Witty v. McNeal Agency, Inc.

• Decision Date: 10 August 1999
• Docket Number: No. A99A0907.,A99A0907.
• Citation: 521 S.E.2d 619,239 Ga. App. 554
• Parties: WITTY et al. v. McNEAL AGENCY, INC. et al.
• Court: Georgia Court of Appeals

521 S.E.2d 619

239 Ga. App. 554

WITTY et al. v.McNEAL AGENCY, INC. et al.

No. A99A0907.

Court of Appeals of Georgia.

August 10, 1999.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Macon, Sutherland, Asbill & Brennan, Louise B. Duffy, Atlanta, for appellants.

Gambrell & Stolz, Irwin W. Stolz, Jr., Robert G. Brazier, Ronald C. Melcher, Seaton D. Purdom, Atlanta, for appellees.ELDRIDGE, Judge.

In 1988, Jack Witty, plaintiff-appellant("Witty"), went to work for defendant-appelleeMcNeal-Jansson Financial Services, Inc.("JFSI").Eric Jansson, defendant-appellee("Jansson"), was one of the stockholders and manager.

Upon being employed as a stockbroker, Witty signed an employment contract that was terminable at will by either party by delivering written notice of termination two weeks prior to the termination date.The purpose was to give JFSI two weeks within which to contact its clients prior to the employee beginning to work for a competitor brokerage house and soliciting the clients that he had handled.The contract also contained a non-disclosure provision and a liquidated damages provision.

Witty's compensation with JFSI was 40 percent of gross commissions generated by the brokerage house's clients' accounts.The remainder of the commissions were divided, with 40 percent to JFSI and 20 percent to IM & R and Raymond James, its parent companies.JFSI paid all office expenses.

In 1994, Witty decided to leave JFSI.Witty sought employment with a competitor Interstate Johnson Lane ("IJL"), plaintiff-appellant.On October 28, 1994, Witty gave JFSI written notice of his resignation, effective immediately, and accepted immediate employment with IJL.

On October 28, after receiving Witty's resignation, JFSI's personnel director wrote and called all clients that Witty worked with in an attempt to keep their accounts with JFSI; the staff worked through the weekend contacting clients.Of the 334 clients that Witty had serviced, JFSI retained 202 and 132 were lost to either IJL or another brokerage house.

On October 31, 1994, Jansson and JFSI, in written communication to Witty and IJL, threatened to sue Witty for breach of contract.

Witty brought a declaratory judgment action against Jansson and JFSI to declare the validity of the employment contract and his duties under it.Defendants answered, counterclaimed, and sought a TRO.Jansson and JFSI added IJL as an additional defendant in the counterclaim.

On July 25, 1997, a jury returned a verdict against all of Witty's claims and for the defendants on their counterclaims against Witty and IJL.On the contract claim, the jury found that there had been a breach of contract for violation of the notice provision and non-disclosure provision with no damages owed by Witty and $82,690 in damages owed by IJL.The jury found slander by Witty and IJL with damages by each of $2,409.No punitive damages were awarded.The jury found that the defendants were entitled to attorney fees of $45,781 payable by Witty and $91,562 payable by IJL.Plaintiffs immediately made an oral motion for j.n.o.v., which was denied.

On August 4, 1997, judgment was entered as follows: $82,690 for breach of contract by IJL; $2,409 each against Witty and IJL for slander; attorney fees of $45,781 against Witty and attorney fees of $91,562 against IJL.

On September 2, 1997, plaintiffs moved for a new trial, and on November 7, 1997, the motion was denied.On December 4, 1997, the notice of appeal was filed.On January 5, 1999, the appeal was docketed in this Court.

1.Plaintiffs contend that the trial court erred in: (a) excluding evidence of defendants' stubborn litigiousness, (b) awarding of attorney fees which were not authorized by the evidence and were grossly excessive, and (c) giving a charge under OCGA § 13-6-11, which was erroneous.We do not agree.While the court for convenience and clarity has combined three enumerations of error by subject matter, enumeration of error two raised multiple enumerations, which was improper.SeeWest v. Nodvin,196 Ga.App. 825, 397 S.E.2d 567(1990).

(a)Plaintiffs contend that the trial court erred in excluding evidence that plaintiffs had asked defendants to submit to expedited arbitration.According to the plaintiffs, defendants' alleged refusal constituted evidence of stubborn litigiousness on plaintiffs' claim and was also evidence of plaintiffs' defense to defendants' counterclaim for attorney fees.Since plaintiffs did not recover on their claims, then OCGA § 13-6-11 attorney fees were not recoverable, and there was no harm done to the plaintiffs by such admission, even if it were error to exclude such evidence.SeeCSX Transp. v. Barnett,199 Ga.App. 611, 612(1), 405 S.E.2d 506(1991).

Absent a mandatory arbitration clause in a contract, refusal to arbitrate is not, in itself, stubborn litigiousness, because arbitration is only one of the alternative dispute resolution procedures to avoid trial and to resolve a controversy.Unless made mandatory by state or federal law, arbitration is voluntary by agreement of all parties.SeeOCGA §§ 9-9-2; 9-9-6; 9-9-32; 9-9-61.If refusal to do an act that is a voluntary exercise of rights constitutes stubborn litigiousness, then arbitration no longer would be voluntary.Thus, stubborn litigiousness is not the failure to follow a procedure or the following of a particular procedure in seeking to resolve a legal dispute.

Within OCGA § 13-6-11, stubborn litigiousness means forcing the opposite party to litigate when there exists no bona fide controversy.Wheat Enterprises v. Redi-Floors,231 Ga.App. 853, 857(1), 501 S.E.2d 30(1998);Typo-Repro Svcs. v. Bishop,188 Ga.App. 576, 580(2), 373 S.E.2d 758(1988).Since the jury found for the defendants, then the defendants had a bona fide controversy.Thus, the trial court did not abuse its discretion in denying admission of such irrelevant and immaterial evidence.

(b) The jury awarded damages for slander and for contract interference.Both are intentional torts, which indicates bad faith and would authorize such damages.SeeProfessional Consulting Svcs. v. Ibrahim,206 Ga.App. 663, 665-666(3), 426 S.E.2d 376(1992).It is for the jury to decide if attorney fees are appropriate under the circumstances for bad faith, and a verdict will be upheld if there is any evidence to support its verdict.OCGA § 13-6-11;Professional Consulting Svcs. v. Ibrahim,supra at 665-666, 426 S.E.2d 376;Arford v. Blalock,199 Ga.App. 434, 439(9), 405 S.E.2d 698(1991).

Plaintiffs agreed with the defense that each side would state in their place the amount of attorney fees that each contended was recoverable without testimony, documentary evidence, or cross-examination.When they had an opportunity to do so, plaintiffs made no objection to defendants' statement of the amount of attorney fees contended and the method that defendants used to arrive at the alleged damages.Thus, they cannot raise the issue for the first time on appeal.SeeStandard Guar. Ins. Co. v. Bundrage,264 Ga. 632, 633, 452 S.E.2d 474(1994);Allen v. Peachtree Airport Park Joint Venture,231 Ga.App. 549, 550(2), 499 S.E.2d 690(1998).To do so would be induced error by their agreement with such procedure.Outdoor Systems v. Woodson,221 Ga.App. 901, 473 S.E.2d 204(1996).In addition plaintiffs waived any objection by failing to contemporaneously make it.MacDonald v. MacDonald,156 Ga.App. 565, 566(1)(a), 275 S.E.2d 142(1980).

Further, without making an exception, plaintiffs allowed the trial court to charge the jury on such proffer of proof by the defendants regarding what plaintiffs now contend was substantial error of law under the circumstances.Accordingly, the plaintiffs waived all such exceptions.OCGA § 5-5-24(c);Irvin v. Oliver,223 Ga. 193, 195-196(2), 154 S.E.2d 217(1967);see alsoOrr v. CSX Transp.,233 Ga.App. 530, 531(2), 505 S.E.2d 45(1998).

Further, IJL did not object to the jury verdict form either before it was sent out to the jury or after the verdict was returned, which verdict form contained provision for the award of attorney fees against IJL.In fact, plaintiffs' counsel announced to the trial court: "I have no quarrel with this form....I have no objection to this form, this verdict form."

(c) Although the amended counterclaim adding IJL may not have asserted a claim for attorney fees against IJL under OCGA § 13-6-11 by citation, it asked for the award of attorney fees in its prayer in (k)(iii) as to Count 12 for tortious interference with contract, which is an implicit prayer under OCGA § 13-6-11 for litigation expenses.Further, the evidence, defendants' argument, and the jury verdict form made plain that such damages under OCGA § 13-6-11 were sought from IJL, and IJL made no objection.Under OCGA § 9-11-15(b), pleadings are conformed to the evidence.SeeRockdale Body Shop v. Thompson,222 Ga.App. 821, 823(2), 476 S.E.2d 22(1996).The award of attorney fees must be affirmed, because there is some evidence to support such award on either bad faith or stubborn litigiousness grounds.Morris v. Savannah Valley Realty,233 Ga.App. 762, 764-765(3), 505 S.E.2d 259(1998).

2.Plaintiffs contend that the trial court erred in admitting over objection evidence as to the non-disclosure clause in the employment contract and in not directing a verdict on such issue.We do not agree.

(a) The non-disclosure of information provision of the employment contract was relevant and material to the issues in litigation and was admissible.

Defendants introduced evidence that Witty solicited existing business away from the defendants prior to his termination of employment.At the time of his leaving, Witty took customer lists and immediately began to use the lists to solicit defendants' clients.Thus, Witty violated his fiduciary duty of employment, because "[u]pon terminating employment, an employee has the right to take with him all the knowledge he obtained so...