In a case decided on November 17, Inland Atlantic Old National Phase I, LLC et. al. v. 6425 Old National, LLC, the Fourth Division Court of Appeals of Georgia ruled on fiduciary duties owed under joint venture agreements, applied rules of contract construction, and briefly addressed substantial versus strict compliance.
Background: The parties – Inland Atlantic and Old National – entered a joint venture LLC and made other necessary agreements to develop a shopping center. During Phase I (of II), issues arose with the quality of an on-site contractor, which Old National failed to properly supervise. Due to complications in Phase I, Inland Atlantic did not hire Old National for Phase II. Old National brought suit and Inland Atlantic counterclaimed. After the trial court ruling granting and denying various parts of motions of summary judgment, both parties cross-appealed. In this consolidated appeal, the Court of Appeals addresses these claims and the trial court’s treatment of summary judgment.
A court may grant summary judgment, alleviating the need for a full trial, for the party requesting it – the movant – if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
Fiduciary Duty as Managing Member of LLC:
According to Georgia statutes (OCGA § 23), a fiduciary duty exists “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith.” Breach of such a fiduciary duty requires (1) the existence of a fiduciary duty, (2) the breach of which (3) proximately causes damage.
Additionally, a member of a limited liability company only owes statutory duties to that LLC if the member is managing an aspect of the LLC’s business affairs. That duty owed is one of good faith and the care an ordinarily prudent person. (OCGA § 14-11-305) If a member of an LLC is not managing as aspect of LLC business, this duty does not apply (unless otherwise provided for by agreement). Therefore, a member of an LLC without managerial responsibilities has no duty to the company by just performing its duties as a member.
In this week’s Inland Atlantic decision, a joint venture agreement between Inland Atlantic and Old National delegated some managerial duties to Old National. Inland Atlantic argued that that the trial court should not have granted summary judgment to Old National on Inland Atlantic’s breach of fiduciary duty claim with regard to the parties’ joint venture agreement. The appellate court agreed, ruling that Old National might have had a fiduciary duty to Inland Atlantic under their joint venture agreement. This is a remaining question of fact as to whether Old National was managing some of the LLC’s affairs; therefore, summary judgment was inappropriate.
Fraud and Fiduciary Duty to Disclose Material Facts:
A fiduciary relationship includes the duty to disclose material facts. Therefore, suppression of a material fact by a fiduciary party constitutes fraud.
Fraud requires the defendant, having both (1) scienter (knowledge of one’s wrongdoing) and (2) the intention to induce the plaintiff to act (or refrain from acting), to (3) make a false representation to the plaintiff, (4) on which the plaintiff justifiably relies and which (5) causes damage to plaintiff.
Here, Inland Atlantic claimed Old National committed fraud and negligently misrepresented the abilities of site-work contractor “Lewis,” whom Old National insisted on hiring and who was having “financial difficulties” before being retained. Old National insisted on using Lewis and may have known of their financial trouble, but represented that Lewis would be able to finish the project.
Inland Atlantic contended that granting summary judgment to Old National on Inland Atlantic’s claims for fraud and misrepresentation was inappropriate. The appellate court agreed, as there was a material question of fact as to whether Old National was managing some of the LLC’s business affairs (as examined above) and therefore owed a fiduciary duty to Inland Atlantic under their joint venture agreement. If such a fiduciary duty existed, then Old National had the duty to disclose material information regarding Lewis’s ability to complete the project. Since a question of fact remains, this court reversed the grant of summary judgment on the fraud and negligent misrepresentation claims.
Rules of Contract Construction – Examining Breach of Contract and Indemnification Claims:
When a court evaluates a contract claim, the court looks at the plain meaning of the contract terms. If these terms are ambiguous, making the contract unclear, the court must apply rules of contract construction. First, the court will ascertain the intent of the parties at the time the contract was executed. If the intent cannot be determined, then the terms of the contract are material questions of fact for a jury to answer.
The rules of contract construction also provide that indemnification terms should be construed strictly against the indemnitee. Furthermore, ambiguity should be construed against the drafter.
In Inland Atlantic, Old National argues that the trial court erred in not granting them summary judgment on Inland Atlantic’s breach of contract claim. However, the plain and unambiguous terms of the contract provide that Inland Atlantic’s actions do not waive their right to a breach of contract claim. Furthermore, there were two remaining questions of fact based on the evidence of record: (1) Did Inland Atlantic waive their right to a breach of contract claim by making final payment without notifying Old National of its deficiencies? And (2) Did Old National breach the contract by failing to properly supervise and manage the project? With these questions of fact unanswered, summary judgment on the breach of contract claim was appropriately denied.
Old National also contends that the lower court erred in denying their motion for summary judgment on Inland Atlantic’s indemnification claim. The indemnification provisions say that both parties indemnify each other, making both parties indemnitees and indemnitors. This is an ambiguous term. So, who is the proper indemnitee is a remaining question of fact for the jury to answer since the rules of contract construction fail to solve the issue here.
Substantial Compliance Required:
A party to a contract must only substantially comply with the contract termination clause. Strict compliance is not required. (See Rome Healthcare LLC v. Peach Healthcare System, 264 Ga. App. 265, 272 (5) (590 SE2d 235) (2003).)
Here, Old National contends that the trial court erred in not finding that a contract was not terminated. Inland Atlantic was not required to strictly comply with the contract term stating that either party could terminate with 30 days written notice. Inland Atlantic’s repeated notifications to Old National regarding Old National’s deficiencies may be considered substantial compliance. Again, this is question of material fact for a jury to decide.
Conclusion: This case is another reminder of the importance of contract drafting on construction projects; specifically, here are some practical tips which we can take away from this decision:
1. Joint Ventures between contractors may include fiduciary responsibilities between the parties.
2. Fiduciary relationship includes the duty to disclose material facts. Therefore, suppression of a material fact–such as the possibly inability of a subcontractor to fully perform its contract– by a fiduciary party constitutes fraud.
3. Construction contract terms need to be unambiguous.
4. Read your contract to understand (and follow) the termination provisions.