Laura J. McLane — a licensed real estate agent — brought an action against her former employer, ,The Atlanta Market Center Management
After filing separate answers, the broker, the property owners and Equitable filed a joint motion for summary judgment. McLane filed a motion for partial summary judgment. The matters of record underlying these opposing motions, when viewed from the perspective prescribed in
Lau’s Corp. v. Haskins,
On October 20, 1987, the property owners granted the broker exclusive rights to manage and lease the Inforum and agreed to pay the broker a percentage of all lease revenues. Three years later, the broker stipulated that this exclusive agency agreement will expire on October 11, 1992, and that its right “to receive any compensation or other remuneration . . . shall expire upon the date of [the exclusive agency agreement’s] termination or expiration.”
In January 1989, the broker hired McLane “[t]o help develop [a] marketing program that attracted technology companies into the [Inforum].” Over two years later, the broker offered McLane a position as a leasing agent or “leasing director.” McLane agreed to change jobs based upon an understanding that her “sole responsibility [would be] to lease the building and to bring in tenants. . . .” She also relied on the broker’s promise to pay her a salary plus $1.50 for every square foot she leased, including additional square footage leased by any Inforum tenant which the broker assigned to McLane. The only conditions to McLane’s commission rights were execution of a lease or lease amendment and the tenant’s occupancy of the leased space. 1
In early 1991, Jim Kranzusch, the broker’s General Manager and Executive Vice President, employed the broker’s entire leasing staff to attract ACOG to the Inforum, including McLane. McLane occasionally “met as a group [with this leasing team] to strategize on how to bring and attract ACOG into the facility [and she] assisted in the actual presentation
In assisting ACOG develop its sixth floor expansion option, McLane “helped [ACOG representatives] from everything to meeting with their architects and identifying needs to helping [ACOG’s Administrative Services Manager, Gladys L. Andrews,] do . . . the conceptual drawing [which helped] determine how much space [ACOG] needed.” McLane’s efforts resulted in five successive lease amendments which provided ACOG with additional space and yielded McLane about $32,000 in commissions. McLane’s efforts were stifled, however, when ACOG asked for more office space.
McLane received a letter from Gladys L. Andrews — dated July 22, 1992 — indicating ACOG’s desire to execute a final sixth floor lease amendment on September 18,1992. Andrews informed McLane that ACOG anticipated occupancy of this space on November 25, 1992; that ACOG’s long-term space needs exceeded the lease’s sixth floor expansion options and that ACOG projected a need for an additional 90,000 square feet of office space. Andrews then asked McLane to “provide [her] with rate options to expand on the fifth floor, the Apparel Mart, and/or surrounding Marts.”
McLane informed the broker’s new General Manager and Executive Vice President, Brian D. Hogg, and Equitable’s Director of Asset Management, William Randolph Forth, about ACOG’s expansion requests and asked for their advice. Forth responded by bypassing the broker and McLane and opening direct negotiations with ACOG via a letter dated August 12,1992. Forth then notified the broker (on August 25, 1992) that its exclusive right to manage and lease the Inforum will terminate when it expires on October 31, 1992, and, on September 30, 1992, Equitable instructed the broker and McLane not to contact ACOG regarding further lease expansion. Equitable’s “Investment Officer” and “Senior Vice President,” Grant Grimes, ultimately notified the broker, in a letter dated October 19, 1992, that a commission would not be paid for ACOG’s sixth lease amendment if the deal was not closed before October 31, 1992.
On October 31, 1992, the broker terminated McLane’s employment and offered her a severance package which required her to give up any commission claim for ACOG’s most recent lease expansion request. McLane refused this offer and pressed the broker to honor its promise to pay her a commission for the pending ACOG expansion deal. The broker’s Vice President of Human Resources, Lawrence B. Gardner, responded by posting the following letter, dated December 10, 1992, to McLane: “As I see it, this is a rather simple issue. We, as much as you, are interested in receiving commissions for any ACOG expansions. As stated in [an earlier] letter to you[,] we will endeavor to add ACOG to the list of “INFORUM Associates Acknowledged List of Lease Prospects by AMCMC at INFORUM.” If we receive any commissions from Equitable from [this list], now or in the future, we will pay you your proportionate share of those commissions. . . . It is certainly our intention to continue to pursue this issue with Equitable and resolve it.”
On February 18, 1993, ACOG executed its sixth lease amendment for additional space at the Inforum. This amendment provided ACOG with 51,412 additional square feet on the Inforum’s sixth floor and 113,000 square feet on the Inforum’s fifth floor. On the day ACOG executed this lease amendment, the broker’s Executive Vice President and General Manager, Brian D. Hogg, transmitted the following memorandum to another employee of the broker: “Rob, I suggest we hold Laura [McLane’s commission] check [on a lease transaction unrelated to the ACOG lease transaction] until we negotiate a settlement with her on the ACOG transaction.”
The trial court granted the joint motion for summary judgment filed by the broker, the property owners and Equitable and denied McLane’s motion for partial summary judgment. This appeal followed. Held:
1. McLane contends the trial court erred in granting the broker’s motion for summary judgment and denying her motion for summary judgment with regard to the commission she allegedly earned for ACOG’s sixth lease expansion.
“The first requirement of the law relative to contracts is that there must be a meeting of the minds of the parties, and mutuality
(Simpson & Harper v. Sanders &
Jenkins,
While it is true that “an employee cannot sue to enforce future performance of a terminable-at-will employment agreement[,] an employee may sue on an oral contract for employment terminable at will Tor the amount of compensation due [her], based upon services actually performed by [her] up to the time of [her] discharge, and not for damages or for compensation for services not performed or for any breach of contract.’
Brazzeal v. Commercial Cas. Ins. Co.,
“Generally, ‘(w)here by a breach of contract a party is injured, [she] is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence.’ OCGA § 13-6-5;
Central Nat. Ins. Co.
cfee.
v. Dixon,
2. McLane next contends the trial court erred in granting the broker’s motion for summary judgment with regard to her severance pay claim. We do not agree.
“While a contract will not be held unenforceable for indefiniteness because its performance is, as to particular details, left open to subsequent agreement of the parties, see
Advance Security v. Superior Surgical &c. Co.,
3. The trial court did not err in granting summary judgment in favor of the broker, the property owners and Equitable on McLane’s
conversion claims because such an action for conversion “lies only for the withholding of ‘certain bills or coins’ and does not lie on account of a mere failure to pay money due under a contract.
Faircloth v. A. L. Williams & Assoc.,
4. McLane contends the trial court erred in granting summary judgment on her breach of fiduciary duty claims, arguing that a jury should decide whether the broker breached its fiduciary responsibility — as McLane’s employer and real estate broker — by failing to fully compensate her and protect her interests while negotiating its own commission dispute with Equitable. McLane advances the law of civil conspiracy to impute liability to Equitable for this alleged breach of fiduciary duty.
(a)
The Broker’s Fiduciary Duties.
We find that the broker, as a real estate professional and employer, had a fiduciary obligation to compensate McLane and to protect her during the parties’ agency relationship. “The relationship of principal and agent is fiduciary in character, and imposes upon the parties the duties of exercising toward each other the utmost good faith. Civil Code, § 4030 [now OCGA § 23-2-58].”
Williams v. Moore-Gaunt Co.,
The broker’s Vice President of Human Resources, Lawrence B. Gardner, assured McLane, in a letter dated December 10, 1992, that the broker would “continue to pursue [its claim for a commission for ACOG’s sixth lease expansion] with Equitable and resolve it.” Gardner also assured McLane that, “[i]f we receive any commissions from Equitable . . ., now or in the future, we will pay you your proportionate share of those commissions.” Less than three weeks later, how ever, the broker settled its commission dispute with the property owners without regard for McLane’s commission rights. And on the day ACOG executed its sixth lease amendment, the broker’s Executive Vice President and General Manager, Brian D. Hogg, suggested holding “Laura [McLane’s commission] check [on a lease transaction unrelated to the ACOG lease transaction] until we negotiate a settlement with her on the ACOG; transaction.” This proof, and the undisputed fact that the broker has not paid McLane’s commission for ACOG’s sixth lease amendment, is sufficient to authorize a jury’s finding that the broker breached its fiduciary duties to fully compensate McLane and protect her commission rights during negotiations with Equitable.
Because civil conspiracy is by its very nature a secret endeavor, and thus rarely open to direct proof, concert of action, amounting to conspiracy, is best suited for jury resolution and may be proved by either direct or circumstantial evidence. In other words, it is unnecessary to prove an express compact among the alleged conspirators. A jury may infer a civil conspiracy from the nature of the alleged wrongdoers’ acts, the relation between them, their mutual interests in the matter, and other circumstances.
First Fed. Savings Bank v. Hart,
5. McLane contends the trial court erred in granting summary judgment to Equitable with regard to her claim that Equitable interfered with her employment contract and frustrated her ability to earn a commission for ACOG’s sixth lease amendment.
“Tortious interference with contract requires proof of: (1) an independent wrongful act of interference by a stranger to the contract; (2) malicious intent to cause injury; and (3) resulting damage. See
Hylton v. American Assn. &c.,
Although Equitable may have had a right to negotiate directly with ACOG,
Stone v. Reinhard,
6. The trial court erred in granting the broker’s and Equitable’s motion for summary judgment with regard to McLane’s OCGA § 13-6-11 claim for attorney fees and expenses of litigation. The trial court also erred in granting the broker’s and Equitable’s motion for summary judgment with regard to McLane’s punitive damages claim. These questions are generally for the factfinder, not the trial court upon summary adjudication.
Rossee Oil Co. v. BellSouth Telecommunications,
Judgment affirmed in part and reversed in part.
Appendix.
“[APPELLEES’ ATTORNEY:] In all the time that you were employed by AMC, did you ever become aware of any bonus or commission payments made to leasing agents of AMC in which AMC, in turn, did not receive compensation from Equitable or from the Inforum Associates which was the owner of the building? [LAURA J. McLANE:] I’m not familiar with any. Q. Did Brian [Hogg] ever tell you that he thought your right to any bonus or commission on the ACOG lease was independent of AMC’s recovery of its bonus or com
mission from Equitable? A. Did he ever tell me if it was independent? Q. Yes. Did it depend on AMC being compensated? A. I don’t believe so. Q. So you are saying that he never told you either way, either it was or was not dependent on AMC being compensated by Equitable? A. No. His position was always that the monies were owed to me and he took the stance that the Market Center owed me the monies from our initial conversations. Q. Didn’t he tell you that he was going to do his best to get the money from Equitable and pay you if he got it? A. To the best of my recollection that theory came from the letters, and Brian and I discussed those. I don’t recall Brian presenting that concept. Q. The way you understood
Notes
The appellees cite page 618 of the record in support of the following assertion: “Because these leasing director bonus commissions were derivative of the payments [the broker] received from [the property owner], neither McLane nor any other leasing agent ever received a commission payment unless and until [the broker] received a corresponding payment from [the property owner].” This statement, however, is not supported by page 618 of the record. This area of the record is an excerpt from Laura J. McLane’s deposition indicating McLane’s perception that her right to a commission was neither derivative of nor dependent upon the broker’s commission rights. We include the cited portion of McLane’s deposition testimony, which pertinently begins on page 618 of the appellate record, as an Appendix to this opinion.
In the factual summary on page 7 of appellees’ brief, appellees assert the following: “McLane had no role in initially bringing ACOG into the Inforum as a tenant, rather, AMC assigned McLane the ACOG account after the ACOG Lease was executed.” This statement, however, is not only misaligned with McLane’s deposition testimony (which we quote), it is refuted on the very page of the appellate record cited by appellees, i.e., page 624. Perhaps appellees’ statement of fact is attributable to a misunderstanding of the applicable summary judgment standard. “The applicable summary judgment standard is that of
Lau’s Corp. v. Haskins,
[supra]. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.
Moore v. Goldome Credit Corp.,
This aspect of McLane’s tortious interference claim appears to be the foundation of
McLane’s conspiracy theory against Equitable. See
U3S Corp. of America v. Parker,