Mark Vernon v. Assurance Forensic Accounting, LLC, 333 Ga. App. 377

Background

Vernon worked for Assurance Forensic Accounting under an oral 5%/15% commission structure (on specified clients and others) and later agreed to an amended, oral compensation plan in 2006.
The parties disputed the Amended Compensation Agreement's severance terms: Vernon said severance would be paid at his current 5/15 rate on all jobs "received" prior to and during a 12‑month severance; Assurance said the 5/15 rate would apply only until annual revenue exceeded $3,000,000, after which severance rates were discretionary.
In 2011 Assurance proposed a new commission plan; Vernon rejected it by letter on May 22, 2011, asserting his interpretation of the severance agreement. Assurance terminated Vernon the same day and began a one‑year severance payment cycle.
Assurance paid Vernon the first severance check at 5/15 rates but thereafter reduced payments without providing requested supporting documentation; Vernon alleged the company misled him about work volume and payment calculations.
Vernon sued for breach of contract, promissory estoppel, unjust enrichment, money had and received, fraud, Georgia RICO violations, and equitable accounting. Assurance moved for summary judgment; the trial court granted judgment for Assurance on breach, money had and received, fraud, RICO, and accounting, but denied summary judgment on promissory estoppel and unjust enrichment.
On appeal the Court of Appeals reversed summary judgment on the breach claim (finding factual disputes as to enforceable severance terms), affirmed dismissal of money had and received, fraud, RICO, and accounting, and affirmed denial of summary judgment on promissory estoppel and unjust enrichment.

Issues

Issue	Vernon (Plaintiff) Argument	Assurance (Defendant) Argument	Held
Breach of contract — enforceability of oral severance term	Parties agreed oral severance: 12 months at current 5/15 rate on all jobs "received" prior to/during severance; terms sufficiently definite	Agreement too vague/indefinite (calculation and triggering ambiguous); might be subject to later written agreement; Statute of Frauds bars oral 12‑month promise	Reversed: factual dispute exists; terms viewed favorably to Vernon could be sufficiently definite; Statute of Frauds not applicable because performance might occur within one year
Money had and received	Vernon seeks recovery for amounts Assurance retained instead of paying him	Clients paid Assurance, not Vernon; no “true owner” entitlement to refund	Affirmed for Assurance — equitable restitution unavailable because Vernon was not the direct owner of client payments
Fraud (fraudulent promise/omissions)	Defendants knowingly misrepresented severance and business status to induce acceptance/forestall challenge	No evidence of present intent not to perform or detrimental reliance by Vernon	Affirmed for Assurance — no evidence promisor intent at time of promise or justifiable reliance causing damages
Georgia RICO (predicate acts: theft by deception, mail/wire fraud)	Sending reduced checks and misleading emails constituted predicate acts causing injury	No predicate act proved: Vernon did not reasonably rely; no proximate causation from alleged mail/wire fraud	Affirmed for Assurance — Vernon failed to show requisite predicate acts and proximate causation
Equitable accounting	Transactions are complex and require an accounting to determine amounts owed	Records not unusually complicated; adequate legal remedies (breach claim and discovery) exist	Affirmed for Assurance — accounting not warranted as matter of law
Promissory estoppel	Even if no enforceable contract, promise to pay severance induced Vernon and is enforceable to prevent injustice	Promise too vague and indefinite for estoppel	Affirmed denial of summary judgment for Assurance — factual dispute precludes summary disposition
Unjust enrichment	Assurance was unjustly enriched by retaining amounts promised as severance after inducing Vernon to return and procure clients	Vernon did not confer a benefit or was adequately compensated	Affirmed denial of summary judgment for Assurance — jury could find benefit conferred and inequity in withholding payments

Key Cases Cited

Triple Eagle Assoc. v. PBK, Inc., 307 Ga. App. 17 (Ga. Ct. App.) (uncertainty must be extreme to render contract unenforceable)
Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (Ga. 1986) (self‑contradictory testimony construed against equivocator)
Bell Bros. v. Aiken, 1 Ga. App. 36 (Ga. Ct. App.) (oral one‑year agreements beginning on date made fall outside Statute of Frauds)
Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (U.S. 2008) (civil RICO mail/wire fraud proximate‑cause and reliance discussion)
Pollman v. Swan, 314 Ga. App. 5 (Ga. Ct. App.) (need for proximate causation in RICO claims via mail/wire fraud)
William N. Robbins, P.C. v. Burns, 227 Ga. App. 262 (Ga. Ct. App.) (money had and received requires the plaintiff be the true owner of funds)