Cox v. Mayan Lagoon Estates Ltd.
319 Ga. App. 101
Ga. Ct. App.2012Background
- Cox sued Frank L. Constantino, Mayan, Placencia, and others for fraud, securities act violations, punitive damages, and attorney fees, and asserted civil RICO after Constantino’s criminal RICO conviction.
- Case No. A12A1062: Mayan/Placencia moved to dismiss for lack of service; the trial court dismissed Mayan/Placencia without prejudice.
- Case No. A12A1063: Cox moved for partial summary judgment; court denied in part; Constantino’s RICO conviction raised estoppel questions.
- Lamont affidavit: Lamont (director of Mayan/Placencia) swore Constantino was not their agent; trial court refused to strike, and evidence of agency via a settlement offer was excluded.
- Settlement evidence: an email proposing a settlement suggested Constantino’s authority to bind Mayan/Placencia; on appeal, this evidence was deemed admissible and reversible error to exclude it for purposes of service.
- Outcome: on A12A1062 the dismissal was reversed and remanded for reconsideration in light of the settlement offer; on A12A1063 partial summary judgment on liability granted in part, other rulings affirmed/denied as noted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service was valid via agency for Mayan/Placencia | Cox asserts Constantino acted as Mayan/Placencia’s agent. | Mayan/Placencia contends no agency evidence supported service. | Reversed; settlement-offer evidence requires remand for reconsideration. |
| Whether the settlement offer evidence was admissible to show agency | Settlement offer shows Constantino could bind Mayan/Placencia. | Settlement communications are not probative of agency. | Reversed; evidence admissible and remand warranted. |
| Whether Constantino’s criminal conviction estops defenses in civil RICO | Conviction estops Constantino from denying civil RICO violations. | Pending appeal may limit estoppel. | Partial summary judgment for liability on Count 3; damages and other issues reserved. |
Key Cases Cited
- Williams v. Wendland, 283 Ga. App. 109 (Ga. App. 2006) (review of service where agency issue disputed)
- Nevitt v. CMD Realty Inv. Fund IV, 282 Ga. App. 533 (Ga. App. 2006) (admissibility of settlement offers; purpose of evidence under §24-3-37)
- Nat. Property Owners Ins. Co. v. Wells, 166 Ga. App. 281 (Ga. App. 1983) (circumstantial evidence of agency; statements of purported agent admissible)
- Canal Ins. Co. v. Harrison, 189 Ga. App. 681 (Ga. App. 1988) (agency by conduct; admissibility of agent declarations depends on context)
- Holcomb v. Commercial Credit Svcs. Corp., 180 Ga. App. 451 (Ga. App. 1986) (agency proof requires more than conjecture; direct evidence strong when present)
- Tuggle v. Burpee, 314 Ga. App. 833 (Ga. App. 2012) (circumstantial evidence must point to contrary inference; not sole basis)