Jan-Pro Franchising International, Inc. “JPI” brought this declaratory judgment action against Giovani Depianti and Hyun Ki Kim, seeking, in relevant part, a judgment that Kim and Depianti were not its employees under the Massachusetts Independent Contractor Statute “MICS”.1 The parties filed cross motions for summary judgment, and the trial court found that issues of fact precluded summary judgment as to Kim, but the court granted summary judgment to Depianti. JPI now appeals the ruling as to Depianti, and for the reasons that follow, we reverse.2 Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.3 So viewed, the record shows that JPI created a master franchise plan for commercial cleaning businesses. JPI entered into franchise agreements with other companies “regional franchisees” that would be assigned the rights to use JPI’s franchise branding and processes in a designated region in exchange for certain fees. Those regional franchisees would then enter into unit franchise agreements with individuals or companies “unit franchisees” who would perform cleaning services for client accounts provided by the regional franchisee in exchange for specified fees. In the unit franchise agreement, the regional franchisee promised to provide a particular volume of cleaning business to each unit franchisee. Depianti, who lived and worked in Massachusetts, became a unit franchisee in the JPI franchise system. After a dispute arose between Depianti and his regional franchisee, he and other unit franchisees initiated arbitration proceedings in Massachusetts asserting claims that they should be classified as employees and not independent contractors, and were therefore eligible for more favorable treatment under Massachusetts law.4 JPI filed a complaint in Massachusetts to avoid participation in the arbitration, and Depianti dismissed JPI from the arbitration. Thereafter, JPI, which is headquartered in Alpharetta, Georgia, filed this action in the Fulton County Superior Court, seeking to clarify the employment status of Depianti as a unit franchisee.5 After a hearing, the trial court granted summary judgment to Depianti, ruling that he was JPI’s employee under the MICS.6 JPI now appeals.
The MICS provides as follows, in relevant part: For the purpose of this chapter pertaining to labor and industries and chapter 151 pertaining to minimum fair wages, an individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless: 1 the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and 2 the service is performed outside the usual course of the business of the employer; and,
