearing Date shall be on the date in which the conversion shares are
deposited into the Holder’s brokerage account and [the] Holder’s broker
has confirmed with [the] Holder [that] the Holder may execute trades of
the conversion shares. The Clearing Date will be reported to Issuer, and
Issuer will issue reset shares if needed. The Company shall bear any and
all miscellaneous expenses that may arise as a result of conversion and
delivery of shares of common stock in respect of the Note, including but
8
When a trial court issues a default judgment against a defendant, “the default
operates to admit only the well-pled factual allegations of the complaint and the fair
inferences and conclusions of fact to be drawn from those allegations. . . . It is
axiomatic that a default does not result in the admission of allegations that are not
well-pled or that are the result of forced inferences.”9
In order for damages to be considered “liquidated,” the damages must be an
amount that is
certain and fixed, either by the act and agreement of the parties, or by
operation of law; a sum which cannot be changed by proof; it is so much
or nothing. On a motion for default judgment, the amount of damages
must be ascertainable from the pleadings. Mere conclusory allegations
of the amount owed are insufficient to render the damages liquidated;
otherwise every case where a specific amount is stated in the complaint
as due and owing would be turned into a liquidated amount by the
default.10
Further,
. . . not limited to the cost of the issuance of a Rule 144 legal opinion,
transfer agent fees, equity issuance and deposit fees, etc. . . .
9
Fink, 286 Ga. App. at 364-365 (1) (citations and punctuation omitted).
10
GMC Group, 304 Ga. App. at 183 (1) (citations and punctuation omitted).
9
[f]or the [trial] court to conclude upon default that damages are
liquidated and dispense with an evidentiary hearing on damages, the
plaintiff must have alleged facts sufficient to show how the amount of
damages claimed was calculated, or the plaintiff must attach to his
complaint the relevant contract, invoices, or other documents
demonstrating that the plaintiff is due the amount claimed.11
(a) In the instant case, we find that there are material conflicts in the pleadings
that have to be resolved before the trial court can calculate the value of the stock on
the day the Appellee submitted the June Conversion Notice and can award that
amount as damages.
For example, the Appellee’s complaint asserted that, on June 7, 2017, he had
been entitled to convert $34,000 in “principal” due on the Note into 340,000,000
shares of common stock; that the shares were traded at a “daily average of $0.0002”;
and that, as a result, he was entitled to damages “in an amount to be proven at trial,
but not less than $68,000,” or 340,000,000 multiplied by $0.0002. However, the
assignment of the Note from Tarpon Bay to the Appellee stated that it was a “Notice
of Sale and Assignment of Notes, Interest, Default and other Obligations”; that the
11
Kitchen Intl. v. Evans Cabinet Corp., 310 Ga. App. 648, 653 (2) (714 SE2d
139) (2011) (citation omitted).
10
Appellant was in default on the Note; and that the amount of the Appellant’s
“obligations” under the Note totaled approximately “$31,178.08” as of June 6, 2017.
Thus, the pleadings do not show that, on June 7, 2017, the Appellee was entitled to
convert $34,000 of “principal” into common stock, given that that amount exceeded
the total amount then due on the Note.
In addition, the complaint’s assertion that, in June 2017, the shares “traded at
a daily average of $0.0002” was unsupported by any documentation and, thus, was
merely a conclusory allegation that does not support a finding that the damages were
liquidated.12 Moreover, according to the complaint, the Appellee was entitled to
damages “in an amount to be proven at trial, but not less than $68,000.00[,]” which
showed that the Appellee had merely estimated the amount of damages he claimed
were due.
Under these circumstances, the pleadings did not show that the amount of
damages that arose from the Appellant’s failure to honor the Appellee’s June
Conversion Notice were “certain and fixed” or “a sum which cannot be changed by
proof[.]”13 Consequently, the trial court erred in concluding that those damages were
12
See GMC Group, 304 Ga. App. at 183 (1).
13
See GMC Group, 304 Ga. App. at 183 (1).
11
liquidated and in awarding those damages in its order granting the Appellee a default
judgment.14
(b) Additional evidentiary conflicts are evident in the Appellee’s claim for
$202,000 in late fees as liquidated damages.15 That claim was based upon the 202
days that had passed between January 26, 2017, the date the Appellant failed to honor
14
See id.
15
The Note contained the following provision regarding the assessment of late
fees if the Appellant (herein referred to as “the Borrower”) defaulted on a conversion
notice submitted by the holder of the Note:
Without in any way limiting the Holder’s right to pursue other remedies,
including actual damages and/or equitable relief, the parties agree that
if delivery of the Common Stock issuable upon conversion of this Note
is not delivered by the Deadline (3 Trading days) the Borrower shall pay
to the Holder $1,000 per day in cash, for each day beyond the Deadline
that the Borrower fails to deliver such Common Stock. Such cash
amount shall be paid to [the] Holder by the fifth day of the month
following the month in which it has accrued or, at the option of the
Holder (by written notice to the Borrower by the first day of the month
following the month in which it has accrued), shall be added to the
principal amount of this Note, in which event interest shall accrue
thereon in accordance with the terms of this Note and such additional
principal amount shall be convertible into Common Stock in accordance
with the terms of this Note. The Borrower agrees that the right to
convert is a valuable right to the Holder. The damages resulting from a
failure, attempt to frustrate, [or] interfere with such conversion right are
difficult if not impossible to qualify. Accordingly[,] the parties
acknowledge that the liquidated damages provision contained in this
Section are justified.
12
the January Conversion Notice submitted by Tarpon Bay (the Appellee’s predecessor-
in-interest), and August 16, 2017, the date the Appellee filed his complaint. However,
the Appellee’s pleadings do not show that the Appellee was entitled to late fees based
upon the January Conversion Notice, when he sued for damages based upon the June
Conversion Notice.
Moreover, the Note expressly required the Appellant either (1) to pay the late
fees to Tarpon Bay on a monthly basis following its default on the January
Conversion Notice, or (2) upon written request by Tarpon Bay, to add the late fees
to the principal amount due on the Note.16 The Appellee’s pleadings are silent,
however, on whether the Appellant paid the late fees to Tarpon Bay prior to Tarpon
Bay’s assignment of the Note to the Appellee in June 2017. Further, the pleadings do
not show that Tarpon Bay gave the required written notice to the Appellant to add the
late fees to the amount due on the Note. On the contrary, the pleadings clearly show
that the Appellant’s total “obligations” on the Note on June 6, 2017, the date Tarpon
Bay assigned the Note to the Appellee, were only about $31,178.08, instead of the
approximately $162,000 that would have been due at the time of the assignment if the
late fees for 131 days (January 26 to June 6, 2017) had been added to the amount due
16
See footnote 15, supra.
13
on the Note. Thus, the pleadings do not establish a “certain and fixed” amount of late
fees to which the Appellee was entitled.17
Under these circumstances, we find that the damages and late fees to which the
Appellee was entitled were not liquidated and that, as a result, the trial court erred in
awarding such damages to the Appellee without conducting an evidentiary hearing,
as required by OCGA § 9-11-55 (a).18 We vacate the trial court’s award of damages
and late fees to the Appellee and remand this case for such hearing.
3. The Appellant contends that the court erred in awarding $5,160.55 in interest
to the Appellee as liquidated damages. The Appellant argues that the Appellee’s
complaint failed to assert a claim for interest due on the Note, nor did the complaint
allege the facts necessary to calculate a certain and fixed amount of interest due as
liquidated damages. In addition, the Appellant argues that the trial court erred in
awarding such interest under OCGA § 13-6-13.19
17
See GMC Group, 304 Ga. App. at 183 (1).
18
See Kitchen Intl., 310 Ga. App. at 653 (2); GMC Group, 304 Ga. App. at 183
(1); Fink, 286 Ga. App. at 364-365 (1).
19
See OCGA § 13-6-13 (“In all cases where an amount ascertained would be
the damages at the time of the breach, it may be increased by the addition of legal
interest from that time until the recovery.”).
14
In response, the Appellee admits that his citation to OCGA § 13-6-13 in his
motion for a default judgment was a mistake. Even so, he asserts that OCGA § 7-4-
1520 authorized the award and that this Court should affirm the award under the “right
for any reason” rule.21 By its plain language, however, OCGA § 7-4-15 applies to an
award of “liquidated demands” for damages. For the reasons explained in Division
2, supra, it necessarily follows that OCGA § 7-4-15 did not authorize the court’s
award of interest in this case.
More importantly, under the express language of the Note, the calculation of
interest that was due was dependent on the “Outstanding Principal Amount,”22 and
that amount must be determined by the trial court following a hearing on remand, as
20
See OCGA § 7-4-15 (“All liquidated demands, where by agreement or
otherwise the sum to be paid is fixed or certain, bear interest from the time the party
shall become liable and bound to pay them; if payable on demand, they shall bear
interest from the time of the demand. In case of promissory notes payable on demand,
the law presumes a demand instantly and gives interest from date.”).
21
See City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 SE2d 369) (2002)
(Under the “right for any reason” rule, an appellate court will affirm a judgment if it
is correct for any reason, even if that reason is different than the reason relied upon
by the lower court.).
22
In the Note, the Appellant promised to “pay interest on the Outstanding
Principal Amount (‘Interest’) in a lump sum on the Maturity Date, at the rate of ten
percent (10%) per Annum (the ‘Rate’) from the date of issuance.”
15
explained in Division 2, supra. Consequently, the trial court’s award of interest must
be vacated.
4. The Appellant also contends that the trial court erred in awarding attorney
fees under OCGA § 13-1-11 (a) (2), because the amount of the fees awarded was
based on the court’s improper award of unliquidated damages.
OCGA § 13-1-11 (a) (2) provides as follows:
Obligations to pay attorney’s fees upon any note or other evidence of
indebtedness, in addition to the rate of interest specified therein, shall be
valid and enforceable and collectable as a part of such debt if such note
or other evidence of indebtedness is collected by or through an attorney
after maturity, subject to subsection (b) of this Code section and to the
following provision[:] If such note or other evidence of indebtedness
provides for the payment of reasonable attorney’s fees[23] without
specifying any specific percent, such provision shall be construed to
mean 15 percent of the first $500.00 of principal and interest owing on
such note or other evidence of indebtedness and 10 percent of the
amount of principal and interest owing thereon in excess of $500.00[.]
23
See OCGA § 13-1-11 (b) (1) (“If, in a civil action, application of the
provisions of paragraph (2) of subsection (a) of this Code section will result in an
award of attorney’s fees in an amount greater than $20,000.00, the party required to
pay such fees may, prior to the entry of judgment, petition the court seeking a
determination as to the reasonableness of such attorney’s fees.”).
16
In this case, the Note contained the following provision concerning attorney
fees: “If one or more of the ‘Events of Default’ as described above shall occur, the
Company agrees to pay all costs and expenses, including reasonable attorney’s fees,
which the Holder may incur in collecting any amount due under, or enforcing any
terms of, this Note.” Thus, the Note did not “specif[y] any specific percent”24 that the
Appellee was entitled to in attorney fees in the event of a default. It follows that, in
order to determine the amount of attorney fees due in this case, the trial court must
first ascertain the amount of principal and interest owed on the Note, and then apply
the calculation from OCGA § 13-1-11 (a) (2) to that amount.
Because, as explained in Divisions 2 and 3, supra, the amount of principal and
interest to which the Appellee is entitled needs to be determined by the trial court
upon remand, the court’s award of attorney fees, which are dependent on that
determination, must be vacated.
5. In a related argument, the Appellant contends that the trial court erred when
it awarded attorney fees under a Georgia statute, OCGA § 13-1-11, when the Note
24
See OCGA § 13-1-11 (a) (2); cf. OCGA § 13-1-11 (a) (1) (“If such note or
other evidence of indebtedness provides for attorney’s fees in some specific percent
of the principal and interest owing thereon, such provision and obligation shall be
valid and enforceable up to but not in excess of 15 percent of the principal and
interest owing on said note or other evidence of indebtedness[.]”).
17
contained a forum selection clause stating that it “shall be governed by and construed
in accordance with the laws of the State of Connecticut.” To the extent the Appellant
is arguing that the trial court must apply Connecticut law regarding attorney fees
following remand by this Court, we disagree.
Because forum selection clauses involve procedural rights, we
apply Georgia law even though the agreement also contains a provision
dictating that it be governed by the laws of [Connecticut]. Forum
selection clauses, such as the one in the case at bar, in which the parties
consent to the jurisdiction of a given state[,] address not subject-matter
jurisdiction, but rather personal jurisdiction.[25] While we have held on
numerous occasions that such forum selection clauses are prima facie
valid[,] such clauses are essentially no more than contractual provisions,
and as such may be waived. . . . [Thus, the Appellant] waived the clause
when it failed to file an answer or motion to dismiss and allowed the
entry of a default judgment.26
25
See OCGA § 9-11-12 (h) (1) (B) (the defense of lack of personal jurisdiction
is waived if it is not raised in the defendant’s responsive pleading or a motion made
before or at the time of the pleading).
26
Euler-Siac S.P.A. (Creamar Spa) v. Drama Marble Co., 274 Ga. App. 252,
253-254 (1) (617 SE2d 203) (2005) (citations, punctuation, and footnotes omitted).
See Rice v. Champion Bldgs., 288 Ga. App. 597, 600-601 (2) (654 SE2d 390) (2007)
(“Forum selection clauses are essentially no more than contractual provisions, and as
such may be waived. . . . [T]he named defendant . . . waived the clause when it failed
to file an answer or motion to dismiss and allowed the entry of a default judgment.”)
(punctuation and footnotes omitted).
18
Based on the foregoing, the trial court is authorized to apply Georgia law when
considering whether to award attorney fees on remand.
Judgment affirmed in part and vacated in part, and case remanded with
direction. Barnes, P. J., and McMillian, J., concur.
19