Appellant brought suit against appellee, Denver/Robins Venture Partners, Ltd. (“Denver/Robins”), and Michael Myrick for injuries suffered when he was ejected from a lounge in the Radisson Inn Warner Robins by two bouncers. The lounge was owned by Denver/ Robins which operated the Radisson Inn under a franchise agreement *741 with appellee. The bouncers were employed by Denver/Robins. Appellee moved the trial court fоr summary judgment on the theory that under the franchise agreement, which defined the relationship between appellee and Denver/Robins, there is no vicarious liability on the part of the franchisor for the alleged torts of the franchisee’s employees. The trial court granted appellee’s motion for summary judgment, and this appeal followed.
Appellant contends that genuine issues of matеrial fact remain concerning the vicarious liability of appellee resulting from its right to control the daily operations of the Radisson Inn Warner Robins under the franchise agreement and from the extеnt to which appellee held the property out to the public as its own. “ ‘ “To prevail on a motion for summary judgment . . . , a defendant-movant is required to pierce the allegations of the comрlaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)” (Cit.)’ [Cit.]”
Gilbert v. Van Ord,
1. Appellant argues that the franchise agreement and the operating manual, which set forth in explicit detail the operational standards common to all Radisson franchises and which liberally permit appellee to inspect the Radisson Inn Warner Robins, are evidence of appellee’s control over the method and manner of the hotel’s daily operations and create a principal-agent relationship between appellee and Denver/Robins. Appellant contends that the following specific provisions from the franchise agreement and operating manual illustrate appellee’s control over the operation of the hotel: (1) that Denver/Robins feature the name “Radisson” and other distinguishing service marks in appropriate locations so that the hotel is readily identified by the public as a part of the Radisson system; (2) that the promotion and advertising of the hotel conform to the form and manner set forth in the operating manual and any other design approved by appellee; (3) that Denver/Robins obtain prior written approval (which shall not be unreasonably withheld) as to the aрpointment of the general manager; (4) that employees who fail to comply with the hotel’s stated rules be given an opportunity to correct their behavior before termination; and (5) that Denver/Robins use fair employment practices. In addition, appellant acknowledges that the franchise agreement requires Denver/Robins to indicate its independent ownership and relationship tо appellee as a licensee under certain circum *742 stances but argues that the only actual notice of this relationship to the public was a small plaque near the front desk of the hоtel.
At the outset we recognize that “[a] franchise contract under which one operates a type of business on a royalty basis does not create an agency or a partnership relationship.”
Arthur Murray, Inc. v. Smith,
There is no evidence that appellee has represented that it would be liable for Denver/Robins obligations, and “[w]here the question of agency vel non rests upon a written document and inferences deduced therefrom, as in the instant case, the issue presented is a question of law for the trial court since construction of written contracts is exclusively for the judge. [Cits.] . . . Under Georgia law, ‘(t)he relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.’ [Cit.] The historiсal test applied by Georgia courts has been ‘whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to requirе results in conformity to the contract.’ [Cit.]”
McMullan v. Ga. Girl Fashions,
Having reviewed the franchise agreement and the operating manual in their entirety, we do not find that an agency relationship was created. The franchise agreement sets forth the strict conditions under which the “Radisson” name can be used by Denver/Robins, and the operаting manual outlines specific operating standards, not to permit appellee to direct or control the time, manner and method of performance of the daily operations of the franchise but as a means of achieving a certain level of quality and uniformity within the Radisson system. The agreement authorizes appellee to conduct periodic inspections of the hotel and an annual performance review to ensure
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that Denver/Robins is “maintaining] the high standards and reputation of the System, the goodwill of the public, compliance with the provisions of [the Franchise] Agreement and the Operating Manual . . .” for the same reason. In addition, the franchise agreement provides as follows: “Licensee is an independent contractor. Neither party shall be considеred an agent, legal representative, partner, subsidiary, joint venturer or employee of the other. . . . Licensee, will not use the name ‘Radisson’ or any similar name, in its corporate, partnership or trade name.” Moreover, neither document suggests that appellee retain or exercise supervisory control over those persons hired by Denver/Robins to provide security in the loungе. See
Frey v. Pepsico, Inc.,
2. Alternatively, appellant contends that the evidence demonstrates that appellee held out the hotel as its own and that appellant rеlied on such representations such that Denver/Robins is appellee’s apparent or ostensible agent. “In order to recover under that theory, however, a plaintiff must present evidencе that: ‘(1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury.’ [Cit.]”
Holmes v. Univ. Health Svc.,
Based on the foregoing, we find that appellee and Denver/Robins did not have a principal/agent relationship by virtue of the franchise agreement or the conduct of the parties. Holiday Inns, supra; Holmes, supra.
Judgment affirmed.