Scott v. CUSHMAN & WAKEFIELD OF GEORGIA

• Decision Date: 17 April 2001
• Docket Number: No. A01A0719.,A01A0719.
• Court: Georgia Court of Appeals
• Parties: SCOTT v. CUSHMAN & WAKEFIELD OF GEORGIA, INC.

547 S.E.2d 794

249 Ga. App. 264

SCOTT v. CUSHMAN & WAKEFIELD OF GEORGIA, INC.

No. A01A0719.

Court of Appeals of Georgia.

April 17, 2001.

Charles H. Ivy, Atlanta, for appellant.

Grizzard, Simons & Martin, Theodore N. Stapleton, Atlanta, for appellee.

ELLINGTON, Judge.

We granted Hugh H. Scott, Jr. an interlocutory appeal to review whether the trial court erred in denying his motion for partial summary judgment on Cushman & Wakefield of Georgia, Inc.'s claim for real estate commissions. For the reasons which follow, we find that Cushman & Wakefield lacked standing to bring this action and Scott is entitled to partial summary judgment. Consequently, we reverse the trial court's order.¹

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Birnbrey, Minsk & Minsk, LLC v. Yirga, 244 Ga.App. 726, 535 S.E.2d 792 (2000).

Viewed in the light favorable to Cushman & Wakefield, the evidence showed the following: In 1989, Scott entered into an exclusive real estate listing agreement with Royal Le-Page Real Estate Services of Atlanta, a Georgia corporation ("Royal Georgia"), to list a commercial property he owned. The listing agreement provided that if Royal Georgia procured a tenant, it would be entitled to a specified commission for the term of the lease. The listing agreement further provided that if the tenant exercised an option to renew or extend the lease or to lease additional space, Scott would pay the commission on the extended period or additional space. The evidence is undisputed that Royal Georgia procured a tenant for Scott's property for a seven-year term beginning March 1, 1991, and that the tenant extended the lease and added space in amendments executed in 1994, 1995, and 1996.

Cushman & Wakefield of Georgia, Inc., a Georgia corporation ("Cushman Georgia"), alleging it was the successor in interest to Royal Georgia, sued Scott for commissions allegedly owed under the listing agreement. Scott contends he is entitled to summary judgment under three alternative theories: (1) the potentially perpetual commission obligation is unenforceable as against public policy; (2) Royal Georgia's right to commissions is not assignable; and (3) Royal Georgia did not assign its right to commissions to Cushman Georgia. Pretermitting whether the commission provision of the listing agreement is unenforceable as against public policy and whether the right to commissions is assignable, we conclude Cushman Georgia failed to present evidence that it was the successor in interest to Royal Georgia, an essential element of its right to recover under the listing agreement between Scott and Royal Georgia.

The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. Decatur North Assoc. v. Builders Glass, 180 Ga.App. 862, 863(1), 350 S.E.2d 795 (1986); see OCGA § 9-2-20(a). Cushman Georgia invoked a recognized exception to the requirement of immediate contractual privity between the parties to an action, specifically, that a party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. Decatur North Assoc., 180 Ga.App. at 863(1), 350 S.E.2d 795; Chancellor v. Gateway Lincoln-Mercury, 233 Ga. App. 38, 41(1), 502 S.E.2d 799 (1998) (choses in action, including accounts receivable, may be assigned); Paulsen Street Investors v. EBCO Gen....