Pacrim Assoc. v. Turner Home Entertainment

• Decision Date: 30 November 1998
• Docket Number: No. A98A0928.,A98A0928.
• Citation: 510 S.E.2d 52,235 Ga. App. 761
• Parties: PACRIM ASSOCIATES et al. v. TURNER HOME ENTERTAINMENT, INC.
• Court: Georgia Court of Appeals

510 S.E.2d 52

235 Ga. App. 761

PACRIM ASSOCIATES et al. v. TURNER HOME ENTERTAINMENT, INC.

No. A98A0928.

Court of Appeals of Georgia.

November 30, 1998.

Reconsideration Denied December 15, 1998.

Alembeck, Fine & Callner, Mark E. Bergeson, Atlanta, Zoe I. Martinez, Dunwoody, for appellants.

Troutman Sanders, Kaye W. Burwell, John J. Dalton, Atlanta, for appellee.

RUFFIN, Judge.

Pacrim Associates and one of its shareholders and employees, Pamela Kent, sued Turner Home Entertainment ("Turner") under various contract theories and for fraud. In its complaint, Pacrim alleges that it entered into an agreement with Turner under which Pacrim was appointed as Turner's exclusive licensing and merchandising agent in Thailand for a one-year period. Plaintiffs allege that Turner's premature termination of the contract gave rise to causes of action for breach of contract, promissory estoppel, and fraud, inter alia. The trial court granted summary judgment in favor of Turner on all issues. Plaintiffs appeal, asserting that the trial court erred (1) in ruling as a matter of law that the parties did not form a binding contact; (2) in granting summary judgment on their promissory estoppel claim; and (3) in granting summary judgment on their fraud claim. For reasons which follow, we find that the trial court correctly granted summary judgment to Turner on plaintiffs' fraud claim, but erred in granting summary judgment to Turner on their contract and promissory estoppel claims.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." (Citation omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Our review is de novo. Walker v. Virtual Packaging, LLC, 229 Ga.App. 124, 493 S.E.2d 551 (1997).

Viewed in a light most favorable to plaintiffs, the nonmovants, the record reveals that Pacrim is a limited liability company registered in Thailand. Beginning in 1992, Pacrim acted as an agent for Turner Publishing, a Turner subsidiary. The agency relationship was established following discussions between Pacrim and Turner Publishing and was finalized in a letter of agreement between the parties. As an agent, Pacrim was to seek opportunities in certain Asian countries to sell and publish Turner Publishing titles.

During its agency with Turner Publishing, Pacrim expressed interest in licensing other Turner properties in Asia. Accordingly, in early 1994, James Porges, Turner Publishing's Manager of International Sales, introduced Kent to Turner employees involved in merchandising and licensing other Turner products. Two such individuals were Turner's President, Phil Kent¹ (no relation to Pamela Kent), and Turner's Vice-President of International Licensing, Helen Isaacson. During meetings with Phil Kent and Isaacson, Pamela Kent proposed that Pacrim serve as the licensing and merchandising agent for Turner's Hanna-Barbera cartoon characters in Thailand. On May 22, 1994, Porges sent a letter to Pacrim in which he stated that "I spoke to Helen [Isaacson] and Phil Kent early last week regarding merchandising in Asia and they have agreed to let Pacrim represent Turner licensing and merchandising on an exclusive basis in Thailand for a one year trial period. You will have to work out approval systems, commissions, and operating procedures with Helen." Phil Kent also spoke with Pamela Kent and informed her that Turner was "willing to try this for a year, [but Pacrim has] to work out the details with Helen [Isaacson]." According to Pamela Kent, Phil Kent "agreed that Pacrim would be retained on the standard Turner agency terms for merchandising and licensing, which included a thirty percent (30%) commission to Pacrim upon any royalties payable to Turner as a result of merchandising and licensing agreements."

As instructed by Porges and Phil Kent, Pamela Kent contacted Isaacson to arrange the details of Pacrim's agency agreement with Turner. According to Kent, during a July 4, 1994 telephone conversation, Isaacson "confirmed that Pacrim had indeed been retained by [Turner] as merchandising and licensing agent in Thailand for a one-year period on an exclusive basis through July 1, 1995." Isaacson further informed Kent that she would send Pacrim all the required materials shortly. On July 13, 1994, Isaacson sent Kent a memo detailing Turner's licensing guidelines, royalty rates, licensing and merchandising approval process and its policies concerning copyrights and trademarks and stating, "We look forward to working with you."

Although Turner failed to respond to Kent's subsequent requests for further information and guidance, and the parties never executed a written agreement, on August 23, 1994, Turner sent a memo to its current Hanna-Barbera licensees, declaring, "We are pleased to announce that Pacrim Associates is Turner's newly appointed agent in Thailand for Hanna-Barbera Properties. They will be contacting you shortly to update you on the Hanna-Barbera licensing program for the region and to provide you with information regarding new compliance procedures. Of course, feel free to contact Pamela Kent... at any time. We are pleased to be working with Pacrim and are confident that the Thailand Hanna-Barbera business will enjoy an unprecedented level of support." Based on this memo, the prior written correspondence between the parties, and their verbal agreement for a one-year agency, Pacrim entered into extensive negotiations with several Thai companies to obtain licensing and merchandising agreements on behalf of Turner.

The record further shows that on September 21, 1996, Isaacson directed Turner employees to prepare an agent's representative agreement for Pacrim. Specifically, Isaacson advised these employees that "PacRim [sic] will be our agent for all Hanna Barbera Properties." However, Turner never presented the written agreement to Pacrim for execution. According to Isaacson, she did not ask Pacrim to execute a contract because she "had [certain] concerns." In a January 16, 1995 letter to Pacrim, Turner notified the company that it was terminating the parties' relationship. In the letter, Turner stated that because the parties' "discussions have failed to result in any agreement between the parties as to the material terms of the relationship[,]... we have decided to terminate the at-will relationship between [Pacrim] and [Turner's] merchandising division." The lawsuit which is the subject of this appeal followed.

1. The trial court granted Turner summary judgment on plaintiffs' breach of contract claim on the ground that the parties' agreement was "too vague and indefinite to constitute an enforceable contract." Plaintiffs assert that there was sufficient specificity, and we agree.

"The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon." (Citations and punctuation omitted.) McLean v. Continental Wingate Co., 212 Ga.App. 356, 358(1), 442 S.E.2d 276 (1994). Moreover, "[i]t is unnecessary that a contract state definitively and specifically all facts in detail to which the parties may be agreeing, but as to such matters, it will be sufficiently definite and certain if it contains matters which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves." (Citations and punctuation omitted.) Toncee, Inc. v. Thomas, 219 Ga.App. 539, 542(2), 466 S.E.2d 27 (1995). We must look to the actions of the parties to determine whether they intended to be bound by the terms of their agreement. Id. at 541, 466 S.E.2d 27.

The verbal agreement in this case was sufficient to establish a binding agreement between Turner and Pacrim. Specifically, the parties verbally agreed that Pacrim would be Turner's exclusive agent for licensing and merchandising of Hanna-Barbera properties in Thailand for a one-year period ending July 1, 1995, and that the agreement would be subject to Turner's standard agency terms for merchandising and licensing, which included a thirty percent commission to Pacrim upon any royalties. We are bound to view the evidence before us in a light most favorable to plaintiffs, the nonmoving parties, Lau's Corp., supra, and in so doing, we find that the evidence demonstrates that plaintiffs never rejected these terms and that the parties did not leave any material terms to future negotiations. Instead, as instructed by Porges and Phil Kent, Pamela Kent contacted Isaacson to clarify the remaining details of Pacrim's agency agreement with Turner, and shortly thereafter, Isaacson notified Pacrim of Turner's standard licensing guidelines, royalty rates, licensing and merchandising approval process and copyrights and trademark policies. The evidence further reflects that although Pacrim sought additional information and clarification...