Zampatti v. TRADEBANK INTERN. FRANCHISING

• Citation: 235 Ga. App. 333,508 S.E.2d 750
• Decision Date: 03 November 1998
• Docket Number: No. A98A2368, No. A98A2428.
• Parties: ZAMPATTI v. TRADEBANK INTERNATIONAL FRANCHISING CORPORATION et al. TRADEBANK INTERNATIONAL FRANCHISING CORPORATION et al. v. ZAMPATTI.
• Court: United States Court of Appeals (Georgia)

508 S.E.2d 750

235 Ga. App. 333

ZAMPATTI v. TRADEBANK INTERNATIONAL FRANCHISING CORPORATION et al.

TRADEBANK INTERNATIONAL FRANCHISING CORPORATION et al. v. ZAMPATTI.

Nos. A98A2368, A98A2428.

Court of Appeals of Georgia.

November 3, 1998.

Reconsideration Denied November 18, 1998.

Flint & Connolly, Douglas H. Flint, Canton, John F. Connolly, Norcross, for appellant.

Gerry, Friend & Sapronov, William D. Friend, Mari Myer, Atlanta, for appellees. ELDRIDGE, Judge.

Tradebank International, Inc. ("TII") owns a system of reciprocal brokerage of goods and services, i.e., barter and trade, among its clients and acts as the keeper of records for the transactions between its clients for which it receives compensation. Tradebank International Franchising Corporation ("TIFC") is the wholly owned subsidiary of TII. TIFC acts to franchise TII's regional operations and has granted several franchises with exclusive territories.

On June 23, 1995, Ricardo J. Zampatti ("Zampatti") entered into a franchise agreement with TIFC; the franchise was known as Tradebank Atlanta North. Previously, he had been under a regional management agreement with TII and was reluctant to enter into the franchise agreement with TIFC but did so. The original exclusive franchise territory was: Bartow, Cherokee, Dawson, Forsyth, and Pickens Counties and those portions of Fulton County within Zip Codes 30075, 30076, 30136, and 30201. Zampatti was to facilitate the reciprocal brokerage of goods and services, i.e., barter, among TII's clients.

On March 1, 1996, Zampatti was terminated by written notice as a franchisee; however, Zampatti told TII's clients that both TII and TIFC were going out of business and that he was starting a successor company to take over TII's and TIFC's business to serve them.

TIFC and TII sued Zampatti in a five count complaint: Count 1 for breach of a noncompete and nonsolicitation agreement with TIFC; Count 2 for tortious interference with contract with TIFC's and TII's clients; Count 3 for open account with TII; Count 4 in the alternative for quantum meruit with TII; and Count 5 for OCGA § 13-6-11 attorney fees for bad faith, stubbornly litigiousness, and unnecessary trouble and expense for TIFC and TII. Zampatti answered and counterclaimed: Count 1 breach of contract in six parts: 1. for failure to pay commissions; 2. breach of contract for failure to provide franchisee support; 3. for violation of unspecified State and Federal laws and regulations; 4. breach of contract to clients; 5. failure to file with the IRS and the Georgia Department of Revenue; 6. improper accounting as breach of contract; Count 2 breach of fiduciary duty; Count 3 fraud; and Count 4 deceit. On September 30, 1997, TII and TIFC moved for summary judgment and request for oral argument. On December 11, 1997, oral argument was held although defense counsel did not appear, but written notice was mailed on October 28, 1997. At the time of oral argument, defense counsel was called, but he denied having received notice. Oral argument proceeded and defense counsel obtained a copy of the transcript and the trial court permitted him to submit a supplemental brief in lieu of oral argument. The supplemental defense brief was filed December 26, 1997. Without an order granting permission to file affidavits after the hearing, Zampatti filed on December 24, 1997, supplemental affidavits of Jennifer Walker and Thomas Walker, and his personal affidavit on January 23, 1998. Upon motion by TII and TIFC, the trial court struck such affidavits as untimely filed.

On January 29, 1998, after TII and TIFC filed motions for summary judgment and prior to the trial court's oral argument on the motion for summary judgment, Zampatti filed a cross-motion for summary judgment, raising many of the same issues as addressed in the pending ruling; however, he never had his motion set down for hearing or had the two motions set to be argued on the same date. In fact, Zampatti did not request in writing oral argument.

On May 19, 1998, the trial court granted partial summary judgment to TII and TIFC as to its claims and as to its motion as to Zampatti's counterclaim and denied summary judgment as to Zampatti's motion for summary judgment. Zampatti filed his notice of appeal.

1. Zampatti's first enumeration of error is that the trial court erred in finding that Zampatti breached the franchise agreement. We do not agree.

Zampatti's brief in argument, citation to the record, and authorities do not address this enumeration at all. Under Court of Appeals Rule 27(c)(2), (3) such enumeration is deemed abandoned. However, the Court will address the issue nonetheless, because it is dispositive of other enumerations.

Under the franchise agreement, Zampatti was not to compete with TII or TIFC within his territories or solicit business from the clients for one year following his termination, for any reason. In March 1996, Zampatti formed The Barter Company, Inc. ("BCI"), which performed the same activities that he engaged in while a franchisee. From March 1996 through March 1997, at his former franchise address, Zampatti engaged in the barter business within his former territory and solicited clients of TII and TIFC. During the 12 months in the territory, Zampatti took 27 of TII's former clients and solicited business from another 24 TII clients. Such solicitation of TII's clients by Zampatti caused it financial losses. Thus, there was undisputed evidence that Zampatti breached the franchise agreement.

2. Zampatti's second and third enumerations are that the trial court erred in not considering the timely filed affidavits and in striking the supplemental affidavit testimony of Thomas and Jennifer Walker. We do not agree.

(a) On March 26, 1996, Thomas and Jennifer Walker signed affidavits to be used in opposition to any injunction; on October 29, 1997, the affidavits were filed. Thomas Walker testified that he had worked from January 1995 until September 1995 as president of TIFC, when he resigned. Jennifer Walker testified that she was Chief Financial Officer of TII from approximately June until August of 1995, when she resigned. Both testified that they learned that TII had been: a. "failing or refusing to produce financial statements"; b. "manipulating corporate checking accounts, including floating, `kiting' and otherwise issuing bad checks"; c. "failing to carry proper insurance, including insurance for workers' compensation, liability, and unemployment benefits"; d. "failing to pay or otherwise comply with state and federal tax laws;" and e. "withdrawing funds from the corporation for personal use without documentation or actual expenses, and often in the name of a third party."

OCGA § 9-11-56(e) mandates that affidavits "shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

Such general bare allegations in the affidavits were not stated with specificity as to times, places, party or parties, transactions, occasions, or events so as to constitute statements of facts. Where the affidavits failed to set forth any factual basis for the conclusions and contentions, then they were insufficient to oppose a motion for summary judgment. See Parlato v. MARTA, 165 Ga.App. 758, 302 S.E.2d 613 (1983). These allegations were made in support of the conclusion that TII or Davis "were conducting business in a manner contrary to the terms and intent of these franchise agreements" and "[t]his conduct outlined above seriously imperiled the viability, marketability and continued existence of TII, TIFC and the Tradebank system, including each franchisee and member within that system, including Tradebank Atlanta North owned by Ricardo J. Zampatti." As mere conclusions, they cannot oppose a motion for summary judgment. Sullivan v. Fabe, 198 Ga.App. 824, 403 S.E.2d 208 (1991); Collins v. West Am. Ins. Co., 186 Ga.App. 851, 368 S.E.2d 772 (1988); Belcher v. Logan, 150 Ga.App. 249, 257 S.E.2d 299 (1979).

Such conclusions are not admissible as the opinion of a layperson, because insufficient facts were stated to lay a proper foundation for a lay opinion. OCGA § 24-9-65; Johnson v. Knebel, 267 Ga. 853, 485 S.E.2d 451 (1997). Nor are such conclusions admissible as the opinion of an expert, because neither Jennifer Walker nor Thomas Walker were qualified in the affidavits as expert witnesses through training, skill, or experience to render an expert opinion. OCGA § 24-9-67; Martin v. Baldwin, 215 Ga. 293, 110 S.E.2d 344 (1959).

Mere conclusions are insufficient to overcome evidence of necessary certitude; opposing affidavits "must set forth specific facts." Neither affidavit contains material facts and were properly not considered by the trial court. See Love v. Love, 259 Ga. 423, 383 S.E.2d 329 (1989); Keene v. Herstam, 225 Ga.App. 115, 483 S.E.2d 335 (1997); Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga.App. 315, 461 S.E.2d 282 (1995); Concert Promotions v. Haas & Dodd, Inc., 167 Ga.App. 883, 307 S.E.2d 763 (1983); Norris v. Kunes, 166 Ga.App. 686, 305 S.E.2d 426 (1983); Scroggins v. Whitfield Fin. Co., 152 Ga.App. 8, 262 S.E.2d 168 (1979); Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga.App. 737, 748(3), 165 S.E.2d 441 (1968).

Further, Jennifer Walker worked from "approximately June to August of 1995" as Chief Financial Officer, so that she could have only personal knowledge for such limited period of time; however, she does not specify for what time period her allegations a. through e. cover. Anything before June 1995 and during or after August 1995 would be outside her personal knowledge; during and after August 1995, she would have no access to know what she purports to have testified to; thus, application...