Tattersall Club Corp. v. White, No. A98A0365.

• Court: Georgia Court of Appeals
• Writing for the Court: BEASLEY.
• Citation: 501 S.E.2d 851,232 Ga. App. 307
• Parties: TATTERSALL CLUB CORPORATION v. WHITE.
• Docket Number: No. A98A0365.
• Decision Date: 17 April 1998

501 S.E.2d 851
232 Ga. App. 307

TATTERSALL CLUB CORPORATION
v.
WHITE

No. A98A0365.

Court of Appeals of Georgia.

April 17, 1998.

501 S.E.2d 852

Weener & Mason, Philip H. Weener, William P. Mason, Atlanta, for appellant

Bird & Associates, Wendell R. Bird, Jeffrey L. Pombert, Atlanta, for appellee.

BEASLEY, Judge.

A jury awarded John White compensatory damages and attorney fees against his former employer, Tattersall Club Corporation, because it terminated White in the middle of a one-year written employment contract. The jury also found against Tattersall on its counterclaim that it had overpaid White. Tattersall claims the court erred in denying its motion for judgment notwithstanding the verdict and its motions for new trial, and in entering judgment on the attorney [232 Ga. App. 308] fees claim.

1. The first three enumerations of error focus on the denial of the j.n.o.v. motion and the motions for new trial. In reviewing such, "this Court must determine whether there is any evidence to support the jury's verdict.... We must construe the evidence in the light most favorable to the prevailing party to determine whether the elements of [the cause of action] have been proven."¹

(a) Tattersall contends Robert Kurtz, its general manager and vice president of operations, lacked authority to execute the written employment contract with White. The jury resolved this hotly-disputed issue against Tattersall.

"The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him...."² Often referred to as actual or

501 S.E.2d 853

apparent authority, this is a question for the factfinder.³ "The principal shall be bound by all the acts of his agent within the scope of his authority...."⁴

Evidence supported a finding of actual authority. Kurtz testified Tattersall gave him complete authority to hire and fire employees, including the authority to execute employment contracts. Tattersall hired Kurtz primarily for the purpose of hiring employees to reverse the corporation's failing country club business. Even Tattersall's president Rob Barnett admitted Kurtz had been hired to build a team and to develop and effectuate a business plan, and that hiring White was part of that plan. Kurtz's predecessor in office had executed similar employment contracts, and Kurtz also signed other written contracts, including employment contracts, on behalf of Tattersall. Even managers under him had authority to sign written contracts.

Kurtz as general manager also had apparent authority to execute the contract on Tattersall's behalf. He was on-site and ran the day-to-day operations of the club.⁵ Tattersall's president Barnett, who was generally not present at the club, helped Kurtz interview White for the position but allowed Kurtz to be the primary negotiator. General managers in the industry normally have authority to hire and fire employees. For several months Barnett was aware that [232 Ga. App. 309] Kurtz had hired White and did not question it. Barnett even introduced White to the corporation's board as Tattersall's assistant general manager. He did not tell White or Kurtz that Kurtz lacked authority to sign an employment contract for Tattersall. Kurtz specifically told White he had such.

Nevertheless, Tattersall argues that its articles of incorporation and bylaws allowed only Barnett to execute such agreements. These corporate documents are not in the record and were not discussed by any witness. Appellant must show error by the record, not by unsupported assertions in its brief.⁶

Tattersall claims Kurtz marked through Barnett's name and title appearing under the signature line of the agreement and replaced it with his own title, which conclusively demonstrated both Kurtz and White knew Kurtz lacked authority to execute the agreement. Evidence showed the placement of Barnett's name was simply a mistake by White's lawyer in drafting the agreement; both White and Kurtz believed Kurtz had authority to sign.

Tattersall argues the evidence indisputably showed Kurtz and White acted in collusion in creating the agreement. Because both men denied any such collusion, the evidence did not demand the wished-for finding.

Tattersall contends Kurtz, not it, should be held liable on the agreement, but Kurtz signed as "Vice President, Operations, Tattersall Club Corp." and would not be personally liable. Besides, the contract stated it was between Tattersall and White.⁷

(b) Tattersall contends the agreement's indefinite and vague description of White's duties rendered it unenforceable. The agreement provided: "Club hereby employs White as its Membership Coordinator for the development of new memberships at the Horseshoe Bend Country Club located at 2100 Steeple Chase Drive, Roswell, Georgia 30075, which is owned and operated by Club. White's duties shall consist of the following: (a) To market Horseshoe Bend in an attempt to increase the number of new members; (b) To provide a pro forma statement which projects the annual revenues and expenses associated with the development of new memberships; and (c) To render advice and opinions to Club management regarding the development of new memberships and the maintenance of existing memberships.

501 S.E.2d 854

White shall have the autonomy to work such hours and at such places as he deems best suited to the pursuit of his business hereunder."

[232 Ga. App. 310] The phrase "market Horseshoe Bend" is not "absolutely meaningless." "Market" means to sell or to expose for sale.⁸ The explanatory clause, "in an attempt to increase the number of new members," immediately follows the phrase in the contract. The agreement obligates Tattersall to facilitate White's marketing efforts by assisting in performing research, placing advertisements, preparing and mailing letters and fliers, and conducting telephone surveys. It also requires Tattersall to reimburse White for dining and entertainment expenses in recruiting potential new members.

The cases cited by Tattersall all concerned employment contracts that were either completely silent as to the services to be performed⁹ or only described the duties as "such as shall be assigned to him."¹⁰ In addition to marketing, Tattersall ignores White's duties to provide a pro forma statement and to render advice and opinions, both of which duties he performed.

Phrases similar to "market Horseshoe Bend" have been held sufficiently definite. McLean v. Continental Wingate Co.¹¹ held that the phrase "promote the interest" of the employer in overseeing operations and developing new properties and the term "net proceeds" were not too vague. McLean emphasized, "it is well-settled that the policy of the law is against the destruction of contracts on the ground of uncertainty if it is possible in the light of the circumstances under which the contract was made to determine the reasonable intention of the parties."¹² If ambiguous, "[t]he meaning ascribed to technical or business terms used in such contracts may be supplied by parol."¹³ Moreover, "part performance of the contract is sufficient to validate an otherwise vague and objectionable document, provided that the part performance itself relates to the contested clause."¹⁴

White testified he was to market Horseshoe Bend by selling memberships and increasing revenues. He promoted memberships through business contacts developed at the Atlanta Chamber of [232 Ga. App. 311] Commerce, the North...