"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 '" , + + -+............. --.-.- ...... ... ,. ..... .._ ....... ...- , .....---.-,....".....,... _ iI''' .......... 0 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