Godwin v. City of BainbridgeGodwin v. City of Bainbridge
Appellant-plaintiff filed a two-count complaint against appelleedefendant. In count one of his complaint, appellant sought specific performance of an alleged oral employment contract between the parties. In count two, appellant alleged that he had been fraudulently induced to enter into the oral employment contract, and sought punitive damages. Appellee answered, denying that it had entered into the alleged oral employment contract. Summary judgment was granted in favor of appellee and appellant appeals.
Resolution of the instant appeal necessitates a recitation of the following evidence, which is construed most favorably for appellant:
On February 1, 1982, the Mayor and the City Manager proposed the following to appellant: That appellant would “step down” as Fire Chief; that appellant would continue to be employed by appellee in a “consultant” capacity, whereby he would continue to receive the same salary that he was receiving as Fire Chief, and he would maintain his health and life insurance; and, that this “consultant” position would continue for five years, until appellant reached the age of fifty-five, at which time appellant could draw retirement benefits through the city’s retirement program. The following day, appellant was told that the City Council had approved the proposal that the two officials had made to him. However, the oral proposal was never reduced to writing. As a result of the discussions, appellant stepped down as Fire Chief and continued to draw his regular paycheck. Appellant applied for and began to receive social security benefits. However, in October of 1982, appellant was informed by the Mayor that appellant’s salary was not “put in the budget” and that his employment with appellee was terminated. The Mayor stated in his deposition that his proposal that appellant take a “consultant” position and still receive his regular salary was only “until [appellant] received social security which would be approximately six months.”
1. It is clear that because the alleged oral employment agreement was not to be performed within one year from its commencement, the agreement is subject to the Statute of Frauds. See OCGA § 13-5-30 (5). Appellant contends, however, that he has partially performed the agreement and, therefore, the agreement is removed from the operation of the Statute of Frauds by virtue of OCGA § 13-5-31 (3).
“ ‘The true rule is believed to be that, wherever there has been a “part performance” that is of such a character as to make the restitutionary remedy wholly inadequate, and the facts are such that it is what the courts call a “virtual fraud” for the defendant to refuse performance, equitable remedies are thereby made available to the injured party on the same terms as in other cases. The proof of the oral contract must be clear and convincing, the performance sought must be of a kind that courts of equity ordinarily feel competent to compel, and other similar conditions of the right to equitable relief must exist. . . .’ [Cit.] The part performance required by [OCGA § 13-5-31 (3)],
In the present case, appellant’s asserted part performance is his “stepping down” from his former position of Fire Chief at the same time that he assumed his new position of consultant. In
Hudson v. Venture Indus.,
supra, the court held that mere entry into employment as well as giving up prior employment with a substantial salary and good fringe benefits is insufficient part performance to remove an oral agreement from the Statute of Frauds. Appellant, however, asserts that unlike
Hudson,
in the present case a benefit was conferred on appellee by appellant’s leaving his former job. That benefit, appellant contends, is that when he stepped down, appellee was able to combine the fire department and police department into a new single department with only one “chief,” with savings to the taxpayer. However, the evidence shows that as Fire Chief, appellant was an employee at will. While appellant’s “stepping down” may have provided a convenient opportunity for the city to implement such a plan, it is clear that, by stepping down, appellant
himself
did not confer upon appellee an
uncompensated benefit.
See
Hudson v. Venture Indus.,
supra. Compare
Pacific Mut. Life Ins. Co. v. Caraker,
Thus, in the instant case we find that the trial court correctly granted summary judgment in favor of appellee on count one of appellant’s complaint, as the alleged oral contract was unenforceable under the Statute of Frauds.
2. As previously stated, appellant also alleged that he was fraudulently induced to enter into the oral employment contract. However, “ ‘[misrepresentations are not actionable unless the hearer was justified in relying on them in the exercise of common prudence and diligence.’ [Cit.] It is contrary to common sense to rely upon a promise that is not legally binding upon the person making it.”
Adamson v. Maddox,
Judgment affirmed.