OASIS EMPORIUM I v. CROSSROADS CONSULTING

• Decision Date: 15 May 2002
• Docket Number: No. A02A0345.,A02A0345.
• Citation: 255 Ga. App. 375,565 S.E.2d 573
• Parties: OASIS GOODTIME EMPORIUM I, INC v. CROSSROADS CONSULTING GROUP, LLC.
• Court: Georgia Court of Appeals

565 S.E.2d 573

255 Ga. App. 375

OASIS GOODTIME EMPORIUM I, INC v.CROSSROADS CONSULTING GROUP, LLC.

No. A02A0345.

Court of Appeals of Georgia.

May 15, 2002.

Richard A. Gordon, Atlanta, Cammi R. Jones, for appellant.

Ellis, Funk, Goldberg, Labovitz & Dokson, Robert N. Dokson, David A. Webster, for appellee.

BLACKBURN, Chief Judge.

In this breach of contract action, Oasis Goodtime Emporium I, Inc.("Oasis") appeals from the trial court's grant of summary judgment to Crossroads Consulting Group, LLC("CCG").Oasis contends that material issues of disputed fact necessitate resolution by a jury.Notwithstanding this claim, we affirm because Oasis failed to refute CCG's evidence that established Oasis' breach and the amount of damages due to CCG as a consequence of that breach.

On appeal from a trial court's grant of summary judgment, this Court conducts a de novo review of the evidence.Entertainment Sales Co. v. SNK, Inc.¹On summary judgment, after the movant makes a prima facie showing of its entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence.Kelly v. Pierce Roofing Co.²To do so, the respondent must set forth specific facts showing the existence of a genuine issue of disputed fact.OCGA § 9-11-56(e).This Oasis failed to do.

When viewed in the light most favorable to Oasis as the respondent, the record shows that Guy Ron Holcomb, while company president and sole shareholder of Oasis, an adult entertainment business, decided to undertake a project that would result in the creation of an adult Internet system for Oasis.Holcomb hired Lauren M. Hines as the project manager of the website.Oasis planned to offer to its subscribers or customers adult theme videos and "live" chat room programs using performers at its club.But, during the development phase of the project, problems were encountered in fashioning the interactive component and in creating a workable firewall security system to prevent unauthorized access.

Oasis turned to CCG for assistance, and in late April 1998, Hines approved a work order for CCG to provide consulting services that included "discovery to establish a system plan for the Oasis Harem website."On May 22, 1998, Holcomb signed another work order for additional consulting services by CCG including "to deliver a working prototype of a customer chat system, demonstrating the integration of live video and chatting in a web browser."The work order projected that between May 20, 1998, and July 15, 1998, Oasis would require consulting services estimated at $23,625.On May 28, 1998, Hines approved an additional payment of $11,943 to CCG for an audit and firewall installation.

According to Hines, due to unforeseen problems largely attributable to system configuration and software incompatibility, the project required more time than anticipated.By the end of the summer, Oasis had not paid the first 20 invoices issued by CCG, and CCG was threatening to cease work unless it was paid.As a result, in October 1998, Holcomb, Hines, and CCG's senior manager, Mark Munson, and Tom Dixon, computer project manager and consultant at CCG, met to discuss the situation.At the meeting, they reached a new agreement in which CCG would continue to work without demanding full payment of the arrearage and Oasis would make regular payments to CCG of $5,000 per week.

Hines testified that on January 28, 1999, she personally told Holcomb that CCG had completed the job and the website was ready to operate.She testified that the plan was to start up the website on Valentine's Day, after Oasis engaged in certain promotional activity for it.According to Hines, delivery and final payment were scheduled to occur on February 14, 1999.Holcomb, however, suffered an untimely death on February 2, as the result of a motor vehicle accident.

It is undisputed that Barbara Holcomb, who succeeded Holcomb as the sole shareholder in Oasis, decided to terminate the website project.Hines testified without dispute that Barbara Holcomb did not accept her offer to demonstrate the functioning of the site.Marion Wayne Stewart, Oasis' accountant, testified that he participated in a decision made at the February 1999 meeting to abandon the website project.Stewart testified that due to the delay in its implementation, the concept was no longer viable since competitors were already on line with similar ventures.Stewart testified that even had the website been completely ready, he would have recommended against it because it was no longer a good business decision.Stewart testified that this opinion was "[s]hared by Barbara Holcomb."After the February 1999 meeting, Hines' services at Oasis were terminated.

CCG submitted billing to Oasis for a total in the amount of $119,144.66, that included 1,125 hours of consultant time and material charges of $7,997.80.Of that total, Oasis paid $24,096.08.After efforts to obtain the unpaid balance proved fruitless, CCG sued Oasis for breach of contract.

CCG sought summary judgment.CCG supported its motion with work orders, billing documents, affidavits, and depositions.In addition to Hines, John Polascik and Dixon also testified that CCG had completed a working prototype by January 1999.Polascik, the primary developer at CCG of the site, provided detailed testimony about the development and features of the site.Polascik testified that by late January 1999, "CCG had completed all of the programming on the Oasis Web Site Project, i.e., for the chat room, live video and e-commerce (or payment acceptance) features of the Oasis Web Site, and that the Oasis Web Site was ready to `go live'(i.e., to activate the Oasis Web Site on the Internet) subject only to receiving certain information from Oasis."Polascik also testified that as part of his duties, he, along with Hines, conducted a series of tests in late January, the results of which showed that "the system was fully workable and ready to go live."According to Polascik, "Lauren and I planned to re-run the testing demonstration and launch the system into production shortly thereafter for Mr. Holcomb, but he died before we could run that follow-up demonstration for him."Dixon also worked on the project.Dixon, who observed the January 1999 testing, also avowed that the system was "fully workable and ready to go live."

To attempt to refute this evidence and to create a disputed issue as to whether the website had, in fact, been functional, Oasis offered the affidavit of Chris Martin, a computer consultant and friend of Brian Holcomb, son of Ron and Barbara Holcomb.Martin testified that at the family's request he was in attendance at the meeting in February 1999.According to Martin, immediately after the meeting, Brian Holcomb and he had examined and tested the website.Martin testified that the website was not operational.According to Martin, "[t]he web site would not allow interaction, meaning there was no way to pay with a credit card, or view any of the videos, or exchange information in the chat room."Martin testified that the website did not work but served only as an advertisement informing would-be users that the website was under construction.Martin voiced his opinion that the website "was not complete, workable or ready to `go live' in February 1999 at the time it was terminated."

After conducting a hearing and reviewing the evidence, the trial court entered...