Robert Half of Atlanta, Inc. v. Diversitech Corp.

Beasley, Presiding Judge. Robert Half of Atlanta, Inc., a personnel agency, sued Diversitech Corporation for a fee pursuant to an agreement for placement of an employee. Both parties moved for summary judgment. Robert Half contends it fulfilled Diversitech’s requirements as to employee qualifications. Diversitech contends Robert Half failed to comply with an implied duty to provide a drug-free employee or breached an implied warranty of fitness. The court denied summary judgment to Robert Half, which is affirmed, and granted summary judgment to Diversitech, which is reversed. It has not been established as a matter of law by movant Diversitech that under the terms of its contract with Robert Half, the latter’s fee would not be earned if the person placed tested positive for drug use. There is in the record no written contract between the parties. However, it is undisputed that Diversitech contacted the personnel agency, seeking someone to be a manager of information systems and supervisor of data processing, with UNIX background, several years’ experience, a college degree, and experience with different accounting systems. From the record thus far developed, apparently nothing was said about drug testing or about conditional or probationary employment. Diversitech states, in response to interrogatory, that it did not inform the agency that a physical exam and drug test would be “conditions precedent” to employment. The evidence is in dispute with respect to the extent of the discussion of fees and whether the Fee Schedule was provided to Diversitech right after the phone conversation. A few days later, Robert Half faxed a letter to Diversitech that it had found Ms. Walker, a person with the qualifications listed by Diversitech. There is evidence that Walker was thereafter interviewed twice by Diversitech, was offered a position, accepted it and reported to Diversitech. On the other hand, there is also evidence that the offer was only “contingent upon passing a pre-employment physical examination as it pertains to the requirements of the job,” as stated in the application form signed by Walker several days after she reported to Diversitech. There is no evidence that Robert Half was given a copy of this form or knew Diversitech’s procedure. Diversitech, according to its controller’s affidavit, “terminated her employment” and “fired” her about a month after she reported, after the drug test taken in the interim. The agency’s Fee Schedule, sent with the invoice the day Walker was to report to Diversitech, states: “Unless otherwise previously [428] agreed in writing signed by an officer of [the agency], the starting of employment of the employee referred by us to you shall constitute acceptance of terms set forth herein. Fees will be due us and the terms set forth herein will apply as to any applicant referred by us to you if you employ the applicant at any time within one year from the date of the referral.” It also states that fees are due “on or before ten (10) days from the date the Employee starts work,” and a pro rata guarantee is set out. As stated earlier, the Fee Schedule may also have been sent before Walker was presented. Whether Walker became employed by Diversitech and started employment or not within the meaning of the placement contract is a question of fact, about which there is evidence both ways. There is evidence that Diversitech did not employ Walker, because she failed the drug test. There is also evidence that it did employ her, although on a probationary basis. The fact that Diversitech’s “normal procedure,” followed in this case, was to have office personnel drug-tested after they reported for work indicates that it did not expect or intend the agency to accomplish this. The intent of the parties is foremost in the construction of contracts. OCGA § 13-2-3. “There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.” Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986). “Ambiguity in a contract may be defined as duplicity, indistinctness, and uncertainty of meaning or expression. [Cit.]” Travelers Indem. Co. v. A. M. Pullen & Co., 161 Ga. App. 784, 789 (6) (289 SE2d 792) (1982). It has not been established what the parties agreed to with respect to when or under what conditions the fee would become earned. If the Fee Schedule was intended to set this, the meaning of “starting of employment” is ambiguous and cannot be resolved without resort to parol evidence, which is in dispute. Correspondence between parties is admissible if it clarifies or tends to explain intent, and meaning placed on a contract by one party may be acquiesced in by the other party who knows of it and remains silent. Salvatori Corp. v. Rubin, 159 Ga. App. 369, 373 (3) (283 SE2d 326) (1981). The evidence in this case does not establish as a matter of law that Diversitech owes the placement fee. Neither does the evidence establish, in Robert Half’s favor, that Diversitech owes the fee. The question is whether the agency’s fee was contingent on the placed person’s passing the physical exam and drug test administered by the employer. Judgment affirmed in part and reversed in part. Pope, C. J., and [429] Cooper, J., concur. Justice George H. Carley concurs. Blackburn, J., concurs in the judgment only. McMurray, P. J., Birdsong, P. J., Andrews and Johnson, JJ., dissent.