Gatins v. NCR Corp.

• Decision Date: 20 October 1986
• Docket Number: No. 72574,72574
• Citation: 180 Ga.App. 595,349 S.E.2d 818
• Parties: , 106 Lab.Cas. P 55,756 GATINS et al. v. NCR CORPORATION et al.
• Court: Georgia Court of Appeals

Page 818

349 S.E.2d 818

180 Ga.App. 595, 106 Lab.Cas. P 55,756

GATINS et al. v. NCR CORPORATION et al.

No. 72574.

Court of Appeals of Georgia.

Oct. 20, 1986.

William R. King, Atlanta, for appellants.

Harry W. MacDougald, Atlanta, Harmon W. Caldwell, Jr., for appellees.

BEASLEY, Judge.

Plaintiffs, three employees of NCR Telecommunication Service, Inc., (NCR-TSI), a subsidiary of NCR Corporation, sued both and sought damages for wrongful termination of their employment contracts (breach of contract) from NCR-TSI. Each asserted that he was hired for a period of one year beginning at the time set forth in a letter comprising part of the contractual agreement. The three employees were discharged as part of a reduction in force and granted two weeks "notice pay," from five to six months after each started.

The three letters, which are similar, are exemplified by the letter written to Gatins. It states in part: "We are pleased to extend an offer of employment as an Account Manager in the NCR-TSI Atlanta office reporting to Mike Gilmore, effective June 11, 1984, at a weekly salary of $346.00, which is $17,992 annually. Your salary will be paid one week in arrears on a biweekly basis. In addition, we will guarantee commissions of $231.00 per week also paid one week in arrears on a biweekly basis. This will provide you with annualized earnings of $30,004." The italicized portion is different from that contained in the other two plaintiffs' letters which read: "In addition, we will guarantee weekly commission of $231.00, which is $12,012 annually, for one (1) year from date of employment, also paid one week in arrears on a biweekly basis."

Within two to three weeks of the letter, each employee executed a form "Employment Agreement" which provided: "In consideration of my employment, and unless otherwise agreed upon in writing, I agree: ... 2. That NCR may change the rate, form and frequency of compensation, or terminate my employment without notice."

Originally plaintiffs relied on the two written portions of the contract and insisted that if there was any conflict or ambiguity the letter part should control to find they were employed for a period of one year.

Defendants answered and then NCR-TSI filed a motion for summary judgment. Plaintiffs filed a cross-motion for summary judgment which added the assertions that there were oral negotiations prior to the letter agreements and that evidence of such parol statements constituted a part of the entire employment agreement.

After hearing, the trial court found for NCR-TSI on its motion and against plaintiffs on theirs.

The trial court correctly determined the issue before it. "Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains." Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700, 342 S.E.2d 308 (1986); OCGA § 13-2-1. Summary judgment is proper even though the parties contend the contract should be construed differently. Kennedy v. Brand Banking Co., 152 Ga.App. 47, 262 S.E.2d 177 (1979).

Agreements not to be performed within one year from their making must be in writing. OCGA § 13-5-30(5). Dameron v. Liberty, etc., Ins. Co., 56 Ga.App. 257, 192 S.E. 446 (1937). "[W]hen writings are relied upon to take a transaction out of the statute of frauds, they must be complete within themselves, and they must contain the entire agreement, must disclose the subject matter, the parties thereto, and all the terms of the undertaking." Cashin v. Markwalter, 208 Ga. 444, 446(3), 67 S.E.2d 226 (1951). Since "the writing 'must be complete in itself leaving nothing to rest in parol,' ... all previous negotiations are merged in the subsequent written contract, and an additional obligation cannot be granted thereon by parol testimony." F.C. Brooks & Sons v. Shell Oil Co., 226 Ga. 435, 437(1), 175 S.E.2d 557 (1970).

While as a general rule if a writing does not encompass the entire agreement between parties, parol evidence is admissible to prove other conditions not inconsistent with the writing, this is not true as to a contract required to be in writing by our statute of frauds. As to such contracts, while parol evidence is admissible to explain ambiguities, it cannot be admitted to supply elements which are missing. Builder's Supply Corp. v. Taylor, 164 Ga.App. 127, 128, 296 S.E.2d 417 (1982).

Briefly summarized, plaintiffs argue that the letter controls--setting out an employment duration of one year, but, if not, the letter juxtaposed with the form agreement creates an ambiguity which can only be clarified by parol evidence. Lastly, it is urged that oral representation prior to the writings induced plaintiffs to rely upon such representations, comprised part of the basis of the bargain and thus were essential ingredients of the employment agreement. Defendants argued simply that the two writings reveal unequivocally that each contract was terminable at will and...