338 Ga. App. 141
Ga. Ct. App.2016Background
- Avion hired Giacomo Bellomo in Aug. 2009 as director of wireless sales; he cultivated customer relationships but was not an officer.
- In Jan. 2010 ECI contracted with Avion for wireless customer-care services.
- Bellomo formed Edge Wireless in June 2011 while still employed; his Avion employment ended in Sept. 2011 after a compensation dispute.
- By Oct. 2011 ECI contracted with Edge and ceased being Avion’s customer.
- Avion sued Bellomo (breach of contract, unjust enrichment); Bellomo counterclaimed for unpaid commissions/bonus/expenses. Avion voluntarily dismissed, refiled asserting breach of fiduciary duty and unjust enrichment.
- Trial court granted summary judgment to Bellomo on the fiduciary-duty claim; jury later found for Bellomo on his counterclaims and Avion’s unjust-enrichment claim, awarding damages and attorney fees. Avion’s JNOV was denied and it appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bellomo owed Avion a fiduciary duty such that soliciting ECI was a breach | Avion: Bellomo’s sales role and contract language created a confidential/agency relationship and fiduciary duties | Bellomo: He was an employee/salesman without authority to bind Avion or create contractual obligations | Summary judgment for Bellomo affirmed; no evidence he was an agent or had authority to bind Avion, so no fiduciary-duty jury issue |
| Whether the trial court erred in denying JNOV on Bellomo’s breach-of-contract counterclaims (commissions/bonus) | Avion: Evidence required a different verdict; JNOV should be granted as a matter of law | Bellomo: There was sufficient, conflicting evidence supporting the jury verdict | Denial of JNOV affirmed; there was evidence to support the jury’s verdict |
| Whether Avion can challenge award of attorney fees and prejudgment interest via JNOV | Avion: Challenged fees and interest in JNOV | Bellomo: Avion did not preserve those grounds at directed verdict stage | Court declined to consider fees/interest claims on JNOV because Avion failed to move for directed verdict on those issues (procedural bar) |
| Standard for summary judgment and JNOV review | Avion: (implicit) disputes application of summary-judgment/JNOV standards | Bellomo: Standard requires no genuine issue of material fact for summary judgment; JNOV reviewed for any evidence supporting verdict | Court applied de novo review for summary judgment and limited JNOV review to whether any evidence supported the jury verdict; affirmed rulings |
Key Cases Cited
- Norton v. Cobb, 284 Ga. App. 303 (summary-judgment standard)
- Nash v. Studdard, 294 Ga. App. 845 (elements of breach of fiduciary duty)
- Physician Specialists in Anesthesia, P.C. v. Wildmon, 238 Ga. App. 730 (employee vs. agent distinction)
- Gordon Document Prods. v. Serv. Techs., 308 Ga. App. 445 (agent must be able to bind principal)
- Smith v. Morris, Manning & Martin, 293 Ga. App. 153 (burden shifts when no evidence on an essential element)
- UWork, Inc. v. Paragon Techs., 321 Ga. App. 584 (summary judgment where no principal-agent evidence)
- Republic Svcs. of Ga. v. Hoak, 273 Ga. App. 330 (preservation requirement for JNOV)
- Southern Land Title v. North Ga. Title, 270 Ga. App. 4 (limits on JNOV grounds not raised in directed verdict)
- AgSouth Farm Credit v. Gowen Timber Co., 336 Ga. App. 581 (standard for JNOV/demanded verdict)
- Sims v. Sims, 265 Ga. 55 (JNOV reviewed for any evidence supporting jury verdict)