Lynnell F. Howard filed a pro se complaint alleging claims for negligence, breach of contract, fraud and deceit, and misrepresentation against Technosystems Consolidated Corporation, Intromark, Inc., and Invention Submission Corporation (“ISC”).
In this appeal, Howard contends that the trial court erred in opening default and by awarding summary judgment. After reviewing the record and finding no merit to either purported error, we affirm.
The underlying case arose after Howard, a self-declared “inventor,” entered into several contractual agreements with ISC. Howard claimed to be the inventor of a pen and pencil that would emit musical tones upon activation. Howard dubbed the product, “E-rasers.” After executing a submission agreement in August 1995 with ISC that obligated her to make scheduled payments in excess of $7,100, Howard fell into arrears on those payments. Seven months later, in April 1996, Howard and ISC reached a settlement in which ISC agreed to cancel the past due balance of $7,454.92 and Howard agreed not to disparage ISC in any manner.
Shortly after that settlement, Howard informed ISC that she had discovered a similar product being distributed by Pentech International (“Pentech”) and being sold at Wal-Mart stores. Howard claimed that the original idea for this musical pen “was stolen from her by ISC and divulged to PenTech.” In late September 1996, Howard began picketing outside ISC’s Atlanta office and eventually accused ISC of conspiring to kill her, firing gunshots at her, and attempting to run her over with a car.
ISC introduced evidence to establish that Ran Artsi, the president of Mega Sound Technologies Limited (“Mega Sound”), an Israeli
Artsi testified that Mega Sound had been formed in late 1991 to start work on a project, the musical pen. According to Artsi, the electronics, components, modules, and prototypes were created in Israel in early 1992, while the plastic molds were created in the Orient in 1993. Artsi testified that although a U. S. patent had been applied for in August 1992, that effort was later abandoned due to the expense. According to Artsi’s uncontradicted testimony, in early 1994, The Disney Store, Limited, in London contracted with Mega Sound to produce a musical pen with a sound chip for the song “A Friend Like Me” from the movie Aladdin.
Artsi’s testimony was supported by nearly 50 documents including correspondence, faxes, purchase orders, technical drawings, and invoices substantiating the existence of Mega Sound’s contract with The Disney Store to make a musical pen featuring the song, “A Friend Like Me.” This documentation includes a purchase order dated June 22, 1994, from The Disney Store for the manufacture of 10,000 of these musical pens by Mega Sound.
Artsi testified that in January 1995 he met Norman Melnick, a representative of Pentech at a trade fair in Frankfurt, Germany. After Melnick expressed interest in the Disney pen, Mega Sound started working on other projects for Pentech to distribute and sell. Artsi testified that he had never heard of Howard’s invention or seen any drawings of the E-raser before learning about her lawsuit.
Melnick confirmed that Pentech distributed the musical pen at issue to retailers including Wal-Mart. Melnick testified that the musical pen from Mega Sound was the “only musical ballpoint that Pentech ever purchased or distributed.” According to Melnick, Pentech “stopped distributing the Musical Pen in 1996 because sales for the product were poor.”
1. Howard asserts that the trial court erred in opening default. We disagree.
Under OCGA § 9-11-55 (b), a prejudgment default may be opened upon any one of three grounds provided that four conditions are met.
Howard attempted service on these foreign corporations under OCGA § 14-2-1510 (b). This statute, however, applies only to those corporations who fail to obtain a certificate to transact business or fail to appoint a registered agent for service as required by law.
When Howard designated that the mail be processed via “restricted delivery,” she enhanced the complexity of service and made it less likely for the addressees to receive the mail intended for them. Howard also failed to direct the mail to the appropriate address of the principal office. Because there is considerable doubt that Howard complied with the requirements of OCGA § 14-2-1510 (b), service was arguably defective.
The petition to open default complied with the statutory requirements set forth in OCGA § 9-11-55 (b). The defendants announced they were ready to proceed with trial and supported the motion with evidence. In a supporting affidavit, Berger testified that he did not learn about the lawsuit untii after default; Berger denied conspiring with Pentech or selling or appropriating Howard’s invention; and he asserted having a complete and meritorious defense to all claims. In these circumstances, the trial court did not abuse its discretion in opening default.
2. Howard contends the trial court erred in granting summary judgment. Howard’s complaint contains four counts: negligence,
On summary judgment, a defendant can prevail by pointing out the absence of evidence to support at least one essential element of a plaintiff’s claim.
The gist of Howard’s breach of contract claim is that the defendants “disclosed, released and sold Plaintiff’s idea to others,” and that they placed her “confidential invention on the market” without her knowledge or consent. But it is undisputed that Howard and ISC executed a settlement agreement expressly covering “all differences of any kind,” pertaining to the original contract. Howard’s signature appears beneath the statement: “I agree that this is in full settlement of all differences between Invention Submission Corporation and myself.” Notwithstanding the plain and unambiguous terms of the settlement agreement, Howard sought to enforce certain terms of the original contract. Having pierced the pleadings on this claim, ISC was entitled to summary judgment.
An action for fraud requires proof of five elements: a false representation by defendant, scienter, an intent to induce plaintiff to act or refrain from action, reliance upon the representations, and damages caused as a result of that reliance.
After ISC came forward with overwhelming evidence negating an essential element of each claim, Howard could no longer rest on her pleadings but needed to point to specific evidence that would show a material issue of disputed fact. This she failed to do. Summary judgment was appropriately granted.
Judgment affirmed.
Notes
Martin S. Berger, the president of Technosystems Consolidated Corporation, Intromark, Inc., and ISC, testified that Intromark and ISC are “wholly owned subsidiaries” of Technosystems, a Delaware corporation. According to Berger, Intromark and ISC are “corporations organized and operating under the laws of the Commonwealth of Pennsylvania.”
None of these allegations are raised in Howard’s lawsuit.
Pulliam v. Nichols,
Ellerbee v. Interstate Contract Carrier Corp.,
Pulliam, supra,
Spiegel, Inc. v. Odum,
Hester v. Human,
Id.
See Brunswick Hardware Co. v. Bingham,
Clements v. United Equity Corp.,
Hambrick v. B. G. Swing Games Mgmt.,
Howard offered some evidence suggesting that ISC provided submission material about her musical pen to Pentech in January 1996. But even if true, that would have occurred after the musical pen was already being marketed by Pentech.
Tuggle v. Helms,
T & R Custom, Inc. v. Liberty Mut. Ins. Co.,
Gantt v. Bennett,
Brown v. Buffington,
The record contains a consent decree apparently entered in February 1994 in Civil Action No. 93-616, in United States District Court for the Western District of Pennsylvania. In Fed. Trade Comm. v. Invention Submission Corp., Western Invention Submission Corp., Intromark, Inc., Technosystems Consolidated Corp., and Martin S. Berger, individually, these defendants agreed to pay a judgment in the amount of $1,200,000 to the FTC and agreed to furnish certain disclosures to their clientele to avoid making misrepresentations.
Collins v. Byrd,