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IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA
MILTON SHLAPAK D/B/A/ SHLAPAK :
DEVELOPMENT COMPANY, AND SHLAPAK :
DEVELOPMENT COMPANY,
:
Plaintiffs, : Civil Action No. 22-A-00192-10
vs. :
:
VAN DAU,
:
Defendant. :
:
:
DEFENDANT VAN DAU’S BRIEF IN SUPPPORT OF HIS
MOTION FOR SUMMARY JUDGMENT
Defendant Van Dau (“Mr. Dau”) hereby files this Brief in Support of his Motion for
Summary Judgment as to all claims in Plaintiffs Milton Shlapak (“Shlapak”) and Shlapak
Development Company’s (“Shlapak Development”) Second Amended Complaint (the
“Complaint” or “SAC”). 1
INTRODUCTION
On March 14 and September 15, 2022, 2 Mr. Dau moved to dismiss the Complaint for forum
non conveniens and for failure to state a claim, motions which are still pending and should be
granted. Plaintiffs subsequently requested the ability to take discovery regarding the forum non
conveniens motion. The Court granted Plaintiffs’ request, and the parties engaged in discovery,
1
Mr. Dau files concurrently herewith a Renewed Motion to Dismiss for Forum Non
Conveniens. In the event the Court declines to dismiss the Complaint on forum non conveniens
grounds, Mr. Dau moves for summary judgment.
2
On March 14, Mr. Dau moved to dismiss the original complaint, and on September 15,
2022, he moved to dismiss the Second Amended Complaint, the current version of Plaintiffs’
claims.
including depositions of Mr. Dau and Mr. Shlapak. The facts uncovered throughout the discovery
process confirm Mr. Dau’s initial argument that the case should be dismissed for forum non
conveniens because critical witnesses and documents are located elsewhere. They further
demonstrate that summary judgment is appropriate; as discussed herein, Mr. Shlapak admitted that
critical allegations in the Complaint are not true.
In their Complaint, Plaintiffs assert that a three-page document executed in 1992—more
than thirty years ago—entitles them to profits earned by businesses not mentioned in that
agreement and that Plaintiffs had no involvement in. Plaintiffs aver that the 1992 document created
a partnership with Mr. Dau with respect to certain development projects to be done in Laos, and
that Mr. Dau breached the purported agreement and his fiduciary duties by allegedly usurping
business opportunities that belonged to the partnership. Plaintiffs’ claims fail for several reasons.
As an initial matter, Plaintiffs assert claims about projects outside the scope of the 1992 document.
Moreover, the now-dismissed PT (Sole) 3—not Mr. Dau—carried out the at-issue projects, and PT
(Sole) was not a party to the 1992 document. 4 Plaintiffs had multiple documents in their
possession, all more than a decade old, disclosing PT (Sole)’s participation in the at-issue projects,
undermining Plaintiffs’ claim that these business opportunities were usurped or concealed from
them. Further, while Plaintiffs allege that Mr. Shlapak did not discover PT (Sole)’s participation
in resettlement work until 2019, the record shows that, in 2006, Mr. Shlapak himself voted for PT
3
Former defendants PT Construction Company Limited (misidentified as PT Construction
Company) and PT (Sole) Company Limited are the same entity—the name changed over time.
The company is referred to herein as “PT (Sole).”
4
Plaintiffs admit that they do not have a contract with PT (Sole). (SAC, ¶ 78.)
2
(Sole) to be awarded the resettlement work. 5
Perhaps more importantly, Plaintiffs’ claims ignore an agreement that the parties signed in
2014, terminating and superseding the 1992 document upon which Plaintiffs rely. Any allegation
that this agreement was procured by fraud, is contradicted by Mr. Shlapak’s deposition testimony;
indeed, Mr. Shlapak admitted that no representations were made to him about the 2014 Agreement.
Rather, he reviewed and signed it.
Finally, because Plaintiffs did not file this lawsuit until 2022, almost eight years after
signing the 2014 Agreement, any claim based upon the 1992 document is barred by the applicable
statute of limitations. As such, Mr. Dau files the present Motion for Summary Judgment to
demonstrate that he is entitled to judgment in his favor.
BACKGROUND
A. The 1992 Document
Between 1989 and 1991, Plaintiffs 6 entered into agreements with the government of Laos
that granted Plaintiffs the rights to develop:
• “[A]ll the marketable natural resources of the country of Laos including minerals,
oil and gas,” and the “necessary infrastructure” for said minerals, oil, and gas, (First
Amended Complaint (“FAC”), ¶ 12; Second Amended Complaint (“SAC”), ¶ 32); 7
5
Because the dams cause flooding in certain residential areas, the affected individuals must
be resettled. Resettlement requires building new homes and communities.
6
The Complaint is not clear about which plaintiff is a party to any particular agreement, and
it often uses the reference “Mr. Shlapak/SDC” in reference to both Plaintiffs. Mr. Dau will
primarily use “Plaintiffs” in this Motion, although he reserves the right to argue that only one
plaintiff entered into a particular agreement or committed a particular act.
7
Plaintiffs have filed three complaints (the Original, First Amended Complaint and Second
Amended Complaint). Mr. Shlapak filed an Affidavit swearing to the accuracy of the facts in the
First Amended Complaint and Plaintiffs’ Opposition to Defendants’ Motion to Dismiss the
Original Complaint. (Affidavit of Milton Shlapak filed on May 9, 2022, along with Plaintiffs’
Opposition to Defendants’ Initial Motion to Dismiss, ¶ 2.) The allegations in the First Amended
Complaint are contained in the Second Amended Complaint. Mr. Dau will cite to the First and
Second Amended Complaint herein.
3
• A hydroelectric dam;
• An industrial zone/port facility in Vietnam;
• An iron/steel plant; and
• An oil and gas concession. (FAC, ¶ 15; SAC, ¶ 35.)
While the Complaint states that Mr. Dau “lacked significant business and development
experience,” Plaintiffs nonetheless agreed to share profits on these projects with Mr. Dau because
Mr. Dau had “made some introductions and translated during business meetings.” (FAC, ¶ 16;
SAC, ¶ 36; Dep. of Milton Shlapak (“Shlapak Dep.”) filed contemporaneously herewith, p. 71 lns.
10-25.)
The parties then signed a document to reflect this agreement (the “1992 Document”). 8
Plaintiffs drafted the document, identifying which of Plaintiffs’ Lao-granted projects and rights
were subject to the agreement; said differently, he identified the projects to which Mr. Dau would
receive half of Plaintiffs’ profits. (FAC, ¶ 17; SAC, ¶ 37; Shlapak Dep., p. 67 lns. 16-20, p. 70
lns. 4-11.) Mr. Shlapak testified: “I was going to do these projects, and he was going to help me
by doing language, and I was willing to just share fifty-fifty with him.” (Shlapak Dep., p. 71 lns.
6-9.) As reflected in the 1992 Document, the projects Plaintiffs selected were:
The business (hereinafter referred to as the ‘Ventures’) shall include but not be
limited to:
(a) Oil and gas concession (3800 sq km) joint venture with Monument Oil;
(b) Hydroelectric dam development and associated timber reserves – presently
under joint venture negotiation with Bechtel Corporation;
(c) Iron mini/mill;
(d) Oil refinery/port development on the coast of Vietnam;
8
The 1992 Document was amended twice, though the amendments are not relevant to this
motion. (FAC, Exs. 4-5; SAC, Exs. 4-5.) The documents are referred to collectively as the “1992
Document.”
4
(e) Mining projects;
(f) Infrastructure developments;
(FAC, Ex. 3, ¶ 1; SAC, Ex. 3, ¶ 1.) Subsection (b), the hydroelectric dam project with Bechtel
Corporation, refers to the Nam Ngum 2 Dam Project (“NN2 Dam Project”), which was the only
successful venture. (Shlapak Dep., p. 277 lns. 6-14, p. 172 lns. 8-14.) Mr. Shlapak confirmed
none of the other identified projects ever generated a profit. (Id.)
The document also included a provision that the agreement would apply to “other
businesses as may be agreed upon by and between the Parties.” (FAC, Ex. 3, ¶ 1; SAC, Ex. 3,
¶ 1.) When Plaintiffs and Mr. Dau decided to jointly pursue other business ventures that were not
specifically identified in the 1992 Document, they did so in writing. (FAC, ¶¶ 20-21 and Exs. 6,
8 thereto; SAC, ¶¶ 40-41 and Exs. 6, 8 thereto.)
The 1992 Document states that the parties merely “associate themselves together for the
purpose of conducting general business with the government of Laos.” (FAC, Ex. 3, ¶ 1; SAC,
Ex. 3, ¶ 1.) Tellingly, the 1992 Document does not contain an exclusivity or non-compete
provision, meaning it does not prohibit either party from pursuing its own business with the
government of Laos or from assisting other companies working with the Lao government. (See
FAC, Ex. 3 and SAC, Ex. 3.) The document similarly does not describe the parties’ relationship
as a partnership or state that they are “partners.” Indeed, the parties never kept any accounting for
their work together, never filed a separate partnership tax return, and never issued a K-1. (Shlapak
Dep., p. 72 lns. 1-25.) The so-called “partnership” also never entered into any contracts with other
business or persons. (Shlapak Dep., p. 94 ln. 25-p. 95 ln. 3.)
B. The 2014 Agreement.
On February 28, 2014, Plaintiffs and Mr. Dau signed a new document in which they: (i)
confirmed they were only working together on two projects, the NN2 Dam Project and Nam Bak
5
(another dam project) (FAC, Ex. 9 Schedule 1; SAC, Ex. 9 Schedule 1.); (ii) confirmed the 2014
Agreement was the “sole and entire agreement between the parties” and “supersede[d] any
previous written or oral agreements or understandings;” and (iii) confirmed the 2014 Agreement
terminated “any and all” previous agreements or understandings. Specifically, the 2014
Agreement states:
This Agreement is the sole and entire agreement of the parties hereto and
supersedes any previous written or oral agreements or understandings between the
parties hereto, and any and all such previous written or oral agreements or
understandings between the parties hereto shall terminate upon the signing
and delivery of this Agreement.
(FAC, Ex. 9 § 5(e); SAC, Ex. 9 § 5(e) (emphasis added).) Thus, by signing the 2014 Agreement,
the parties terminated and replaced the 1992 Document—the basis for all of Plaintiffs’ claims.
Mr. Shlapak testified that, after Mr. Dau gave him the document, he reviewed and signed
it. (Shlapak Dep., p. 343 lns. 12-23, p. 349 lns. 3-7.) Mr. Shlapak did not rely on any
representation from Mr. Dau or other person, as he testified that no such representations were
made. (Id.) Rather, Mr. Shlapak emphasized that he is a sophisticated businessman and
acknowledged that he could have had a lawyer review the contract, as he had done throughout his
career. (Shlapak Dep., p. 349 lns. 18-20, p. 343 lns. 7-11.)
C. Plaintiffs Have Known PT (Sole) Was Involved in the Projects Identified by
Plaintiffs for More than Twelve Years.
While Plaintiffs claim that they first learned of PT (Sole)’s resettlement work during a
November 2019 trip to Laos, (FAC, ¶ 37; SAC, ¶ 57), Mr. Shlapak admitted at his deposition that
this allegation was not true. Plaintiffs always knew that building a dam would require resettlement
work. (Shlapak Dep., p. 289 ln. 16 - p. 290 ln. 1.) Moreover, Mr. Shlapak confirmed that
Plaintiffs’ records showed that PT (Sole)’s NN2 resettlement work had been disclosed to Plaintiffs
in 2006 (thirteen years earlier):
6
Q.· · But it was disclosed in this document in your files, which is dated May
2006, that P.T.· would be the contractor for the resettlement action plan for
the Nam Ngum 2 dam project –
A.· ·Uh-huh.
(Shlapak Dep., p. 313 lns. 12-16; Ex. 23 thereto.) More than that, the Board of SouthEast Asia
Energy Limited, for which Mr. Shlapak was and is a board member, approved of awarding the
resettlement contract to PT (Sole), and Mr. Shlapak voted in favor of that award in May of 2006.
(Affidavit of Nopadol Intralib (“Intralib Aff.”), ¶¶ 22-24.) PT (Sole)’s progress on the resettlement
work was also reported at subsequent board meetings. (Id., ¶ 25.) In short, the big “ah-ha moment”
described in the Complaint was simply false. Mr. Shlapak knew about, voted for, and was updated
regarding the resettlement-related work performed by PT (Sole) thirteen years earlier than he
claimed.
Similarly, Mr. Shlapak knew about PT (Sole)’s work on the Xayaburi dam for more than a
decade. (See SAC, ¶ 9.) In 2008, Mr. Shlapak attended a dinner in Bangkok with representatives
of CH. Karnchang Public Company Limited (“CK”). CK had financed and developed the NN2
Dam Project and had the development rights from the Lao government to develop the Xayaburi
dam. At the dinner, Mr. Shlapak was told PT (Sole) would be participating in the project as the
local Lao partner. (Intralib Aff., ¶¶ 12-13, 17.) Importantly, Mr. Shlapak was also offered the
opportunity to participate in that project. (Intralib Aff., ¶¶ 14-16.) For his part, Mr. Shlapak recalls
the dinner but does not remember the conversation. (Shlapak Dep., p. 327 lns. 2-24.) Mr. Shlapak
was also in possession of financial documents from 2013 that disclosed that PT (Sole) was working
on the Xayaburi dam project and receiving corresponding payments. (Shlapak Dep., p. 334 ln. 19-
p. 337 ln. 2.) Finally, Mr. Dau himself later arranged for Mr. Shlapak to visit the Xayaburi dam
in 2016. (Shlapak Dep., p. 49 ln. 22-p. 50 ln. 6, p. 355 ln. 24 - p. 356 ln. 5.) During that visit, Mr.
7
Shlapak took a brochure which also disclosed PT (Sole)’s involvement in the Xayaburi dam
project. (Shlapak Dep., p. 359 lns. 8-13, p. 363 lns. 10-19.)
In the Complaint, Plaintiffs confirmed that PT (Sole)’s work on those projects was publicly
disclosed on PT (Sole)’s website as early as 2014, on a downloadable brochure that discussed PT
(Sole)’s various projects in more detail. (FAC, ¶¶ 39-40; SAC, ¶¶ 59-60.) That website
specifically described the NN2 resettlement and Xayaburi Dam Project. 9 (FAC, Ex. 10, pp. 7-8;
SAC, Ex. 10, pp. 7-8.) It also advertised Mr. Dau’s position with the company. 10 (FAC, Ex. 10,
p. 10; SAC, Ex. 10, p. 10.)
OVERVIEW OF PLAINTIFFS’ CLAIMS
Plaintiffs filed the present lawsuit on January 10, 2022, and subsequently filed amended
complaints on May 4 and 16, 2022. The Court dismissed PT Construction Company and PT (Sole)
Company Limited for insufficiency of service of process on June 15, 2022. Thus, Mr. Dau is the
only remaining defendant.
The Second Amended Complaint asserts claims for: (i) an accounting (count one); (ii) fraud
and deceit (count two); (iii) breach of fiduciary duty (count three); (iv) breach of contract (count
four); (v) unjust enrichment (count five); and (vi) attorney’s fees and expenses (count six). A short
overview of the claims follows:
9
At his deposition, Mr. Shlapak proclaimed that he thought he was entitled to proceeds from
work that PT (Sole) conducted with respect to the Luang Prabang Dam Project. (Shlapak Dep., p.
223 lns. 14-18, p. 224 lns. 19-23.) The Luang Prabang Dam Project started in 2019, well after the
2014 Agreement was in place, when the Lao government granted PetroVietnam Power Company
(“PVP”), the power company of Vietnam, the right to develop the project. (Intralib Aff., ¶ 33.)
10
To the extent Plaintiffs assert claims regarding PT (Sole)’s work with mining and oil and
gas, those projects were also publicly disclosed on PT (Sole)’s website. (FAC, Ex. 10, pp. 4-5;
SAC, Ex. 10, pp. 4-5.) Ultimately, those exploratory projects were unsuccessful and no profits
were ever realized. (Affidavit of David Dau (“David Dau Aff.”) filed contemporaneously
herewith, ¶¶ 13-18.)
8
Count One (Accounting): Plaintiffs state they “seek an accounting of all business
opportunities with the government of Laos and other ventures pursued by Defendants since
execution of the [1992 Document] attached as Ex. 1.” (FAC, ¶ 44; SAC, ¶ 64.) As that quotation
makes clear, Plaintiffs’ claims are untethered from the actual language of the 1992 Document,
which is limited to (1) specified projects that were awarded by the Lao government to Plaintiffs,
and (2) projects the parties may jointly agree to pursue in the future.
Count Two (Fraud and Deceit): Plaintiffs assert that after entering into the 1992
Document, Mr. Dau and PT (Sole) concealed and misrepresented the availability of other business
opportunities that should have been shared with the Plaintiffs.
Count Three (Breach of Fiduciary Duties): Plaintiffs assert that Mr. Dau breached
fiduciary duties, duties of trust and confidence and duties arising from a confidential relationship
by usurping partnership opportunities and failing to disclose them.
Count Four (Breach of Partnership Agreement): Plaintiffs allege that Mr. Dau breached
a partnership agreement by usurping business opportunities, concealing them, and fraudulently
inducing Plaintiffs to execute the 2014 Agreement.
Count Five (Unjust Enrichment): Plaintiffs allege that PT (Sole) and any other defendant
entities that received dividends from the NN2 Dam Project were unjustly enriched, and as a result,
they should be ordered to disgorge those payments and pay them to Plaintiffs. It is unclear whether
Count Five is asserted against Mr. Dau. 11
Count Six (Attorneys’ Fees and Expenses): Plaintiffs seek attorneys’ fees and costs
11
To the extent Count Five is asserted solely against PT (Sole), who has been dismissed, the
claim should be dismissed. To the extent it is also asserted against Mr. Dau, it should be dismissed
for the reasons set forth herein and in Mr. Dau’s Motion to Dismiss the Second Amended
Complaint.
9
pursuant to O.C.G.A. § 13-6-11.
ARGUMENT AND CITATION OF AUTHORITY
I. Plaintiffs’ Claims Are Barred by the 2014 Agreement and the Applicable
Statute of Limitations.
In their Complaint, Plaintiffs largely ignore the 2014 Agreement and attempt to circumvent
its impact by alleging it was procured by fraud. However, as explained above, the 2014 Agreement
terminated all prior agreements, including the 1992 Document, and consequently it bars all of
Plaintiffs’ claims in two simple respects: (i) Plaintiffs cannot raise any claims with respect to the
1992 Document that arose after its termination on February 28, 2014; and (ii) any claim arising
before February 28, 2014, is barred by the applicable statute of limitations as Plaintiffs did not file
suit until almost 8 years later, well after the expiration of any applicable statute of limitations.
A. The 2014 Agreement Terminated the 1992 Document and Precludes Any
Claims Arising After Its Execution.
All obligations in the 1992 Document ended upon the signing of the 2014 Agreement on
February 28, 2014. As such, Plaintiffs cannot make a claim with respect to any project arising
after February 28, 2014. For instance, at his deposition, Mr. Shlapak proclaimed that he thought
he was entitled to proceeds from work that PT (Sole)—not Mr. Dau—conducted with respect to
the Luang Prabang Dam Project. (Shlapak Dep., p. 223 lns. 14-18, p. 224 lns. 19-23.) The Luang
Prabang Dam Project started in 2019 when the Lao government granted PetroVietnam Power
Company (“PVP”), the power company of Vietnam, the right to develop the project. (Intralib Aff.,
¶ 33.) Since that project was entered into in 2019, five years after the termination of the 1992
Document, any claims regarding this project are precluded. 12 More broadly, any claim arising
12
Any claims regarding the Luang Prabang Dam Project also fail because the Luang Prabang
Dam Project falls outside the scope of the 1992 Document, which only referenced the NN2 Dam
Project, and not all dam projects generally.
10
after February 28, 2014, is barred because the 1992 Document ceased to exist as of that date.
B. Any Claim Arising Before the 2014 Agreement Is Barred By the Applicable
Statute of Limitations.
Even assuming Plaintiffs can recover for claims involving PT (Sole)’s conduct rather than
Mr. Dau’s, these claims are barred by the statute of limitations. The statute of limitations for
Plaintiffs’ claims are as follows: either six years (breach of contract) 13 or four years (fraud, breach
of fiduciary duty and unjust enrichment). 14 “For a contract claim, the statute of limitations begins
to run at the time of its alleged breach.” Wallace v. Bock, 279 Ga. 744, 747 (2005). For the other
claims, the statute begins to accrue when a plaintiff first incurs damages. Hendry v. Wells, 286
Ga. App. 774, 779-80 (2007) (breach of fiduciary duty); Green v. White, 229 Ga. App. 776, 780
(1997) (fraud); Renee Unlimited, Inc. v. City of Atlanta, 301 Ga. App. 254, 258 (2009) (citing
Engram v. Engram, 265 Ga. 804, 806 (1995)) (unjust enrichment).
PT (Sole) entered into the contract for the resettlement work on the NN2 Project Dam in
May 2006. (David Dau Aff., ¶ 6.) The breach of contract claims therefore expired in 2012, and
the non-contract claims expired in 2010. Likewise, PT (Sole) entered into a resettlement contract
with respect to the Xayaburi Dam Project in March 2011, (Intralib Aff., ¶ 31), such that any related
breach of contract claims expired in March 2017, and any non-contract claims expired in March
2015. Indeed, any possible claim with respect to the 1992 Document is barred as it was terminated
on February 28, 2014, approximately eight years before Plaintiffs filed this lawsuit. Accordingly,
13
O.C.G.A. § 9-3-24 (six years for breach of contract).
14
Copeland v. Miller, 347 Ga. App. 123, 125 (2018) (four years for fraud); Hendry v. Wells,
286 Ga. App. 774, 779–80 (2007) (four years for breach of fiduciary duty); and Engram v. Engram,
265 Ga. 804, 806 (1995) (four years for unjust enrichment).
11
all of Plaintiffs’ claims are barred by the respective statute of limitations as they expired long
before this lawsuit was filed on January 10, 2022.
C. Plaintiffs’ Arguments to Avoid the Statutes of Limitation Are Unavailing.
Plaintiffs attempt to evade these simple truths by (i) claiming fraudulent inducement with
respect to the 2014 Agreement; and (ii) suggesting the statute of limitations should be tolled for
some unspecified period of time based upon fraud. Both arguments fail.
First, Mr. Shlapak confirmed there was no fraudulent inducement with respect to the 2014
Agreement. He testified there was no representation at all—he was presented with the 2014
Agreement at a restaurant, he looked it over, and he signed it. 15 (Shlapak Dep., p. 343 lns. 12-23,
p. 349 lns. 3-7.) He acknowledged that he is a sophisticated businessman and that he could have
had a lawyer review the contract. (Shlapak Dep., p. 349 lns. 18-20, p. 343 lns. 7-11.) Of course,
even if he did claim that he was fraudulently induced by some statement outside the four corners
of the 2014 Agreement, any such claim would be barred by the merger clause in the 2014
Agreement and Plaintiffs’ failure to ever seek rescission. Where a contract contains a merger
clause, like the 2014 Agreement, a fraudulent inducement claim based on claims outside the
contract can survive summary judgment only where the plaintiff promptly rescinds the contract. 16
15
Even if Plaintiffs had tried to allege fraud with respect to the 2014 Agreement, such a claim
would fail as a matter of law. “It is well-settled law in Georgia that a party who has ‘the capacity
and opportunity to read a written contract cannot afterwards set up fraud in the procurement of his
signature to the instrument’ based on oral representations that differ from the terms of the
contract.” Novare Grp., Inc. v. Sarif, 290 Ga. 186, 188-89 (2011) (quoting Craft v. Drake, 244
Ga. 406, 408 (1979)). “The only type of fraud that can relieve a party of his obligation to read a
written contract and be bound by its terms is a fraud that prevents the party from reading the
contract.” Id. at 189 (citation omitted).
16
Rescission is timely when announced “as soon as the facts supporting the claim for
rescission are discovered.” Napier v. Kearney, 359 Ga. App. 196, 197 (2021) (rescission claim
waived as a matter of law where plaintiff did not attempt to rescind contract until ten months after
the discovery of facts supporting claim for rescission).
12
Liberty v. Storage Tr. Properties, L.P., 267 Ga. App. 905, 910-11 (2004). Here, Plaintiffs did not
rescind the 2014 Agreement prior to filing suit, and in fact, did not request recission in the original
or the subsequent two amended complaints. 17 As such, Plaintiffs’ fraud claim has no effect on the
clear application of the statute of limitations.
Second, Plaintiffs argument that the limitations periods should be tolled is similarly
unavailing. Georgia law recognizes the possibility of tolling under very limited circumstances,
none of which apply here. O.C.G.A. § 9-3-96. In order to toll a limitation period under the statute,
a plaintiff must make three showings:
(1) the defendant committed actual fraud; (2) the fraud concealed the cause of
action from the plaintiff; and (3) the plaintiff exercised reasonable diligence to
discover his cause of action despite his failure to do so within the statute of
limitation.
Daniel v. Amicalola Elec. Membership Corp., 289 Ga. 437, 445 (2011); O.C.G.A. § 9-3-96
(providing that tolling applies only if a fraud “debarred or deterred [the plaintiff] from bringing an
action”). To establish actual fraud a plaintiff must show either “(1) actual fraud involving moral
turpitude, or (2) a fraudulent breach of a duty to disclose that exists because of a relationship of
trust and confidence.” Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 846 (1998).
A plaintiff bringing an action for fraud has the burden of showing the existence of facts that would
toll the statute of limitation.” Rollins v. LOR, Inc., 345 Ga. App. 832, 842-43 (2018).
Although tolling must be plead with particularity, 18 Plaintiffs mention “tolling” only one
time in the Complaint:
17
As a matter of law, Plaintiff waived the right to rescind by not seeking recission prior to
filing the lawsuit. Novare Grp., Inc. v. Sarif, 290 Ga. 186, 188 (2011) (“Where a party elects to
rescind the contract, he must do so prior to filing the lawsuit.”).
18
O.C.G.A. § 9-11-9 (b); Harrison v. Beckham, 238 Ga. App. 199, 205 (1999) (noting that
O.C.G.A. § 9-11-9 requires tolling based on fraud to be plead with particularity).
13
Defendant Dau’s misrepresentations and non-disclosures to Plaintiffs described
above constituted fraudulent concealment of Defendants’ wrongful acts that tolled
the statute of limitations until Plaintiffs’ discovery in late 2019 of Defendant’s
wrongdoing. 19
(See FAC, ¶ 42; SAC, ¶ 62.)
When asked in his deposition about the alleged fraudulent concealment, Mr. Shlapak said
that in 2004 or 2005, almost 20 years ago, he saw Mr. Dau exiting a meeting with CK, who
developed the NN2 dam, and he asked Mr. Dau “what’s that about? What – what’s that meeting.”
Mr. Dau allegedly responded: “‘That’s nothing.’ He says, ‘It’s not me.’ He says, ‘I’m just looking
into trying to get some work for my brother.’” Mr. Shlapak added: “And often he’s told me that.”
(Shlapak Dep., p. 111 lns. 11-25.) This statement is the only evidence in the record to support
Plaintiffs’ claim, and it is insufficient to prove a claim for fraud or to claim tolling even if Mr. Dau
had been dishonest. However, it certainly fails to constitute tolling because the statement was
true. In 2005, Mr. Dau’s brothers owned PT (Sole), and PT (Sole) was awarded the resettlement
work on the NN2 Dam Project in 2006. (Affidavit of Van Dau (“Van Dau Aff.”), ¶ 7; Intralib
Aff., ¶ 23). Accordingly, this alleged conversation cannot be the basis for tolling.
Moreover, Plaintiffs’ tolling arguments fail because tolling is only applicable where the
alleged fraud conceals the cause of action from the plaintiff such that the plaintiff was deterred
from bringing the claim. O.C.G.A. § 9-3-36. For concealment, Plaintiffs would have to prove that
Mr. Dau had taken an affirmative act that concealed that a cause of action existed. Not only did
Plaintiffs fail to allege concealment, the undisputed evidence confirms that Plaintiffs had actual
19
As shown in Mr. Dau’s Motion to Dismiss for Failure to State a Claim filed on September
15, Plaintiffs’ fraud allegations do not contain the requisite who, what, when and where, and as
such, are subject to dismissal.
14
knowledge of their alleged claims and that evidence of PT (Sole)’s work was both in their
possession and publicly available. The undisputed evidence establishes the following:
1. Mr. Shlapak is a member of the board of directors of Southeast Asia Energy
Limited Board, and the Board, including Mr. Shlapak, voted to award PT (Sole)
the resettlement work on the NN2 Dam Project in 2006 (Intralib Aff., ¶¶ 22-
24);
2. The progress of PT Sole’s resettlement work for the NN2 Dam Project was
reported at Southeast Asia Energy Limited Board meetings (Id., ¶ 25);
3. Mr. Shlapak received documents in 2006 stating that PT (Sole) was doing the
resettlement work on the NN2 Dam Project (Id., ¶¶ 25-27);
4. Mr. Shlapak admits he watched a documentary discussing PT (Sole)’s
resettlement work on the NN2 Dam Project (FAC, ¶ 37; SAC, ¶ 57; Shlapak
Dep., p. 205 lns. 6-14);
5. In 2008, Mr. Shlapak was told that PT (Sole) would be participating in the
Xayaburi Dam Project (Intralib Aff., ¶¶ 12-13, 17);
6. In 2008, Mr. Shlapak was provided an opportunity to participate in the Xayaburi
Dam Project (Id., ¶¶ 14-16);
7. Mr. Shlapak received documents in 2013 disclosing that PT (Sole) was working
on the Xayaburi Dam Project and receiving payments for its work (Shlapak
Dep., p. 334 ln. 19 - p. 337 ln. 2 and Ex. 28 thereto (SouthEast Asia Energy
Limited Financial Statements, at SDC04692 – 93));
8. Mr. Dau arranged a trip for Mr. Shlapak to visit the Xayaburi Dam Project in
2016 (Van Dau Aff., ¶ 9; see also Shlapak Dep., p. 49 ln. 22 - p. 50 ln. 6, p. 355
ln. 24-p. 356 ln. 5.);
9. On Mr. Shlapak’s Xayaburi dam visit, he picked up a brochure which identified
PT (Sole) as participating in the Xayaburi Dam Project (See Shlapak Dep., p.
359 lns. 8-13, p. 363 lns. 10-19; Ex. 33 thereto, SDC06715 at SDC06720, 6722;
see also Van Dau Aff., ¶ 9);
10. PT (Sole) had a publicly available website in 2014 that discussed its work on
the Xayaburi Dam Project (FAC, ¶¶ 39-40, Ex. 10 thereto; SAC, ¶¶ 59-60, Exs.
10-11(a) thereto); and
11. Plaintiffs downloaded a detailed brochure from that website that discusses the
projects for which Plaintiffs complain in this lawsuit (See FAC, ¶¶ 39-40, Ex. 10
thereto; SAC, ¶¶ 59-60, Exs. 10-11(a) thereto).
15
Given this undisputed evidence, there simply is no basis for tolling.
Plaintiffs also cannot establish the third and final element necessary for tolling—that they
exercised reasonable diligence to discover the cause of action despite a failure to do so within the
applicable statute of limitation. As noted above, Plaintiffs knew or had access to the information
giving rise to the alleged claims. Indeed, during his deposition Mr. Shlapak admitted that despite
attending board meetings, he “never paid attention to what was going [with the resettlement]
because I wasn’t involved with the construction.” (Shlapak Dep., p. 206 lns. 7-13.) And when
confronted with documents he had in his possession (which he produced during this litigation) that
disclosed these projects, Mr. Shlapak repeatedly admitted that he simply never looked at them.
(See, e.g., Shlapak Dep., p. 288 ln. 20 - p. 290 ln. 2, p. 336 ln. 19 - p. 337 ln. 2, p. 363 lns. 10-19.)
Such total lack of diligence is insufficient even if a confidential relationship between the parties
existed. Rollins v. LOR, Inc., 345 Ga. App. 832 (2018) (affirming grant of summary judgment that
plaintiffs did not show reasonable diligence because they signed documents that revealed they had
claims). Plaintiffs did not conduct any diligence, much less “reasonable diligence.”
In short, there is simply no basis for tolling the applicable statute of limitations, and
Plaintiffs’ claims are barred in full.
II. Plaintiffs’ Claims Are Barred By the 2014 Agreement and Georgia’s Merger Rule.
The 2014 Agreement does more than just terminate the 1992 Document. The 1992
Document, upon which Plaintiffs’ Complaint is entirely based, was merged into or entirely
replaced by the 2014 Agreement. 20 Under Georgia’s merger rule and the language of the 2014
20
By arguing that the 1992 Document was merged into and superseded by the 2014
Agreement, Mr. Dau is not conceding that the 1992 Document was, in fact, a valid and enforceable
contract. Mr. Dau disputes the enforceability of the 1992 Document and reserves all rights in
relation thereto.
16
Agreement itself, any alleged fiduciary duties created by—or alleged debts or obligations
previously owed under—the older documents were fully extinguished and discharged as a result
of that merger.
The plain language of the merger clause in the 2014 Agreement is so broad that it not only
terminated the 1992 Document, it merged it out of existence because it provides that the 2014
Agreement (i) is the “sole and entire agreement between the parties,” (ii) “supersedes any previous
written or oral agreements or understandings,” and (iii) terminates “any and all” such previous
agreements or understandings. This means that Plaintiffs cannot make any claim under the 1992
Document as a matter of law.
The merger rule, which has its origins in the doctrine of novation, provides that any existing
agreement or understanding between two parties is superseded, discharged, and extinguished if the
same parties “subsequently enter upon a valid and inconsistent agreement completely covering the
subject-matter embraced by the original contract.” Atlanta Integrity Mortg., Inc. v. Ben Hill United
Methodist Church, 286 Ga. App. 795, 797 (2007); see also Health Servs. Centers, Inc. v. Boddy,
257 Ga. 378, 379 (1987). “The rational basis for the merger rule is that where parties enter into a
final contract all prior negotiations, understandings, and agreements on the same subject are
merged into the final contract and are accordingly extinguished.” GS CleanTech Corp. v. Cantor
Colburn, LLP, 364 Ga. App. 354, 359 (2022). 21
Here, the parties reflected their mutual intent to accomplish a merger within the four
corners of the 2014 Agreement, thus satisfying the elements of the merger rule. First, Mr. Dau
and Plaintiff Shlapak Development are the parties to the 1992 Document and the 2014 Agreement.
21
Georgia courts occasionally conflate the merger rule and the doctrine of novation. To the
extent the distinction matters, Dau moves herein under both doctrines.
17
Second, the 2014 Agreement covers the same subject matter as the 1992 Document. Both purport
to define the scope of the affiliation between Mr. Dau and Plaintiff Shlapak Development, and the
merger clause establishes the 2014 Agreement as the “sole and entire agreement” between the
parties. That same clause then expressly references, supersedes, and terminates “any and all”
prior agreements or understandings between the parties, without limitation. 22 Thus, the subject of
the 2014 Agreement is expressly announced as any subject on which the parties previously had
any agreement or understanding. Third, the new obligations are inconsistent with the older ones
because, among other things, the 2014 Agreement specifically enumerates the only two projects
to be pursued, eliminates the right to an accounting, and changes the profit-sharing formula.
(Compare FAC, Exs. 3 and 9; Compare SAC, Exs. 3 and 9.)
Whether parties intend to extinguish a prior agreement through a merger can sometimes
create questions of fact. But no question of fact exists when, as in this case, the later-executed
agreement contains a clear and comprehensive merger clause. As the Georgia Supreme Court held
in Health Services Center, the merger rule is triggered when a later-executed agreement contains
a merger clause superseding “all prior discussions and agreements between the parties,” because
it “indicates conclusively that the parties intended [the later-executed contract] to be the final
agreement between them, superseding all prior agreements.” 257 Ga. at 379 (emphasis added);
see also Bulford v. Verizon Bus. Network Servs., Inc., 970 F. Supp. 2d 1363, 1369-70 (N.D. Ga.
2013) (comprehensive merger clause triggered application of merger rule); cf. Toys ‘R’ Us, Inc. v.
Atlanta Economic Develp. Corp., 195 Ga. App. 195, 198 (1990) (“When, as here, the intent that a
provision is to merge affirmatively appears on the face of the relevant instruments themselves, no
22
This point is significant. Contracting parties sometimes agree to merely supersede prior
agreements on “the subject matter hereof” or in some other limited way. But here they agreed to
no such limitation.
18
further proof is required and summary judgment is appropriate.”) (internal quotations omitted).
When the merger rule applies, debts or obligations owed under the old contract at the time of the
merger are extinguished. See, e.g., Bulford, 970 F. Supp. 2d at 1369-70 (the merger rule and
doctrine of release each independently extinguished right to commissions allegedly earned under
old employment agreement that merged into new separation agreement with a merger clause).
More recently the Georgia Court of Appeals applied the merger rule to hold that an
engagement letter between a client and a law firm was superseded by a subsequent fee agreement.
The engagement letter was executed in 2008 and set forth the terms and condition of the
engagement, including an arbitration provision requiring arbitration in Atlanta for any dispute
arising out of the engagement. The fee agreement executed in 2011 set out payment provisions
for future and past-due amounts and required arbitration in Connecticut for all disputes relating to
the fee agreement. The fee agreement, however, contained the following merger clause: “This
Agreement constitutes the entire agreement between the parties with respect to the subject matter
hereof, and supersedes all prior agreements, understandings, commitments, negotiations, and
discussions, whether oral or written.” GS CleanTech, 364 Ga. App. at 361. The client then sought
to arbitrate legal malpractice claims in Connecticut, pursuant to the arbitration provision contained
in the fee agreement. The law firm argued that the fee agreement did not modify the engagement
letter with respect to arbitration of the legal malpractice claims because the fee agreement only
covered compensation. Id. While the trial court found that the engagement letter governed the
legal malpractice disputes, the Court of Appeals disagreed and held that the fee agreement
controlled, stating that the merger clause unambiguously superseded the engagement letter “in its
entirety as to the matters therein.” Id.
Just as in GS CleanTech, the 2014 Agreement superseded the 1992 Document. In fact, the
19
merger clause in the 2014 Agreement is even broader than the merger clause in GS CleanTech.
There, the merger clause stated that it was the entire agreement “with respect to the subject matter
hereof.” Id. By contrast, the 2014 Agreement provides that it (i) is the “sole and entire agreement
of the parties hereto,” (ii) supersedes “any previous written or oral agreements or understandings
between the parties hereto,” and (iii) terminates “any and all such previous written or oral
agreements or understandings between the parties hereto,” without limitation. (FAC, Ex. 9 § 5(e);
SAC, Ex. 9 § 5(e)) (emphasis added)). Accordingly, Plaintiffs’ rights to an accounting or profits
under the 1992 Document were fully and completely extinguished and discharged the moment the
2014 Agreement was executed, even if those rights existed before the merger.
III. The Plain Language of the 1992 Document and the Undisputed Facts Demonstrate
that Mr. Dau Is Entitled to Summary Judgment with Respect to Plaintiffs’ Claims for
an Accounting, Breach of Fiduciary Duty, and Breach of Partnership Agreement
(Counts One, Three, and Four).
Plaintiffs’ claims for an accounting, 23 breach of fiduciary duties, and breach of contract fail
as a matter of law because the 1992 Document does not contain the obligations and restrictions
that Plaintiffs seek to impose. 24
23
It is unclear whether Plaintiffs’ claim for accounting is based on the 1992 Document or
based on the right to an accounting imposed by statute on partners. If the claim is based on the
1992 Document, it fails because the right to an accounting provided for therein is limited to “the
affairs of the Ventures,” and Plaintiffs here seek an accounting of work conducted by Mr. Dau
without Plaintiffs. And although framed as a separate claim, an accounting is actually an equitable
remedy. See O.C.G.A. § 14-8-22 (providing that right to an accounting is “in addition to” other
remedies or methods of dispute resolution); First Benefits, Inc. v. Amalgamated Life In. Co., No.
5:13-CV-37 MTT, 2014 WL 6956693, at *7 (M.D. Ga. Dec. 8, 2014) (“An accounting is more
properly described as an equitable remedy rather than a separate claim.”) (applying Georgia law).
24
“[W]here contractual language is clear and unambiguous, the court is obliged to enforce
the contract according to its terms, looking to the contract alone for its meaning.” Blockbuster
Invs. LP v. Cox Enterprises, Inc., 314 Ga. App. 506, 506–07 (2012).
20
Initially, Plaintiffs’ claims rest on the baseless assumptions that Mr. Dau had an exclusive,
mandatory agreement with Plaintiffs and that he was prohibited from conducting business in Laos,
or from even working for a company that does business in Laos, without Plaintiffs involvement;
i.e., that Mr. Dau contracted away his right to do business in Laos without Plaintiffs. To the
contrary, the 1992 Document contains no such restriction. The parties simply agreed to “associate
themselves together,” on Plaintiffs’ projects with the government of Laos. Plaintiffs’ contention
that the 1992 Document created a partnership or fiduciary duties is belied by the express language
of the contract. There is no exclusivity provision and no non-compete. The so-called partnership
never owned any property, filed tax returns issued any K-1s, or entered into any contract. (Shlapak
Dep., p. 72 lns. 1-25, p. 94 ln. 25-p. 95 ln. 3.) There simply is no basis on which to impose on Mr.
Dau the type of all-encompassing obligations and restrictions Plaintiffs seek to impose here. Thus,
Plaintiffs’ claims for an accounting and breach of fiduciary duties, and breach of partnership fail
as a matter of law.
Second, Plaintiffs’ claims fail because they are based upon the erroneous` suggestion that
the list of projects in the 1992 Document are general, non-specific open-ended categories. They
are not. As Mr. Shlapak confirmed at his deposition, the projects listed in the 1992 Document are
based on the projects that the government of Laos granted Plaintiff Shlapak Development the right
to pursue. (FAC, ¶ 17; SAC, ¶ 37; Shlapak Dep., p. 67 lns. 16-20.) Those rights were granted to
Plaintiff Shlapak Development. (FAC, ¶¶ 12, 15; SAC, ¶¶ 32, 35.) Plaintiffs pursued them (or
didn’t), and Mr. Shlapak testified that other than the NN2 Dam Project, item (b) on the list of
projects, none of the projects occurred or generated any profits. (Shlapak Dep., p. 172 lns. 8-14.)
In short, Mr. Shlapak confirmed there is no claim under the 1992 Document.
21
Third, even if the list of projects is not limited to Plaintiffs’ agreements with the Lao
government, the claims still fail because Plaintiffs are making claims about projects that are plainly
not covered by the 1992 Document. For instance, Plaintiffs allege that they should have
participated in the Xayaburi and Luang Prabang Dam Projects, but those projects do not appear in
the 1992 Document. Nor does a catch-all hydroelectric dam category exist. The 1992 Document
refers to one specific dam project, the NN2 Dam Project. (Shlapak Dep., p. 277 lns. 6-14.)
Similarly, Plaintiffs complain about unspecified oil and gas projects in Laos that they were not
permitted to participate in (see SAC, ¶ 9), but there is no general category of oil and gas projects
in the 1992 Document. (See FAC, Ex. 3 and SAC, Ex. 3.) The 1992 Document only references
one specific oil and gas project, Monument Oil, in a specific 3800 sq. km area. (FAC, Ex. 3, ¶
1(a); SAC, Ex. 3, ¶ 1(a).) Finally, Plaintiffs complain about resettlement work that PT (Sole)
performed with respect to the NN2 Dam Project. (FAC, ¶ 37; SAC, ¶ 57.) Resettlement work is
also not listed in the 1992 Document. (See FAC, Ex. 3 and SAC, Ex. 3.)
Fourth, Plaintiffs’ claims fail because the 1992 Document is with Mr. Dau personally. Mr.
Dau has confirmed that he has not entered into any agreements with the government of Laos or
had personal business ventures with the Lao government regarding any of the projects or categories
listed in the 1992 Agreement. (Van Dau Aff., ¶ 8.) Plaintiffs assert claims about projects PT
(Sole) has participated in, but Plaintiffs do not have any contract or partnership agreement with PT
(Sole). (SAC, ¶ 78.) Plaintiffs attempt an end run around this glaring problem by suggesting PT
(Sole) was somehow an “alter ego” of Mr. Dau. (FAC, ¶¶ 2, 30; SAC, ¶¶ 20, 50.) However, Mr.
Dau never owned stock in PT (Sole). (Van Dau Aff., ¶ 6.) That kills this suggestion. Indeed, a
recent decision from the Northern District of Georgia surveyed Georgia law to determine whether
an individual that did not hold stock in the corporation could be an alter ego of that corporation.
22
Segment Consulting Mgmt., Ltd. v. Bliss Nutraceticals, LLC, No. 1:20-CV-1837, 2022 WL
252309, at *9-10 (N.D. Ga. Jan. 27, 2022). The court remarked that “the case law applying the
alter ego doctrine is overwhelmingly concerned with holding a corporation’s shareholders liable
for abuse of the corporate form.” 25 Id. at *9 (collecting Georgia authority). The court noted that
it had located only one Georgia decision where “a corporate officer who did not own shares in the
defendant corporation was found personally liable under an alter ego theory.” Id. at 10 (citing
Ishak v. Lanier Contractor's Supply Co., 254 Ga. App. 237 (2002)). The evidence in Ishak,
however, showed an egregious disregard for corporate formalities by the officer. Ishak, 254 Ga.
App. at 238 (“Testimony … showed that during the pendency of this litigation [the officer]
conveyed one of the corporation’s primary assets to himself wit
Preview
IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA MILTON SHLAPAK D/B/A/ SHLAPAK : DEVELOPMENT COMPANY, AND SHLAPAK : DEVELOPMENT COMPANY, : Plaintiffs, : Civil Action No. 22-A-00192-10 vs. : : VAN DAU, : Defendant. : : : DEFENDANT VAN DAU’S BRIEF IN SUPPPORT OF HIS MOTION FOR SUMMARY JUDGMENT Defendant Van Dau (“Mr. Dau”) hereby files this Brief in Support of his Motion for Summary Judgment as to all claims in Plaintiffs Milton Shlapak (“Shlapak”) and Shlapak Development Company’s (“Shlapak Development”) Second Amended Complaint (the “Complaint” or “SAC”). 1 INTRODUCTION On March 14 and September 15, 2022, 2 Mr. Dau moved to dismiss the Complaint for forum non conveniens and for failure to state a claim, motions which are still pending and should be granted. Plaintiffs subsequently requested the ability to take discovery regarding the forum non conveniens motion. The Court granted Plaintiffs’ request, and the parties engaged in discovery, 1 Mr. Dau files concurrently herewith a Renewed Motion to Dismiss for Forum Non Conveniens. In the event the Court declines to dismiss the Complaint on forum non conveniens grounds, Mr. Dau moves for summary judgment. 2 On March 14, Mr. Dau moved to dismiss the original complaint, and on September 15, 2022, he moved to dismiss the Second Amended Complaint, the current version of Plaintiffs’ claims. including depositions of Mr. Dau and Mr. Shlapak. The facts uncovered throughout the discovery process confirm Mr. Dau’s initial argument that the case should be dismissed for forum non conveniens because critical witnesses and documents are located elsewhere. They further demonstrate that summary judgment is appropriate; as discussed herein, Mr. Shlapak admitted that critical allegations in the Complaint are not true. In their Complaint, Plaintiffs assert that a three-page document executed in 1992—more than thirty years ago—entitles them to profits earned by businesses not mentioned in that agreement and that Plaintiffs had no involvement in. Plaintiffs aver that the 1992 document created a partnership with Mr. Dau with respect to certain development projects to be done in Laos, and that Mr. Dau breached the purported agreement and his fiduciary duties by allegedly usurping business opportunities that belonged to the partnership. Plaintiffs’ claims fail for several reasons. As an initial matter, Plaintiffs assert claims about projects outside the scope of the 1992 document. Moreover, the now-dismissed PT (Sole) 3—not Mr. Dau—carried out the at-issue projects, and PT (Sole) was not a party to the 1992 document. 4 Plaintiffs had multiple documents in their possession, all more than a decade old, disclosing PT (Sole)’s participation in the at-issue projects, undermining Plaintiffs’ claim that these business opportunities were usurped or concealed from them. Further, while Plaintiffs allege that Mr. Shlapak did not discover PT (Sole)’s participation in resettlement work until 2019, the record shows that, in 2006, Mr. Shlapak himself voted for PT 3 Former defendants PT Construction Company Limited (misidentified as PT Construction Company) and PT (Sole) Company Limited are the same entity—the name changed over time. The company is referred to herein as “PT (Sole).” 4 Plaintiffs admit that they do not have a contract with PT (Sole). (SAC, ¶ 78.) 2 (Sole) to be awarded the resettlement work. 5 Perhaps more importantly, Plaintiffs’ claims ignore an agreement that the parties signed in 2014, terminating and superseding the 1992 document upon which Plaintiffs rely. Any allegation that this agreement was procured by fraud, is contradicted by Mr. Shlapak’s deposition testimony; indeed, Mr. Shlapak admitted that no representations were made to him about the 2014 Agreement. Rather, he reviewed and signed it. Finally, because Plaintiffs did not file this lawsuit until 2022, almost eight years after signing the 2014 Agreement, any claim based upon the 1992 document is barred by the applicable statute of limitations. As such, Mr. Dau files the present Motion for Summary Judgment to demonstrate that he is entitled to judgment in his favor. BACKGROUND A. The 1992 Document Between 1989 and 1991, Plaintiffs 6 entered into agreements with the government of Laos that granted Plaintiffs the rights to develop: • “[A]ll the marketable natural resources of the country of Laos including minerals, oil and gas,” and the “necessary infrastructure” for said minerals, oil, and gas, (First Amended Complaint (“FAC”), ¶ 12; Second Amended Complaint (“SAC”), ¶ 32); 7 5 Because the dams cause flooding in certain residential areas, the affected individuals must be resettled. Resettlement requires building new homes and communities. 6 The Complaint is not clear about which plaintiff is a party to any particular agreement, and it often uses the reference “Mr. Shlapak/SDC” in reference to both Plaintiffs. Mr. Dau will primarily use “Plaintiffs” in this Motion, although he reserves the right to argue that only one plaintiff entered into a particular agreement or committed a particular act. 7 Plaintiffs have filed three complaints (the Original, First Amended Complaint and Second Amended Complaint). Mr. Shlapak filed an Affidavit swearing to the accuracy of the facts in the First Amended Complaint and Plaintiffs’ Opposition to Defendants’ Motion to Dismiss the Original Complaint. (Affidavit of Milton Shlapak filed on May 9, 2022, along with Plaintiffs’ Opposition to Defendants’ Initial Motion to Dismiss, ¶ 2.) The allegations in the First Amended Complaint are contained in the Second Amended Complaint. Mr. Dau will cite to the First and Second Amended Complaint herein. 3 • A hydroelectric dam; • An industrial zone/port facility in Vietnam; • An iron/steel plant; and • An oil and gas concession. (FAC, ¶ 15; SAC, ¶ 35.) While the Complaint states that Mr. Dau “lacked significant business and development experience,” Plaintiffs nonetheless agreed to share profits on these projects with Mr. Dau because Mr. Dau had “made some introductions and translated during business meetings.” (FAC, ¶ 16; SAC, ¶ 36; Dep. of Milton Shlapak (“Shlapak Dep.”) filed contemporaneously herewith, p. 71 lns. 10-25.) The parties then signed a document to reflect this agreement (the “1992 Document”). 8 Plaintiffs drafted the document, identifying which of Plaintiffs’ Lao-granted projects and rights were subject to the agreement; said differently, he identified the projects to which Mr. Dau would receive half of Plaintiffs’ profits. (FAC, ¶ 17; SAC, ¶ 37; Shlapak Dep., p. 67 lns. 16-20, p. 70 lns. 4-11.) Mr. Shlapak testified: “I was going to do these projects, and he was going to help me by doing language, and I was willing to just share fifty-fifty with him.” (Shlapak Dep., p. 71 lns. 6-9.) As reflected in the 1992 Document, the projects Plaintiffs selected were: The business (hereinafter referred to as the ‘Ventures’) shall include but not be limited to: (a) Oil and gas concession (3800 sq km) joint venture with Monument Oil; (b) Hydroelectric dam development and associated timber reserves – presently under joint venture negotiation with Bechtel Corporation; (c) Iron mini/mill; (d) Oil refinery/port development on the coast of Vietnam; 8 The 1992 Document was amended twice, though the amendments are not relevant to this motion. (FAC, Exs. 4-5; SAC, Exs. 4-5.) The documents are referred to collectively as the “1992 Document.” 4 (e) Mining projects; (f) Infrastructure developments; (FAC, Ex. 3, ¶ 1; SAC, Ex. 3, ¶ 1.) Subsection (b), the hydroelectric dam project with Bechtel Corporation, refers to the Nam Ngum 2 Dam Project (“NN2 Dam Project”), which was the only successful venture. (Shlapak Dep., p. 277 lns. 6-14, p. 172 lns. 8-14.) Mr. Shlapak confirmed none of the other identified projects ever generated a profit. (Id.) The document also included a provision that the agreement would apply to “other businesses as may be agreed upon by and between the Parties.” (FAC, Ex. 3, ¶ 1; SAC, Ex. 3, ¶ 1.) When Plaintiffs and Mr. Dau decided to jointly pursue other business ventures that were not specifically identified in the 1992 Document, they did so in writing. (FAC, ¶¶ 20-21 and Exs. 6, 8 thereto; SAC, ¶¶ 40-41 and Exs. 6, 8 thereto.) The 1992 Document states that the parties merely “associate themselves together for the purpose of conducting general business with the government of Laos.” (FAC, Ex. 3, ¶ 1; SAC, Ex. 3, ¶ 1.) Tellingly, the 1992 Document does not contain an exclusivity or non-compete provision, meaning it does not prohibit either party from pursuing its own business with the government of Laos or from assisting other companies working with the Lao government. (See FAC, Ex. 3 and SAC, Ex. 3.) The document similarly does not describe the parties’ relationship as a partnership or state that they are “partners.” Indeed, the parties never kept any accounting for their work together, never filed a separate partnership tax return, and never issued a K-1. (Shlapak Dep., p. 72 lns. 1-25.) The so-called “partnership” also never entered into any contracts with other business or persons. (Shlapak Dep., p. 94 ln. 25-p. 95 ln. 3.) B. The 2014 Agreement. On February 28, 2014, Plaintiffs and Mr. Dau signed a new document in which they: (i) confirmed they were only working together on two projects, the NN2 Dam Project and Nam Bak 5 (another dam project) (FAC, Ex. 9 Schedule 1; SAC, Ex. 9 Schedule 1.); (ii) confirmed the 2014 Agreement was the “sole and entire agreement between the parties” and “supersede[d] any previous written or oral agreements or understandings;” and (iii) confirmed the 2014 Agreement terminated “any and all” previous agreements or understandings. Specifically, the 2014 Agreement states: This Agreement is the sole and entire agreement of the parties hereto and supersedes any previous written or oral agreements or understandings between the parties hereto, and any and all such previous written or oral agreements or understandings between the parties hereto shall terminate upon the signing and delivery of this Agreement. (FAC, Ex. 9 § 5(e); SAC, Ex. 9 § 5(e) (emphasis added).) Thus, by signing the 2014 Agreement, the parties terminated and replaced the 1992 Document—the basis for all of Plaintiffs’ claims. Mr. Shlapak testified that, after Mr. Dau gave him the document, he reviewed and signed it. (Shlapak Dep., p. 343 lns. 12-23, p. 349 lns. 3-7.) Mr. Shlapak did not rely on any representation from Mr. Dau or other person, as he testified that no such representations were made. (Id.) Rather, Mr. Shlapak emphasized that he is a sophisticated businessman and acknowledged that he could have had a lawyer review the contract, as he had done throughout his career. (Shlapak Dep., p. 349 lns. 18-20, p. 343 lns. 7-11.) C. Plaintiffs Have Known PT (Sole) Was Involved in the Projects Identified by Plaintiffs for More than Twelve Years. While Plaintiffs claim that they first learned of PT (Sole)’s resettlement work during a November 2019 trip to Laos, (FAC, ¶ 37; SAC, ¶ 57), Mr. Shlapak admitted at his deposition that this allegation was not true. Plaintiffs always knew that building a dam would require resettlement work. (Shlapak Dep., p. 289 ln. 16 - p. 290 ln. 1.) Moreover, Mr. Shlapak confirmed that Plaintiffs’ records showed that PT (Sole)’s NN2 resettlement work had been disclosed to Plaintiffs in 2006 (thirteen years earlier): 6 Q.· · But it was disclosed in this document in your files, which is dated May 2006, that P.T.· would be the contractor for the resettlement action plan for the Nam Ngum 2 dam project – A.· ·Uh-huh. (Shlapak Dep., p. 313 lns. 12-16; Ex. 23 thereto.) More than that, the Board of SouthEast Asia Energy Limited, for which Mr. Shlapak was and is a board member, approved of awarding the resettlement contract to PT (Sole), and Mr. Shlapak voted in favor of that award in May of 2006. (Affidavit of Nopadol Intralib (“Intralib Aff.”), ¶¶ 22-24.) PT (Sole)’s progress on the resettlement work was also reported at subsequent board meetings. (Id., ¶ 25.) In short, the big “ah-ha moment” described in the Complaint was simply false. Mr. Shlapak knew about, voted for, and was updated regarding the resettlement-related work performed by PT (Sole) thirteen years earlier than he claimed. Similarly, Mr. Shlapak knew about PT (Sole)’s work on the Xayaburi dam for more than a decade. (See SAC, ¶ 9.) In 2008, Mr. Shlapak attended a dinner in Bangkok with representatives of CH. Karnchang Public Company Limited (“CK”). CK had financed and developed the NN2 Dam Project and had the development rights from the Lao government to develop the Xayaburi dam. At the dinner, Mr. Shlapak was told PT (Sole) would be participating in the project as the local Lao partner. (Intralib Aff., ¶¶ 12-13, 17.) Importantly, Mr. Shlapak was also offered the opportunity to participate in that project. (Intralib Aff., ¶¶ 14-16.) For his part, Mr. Shlapak recalls the dinner but does not remember the conversation. (Shlapak Dep., p. 327 lns. 2-24.) Mr. Shlapak was also in possession of financial documents from 2013 that disclosed that PT (Sole) was working on the Xayaburi dam project and receiving corresponding payments. (Shlapak Dep., p. 334 ln. 19- p. 337 ln. 2.) Finally, Mr. Dau himself later arranged for Mr. Shlapak to visit the Xayaburi dam in 2016. (Shlapak Dep., p. 49 ln. 22-p. 50 ln. 6, p. 355 ln. 24 - p. 356 ln. 5.) During that visit, Mr. 7 Shlapak took a brochure which also disclosed PT (Sole)’s involvement in the Xayaburi dam project. (Shlapak Dep., p. 359 lns. 8-13, p. 363 lns. 10-19.) In the Complaint, Plaintiffs confirmed that PT (Sole)’s work on those projects was publicly disclosed on PT (Sole)’s website as early as 2014, on a downloadable brochure that discussed PT (Sole)’s various projects in more detail. (FAC, ¶¶ 39-40; SAC, ¶¶ 59-60.) That website specifically described the NN2 resettlement and Xayaburi Dam Project. 9 (FAC, Ex. 10, pp. 7-8; SAC, Ex. 10, pp. 7-8.) It also advertised Mr. Dau’s position with the company. 10 (FAC, Ex. 10, p. 10; SAC, Ex. 10, p. 10.) OVERVIEW OF PLAINTIFFS’ CLAIMS Plaintiffs filed the present lawsuit on January 10, 2022, and subsequently filed amended complaints on May 4 and 16, 2022. The Court dismissed PT Construction Company and PT (Sole) Company Limited for insufficiency of service of process on June 15, 2022. Thus, Mr. Dau is the only remaining defendant. The Second Amended Complaint asserts claims for: (i) an accounting (count one); (ii) fraud and deceit (count two); (iii) breach of fiduciary duty (count three); (iv) breach of contract (count four); (v) unjust enrichment (count five); and (vi) attorney’s fees and expenses (count six). A short overview of the claims follows: 9 At his deposition, Mr. Shlapak proclaimed that he thought he was entitled to proceeds from work that PT (Sole) conducted with respect to the Luang Prabang Dam Project. (Shlapak Dep., p. 223 lns. 14-18, p. 224 lns. 19-23.) The Luang Prabang Dam Project started in 2019, well after the 2014 Agreement was in place, when the Lao government granted PetroVietnam Power Company (“PVP”), the power company of Vietnam, the right to develop the project. (Intralib Aff., ¶ 33.) 10 To the extent Plaintiffs assert claims regarding PT (Sole)’s work with mining and oil and gas, those projects were also publicly disclosed on PT (Sole)’s website. (FAC, Ex. 10, pp. 4-5; SAC, Ex. 10, pp. 4-5.) Ultimately, those exploratory projects were unsuccessful and no profits were ever realized. (Affidavit of David Dau (“David Dau Aff.”) filed contemporaneously herewith, ¶¶ 13-18.) 8 Count One (Accounting): Plaintiffs state they “seek an accounting of all business opportunities with the government of Laos and other ventures pursued by Defendants since execution of the [1992 Document] attached as Ex. 1.” (FAC, ¶ 44; SAC, ¶ 64.) As that quotation makes clear, Plaintiffs’ claims are untethered from the actual language of the 1992 Document, which is limited to (1) specified projects that were awarded by the Lao government to Plaintiffs, and (2) projects the parties may jointly agree to pursue in the future. Count Two (Fraud and Deceit): Plaintiffs assert that after entering into the 1992 Document, Mr. Dau and PT (Sole) concealed and misrepresented the availability of other business opportunities that should have been shared with the Plaintiffs. Count Three (Breach of Fiduciary Duties): Plaintiffs assert that Mr. Dau breached fiduciary duties, duties of trust and confidence and duties arising from a confidential relationship by usurping partnership opportunities and failing to disclose them. Count Four (Breach of Partnership Agreement): Plaintiffs allege that Mr. Dau breached a partnership agreement by usurping business opportunities, concealing them, and fraudulently inducing Plaintiffs to execute the 2014 Agreement. Count Five (Unjust Enrichment): Plaintiffs allege that PT (Sole) and any other defendant entities that received dividends from the NN2 Dam Project were unjustly enriched, and as a result, they should be ordered to disgorge those payments and pay them to Plaintiffs. It is unclear whether Count Five is asserted against Mr. Dau. 11 Count Six (Attorneys’ Fees and Expenses): Plaintiffs seek attorneys’ fees and costs 11 To the extent Count Five is asserted solely against PT (Sole), who has been dismissed, the claim should be dismissed. To the extent it is also asserted against Mr. Dau, it should be dismissed for the reasons set forth herein and in Mr. Dau’s Motion to Dismiss the Second Amended Complaint. 9 pursuant to O.C.G.A. § 13-6-11. ARGUMENT AND CITATION OF AUTHORITY I. Plaintiffs’ Claims Are Barred by the 2014 Agreement and the Applicable Statute of Limitations. In their Complaint, Plaintiffs largely ignore the 2014 Agreement and attempt to circumvent its impact by alleging it was procured by fraud. However, as explained above, the 2014 Agreement terminated all prior agreements, including the 1992 Document, and consequently it bars all of Plaintiffs’ claims in two simple respects: (i) Plaintiffs cannot raise any claims with respect to the 1992 Document that arose after its termination on February 28, 2014; and (ii) any claim arising before February 28, 2014, is barred by the applicable statute of limitations as Plaintiffs did not file suit until almost 8 years later, well after the expiration of any applicable statute of limitations. A. The 2014 Agreement Terminated the 1992 Document and Precludes Any Claims Arising After Its Execution. All obligations in the 1992 Document ended upon the signing of the 2014 Agreement on February 28, 2014. As such, Plaintiffs cannot make a claim with respect to any project arising after February 28, 2014. For instance, at his deposition, Mr. Shlapak proclaimed that he thought he was entitled to proceeds from work that PT (Sole)—not Mr. Dau—conducted with respect to the Luang Prabang Dam Project. (Shlapak Dep., p. 223 lns. 14-18, p. 224 lns. 19-23.) The Luang Prabang Dam Project started in 2019 when the Lao government granted PetroVietnam Power Company (“PVP”), the power company of Vietnam, the right to develop the project. (Intralib Aff., ¶ 33.) Since that project was entered into in 2019, five years after the termination of the 1992 Document, any claims regarding this project are precluded. 12 More broadly, any claim arising 12 Any claims regarding the Luang Prabang Dam Project also fail because the Luang Prabang Dam Project falls outside the scope of the 1992 Document, which only referenced the NN2 Dam Project, and not all dam projects generally. 10 after February 28, 2014, is barred because the 1992 Document ceased to exist as of that date. B. Any Claim Arising Before the 2014 Agreement Is Barred By the Applicable Statute of Limitations. Even assuming Plaintiffs can recover for claims involving PT (Sole)’s conduct rather than Mr. Dau’s, these claims are barred by the statute of limitations. The statute of limitations for Plaintiffs’ claims are as follows: either six years (breach of contract) 13 or four years (fraud, breach of fiduciary duty and unjust enrichment). 14 “For a contract claim, the statute of limitations begins to run at the time of its alleged breach.” Wallace v. Bock, 279 Ga. 744, 747 (2005). For the other claims, the statute begins to accrue when a plaintiff first incurs damages. Hendry v. Wells, 286 Ga. App. 774, 779-80 (2007) (breach of fiduciary duty); Green v. White, 229 Ga. App. 776, 780 (1997) (fraud); Renee Unlimited, Inc. v. City of Atlanta, 301 Ga. App. 254, 258 (2009) (citing Engram v. Engram, 265 Ga. 804, 806 (1995)) (unjust enrichment). PT (Sole) entered into the contract for the resettlement work on the NN2 Project Dam in May 2006. (David Dau Aff., ¶ 6.) The breach of contract claims therefore expired in 2012, and the non-contract claims expired in 2010. Likewise, PT (Sole) entered into a resettlement contract with respect to the Xayaburi Dam Project in March 2011, (Intralib Aff., ¶ 31), such that any related breach of contract claims expired in March 2017, and any non-contract claims expired in March 2015. Indeed, any possible claim with respect to the 1992 Document is barred as it was terminated on February 28, 2014, approximately eight years before Plaintiffs filed this lawsuit. Accordingly, 13 O.C.G.A. § 9-3-24 (six years for breach of contract). 14 Copeland v. Miller, 347 Ga. App. 123, 125 (2018) (four years for fraud); Hendry v. Wells, 286 Ga. App. 774, 779–80 (2007) (four years for breach of fiduciary duty); and Engram v. Engram, 265 Ga. 804, 806 (1995) (four years for unjust enrichment). 11 all of Plaintiffs’ claims are barred by the respective statute of limitations as they expired long before this lawsuit was filed on January 10, 2022. C. Plaintiffs’ Arguments to Avoid the Statutes of Limitation Are Unavailing. Plaintiffs attempt to evade these simple truths by (i) claiming fraudulent inducement with respect to the 2014 Agreement; and (ii) suggesting the statute of limitations should be tolled for some unspecified period of time based upon fraud. Both arguments fail. First, Mr. Shlapak confirmed there was no fraudulent inducement with respect to the 2014 Agreement. He testified there was no representation at all—he was presented with the 2014 Agreement at a restaurant, he looked it over, and he signed it. 15 (Shlapak Dep., p. 343 lns. 12-23, p. 349 lns. 3-7.) He acknowledged that he is a sophisticated businessman and that he could have had a lawyer review the contract. (Shlapak Dep., p. 349 lns. 18-20, p. 343 lns. 7-11.) Of course, even if he did claim that he was fraudulently induced by some statement outside the four corners of the 2014 Agreement, any such claim would be barred by the merger clause in the 2014 Agreement and Plaintiffs’ failure to ever seek rescission. Where a contract contains a merger clause, like the 2014 Agreement, a fraudulent inducement claim based on claims outside the contract can survive summary judgment only where the plaintiff promptly rescinds the contract. 16 15 Even if Plaintiffs had tried to allege fraud with respect to the 2014 Agreement, such a claim would fail as a matter of law. “It is well-settled law in Georgia that a party who has ‘the capacity and opportunity to read a written contract cannot afterwards set up fraud in the procurement of his signature to the instrument’ based on oral representations that differ from the terms of the contract.” Novare Grp., Inc. v. Sarif, 290 Ga. 186, 188-89 (2011) (quoting Craft v. Drake, 244 Ga. 406, 408 (1979)). “The only type of fraud that can relieve a party of his obligation to read a written contract and be bound by its terms is a fraud that prevents the party from reading the contract.” Id. at 189 (citation omitted). 16 Rescission is timely when announced “as soon as the facts supporting the claim for rescission are discovered.” Napier v. Kearney, 359 Ga. App. 196, 197 (2021) (rescission claim waived as a matter of law where plaintiff did not attempt to rescind contract until ten months after the discovery of facts supporting claim for rescission). 12 Liberty v. Storage Tr. Properties, L.P., 267 Ga. App. 905, 910-11 (2004). Here, Plaintiffs did not rescind the 2014 Agreement prior to filing suit, and in fact, did not request recission in the original or the subsequent two amended complaints. 17 As such, Plaintiffs’ fraud claim has no effect on the clear application of the statute of limitations. Second, Plaintiffs argument that the limitations periods should be tolled is similarly unavailing. Georgia law recognizes the possibility of tolling under very limited circumstances, none of which apply here. O.C.G.A. § 9-3-96. In order to toll a limitation period under the statute, a plaintiff must make three showings: (1) the defendant committed actual fraud; (2) the fraud concealed the cause of action from the plaintiff; and (3) the plaintiff exercised reasonable diligence to discover his cause of action despite his failure to do so within the statute of limitation. Daniel v. Amicalola Elec. Membership Corp., 289 Ga. 437, 445 (2011); O.C.G.A. § 9-3-96 (providing that tolling applies only if a fraud “debarred or deterred [the plaintiff] from bringing an action”). To establish actual fraud a plaintiff must show either “(1) actual fraud involving moral turpitude, or (2) a fraudulent breach of a duty to disclose that exists because of a relationship of trust and confidence.” Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 846 (1998). A plaintiff bringing an action for fraud has the burden of showing the existence of facts that would toll the statute of limitation.” Rollins v. LOR, Inc., 345 Ga. App. 832, 842-43 (2018). Although tolling must be plead with particularity, 18 Plaintiffs mention “tolling” only one time in the Complaint: 17 As a matter of law, Plaintiff waived the right to rescind by not seeking recission prior to filing the lawsuit. Novare Grp., Inc. v. Sarif, 290 Ga. 186, 188 (2011) (“Where a party elects to rescind the contract, he must do so prior to filing the lawsuit.”). 18 O.C.G.A. § 9-11-9 (b); Harrison v. Beckham, 238 Ga. App. 199, 205 (1999) (noting that O.C.G.A. § 9-11-9 requires tolling based on fraud to be plead with particularity). 13 Defendant Dau’s misrepresentations and non-disclosures to Plaintiffs described above constituted fraudulent concealment of Defendants’ wrongful acts that tolled the statute of limitations until Plaintiffs’ discovery in late 2019 of Defendant’s wrongdoing. 19 (See FAC, ¶ 42; SAC, ¶ 62.) When asked in his deposition about the alleged fraudulent concealment, Mr. Shlapak said that in 2004 or 2005, almost 20 years ago, he saw Mr. Dau exiting a meeting with CK, who developed the NN2 dam, and he asked Mr. Dau “what’s that about? What – what’s that meeting.” Mr. Dau allegedly responded: “‘That’s nothing.’ He says, ‘It’s not me.’ He says, ‘I’m just looking into trying to get some work for my brother.’” Mr. Shlapak added: “And often he’s told me that.” (Shlapak Dep., p. 111 lns. 11-25.) This statement is the only evidence in the record to support Plaintiffs’ claim, and it is insufficient to prove a claim for fraud or to claim tolling even if Mr. Dau had been dishonest. However, it certainly fails to constitute tolling because the statement was true. In 2005, Mr. Dau’s brothers owned PT (Sole), and PT (Sole) was awarded the resettlement work on the NN2 Dam Project in 2006. (Affidavit of Van Dau (“Van Dau Aff.”), ¶ 7; Intralib Aff., ¶ 23). Accordingly, this alleged conversation cannot be the basis for tolling. Moreover, Plaintiffs’ tolling arguments fail because tolling is only applicable where the alleged fraud conceals the cause of action from the plaintiff such that the plaintiff was deterred from bringing the claim. O.C.G.A. § 9-3-36. For concealment, Plaintiffs would have to prove that Mr. Dau had taken an affirmative act that concealed that a cause of action existed. Not only did Plaintiffs fail to allege concealment, the undisputed evidence confirms that Plaintiffs had actual 19 As shown in Mr. Dau’s Motion to Dismiss for Failure to State a Claim filed on September 15, Plaintiffs’ fraud allegations do not contain the requisite who, what, when and where, and as such, are subject to dismissal. 14 knowledge of their alleged claims and that evidence of PT (Sole)’s work was both in their possession and publicly available. The undisputed evidence establishes the following: 1. Mr. Shlapak is a member of the board of directors of Southeast Asia Energy Limited Board, and the Board, including Mr. Shlapak, voted to award PT (Sole) the resettlement work on the NN2 Dam Project in 2006 (Intralib Aff., ¶¶ 22- 24); 2. The progress of PT Sole’s resettlement work for the NN2 Dam Project was reported at Southeast Asia Energy Limited Board meetings (Id., ¶ 25); 3. Mr. Shlapak received documents in 2006 stating that PT (Sole) was doing the resettlement work on the NN2 Dam Project (Id., ¶¶ 25-27); 4. Mr. Shlapak admits he watched a documentary discussing PT (Sole)’s resettlement work on the NN2 Dam Project (FAC, ¶ 37; SAC, ¶ 57; Shlapak Dep., p. 205 lns. 6-14); 5. In 2008, Mr. Shlapak was told that PT (Sole) would be participating in the Xayaburi Dam Project (Intralib Aff., ¶¶ 12-13, 17); 6. In 2008, Mr. Shlapak was provided an opportunity to participate in the Xayaburi Dam Project (Id., ¶¶ 14-16); 7. Mr. Shlapak received documents in 2013 disclosing that PT (Sole) was working on the Xayaburi Dam Project and receiving payments for its work (Shlapak Dep., p. 334 ln. 19 - p. 337 ln. 2 and Ex. 28 thereto (SouthEast Asia Energy Limited Financial Statements, at SDC04692 – 93)); 8. Mr. Dau arranged a trip for Mr. Shlapak to visit the Xayaburi Dam Project in 2016 (Van Dau Aff., ¶ 9; see also Shlapak Dep., p. 49 ln. 22 - p. 50 ln. 6, p. 355 ln. 24-p. 356 ln. 5.); 9. On Mr. Shlapak’s Xayaburi dam visit, he picked up a brochure which identified PT (Sole) as participating in the Xayaburi Dam Project (See Shlapak Dep., p. 359 lns. 8-13, p. 363 lns. 10-19; Ex. 33 thereto, SDC06715 at SDC06720, 6722; see also Van Dau Aff., ¶ 9); 10. PT (Sole) had a publicly available website in 2014 that discussed its work on the Xayaburi Dam Project (FAC, ¶¶ 39-40, Ex. 10 thereto; SAC, ¶¶ 59-60, Exs. 10-11(a) thereto); and 11. Plaintiffs downloaded a detailed brochure from that website that discusses the projects for which Plaintiffs complain in this lawsuit (See FAC, ¶¶ 39-40, Ex. 10 thereto; SAC, ¶¶ 59-60, Exs. 10-11(a) thereto). 15 Given this undisputed evidence, there simply is no basis for tolling. Plaintiffs also cannot establish the third and final element necessary for tolling—that they exercised reasonable diligence to discover the cause of action despite a failure to do so within the applicable statute of limitation. As noted above, Plaintiffs knew or had access to the information giving rise to the alleged claims. Indeed, during his deposition Mr. Shlapak admitted that despite attending board meetings, he “never paid attention to what was going [with the resettlement] because I wasn’t involved with the construction.” (Shlapak Dep., p. 206 lns. 7-13.) And when confronted with documents he had in his possession (which he produced during this litigation) that disclosed these projects, Mr. Shlapak repeatedly admitted that he simply never looked at them. (See, e.g., Shlapak Dep., p. 288 ln. 20 - p. 290 ln. 2, p. 336 ln. 19 - p. 337 ln. 2, p. 363 lns. 10-19.) Such total lack of diligence is insufficient even if a confidential relationship between the parties existed. Rollins v. LOR, Inc., 345 Ga. App. 832 (2018) (affirming grant of summary judgment that plaintiffs did not show reasonable diligence because they signed documents that revealed they had claims). Plaintiffs did not conduct any diligence, much less “reasonable diligence.” In short, there is simply no basis for tolling the applicable statute of limitations, and Plaintiffs’ claims are barred in full. II. Plaintiffs’ Claims Are Barred By the 2014 Agreement and Georgia’s Merger Rule. The 2014 Agreement does more than just terminate the 1992 Document. The 1992 Document, upon which Plaintiffs’ Complaint is entirely based, was merged into or entirely replaced by the 2014 Agreement. 20 Under Georgia’s merger rule and the language of the 2014 20 By arguing that the 1992 Document was merged into and superseded by the 2014 Agreement, Mr. Dau is not conceding that the 1992 Document was, in fact, a valid and enforceable contract. Mr. Dau disputes the enforceability of the 1992 Document and reserves all rights in relation thereto. 16 Agreement itself, any alleged fiduciary duties created by—or alleged debts or obligations previously owed under—the older documents were fully extinguished and discharged as a result of that merger. The plain language of the merger clause in the 2014 Agreement is so broad that it not only terminated the 1992 Document, it merged it out of existence because it provides that the 2014 Agreement (i) is the “sole and entire agreement between the parties,” (ii) “supersedes any previous written or oral agreements or understandings,” and (iii) terminates “any and all” such previous agreements or understandings. This means that Plaintiffs cannot make any claim under the 1992 Document as a matter of law. The merger rule, which has its origins in the doctrine of novation, provides that any existing agreement or understanding between two parties is superseded, discharged, and extinguished if the same parties “subsequently enter upon a valid and inconsistent agreement completely covering the subject-matter embraced by the original contract.” Atlanta Integrity Mortg., Inc. v. Ben Hill United Methodist Church, 286 Ga. App. 795, 797 (2007); see also Health Servs. Centers, Inc. v. Boddy, 257 Ga. 378, 379 (1987). “The rational basis for the merger rule is that where parties enter into a final contract all prior negotiations, understandings, and agreements on the same subject are merged into the final contract and are accordingly extinguished.” GS CleanTech Corp. v. Cantor Colburn, LLP, 364 Ga. App. 354, 359 (2022). 21 Here, the parties reflected their mutual intent to accomplish a merger within the four corners of the 2014 Agreement, thus satisfying the elements of the merger rule. First, Mr. Dau and Plaintiff Shlapak Development are the parties to the 1992 Document and the 2014 Agreement. 21 Georgia courts occasionally conflate the merger rule and the doctrine of novation. To the extent the distinction matters, Dau moves herein under both doctrines. 17 Second, the 2014 Agreement covers the same subject matter as the 1992 Document. Both purport to define the scope of the affiliation between Mr. Dau and Plaintiff Shlapak Development, and the merger clause establishes the 2014 Agreement as the “sole and entire agreement” between the parties. That same clause then expressly references, supersedes, and terminates “any and all” prior agreements or understandings between the parties, without limitation. 22 Thus, the subject of the 2014 Agreement is expressly announced as any subject on which the parties previously had any agreement or understanding. Third, the new obligations are inconsistent with the older ones because, among other things, the 2014 Agreement specifically enumerates the only two projects to be pursued, eliminates the right to an accounting, and changes the profit-sharing formula. (Compare FAC, Exs. 3 and 9; Compare SAC, Exs. 3 and 9.) Whether parties intend to extinguish a prior agreement through a merger can sometimes create questions of fact. But no question of fact exists when, as in this case, the later-executed agreement contains a clear and comprehensive merger clause. As the Georgia Supreme Court held in Health Services Center, the merger rule is triggered when a later-executed agreement contains a merger clause superseding “all prior discussions and agreements between the parties,” because it “indicates conclusively that the parties intended [the later-executed contract] to be the final agreement between them, superseding all prior agreements.” 257 Ga. at 379 (emphasis added); see also Bulford v. Verizon Bus. Network Servs., Inc., 970 F. Supp. 2d 1363, 1369-70 (N.D. Ga. 2013) (comprehensive merger clause triggered application of merger rule); cf. Toys ‘R’ Us, Inc. v. Atlanta Economic Develp. Corp., 195 Ga. App. 195, 198 (1990) (“When, as here, the intent that a provision is to merge affirmatively appears on the face of the relevant instruments themselves, no 22 This point is significant. Contracting parties sometimes agree to merely supersede prior agreements on “the subject matter hereof” or in some other limited way. But here they agreed to no such limitation. 18 further proof is required and summary judgment is appropriate.”) (internal quotations omitted). When the merger rule applies, debts or obligations owed under the old contract at the time of the merger are extinguished. See, e.g., Bulford, 970 F. Supp. 2d at 1369-70 (the merger rule and doctrine of release each independently extinguished right to commissions allegedly earned under old employment agreement that merged into new separation agreement with a merger clause). More recently the Georgia Court of Appeals applied the merger rule to hold that an engagement letter between a client and a law firm was superseded by a subsequent fee agreement. The engagement letter was executed in 2008 and set forth the terms and condition of the engagement, including an arbitration provision requiring arbitration in Atlanta for any dispute arising out of the engagement. The fee agreement executed in 2011 set out payment provisions for future and past-due amounts and required arbitration in Connecticut for all disputes relating to the fee agreement. The fee agreement, however, contained the following merger clause: “This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, commitments, negotiations, and discussions, whether oral or written.” GS CleanTech, 364 Ga. App. at 361. The client then sought to arbitrate legal malpractice claims in Connecticut, pursuant to the arbitration provision contained in the fee agreement. The law firm argued that the fee agreement did not modify the engagement letter with respect to arbitration of the legal malpractice claims because the fee agreement only covered compensation. Id. While the trial court found that the engagement letter governed the legal malpractice disputes, the Court of Appeals disagreed and held that the fee agreement controlled, stating that the merger clause unambiguously superseded the engagement letter “in its entirety as to the matters therein.” Id. Just as in GS CleanTech, the 2014 Agreement superseded the 1992 Document. In fact, the 19 merger clause in the 2014 Agreement is even broader than the merger clause in GS CleanTech. There, the merger clause stated that it was the entire agreement “with respect to the subject matter hereof.” Id. By contrast, the 2014 Agreement provides that it (i) is the “sole and entire agreement of the parties hereto,” (ii) supersedes “any previous written or oral agreements or understandings between the parties hereto,” and (iii) terminates “any and all such previous written or oral agreements or understandings between the parties hereto,” without limitation. (FAC, Ex. 9 § 5(e); SAC, Ex. 9 § 5(e)) (emphasis added)). Accordingly, Plaintiffs’ rights to an accounting or profits under the 1992 Document were fully and completely extinguished and discharged the moment the 2014 Agreement was executed, even if those rights existed before the merger. III. The Plain Language of the 1992 Document and the Undisputed Facts Demonstrate that Mr. Dau Is Entitled to Summary Judgment with Respect to Plaintiffs’ Claims for an Accounting, Breach of Fiduciary Duty, and Breach of Partnership Agreement (Counts One, Three, and Four). Plaintiffs’ claims for an accounting, 23 breach of fiduciary duties, and breach of contract fail as a matter of law because the 1992 Document does not contain the obligations and restrictions that Plaintiffs seek to impose. 24 23 It is unclear whether Plaintiffs’ claim for accounting is based on the 1992 Document or based on the right to an accounting imposed by statute on partners. If the claim is based on the 1992 Document, it fails because the right to an accounting provided for therein is limited to “the affairs of the Ventures,” and Plaintiffs here seek an accounting of work conducted by Mr. Dau without Plaintiffs. And although framed as a separate claim, an accounting is actually an equitable remedy. See O.C.G.A. § 14-8-22 (providing that right to an accounting is “in addition to” other remedies or methods of dispute resolution); First Benefits, Inc. v. Amalgamated Life In. Co., No. 5:13-CV-37 MTT, 2014 WL 6956693, at *7 (M.D. Ga. Dec. 8, 2014) (“An accounting is more properly described as an equitable remedy rather than a separate claim.”) (applying Georgia law). 24 “[W]here contractual language is clear and unambiguous, the court is obliged to enforce the contract according to its terms, looking to the contract alone for its meaning.” Blockbuster Invs. LP v. Cox Enterprises, Inc., 314 Ga. App. 506, 506–07 (2012). 20 Initially, Plaintiffs’ claims rest on the baseless assumptions that Mr. Dau had an exclusive, mandatory agreement with Plaintiffs and that he was prohibited from conducting business in Laos, or from even working for a company that does business in Laos, without Plaintiffs involvement; i.e., that Mr. Dau contracted away his right to do business in Laos without Plaintiffs. To the contrary, the 1992 Document contains no such restriction. The parties simply agreed to “associate themselves together,” on Plaintiffs’ projects with the government of Laos. Plaintiffs’ contention that the 1992 Document created a partnership or fiduciary duties is belied by the express language of the contract. There is no exclusivity provision and no non-compete. The so-called partnership never owned any property, filed tax returns issued any K-1s, or entered into any contract. (Shlapak Dep., p. 72 lns. 1-25, p. 94 ln. 25-p. 95 ln. 3.) There simply is no basis on which to impose on Mr. Dau the type of all-encompassing obligations and restrictions Plaintiffs seek to impose here. Thus, Plaintiffs’ claims for an accounting and breach of fiduciary duties, and breach of partnership fail as a matter of law. Second, Plaintiffs’ claims fail because they are based upon the erroneous` suggestion that the list of projects in the 1992 Document are general, non-specific open-ended categories. They are not. As Mr. Shlapak confirmed at his deposition, the projects listed in the 1992 Document are based on the projects that the government of Laos granted Plaintiff Shlapak Development the right to pursue. (FAC, ¶ 17; SAC, ¶ 37; Shlapak Dep., p. 67 lns. 16-20.) Those rights were granted to Plaintiff Shlapak Development. (FAC, ¶¶ 12, 15; SAC, ¶¶ 32, 35.) Plaintiffs pursued them (or didn’t), and Mr. Shlapak testified that other than the NN2 Dam Project, item (b) on the list of projects, none of the projects occurred or generated any profits. (Shlapak Dep., p. 172 lns. 8-14.) In short, Mr. Shlapak confirmed there is no claim under the 1992 Document. 21 Third, even if the list of projects is not limited to Plaintiffs’ agreements with the Lao government, the claims still fail because Plaintiffs are making claims about projects that are plainly not covered by the 1992 Document. For instance, Plaintiffs allege that they should have participated in the Xayaburi and Luang Prabang Dam Projects, but those projects do not appear in the 1992 Document. Nor does a catch-all hydroelectric dam category exist. The 1992 Document refers to one specific dam project, the NN2 Dam Project. (Shlapak Dep., p. 277 lns. 6-14.) Similarly, Plaintiffs complain about unspecified oil and gas projects in Laos that they were not permitted to participate in (see SAC, ¶ 9), but there is no general category of oil and gas projects in the 1992 Document. (See FAC, Ex. 3 and SAC, Ex. 3.) The 1992 Document only references one specific oil and gas project, Monument Oil, in a specific 3800 sq. km area. (FAC, Ex. 3, ¶ 1(a); SAC, Ex. 3, ¶ 1(a).) Finally, Plaintiffs complain about resettlement work that PT (Sole) performed with respect to the NN2 Dam Project. (FAC, ¶ 37; SAC, ¶ 57.) Resettlement work is also not listed in the 1992 Document. (See FAC, Ex. 3 and SAC, Ex. 3.) Fourth, Plaintiffs’ claims fail because the 1992 Document is with Mr. Dau personally. Mr. Dau has confirmed that he has not entered into any agreements with the government of Laos or had personal business ventures with the Lao government regarding any of the projects or categories listed in the 1992 Agreement. (Van Dau Aff., ¶ 8.) Plaintiffs assert claims about projects PT (Sole) has participated in, but Plaintiffs do not have any contract or partnership agreement with PT (Sole). (SAC, ¶ 78.) Plaintiffs attempt an end run around this glaring problem by suggesting PT (Sole) was somehow an “alter ego” of Mr. Dau. (FAC, ¶¶ 2, 30; SAC, ¶¶ 20, 50.) However, Mr. Dau never owned stock in PT (Sole). (Van Dau Aff., ¶ 6.) That kills this suggestion. Indeed, a recent decision from the Northern District of Georgia surveyed Georgia law to determine whether an individual that did not hold stock in the corporation could be an alter ego of that corporation. 22 Segment Consulting Mgmt., Ltd. v. Bliss Nutraceticals, LLC, No. 1:20-CV-1837, 2022 WL 252309, at *9-10 (N.D. Ga. Jan. 27, 2022). The court remarked that “the case law applying the alter ego doctrine is overwhelmingly concerned with holding a corporation’s shareholders liable for abuse of the corporate form.” 25 Id. at *9 (collecting Georgia authority). The court noted that it had located only one Georgia decision where “a corporate officer who did not own shares in the defendant corporation was found personally liable under an alter ego theory.” Id. at 10 (citing Ishak v. Lanier Contractor's Supply Co., 254 Ga. App. 237 (2002)). The evidence in Ishak, however, showed an egregious disregard for corporate formalities by the officer. Ishak, 254 Ga. App. at 238 (“Testimony … showed that during the pendency of this litigation [the officer] conveyed one of the corporation’s primary assets to himself wit