Andrew J. Sims appeals from the trial court’s grant of summary judgment in favor
On appeal from the grant of summary judgment, “we apply a de novo standard of review.” (Citations and punctuation omitted.) Ga. Cash America v. Greene,
So viewed, the record reveals that in 2006, Sims was hired as the CFO of Alexander Gallo Holdings, LLC (“AGH”), a court reporting company. Sims’s employment was pursuant to a 2006 employment agreement with AGH, which was later superseded by a 2011 employment agreement.
Beginning in 2011, AGH began to suffer from financial difficulties, and on September 7, 2011 it filed a voluntary Chapter 11 bankruptcy petition. AGH requested permission of the court to sell its assets pursuant to 11 USC § 363, and negotiated an October 6, 2011 asset purchase agreement (“APA”) naming AGH and others as the seller and Bayside Gallo Acquisition, LLC (subsequently renamed “Esquire”), as the buyer. The APA was amended on November 8, 2011, and on November 10, 2011, the bankruptcy court approved the APA and set a hearing to consider any obj ections to the assumption or assignment of any “Assumed Contracts.” The APA was again amended for a final time on November 23, 2011, the day the asset purchase closed.
Pursuant to the APA, as amended, the assets in AGH’s bankruptcy estate were divided into acquired assets and liabilities, which Esquire would purchase, and excluded assets and liabilities, which it would not purchase. Sims’s employment agreement with AGH was listed as an “excluded contract” on Schedule 1.1 (b) (ii) of the October 6 and November 8 versions of the APA.
On November 14, 2011, nine days prior to the closing of the asset purchase, AGH published a press release announcing the bankruptcy court’s approval of the APA. At the time of the final amendment to the APA on November 23, 2011, and the closing of the purchase on the same day, however, Sims’s employment agreement with AGH was listed as a designated (or pending) contract, but was later deemed an excluded asset under the APA.
Although Esquire did not acquire Sims’s employment agreement at the closing of the APA, Sims nevertheless began employment with Esquire following the closing on an at-will basis. On November 28, 2011, five days following the closing of the asset purchase, Esquire informed Sims that his employment would be terminated.
Sims subsequently filed a verified complaint against Esquire, its affiliates, and Jackson Craig, its managing director, alleging breach of an oral contract, breach of a written contract, “promissory estoppel and detrimental reliance,” fraudulent inducement, and unjust enrichment. He also sought attorney fees and costs.
The parties filed cross-motions for summary judgment, and following a hearing, the trial court granted Esquire’s motion, and denied Sims’s motion. It is from this order that Sims appeals.
1. Sims argues that the trial court erred in granting summary judgment to Esquire on his claim for breach of an oral agreement that he claims was reached between
A contract is an agreement between two or more parties for the doing or not doing of some specific thing. In order that there may be an agreement, the parties must have a distinct intention common to both and without doubt or difference. Until all understand alike, there can be no assent, and, therefore, no contract. Both parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode is agreed on by which it may be settled, there is no agreement.
(Citations, punctuation and footnote omitted.) BDI Laguna Holdings v. Marsh,
It is undisputed that Sims was an at-will employee of Esquire who was later terminated. In the absence of an agreement requiring Esquire to pay Sims severance or provide him with health benefits or reimbursement for legal fees, Esquire was under no obligation to do so. The offer to make these concessions would therefore be “a mere gratuity.” (Citation and punctuation omitted.) Mgmt. Search v. Morgan,
“[Wjhere there is a conflict in the evidence as to the existence of an oral contract or as to its terms, the matter must be submitted to a jury for resolution.” (Citations and punctuation omitted.) Rome v. Polyidus Partners,
2. Sims next complains that Esquire committed fraud by leading him to believe that he would receive a written offer of employment for a definite term following
“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” (Citation and punctuation omitted.) Stiefel v. Schick,
And significantly, when the representation consists of general commendations or mere expressions of opinion, hope, expectation and the like, the party to whom it is made is not justified in relying upon it, and thus, it cannot serve as the basis for either a fraud or a negligent misrepresentation claim.
(Citations, punctuation and footnotes omitted.) Bithoney v. Fulton-DeKalb Hosp. Auth.,
Sims points to statements in Esquire’s press release, published nine days before the closing, that the “[e]ntire management team” (of which he was a part) was “excited to continue leading the Company”; an e-mailed letter on the same day to Esquire employees stating that “[o]ur entire management team . . . [is] committed to continuing to build the business”; and a notation at the bottom of Schedule 1.1 (b) (ii) (Excluded Contracts) referring to Sims and several other employees and stating: “Buyer intends to make offers of employment to such persons pursuant to and in accordance with . . . the Purchase Agreement.” Sims contends that it was reasonable to infer from these representations that he would receive a written offer of employment from Esquire following the closing. He argues that because Craig deposed that he had decided prior to the November 14 press release that he was going to replace Sims as CFO, the press release, e-mail and the notation in the APA were false representations.
First, Sims has failed to show that the statements in the press release and e-mail were false representations. He has provided no evidence showing that management, including himself, did not in fact look forward to continuing to lead the company. See Marshall v. King & Morgenstern,
3. Sims argues that the trial court erred in granting summary judgment on his claim for breach of his written employment agreement. While his AGH employment agreement was not expressly assumed by Esquire, Sims argues that Esquire “unilaterally” and extrajudicially assumed the agreement by seeking to enforce its post-termination provisions.
The record reveals that on January 12, 2012, Esquire sent Sims a letter seeking to
Sims’s argument here is essentially that Esquire, by seeking to enforce an agreement it did not assume under the APA, nevertheless assumed the agreement by implication and is bound thereby.
Where a contract or undertaking is personal, it binds only the original parties and those who may assume the obligation or ratify or adopt the contract.... A third person may, of course, assume the obligation expressly in writing, or he may do so by implication where his conduct manifests an intent to become bound. In the latter event all the circumstances must be considered, such as the subj ect matter of the contract, the third person’s acts and words, whether he acquiesced in the terms of the contract, performed its obligations, or accepted the benefits. Although the burden of proving an express or implied assumption is on the claimant at trial, the defendant as movant on motion for summary judgment, has the burden of proving that an assumption did not occur.
(Citations and punctuation omitted.) Boss v. Bassett Indus.,
While Esquire did not expressly assume Sims’s employment agreement with AGH in writing, it did seek in writing to enforce its provisions. And Esquire has not shown that it did not accept the benefit of Sims’s claimed compliance with the agreement’s post-termination provisions at Esquire’s request. In fact, Esquire makes no argument asserting that it did not assume the employment agreement by implication, but argues only that it did not expressly do so. Under these circumstances, Esquire has not met its burden of proving that an assumption did not occur. Because there exists a question of fact as to whether Esquire, by its actions, assumed Sims’s employment agreement with AGH by implication, the trial court erred in granting Esquire summary judgment on Sims’s claim for breach of that agreement. See Boss, supra,
4. Finally, Sims argues that he was entitled to 160 hours of vacation pay upon his termination from Esquire. The record contains Sims’s earning statements as an AGH employee from December 2010 to December 2011. One of these statements, for a pay period ending on July 31, 2011, showed that as of that date, Sims had accrued a vacation balance of 160 hours. Esquire argues that it only assumed liability for accrued vacation after the filing of the bankruptcy petition, and that because the 160 hours of Sims’s vacation was accrued before the filing of the petition, it is not obligated to pay Sims for those hours.
Because we have held in Division 3 that there is an issue of fact regarding whether Esquire assumed Sims’s 2011 employment contract with AGH, consideration of whether he is entitled to payment for vacation accrued under that agreement is premature. We therefore do not address this enumeration.
Notes
While Schedule 1.1 (b) (ii) is not attached to the November 8 amendment, the amendment does not purport to alter that schedule.
The November 23 amendment amended certain schedules of the October 6 APA “as amended on November 8, 2011,” but those schedules are not attached to the November 23 amendment and the parties have not provided a record cite to the attachments in this voluminous record. The parties do not assert, however, that any of the schedules were amended such that it would affect the claims presented on appeal.
Esquire argues that the parties failed to agree on the exact dollar amount of the six months of salary. But construing the evidence as we must in favor of Sims, the parties agreed that Esquire would pay Sims six months of his salary as severance, health insurance through the end of the year, and $175,000 to Sims and Gallo for reimbursement. So in addition to an issue of fact regarding whether the parties reached an oral agreement, there also remains an issue of fact regarding the exact amount of six months of Sims’s salary. Esquire argues further that the parties failed to agree as to whether the severance would be styled as a loan reimbursement for tax purposes, and failed to agree on how to allocate the litigation expenses between Sims and Gallo. But “the parties need only agree to the essential terms of the contract... it is unnecessary that a contract state definitively and specifically all facts in detail to which the parties may be agreeing.” (Citations and punctuation omitted.) See Rushin v. Ussery,
This 2011 employment agreement contained confidentiality, nondisclosure, and non-solicitation provisions.