Gill v. B & R INTERN., INC.

• Decision Date: 25 September 1998
• Docket Number: No. A98A1573.,A98A1573.
• Citation: 507 S.E.2d 477,234 Ga. App. 528
• Court: Georgia Court of Appeals
• Parties: GILL v. B & R INTERNATIONAL, INC.

507 S.E.2d 477

234 Ga. App. 528

GILL v. B & R INTERNATIONAL, INC.

No. A98A1573.

Court of Appeals of Georgia.

September 25, 1998.

Goodman & Associates, James E. Goodman, Atlanta, Norman L. Smith, for appellant.

Porter & Barrett, J. Alexander Porter, Davis & Doster, Simuel F. Doster, Jr., Atlanta, for appellee. JOHNSON, Presiding Judge.

Gregg Gill sued his former employer B & R International, Inc., alleging that B & R breached an agreement to pay a debt and breached an agreement to provide him severance pay. Gill sought specific performance of the alleged contract, litigation expenses and reasonable attorney fees. The trial court granted B & R's motion for summary judgment and dismissed Gill's complaint with prejudice. From this judgment Gill appeals. We find no error and affirm.

1. The trial court did not err in granting summary judgment to B & R on Gill's claim for breach of an agreement to pay a debt. Gill contends that B & R offered him and certain other employees an opportunity to either purchase B & R stock at a favorable price or to receive a lump sum payment of $100,000. Gill also contends that the lump sum payment was to be compensation from B & R for his continued employment with the company and for his contribution to corporate growth and success. According to Gill, the lump sum payment was conditioned upon the employee's continued employment with B & R until B & R was sold or until the employee was terminated, so long as the termination was neither voluntary nor for cause.

Gill acknowledges that he was the only employee to accept the $100,000 lump sum payment offer from B & R; other employees elected to buy the stock. The offered stock was not owned by the corporation but by Robbie Reid, B & R's president, CEO, and majority stockholder. In his affidavit, Gill states it was his "understanding" that the offer was made by Reid in his corporate capacity. However, Gill cannot recall whether B & R was going to issue additional stock or whether stock would be purchased directly from Reid. In his deposition, Gill admits that he does not know whether the $100,000 was to be paid by B & R or by Reid. B & R asserts that: (i) any offers were made by Reid in his personal capacity; (ii) although Reid initially suggested a lump sum payment alternative, this alternative was not offered again after each of the four employees stated an initial desire to purchase stock; and (iii) B & R did not accept any counteroffer from Gill binding it to pay him a $100,000 lump sum.

To establish his contentions, Gill substantially relies on an unsigned memorandum, dated February 22, 1993, and the response to that memorandum. The memorandum was written by Reid and addressed to Gill and three other employees; it is not written on corporate letterhead. The memorandum pertinently states: "Attached is a Shareholder's Agreement for your review and comments. The amounts shown are the final amounts being offered for their respective values. I have reviewed this and feel this agreement to be not only equitable, but very simple.... My alternative offer is to give each of you a Promissory Note equal to the dollars I have earlier indicated that would become due and payable upon the sale of the company. If the company [is] never sold, or if you were terminated for cause or left at your own discretion, then there would be no value payment. This is strictly a value not tied to a percentage value by company. I would like to have your comments on the Shareholder's Agreement before Wednesday... and whether or not you intend to become a shareholder on terms offered." Gill stated in his response: "Given my current financial obligations, the appropriate option at this time is the $100,000 promissory note. If the stock option can remain open (Feb 22 memo), I would like to consider it at a future date." Reid made this handwritten notation on Gill's response: "I respect your decision—no problem—It is not fair to leave stock option open for you & not for others — We can discuss stock [at] a future date & a different price — Robbie." It is clear from the record before us that no promissory note was ever executed or delivered to Gill by either Reid or B & R. Gill contends that genuine issues of material fact exist as to whether B & R was a party to the contract and whether there was a breach of an alleged agreement to pay the lump sum.

(a) Gill argues that ambiguity exists as to the identity of the parties, consideration and terms of the agreement. He cites the holding in Nolley v. Maryland Cas. Ins. Co., 222 Ga.App. 901, 903(3), 476 S.E.2d 622 (1996), where we stated that the construction of a contract is a question of law for the trial court when the contract language is clear and capable of only one reasonable interpretation, but that if any matter of fact is involved, the jury should find the fact. The holding in Nolley is based on a direct quote from Bress v. Keep-Safe Indus., 155 Ga.App. 544, 545, 271 S.E.2d 867 (1980). However, in U.S. Enterprises v. Mikado Custom Tailors, 250 Ga. 415, 416, 297 S.E.2d 290 (1982), the Supreme Court explained the correct interpretation to be given the legal principle set forth in Bress and related cases as follows: "No jury question is raised unless after application of the pertinent rules of construction the ambiguity remains. Only if after applying these rules of construction it is unclear which of two or more possible meanings represents the true intent of the parties should the issue be declared ambiguous and delivered to the jury." (Citations omitted.)

In construing oral and written contracts, the court should apply the appropriate three-step process of contract construction discussed in Duffett v. E & W Prop., 208 Ga.App. 484, 486(2), 430 S.E.2d 858 (1993). Jones v. Destiny Indus., 226 Ga.App. 6(2), 485 S.E.2d 225 (1997). First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. Thus, where the terms of the contract are clear and unambiguous, the court looks only to the contract to find the parties' intent. Second, if the potential for ambiguity appears, the existence or non-existence of an ambiguity is itself a question of law for the court, unless an ambiguity remains even after the court has applied the pertinent rules of contract construction. Finally, issues of contract construction will be submitted to the jury only when there appears to be an ambiguity in the contract which cannot be resolved by the court's application of the statutory rules of construction. Duffett, supra; see U.S. Enterprises, supra.

In ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court must construe the evidence and all inferences and conclusions arising therefrom most favorably to the party opposing the motion. Moore v. Goldome...