Alkaril Chem. v. O'Lenick, 202 Ga. App. 230, 231 (1) ( 414 SE2d 257) (1991). See also Baxley Veneer Clete Co. v. Maddox, 261 Ga. 309, 310-311 (1) ( 404 SE2d 554) (1991); Stoker v. Bellemeade, LLC, 272 Ga. App. 817, 820 (2) ( 615 SE2d 1) (2005). Here, Carter and Leonard contend that the fact that Carter handled the daily operations of CCE for an extended period in a manner that benefitted the other directors constituted sufficient part performance to render the writing requirement inapplicable to the oral guaranty agreement.
The same underlying principle applies here. Baxley Veneer Clete Co. v. Maddox, 261 Ga. 309 (1) ( 404 S.E.2d 554) (1991). See also Ikemiya v. Shibamota America, 213 Ga. App. 271 ( 444 S.E.2d 351) (1994) (referring customers and a customer list to the employer was insufficient part performance to remove employment agreement from the statute of frauds).
Even if we were to hold that it is a sale, Kohl has submitted evidence that he rendered the services that constituted the consideration for the transfer, thereby entitling him to seek enforcement of the alleged oral agreement under the exception contained in subsection (b) of § 8-319. See Baldassarre, supra; Bowers, supra; compare Baxley Veneer c. Co. v. Maddox, 261 Ga. 309, 310 (1) ( 404 S.E.2d 554) (1991); Sams v. Duncan Copeland, Inc., 153 Ga. App. 765 (1) ( 266 S.E.2d 546) (1980). 3.
While plaintiff terminated his employment in North Carolina, moved to Georgia and worked for defendant for two years, these acts are all consistent with an employment at will and thus insufficient to create a jury issue as to part performance. Baxley Veneer c. Co. v. Maddox, 261 Ga. 309, 310 (1) ( 404 S.E.2d 554); Gatins v. NCR Corp., 180 Ga. App. 595, 598, supra; Katz v. Custom Spray Products, 168 Ga. App. 451, 452 ( 309 S.E.2d 663). The allegation of fraud stated in the complaint was that at the time the job was offered to plaintiff, defendant's owners did not intend to honor the three-year commitment.
Thus, "oral employment contracts for longer than one year are unenforceable unless there has been part performance that is `consistent with the presence of a contract and inconsistent with the lack of a contract.' [Cit.]" Baxley Veneer c. v. Maddox, 261 Ga. 309 (1) ( 404 S.E.2d 554) (1991). Plaintiff's activities — traveling to Japan, facilitating the sale of KSK to SAS, finding office space for the new company, referring customers to SAS, and providing SAS with KSK's client list — were not sufficient acts to establish part performance and remove this agreement from the statute of frauds because these activities are not inconsistent with employment terminable at will without a contract.
Id. at 119; Alkaril Chemicals v. O'Lenick, 202 Ga. App. 230 ( 414 S.E.2d 257); see Utica Tool Co. v. Mitchell, 135 Ga. App. 635, 637 ( 218 S.E.2d 650). In Baxley Veneer c. v. Maddox, 261 Ga. 309, 310-311 ( 404 S.E.2d 554), there was no evidence of acts that would "verify the probable existence of a contract of employment.... [T]here was no evidence that [the employee] did anything that would not have been required by any employee who took the job. Nothing he did conferred an uncompensated benefit on the employer so that the `refusal to enforce the contract (is) tantamount to a fraud on the employee.' [ Hudson, supra] at 118.
We also held that the trial court did not err in allowing the issue of attorney fees to go to the jury. The Supreme Court in Baxley Veneer c. Co. v. Maddox, 261 Ga. 309 ( 404 S.E.2d 554) (1991) reversed our decision and held that the trial court erred in denying appellants' motion for a directed verdict and in allowing the issue of attorney fees to go to the jury. In accordance with the decision of the Supreme Court, the decision of this court in Case No. A90A1525 is vacated, and the judgment of the Supreme Court is made the judgment of this court.
In view of our disposition of O'Lenick's contract claim, his award for attorney fees cannot stand. Baxley-Veneer c. Co. v. Maddox, 261 Ga. 309, 311 ( 404 S.E.2d 554). Judgment reversed with direction that the trial court enter judgment for appellant. Pope and Cooper, JJ., concur.
No similar maritime reciprocity statute exists; moreover, other state courts have declined to interpret their reciprocity statutes as requiring enforcement of a fees provision from an unenforceable contract. See, e.g., Care Med. Equip., Inc. v. Baldwin, 331 Or. 413, 15 P.3d 561, 563 (2000) (en banc) (denying attorneys' fees based on conclusion that state reciprocity statute required existence of valid contract); Kunz v. Lobo Lodge, Inc., 133 Idaho 608, 990 P.2d 1219, 1223 (1999) (holding that state reciprocity statute did not apply in favor of prevailing party who showed that contract was illegal); Baxley Veneer Clete Co. v. Maddox, 261 Ga. 309, 404 S.E.2d 554, 556 (1991) ("It would be inconsistent to allow an award of attorney fees under OCGA § 13-6-11 in an action based on a contract that is unenforceable as a matter of law."); Buckmaster v. Dent, 146 Ariz. 521, 707 P.2d 319, 321 (1985) (holding that "there is no successful party within the meaning of A.R.S. § 12-341.01 when a contract has been held to be void").
Giving up another job, moving to a new location and beginning work are acts that are not inconsistent with employment that is terminable at will." Baxley Veneer Clete Co. v. Maddox, 261 Ga. 309 (1991). See also Ikemiya (plaintiff's activities in traveling to Japan, facilitating sale of company to another company, finding office space for the new company, referring customers to the new company, and providing the new company with the previous company's client list were not "sufficient acts to establish part performance and remove this agreement from the statute of frauds because these activities are not inconsistent with employment terminable at will without a contract").