J.M. Clayton Co. v. Martin

Decision Date12 November 1985
Docket NumberNos. 70720,70721,s. 70720
PartiesJ.M. CLAYTON COMPANY v. MARTIN (two cases).
CourtGeorgia Court of Appeals

Ronald Barfield, Thomaston, for appellant.

Timothy D. Chambers, John W. Chambers, Sr., John W. Chambers, Jr., Atlanta, for appellee.

BENHAM, Judge.

Appellee Martin's employment with appellant J.M. Clayton Company was terminated on January 9, 1984. On March 14, 1983, nearly ten months before appellee was relieved of his duties, he, appellant, and the other shareholders of appellant entered into an agreement in which appellant agreed to purchase Martin's 84 shares in the company at "book value" within 90 days of Martin's death or the termination of his employment. Contending that appellant failed and refused to perform as promised, appellee filed suit against appellant. In Count 1 of his complaint, appellee sought damages for the alleged breach of contract; in Count 2, he claimed appellant owed him salary from the previous year; and in Count 3, he asserted a claim for salary allegedly due him for the nine days of his employment in 1984. Finally, in Count 4, appellee alleged he was wrongfully terminated from his positions as corporate secretary and a member of the company's board of directors. The trial court granted appellee summary judgment on Counts 1 and 3 and awarded him damages, and denied summary judgment to appellant. This appeal followed.

1. The trial court's order granting partial summary judgment to appellee was entered on February 20, 1985. Appellant filed a notice of appeal and paid the accrued costs on March 8, 1985. On March 14, the trial court amended its February 20 order to include awards of monetary damages in each of the two counts in which summary judgment had been granted. The costs of preparing the appellate record were paid by appellant on March 19. Appellant maintains the trial court was not empowered to amend the judgment entered on February 20, because the filing of the notice of appeal on March 8 and the payment of costs accrued as of that time acted as a supersedeas, depriving the trial court of the power to affect the judgment from which the appeal was taken. See Jackson v. Martin, 225 Ga. 170 (2b), 167 S.E.2d 135 (1969); Brown v. Wilson Chevrolet-Olds, 150 Ga.App. 525 (2), 258 S.E.2d 139 (1979). Citing Smith v. Bruce, 241 Ga. 133 (14), 244 S.E.2d 559 (1978), appellee argues that the notice of appeal did not act as a supersedeas until March 19, 1985, the date the costs of preparing the appeal were paid in the trial court, and notes that the amendment to the trial court's judgment preceded the payment of those costs.

"Under [OCGA § 5-6-46 (a)], a notice of appeal shall serve as a supersedeas upon payment of all trial costs by the appellant." Henson & Henson, P.C. v. Myszka, 160 Ga.App. 135(2), 286 S.E.2d 456 (1981). (Emphasis supplied.) Appellant paid all the trial costs on March 8; only the costs of appeal preparation were paid on March 19. Since on March 9, 1985, a notice of appeal had been filed and the appropriate costs paid, the trial court was without authority to modify the judgment then on appeal. See Cohran v. Carlin, 249 Ga. 510, 512, 291 S.E.2d 538 (1982). Since the order entered March 14, 1985, affected the February 20, 1985, judgment then on appeal, it was "coram non judice and void." Brock v. State, 166 Ga.App. 649, 305 S.E.2d 180 (1983). The amendment of March 14 must, therefore, be vacated.

2. Concerning the judgment entered February 20, appellant maintains error was committed when the trial court granted appellee summary judgment on the breach of contract claim, and denied appellant's motion for summary judgment on that claim.

In the March 14, 1983, document, appellant and appellee agreed that "in the event that Martin is fired from his employment with the Company ..., the Company shall be obligated to purchase his Class 'A' shares in the Company for cash at their 'book value' as finally determined under this agreement, which shall be paid not later than ninety (90) days following the ... discharge of Martin." A separate paragraph in the document provided that the "book value" of the shares was to be determined by dividing the company's net worth as shown as of December 31, 1982, on the balance sheet prepared by a certain firm of certified public accountants by the total number of outstanding shares. However, in October 1983, appellant and two other shareholders who were parties to the March 14 agreement expressed disenchantment with the chosen accounting firm and negotiated among themselves a book value of $1,130.95 per share. Martin, as secretary of the company, signed the October documents as an attestor.

Ten days after Martin was fired, appellant's president stated in a letter to Martin that appellant would purchase Martin's 84 shares "for cash in the amount of $1,130.95 per share on April 8, 1984, the 90th day following termination." Appellee replied on January 26, 1984, that he would accept the sum offered and allow the company to avoid the expense of an inventory, audit, and financial review "as required by the Agreement of March 14, 1983," if the company acceded to several additional demands appellee had. If his proposal was not acceptable to appellant, appellee informed appellant he wished to review the company's books and records, to inventory the company's tangible assets, and to have an audit performed to ascertain the value of his shares. Appellant declined appellee's proposal and stated that it viewed itself as having complied with the March 14 agreement since it had offered to purchase the shares in conformity with the agreement and appellee had rejected the offer.

Appellant's motion for summary judgment and its opposition to appellee's motion are premised on the proposition that appellee's letter of January 26, 1984, constituted an anticipatory repudiation of the March 14, 1983, agreement relieving appellant of its obligation to perform.

"[T]he 'anticipatory repudiation' of a contract occurs when one party thereto repudiates his contractual obligation to perform prior to the time such performance is required under the terms of the contract ... Thus when one party to a bilateral contract of mutual dependent promises absolutely refuses to perform and repudiates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved from any future performance on his part ..." CCE Fed. Credit Union v. Chesser, 150 Ga.App. 328 (1), 258 S.E.2d 2 (1979). (Emphasis supplied.) "The breach which will form the basis for [an anticipatory breach of contract] action is an unqualified repudiation of the entire contract prior to the time for performance." Continental Cas. Co. v. Stephenson, 112 Ga.App. 666 (2), 145 S.E.2d 825 (1965). (Emphasis supplied.) Appellee's letter of January 26, 1984, did not constitute an anticipatory repudiation of the March 14 agreement since it was not an unqualified, absolute refusal to perform. Instead, through it, appellee proposed to vary the terms of the contract but agreed to be bound by the contract if the variations were not acceptable to appellant. "A willingness to negotiate an offer of performance at variance with the terms of the agreement demonstrates the offering party's intention to abide by the contract and does not result in an anticipatory breach. [Cits.]" Pacific Coast Engineering v. Merritt-Chapman etc., Corp., 411 F.2d 889, 895 (9th Cir.1969). Since appellee's letter did not constitute an anticipatory breach of the March 14 agreement and since that was appellant's only defense to its refusal to act pursuant to the March 14 document, it was not error to deny appellant summary judgment on...

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    ...the original order and to subsequently enter a new order on plaintiff's summary judgment motion. Compare J.M. Clayton Co. v. Martin, 177 Ga.App. 228(1), 339 S.E.2d 280 (1985). Judgment affirmed in part; reversed in part and cases remanded in Nos. 73143 and 73155. Appeal dismissed in Case No......
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