Matson v. Noble Inv. Group, LLC

• Decision Date: 29 November 2007
• Docket Number: No. A07A1216.,A07A1216.
• Parties: MATSON v. NOBLE INVESTMENT GROUP, LLC et al.
• Court: Georgia Court of Appeals

288 Ga. App. 650

655 S.E.2d 275

288 Ga.App. 650

MATSON v. NOBLE INVESTMENT GROUP, LLC et al.

No. A07A1216.

Court of Appeals of Georgia.

November 29, 2007.

Hilley & Frieder, Ronald L. Hilley, Tucker and Michael Todd Hammond, for appellant.

Hawkins & Parnell, Michael J. Goldman, Atlanta, Wayne Wright Dempsey Jr., Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellee.

ADAMS, Judge.

Candace Matson appeals from the trial court's grant of summary judgment to the defendants in her personal injury lawsuit against Noble Investment Group, LLC, Noble Investment Group Georgia, LLC, (sometimes referred to collectively as the "Noble defendants"), Hampton Inns, Inc., Hilton Hotels Corporation and Promus Hotels, Inc. We affirm.

Matson initiated this action after she was sexually assaulted and set on fire during an attempted robbery in the early hours of October 22, 2003,¹ while on her job as a night clerk at the Peachtree City Hampton Inn. At night, the hotel lobby normally is accessible only by way of a key card system or by the night clerk's remote unlocking of the door. She asserts that the perpetrator was able to gain entry to the lobby because the front entrance door would not lock properly and she could not control his access. Matson suffered physical injuries and sought psychological counseling as a result of the attack.

Matson brought suit against various entities that she asserts were affiliated with the Peachtree City Hampton Inn or were otherwise responsible for the faulty operation of the sliding doors. She states that at the time of the attack, an entity named Hersha Management operated the hotel, after purchasing it on April 21, 2003, and that entity was her employer. An attachment to the Franchise License Agreement indicates that the licensee, or franchisee, for the hotel was New England Management Company by Hersha Hospitality, L.P.² However, Matson did not name any Hersha-related entity in her lawsuit.

Promus, a subsidiary of Hilton, is the named licensor, or franchisor, on the attachment to the franchise agreement, which agreement governed the operation of the hotel as a Hampton Inn. The agreement indicates that Promus is a subsidiary of Hilton, which authorized Promus to grant franchises to operate under the brand name Hampton Inn. The franchise agreement provides that a system exists for the operation of the hotel under the licensed brand name of Hampton Inn (the "System"). Matson asserts that Hilton and Hampton Inn maintain "ownership" of the System, which includes "standards, specifications and policies for construction, furnishing, operation, appearance and service of the Hotel." But the franchise agreement provides that Promus, as franchisor, has the authority to designate elements included in the System, and to modify, alter or delete these elements at its "sole discretion."

Attached to the franchise agreement is a document indicating that "Dan Phipps"³ performed an inspection of the hotel on April 10, 2003 and prepared a "Hilton Hotels Corporation Product Improvement Report" (the "Report"), a kind of punch list setting out renovations and maintenance needed on the hotel property. The recommended modifications included the installation of automatic electric sliding entry doors, and the form indicates that these modifications were required to be completed by October 17, 2003, one week before Matson was attacked. Attachment B-1 to the agreement contains the same deadline for renovations, although the form indicates that the deadline may be changed by written permission of Promus at its discretion. Attachment A to the franchise agreement, entitled "Performance Conditions: Change of Ownership" indicates that Promus, as franchisor, retained right of approval for any architect, designer, general contractor or major subcontractors hired to complete the renovation work indicated on the Report.

Matson contends based upon this documentation and the April 10 inspection that Hilton, Hampton Inn and Promus (herein sometimes referred to collectively as the "Hotel defendants") undertook the duty to ensure that the sliding doors were properly installed, but failed to fulfill that duty. She asserts that these companies controlled the time, manner and method of the installation of the faulty doors and this control established liability on their part for the injuries she sustained when her attacker was able to gain entry to the hotel lobby.

Hilton, Hampton Inn and Promus moved for summary judgment, arguing that all claims against them arose under the franchise agreement, and under that agreement the franchisee, as owner and operator of the hotel, was responsible for maintaining the physical property. Hilton and Hampton Inn also assert that they were neither owner, operator nor the franchisor of the hotel and thus could not be liable. Promus, which was the franchisor, argued that because it was neither the owner nor the operator of the hotel, it could not be liable.

In its order addressing various motions filed by the parties, the trial court determined that Matson had failed to properly add Promus as a party to the litigation and that it should be dismissed. The court also denied Matson's motion to add Promus to the lawsuit. The trial court further granted summary judgment to Hilton and Hampton Inns, finding that neither company was vicariously liable for the acts of a franchisee, citing McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 435 S.E.2d 51 (1993). The trial court found that Hilton and Hampton were not franchisors and Promus, who was the franchisor, had not obligated itself by its acts or conduct to pay for the acts of the franchisee. The trial court noted that "the parties have expressly agreed to limit their relationship to that of a principal and independent contractor, thereby entitling the Defendant Hotels to judgment as a matter of law."

Matson also appeals the grant of summary judgment to the Noble defendants. Those defendants asserted, and the trial court found, that other entities actually owned the hotel and that the two named Noble defendants have never been affiliated with it. The trial court also determined that, in any event, the Noble defendants could not be liable for an assault that occurred six months after any affiliation with the hotel would have ended.

Before turning to the merits of Matson's liability claims under the franchise agreement, we will first address her enumerations specifically addressing whether the Noble defendants and Promus were properly named as defendants in her lawsuit.

1. Matson argues that the trial court erred in granting summary judgment to the Noble defendants because these defendants are part of a common enterprise of companies that shared ownership of the hotel until April 21, 2003. She also takes issue with the trial court's order denying her motion to add other entities in the alleged enterprise as defendants. She asserts that these defendants bear some liability for the October 22, 2003 assault, which occurred six months after Hersha became the franchisee.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c)." Cope v. Enterprise Rent-A-Car, 250 Ga.App. 648, 649, 551 S.E.2d 841 (2001). In order to establish her claim for negligence, Matson would have to prove, inter alia, that the Noble defendants had "[a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm" and "a breach of this standard." (Citation omitted.) Id.

The Noble defendants contend, however, that they never had any affiliation with the hotel, and thus could have no duty toward Matson and no liability for her injuries. Mark K. Rafuse, who at the pertinent time was Chief Financial Officer of both Noble defendants, provided an affidavit stating that neither Noble Investment Group nor Noble Investment Group Georgia had any affiliation with the Peachtree City Hampton Inn, although both entities were in the business of managing hotels.

Instead, at various times prior to April 21, 2003, Rafuse avers that three other "Noble" entities had some level of ownership or operational or managerial responsibilities in connection with the hotel. Noble Investment-RMD, LLC actually owned and operated the hotel until April 20, 2000 when it sold the hotel to an unrelated business, 5944 Peachtree Associates, LLP. Another distinct Noble business, Noble Investments—Leaseback South, LLC ("Noble Leaseback"), entered into a three-year lease of the premises at that time in order to operate the hotel. At the same time, yet another entity, Noble Investment Group, Ltd. n/k/a Noble Shah Investment Group, Ltd. ("Noble Shah"), entered into an agreement with Noble Leaseback to manage the hotel.

In April 2003, Noble Leaseback elected not to renew the lease, at which time Hersha, which Rafuse asserts is unrelated to any of the Noble entities, took over all operations and management of the hotel. Noble Leaseback's management agreement with Noble Shah terminated at the same time. Thus, Rafuse concludes that after April 20, 2000, no Noble-related entity had ownership of the hotel, and after April 20, 2003, no Noble-related entity had control over any daily operations or management of the facility.

Although Matson proffers information in her brief to allegedly demonstrate that all of the Noble entities, whether named in this lawsuit or not, are a part of a common enterprise that has "close ties" to Hersha, she provides no record citations to support these assertions. And this Court is not obligated to search the record on her behalf. Austin v. Moreland, 288 Ga.App. 270, 653 S.E.2d 347 (2007); Court of Appeals Rule 25(c)(3)(i). As the trial court indicated, therefore, Matson has offered no evidence to refute Rafuse's affidavit.

Thus, the only evidence shows that all the Noble entities severed ties with the hotel at least six...