FOURTH DIVISION

DILLARD, C. J.,

RAY, P. J. and SELF, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 27, 2017

In the Court of Appeals of Georgia

A17A0653. OSPREY COVE REAL ESTATE, LLC v.

TOWERVIEW CONSTRUCTION, LLC.

SE-027

SELF, Judge.

In this contract dispute arising fromthe development and sale of residential lots

in Camden County, Towerview Construction, LLC (“Towerview”) filed a complaint

against Osprey Cove Real Estate, LLC (“Osprey Cove”) alleging fourteen separate

causes of action including fraud and deceit, unjust enrichment, breach of contract, and

intentional infliction of emotional distress. Osprey Cove answered and filed a motion

to dismiss Towerview’s complaint for failure to state a claim or, in the alternative, for

a more definite statement targeting eight1

of Towerview’s fourteen causes of action.

1 Specifically, Osprey Cove’s motion sought a more definite statement on

Towerview’s claims for slander of title, breach of contract, fraud and deceit, fraud in

the inducement, fraudulent misrepresentation, negligent misrepresentation, tortious

interference with a businessrelationship, and tortiousinterference with a contractual
See OCGA §§ 9-11-12 (b) (6), 9-11-12 (e). The Superior Court of Camden County

denied Osprey Cove’s motion in its entirety, and we granted Osprey Cove’s

application for discretionary appeal. Because there is no current provision of Georgia

law which would support a claim of intentional infliction of emotional distress by a

business entity, and because Towerview failed to plead certain countsrelated to fraud

with particularity, we reverse the trial court in part for the reasons discussed below.

In all other respects, we affirm the judgment of the trial court.

1. Under Georgia law,

[a] motion to dismiss pursuant to OCGA § 9-11-12 (b) (6) will not be

sustained unless (1) the allegations of the complaint disclose with

certainty that the claimant would not be entitled to relief under any state

of provable facts asserted in support thereof; and (2) the movant

establishes that the claimant could not possibly introduce evidence

within the framework of the complaint sufficient to warrant a grant of

the relief sought.

(Citation and punctuation omitted.) State v. Singh, 291 Ga. 525, 529 (3) (731 SE2d

649) (2012). To that end, 

minimum pleading requirements are found in OCGA § 9-11-8 (a) (2)

(A), which requires that the complaint contain “[a] short and plain

relationship. 

2
statement of the claims showing that the pleader is entitled to relief,”

and we have held that the touchstone is fair notice — “this short and

plain statement must include enough detail to afford the defendant fair

notice of the nature of the claim and a fair opportunity to frame a

responsive pleading.” 

(Citations omitted.) Aetna Workers’ Comp Access v. Coliseum Medical Center, 322

Ga. App. 641, 651 (4) (746 SE2d 148) (2013). While “[a] trial court’s ruling on a

motion to dismiss for failure to state a claim is subject to de novo review[,]” Infinite

Energy, Inc. v. Pardue, 310 Ga. App. 355, 356 (1) (713 SE2d 456) (2011), we “accept

the allegations of fact that appear in the complaint and view those allegations in the

light most favorable to the plaintiff.” Bush v. Bank of N. Y. Mellon, 313 Ga. App. 84,

89 (720 SE2d 370) (2011).

So viewed, Towerview and Osprey Cove executed four construction loan

agreements (the “construction contracts”) to develop four residential lots in Camden

County.Generally, the construction contracts deeded the lotstoTowerview “as owner

and . . . as the general contractor and builder for the residences to be constructed on

each respective lot,” while Osprey Cove “acted as the mortgagee by providing

[Towerview] with a construction loan and lot loan for each respective lot.” Once the

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residence on each respective lot sold, the construction loan for the lot would be

satisfied and Towerview would receive a “cost-plusfee for its construction services.” 

During construction, Towerview alleged that Osprey Cove “interfered” with

its work by

improperly contacting [Towerview]’s varioussubcontractors outside the

presence of [Towerview], giving [Towerview]’s subcontractors

drastically different directives and instructions from what [Towerview]

had given them to complete the work under the pre-approved plans and

specifications, and made false statements and allegations involving

[Towerview] that severely interfered with the working relationship

between [Towerview] and its subcontractors.

Towerview also contended that certain provisions of the construction contracts were

internally inconsistent. For example, Section 2 (b) of the construction contracts

provide that Towerview “is. . . indefeasibly seized of marketable title to the Property

in fee simple absolute and has full power and lawful right to convey and encumber

the same.” However, Section 9 (a) states that Osprey Cove “shall have the sole

authority to determine the sale price of the property and the sole right to direct itssale

[12 months after the closing of the purchase by Towerview from Osprey Cove of the

Property] and thereafter.” In addition, one paragraph of Section 9 (b) directed

Towerview to “list the Property for sale with St. Marys Realty or another broker

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directed by [Osprey Cove]” and noted that any proceeds from the sale of a lot,

following satisfaction of the construction loan and builder fees, “shall be paid to

[Osprey Cove]. . . .” In short, Towerview alleged that Osprey Cove “never intended

to convey to [Towerview] the full property rights of an owner” and that Osprey Cove

interfered with Towerview’s subcontractors to cause delay in an effort to trigger the

default provisions of the construction loans. 

When the first lot sold in August 2015, Towerview alleged that it did not

receive any payment fromthe sale proceeds. At about the same time, St. MarysRealty

stopped listing homes for sale in the St. Marys area, and Osprey Cove became a

licensed real estate brokerage company. Thereafter, Towerview attempted to list the

three remaining properties with other agents and brokers, but Osprey Cove refused

to approve the listings. After August 2015, Osprey Cove only approved listings by

Towerview if OspreyCove wasthe listing agent. Towerview also alleged that Osprey

Cove “failed to continuously list [the three remaining lots] for sale, refused to accept

offers and refused to consummate any sales,” and used two of the lots as model units

rather than listing them for sale. Towerview further contended that Osprey Cove

“threaten[ed]” other agents and brokers when Towerview attempted to list the lotsfor

sale with anyone other than Osprey Cove. 

5
According toTowerview, OspreyCove’s actions under the “shamand illusory”

construction contracts created an environment in which Osprey Cove, “while acting

as listing agent and broker could delay in selling the subject properties, and while

acting as mortgagee could then declare [Towerview] in default of the construction

loans and lot loans and foreclose out [Towerview]’s interest so that [Towerview]

would receive no payment for its construction services.” Ultimately, Towerview

alleged that Osprey Cove’s “intent from the beginning was to frustrate the purpose

of the Construction Contracts, to establish a scheme to defraud [Towerview] of

receiving any payment at all[,] and to declare [Towerview] in default of the

Construction Contracts through no fault of [Towerview].”2

2 Although Towerview’s brief in this Court refers to a transcript of the trial

court’s hearing on Towerview’s request for a temporary restraining order, there is no

indication the trial court considered the evidence from that hearing in ruling upon

OspreyCove’s motion to dismiss. Moreover, it would have been improper for the trial

court to consider such evidence when evaluating a motion to dismiss pursuant to

OCGA § 9-11-12 (b) (6). See generally Campbell v. Ailion, 338 Ga. App. 382, 383

(790 SE2d 68) (2016) (in reviewing motion to dismiss for failure to state a claim, we

“treat[] all material allegationsset forth in the complaint as true, treat[] all denials set

forth in the answer as false, and resolv[e] any doubts in favor of the plaintiff”).

Rather, consideration of evidence outside the pleadings “converts [a] motion to

dismiss into a motion for summary judgment[,]” and that was not done here. Id.

Accordingly, we have not incorporated any evidence developed in that hearing into

our analysis. 

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2. In its first enumeration of error, Osprey Cove contends the trial court erred

in denying its motion to dismiss Towerview’s claim for intentional infliction of

emotional distress because Towerview, as a business entity, is unable to suffer

emotional distress. We agree.

While neither party has identified any Georgia authority on point, and our

research has yielded none, other courts have addressed similar claims. In Lampliter

Dinner Theater v. Liberty Mut. Ins. Co., 792 F2d 1036, 1039, n. 2 (I) (11th Cir.

1986), the Eleventh Circuit noted that Alabama’s then newly-recognized “tort of

outrageous conduct . . . is also known as the intentional infliction of emotional

distress.” Id. The court agreed with the district court’s dismissal of the plaintiff

business’s claim for outrageous conduct because “corporations cannot experience

emotional distress and cannot therefore maintain a suit for outrageous conduct.” Id.

See also FDIC v. Hulsey, 22 F3d 1472, 1489 (III) (10th Cir. 1994) (applying

Oklahoma law; “Since a corporation lacks the cognizant ability to experience

emotions, a corporation cannot suffer emotional distress. Thus, no claim for

intentional infliction of emotional distress lies.”); HM Hotel Properties v. Peerless

Indem. Ins. Co., 874 FSupp.2d 850, 854 (III) (A) (1) (D. Ariz. 2012) (applying

Arizona law; plaintiff “failed to state a claim for intentional or negligent infliction of

7
emotional distress because, as [an LLC], it cannot experience emotional distress”);

Tekdoc Svcs., LLC v. 3i-Infotech, Inc., No. 09-6573 (MLC), 2012 U.S. Dist. LEXIS

115728, *59 (II) (B) (2) (f) (D.N.J. 2012) (applying New Jersey law; “Business

organizations cannot experience emotions and, assuch, cannot experience emotional

distress.”); Barreca v. Nickolas, 683 NW2d 111, 124 (III) (B) (Iowa 2004) (“The

Factory, as a limited liability company, certainly cannot suffer emotional distress;

such would stretch the bounds of the legal fiction of corporate personhood too far.”).

We find the logic of these authorities persuasive. Therefore, we conclude that

business entities, including limited liability companies, cannot recover on claims of

intentional or negligent infliction of emotional distress as a matter of law because

business entities lack “the cognizant ability to experience emotions. . . .”3 Hulsey, 22

F3d at 1489 (III). Compare Oglethorpe Power Co. v. Estate of Forrister, 332 Ga.

App. 693, 712 (3) (b) (774 SE2d 755) (2015) (in nuisance cases, “a limited liability

company may have a cause of action for “discomfort and annoyance” affecting the

use of its property for the purposes intended by its members and those they permit to

join them”; “discomfort and annoyance” damages are therefore separate from

3

 Because no such claims have been raised, we need not decide here whether

claims for the intentional or negligent infliction of emotional distress might accrue

to individual members of a limited liability company.

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emotional distress; see id. at 707-710 (3) (a)]). As a result, we find that “the

allegations of [Towerview’s] complaint disclose with certainty that [Towerview]

would not be entitled to relief under any state of provable facts asserted in support [of

its claim for intentional infliction of emotional distress]. . . .” Singh, 291 Ga. at 529

(3). Accordingly, we reverse the trial court’s denial of Osprey Cove’s motion to

dismiss Towerview’s claim of intentional infliction of emotional distress.

3. Osprey Cove next asserts that the trial court erred in denying its motion to

dismiss Towerview’s claims of fraud and deceit, fraud in the inducement, fraudulent

misrepresentation, and negligent misrepresentation.

4

 In part, we agree.

In paragraphs 5 through 46 of its complaint, Towerview recited various facts

concerning the execution of the construction contracts at issue, the relationship

between the parties, and how that relationship soured over time. These factual

4 See City Dodge, Inc. v. Gardner, 232 Ga. 766, 769-770, n. 1 (208 SE2d 794)

(1974) (elements of fraud and deceit); Grand Master Contracting v. Lincoln

Apartment Mgmt., 314 Ga. App. 449, 451 (2) (724 SE2d 456) (2012) (elements of

fraudulent misrepresentation); Liberty Capital, LLC v. First Chatham Bank, 338 Ga.

App. 48, 54 (2) (a) (789 SE2d 303) (2016) (elements of negligent misrepresentation).

See also Roberts v. JP Morgan Chase Bank, 342 Ga. App. 73, 78-79 (3) (802 SE2d

880) (2017) (comparison of fraud and negligent misrepresentation); Kent v. A.O.

White, Jr. Consulting Engineers, 253 Ga. App. 492, 499 (4) (a) (559 SE2d 731)

(2002), overruled on other grounds, Time Warner Entertainment v. Six Flags Over

Georgia, 254 Ga. App. 598 (563 SE2d 178) (2002) (comparison of fraud and deceit

and fraudulent misrepresentation).

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assertions were incorporated into each count of Towerview’s complaint, which

merely recited the elements for each separate cause of action. However, what is

lacking is any allegation concerning a fraudulent statement by Osprey Cove. At its

core, Towerview’s complaint appears to focus upon the alleged one-sided nature of

the construction contracts it executed with Osprey Cove. But even when viewed in

such a manner, the complaint lacks any factual allegations which could be construed

as fraud. In short, no specific instance of fraud was pled. The trial court denied

Osprey Cove’s motion to dismiss or, in the alternative, for a more definite statement

related to these counts and, in so ruling, it erred in part.

While we agree that Osprey Cove failed to plead its claims of fraud with

particularity, see OCGA § 9-11-9 (b), the proper remedy to addresssuch deficiencies

in pleading is a motion for “a more definite statement, not a dismissal of the

complaint or judgment on the pleadings, at least so long as the plaintiff is able and

willing to amend his pleadings to conform to the statutory requirements.” (Citation

and punctuation omitted.) Campbell v. Ailion, 338 Ga. App. 382, 388-389 (4) (790

SE2d 68) (2016). Osprey Cove requested the relief of a more definite statement as an

alternative argument in its motion to dismiss, but the trial court denied that portion

of Osprey Cove’s motion. Accordingly, we reverse the trial court’s order denying

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Osprey Cove’s motion for a more definite statement as to Towerview’s claims of

fraud and deceit, fraud in the inducement,

5

fraudulent misrepresentation, and

negligent misrepresentation.

4. Osprey Cove also enumerates as error the trial court’s denial of its motion

to dismiss Towerview’s claimfor wrongfulforeclosure. As with OspreyCove’s other

arguments, we review the trial court’s ruling de novo. Infinite Energy, 310 Ga. App.

at 356 (1).

In that vein, we note that Towerview’s complaint contains an allegation that

OspreyCove stated an “intent to immediately proceed with a nonjudicialforeclosure”

and a prayer that the trial court “cancel the upcoming foreclosure sale” of two lots.

As a result, the allegations of the complaint show that, at the time Towerview filed

its complaint, a foreclosure sale had not yet occurred. “[A]s a matter of law, a plaintiff

cannot state a claim for wrongful foreclosure when no foreclosure sale has taken

5 Specifically regarding Towerview’s claim for fraud in the inducement, its

complaint contains no allegation that it rescinded the construction contracts prior to

filing the present action. See Novare Group v. Sarif, 290 Ga. 186, 188 (1) (718 SE2d

304) (2011). Either Towerview rescinded the construction contracts pre-suit or it did

not, and we are unable to decide that issue at this early stage of the proceedings. If

discovery or further pleadings demonstrate that Towerview did not rescind the

construction contracts prior to filing suit, Towerview’s claim for fraud in the

inducement may be ripe for dismissal. See id.

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place.”6

(Citation and footnote omitted). Humphrey v. JP Morgan Chase Bank, 337

Ga. App. 331, 333 (1) (a) (787 SE2d 303) (2016). NotwithstandingTowerview’sright

to seek supplementation of its original complaint with allegations concerning any

foreclosure sale that occurred after the filing of its complaint, see OCGA § 9-11-15

(d)

7

, we are bound by the record and our duty to confine our review to Towerview’s

complaint to conclude that the trial court erred in denying Osprey Cove’s motion to

dismiss Towerview’s claim for wrongful foreclosure. See Humphrey, 337 Ga. App.

at 333 (1) (a); Sparra, 336 Ga. App. at 420 (1) (a).

6 The record suggests a foreclosure sale of the two lots may have occurred

before the trial court issued its order denying Osprey Cove’s motion to dismiss.

Compare Humphrey, 337 Ga. App. at 333 (1) (a) (“Georgia law recognizes separate

causes of action for wrongful foreclosure and wrongful attempted foreclosure. But

[Towerview]’s complaint clearly referenced wrongful foreclosure, rather than an

attempted foreclosure.”) (citations and footnotes omitted). See also Sparra v.

Deutsche Bank Nat. Trust Co., 336 Ga. App. 418, 420 (1) (a) (785 SE2d 78) (2016)

(no foreclosure sale); Patel v. JP Morgan Chase Bank, 327 Ga. App. 321, 326 (2)

(757 SE2d 460) (2014) (no foreclosure sale at time of motion for summary judgment). 

7

“Upon motion of a party the court may . . . permit him to serve a supplemental

pleading setting forth transactions or occurrences or events which have happened

since the date of the pleading sought to be supplemented. Permission may be granted

even though the original pleading is defective in its statement of a claim for relief or

defense.” See also Blanton v. Duru, 247 Ga. App. 175, 177 (2) (543 SE2d 448)

(2000). Nothing in this opinion should be construed as a ruling on whether

Towerview should be allowed to supplement its complaint under OCGA § 9-11-15

(d). Such matters are committed to the discretion of the trial court. See Blanton, 247

Ga. App. at 177 (2).

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5. Next, Osprey Cove contends that the trial court erred in denying its motion

to dismiss Towerview’s claim of unjust enrichment because Towerview’s complaint

“establishes the existence of the valid [construction contracts] between Osprey Cove

and Towerview, which preclude Towerview’s claim of unjust enrichment. . . .”

However, 

Georgia law permits a plaintiff to proceed to trial on alternative theories

of recovery. Thus, if a factfinder concludes that [Osprey Cove] is liable

on [Towerview’s] breach of contract theory, the issue of [Osprey

Cove’s] liability under the alternative theory of unjust enrichment . . .

would become moot. Conversely, if the factfinder concludes that

[Osprey Cove] did not breach any express contract, questions of fact

would exist as to whether [Osprey Cove] is liable under the alternative

theory.

(Citation and punctuation omitted.) Reynolds v. CB&T, No. A17A0891, 2017 Ga.

App. LEXIS 426, at *15 (4) (Sept. 22, 2017). See also Campbell, 338 Ga. App. at

387-388 (2). Evidence developed through discovery may reveal Osprey Cove

encouraged Towerview to confer a benefit upon Osprey Cove by completing

construction on the lots before OspreyCove foreclosed. See Reynolds, 2017 Ga. App.

LEXIS 426 at *16. As a result, we conclude that the trial court did not err in denying

Osprey Cove’s motion to dismiss Towerview’s claim for unjust enrichment.

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6. Similarly, in several enumerations of error, OspreyCove assertsthat the trial

court erred in failing to dismiss Towerview’s causes of action for slander of title,

breach of contract, tortious interference with a business relationship, tortious

interference with a contractual relationship, breach of fiduciary duty, and breach of

the covenant of good faith and fair dealing. After review of Towerview’s complaint,

including the factual allegations coupled with the individual causes of action, as well

asthe liberal notice pleading requirements codified at OCGA § 9-11-8 (a) (2) (A), we

cannot conclude that Osprey Cove has demonstrated that Towerview “could not

possibly introduce evidence within the framework of the complaint sufficient to

warrant a grant of the relief sought.” Singh, 291 Ga. at 529 (3). See also Dillingham

v. Doctors Clinic, 236 Ga. 302, 303 (223 SE2d 625) (1976) (“[T]he objective of the

[Civil Practice Act] is to avoid technicalities and to require only a short and plain

statement of the claim that will give the defendant fair notice of what the claim is and

a general indication of the type of litigation involved; the discovery process bearsthe

burden of filling in details.”); Campbell, 338 Ga. App. at 384-385 (“[I]t is not

necessary for a complaint to set forth all of the elements of a cause of action in order

to survive a motion to dismiss for failure to state a claim[;] [r]ather, the Georgia Civil

Practice Act requires only notice pleading and . . . pleadings are to be construed

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liberally and reasonably to achieve substantial justice. . . .”). Instead, we agree with

the trial court that “basic discovery should eliminate any uncertainty about the basis

of [Towerview]’s claims.” Accordingly, we affirm the remainder of the trial court’s

denial of Osprey Cove’s motion to dismiss or, in the alternative, for a more definite

statement.

Judgment affirmed in part and reversed in part. Dillard, C. J., and Ray, P. J.,

concur.

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