DIVISION SIX SPORTS, INC.
HIRE DYNAMICS, LLC.
BARNES, P. J., MCMILLIAN and REESE, JJ.
BARNES, PRESIDING JUDGE.
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
(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).
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
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.
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.
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
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.
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.
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
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.
Six now appeals the trial court's partial grant of
summary judgment to Hire Dynamics. According to Division Six,
the trial court erred in concluding that the uncontroverted
evidence showed as a matter of law ...