Feist v. Dirr

• Decision Date: 13 December 2004
• Docket Number: No. A05A0463.,A05A0463.
• Citation: 609 S.E.2d 111,271 Ga. App. 169
• Parties: FEIST et al. v. DIRR et al.
• Court: Georgia Court of Appeals

271 Ga. App. 169

609 S.E.2d 111

271 Ga.App. 169

FEIST et al. v. DIRR et al.

No. A05A0463.

Court of Appeals of Georgia.

December 13, 2004.

Cynthia Call, Athens, Robert Greene, Florence, KY, for Appellant.

Thurbert Baker, Attorney General, Edward Tolley, Cook, Noell, Tolley, Bates & Michael, Athens, J. Lunsford, Jeffrey Morgan, Troutman Sanders, LLP, Atlanta, G. Banick, Assistant Attorney General, for Appellees.

ELDRIDGE, Judge.

Richard and Mary Beth Feist sued Michael A. Dirr, the Board of Regents of the University System of Georgia, and Mark Griffith, d/b/a Griffith Propagation Nursery for breach of contract, fraud, conversion, negligent bailment, and deceptive trade practices. Dirr answered and moved for judgment on the pleadings, which the trial court, after notice converted into a motion for summary judgment on grounds of sovereign immunity and the Georgia Tort Claims Act. The trial court granted the motion. Finding no error, we affirm.

All of the Feists' allegations are in pleadings, and their appellate brief cites to the record of pleadings and not evidence in the trial court supporting such allegations on each essential element of each claim.

In the summer of 1994, Dirr, a professor of horticulture at the University of Georgia, visited the Feists' nursery in Burlington, Kentucky, and inspected the Feists' dwarf Iteas and Forthergilla major plants, which the Feists had developed. Feist allowed Dirr to take cuttings from selected plants and to conduct tests to determine the plants' uniform reproducibility, distinctive characteristics, and the performance of the plants in the Southeast; these tests were to be done at the University of Georgia in Dirr's woody plant trials. Dirr grew a large number of plants from the cuttings and reported his findings to Feist. Dirr published an article about these new dwarf Iteas which stated that these plants could be patented and that millions of such plants could be sold. In a letter by Dirr to Feist, Dirr asked: "Will you name them? I do not want to do anything with them until you give the go-ahead." The letter makes no explanation of what Dirr was referring to or what he meant.

Mrs. Feist gave an affidavit which states "[t]hat she was present on or about July 8, 1995[sic], when Michael A. Dirr visited her home and nursery in Burlington, Kentucky"; "[t]hat during said visit she listened to and participated in a conversation with Mr. Michael A. Dirr and Richard Feist, and the substance of the conversation was a plan to patent the dwarf Itea clones"; "[l]ater, during the visit, she had a private conversation with Michael A. Dirr. In this conversation she asked Michael A. Dirr if he needed any money to pay the legal and other expenses that would be incurred in obtaining patents on the dwarf Itea clones"; "Michael A. Dirr replied to her inquiry by saying that the university would pay the expenses incurred in obtaining patents on the plants and that the university would be reimbursed from future royalty payments from the sale of the plants"; "that her understanding from Michael A. Dirr's reference to the university in his answer was that he meant the University of Georgia at Athens, Georgia"; and that "[s]till later, during the visit, Michael A. Dirr remarked that the royalties we would receive from the sale of the plants would pay for the college education of all of our children." This is the closest that the evidence in the record comes to showing any oral agreement, but it is too vague, ambiguous, and uncertain for enforcement.

Feist alleges that the Little Henry was ready to be introduced on the market, and Feist patented this plant; Spring Meadow Nursery was to grow it. Feist alleges that he and Dirr made an agreement to share the royalties to support Dirr's program.

Feist alleges that Dirr gave some of the plants that came from cuttings from Feist's plants to Griffith and other growers. He alleged that one plant was Little Henry and that another was Feisterform, which he alleges was later called Merlot. Feist alleges that the two dwarf Iteas, Little Henry and Feisterform, are similar but have different characteristics.

As part of his employment as a professor of horticulture, Dirr took the cuttings from Feist for trials and evaluation, but Feist also gave cuttings to Don Shadow and Mike Hayman, so there was no confidentiality or nondisclosure agreements for anyone. When Dirr received the cuttings from Feist without any nondisclosure or confidentiality agreements, they had no agreement regarding the development of such cuttings.

Mark Griffith was a former student of Dirr's, but they had no personal business together; Dirr used Griffith as a conduit for increasing the numbers of new materials and moving plants to the larger growers, which plants were offered to any nursery growers or amateurs. Dirr gave these plants to anyone who wanted them, including Griffith. Of the plants whose cuttings were taken by Dirr, Wight Nurseries eventually grew Little Henry, and Griffith Propagation Nursery grew Feist Container Form.

Dirr testified that in 1994, as a professor of horticulture, he took between 11 and 17 cuttings from Feist, rooted them for trials, and shared them with others, as well as with Griffith, to evaluate them for commercial development. All this was done within the scope of his employment by the University of Georgia. Dirr, personally, received no monetary gain from the commercial sale of either Itea.

Dr. Douglas A. Bailey, head of the Department of Horticulture, testified that, as Dirr's supervisor, Dirr's conduct was within the scope of his employment. Dr. Gary A. Couvillon, a professor of horticulture at the University of Georgia, testified that, as immediate supervisor, Dirr had acted within the scope of his employment.

1. Feist contends that the trial court erred in granting summary judgment.

(a) The evidence in the record fails to support an essential element of each theory of...