Imf Entertainment, LLC v. Herc Rentals, Inc. ( 2022 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
July 26, 2022
In the Court of Appeals of Georgia
A22A0624. IMF ENTERTAINMENT, LLC v. HERC RENTALS,
INC.
MERCIER, Judge.
Herc Rentals, Inc. (“Herc”) sued IMF Entertainment, LLC (“IMF”) for breach
of contract and attorney fees, claiming that IMF failed to pay for services rendered
by Herc. IMF answered and counterclaimed for breach of contract, negligence, and
attorney fees. Following discovery, Herc moved for summary judgment on its claims
and IMF’s counterclaims. The trial court granted Herc’s motion, and this appeal
followed. We reverse.
Summary judgment is appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). We review the grant
of summary judgment de novo, construing the evidence and all reasonable inferences
in favor of the nonmoving party. See Johnson Street Properties v. Clure, 302 Ga. 51,
52 (1) (805 SE2d 60) (2017).
So viewed, the record shows that in September 2018, IMF held a large, three-
day dance and music festival at Atlanta Motor Speedway. IMF hired Backbone North
America, Inc. (“Backbone”) to manage the festival’s site operations, and in
connection with that work, Backbone arranged for Herc to provide temporary power
and a variety of heavy equipment for the site.
On August 13, 2018, IMF executed an independent contractor agreement with
Herc that required IMF to pay $82,000 for equipment and activities relating to
temporary power at the festival. In addition to providing the services covered by this
contract, Herc also supplied other heavy equipment needed by the festival. No
separate independent contractor agreement relating to rental and use of this heavy
equipment was executed by IMF. A Backbone representative, however, signed rental
agreements relating to each piece of heavy equipment when the equipment was
delivered to the festival site.
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Backbone’s general manager testified by affidavit that IMF agreed to the heavy
equipment rentals and authorized Backbone to sign the rental agreements on IMF’s
behalf. IMF’s principal, Glenn Goodhand, offered contrary affidavit testimony.
According to Goodhand, Backbone did not have authority to act for IMF, and IMF
never approved any charges by Herc beyond the $82,000 encompassed by the
independent contractor agreement relating to temporary power services.
During and after the festival, Herc invoiced IMF for temporary power services,
heavy equipment rental, and associated fuel charges totaling over $234,000. Other
than submitting an initial $32,500 deposit, IMF made no payment on the invoices.
When Herc inquired about payment, a bookkeeper with IMF’s outside accountant
responded by email that her records showed IMF’s outstanding balance to be
$199,855.22, approximately $2,000 lower than Herc’s calculation. The bookkeeper
included IMF’s owners and accountant on the email. A Herc representative replied
by email that same day, stating that Herc would “accept the payment of $199,855.22
to be able to get a payment date today.” Although the Herc representative expected
IMF to “make payment at a reasonable time,” she received no further response from
IMF or its accountant, despite several efforts to follow up on what she thought was
the “agreed balance to be paid.”
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On April 12, 2019, Herc’s attorney sent IMF a demand letter for “the agreed
upon balance outstanding on the account” in the amount of $199,855.22. IMF did not
respond, and Herc filed suit to collect the amount due, plus interest and attorney fees.
IMF answered and counterclaimed for breach of contract, negligence, and attorney
fees, asserting that Herc overcharged IMF and provided inappropriate and broken
equipment that negatively impacted the festival, causing a revenue loss.
Herc subsequently moved for summary judgment. It argued that the parties had
agreed to an amount due on the account, that no unresolved issues remained as to the
amount IMF owed, and that IMF suffered no recoverable damages from Herc’s
alleged breach of contract and negligence. The trial court granted Herc’s motion,
concluding that IMF had agreed to settle the account dispute for $199,855.22 and that
Herc was entitled to recover this amount plus interest and attorney fees. The court
further found that IMF’s decision to settle precluded its counterclaims for breach of
contract, negligence, and attorney fees. This appeal followed.
1. IMF first argues that the trial court erred in granting Herc summary judgment
on Herc’s claims. We agree.
Herc contends that IMF’s “representatives” — namely, Backbone and the
bookkeeper employed by IMF’s outside accountant — reached various agreements
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on behalf of IMF. It argues that Backbone was acting for IMF when it signed rental
contracts for heavy equipment not included in the independent contractor agreement.
And it claims that the outside bookkeeper bound IMF to a “settlement” through which
IMF agreed to pay Herc over $199,000 for work Herc performed at the festival.
Goodhand, however, testified that IMF never agreed to pay for work not specifically
encompassed by the independent contractor agreement. He asserted that Backbone
was not authorized to approve this additional work on IMF’s behalf. He further
testified that the outside bookkeeper lacked authority to approve or settle invoiced
charges on behalf of IMF.
“The relation of principal and agent arises wherever one person, expressly or
by implication, authorizes another to act for him or subsequently ratifies the acts of
another in his behalf.” OCGA § 10-6-1. Generally, questions regarding the existence
and extent of an agent’s authority are left for the trier of fact. See Johnson Street
Properties, supra at 55 (1) (a) (ii); S & A Indus. v. Bank Atlanta, 247 Ga. App. 377,
384 (7) (543 SE2d 743) (2000). Although Herc claims that both Backbone and the
accountant’s bookkeeper were acting on IMF’s behalf, Goodhand offered contrary
evidence that neither had this authority.
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An agent generally can only act “within the authority granted to him,
reasonably interpreted.”American Global Dev. Group v. Sasser & Weatherford, 249
Ga. App. 479, 482 (2) (548 SE2d 465) (2001) (citation and punctuation omitted).
Where parties dispute the extent of that authority, an issue of fact arises. See id.; see
also Johnson Street Properties, supra. Such a dispute exists here. Although Herc
urges us to reject Goodhand’s testimony as “self-serving” and based upon a “legal”
conclusion, the testimony relates specifically to a key factual question: whether
Backbone and the bookkeeper were authorized to act for IMF. As we have explained,
the “assertion or denial of the existence of an agency relationship is a statement of
fact when made by one of the purported parties to the relationship.” Nissan Motor
Acceptance Corp. v. Stovall Nissan, 224 Ga. App. 295, 297 (1) (480 SE2d 322)
(1997) (citation and punctuation omitted).
Questions of fact remain as to the extent of IMF’s liability for work performed
by Herc at the festival and whether IMF agreed to settle the balance due on Herc’s
invoices. Accordingly, the trial court erred in granting Herc summary judgment on
its claims for breach of contract and attorney fees. See Nissan Motor Acceptance
Corp., supra at 298 (1) (trial court properly denied motion for summary judgment
where question of fact remained as to agency); see also Patel v. Patel, 327 Ga. App.
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733, 736 (1) (b) (ii) - (c) (761 SE2d 129) (2014) (trial court erred in granting motion
to enforce settlement where questions of fact remained regarding signatories’
authority to execute the settlement).
2. We also agree with IMF that the trial court erred in granting Herc summary
judgment on IMF’s counterclaims for breach of contract, negligence, and attorney
fees. The trial court concluded that because IMF had reached a “settlement” regarding
the account dispute, IMF’s counterclaims were precluded. As discussed above,
however, questions of fact remain as to whether IMF settled the dispute or agreed to
a payment of $199,855.22. Accordingly, the trial court erred in finding that, as a
matter of law, the alleged settlement blocked recovery on the counterclaims.1
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Citing the “right for any reason rule,” Herc invites us to affirm the grant of
summary judgment on the counterclaims because (1) the independent contractor
agreement prevents IMF from recovering the consequential damages it seeks, and (2)
IMF failed to meet the statutory requirements for a set off under OCGA § 13-7-1 et
seq. We note that IMF did not allege a claim for set off, and a party can always
recover nominal damages for breach of contract. See 6428 Church Street, LLC v. SM
Corrigan, LLC, 352 Ga. App. 437, 444 (3) (834 SE2d 603) (2019). It is clear,
however, that the trial court did not consider Herc’s alternative grounds for summary
judgment, focusing instead on the settlement issue. We decline to address Herc’s
alternative claims for the first time on appeal. We leave these issues for the trial court
to consider on remand. See Pollman v. Swan, 289 Ga. 767, 768 n.2 (1) (716 SE2d
191) (2011) (“We decline the invitation of appellees to engage in an analysis of the
trial court’s ruling under the ‘right for any reason’ rule.”); Miller v. Turner
Broadcasting Sys., 339 Ga. App. 638, 645 n. 12 (2) (794 SE2d 208) (2016) (same).
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Judgment reversed. Dillard, P. J., and Markle, J., concur.
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