Everett v. Goodloe

• Decision Date: 15 July 2004
• Docket Number: No. A04A0297.,A04A0297.
• Citation: 268 Ga. App. 536,602 S.E.2d 284
• Parties: EVERETT v. GOODLOE et al.
• Court: Georgia Court of Appeals

602 S.E.2d 284

268 Ga. App. 536

EVERETT v. GOODLOE et al.

No. A04A0297.

Court of Appeals of Georgia.

July 15, 2004.

H. Mixson, Bondurant, Lynn Adam, Bondurant, Lisa Strauss, Bondurant, Mixson & Elmore, LLP, Atlanta, for Appellant.

Richard Gerakitis, Rebecca Williams, Ashley Hager, Troutman Sanders, LLP, Atlanta, for Appellee.

MIKELL, Judge.

Donna Everett appeals the trial court's grant of summary judgment to her former employer, John D. Goodloe, Jr., and companies previously owned by Goodloe, Abaco Inn Limited and Noble Island Properties Limited ("Noble Island"), on her claims of assault, battery, intentional infliction of emotional distress, invasion of privacy, and for quantum meruit. We affirm.

On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A defendant meets this burden 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 plaintiff's case.... All of the other disputes of fact are rendered immaterial.¹

The record in this case shows that from 1989 to 2000, Goodloe, a licensed real estate broker, owned a hotel in the Bahamas called the Abaco Inn. The hotel was owned by Abaco Inn Limited, which was a wholly owned subsidiary of Noble Island. Goodloe owned all of the shares of Noble Island. Appellant was employed as Goodloe's part-time personal secretary from January 1998, to October 1999. Prior to becoming Goodloe's employee, Everett dated Goodloe during the summer and fall of 1997. In October 1997, Goodloe ended the relationship and asked Everett not to call him. He asserted that he loved Everett, but, because they shared no intimacy, he could not continue the relationship. Goodloe did request that Everett keep him abreast of the progress of her book, in which he had invested $25,000. On December 3, 1997, Everett e-mailed Goodloe that she was searching for a part-time job, and he hired her as a personal secretary.

During Everett's employment with Goodloe, she maintains that she was sexually harassed, both mentally and physically, after refusing Goodloe's sexual advances. Also during that time, Everett maintains that she found a buyer for the Abaco Inn and that Goodloe agreed to pay her a fee for her assistance, which he failed to do in retaliation for her refusal to have a more intimate relationship with him. Everett filed this action, alleging assault, battery, invasion of privacy, and intentional infliction of emotional distress and asserting a claim for quantum meruit. Conversely, appellees contend that this lawsuit arose because Everett was not paid a commission from the sale of Noble Island, and not because Goodloe sexually harassed Everett. Goodloe filed a motion for summary judgment as to each of Everett's claims, which was granted. Everett appeals the grant of Goodloe's motion. The detailed facts pertinent to each of Everett's enumerated errors are discussed seriatim below.

1. Everett argues that the trial court erred by granting summary judgment to Goodloe on her claim for unjust enrichment.

The facts relevant to this enumerated error show that Goodloe began negotiating with prospective purchasers of the Abaco Inn in 1999. Goodloe averred that in October 1999, he reached an agreement with John Head to sell the Abaco Inn and the adjacent lot that was owned by Noble Island.

Everett deposed that six or seven months before Goodloe's contact with Head in October, she told Goodloe that she knew someone, whom she later identified as Head, who was interested in purchasing the hotel; that she had already given Head the "proforma" on the hotel when she told Goodloe about her prospective purchaser; that Goodloe told her that she "would be amply rewarded" if she found a buyer; and that at their initial conversation, she and Goodloe did not discuss the percentage that she would receive as her fee. After Head told her the price was excessive, she told Goodloe that she no longer had a prospective buyer, without ever having identified Head.

After a hurricane damaged the hotel, Goodloe reduced his asking price. Everett deposed that she told him that she wanted to approach her prospective buyer again with the reduced price; that she gave Head the new "proforma" with the reduced price; and that once she knew Head was interested, she told Goodloe about him, and again asked how she would be rewarded. Again, Goodloe told her she would be amply rewarded but would not give her a figure. Everett deposed that she sent a letter to Head, formally introducing him to Goodloe, but that when negotiations began, her involvement in the transaction ceased. Everett did not enter a written agreement with Goodloe regarding her fee, but deposed that she thought her services were worth five to ten percent of the purchase price.

Goodloe admitted that Everett told him that she wanted to be compensated for finding Head and that he planned to give her some form of compensation, though he did not feel she was entitled to it. When asked how he classified the amount he was willing to pay Everett, he called it a bonus. Goodloe specifically stated that he never considered paying Everett a commission, because she was not a licensed real estate agent. Goodloe decided not to pay Everett a bonus after she filed the lawsuit.

In opposition to Goodloe's motion, Everett filed the unnotarized affidavit of John Head.² Head averred that he saw Everett at a social gathering and asked about the hotel; that she told him the previous purchasers were not going to close the deal because the hotel had been damaged during a hurricane and that Goodloe would probably reduce his purchase price; that she promised to contact him after she talked to Goodloe about the hotel; that within a few days, on September 23, 1999, he received a letter from Everett via facsimile, along with the letter from Goodloe to the previous prospective buyers and the "proforma"; that the letter provided Goodloe's home telephone number and address and encouraged Head to review the materials quickly; and that Everett met with him personally to review the materials and, in his presence, called Goodloe to arrange a meeting between them.

In October 1999, Goodloe and Head reached an agreement whereby Goodloe would sell Head the Abaco Inn, including the land, hotel buildings, furnishings, equipment, and business, and the adjacent lot that was owned by Noble Island for $2,750,000. They initially planned to structure the deal as a real estate asset purchase but ultimately entered a stock purchase agreement. Goodloe sold Head 100 percent of the stock of Noble Island. The deed to the real property remained unchanged.

(a) Everett argues that she was entitled to recover her fee because as a one-time referral agent, she was not governed by the real estate laws prohibiting unlicensed persons from engaging in acts related to the sale of real estate. It is correct that OCGA § 43-40-29(a)(9) provides that Chapter 40, which governs the conduct of real estate brokers and salespersons, does not apply to

[a]ny person acting as a referral agent who is not involved in the actual negotiations, execution of documents, collection of rent, management of property, or other related activity which involves more than the mere referral of one person to another and who: (A) Does not receive a fee for such referral from the party being referred; (B) Does not charge an advance fee; and (C) Does not act as a referral agent in more than three transactions per year.

However, Everett did not raise this argument below. Instead, she argued that a real estate license is not required to collect a fee where a transaction involves a sale of stock, rather than a sale of land. Further, Everett contended that the fee she sought was simply a finder's fee. Everett made no reference in the trial court to her argument on appeal that she was exempt from the real estate statutes because she was a referral agent.

In responding to a motion for summary judgment, plaintiffs must "produce whatever viable theory of recovery they might have or run the risk of an adjudication on the merits of their case."³

[O]ur appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court.... Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court. If the rule were otherwise, a party opposing a motion for summary judgment need not raise any legal issue, spend the next year thinking up and researching additional issues for the appellate court to address, and require the opposing party to address those issues within the narrow time frame of appellate practice rules.⁴

Therefore, because Everett did not raise this argument below, she cannot raise it now on appeal.

Pursuant to OCGA § 43-40-1(2)(A), "any person who, for another, and who, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another ... assists in procuring prospects for the ... sale [of] any real estate" is considered to be a broker, and therefore, is subject to the laws applicable thereto. OCGA § 43-40-30(a) provides that such a person is deemed a licensee and violates the law by acting without a license. In Unifund Gen. v. Orr,⁵ an action to recover a real estate broker's fee, this Court held that a corporation that contracted to find a purchaser in exchange for a $150,000 fee was precluded from bringing an action to recover the fee because it was not a licensed real estate broker, despite the...