Plаintiff William H. Head brought this action seeking to recover damages allegedly sustained as a result of defendants’ repudiation of an oral agreement for a three-party like-kind exchange of real estate combined with a sale of corporate stock in exchange of corporate assets. Named as defendants were the corporate entities R. T. Patterson Funeral Home, Inc. (“the Company”), and Patterson-Hartsock, Inc. Also named as defendants were R. T. Patterson, Thomas I. Patterson, Claude E. Hartsock, as well as a non-party to this appeal, each “Individually and in [his or] her corporate capacity.” The multiple count complaint alleged fraud, tortious interference with contracts and business opportunities, breach of corporate fiduciary duty, and breach of contract. The complaint also sought punitive damages and OCGA § 13-6-11 expenses of litigation. Defendants answered, denying the existence of an agreement, and further claiming that any oral agreement to transfer real property was unenforceable because it was not in writing as required by OCGA § 13-5-30 (4), the Statute of Frauds.
The case was tried before a jury on theories of fraud and breach of contract. Defendants adduced no witnesses. Viewed in the light to uphold the jury’s verdicts, plaintiff’s evidence showed the following: The Company “operates [two] funeral homes . . .” in Gwinnett County, Georgia: the Lilburn Chapel and the Norcross Chapel. Since 1977, plaintiff has been а 40 percent shareholder in the Company and “the funeral director in charge of the Lilburn Chapel.” Defendant R. T. Patterson owns the remaining 60 percent and is the Company’s president. R. T. Patterson also is the sole shareholder of defendant Patterson-Hartsock, Inc., a corporation he formed “to manage real estate^]” The other individual defendants are relatives of R. T. Patterson and are officers and directors of the Company and PattersonHartsock, Inc. R. T. Patterson funded an irrevocable trust which owns the real property where the Company operates the Lilburn and Norcross Chapels. R. T. Patterson “calls the shots on all [three] entities: R. T. Patterson Funeral Home, Inc., Patterson-Hartsock, Inc., and the trust. . . .” If R. T. Patterson “wanted [the trust realty] to be conveyed, it would be conveyed . . . ,” even though only his children are the co-trustees.
In February 1990, plaintiff approached R. T. Patterson and expressed an interest in purchasing the Lilburn Chapel portion of the business and thе real estate. R. T. Patterson “said at that time that he would sell [plaintiff] the Lilburn Chapel but [that plaintiff] would have to buy [R. T. Patterson] something to exchange. . . . [R. T. Patterson] said he wanted Tim Stewart’s funeral home at Duluth, and *579 [plaintiff], in turn, asked had [R. T. Patterson] spoken with Tim and he had, and [R. T. Patterson gave me a figure [. . . of eight] hundred and fifty thousand dollars ($850,000.00).” Plaintiff thereafter contacted Timothy L. Stewart and “worked an agreement with him whereby [Timothy L. Stewart] could net eight hundred thousand dollars out of the . . . exchange and [plaintiff] would pay in turn аll of the legal costs involved with facilitating that agreement.”
On April 15, 1990, a meeting of the parties was held, attended by Timothy L. Stewart’s tax accountant, Rex A. Millsaps, Sr., and William G. Tanner, Esq., “a neutral, non-biased attorney to handle the paperwork. . . .” There, R. T. Patterson agreed to a sale and exchange of plaintiff’s 40 percent interest in the Company in return for the inventory and assets of the Lilburn Chapel as the first step in plaintiff’s leaving the Company and establishing his own funeral home. As to the second steр in the overall transaction, plaintiff affirmed that “[he], Mr. [R. T.] Patterson and Mr. [Tim] Stewart [orally] reached an agreement where [a] swap of the funeral home would occur [. . . with the] clear understanding that [he was] going to end up with the Lilburn Chapelf.]” The parties stipulated to a value of $800,000 for each of the three properties to be exchanged: The Lilburn Chapel going to plaintiff, Tim Stewart’s Duluth funeral home going to R. T. Patterson, and a new funeral home in Winder, Georgia, going to Tim Stewart. The Winder funeral home was to be constructed with the proceeds of a loan plaintiff would be obligated to repay.
The three-way like-kind exchange of properties was intended to qualify for non-recognition of taxable gain pursuant to § 1031 of the Internal Revenue Code. This second step was memorialized in the “Escrow and Exchange Agreement” which R. T. Patterson refused to sign. Plaintiff explained that the Stock Purchase Agreement and the “Escrow and Exchange Agreement” together made one “overаll agreement with two dependent parts,” and confirmed that, “if there had not been an agreement in [his mind] on the real estate transaction, [he would never have] signed the June 25 [1990] stock purchase agreement.” Plaintiff only agreed “to the terms and provisions of the stock purchase agreement in reliance upon the representations of Mr. [R. T.] Patterson and the Patterson group that [he was] going to get the Lilburn Chapel[.]” Defendant R. T. Patterson also affirmed that the written Stock Purchase Agreement (which he did sign) exchanged plaintiff’s 40 percent interest in the Company for the bulk of the assets at the Lilburn Chapel, because those assets “were going to stay in the Lilburn Chapel with [plaintiff] once he took ownership. . . .” The stock agreement also contained a provision whereby plaintiff would pay R. T. Patterson approximately $59,000, which sum represented “the difference between the business volume at the [Norcross and *580 Lilburn] chapels.” According to the tax accountant, Mr. Millsaps, the division of Company personal property in the 60 to 40 percent ratio of ownership had to be a separate transaction from the exchange of real property. “It couldn’t be done as one transaction and maintain a tax free status, it had to be two separate transactions.” Timothy L. Stewart, a party to the like-kind exchange, “left the [April 15, 1990,] meeting at Mr. Millsaps’ office, [thinking] the deal was going through. . . . [Stewart] did not hear anything [to the contrary] from either party until [June 28, 1990, when, unbeknоwnst to plaintiff,] Mr. Thomas [L] Patterson met [Timothy L. Stewart] and told [him] the [three-way] deal was off.” Instead, Thomas I. Patterson made a separate offer to buy Stewart’s Duluth funeral home for $500,000. Stewart informed plaintiff of this event.
When plaintiff and defendants met again at 5:00 p.m. on June 30, 1990, apparently to execute the three-way “Escrow and Sales Agreement,” Thomas I. Patterson “advised [plaintiff] that they were ready for [him] to sign [his] stock over.” Plaintiff declined, “because they had cancelled the real estate exchange with Stewart and [him]self.” Thomas I. Patterson informed plaintiff that the Lilburn Chapel was for sale, but insisted for the first time that the price was “one point two million dollars. . . .” As plaintiff left, he reiterated his refusal to perform the stock sale without the transfer of the business. Then, “Thomas [L] Patterson said, ‘Well, you can talk to our attorney.’ [Plaintiff’s] comment was, ‘You know where I will be,’ [and Thomas I. Patterson’s reply] was, ‘You won’t be at the funeral home. . . .” Plaintiff “took that to mean that [he] wasn’t welcome, that [he] would not be there [. . . so he] had all [his] personal effects [moved] out of the funeral home.”
R. T. Patterson confirmed that he “approve [d] and ratified] what Thomas [I. Patterson] said to [plaintiff . . .]” at the June 30, 1990, meeting and that he had earlier authorized and ratified Thomas I. Patterson’s approach to Tim Stewart with a separate offer to buy Stewart’s Duluth funeral home for $500,000, after plaintiff had signed the stock agreement but before R. T. Patterson signed any real estate agreement or informed plaintiff that he wоuld not go through with the planned like-kind exchange. Other evidence further indicating that R. T. Patterson never intended to follow through with the agreed-upon transfer of the Lilburn Chapel portion of the Company’s business but “concocted all this just to get [plaintiff’s] stock[,]” was that he had registered and reserved the trade name “Lilburn Chapel” in his own name on April 12, 1990. In “April of 1990,” three weeks after Easter Sunday, Thomas I. Patterson began soliciting Stanley Powell to work for the Company to operate “the two chapels that they owned . . . ,” which Mr. Powell recognized as the Norcross Chapel and the Lilburn Chapel. Before the 5:00 p.m. meeting of June *581 30, 1990, defendants had already prepared a notice, also dated June 30, 1990, of a special meeting of the directors and shareholders of the Company, “called for the purpose of removal and election of officers and transactions of other such business. . . .” The next day, July 1, 1990, “[t]hey fired [plaintiff’s] son-in-law.” Also on July 1, 1990, R. T. Patterson wrote to the Company notifying it that “it has become necessary to increase the monthly rental amounts for the two funeral homes ... [in the total amount of $10,000 per month, . . . effective] August 1, 1990.”
In support of his contention that his part performance rendered the oral agreement enforceable pursuant to OCGA § 13-5-31 (3), plaintiff showed that he was prepared to tender his shares concurrently with the real estate exchange, that he negotiated a loan commitment from the Bank of Gwinnett County via the Small Business Administration for $876,400 using “legal desсriptions of the cemetery and the funeral home property . . .” furnished to him for that purpose by R. T. Patterson; and that a survey and an appraisal of the Lilburn property were performed to get the loan approved. Plaintiff performed those “Conditions As To Closing” itemized in the Stock Purchase Agreement, such as paying for “supplies, inventory and other items that have been ordered for the Lilburn Chapel under the R. T. Patterson Funeral Home, Inc. account. . . He “cease[d] using any acсounts of [R. T. Patterson Funeral Home, Inc.]” and arranged for a different telephone number to be installed at the Lilburn Chapel. However, R. T. Patterson’s son “Thomas told the telephone company not to install [plaintiff’s] number. . . .”
The jury returned a special verdict for plaintiff against specified defendants for both breach of contract and for fraud. The jury awarded no punitive damages but did award the expenses of litigation. The damages awarded for breach of contract are identiсal to those awarded for fraud, namely one year’s lost profits from the scuttled deal. After the entry of judgment, defendants moved for judgment n.o.v. The trial court denied the motion and this appeal followed. In five related enumerations, defendants complain of the denial of their collective motion for judgment n.o.v. Held:
1. In their first enumeration, defendants contend the trial court erred in denying their motion for summary judgment and their motion for directed verdict as to Count 1 of the complaint, alleging fraud.
(a) Onсe a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue.
White v. Lance H. Herndon, Inc.,
(b) “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions there
*582
from, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). Plaintiff’s claim of fraud is supported by the evidence showing that R. T. Patterson falsely promised to exchange the Lilburn Chapel, including the realty, for plaintiff’s 40 percent interest in the Company, knowing that he never intended to keep that promise. Instead, R. T. Patterson attempted to obtain Timothy L. Stewart’s Duluth property for himself while depressing the value of plaintiff’s 40 percent interest in the Company, in that he artificially inflated Company expenses by unilaterally increasing the rent the Company must pay to the real estate management company he controlled, Patterson-Hartsock, Inc. “Concealment per se amounts to actual fraud when from any reason one party has a right to expect full communication of the facts from another.”
Morris v. Johnstone,
OCGA § 13-5-31 (3) provides: “The provisions of Code Section 13-5-30[, the Statute of Frauds,] do not extend to . . . cases: . . . [w]here there has been such part performance of the contract as would render it a fraud of the party refusing tо comply if the court did not compel a performance.” This language is to be contrasted with that of OCGA § 23-2-131: “The specific performance of a parol contract as to land shall be decreed if the defendant admits the contract or if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandoned he could not be restored to his former position. . . . Full рayment alone accepted by the vendor, or partial payment accompanied by possession, or possession alone with valuable improvements, if clearly proved in each case to have been done with reference to the parol contract, shall be sufficient part performance to justify a decree.”
“It is contended by the defendant^] that the contract is not taken out of the statute of frauds for the reason that the plaintiff was not in possession of the property. As we understand the law, this rule applies to cases in equity for specific performance or damages in lieu thereof, and not to actions at law for damages for breach of contract. Code [Ann.] § 37-802 [now 23-2-131 (b)], applies only to actions for
*583
specific performance or damages in lieu thereof, in equity. . . . See
McLeod v. Hendry,
Nevertheless, defendants urge that the acts plaintiff performed were merely “in preparation of the transaction, not in furtherance of it, essential to it, or beneficial to [defendants], and therefore, [are not] sufficient performance of the alleged agreement to remove it from the Statute of Frauds.”
“The part performance referred to in the Code, § 20-402 (3) [now OCGA § 13-5-31 (3)], as forming an exсeption to the requirements of § 20-401 [now OCGA § 13-5-30], means part performance of the contract. The doing of an independent thing, even though the act would not have been done but for the contract, is not sufficient.”
Smith v. Davidson,
2. Defendants’ second enumeration, complaining of the denial of a directed verdict with respect to plaintiff’s claim sounding in breach of contract, has been considered and is found to have been rendered moot by our disposition in Division 1.
3. Next, defendants contend the trial court erred in submitting the issue of lost profits to the jury, arguing that plaintiff’s evidence was “too speculative and rеmote to be admissible.”
“It is not the rule in this State that all profits are too remote and speculative to be recoverable.”
Atlanta Gas Light Co. v. Newman,
4. In their fourth enumeration, defendants Patterson-Hartsock, Inc., R. T. Patterson, Claude E. Hartsock, and Thomas I. Patterson, contend the trial court erred in denying their motion for directed verdict. They first argue that the “only evidence that R. T. Patterson was personally liable for frаud or breach of contract was his [own] testimony that he ‘called the shots’ in the corporation and the trust [which owned the real property at issue].” However, the evidence was sufficient to authorize the conclusion that R. T. Patterson personally engaged in a campaign to relieve plaintiff of the value of his interest in the Company by fraudulently promising to trade the Lilburn Chapel land and business, with the present intent never to fulfill that promise.
Next, defendants Thomas I. Patterson, Claude E. Hartsoсk, and Patterson-Hartsock, Inc. argue that “[t]here was no evidence that any of the [Defendants] acted in such a manner as to expose themselves to personal liability. The only claimed evidence was that they failed to notify [Plaintiff] that there was no agreement. ...”
Thomas I. Patterson participated in the ongoing deception by surreptitiously negotiating directly with Timothy L. Stewart at the direction of R. T. Patterson, after the three-way like-kind exchange agreement already had been reached. The trial court did not err in refusing to direct the verdict as to him. However, with respect to Claude E. Hartsock and the real estate management company Patterson-Hartsock, Inc., there is no evidence of participation in or perpetuation of the fraudulent promise to trade the Lilburn Chapel land along with the business, in exchange for cash and plaintiff’s shares in the Company. Moreover, Claude E. Hartsock and Patterson-Hart-sock, Inc. are not parties to the oral agreement and could not be liable for any breach thereof. Consequently, the trial court erred in failing to direct the verdict as to them.
5. Lastly, defendants enumerate the denial of their motion for directed verdict as to plaintiff’s claim for OCGA § 13-6-11 attorney fees, arguing that counsel “failed to apportion his time between the six counts of his Complaint,” relying on
Southern Cellular Telecom v. Banks,
Plaintiff’s counsel expressly excluded from the calculation of time spent on the case those “attorney’s fees fоr the defense of [a] counterclaim [defendants had] filed.” He further testified to the reasonableness of the fee in light of the experience and abilities of the lawyers *586 involved and considering the area of practice. The jury awarded $25,102 as OCGA § 13-6-11 expenses of litigation in addition to compensatory damages in tort (and in contract) of $99,244. Of this $25,102, “twenty-three thousand six hundred seventy-eight dollars and fifty cents ($23,678.50) . . .” represented attorney fees.
“The question of attorney fees under OCGA § 13-6-11 is a question for the jury.
Brannon Enterprises v. Deaton,
With respect to defendants R. T. Patterson and Thomas I. Patterson, “[d] espite the existence of a bona fide contrоversy as to liability, [the] jury [in the case sub judice was authorized to] find that defendant[s] ‘acted in the most atrocious bad faith in . . . dealing with the plaintiff.’
Powell v. Watson,
Although defendants chose not to cross-examine counsel about whether he could distinguish time spent on viable theories of liability as opposed to unsuccessful, unpersuasive, or unsupported theories, verdicts were directed as to theories of liability in tortious interference and breach of corporate fiduciary duty, and as to one party on all theories. Accordingly, this award of OCGA § 13-6-11 attorney fees must be reversed in part “and the case remanded for an evidentiary hearing to establish the amount of attornеy fees attributable to [plaintiff’s prevailing claims]. See
Southern Cellular Telecom v. Banks,
6. As to defendants Claude E. Hartsock and Patterson-Hartsock, Inc. the judgment is reversed in its entirety with direction to enter judgment in accordance with their motions for directed verdict. *587 OCGA § 9-11-50 (e). As to defendants R. T. Patterson and Thomas I. Patterson, the judgment awarding compensatory damages in tort is affirmed. The judgment awarding OCGA § 13-6-11 attorney fees as expenses of litigation is affirmed as to liability, reversed in part as to the amount of damages, and remanded for an evidentiary hearing.
Judgment affirmed in part, reversed in part, and remanded with direction.