Moore v. Barge
| Decision Date | 14 October 1993 |
| Docket Number | No. A93A1509,A93A1509 |
| Parties | , RICO Bus.Disp.Guide 8458 MOORE v. BARGE et al. |
| Court | Georgia Court of Appeals |
Hart & McIntyre, John C. McIntyre, Jr., Atlanta, for appellant.
Long, Aldridge & Norman, Phillip A. Bradley, Cathy L. Peterson, Atlanta, for appellees.
In July 1984, Moore was hired by Charter Properties, Inc. (Charter) pursuant to an oral employment agreement of indefinite duration, under which Moore was to be compensated for real estate development work by receiving a salary and an equity interest in certain properties developed by Charter. Charter was wholly owned by Barge, Wagener and Lesley. Pursuant to the employment agreement, Moore obtained an interest as a limited partner in four limited partnership agreements with Barge, Wagener and Lesley on properties which had been developed by Charter. In December 1989, acting as president of Charter, Lesley terminated Moore's employment.
Moore brought this action against Barge, Wagener and Lesley alleging that the defendants: (1) breached the limited partnership agreements by engaging in various misappropriations of funds, which deprived him of his proportionate equity interests in the properties; (2) tortiously interfered with his employment agreement with Charter, including a claim that he was wrongfully terminated; (3) converted his rights and interests in the limited partnerships, and in other Charter development projects; and (4) engaged in activities prohibited by the Georgia RICO Act (OCGA § 16-14-1 et seq.) giving rise to the civil remedies available under OCGA § 16-14-6. Moore appeals from the order of the trial court granting partial summary judgment in favor of the defendants, and dismissing Moore's claims for tortious interference with the employment agreement, wrongful termination, conversion and RICO violations.
1. Moore claims the trial court erred by granting summary judgment against him on his claim that the defendants tortiously interfered with his rights in the employment agreement.
Moore contends that Barge and Wagener wrongfully induced Lesley to terminate his employment. It is undisputed that Moore's employment with Charter was terminable at will. Generally, claims for tortious termination of an employment contract are in two categories: "(1) where there is a definite term of employment and the corporation or employer would be liable for the breach of the employment contract ... (2) where, even though the contract is terminable at will, a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage him, maliciously and unlawfully persuades the employer to breach the contract with the employee." (Citations omitted.) Campbell v. Carroll, 121 Ga.App. 497, 499, 174 S.E.2d 375 (1970). Accordingly, a person whose employment contract is at will has no cause of action for wrongful termination or tortious interference with the contract against one who has an absolute right to terminate that employee. Ga. Power Co. v. Busbin, 242 Ga. 612, 613, 250 S.E.2d 442 (1978). However, even though the employment contract is at will, it is a valuable contract right, which may not be unlawfully interfered with by a third person without such authority. Id.; Troy v. Interfinancial, 171 Ga.App. 763, 766-767, 320 S.E.2d 872 (1984). Since the record shows that Lesley, as president of Charter, had absolute authority to terminate Moore, he cannot be held liable. Moore claims that, despite their ownership interests in Charter, Barge and Wagener were not officers in the corporation, nor did they otherwise have authority to terminate him, therefore they are properly considered as third persons who unlawfully interfered with his employment agreement. Pretermitting this claim, we find no evidence in the record to support Moore's claim that Barge or Wagener improperly induced Lesley to terminate him. Moore's speculation that they probably did so because of their ownership interest in Charter is not sufficient to create a factual issue. Rhodes v. Levitz Furniture Co., 136 Ga.App. 514, 517-518, 221 S.E.2d 687 (1975). 1
Moore also claims that under his employment agreement with Charter he had the right to receive certain equity interests in Charter-developed properties as part of his compensation. He contends the defendants tortiously interfered with this right in two ways: (1) the defendants failed to give him the interests to which he was entitled in certain properties developed by Charter, and (2) on properties in which he obtained a partnership interest, the defendants violated the partnership agreements by allocating partnership funds in a manner which deprived him of his proportionate equity interests in the properties.
Apart from the wrongful termination claim addressed above, these latter claims are under the terminable-at-will employment agreement for enforcement of the original terms of compensation for work performed under the agreement. See E.D. Lacey Mills v. Keith, 183 Ga.App. 357, 361, 359 S.E.2d 148 (1987). Moore brings these tortious interference claims against the individual defendants, one of whom was president of the corporation, and who together are the sole shareholders of the corporation which employed him. A claim for tortious interference with a contract may be brought only when the interference is done by one who is a stranger to the contract. Jefferson-Pilot Communications Co. v. Phoenix City Broadcasting etc., 205 Ga.App. 57, 60, 421 S.E.2d 295 (1992); Lake Tightsqueeze v. Chrysler First Financial etc. Corp., 210 Ga.App. 178, 435 S.E.2d 486 (1993). Accordingly, any action taken by the defendants on behalf of the corporation, Charter, which was obviously not a stranger to the employment contract with Moore, would be shielded by the corporate veil, in the absence of fraud or abuse of the corporate form authorizing Moore to pierce the veil in this case. Caton, supra, 260 Ga. at 205, 391 S.E.2d 107. Although shareholders or officers in a corporation enjoy a limited liability, they may be held liable individually for their own tortious or wrongful acts. Zagoria v. DuBose Enterprises, 163 Ga.App. 880, 886, 296 S.E.2d 353 (1982), rev'd on other grounds, 250 Ga. 844, 302 S.E.2d 674 (1983); Wrigley v. Nottingham, 111 Ga.App. 404, 406, 141 S.E.2d 859, rev'd in part on other grounds, Nottingham v. Wrigley, 221 Ga. 386, 144 S.E.2d 749 (1965). "One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action." Wrigley, 111 Ga.App. at 406, 141 S.E.2d 859.
As part of his compensation under the employment agreement, Moore testified he received an equity interest in four Charter projects, which upon development became owned and managed by limited partnerships, in which he was one of the partners along with the defendants. He claims he was entitled to receive an equity interest in other projects, and that the defendants tortiously interfered with this right. In support of this claim, Moore alleges that the defendants were aware of his right to an interest in properties developed by Charter, and that they had no excuse or justification for interfering with this right. He alleges no specific facts to show how the defendants interfered. The only properties cited by Moore in which he contends he was improperly deprived an interest was a property in Birmingham and the Heritage Walk-Milledgeville property. The record shows that the Birmingham property was acquired by Charter, and, without being developed into a finished project, sold for a profit. Similarly, although preliminary negotiations had occurred on Heritage Walk, the property had not been acquired or developed prior to Moore's termination by Lesley. A dispute later arose over whether under Moore's employment agreement he was entitled to an interest in these types of properties, or whether his interest was limited to properties which were fully developed. These facts may support a claim for breach of the employment agreement, but they are not sufficient to show any tortious misconduct by the defendants. The only other support offered by Moore for this claim was his affidavit opposing summary judgment, which provided nothing more than the same general allegations, the affidavit of Moore's expert accountant, which produced evidence relating to misappropriation of funds in the limited partnerships in which Moore already had an equity interest, and a reference to the depositions of all three defendants, with the only specific reference being to the Birmingham property. There was insufficient evidence to create a question of fact on this claim. Rhine v. Sanders, 100 Ga.App. 68, 110 S.E.2d 128 (1959); Johnson v. Auto/Mend, 183 Ga.App. 311, 359 S.E.2d 10 (1987); Lawton v. Temple-Warren Ford, 203 Ga.App. 222, 223-224, 416 S.E.2d 527 (1992).
Moore also sought to establish that the defendants tortiously interfered with his employment agreement with Charter by breaching the limited partnership agreements to which he and the defendants were parties. The evidence shows that after Charter had finished developing certain properties, Moore and the defendants formed limited partnerships under which Moore received an equity interest in the developed properties as required by his employment agreement with Charter, and the defendants divided up the remaining equity interest in the properties. The limited partnerships were created by separate agreements entered into by Moore and the defendants pursuant to the provisions of the Georgia Uniform Limited Partnership Act for the express purpose of defining the proportionate equity interests of each partner in the developed properties, owning and maintaining the properties, and allocating...
To continue reading
Request your trial
-
Banaitis v. Mitsubishi Bank, Ltd.
...Financial v. 260 Peachtree St., 202 Ga.App. 790, 798, 415 S.E.2d 677, cert. den., 202 Ga.App. 907 (1992); see also Moore v. Barge, 210 Ga.App. 552, 436 S.E.2d 746 (1993). We need not decide whether we nevertheless should adopt that rule now, because even if we did, it would not apply in thi......
-
Chemtall, Inc. v. Citi-Chem, Inc.
...jurisdiction, much less substantive liability); see also doc. # 64 (plaintiffs' response brief) at 3-4 (citing Moore v. Barge, 210 Ga.App. 552, 554, 436 S.E.2d 746 (1993)). This veil-piercing concept drives the Court's consideration of King's jurisdictional motion (as well as his bankruptcy......
-
Howerton v. Harbin Clinic, LLC
...a valuable contract right, which may not be unlawfully interfered with by a third person without such authority.”Moore v. Barge, 210 Ga.App. 552, 553(1), 436 S.E.2d 746 (1993), citing Ga. Power Co. v. Busbin, 242 Ga. 612, 613(2), 250 S.E.2d 442 (1978). Under Georgia law, therefore, an emplo......
-
Hyperdynamics Corp. v. Southridge Capital Mgmt. LLC
...and punctuation omitted.) Mitchell v. Gilwil Group, 261 Ga.App. 882, 884(1), 583 S.E.2d 911 (2003). See also Moore v. Barge, 210 Ga.App. 552, 554(1), 436 S.E.2d 746 (1993). 3. Sims also controlled Wellington, the offshore fund that invested in the Hyperdynamics transaction. Wellington, howe......
-
Torts - Cynthia Trimboli Adams and Charles R. Adams, Iii
...L. REV. 403, 405-06 (1993). 24. 206 Ga. App. at 767, 426 S.E.2d at 605. 25. Id. at 768, 426 S.E.2d at 605. Accord, Moore v. Barge, 210 Ga. App. 552, 436 S.E.2d 746 (1993) (conversion does not lie for failure to pay money due under a contract, only for specific bills or notes to which plaint......