Massih v. Mulling

• Decision Date: 17 February 2005
• Docket Number: No. A04A1977.,A04A1977.
• Citation: Massih v. Mulling, 271 Ga.App. 685, 610 S.E.2d 657 (Ga. App. 2005)
• Parties: MASSIH v. MULLING et al.
• Court: Georgia Court of Appeals

610 S.E.2d 657

271 Ga. App. 685

MASSIH v. MULLING et al.

No. A04A1977.

Court of Appeals of Georgia.

February 17, 2005.

Romich & Associates, Keith B. Romich, Fisher & Phillips, F. Kytle Frye, III, Atlanta, for appellant.

Kilpatrick Stockton, James H. Coil III, Christopher J. Kellner, Atlanta, for appellees.

MILLER, Judge.

William J. Massih, as executor of the estate of Kay M. Massih, appeals from the trial court's grant of summary judgment to Emory Mulling, The Mulling Companies, Inc., and Career Directions, Inc. d/b/a The Mulling Group (hereinafter collectively referred to as Mulling) on Kay Massih's breach of contract and tort claims. For the following reasons, we affirm.

To prevail on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). When reviewing the grant of a motion for summary judgment, this Court conducts a de novo review of the law and evidence. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).

Viewed in the light most favorable to the executor, the evidence showed that Kay Massih began working for The Mulling Group in 1993, providing outplacement services. In August 2000, Massih and Emory Mulling, chairman of the Mulling Companies, discussed starting a new outplacement service company with Massih as the president. In exchange for Massih becoming president, Emory Mulling initially offered Massih 10% ownership of the new company, but the two later agreed after negotiations that Massih would own 20% and Emory Mulling 80% of the company, Career Directions, Inc. (CDI). Emory Mulling announced that Massih was assuming the role of president and partner.¹ On September 1, 2000, Massih became president of CDI. She also attended Lincolnshire International (an association of outplacement service providers) as an owner of CDI. Massih and Emory Mulling attempted to negotiate the terms of a shareholder agreement but never reached an accord.

In December 2001, Massih submitted her resignation after informing Emory Mulling that she wanted to become an independent broker of outplacement services who would still work closely with The Mulling Group. Following her departure from CDI and The Mulling Group, Massih sued, alleging breach of contract, fraud, unjust enrichment, violation of a confidential relationship, breach of fiduciary duty, and intentional infliction of emotional distress. She alleged that Mulling failed to transfer her 20% ownership interest in CDI upon her departure from the company. Mulling moved for summary judgment, but Massih died several days prior to the hearing on the motion. The trial court granted Mulling's motion for summary judgment, and the executor of Kay Massih's estate now appeals. He argues that the trial court erred in finding that Massih's ownership interest was too indefinite to enforce and in entering summary judgment on the remaining claims.

1. The executor argues that the trial court erred in concluding that the oral agreement between Massih and Emory Mulling was too indefinite to enforce. We disagree.

It is well settled that "[t]he consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition." OCGA § 13-3-2. Moreover, "[a] contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain. In addition, the party asserting the existence of a contract has the burden of proving its existence and its terms." (Punctuation and footnote omitted.) Home Depot U.S.A. v. Miller, 268 Ga.App. 742, 744(1), 603 S.E.2d 80 (2004).

The executor argues that the proof of Massih's ownership was her participation in the Lincolnshire meetings and the submission of a tax form listing Massih as a 20% shareholder. Emory Mulling admitted that he allowed Massih to attend the Lincolnshire meetings even though he was aware that her attendance was improper, since only owners were permitted to attend. He further explained that because he planned on Massih becoming a part-owner at some point, he did not see the harm in allowing her to attend the meetings. Therefore, Massih's attendance at the Lincolnshire meetings is not necessarily indicative of ownership. Moreover, the tax form showing that Massih was a 20% shareholder was, at most, inconclusive as to her status, since the parties had not yet completed negotiations on the specifics of the shareholder agreement at the time the form was signed.

Massih herself admitted that although Emory Mulling had promised her a 20% ownership in CDI, there were several details about the ownership that were never resolved. The two did not discuss when Massih would receive her ownership interest or how CDI was to be structured. Under these circumstances, we agree with the trial court that the oral agreement was too indefinite to enforce. See Razavi v. Shackelford, 260 Ga.App. 603, 604-605(1), 580 S.E.2d 253 (2003) (agreement was too vague to enforce where the parties did not discuss matters including the duration of the agreement and the time needed for each...