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RHODES v. ABC SCHOOL SUPPLY9/17/1996
Thomas A. Rhodes, Sr., appeals the grant of summary judgment on his claim for breach of an oral employment agreement against ABC School Supply, Inc. (ABC). Rhodes sued ABC for wrongful termination
and for unpaid commissions.
Rhodes originally initiated his proceedings against ABC's president, Larry Gross, and its past president, Charles W. Williams, Jr. Shortly after the complaint was served, Gross and Williams repeatedly informed Rhodes that he was an employee of ABC, a corporate entity, and that any claims he had should have been brought against the company. However, when plaintiff refused to dismiss the complaint and did not amend it to add ABC, Gross and Williams moved for summary judgment. At that point, Rhodes moved to add ABC as a party; however, at his subsequent deposition, Rhodes continued to maintain that his contract — which he likened to a joint venture agreement — was with Williams, and later Gross, acting in their individual capacities. The trial court subsequently granted Gross and Williams' summary judgment, determining that they had acted in their corporate capacities when they dealt with Rhodes. Contemporaneously, the trial court granted Rhodes' motion to add ABC as a party to the litigation.
ABC subsequently moved for summary judgment based on Rhodes' previous testimony that he had no contractual agreement or understanding with ABC. In response to ABC's motion, Rhodes filed an affidavit averring that: "In making the agreements sued upon, I dealt with [Williams and later with Gross]. . . . Our agreements were oral and I couldn't be certain whether Williams or Gross acted individually or on behalf of ABC. . . . Because of their dismissal from this case, I am now compelled to agree that they acted on behalf of ABC and intended to do so." This was the only evidence offered by Rhodes that his alleged agreement was with ABC. Construing Rhodes' contradictory testimony against him, the trial court found no evidence of an employment agreement with ABC and entered summary judgment against Rhodes. Rhodes appeals.
1. In Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 S.E.2d 680) (1986), the Supreme Court held that where the favorable portion of a party's self-contradictory testimony is the only evidence of his right to recover, the opposing party is entitled to summary judgment unless a "reasonable explanation" is offered for the contradiction. On appeal, Rhodes asserts that he offered a reasonable explanation for his contradictory testimony about who the other party was to his employment agreement — particularly that he was uncertain as to what capacity corporate officers were acting in when
they allegedly agreed to his employment contract.
The Supreme Court's ruling in Prophecy was intended to remove any incentive for witnesses responding to a motion for summary judgment to "tailor" their "statement to meet the needs of the occasion without regard to the truth." Id. at 30. Accordingly, " he burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge." Id. A trial judge's determination as to the reasonableness of such an explanation will be upheld unless clearly erroneous. McCurley v. Whitaker Oil Co., 193 Ga. App. 527, 531 (388 S.E.2d 412) (1989); see also State of Ga. v. Mozley, 182 Ga. App. 871, 874 (357 S.E.2d 313) (1987).
In light of the procedural posture of this case, we find the timing of Rhodes' contradictory statement does not make his explanation for the contradiction seem reasonable. "To be reasonable, the explanation must show that an honest mistake has been made in the first statement." (Pun
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