Brevard, Inc. v. Broadwater Management, Inc.

508 S.E.2d 747, 235 Ga. App. 496, 98 Fulton County D. Rep. 4134, 1998 Ga. App. LEXIS 1412
CourtCourt of Appeals of Georgia
DecidedNovember 3, 1998
DocketA98A1069
StatusPublished
Cited by3 cases

This text of 508 S.E.2d 747 (Brevard, Inc. v. Broadwater Management, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brevard, Inc. v. Broadwater Management, Inc., 508 S.E.2d 747, 235 Ga. App. 496, 98 Fulton County D. Rep. 4134, 1998 Ga. App. LEXIS 1412 (Ga. Ct. App. 1998).

Opinion

Smith, Judge.

Brevard, Inc. appeals from the trial court’s grant of a directed verdict to Broadwater Management, Inc., d/b/a Ramada Hotel and Conference Center-Dunwoody in an action brought by Brevard alleging fraud and breach of a contract to provide hotel rooms for Brevard’s clients. We conclude that because the evidence was in conflict as to a material issue and the evidence did not demand a verdict in favor of Broadwater, a directed verdict was not warranted as to one of Brevard’s claims. We therefore reverse the judgment below as to that claim and remand the case for trial.

The evidence showed that Brevard, Inc., a consultant to the U. S. Drug Enforcement Administration (“DEA”) and the U. S. Immigration and Naturalization Service (“INS”), entered into several “facilities agreements” with Broadwater Management, Inc. to provide rooms and services at a Dunwoody hotel during the 1996 Olympic Games for agents of the two government agencies. Broadwater, a consolidator that obtains hotel accommodations, had an agreement with the owner of the hotel to arrange accommodations. Brevard also executed “booking” agreements with Broadwater, under which it agreed to pay for the rooms. Brevard was paid, in turn, by its customer agencies.

Brevard alleged in its complaint that in entering into the contracts, it relied on certain representations made by Broadwater that the hotel would be renovated and would become affiliated with the Sheraton chain prior to the occupancy date. When the renovations were not completed and the hotel was not Sheraton-affiliated at the time of occupancy by the agencies, Brevard withheld a portion of the negotiated fee and brought suit against Broadwater, alleging breach [497]*497of contract, fraud, and violation of the Fair Business Practices Act.1 Broadwater answered and counterclaimed for funds owed by Brevard under the “booking” agreements. The trial court granted Broadwater’s motion for summary judgment on its counterclaim and on Brevard’s claim under the Fair Business Practices Act. The trial court concluded, however, that material issues of fact remained as to Brevard’s claims of breach of contract and fraud and that these claims must be tried.

At the trial of these claims, before a different trial judge and a jury, Broadwater moved for a directed verdict after the close of Brevard’s case-in-chief. This motion was granted as to both counts of Brevard’s complaint. The jury then heard evidence as to Broadwater’s claim for prejudgment interest and its claim for attorney fees under OCGA § 13-6-11. It returned a verdict for Broadwater for $10,000 prejudgment interest and in favor of Brevard on the claim for attorney fees.

1. Brevard contends the trial court erred in granting Broad-water’s motion for directed verdict.

(a) At trial, Broadwater addressed its motion to both remaining counts of Brevard’s complaint. Broadwater argued at trial that Brevard could not recover on the fraud count because the representations made applied to future events. See Bradley v. British Fitting Group, 221 Ga. App. 621, 624 (4) (472 SE2d 146) (1996). But on appeal, Brevard addresses only the grant of a directed verdict with respect to the breach of contract claim. Brevard’s enumeration does not encompass the fraud claim, nor does its argument address this claim. We therefore deem waived any argument that a directed verdict was erroneously granted as to the claim of fraud. See Court of Appeals Rule 27 (c) (2); Billy Cain Ford v. Kaminski, 230 Ga. App. 598, 602 (4) (496 SE2d 521) (1998).

(b) We agree with Brevard, however, that a directed verdict was improper as to its claim for breach of contract. In our review of a trial court’s grant of a motion for directed verdict, we review the evidence and resolve doubts and ambiguities in favor of the party opposing the motion. A directed verdict is proper only when no conflict exists in the evidence as to material issues, and the evidence introduced, together with all reasonable deductions therefrom, demands a certain verdict. Plane v. Uniforce MIS Svcs., 232 Ga. App. 757, 758 (503 SE2d 621) (1998).

Broadwater’s motion for a directed verdict as to this claim was made upon the ground that Brevard entered into the facilities agree[498]*498ments as agent for its clients, the DEA and the INS. OCGA § 10-6-82 provides, with certain exceptions set forth in the statute, that “[generally, an agent shall have no right of action on contracts made for his principal.” It follows, therefore, that if Brevard executed the contract as a disclosed agent for its customers, it had no right to sue on the contract.2 The question thus becomes one of the capacity in which Brevard executed the contracts in issue, and the contracts themselves are internally inconsistent with respect to that issue. The very first paragraph of each facilities agreement identifies the parties as “Broadwater Management Inc., a Nevada corporation (‘Consolidator’) and Brevard, Incorporated as Agents on behalf of [either the DEA or the U.S. INS, Investigation Division] (‘Guest’) (Consolidator and Guest are collectively referred to as the ‘Parties’ and sometimes individually a ‘Party’).” The words “on behalf of” indicate that Brevard did not enter into the contracts as a principal, but instead as a disclosed agent for its clients. But on the last page of each contract, signature lines are provided for “Consolidator: Broadwater Management, Inc., a Nevada Corporation, By: _ Name: Mehdi Khimji, Title: President,” and “Guest: Brevard, Incorporated, By: _Name: Nancy Hallberg, Title: President.”

This apparent internal contradiction creates an ambiguity in the contract with regard to whether Brevard executed the contracts in its own name or as agent for its clients. Contrary to the arguments of both parties, this ambiguity is not resolved by the placement of the word “guest” in relation to either Brevard or its client in the first paragraph of the contracts; we can conclude nothing about the intention of the parties from the placement of this word. Under these contracts, the “guest” could be Brevard, the federal agency on behalf of whom Brevard was acting, or Brevard as agent for the federal agency. Because the evidence did not demand a verdict in favor of Broadwater, the trial court erred in removing this issue from the jury’s consideration.

2. Brevard maintains that the positions taken by Broadwater as to the counterclaim (on which summary judgment was previously granted in favor of Broadwater) and the main claim were “substantively inconsistent.” Brevard argues that in pressing its counterclaim, Broadwater necessarily took the position that Brevard was a party to the contracts, while in defending against the main claim Broadwater asserted that Brevard did not have the right to sue on the contracts because it was not the real party in interest but executed the contracts merely as an agent for its clients. Brevard asserts that the position taken by Broadwater in its counterclaim worked a [499]*499“judicial estoppel” barring Broadwater from, asserting that Brevard was not the principal party to the agreements.

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Bluebook (online)
508 S.E.2d 747, 235 Ga. App. 496, 98 Fulton County D. Rep. 4134, 1998 Ga. App. LEXIS 1412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brevard-inc-v-broadwater-management-inc-gactapp-1998.