Richard Bowers & Co. v. Creel, A06A0671.
| Decision Date | 12 June 2006 |
| Docket Number | No. A06A0671.,A06A0671. |
| Citation | 633 S.E.2d 555,280 Ga. App. 199 |
| Court | Georgia Court of Appeals |
| Parties | RICHARD BOWERS & CO. v. CREEL. |
Richard P. Decker, Decker, Hallman, Barber & Briggs, P.C., Atlanta, for Appellant.
Timothy C. Batten, Sr., Schreeder, Wheeler & Flint, Atlanta, for Appellee.
Pursuant to an employment contract, Richard Bowers & Co. ("Bowers"), a commercial real estate broker, employed Kevin Creel as a licensed sales agent. Creel procured certain commercial lease deals for Bowers while employed by that company, but left the company to work for CRESA Partners ("CRESA"), a competing commercial real estate broker, before such leases were renewed or expanded. Creel then obtained renewals or expansions of these commercial leases with CRESA instead of Bowers. Bowers then sued Creel under its former employment contract with him and for alleged money had and received, claiming that Creel owed Bowers commission payments for the lease renewal and expansion deals that Creel had closed with his new employer. Creel moved for summary judgment, which the trial court granted. Bowers appeals from this ruling. Since the plain terms of the employment contract at issue do not allow Bowers to receive commission payments for deals closed with Creel's subsequent employer, and since the contract would be unlawful if it did require such commission payments from Creel, we affirm.
On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga.App. 553, 553-554, 562 S.E.2d 731 (2002).
So viewed, the evidence reveals that Bowers hired Creel as a licensed commercial real estate agent in March 1986. The employment agreement between Bowers and Creel contained the following provision in the event of Creel's departure from the company:
Departure Arrangements. Should you decide to remove your license with [Bowers] at some point, the existing commission accounts would be paid to you on the basis of you receiving 50% of the commissions and [Bowers] receiving 50% of the commissions . . . . This policy would apply through the [commercial] lease term; however, should [commercial lease] renewals and expansions take place, you would be discounted a very small amount, where you would then receive 45% of the monthly commissions and [Bowers] would receive 55% of the monthly commissions.
Creel voluntarily terminated his employment with Bowers in July 2002 to work for CRESA. While employed with CRESA, Creel procured eleven lease renewals and one lease expansion of leases that he had originally procured while employed with Bowers. Bowers then sued Creel, claiming that Creel owed it 55% of the commissions earned from these transactions pursuant to the departure terms of his employment contract with Bowers.
1. Bowers claims that the trial court erred in concluding that Creel did not breach his employment contract by failing to pay Bowers commissions stemming from the deals that Creel closed with his new employer. We disagree.
Here, Bowers' argument turns upon the construction of the contract, which construction involves a question of law for the court to resolve based on the intent of the parties as reflected in the agreement. See Deep Six, Inc. v. Abernathy, 246 Ga.App. 71, 73(2), 538 S.E.2d 886 (2000); OCGA § 13-2-1. We review this issue de novo. Deep Six, Inc., supra, 246 Ga.App. at 73(2), 538 S.E.2d 886. First, we must determine if the contract language is ambiguous, and, if so, then we apply the appropriate rules of construction set forth in OCGA § 13-2-2. "Where the language of a contract is plain and unambiguous, [however,] no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance." (Citation and punctuation omitted.) Race, Inc. v. Wade Leasing, Inc., 201 Ga.App. 340, 341(1), 411 S.E.2d 56 (1991).
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