Stephen Barnett, a minority shareholder in a closely held corporation, attempted to proceed with a direct shareholder action against some, but not all, of the other shareholders, alleging malfeasance in the performance of their corporate duties. In his complaint, Barnett claimed that the defendant shareholders had refused his demand to review the corporate records in violation of the Georgia Business Corporation Code; had misappropriated corporate funds and assets; had falsified the corporate books and records; and had failed to account for corporate income attributed to him in corporate tax filings or to pay the income over to him. The trial court dismissed Barnett’s complaint for failure to state a claim upon which relief could be granted, concluding that none of his claims could be pursued against the defendants in a direct shareholder action. Because Barnett was entitled to pursue a direct action against the defendant shareholders for their alleged failure to account for his share of the corporate income or to pay the income over to him, we reverse the trial court’s dismissal of that claim. We affirm the trial court’s dismissal of the remaining claims. A trial court’s ruling on a motion to dismiss is reviewed de novo. See Hendry v. Wells , 286 Ga. App. 774, 781 2 650 SE2d 338 2007. Our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. Citations and punctuation omitted. Id. at 781 2. Nonetheless, “it is still possible for a litigant to plead himself out of court by revealing a state of facts which affirmatively shows that there is no liability on the defendant.” Hodge v. Dixon , 119 Ga. App. 397 167 SE2d 377 1969. See also Hendry , 286 Ga. App. at 781-782 2 noting that “a party to an action is bound by material allegations made in his pleadings so long as they remain in his pleadings”. Guided by these principles, we turn to the record in the present case.
Plaintiff Barnett is a minority shareholder in Earthwise Industries, Inc., a closely held Georgia corporation. His complaint asserted multiple causes of action against the three corporate directors who comprised the majority shareholders of the corporation, Andrew Fullard, Adena Fullard, and Jane Hix the “Shareholder Defendants”. As originally filed, Barnett’s complaint also named Earthwise as a defendant and asserted both direct and derivative claims. Subsequently, however, Earthwise was voluntarily dismissed as a party defendant, and Barnett chose to proceed only with his purported direct claims against the Shareholder Defendants.
