"i ~ IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA
DANIEL E. RINALDI. JR.. ) ) Plaintiff, ) ) CIVIL ACTION FILE v. )
NO.2005-CV-I04008 ) ROBERT V. WILLISON, ) ) Defendant. ) ) ) )
ORDER AND JUDGMENT The above-styled matter came before the Court
for a bench trial in which the Court heard live testimony and
received into evidence certain documents and deposition
transcripts. The Court now makes the following Findings of Fact and
Conclusions ofLaw. The parties were shareholders and employees of a
company called TransOne Inc. (hereinafter "TransOne").
Specifically, the shareholders of TransOne were Plaintiff, who was
the Vice President of Sales and Marketing; Defendant, who was the
Chairman; Michael W. Garone, who was the Chief Executive Officer;
and Steve Gross, who was only a shareholder. The parties enjoyed a
friendship in addition to being shareholders in the business and
working together. At some point, Defendant asked Plaintiff for a
loan and Plaintiff agreed. Plaintiff loaned significant amounts of
money to Defendant and Defendant agreed to repay the principal
amount borrowed, plus interest. In order to obtain the money for
the loans Plaintiff used his line of credit with Wachovia Bank,
N.A. Over a period of time Plaintiff loaned Defendant the total
principal amount of $100,399.00. In repaying the loan Defendant
made payments totaling $25,827.00. The balance of the loan remains
unpaid. There was no written agreement or contract between the
parties for the money loaned. After Defendant failed to fully repay
the loan Plaintiff filed this lawsuit seeking repayment of the
outstanding amount owed, plus interest and attorney's fees.
Defendant filed an Answer and Counterclaim in which he claimed that
he received an assignment for a debt Plaintiff allegedly owed to
TransOne. Defendant further argued that based on the alleged
assignment he was entitled to a set-off of the amount he owes and,
in fact, Plaintiff owes him roughly $80,000.00. The Complaint was
filed on July 25, 2005. The Answer and Counterclaim filed on August
1, 2005. The parties eventually completed discovery and appeared
before Judge Marvin S. Arrington on January 29, 2007, to begin a
jury trial. Prior to jury selection Judge Arrington, sua sponte,
dismissed the '" , + + -+............. --.-.- ...... ... ,. .....
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lawsuit on the grounds that the Statute of Frauds required a
written contract between the parties in order for Plaintiff's loan
to Defendant to be valid. Plaintiff filed a Notice of Appeal on
February 20, 2007, and Defendant filed a Notice of Cross Appeal on
February 21 , 2007. The Georgia Court of Appeals eventually
reversed Judge Arrington's decision and the case was returned to
this Court for the bench trial which was conducted. Sitting as the
trier of fact the Court finds the fol1owing: 1. Plaintiff loaned
Defendant money totaling $100,399.00. 2. Defendant repaid Plaintiff
$25,827.00 3. Defendant agreed to pay Plaintiff interest on the
money he borrowed. 4. The parties were shareholders in a company
called TransOne. 5. At TransOne, Plaintiff was also the Vice
President of Sales and Marketing; Defendant was the Chairman; and
Mr. Garone was the Chief Executive Officer. 6. Over a two year
period, Mr. Garone, Plaintiff and Defendant received money from
TransOne totaling approximately $180,000.00 each. 7. At no time did
Mr. Garone, Plaintiff and Defendant enter into a written or oral
contract setting forth that they would repay TransOne any of that
money. 8. On August 1, 2005, Mr. Garone, as CEO of TransOne, signed
a document entitled Assignment, which stated: "For value received,
TransOne Inc. hereby assigns to Robert V. Willison, all of its
right, title, and interest in the debt of$179,800.00 owed by Daniel
E. Rinaldi, Jr." 9. Plaintiff's counsel worked 21.5 hours on this
case, which was fair and reasonable, at the hourly rate of $425.00
per hour, which was normal and customary, for a total of$9,137.50.
10. Plaintiff also incurred the following expenses as a result of
this litigation: filing fees of $70.25, service fees of $397.00,
courier fees $111.50, and costs for depositions of $2,266.50. The
total expenses incurred were $2,845.25. The evidence presented
clearly establishes that Plaintiff loaned Defendant money totaling
$100,399.00 and Defendant only repaid $25,827.00. Therefore, the
amount of $74,572.00 remains unpaid. Defendant has alleged the
monies TransOne provided to him, Mr. Garone and Plaintiff were
loans. The Court does not accept this proposition given: (1) the
parties never executed a written agreement for the alleged loans;
(2) Mr. Garone, as CEO of TransOne, never made a demand to
Plaintiff for repayment of the alleged loans; (3) Mr. Garone never
paid back to TransOne .any money he received from TransOne; (4)
Defendant never paid TransOne any money back that he received from
TransOne; and (5) Mr. Garone never notified Plaintiff of the
alleged assignment ofthe alleged loan to Defendant. The assignment
of the alleged loan from Mr. Garone to Defendant was invalid for
lack of consideration. An assignment is an absolute, unconditional
and complete transfer of all rights, title, and interest, in whole
or in part, under a contract so that the assignor no longer has any
rights from the opposite party and the assignee acquires that right
to perfonnance. Bank v. Cave Spring v. Gold Kist, Inc., 173 Ga.
App. 679, 680, 327 S.E.2d 800 (1985). An assignment is a contract
and in order to be valid must possess the same requisites of any
other contract, including parties, subject matter, mutual assent
and consideration, ld. Defendant contends that his continued work
for TransOne was sufficient consideration for the assignment of the
alleged loan. This argument is without merit. It is a well settled
principle that a promise to do that which the promisor is already
legally bound to do, or the perfonnance of an existing legal
obligation, does not constitute consideration, or sufficient
consideration, for a contract. Blackman v. DeKalb Pipeline Co., 127
Ga. App. 395, 397, 193 S.E.2d 635 (1972). As such, Defendant had a
pre-existing legal duty as Chainnan of TransOne to carry out the
duties required of his position regardless of the assignment. Thus,
the assignment lacked consideration. Also, the evidence showed the
purported assignment was not made until after the Complaint was
filed against Defendant. The Complaint was filed on July 25,2005,
and the purported assignment was made on August 1,2005, the same
day Defendant filed his counterclaim. Mr. Garone did not present
any debt on behalf of TransOne to Plaintiff and Mr. Garone never
demanded that Plaintiff repay any alleged debt to TransOne before
making the purported assignment to Defendant. As a final matter,
the purported assignment was invalid because it would have amounted
to a partial assignment for which debtor consent is needed, but was
not obtained in this case. The evidence at trial showed that the
funds provided by TransOne to Plaintiff amounted to at least
$180,000.00 and possibly as high as $182,233.00. However, the
purported assignment from TransOne to Defendant was for
$179,800.00. This would amount to a partial assignment. Under
Georgia law, debtor consent (Le., Plaintiff's consent) is needed
for a partial assignment. See Robinson Explosives, Inc. v. Dalton
Contracting Co., 132 Ga. App. 849, 852, 209 S.E.2d 264 (1974). Mr.
Garone never received Plaintiff's consent to make this purported
partial assignment, and consequently the purported assignment is
invalid. Interest on the principal amount is recoverable when "the
claim upon which it was obtained draws interest." O.C.G.A. 9-12-10.
Defendant agreed to repay the loan in full with interest. Moreover,
Plaintiff loaned the money by drawing on his line of credit at
Wachovia Bank so he incurred interest charges from Wachovia Bank
when he borrowed the money for the loan to Defendant. As such,
Plaintiff is awarded interest at the rate of 7% per annum simple
interest under O.C.G.A. 7-4-2(a)(1)(A}. Attorney's fees and
litigation expenses are recoverable "where the plaintiff has
specially pleaded and has made prayer therefor and where the
defendant has acted in bad faith, has been stubbornly litigious, or
has caused the plaintiff unnecessary trouble and expense." O.C.G.A.
13-6-11. Defendant has acted in bad faith by arguing that Plaintiff
has an affirmative duty to repay the alleged loan that is the
subject of the assignment and refusing to repay the balance of the
loan that he admits was made to him by Plaintiff. Defendant also
has been stubbornly litigious and caused Plaintiff unnecessary
trouble by failing to pay the balance of the loan and by filing a
Counterclaim. Therefore, Plaintiff is entitled to costs of
litigation totaling $11 ,982.75, which includes $2,845.25 for
expenses incurred and $9,137.50 in actual attorney time. As such,
Plaintiff is entitled to a judgment in his favor on the breach of
contract claim and is awarded $74,572.00 on the loan and 7% per
annum simple interest. Plaintiff is also awarded $11,982.75 as
expenses for this litigation and is also entitled to a judgment in
his favor against Defendant on the Counterclaim. SO ORDERED AND
ADJUDGED, this 19th day of April, 2010. JUDGE MELVIN K.
WESTMORELAND SUPERIOR COURT OF FULTON COUNTY A TLANT A JUDICIAL
CIRCUIT IN THE SUPERIOR COURT OF FULTON COU STATE OF GEORGIA DANIEL
E. RINALDI, JR., ) ) -(I Plaintiff, ) ) CIVIL ACTION II. v'), v. )
FILENO. 1-uO.,Ct//070 0d ) ROBERT V. WILLISON, ) ) Defendant. )
COMPLAINT FOR DAMAGES - JURY TRIAL REQUESTED Plaintiff, Daniel E.
Rinaldi, Jr., brings this action against Defendant, Robert V.
Willison, and states the following: 1. Plaintiff is an adult
individual and citizen of the State of Georgia, residing at 210
Royal Lytham Court, Duluth, Georgia 30097, in Fulton County. 2.
Defendant is an adult individual and citizen of the State of
Georgia, residing at 15 Pointe Ridge Drive, N.W., Atlanta, Georgia
30328, in Fulton County. 3. Venue is proper pursuant to O.e.O.A.
14-2-510(1). FACTS 4. At all times material hereto, Plaintiff made
monetary loans to Defendant in the principal amount 0[$100,399.00.
ATLANTA1\6036211 ----5. In or around February, 2002, Plaintiff made
an initial loan to Defendant in the amount of $25,000.00. 6. Over
the remaining months of 2002, Plaintiff made and extended
additional loans to Defendant totaling the principal amount of
$100,399.00. 7. Defendant was obligated to repay the aforementioned
loan in full, with interest. 8. Defendant made payments on the loan
in the amounts 0[$20,700.00 in September, 2002; $1,200.00 in May,
2003; $1,227.00 in June, 2003; $1,200.00 in August, 2003; and
$1,500.00 in June, 2005. 9. Defendant has made payments on the
aforementioned loan in the total amount of $25,827.00, which is
substantially less than the total amount of principal and interest
due and owing on the loan by Defendant. 10. Defendant has failed to
make any additional payments on the loan, including principal and
interest, and to date has not repaid or satisfied the loan in full
as he was required to do. 11. Plaintiff has made repeated requests
to Defendant to repay the loan, but Defendant has failed to do so
pursuant to the parties' agreement and by operation of law. 2