Appellee, Barclays Bank PLC d/b/a Barclays Wholesale Consumer Services (“Barclays”), was granted summary judgment on November 27, 1996, on the multiple theories of liability set forth in the permissive joinder of claims and parties in a complaint by each of the appellants, Simpson Consulting, Inc.; Link Financial Consulting, Inc.; Financial Software Consultants; Comoro Services, Inc.; Monkiewicz Services, Inc.; Logan Computer Associates, Inc.; Datagen, Inc.; SDF & Associates, Inc.; Goforth Consulting, Inc.; Bandy Consulting, Inc.; North East Software Solutions, Inc.; and JHR Consultants, Inc.; each of which had separate and independent claims that *649 were virtually identical except as to the individual damages. Appellants timely filed its notice of appeal, as amended.
The complaint asserts the following theories of liability: (1) fraud; (2) breach of contract (written/oral); (3) federal RICO; (4) Georgia RICO; (5) promissory estoppel; and (6) third-party beneficiary liability.
The complaint fails to set forth the circumstances constituting fraud, which “shall be stated with particularity.” OCGA § 9-11-9 (b). Appellants contend that statements made by appellee’s agents to independent contractors working as its purchasing agents were relied upon by each of the appellants to its detriment and were false, although such statements were never made directly to any appellant or in its presence. None of the appellants entered into written contracts with appellee, even though the work was to be performed over more than 12 months; the parties made no oral contract. However, appellants contend that their agreement was binding, notwithstanding the lack of specificity, definiteness, or formality, due to custom and practice in the trade.
Appellants each entered into separate independent contractor agreements and confidentiality agreements, not with Barclays, but with independent contractors, Scott International Banc Systems, Inc. (“SIBS”) and Manley & Associates, Inc. (“M & A”). Barclays had a contract with M & A but not with SIBS; M & A subcontracted such work with SIBS. Patrick E. Manley (“Manley”) was president of M & A as well as an officer and shareholder of SIBS. Eric Scott (“Scott”) was a vice president of Barclays as well as owner and president of SIBS; Barclays’ management and Scott’s superiors were unaware of the existence of SIBS; that Scott was president of SIBS; or that SIBS had a contract with M & A to do Barclays work. Such dealings between M & A and SIBS, and Scott’s secret relationship and business with each while employed by Barclays, violated Barclays’ employment and operations policies. Manley, on behalf of M & A, paid to Scott substantial sums, $15,000 and $60,000, which Scott deposited into his checking account.
Although Scott insisted that each appellant become a separate corporate entity and appellants as corporate entities dealt solely with the independent contractors, M & A and SIBS at all times and never with appellee, appellants assert that each appellant has a direct action against appellee.
Each appellant asserted special damages for unpaid work performed. Appellants also assert that each is entitled to damages for holding itself available for possible future work, but do not state with enforceable particularity the terms, rates, and conditions for such future work. Appellants invoiced the independent contractors for the work done and received checks drawn on the account of SIBS for the *650 invoiced amounts. The checks that appellants received from SIBS were returned for insufficient funds.
Appellants’ only enumeration of error is that the trial court erred in granting summary judgment because material issues of fact as to each theory of liability exist for jury determination. We do not agree.
In the case sub judice, appellee’s motion for summary judgment pierced appellants’ pleadings on at least one essential element of each theory of liability, thereby requiring appellants to come forward with evidence to create material issues of fact. It must also be remembered that appellants have separate and individual causes of action that may be similar, or even identical, but not a common cause of action or a class action; thus, each appellant as to their respective claim, although treated collectively, must individually show that there exist material issues of fact as to their claim. Appellants collectively and individually have failed to meet this shifted burden of proof.
Lau’s Corp. v. Haskins,
1. Fraud.
OCGA § 51-6-1 codifies an action for common law fraud. The essential elements of fraud and deceit are that: (1) the defendant made the representation; (2) at the time he made the representation, he knew that the representation was false; (3) he made the representation with the intention and purpose of deceiving the plaintiff; (4) the plaintiff reasonably relied upon such representation; and (5) the plaintiff sustained loss and damages as the proximate result of the representation.
Eckerd’s Columbia v. Moore,
If there is a promise made without mutuality of obligation so that the promise is not enforceable as a contract, then the failure to perform is not actionable as fraud; further, mere breach of contract is not fraud.
Williams v. Southland Corp.,
In the case sub judice, construing appellants’ allegations of fraud most favorably, there exists no representation made directly to an appellant that was false and that was made with the intent to deceive the appellant into relying upon the representation to appellants’ detriment. All that exists in the case sub judice is a business proposal that fell apart prior to it becoming formalized into a legally binding contract.
Appellants misplace reliance upon
Robert & Co. Assoc. v. Rhodes-Haverty Partnership,
The foregoing cases are a hybrid “fraud” action, based upon pro
*652
fessional negligence, not scienter. Such standard applies under very limited factual circumstances that would give a right of action for professional malpractice, but for the absence .of “privity.” In the case sub judice, appellee was neither a professional paid to render the oral statement nor was the statement anything other than future expectations, intentions, or opinions as to future circumstances. Therefore, the case sub judice does not come within the ambit of such case law either legally or factually. See
Badische Corp. v. Caylor,
2. (a) Breach of Contract — Written.
A written contract must either be an agreement executed by both parties or a series of writings which have been signed by both parties and which show an offer, acceptance, and mutually binding promises as consideration and contain the necessary terms of the contract. OCGA § 13-3-1;
Bd. of Regents v. Tyson,
(b) Breach of Contract — Oral.
Under OCGA § 13-5-30 (5), a contract that will take longer than one year to perform must be in writing; the alleged oral contract for services to begin in the future and to continue for more than one year comes within the statute of frauds and is void.
Katz v. Custom Spray Prods.,
The alleged agreements fail to become binding contracts because of the uncertainty and lack of agreed upon terms. Appellants sought to create such terms by resort to prior custom; however, such prior course of dealing was with an independent contractor so that there never was a meeting of the minds between the appellants and appellee as to terms or privity. See
Liberty Nat. Bank &c. Co. v. Diamond,
3. Federal RICO.
The Organized Crime Act of October 15, 1970, R L. 91-452, Title IX, § 904, 84 Stat. 947, created the Racketeer Influenced & Corrupt Organizations Act (RICO), 18 USCS §§ 1961-1968. Concurrent jurisdiction exists for a federal RICO action to be brought in a state court. See
Tafflin v. Levitt,
In the case sub judice, appellants have failed to come forward with proof that shows the required predicate acts and the pattern of criminal conduct. Appellants contend that there was common law fraud, mail fraud, and wire fraud as predicate acts. The common law fraud was disposed of in Division 1, supra. Wire and mail fraud are similar in their essential elements, and these crimes differ from common law fraud in that there is no necessity of reliance. The common elements of each are that: (1) the defendant either directly, or as an accessory must have a scheme or artifice to defraud; (2) the defendant, or an associate within the scheme, used the wire or mail or caused the wire or mail to be used; and (3) the purpose of using the wire or mail was to execute the scheme or in furtherance of the scheme. McLaughlin v. Anderson, 962 F2d 187, 191 (2nd Cir. 1992); Fleischhauer v. Feltner, 879 F2d 1290, 1297-1298 (6th Cir. 1989); Armco Indus. Credit Corp. v. SLT Warehouse Co., 782 F2d 475, 480-481 (5th Cir. 1986); see also Taffet v. Southern Co., supra at 1487, n. 6. Appellants have failed to make out an issue of material fact as to *654 each such element.
4. Georgia RICO.
The United States Supreme Court has held that the standard of proof in a category of cases “serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision,” so that the intermediate standard of proof, clear and convincing evidence, will be used in those cases affecting fundamental rights, stigma, and property rights.
Addington v. Texas,
The General Assembly, in passing Ga. L. 1980, p. 405, § 1 et seq., OCGA § 16-14-1 et seq. did not specify the standard of proof in a civil RICO action under OCGA § 16-14-6 (c). Treble damages under OCGA § 16-14-6 (c), as well as punitive damages and attorney fees, would constitute a severe economic sanction of a penal nature upon any RICO defendant and would attach a stigma of quasi-criminal liability.
In passing Ga. L. 1987, p. 915, § 5, OCGA § 51-12-5.1 (b) and (c), dealing with punitive damages, the General Assembly expressed Georgia’s public policy that punitive damages in instances involving aggravating circumstances, i.e., intentional torts or entire want of care, which would raise the presumption of conscious indifference to the consequences, are to be proven by the standard of proof of “clear and convincing” evidence in order to penalize, punish, or deter such tortious conduct.
Mack Trucks v. Conkle,
5. Promissory Estoppel.
Ga. L. 1981, p. 876, § 2, OCGA § 13-3-44 (a), codified an equitable action for promissory estoppel. See
20/20 Vision Center v. Hudgens,
While the alleged contracts were under New York law, promissory estoppel is a Georgia equity doctrine, so that Georgia case law applies, as a matter of conflict of law.
Nickell v. IAG Fed. Credit Union,
supra at 519. The public policy of Georgia is expressed by OCGA § 34-7-1, which makes employment terminable at will absent a written contract -for a specified time period of employment. See
Land v. Delta Air Lines,
6. Third-Party Beneficiary.
Under OCGA § 9-2-20 (b), a third-party beneficiary to a contract may sue in his own name to enforce the contract; however, the contract must expressly specify and identify the person as a third-party beneficiary to the contract.
Miree v. United States,
The third-party beneficiary must be the intended beneficiary of the contract; the mere fact that a third party would benefit incidentally from the performance of the contract is not alone sufficient to give such person standing to sue on the contract.
Whitley v. Bryant,
The agreement between appellee and its independent contractors was made for the benefit of the named parties and any benefit which flowed to appellants individually under such agreement was merely incidental to such agreements. Thus, appellants were not the third-party beneficiary of any agreement made by appellee.
Judgment affirmed.
Notes
Santosky v. Kramer,
In Sedima, S. P. R. L. v. Imrex Co., supra at 491, the Court indicated that a civil, rather than the criminal, standard of proof would be appropriate, and probably the preponderance of the evidence standard. But this opinion did not decide whether to use the “preponderance of evidence” or “clear and convincing” evidence as the appropriate standard.
United States v. Ragonese, 607 FSupp. 649, 650-651 (S.D. Fla. 1985), aff’d without opinion, 784 F2d 403 (11th Cir. 1986); United States v. Horak, 633 FSupp. 190, 199-200 (N.D. Ill. 1986), aff’d in part and vacated in part on other grounds, 833 F2d 1235, 1241-1242 (7th Cir. 1987).
Liquid Air Corp. v. Rogers,
834 F2d 1297, 1302-1303 (7th Cir. 1987);
Fleischhauer v. Feltner,
supra;
Wilcox v. First Interstate Bank of Oregon,
815 F2d 522 (9th Cir. 1987);
Cullen v. Margiotta,
811 F2d 698, 731 (2nd Cir. 1987);
Armco Indus. Credit Corp. v. SLT Warehouse Co.,
supra at 480-481;
United States v. Local 560 of the Intl. Brotherhood &c.,
780 F2d 267, 279-281 (3rd Cir. 1985);
United States v. Cappetto,
502 F2d 1351, 1357 (7th Cir. 1974). The reasoning was that the RICO Act borrowed language from the Clayton Act, which also imposes triple damages and which applies a preponderance of the evidence standard. However, in regard to a different issue under RICO, the United States Supreme Court held that the use of language from the Clayton Act did not import into RICO all the baggage of interpretation of the Clayton Act.
Tafflin v. Levitt,
supra. A second rationale was that, at common law, fraud required the standard of proof of “clear and convincing” evidence, but the Supreme Court had not followed such intermediate standard in security fraud cases under the Securities & Exchange Act of 1934, § 10 (b).
Herman & MacLean v. Huddleston,
Pacific Mut. Life Ins. Co. v. Haslip,
OCGA §§ 7-1-812; 7-1-813; 9-11-12 (b) (4), (5) and (d); 10-1-15; 10-1-787; 12-8-23.1 (a) (3) (B); 15-11-2; 15-11-18; 15-11-33; 15-11-41; 15-11-81; 15-11-86; 19-7-1; 19-7-4; 19-7-5; 19-8-10; 19-8-23; 19-9-1; 23-1-8; 24-9-47 (t) (2); 29-5-3 (a); 29-5-6 (e) (4); 29-5-8 (b) (1), (e); 29-5-11 (a); 30-5-5 (d); 37-3-64; 37-4-2 (7); 37-4-42; 37-7-1; 43-3-13; 44-5-80; 44-12-262 (a); 47-3-122; 53-1-5 (d); 53-2-3 (2) (A) (v); 53-2-4 (b) (1) (E); 53-12-92 (c); 53-12-153.
See
Blackburn v. Blackburn,