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Division Six Sports, Inc. v. Hire Dynamics, LLC

Court of Appeals of Georgia, First Division

January 8, 2019


          BARNES, P. J., MCMILLIAN and REESE, JJ.


         Defendant Division Six Sports, Inc. ("Division Six") appeals the trial court's order granting summary judgment in favor of Plaintiff Hire Dynamics, LLC ("Hire Dynamics") on the limited issue of whether Division Six ratified a 2013 written agreement executed on its behalf by an allegedly unauthorized agent. For the reasons discussed below, we reverse the trial court's partial grant of summary judgment to Hire Dynamics.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Claxton, 345 Ga.App. 539, 539 (812 S.E.2d 167) (2018). See OCGA § 9-11-56 (c).

         So viewed, the record reflects that Division Six operated a warehouse in Austell, Georgia. In 2007, Division Six entered into an agreement with Hire Dynamics to provide temporary employees for the warehouse (the "2007 Agreement"). Hire Dynamics provided temporary employees until Division Six stopped using Hire Dynamics' staffing services in 2008. It is undisputed that there is no outstanding balance owed to Hire Dynamics for the staffing services provided in 2007 and 2008.

         In 2013, Hire Dynamics began providing temporary employees again to Division Six for use in its Austell warehouse and continued to do so until 2015. Hire Dynamics sent weekly invoices to Division Six, and Division Six agreed to a payment plan after some of the invoices became past due. Although Division Six paid some of the outstanding balance that Hire Dynamics claimed was owed for staffing services, disputes arose between the parties as to whether Hire Dynamics properly accounted for and credited all of the payments it received from Division Six; whether the invoices generated by Hire Dynamics charged the correct amount for certain staffing services; and whether the invoices were correct as to the number and types of temporary employees provided to Division Six.

         Hire Dynamics sued Division Six for breach of contract, seeking payment of unpaid invoices in the amount of $241, 033.80, plus prejudgment interest and attorney fees. Hire Dynamics alleged in its complaint that the 2007 Agreement governed the parties' relationship and that Division Six breached that agreement by failing to pay for the services rendered as reflected in the invoices. Division Six answered, denying that the 2007 Agreement governed the transactions at issue, contesting liability for the outstanding balances stated on the invoices, and disputing that Hire Dynamics could recover prejudgment interest or attorney fees.

         Hire Dynamics thereafter moved for summary judgment and submitted the affidavit of Jon Neff, its Chief Financial Officer ("CFO"), in support of its motion. Attached as exhibits to Neff's affidavit were the 2007 Agreement and the outstanding invoices that Hire Dynamics claimed that Division Six was obligated to pay. In his affidavit, Neff sought to authenticate the unpaid invoices; averred that the temporary staffing services that Hire Dynamics provided to Division Six as reflected in the unpaid invoices were governed by the terms and conditions set forth in the 2007 Agreement; and calculated the principal amount owed by Division Six on the invoices and the amount of interest that had accrued.

         After Hire Dynamics filed its motion for summary judgment, Division Six deposed Neff, Division Six's corporate representative under OCGA § 9-11-30 (b) (6). Neff testified that the day before his deposition, he had located a written agreement between Hire Dynamics and Division Six for temporary staffing and recruitment services entered on May 28, 2013 (the "2013 Agreement"). The 2013 Agreement had been executed by Neff and by Shawn Baro, Division Six's Director of Operations. The 2013 Agreement, unlike the 2007 Agreement, contained a provision authorizing an award of reasonable attorney fees incurred by Hire Dynamics in collecting overdue amounts owed for services rendered. According to Neff, he had previously asked Hire Dynamics' Credit Collections Supervisor to compile the contracts and invoices relevant to the present case, but the 2013 Agreement had not been found until Neff personally searched the corporate records the day before his deposition. Neff testified that he signed many agreements on behalf of Hire Dynamics and had not remembered signing the 2013 Agreement when he prepared his affidavit earlier in the litigation.

         Division Six subsequently filed its brief opposing Hire Dynamics' motion for summary judgment, contending that there were genuine issues of material fact as to whether the 2007 Agreement, the 2013 Agreement, or an implied contract for services governed the parties' relationship from 2013 to 2015. Division Six also argued that there were material factual issues regarding the accuracy of the invoices and the amount owed by Division Six. Additionally, Division Six maintained that there were genuine issues of material fact as to whether Hire Dynamics would be entitled to prejudgment interest and reasonable attorney fees if it succeeded on its contract claim, including issues of fact pertaining to whether Baro had authority to bind Division Six to the 2013 Agreement that contained an attorney fees provision.

         In support of its brief opposing summary judgment, Division Six submitted the affidavit of Ira Leibowitz, the President of Division Six since 2009 who had personal knowledge of the relationship between Division Six and Hire Dynamics. Leibowitz averred that the 2007 Agreement no longer governed the parties' contractual relationship in 2013 because the parties had not done business together for several years by that point. Leibowitz also averred that while Hire Dynamics began providing temporary staffing services to Division Six again in 2013, the parties had not entered into a written agreement memorializing their renewed business relationship. As to the 2013 Agreement, Leibowitz averred that he had been shown the agreement the day before Neff's deposition, and Baro had lacked authority to sign it on behalf of Division Six. In addition, Leibowitz averred that Division Six submitted payments to Hire Dynamics that were never properly credited to the balance it owed to Hire Dynamics; that some of the temporary employees listed on the invoices never worked for Division Six; that the invoices contained charges for hours never worked; and that Hire Dynamics increased the price charged for certain employees without Division Six's knowledge.

         After reviewing the submissions of the parties and hearing argument, the trial court granted in part and denied in part Hire Dynamics' motion for summary judgment. More specifically, the trial court concluded that, as a matter of law, the 2013 Agreement governed the renewed business relationship between Division Six and Hire Dynamics from 2013 to 2015 based on the doctrine of ratification. In this regard, the trial court determined that, irrespective of whether Baro had authority to execute the 2013 Agreement on behalf of Division Six, the uncontroverted evidence showed that Division Six ratified the 2013 Agreement by accepting staffing services from Hire Dynamics and entering into a payment plan to pay overdue invoices. The trial court denied summary judgment to Hire Dynamics on all remaining issues, including the outstanding balance owed by Division Six; whether the parties performed their obligations under the 2013 Agreement; whether Hire Dynamics provided the correct number of employees requested by Division Six; and whether the invoices submitted by Hire Dynamics accurately reflected the number of employees provided to Division Six and the amount owed for services rendered.

         Division Six now appeals the trial court's partial grant of summary judgment to Hire Dynamics.[1] According to Division Six, the trial court erred in concluding that the uncontroverted evidence showed as a matter of law ...

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