Plаintiff BTL COM Ltd., Company (“BTL”) appeals from the trial court’s grant of summary judgment to defendants Reginald I. Vachon and John H. Gipson, Jr. Because we conclude that there is a genuine issue of material fact over whether defendants personally participated in the making of false misrepresentations that induced plaintiff to contract with defendants’ company, we reverse.
Under OCGA § 9-11-56 (c), summary judgment is appropriate оnly when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. “A de novo standard of review applies to an appeal from a motion for summary judgment, and we review the evidence, with all reasonable conclusions and inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation omitted.)
Rabun & Assoc. Constr. v. Berry,
So viewed, the record reflects that on July 2, 2001, BTL entered into а Cooperative Venture Agreement with United Information Technologies, Inc. (“UIT”) to provide telecommunication services between the United States and Nigeria (the “Agreement”). Reginald I. Vachon, chief operating officer of UIT, assisted in drafting the Agreement, actively participated in the negotiations over its terms, and executed the Agreement on behalf of UIT. John H. Gipson, Jr., president of UIT, also partiсipated in negotiations over the Agreement and approved its final terms.
Under the Agreement, BTL and UIT would each have a 50 percent interest in the cooperative venture and would share equally in the net profits and liabilities. The Agreement further provided that UIT had already made a $500,000 investment in equipment and initial expenses to launch telecommunications traffic to Nigeria, and that BTL would invest $250,000 and obtain а joint interest in that equipment. In this regard, Paragraph 2 of the Agreement stated:
The parties recognize and agree that UIT has made an investment in equipment and initial expenses in the cooperative venture of US$500,000.00 to launch termination of telecommunications traffic in Nigeria over 4E-ls and increased to 8E-ls and that one half of this investment or US$250,000.00 is to be matched by BTL. BTL shall make a payment of US$250,000.00 by wire transfer to UIT’s aсcount which shall be due upon the signing of this Agreement and saidpayment shall be for BTL’s share of the equipment and expenses advanced by UIT to establish the telecommunications link between the USA and Nigeria. Thus, BTL and UIT shall own the equipment jointly and shall recover the cost the equipment [sic] and the initial start-up expenses from the cash flow of the project by the end of the sixth month of the project.
Another paragraph of the Agreement, entitled “Equipment List,” provided: “Attached hereto as Attachment ‘B’is the list of equipment for the project.” Attachment B contained two separate lists of specific pieces of telecommunications equipment — one list for the “US Side” and another for the “Nigeria Side” of the venture •— with the quantities and costs of the different types of equipment itemized. Vachon and Gipson drafted the equipment list.
In accordance with the Agreement, BTL delivered $250,000 in United States currency to UIT as consideration for its 50 percent interest in the cooperative venture. However, telecommunications traffic with Nigeria was never established, and in November 2001, BTL severed its contractual relationship with UIT, demanding that its $250,000 initial investment in the cooperative venture be returned. No money or equipment was ever returned to BTL.
BTL filed suit against UIT and its three principal officers, Vachon, Gipson, and Gipson’s father. BTL alleged claims for fraud, breach of contract, violation of Georgia’s Racketeer Influenced and Corrupt Organizations Act (“RICO”), money had and received, and attorney fees.
BTL’s claims against UIT remain pending for adjudication in the trial court. The trial court granted summary judgment to Gipson’s father on all counts after finding thаt there was no evidence that he personally participated in any of the alleged wrongdoing and no grounds for piercing the corporate veil. That order was affirmed by this Court in an unpublished opinion and is not the subject of this appeal.
Appellees Vachon and Gipson also moved for summary judgment. On March 12,2004, the trial court granted summary judgment to appellees as to any alleged misrepresentations made prior to execution of the Agreement based on a merger clause, and as to any theories of personal liability based upon piercing the corporate veil, joint venture, or principal-agent. However, the trial court denied summary judgment to appellees on any potential claims of misrepresentations made within the Agreement itself or after its execution.
Thereafter, the case was transferred to a different superior court judge, and appellees filed second motions for summary judgment. After oral argument, the trial court entered an order on March 25, 2005 granting, without opinion, summary judgment in favor of appellees on all counts of the complaint. It is from that order that BTL now appeals.
BTL argues that the trial court erred in dismissing its fraud claim against appellees Vachon and Gipson.
1
“The tort of fraud has five elements: (1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the party claiming fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages.” (Citation omitted.)
ReMax North Atlanta v. Clark,
1. Fraudulent Misrepresentation of Present Fact. BTL predicates its first allegation of fraud on UIT’s representation in Paragraph 2 of the Agreement that “UIT
has made
an investment in equipment and initial expenses in the cooperative venturе of US $500,000.00 to launch termination of telecommunications traffic in Nigeria.”
3
(Emphasis supplied.) Significantly, by its plain language, the representation was not a future promise but a representation of present fact: UIT was representing that at the time the Agreement was executed, UIT had already invested $500,000 in equipment and initial expenses in connection with the Nigerian telecommunications venture. As such, we agree with BTL that the representation does not fall within the general rule barring fraud
Furthermore, we agree with BTL that there was sufficient evidence in the record indicating that UIT’s representation was false when made to create a genuine issue of fact over the issue. Although appellees submitted a spreadsheet that purported to show that UIT had spent over $500,000 purchasing equipment prior to the execution оf the Agreement, Vachon conceded during his deposition that the spreadsheet was actually a combined list of equipment that had been purchased by UIT for all of its different telecommunications ventures. Both appellees further conceded that only a subset of the equipment listed on the spreadsheet was purchased in connection with the Nigerian venture. Indeed, Gipson specifically markеd on the spreadsheet which pieces of equipment were purchased for the Nigerian venture, and his markings reflect that only a small portion of the equipment listed on the sheet was actually bought for that purpose. Additionally, a separate spreadsheet showing expenses associated with service contracts that UIT entered into as part of the Nigerian venture reflects that only a small number of those expenses were incurred before execution of the Agreement. Hence, both spreadsheets, taken together, can be construed in favor of BTL to reflect that UIT spent far less than $500,000 on equipment and expenses for the Nigerian venture before the Agreement was signed.
BTL also elicited testimony from Gipson which, construed in the light most favorable to BTL, reflected that portions of the equipment clаimed to have been purchased and owned by UIT as part of its initial $500,000 investment were in fact owned by a third-party company that never transferred ownership to UIT. Gipson’s testimony, combined with what was revealed in the spreadsheets, would allow a rational factfinder to conclude that UIT falsely represented that it had already invested $500,000 in equipment and initial expenses associated with the Nigerian venture at thе time the Agreement was executed.
In turn, there was sufficient evidence indicating that appellees actively participated and cooperated in the alleged false misrepresentation, and did so with fraudulent intent. Although the Agreement was between BTL and UIT, a corporate officer may be held liable for a corporate tort when he cooperated or participated in the tort or directed it to be done.
See Jamal v. Hussein,
Likewise, there was sufficient evidence of frаudulent intent by appellees. Ernest Tate, chief executive officer and general counsel of BTL, testified that after execution of the Agreement he traveled to Nigeria to confirm that UIT had bought the needed telecommunications equipment. Tate testified that appellees had informed him that upon his arrival in Nigeria, Zeyard Ibrahim, UIT’s representative in Nigeria, would be there to show him UIT’s telecommunicаtions equipment. However, when Tate arrived in Nigeria, Ibrahim was not there. Nor was Tate able to locate any telecommunications equipment in Nigeria at the sites where appellees had told him the equipment would be located. When Tate returned to the United States, he spoke with Ibrahim, who was then in Lebanon, to find out why he had not met him in Nigeria. According to Tate, Ibrahim informed him that appellees had instructed him to show Tate offices and equipment in Nigeria that did not belong to UIT, but Ibrahim had decided he would not participate in the planned deception. Ibrahim further stated that UIT did not have any telecommunication transmission facilities in Nigeria.
For these reasons, we conclude that, contrary to the trial court’s conclusion, BTL had an actionable claim for fraud based on the contractual representation that UIT had already invested $500,000 in equipment and initial expenses prior to execution of the Agreement. Resolution of this allegation of fraud should be left to the factfinder.
2. Fraudulent Promises of Future Action. BTL raises two additional allegations of fraud based on representations contained within the Agreement. First, BTL alleges that UIT falsely represented in Paragraph 2 of the Agreement that BTL would receive a joint ownership interest in all of the equipment previously purchased by UIT in return for BTL’s $250,000 investment in the Nigerian venture. Second, BTL alleges that UIT falsеly represented in the Agreement that it had or would eventually acquire all of the specific equipment listed in Attachment B in order to effectuate the Nigerian venture. 4
As an initial matter, the record reflects a genuine issue of material fact over whether UIT carried out either of these two promises. As to UIT’s promise that BTL would receive a joint ownership interest in all the equipment purchased by UIT prior to execution of the Agreement, BTL presented evidence (as previously pointed out) that certain equipment that UIT had claimed was part of its initial investment was not even owned by UIT. BTL also elicited deposition testimony indicating that certain pieces of the equipment purchased by UIT had been sold off by UIT without BTL receiving any notice of the sale or any portion of the proceeds. As to UIT’s promise that it would acquire the specific equipment listed on Attachment B to the Agreement, the equipment spreadsheet created by UIT (discussed supra), as well as the purchase invoices and shipment receipts for equipment purchased after execution of the Agreement, reflect that some of the equipment listed on Attachment B was never purchased. Furthermore, to the extent that some of the equipment was purchased, the evidence reflects that it was often of a different quantity and at a different cost than was represented on Attachment B.
Such evidence, standing alone, could not support a fraud claim, since the mere breach of a contractual promise to carry out some future action is insufficient to provide an actionable basis for fraud.
Buckley,
Appellees’ reliance on
Pacrim Assoc. v. Turner Home Entertainment,
In light of the record evidence, we conclude that in addition to its actionable fraud claim discussed in Division 1, BTL had an actionable fraud claim predicated on the contractual promise that BTL would be given a joint ownership interest in equipment previously purchased by UIT, and on the contractual promise that UIT would purchase the equipment listed in Attachment B. Therefore, the trial court’s grant of summary judgment to appellees on BTL’s fraud claim must be reversed.
Judgment reversed.
Notes
BTL has chosen not to appeal the trial court’s dismissal of its claims for breach of contract, money had and received, or attorney fees brought against appellees. While BTL states in its appellate brief that it is appealing the trial court’s ruling on its RICO claim, BTL does not support its position with any citations of authority or argument. Thus, any challenge BTL mаy have had to the dismissal of its RICO claim has been abandoned. Court of Appeals Rule 25 (c) (2);
Smith v. Lewis,
The issues of whether BTL reasonably relied on the representations contained in the Agreement or suffered damages as a result of those representations are not properly before us in this appeal. Although appellees now attempt to raise the issue of reasonable reliance in their appellate brief, appellees have waived this issue on appeal because they did not raise it in the trial court. See
Johnson v. Riverdale Anesthesia Assoc.,
Appellees argue that BTL relied on different contractual language as the basis for its fraud claim in its argument on summary judgment in the trial court. However, the record reflects that BTL relied on the same specific contractual language as a basis for its fraud claim during oral argument on the appellees’ second motions for summary judgment. Thus, BTL is not attempting to raise a new basis for its fraud claim. In any event, “the issue in an appeal from the grant of summary judgment is whether the movant met the burden established by OCGA § 9-11-56 (c) and, in addressing that issue on appeal, the
non-moving
party is entitled to advаnce all arguments without regard to whether they were raised by way of objections below.” (Emphasis supplied.)
American Central Ins. Co. v. Lee,
Appellees further argue that BTL relied on different contractual language as the ground for its fraud claim in the allegations of its complaint. When BTL relied on this same contractual language during the oral argument hearing before the trial court, appellees did not object or otherwise argue thаt BTL was raising a new allegation of fraud different from that found in its complaint. Thereafter, in its order granting summary judgment to appellees, the trial court stated that its decision had been reached after considering all of the evidence and argument presented by the parties. “Although [BTL’s] theory was not presented in the complaint, the pleadings are deemed amended to conform to the evidence prеsented, and we therefore deem it proper to consider this argument.”
DeLoach v. Foremost Ins. Co.,
In their appellate brief, appellees do not contest that the parties viewed the equipment list attached to the Agreement as a contractual promise by UIT that in the future it would purchase the specific items in the list. In any event, to the extent that there was any ambiguity in the Agreement over this issue, there was parol evidence which would support interpreting the equipment list in this manner. See
Harrell v. Fed. Nat. Payables,