Abdulla v. Chaudhary et al

Filing 39

ORDER granting 28 Motion for Summary Judgment; granting 29 Motion for Summary Judgment. The Clerk is directed to enter Judgment in favor of Defendants and close this case. Signed by Judge J. Randal Hall on 07/21/2015. (thb)

IN THE UNITED

STATES

DISTRICT COURT

SOUTHERN DISTRICT

OF

FOR THE

GEORGIA

AUGUSTA DIVISION

SOHAIL ABDULLA,

•
*

Plaintiff,

•
•

*

vs.

CV

114-008

•

AYAZ

•

CHAUDHARY and ALIYA

CHAUDHARY,

•
•

•

Defendants.

ORDER

Before

judgment.

the

Court

are

Defendants'

motions

for

summary

(Doc. nos. 28 & 29.) For the reasons stated herein,

the motions

are GRANTED.

I.

A.

Factual History

1.

The

BACKGROUND

Contract

On May 12, 2005, Plaintiff Sohail Abdulla ("Plaintiff")
and Defendant Ayaz Chaudhary ("Dr. Chaudhary") entered into a

written agreement ("the Contract") to jointly invest in real
estate in the Augusta, Georgia area.

(Am. Compl., Ex. A.) Dr.

Chaudhary drafted the one-page Contract,

then Plaintiff and

Dr. Chaudhary signed it. Dr. Chaudhary's wife, Defendant Aliya
Chaudhary

("Mrs.

Chaudhary"),

signed

the

Contract

as

a

witness. Although the Contract states that Plaintiff and Dr.

Chaudhary are both residents of Augusta,
was

a

resident

of

South

Carolina

at

Georgia,

the

time

he

Plaintiff
filed

the

Complaint on January 13, 2014. (Am. Compl., Ex. A; Compl. t
1.) The Contract in its entirety provides as follows:

This is the agreement between Sohail Abdulla and

Ayaz Chaudhary, both residents of Augusta, Georgia.
•

Each
person
named
above
represent
an
individual party. Both parties agree on the
following:

Both parties agree to form a LLC (which
will be named and registered)
buy the following properties.
1.

later to

Corner plot at Washington Road and
Halali Farm Road, parcel no.
066
065B.

2.

Plot on Washington Road next to
Target
Shopping
Center,
42 69
Washington Road.

3.

Property at 3415 % Wrightsboro Road.

4.

Property at 2952 Tobacco Road,
and 2942

2138

Old Tobacco Road.

•

Each party will invest at least
and sixty thousand dollars.

two hundred

•

Both parties will be equal partners on abovementioned properties.

Any profit or further buying of property
based on above mentioned properties or
putting above mentioned properties as
collaterals will be equally divided or
invested between Sohail Abdulla and Ayaz
Chaudhary.

Maximum amount invested by Ayaz Chaudhary
will be two hundred and sixty thousand

dollars to be equal partners with Sohail

Abdulla in above mentioned properties.

Buying

of

the

above

properties

is

guaranteed by Sohail Abdulla.

•

Ayaz Chaudhary will give two hundred and sixty
thousand dollars to Sohail Abdulla to buy the
above named properties.

The LLC formed between two parties are for the
properties
mentioned
above
but
any
further
properties can be added with both parties mutual
agreement.

If a new property is attractive to one party,
always give a choice to the other party to be a
part of the buying of the new property in writing.
If the other party is not interested than [sic]
original party has the right to buy its own without
involvement of

LLC.

•

Each party/partner will participate
notes to purchase properties.

•

In

case

of

death

of

either

in bank

partner,

the

surviving partner will equally distribute the
assets
between
family.

•

him

and

deceased

partners

Both parties can form more than one LLC with
each other, individually or with other person.

•

First

right

of

refusal

will

be

applicable

after the above properties deal.
Sohail Abdulla

//signature//
Witness:

Ayaz Chaudhary

//Mrs. Chaudhary's signature//
5/12/05

//signature// 5/12/05

(Am. Compl.,

Ex. A.)

On the same day,
Contract

that

the parties added an addendum to the

characterizes

Dr.

investment as a loan to Plaintiff.

Chaudhary's

(Pi. Dep.,

$260,000.00

Ex.

11.)

The

text of the Addendum is set forth here in its entirety.
AGREEMENT

I,
Ayaz Chaudhary,
am lending Sohail Abdulla
$260,000 and as a security Sohail Abdulla will
collateral the property owned by him at 3415 %
Wrightsboro Road for the loan.

Ayaz Chaudhary: //signed//
Sohail Abdulla:

Date: 5-12-2005

//signed//

Witness: //Aliya A. Chaudhary's signature// 5/12/05
Notary [blank]

Check #111 BOA
Worth $220,000

(Id.) Dr. Chaudhary asserts that the Addendum was added to the
Contract

to

evidence

Plaintiff's

agreement

to

return

Dr.

Chaudhary's promised $260,000.00 investment if they did not
profit from the four properties to be jointly purchased under

the Contract. (Dr. Chaudhary Aff. ff 6-7.)
On the day the Contract and Addendum were executed, the

parties formed Net Assets, LLC ("Net Assets") to purchase the

properties identified in the Contract. (PI. Dep. at 10-13; Dr.
Chaudhary Dep. at 24-25; PI. Resp. to Mot. for Sanctions, Ex.
A.) However,

Net Assets never acquired the properties.

(PI.

Dep. at 10-15, 39-40; Dr. Chaudhary Dep. at 24-25, 35, 43, 60,

63.) On May 13, 2010, Dr. Chaudhary voluntarily dissolved Net

Assets.

(PI. Resp.

to Mot. for Sanctions, Ex. B.)

2. Dr. Chaudhary's Payments to Plaintiff

On or about May 12, 2005, Dr. Chaudhary provided a check
to Plaintiff in the amount of $220,000.00.

f

8;

PI.

Dep.,

Ex.

12.)

On

or

about

(Dr. Chaudhary Af f.

May

26,

2005,

Dr.

Chaudhary wrote another check to Plaintiff in the amount of

$20,000.00.
Chaudhary

(Dr. Chaudhary Aff. H 9; Pi. Dep., Ex. 16.) Dr.
made

these

payments

to

partially

fulfill

his

agreement under the Contract and Addendum to loan Plaintiff
$260,000.00.

3. The Halali Farm Road Property

The first parcel of real estate listed in the Contract is
the

"corner plot at Washington Road and Halali

parcel no. 066065B"
Compl., Ex.

A.)

Farm Road,

("the Halali Farm Road property").

On June 15,

2005,

(Am.

approximately one month

after the parties signed the Contract, Dr. Chaudhary purchased
the Halali Farm Road property in his own name.

Aff. H 10; PI. Dep., Ex. 18.)

(Dr. Chaudhary

Plaintiff signed the warranty

deed for that property as a witness. (Pi. Dep., Ex. 18.) Dr.

Chaudhary paid

closing costs in the amount

of

$1,080.96,

executed a deed to secure debt to Southern Bank covering the

Halali Farm Road property,

and signed a promissory note in

favor of Southern Bank in the amount of $1,022,747.47.

Chaudhary Aff. HH 10-12; Pi. Dep, Exs. 17, 19 & 20.)

(Dr.

On or about March 20,

2 0 08,

Dr.

Chaudhary conveyed an

easement across the Halali Farm Road property to the Georgia

Department of Transportation and received consideration in the

amount

of $78,200.00.

Plaintiff received no

(Dr.

Chaudhary Aff.

1 17 & Ex.

funds from that sale.

A.)

(Id. f 17; Dr.

Chaudhary Dep. at 89.)
On or about November 9, 2009, Dr.
Southern

Bank

loan

when

he

Chaudhary paid off the

refinanced

the

Halali

Farm

Road

property with Security Federal Bank. (Dr. Chaudhary Aff. t 16;
PI. Dep., Ex. 23.) On the same day, he conveyed the property to

Pappay, LLC, an LLC owned by him,
Ex.

B.)

(Dr. Chaudhary Aff. H 18 &

which then immediately conveyed the property to Mrs.

Chaudhary

in

fee

simple.

(Id.

If

21

received no funds from that transaction.

& Ex.

E.)

Plaintiff

(Id.)

Mrs.

Chaudhary

subsequently conveyed the Halali Farm Road property on or about

May

18,

2012

to

NAR

company, owned by her.

Properties,

LLC,

a

limited

liability

(Id. f 22 & Ex. F.)

Plaintiff never owned an interest in the Halali Farm Road

property. (Pi. Dep. at 57.) However, he paid $191,219.29 toward
the Halali Farm Road property note to Southern Bank.

(Dickey

Dep., Ex. 49.) Of that amount, Plaintiff paid $18,632.82 from

his personal account (Id. at SB000080 & 82.), with the balance
paid through Sportsman's Link, Inc., a corporation owned by
Plaintiff,

or Rock Moss Farms,

an account owned by Plaintiff

and his brother.

(Id. at SB000064-79, 86, 87, 93-97.) Plaintiff

also paid other expenses related to the Halali

Farm Road

property, including $8,328.87 in taxes for 2005 and $12,957.77
in taxes for 2006. (Am. Compl. i| 15; PI. Resp. to Interrog.) He

paid $187,500.00

as a down

payment

on the

property

approximately $50,000.00 for improvements to the land.

and
(Am.

Compl. tH 13 & 14.)
5. The Washington Road Property

The second parcel of real estate listed in the Contract is
the "[p]lot on Washington Road next to Target Shopping Center,
4269 Washington Road" ("the Washington Road property").

(Am.

Compl., Ex. A.) On May 31, 2005, nearly three weeks after the
parties signed the Contract, Why Pay More, LLC, an LLC owned by
Plaintiff, purchased the Washington Road property.
Ex.

29; Dr. Chaudhary Aff. f 24.)

More,

Trust

(PI. Dep,

On the same day,

Why Pay

LLC executed a deed to secure debt to Georgia Bank &

Company

of

Augusta

("GB&T")

in

the

amount

of

$1,718,660.00. The Security Deed covered the Washington Road

property,

along with the Wrightsboro Road and Tobacco Road

properties.

(PI. Dep., Ex. 30.) On or about December 5, 2008,

GB&T foreclosed on the Washington Road property due

to the

failure of Why Pay More, LLC to pay its indebtedness to GB&T.

(PI. Dep. , Ex.

33; Dr.

Chaudhary Aff.

% 26.)

Dr.

Chaudhary

never owned an interest in Why Pay More, LLC and never owned an

interest in the Washington Road property.

(PI. Dep. at 48-49;

Dr. Chaudhary Aff. K 25.)
6. The Wrightsboro Road Property

The third parcel of real estate listed in the Contract is
the

"property at

Road

property").

3415 % Wrightsboro Road"
(Am.

Compl.,

Ex.

A.)

("the Wrightsboro

On

April

19,

2005,

approximately one month before the parties signed the Contract,
Plaintiff

purchased

$140,000.00.

the

property

in

his

own

name

for

(PI. Dep., Ex. 26; Dr. Chaudhary Aff. U 31.) On

December 29, 2005, Plaintiff sold the property for $150,000.00.

(PI. Dep.,

Ex.

27; Dr.

never

an

ownership

had

Chaudhary Aff.
interest

in

H 32.)
the

Dr.

Chaudhary

Wrightsboro

Road

property and did not receive any funds from the December 29

sale. (Dr. Chaudhary Aff. Kt 32 & 33.)
7. The Tobacco Road Properties

The fourth listing of real estate in the Contract is the
"property at

Road"

2952 Tobacco Road,

2138

("the Tobacco Road properties").

and 2942 Old

Tobacco

(Am. Compl., Ex. A.) On

May 3, 2005, approximately one week before the parties signed
the Contract,

Plaintiff purchased these properties in his own

name. (PI. Dep., Ex. 24; Dr. Chaudhary Aff. K 27.) On January
3,

2006,

Plaintiff

executed and delivered to

First Bank of

Georgia a deed to secure debt on the properties.

(PI. Dep., Ex.

25.; Dr. Chaudhary Aff. t 28.) On October 7, 2008, First Bank

of Georgia foreclosed on the properties.

(Pi. Dep.,

Ex. 25.;

Dr. Chaudhary Aff. t 28.) Dr. Chaudhary never had an ownership

interest in the Tobacco Road properties. (Dr. Chaudhary Aff. ^
29.)

8. Plaintiff's Demand for an Accounting

On an unspecified date in the summer of 2012, Plaintiff
confronted Dr. Chaudhary and demanded a payout of Plaintiff's
share of the partnership assets.

(PI. Dep. at 88; Dr. Chaudhary

Dep. at 72-73.) Dr. Chaudhary rejected the request because the

Contract "never went through."

(Dr. Chaudhary Dep. at 72-73.)

He insisted that he did not owe Plaintiff any money because
Plaintiff

did

not

fulfill

his

duty

under

the

Contract

to

acquire the four listed properties in a jointly owned LLC.
(IdJ
B, Procedural History

On January 13,

2014,

Plaintiff filed a diversity suit

against Dr. Chaudhary alleging breach of contract,
meruit claim,

and breach of fiduciary duty.

a quantum

He also alleged a

quantum meruit claim against Mrs. Chaudhary. On December 10,
2014,

Defendants

(Doc. nos.

each filed a motion for

28 & 29.)

summary judgment.

II,

A.

DISCUSSION

Summary Judgment Standard

Summary

judgment

is appropriate

genuine dispute as to any material

only

fact

entitled to judgment as a matter of

if

and

law."

"there

is no

the movant

Fed.

R.

Civ.

is
P.

56(a) . Facts are "material" if they could affect the outcome of
the

suit

under

Liberty Lobby,

the

governing

substantive

Inc., 477 U.S. 242, 248

law.

Anderson

v.

(1986). The Court must

view the facts in the light most favorable to the non-moving

party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986), and must draw "all justifiable inferences
in [its]

favor." U.S. v. Four Parcels of Real Prop.,

941 F.2d

1428, 1437 (11th Cir. 1991) (en banc)(internal punctuation and
citations omitted).

The moving party has the initial burden of showing the

Court,

by reference to materials on file,

the basis for the

motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). How

to carry this burden depends on who bears the burden of proof
at trial.

Fitzpatrick v. City of Atlanta,

2 F.3d 1112,

1115

(11th Cir. 1993). When the non-movant has the burden of proof

at trial, the movant may carry the initial burden in one of two

ways — by negating an essential element of the non-movant's
case or by showing that there is no evidence to prove a fact

necessary to the non-movant's case. See Clark v. Coats & Clark,

10

Inc.,

929 F.2d 604,

606-08

(11th Cir.

1991).

Before the Court

can evaluate the non-movant's response in opposition,

it must

first consider whether the movant has met its initial burden of

showing that there are no genuine issues of material fact and
that it is entitled to judgment as a matter of law.

City

of

Columbus,

120

F.3d

248,

254

(11th

Cir.

Jones v.

1997) (per

curiam). A mere conclusory statement that the non-movant cannot
meet

the burden at

trial

is

insufficient.

Clark,

929

F.2d at

608.

If — and only if — the movant carries its initial burden,
the

non-movant

may

avoid

summary

judgment

only

by

11 demonstrat [ing] that there is indeed a material issue of fact
that precludes summary judgment." Id. When the non-movant bears

the burden of proof at trial, the non-movant must tailor its

response to the method by which the movant carried its initial
burden. If the movant presents evidence affirmatively negating
a material

fact,

the non-movant

"must respond with evidence

sufficient to withstand a directed verdict motion at trial on

the material fact sought to be negated." Fitzpatrick, 2 F.3d at
1116.

If the movant shows an absence of evidence on a material

fact, the non-movant must either show that the record contains
evidence

that

was

"overlooked or

ignored"

by the movant

or

"come forward with additional evidence sufficient to withstand

a

directed

verdict

motion

at

11

trial

based

on

the

alleged

evidentiary deficiency."

Id. at 1117.

The non-movant cannot

carry its burden by relying on the pleadings or by repeating

conclusory allegations contained in the complaint. See Morris
v.

Ross,

663 F.2d 1032,

non-movant

must

1033-34

respond

with

(11th Cir.

1981).

affidavits

or

Rather,

as

the

otherwise

provided by Federal Rule of Civil Procedure 56.

The Clerk has given the non-moving party notice of

the

motions for summary judgment and the summary judgment rules, of

the right to file affidavits or other materials in opposition,
and of the consequences of default.

(Doc. no. 31.) Therefore,

the notice requirements of Griffith v. Wainwright,

772

F.2d

822, 825 (11th Cir. 1985)(per curiam), are satisfied. The time

for filing materials in opposition has expired, and the motions
are ripe for consideration.
B. Plaintiff's Claim Against Dr.

Chaudhary for Breach of

Contract

Plaintiff alleges that Dr. Chaudhary breached the Contract

when he failed to give Plaintiff any proceeds from the sale of
the

easement

across

the Halali

Farm Road property in March

2008. He also alleges that Dr. Chaudhary breached the Contract
when he refinanced the Halali Farm Road property in November

2009 and did not share the proceeds of that transaction with
Plaintiff.

Finally,

Plaintiff

alleges

that

Dr.

Chaudhary

breached the Contract when he refused in 2012 to pay Plaintiff

his share of the partnership assets.
12

To constitute a valid contract under Georgia law,

there

must be parties able to contract, a consideration moving to the
contract,

the

assent

contract,

and a

of

the

to

the

subject matter upon which

operate.

O.C.G.A.

§

contract

claim

Georgia

resultant

parties

in

damages

13-3-1.

(3)

to

The

are
the

elements

(1)

the

party

terms

of

the

the

contract

can

for

a

breach

who

has

breach

and
the

(2)
right

of

the
to

complain about the contract being broken. Uhlig v. Darby Bank

& Trust Co. , 556
Uwork.com,

F.

Appx.

883,

887

Inc . v. Paragon Techs.,

(11th Cir.

Inc.,

2014) (citing

321 Ga. App.

584,

590

(2013)). A breach occurs if a contracting party repudiates or

renounces liability under the contract,

fails to perform the

engagement as specified in the contract, or does some act that
renders performance impossible. Uwork.com,

Inc.

321 Ga. App.

at 590. When a court construes contractual terms to determine
if

a

breach

has

occurred,

"the

cardinal

rule

of

contract

construction is to ascertain the intention of the parties." Id.

If the contractual terms are plain and unambiguous, those terms

alone determine the parties' intent. Id. "Parties may by mutual
consent abandon an existing contract between them so as to make

it not thereafter binding and the contract may be rescinded by

conduct as well as by words." C. Brown Trucking Co.
Henderson,

305 Ga. App. 873,

884

Inc. v. Pearson, 109 Ga. App. 857,

13

Inc. v.

(2010); see O'Neil-Dunham,

858 (1964) (" [W]here there

has been an abandonment of

the contract by both parties,

no

contract exists and neither of the parties can recover for its
breach by the other."); see also Holloway v. Giddens,

239 Ga.

195, 196-97 (1977) overruled on other grounds (holding that the

circumstances surrounding the sending and cashing of a refund

check are adequate to show that both parties intended to walk

away from the contract, which was thereby rescinded).
Inherent in Plaintiff's position that Dr. Chaudhary's sale
of

the

easement

in

March

2008

constituted

a

breach

is

the

assertion that the Contract was still enforceable at that time.

However, events which took place soon after the parties signed
the Contract cast doubt on that assertion. On May 31, 2005, Why

Pay More, LLC, an entity solely owned by Plaintiff, purchased

the Washington Road property. Approximately three weeks prior
to that purchase, the parties agreed in the Contract to buy

that property and other properties in the name of their jointly
owned LLC - Net Assets.

executed,

purpose.

the parties

Nonetheless,

Indeed,

on the day the Contract was

formed Net Assets

precisely for that

Plaintiff bought the Washington Road

property in the name of his solely owned LLC three weeks later.
Further, there is no record that Dr. Chaudhary objected to this
sharp deviation from a key term of the Contract.

Also,

nearly

one

month

after

the

parties

signed

the

Contract and jointly formed Net Assets to purchase certain

14

properties, Dr. Chaudhary bought the Halali Farm Road property
in his own name.

Like Plaintiff's purchase of the Washington

Road property in the name of Why Pay More, LLC, Dr. Chaudhary's
action

was

a

material

deviation

from

the

Contract.

Far

from

objecting, Plaintiff assisted in the purchase as a witness and

contributed significant personal capital to the property in the
form of a down payment, mortgage payments, and improvements to
the land though he was not legally required to do so.

The
indicator

sale

of

that

the

the

Wrightsboro

parties

no

Road

longer

property

is

considered

also

an

themselves

bound by the Contract in March 2008. Plaintiff purchased the

property in his own name one month before signing the Contract.
Then,

rather

than

transferring

the

property

to

Net

Assets

pursuant to the Contract, Plaintiff sold it to a third party on
December

29,

2005.

There

is

no

evidence

that Dr.

Chaudhary

attempted to prohibit the sale or urge Plaintiff not to sell
the property to a third party rather than Net Assets.
The first term in the Contract is that,

xx [b] oth parties

agree to form a LLC (which will be named and registered) later
to buy the following properties." (Am. Compl., Ex. A.) The one-

page Contract then refers to the LLC three times in the course
of outlining other terms and conditions. This shows that buying
the

enumerated properties

in

the

name

of

a

jointly owned

business entity - rather than by some other means - was not

15

only

important

to

the

parties

but

was

the

defining

characteristic of their chosen business model. They assented to

this key term as evidenced by their signatures, then formed Net

Assets on the same day for the purpose of acquiring the real
property.

However,

the record clearly demonstrates that they

mutually abandoned the idea in the weeks and months following
their agreement. To the extent that the parties continued their
partnership after mutually abandoning the Contract,
finds

that

Contract.

the
Thus,

partnership
the

was

Contract

no

was

longer

not

the Court

governed

enforceable

by

the

when

Dr.

Chaudhary sold the easement on the Halali Farm Road property in
2008,

refinanced

the

property

in

2009,

or

refused

to

pay

Plaintiff his share of the alleged partnership assets in 2012.

Dr.

Chaudhary is therefore entitled to summary judgment on

Plaintiff's breach of contract claim.

C. Plaintiff's Claim Against
Chaudhary for Quantum Meruit

Dr.

Chaudhary

and

Mrs.

Plaintiff also alleges that he paid monies to Defendants

for use in purchasing properties in Columbia County, Georgia,
that these monies were necessary and valuable to Defendants in

purchasing these properties, but that Defendants never provided
any compensation or payment to Plaintiff for such monies.
Plaintiff urges under a quantum meruit theory that Defendants

should be

required to pay Plaintiff

for all monies

paid

pursuant to the joint venture. Plaintiff makes no distinction
16

in

this

cause

Chaudhary,

of

action

between

Dr.

Chaudhary

and states in response to Defendants'

and

Mrs.

motions for

summary judgment that this claim in equity is the only claim he

brings against Mrs. Chaudhary. Defendants argue that this claim
is barred by a four-year statute of limitations.
The statute of limitations for a claim based upon quantum
meruit

is

four years.

Burns v.

Dees,

252

Ga.

App.

598,

607

(2001)(affirming trial court finding that claims for quantum
meruit

and

unjust

enrichment

were

barred

by

the

four-year

statute of limitations in O.C.G.A. § 9-3-26); Parks v. Brissey,

114

Ga.

App.

563,

564

(1966)(quantum meruit

comes under the four year limitation").

claim

Notably,

"clearly
Plaintiff

does not provide dates in his allegations under this claim and

does not challenge Defendants' assertion that Plaintiff paid no
monies

to

them

after

2008.

The

record

reflects

that

all

relevant funds Plaintiff paid to Defendants were paid between
May 2005 when the parties signed the Contract and August 2008.
Thus,

his

claim

limitations.

is

barred

by

the

four

Summary judgment on this

year

statute

of

claim is proper for

Defendants.

D. Plaintiff's Claim Against Dr.
Fiduciary Duty

Plaintiff

alleges breach of

Chaudhary for Breach of

fiduciary duty as

cause of action against Dr. Chaudhary.

a third

He asserts that this

fiduciary duty was required by the Contract and is inherent in
17

every partner relationship.

His

Plaintiff

alleges,

failing

interests

in

Contract;

(2) failing to protect Plaintiff's interests in the

partnership;

purchased
consent;

by

the

(3)

real

property

self-dealing

pursuant
and

(1)

(4)

to

partner breached his

the

to

protect

purchased

in

selling

partnership

self-dealing

in

the

to

real

without

selling

Plaintiff's

pursuant

the

duty,

the

property

Plaintiff's

real

property

purchased pursuant to the partnership and failing to pay the
proceeds from those sales to Plaintiff.

To

support

a

claim

of

breach

of

fiduciary

duty,

a

plaintiff must prove the existence of such duty, breach of that

duty, and damages proximately caused by the breach. Wright v.
Apartment

Inv.

and

Management

Co. , 315

Ga.

App.

587,

594

(2012). As for Plaintiff's position that the Contract created

a fiduciary duty,

the Court finds as discussed above that

Plaintiff abandoned the Contract soon after it was executed.

The first indicator of abandonment was Plaintiff's apparently

self-serving

conduct

with

regard

to

the

Washington

Road

property. As noted, he purchased that property in the name of
his solely owned LLC nineteen days after he agreed to purchase

that property jointly with Dr.
Assets.

There

is

no

evidence

Chaudary or obtained his

property in a manner

Chaudary in the name of Net
that

Plaintiff

consulted

consent prior to acquiring

inconsistent

with the

terms

of

Dr.

this

the

Contract. Later that year, Plaintiff again showed disregard for

18

any fiduciary relationship flowing from the Contract when he

sold

the

Wrightsboro

Road

property

to

a

third

party

for

$10,000.00 more than the original purchase price rather than

transferring it to Net Assets. Plaintiff does not explain how
this transaction protected Dr. Chaudhary's interests and offers
no evidence that he shared a portion of the profits with Dr.

Chaudary.

Despite

Plaintiff's

self-serving

conduct

and

disregard of the key terms of the Contract in relation to the
Washington Road and Wrightsboro Road properties in 2005,
insists that Dr.

Halali

he

Chaudhary's sale of an easement across the

Farm Road property

in

2008

and

refinancing

of

that

property in 2009 were self-dealing and a breach of a fiduciary
duty allegedly flowing from the Contract. However, as discussed
above, the parties had already mutually abandoned the Contract

when Dr. Chaudary sold the easement and refinanced the property

such that the Contract and any fiduciary duties created by the

Contract no longer governed the conduct of either party.
Plaintiff also alleges that the partnership, rather than
the

Contract,

was

the

source

of

a

fiduciary

duty.

"A

partnership is an association of two or more persons to carry
on as co-owners a business for profit.

6(a).

Factors

. . ." O.C.G.A.

§ 14-8-

that indicate the existence of a partnership

include a common enterprise, the sharing of risk, the sharing

of expenses, the sharing of profits and losses, a joint right
of control over the business, and a joint ownership of capital.

19

Aaron Rents,

App.

746,

Inc.

747

purchase

profits

and

Willis,

Fourteenth Street Venture,

(2000)(holding

parties

fiduciary

v.

property

losses).

duty

Once

between

308 Ga. App.

that

partnership

jointly

and

formed,

a

the

203, 211

partners.

L.P.,

243

exists

participate

partnership
AAF-McOuay,

Ga.

where

in

the

creates
Inc.

a
v.

(2011)("Partners owe fiduciary

duties to one another to act in the utmost good faith and with

the

finest

loyalty.").

Here,

the parties

clearly expressed

their intention to form a partnership in the Contract. However,

the record reflects that they abandoned that intent soon after

they executed the Contract. Despite their written agreement,
they never co-owned a business and never purchased property

jointly or in an entity jointly owned by them. Dr. Chaudhary,
Mrs.

Chaudhary,

or an entity solely owned by her owned the

Halali Farm Road property at all relevant times. Plaintiff had

no ownership interest in that property, although he voluntarily
made a down payment, mortgage payments, and improvements to the
land. Plaintiff or entities solely owned by him owned the other

three properties listed in the Contract. Dr. Chaudhary never
owned an interest in any of those properties.

Although the

Contract contemplated a partnership, that business relationship
never developed as envisioned and the parties quickly abandoned
the agreement that would have governed that relationship. The
Court finds that, to the extent a partnership existed which

created a fiduciary duty, that duty no longer existed at the

20

time of the alleged breaches.
Dr.

Summary judgment is proper for

Chaudhary on this claim.

Ill,

Upon
genuine

the

foregoing,

dispute

as

to

CONCLUSION

the

Court

any material

finds
fact

that

there

is

and Defendants

no
are

entitled to judgment as a matter of law on each of Plaintiff's
claims.

IT IS THEREFORE ORDERED that Dr.

Chaudhary's motion for

summary judgment (doc. no. 28) and Mrs. Chaudhary's motion for
summary

judgment

(doc.

no.

29)

are

GRANTED.

The

Clerk

is

directed to enter Judgement in favor of Defendants and CLOSE
this

case.

ORDER ENTERED
July,

at

Augusta,

Georgia,

this

<>c'

day of

2015.

idal

Hall

States District Judge
District of Georgia

21