QUONDARRIUS TONEY v. JAHYLIN MCKEE

FOURTH DIVISION
DILLARD, P. J.,
MERCIER, J., and SENIOR JUDGE FULLER

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

January 30, 2026

In the Court of Appeals of Georgia
A25A1974. TONEY et al v. MCKEE et al.

DILLARD, Presiding Judge.

Dr. Quodarrius Toney and Art of Aesthetics Dental Studio LLC appeal from

the trial court’s entry of judgment for Jahylin McKee and J. McKee and Co. LLC1

after Toney failed to appear at the trial of his claims and McKee’s counterclaims.

Toney argues the trial court erred in (1) failing to grant a continuance or rehearing; (2)

striking his pleadings; and (3) awarding a variety of damages to McKee. For the

following reasons, we affirm the judgment in part, vacate the judgment in part, and

remand for further proceedings consistent with this opinion.

1
For the sake of clarity, we refer to Dr. Quodarrius Toney and Art of Aesthetics
Dental Studio LLC collectively as “Toney” and Jahylin McKee and J. McKee and
Co. LLC collectively as “McKee” throughout the opinion.
This is a breach of contract case. Toney operates a cosmetic dental practice, and

he contracted with McKee to provide public-relations services. More precisely, in

June 2023, the parties entered into a services agreement by which McKee would

“find, procure and secure monetary deals” for Toney’s practice. And soon after,

McKee introduced Toney to Water Pik, Inc.—a company that makes and sells oral-

health products. She then developed a project proposal for Toney to enter into an

agreement and complete a college tour with Water Pik.2 But in August 2023, Toney

advised McKee that he would not be renewing their contract after it expired in

September.

Immediately after the expiration of the public-relations-services contract

between Toney and McKee, Toney entered into an agreement with Water Pik. And

given the timing of this deal, McKee believed it happened as a direct result of her

efforts on Toney’s behalf. So, McKee sent a demand letter to Toney, seeking a

commission on the deal under the services agreement. But on December 20, 2023,

Toney filed a breach-of-contract action against McKee; and for reasons that are not

2
This college tour included several prestigious HBCU institutions—like
Morehouse College and Spelman College—and “would feature engaging pop-up
activations and demonstrations highlighting proper flossing techniques.”
2
apparent, this complaint is not included in the appellate record. Even so, it appears

that—in addition to a claim for breach of contract—Toney alleged conversion, money

had and received, and breach of fiduciary duty.3

McKee answered the complaint and made counterclaims against Toney,

alleging breach of contract, unjust enrichment, abusive litigation, and unclean hands;

and she also requested an award of attorney fees. As to the breach-of-contract claim,

McKee argued that Toney breached the public-relations-services agreement by failing

to pay for services—i.e., to pay a five-percent commission—that led him to securing

a deal with Water Pik. Regarding the unjust-enrichment claim, McKee contended that

Toney was unjustly enriched by entering into the agreement with Water Pik when he

benefitted from (but did not pay for) her labor and work product that led to this

arrangement. And as to the abusive-litigation claim, McKee maintained that Toney

filed suit against her “with no substantial justification” and “acted with malice by

filing a frivolous lawsuit based on false accusations of breach of [f]iduciary duty and

3
Neither party has moved to supplement the appellate record, and Toney had
the burden of ensuring all requested portions of the record were transmitted. See
Metro. Atlanta Rapid Transit Auth. v. Harrison, 371 Ga. App. 808, 809(2) (903 SE2d
287) (2024) (noting that “[i]t is the burden of the appealing party to ensure that a
complete record is transmitted to this Court on appeal” (brackets and quotation marks
omitted)).
3
illegal conversion only after” she sent her demand letter. She also claimed that Toney

acted with “unclean hands” by eliminating her from the Water Pik deal. Finally,

McKee requested an award of attorney fees under both OCGA § 13-6-11 and OCGA

§ 9-15-14(a).

The case was scheduled for a virtual trial (via Zoom) on February 24, 2025, but

Toney failed to appear despite having been sent numerous links for it. And as a result,

the trial court struck his pleadings and granted judgment for McKee. As part of that

judgment, the court awarded the following damages:

Unpaid Contract Commission (5% of Water Pik deal)[:] $6,650.00

Contract Production fee[:] $15,000.00

Contract Commission from . . . repeat deals[:] $6,650.00

Consequential Damages (Lost Business Opportunities)[:] $48,000.00

Unjust Enrichment (Value of Work Performed)[:] $83,000.00

Attorney’s Fees[:] $26,077.55

Court & Filing Costs[:] $25.72

4
TOTAL: $185,403.27

Nearly one month later (on March 18, 2025), Toney filed an “emergency

motion for rehearing due to technical difficulties outside the control of the plaintiff

(OCGA § 9-10-154[4])” and a “motion for reconsideration and to set aside judgment

(for internal legal error on the face of the judgment).” Specifically, Toney’s attorney

claimed that he failed to appear at the hearing because of the misconfiguration of a

remote email server, which resulted in him never receiving any of the links he

requested for the virtual trial. In these motions, counsel described the many emails he

sent and the unanswered phone calls he made both before and during the trial in an

attempt to attain the necessary link or learn if the trial had been rescheduled. And in

the days that followed, counsel eventually learned that his business email address was

not receiving incoming messages, he diagnosed the problem, and then belatedly

received all of the sent (and now expired) links to the trial. But before the trial court

4
OCGA § 9-10-154 provides that “[i]f either party is providentially prevented
from attending the trial of a case, and the counsel of the absent party will state in his
place that he cannot go safely to trial without the presence of the absent party, the case
shall be continued, provided the continuances of the party have not been exhausted.”
5
could rule on either motion, Toney filed a notice of appeal from its final order on

March 28, 2025. This appeal follows.

1. First, Toney argues the trial court erred in failing to grant a continuance for

providential cause.5 But a motion for continuance was not filed until nearly one month

after the trial occurred, and the court could not continue a trial that was already

complete.6 This enumeration, then, lacks merit.

2. Next, Toney contends the trial court erred in striking his pleadings. But in

doing so, he provides no argument as to why this was an abuse of discretion by the trial

court—which is the standard we apply when reviewing the grant of a motion to strike.7

5
Toney also claims the trial court should have granted a rehearing, but he
provides no argument on this alternative ground. Moreover, although Toney filed a
motion for reconsideration and to set aside the judgment, the court lost jurisdiction
to consider it after he filed a notice of appeal. As a result, the court did not issue (and
was unable to issue) an order on that motion. See, e.g., Rollins v. Rollins, 300 Ga. 485,
488(1) (796 SE2d 721) (2017) (noting that the notice of appeal “acted as supersedeas
and deprived the trial court of the power to affect the judgment appealed”
(punctuation omitted)).
6
See Barton v. Barton, 216 Ga. App. 292, 292(2) (454 SE2d 155) (1995) (“We
also note that a subsequent motion for continuance due to medical reasons by both of
the defendants is also meritless. This later motion was not filed until after the date of
the trial sought to be continued.”).
7
See, e.g., Cameron v. Miles, 311 Ga. App. 753, 754 (716 SE2d 831) (2011)
(noting that rulings on a motion to strike and for entry of default judgment are
6
Instead, Toney provides three conclusory sentences as to the severity of striking

pleadings in general. And by failing to apply the law to the facts of this case, he

abandoned any argument that the trial court abused its discretion.8 Moreover, and

significantly, Toney elected not to file a transcript of the virtual proceedings below;

and as we have explained, when an appellant fails to include a transcript in such

circumstances, he fails to establish error.9

“reviewed by this Court using an abuse of discretion standard.”). Indeed, given what
the trial court knew at the time—i.e., that Toney was notified of the trial date and time
but failed to appear—its decision was perfectly reasonable and well within its
discretion. See, e.g., Pennington v. Pennington, 291 Ga. 165, 166(1) (728 SE2d 230)
(2012) (noting that a trial court may strike a party’s pleadings “as a proper sanction
for wilful refusal to participate in the proceedings pursuant to a court’s inherent
power to efficiently administer the cases upon its docket, as well as its power to
compel obedience to its orders and control the conduct of everyone connected with
a judicial proceeding before that court”).
8
See, e.g., McDaniel v. State, 367 Ga. App. 376, 379–80(f) (885 SE2d 245)
(2023) (concluding that error was abandoned when appellant “fail[ed] to cite any legal
authority, beyond the applicable statutes, or to engage in any reasoned argument that
would establish reversible error”).
9
See Williams v. Medinger, 349 Ga. App. 807, 808(1) (824 SE2d 800) (2019)
(explaining that “when a trial court grants a plaintiff’s motion in open court to strike
a non-appearing defendant’s pleadings, and [when] the defendant has submitted no
transcript of the hearing, the defendant has failed to show legal error, and the
judgment by default must be affirmed” (quotation marks omitted)); Collier v. Am. Exp.
Centurion Bank, 306 Ga. App. 376, 377(2) (702 SE2d 640) (2010) (same).
7
3. Toney also challenges the trial court’s award of damages on several grounds.

But again, he elected not to include a transcript of the virtual trial with the appellate

record; and so, we will assume the evidence “authorized the damages awarded if the

complaint properly alleged the basis for the recovery of such damages.”10 Indeed, a

judgment by default properly entered against parties “sui juris operates as an

admission by the defendant of the truth of the definite and certain allegations and the

fair inferences and conclusions of fact to be drawn from the allegations of the

declaration.”11 Even so, conclusions of law, facts not well-pleaded, and forced

10
Hulsey Pool Co., Inc. v. Troutman, 167 Ga. App. 192, 193(2) (306 SE2d 83)
(1983) (physical precedent only). See Broad. Concepts, Inc. v. Optimus Fin. Servs.,
LLC, 274 Ga. App. 632, 634(1) (618 SE2d 612) (2005) (noting that “[w]ithout a
transcript, the appellate court must presume that the trial court’s findings of fact are
supported by evidence” (quotation marks omitted)).
11
Stroud v. Elias, 247 Ga. 191, 193 (275 SE2d 46) (1981) (Per Curiam) (quotation
marks omitted). See Chironsoft Co., Ltd. v. Yokim Mktg., LLC, 374 Ga. App. 603,
612(4) (912 SE2d 69) (2025) (noting that a defendant in default is “in the position of
having admitted each and every material allegation of the plaintiff’s petition except
as to the amount of damages alleged,” and that default “concludes the defendant’s
liability, and estops him from offering any defenses which would defeat the right of
recovery” (quotation marks omitted)).
8
inferences are “not admitted by a default judgment.”12 With these guiding principles

in mind, we turn now to Toney’s arguments about the awarded damages.

a. Unjust Enrichment. Toney argues the award for unjust enrichment cannot

stand because the parties had a valid and binding contract. We agree.

Under the admitted allegations in the counterclaims, Toney entered into the

agreement with Water Pik after benefitting from McKee’s labor and work product.

But importantly, unjust enrichment is an equitable doctrine which only applies when,

as a matter of fact, there is “no legal contract, but when the party sought to be charged

has been conferred a benefit by the party contending an unjust enrichment which the

benefitted party equitably ought to return or compensate for.”13 Here, because McKee

12
Stroud, 247 Ga. at 193 (quotation marks omitted). See Fink v. Dodd, 286 Ga.
App. 363, 365(1) (649 SE2d 359) (2007) (“It is axiomatic that a default does not result
in the admission of allegations that are not well-pled or that are the result of forced
inferences.” (quotation marks omitted)).
13
St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137(1) (508 SE2d 646) (1998)
(quotation marks and ellipses omitted). See Tuvim v. United Jewish Communities, Inc.,
285 Ga. 632, 635(2) (680 SE2d 827) (2009) (“Unjust enrichment applies when as a
matter of fact there is no legal contract, but when the party sought to be charged has
been conferred a benefit by the party contending an unjust enrichment which the
benefitted party equitably ought to return or compensate for.” (quotation marks
omitted)). See also The Intellectual History of Unjust Enrichment, 133 Harv. L. Rev.
2077, 2081 (2020) (explaining that “[u]njust enrichment was a creature of both
common law and equity; both traditions recognized sources of legal obligation outside
9
agrees there was a binding contract—and entered that contract into evidence (which

was filed as an exhibit with the court’s final order)—she cannot recover for unjust

enrichment.14 This aspect of the trial court’s judgment, then, must be vacated.

b. Damages Under Hourly Fee. Toney also contends the trial court erred in

awarding damages to McKee under an hourly fee arrangement when the contract

between the parties was for a commission structure. But because the court awarded

an hourly fee as the basis for its unjust-enrichment calculation, we need not address

this argument when we have already vacated that award. Even so, to avoid any

confusion, we reiterate that the hourly fee award is vacated.

c. Lost Profits or Lost Business Opportunities. Toney next claims the trial court

erred in awarding damages for lost profits or lost business opportunities when there

was a contract between the parties and McKee did not plead consequential or special

damages. Again, we agree.

the sphere of contract and tort”).
14
See Lee v. Shim, 310 Ga. App. 725, 734(3)(b) (713 SE2d 906) (2011)
(explaining that party could not recover damages under both a binding contract and
a theory of unjust enrichment because “plaintiffs are barred from a double recovery
of damages”).
10
Under OCGA § 13-6-2, damages recoverable for a breach of contract are “such

as arise naturally and according to the usual course of things from such breach and

such as the parties contemplated, when the contract was made, as the probable result

of its breach.” And under OCGA § 13-6-8, remote or consequential damages are “not

recoverable unless they can be traced solely to the breach of the contract or unless

they are capable of exact computation, such as the profits which are the immediate

fruit of the contract, and are independent of any collateral enterprise entered into in

contemplation of the contract.”

Here, McKee requested damages for breach of contract under OCGA § 13-6-2

and OCGA § 13-6-8, and the trial court awarded “consequential damages” for “lost

business opportunities” in the amount of $48,000. But lost profits or business

opportunities are special damages;15 and under the Civil Practice Act, such damages

15
See SMD, L.L.P. v. City of Roswell, 252 Ga. App. 438, 441(2) (555 SE2d 813)
(2001) (describing “lost profits” and “lost investment” as “consequential or special
damages” and also noting that “[a]s a general rule, expected profits of commercial
business are too uncertain, speculative, and remote, to permit recovery for their
loss”), abrogation on other grounds recognized by Schumacher v. City of Roswell, 344
Ga. App. 135 (809 SE2d 262) (2017); Imaging Sys. Int’l, Inc. v. Magnetic Resonance
Plus, Inc., 227 Ga. App. 641, 645(1) (490 SE2d 124) (1997) (noting that even though
the statutory definitions of general and special damages refer to “tortious acts,”
general and special damages “also may be recovered in contract actions if the general
and special damages are not remote or consequential and are such as arise naturally
11
must be “specifically stated.”16 This, McKee did not do. More precisely, she did not

include any factual allegations in her counterclaims—i.e., any mention of “lost

profits” or “lost business opportunities”—to support a request for special damages.

So, because McKee provided no basis for claiming special damages, she may not be

awarded such damages—even though Toney defaulted as to liability on the breach-of-

contract claim.17 This portion of the award, then, is likewise vacated.

and according to the usual course of things from such breach and such as the parties
contemplated, when the contract was made, as the probable result of its breach”
(quotation marks, brackets, and citations omitted)); Globe Motors, Inc. v. Noonan, 106
Ga. App. 486, 486(1) (127 S2d 320) (1962) (noting that loss of earnings in the form of
profits “can be recovered only if the loss is free from uncertainty and speculation,”
and so, “in pleading this item of special damages sufficient facts should be alleged to
show definitely that the claimed loss of profits would have occurred but for the
injury” (citation omitted)).
16
OCGA § 9-11-9(g).
17
See Copeland v. Carpenter, 203 Ga. 18, 20(3) (45 SE2d 197) (1947) (noting that
the plaintiff “could recover only such special damages as he actually sustained as a
consequence of the alleged wrongful acts, and he was required to plead them plainly,
fully, and distinctly”); Tri-County Inv. Grp., Ltd. v. S. States, Inc., 231 Ga. App. 632,
638(4)(a) (500 SE2d 22) (1998) (holding that party cannot recover special damages
when it “failed to specifically state what special damages it sought in the complaint”);
Kennedy v. Johnson, 205 Ga. App. 220, 222(1) (421 SE2d 746) (1992) (explaining that
“[h]aving pled no special damages, [appellant] has failed to establish that he is entitled
to proceed against [appellee] under the authority” that would permit recovery of
special damages). Cf. Bryant v. Haynie, 216 Ga. App. 430, 432(3) (454 SE2d 533)
(1995) (holding that trial court did not err in denying motion in limine to exclude
12
d. Contract Production & Repeat Deals. Toney also maintains the trial court erred

by awarding McKee damages for “contract production” and “repeat deals” when the

agreement contained a merger clause and the plain language of the contract did not

include compensation for those items. Once again, we agree.

Under the contract (which, again, was filed as an exhibit with the trial court’s

final order), there was no mention of a “contract production” fee or “repeat deals.”

The public-relations-services agreement was effective from June 5, 2023, until

September 5, 2023, and automatically renewed if neither party terminated the contract

(which Toney did). So, under that agreement, Toney was to pay a retainer fee of

$5,400; any out-of-pocket expenses; and a commission of five percent if McKee

“manage[d] to broker a deal where money was exchanged” after continuing to work

on “the WaterPik deal.” Again, the contract did not mention a fee for “contract

evidence of special damages following defendant’s default as to liability in action for
personal injury when “[t]he record shows that the complaint alleged that [plaintiff]
had incurred ‘far more than $200,000’ in medical expenses, and in the pretrial order
[plaintiff] asserted medical expenses in excess of $265,000”).
13
production” or “repeat deals,” and so McKee is not entitled to such damages under

a breach of the contract.18 This portion of the trial court’s award, then, is also vacated.

e. Commission Calculation. Toney also argues the trial court erred in calculating

the commission due to McKee at $6,650 when, under the agreement, it was $4,850.

And while we disagree with Toney’s calculation, we do agree the court awarded an

improper amount.

Included as an exhibit filed with the trial court’s final order is a copy of the

agreement between Toney and Water Pik. The terms of the contract provided that

Toney was to be compensated $60,000 for a college tour; $15,000 as an “event

organization/production” fee; “reasonable travel expenses” (to be pre-approved);

and a $25,000 donation to a scholarship fund. In total, this amounts to $100,000.19

And five percent of $100,000 is $5,000, which is more than the $4,850 that Toney

claims is owed in commission but less than the $6,650 awarded by the trial court.

18
See OCGA § 13-6-2 (providing that “[d]amages recoverable for a breach of
contract are such as arise naturally and according to the usual course of things from
such breach and such as the parties contemplated, when the contract was made, as the
probable result of its breach”).
19
Toney’s brief inexplicably calculates the total as $97,000 despite using these
same numbers.
14
Thus, the award of $6,650 for commission under the agreement must be vacated and

the trial court is to enter an award of $5,000 on remand.

f. Attorney Fees. Finally, Toney contends that McKee is not entitled to attorney

fees when all of her substantive claims fail as a matter of law; but this is not true,20 so

we affirm the trial court’s award in this regard.

In light of the foregoing, we affirm the entry of default judgment and striking

of Toney’s pleadings; we affirm the grant of attorney fees; we vacate the trial court’s

award of damages on all other grounds; and we remand for the court to award the

proper amount of commission as damages. The judgment, then, is affirmed in part,

vacated in part, and remanded for further proceedings consistent with this opinion.

Judgment affirmed in part, vacated in part, and case remanded for further

proceedings. Mercier, J., and Senior Judge C. Andrew Fuller, concur.

20
This is the only basis of Toney’s challenge to the grant of the attorney-fees
award. As a result, we do not consider whether the trial court otherwise erred in its
grant of these fees. It is not our job to cull the record on behalf of Toney to “find
alleged errors, as appellate judges are not like pigs, hunting for truffles buried in
briefs.” McDaniel, 367 Ga. App. at 379(d) (punctuation omitted).
15