Jackson v. JHD Dental, LLC et al

Filing 34

ORDER and OPINION GRANTING IN PART AND DENYING IN PART defendant's 20 Motion for Summary Judgment. Dft's Motion for Summary Judgment is GRANTED with respect to plaintiffs claims for unjust enrichment and atty fees under O.C.G.A. § 9-15-14 and DENIED for the remainder of plaintiff's claims. Signed by Judge Julie E. Carnes on 6/14/11. (jlm)

FILIID IN CHAMBERS
U.s,D,C, Atlnnta

IN TEE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DIS:::RICT OF GEORGIA

ATLA~TA DIVISION

RANDA:::'I, JACKSON,
Plaintiff,
CIVIL ACTION NO.

v.

1:10-CV-00173-JEC

JHD DENTAL, LLC, and DOBBS
SERVICE, LLC,

C1ANAGE~ENT

Defendants.

ORDER & Ol?rNrON

This case is presently before the Court on defendants' Motion
for Summary Judgment [20J.
arguments

of

the

parties

The Court has reviewed
and,

for

the

~he

reasons

cor:cludes that defendants' Motion for Summary

record and the

set

Judgmen~

out

below,

[20] should be

GRANTED in part and DENrED in part.

BACKGROUND

This is a breach of contract action arising from the termination
of plair:tiff's employment as president of defendant JHD Dental, LLC
("-THD").

Plaintiff contends that his termination violated the terms

of his emp:oyment cor:tract.

(Am.

CompI.

[14].)

He filed chis suit

in an effort to obtain severance pay and :ost bonus opportunities
under the cor:tract.

(Id. )

Defer:dants argue that plaintiff is not

entitled to any severance or bonus payments because he was termina"ced

"for cause."

suw~ary

motion for

I.

(Defs.'

Mot.

for Summ.

[20J.)

J.

They have filed a

judgment on all of plaintiff's claims.

(Id. )

The Initial Negotiations
In 2007, plaintiff sought investors for a new chain of pediatric

dental clinics.

'lI'Il

10-11,

To

15.)

plaintiff

,20 J at

(Defs.' Statement of Material Facts ("DSMF")

created

generate

a

inter'est

presentation

developing the clinics.

(Id.

in

that

at 'ii'll 15-16.)

his

business

outlined

his

venture,
plan

for

On September 14, 2007,

plaintiff presented his plan to defendant Dobbs Management Services
(Smile Time Presentation,

("Dobbs Management").
Dep.

[20J

attached to Pl.'s

at Ex. 2.)

In the Dobbs Management presentation, plaintiff proposed to open

(DSHF

twenty-two clinics in several states over a five year period.
[20: at

For each clinic, plaintiff projected a time frame

'II 25.)

of six months from the funding stage to the opening.

(Id.

at 'II 21.)

Plaintiff forecast 2008 revenues of $3.4 million and 2009 revenues of

$12.2 million.
revenues

and

(Id.

at 'II 27.)

after-tax

following five years.

income
(Id.

He represented to defendants that
would

steadily

increase

over

the

at 'Il 27.)

In addition to the timeline and financial information, the Dobbs
Management presentation included a proposed leadership structure for
the

dental

clinic

business.

(1d.

at

'Il

16. )

According

to

the

proposed structure, the business would be run by a leadership team,
consisting of plaintiff as chief executive officer and an unnamed

2

executi ve

vice

president

dental groups.

with

(DSMF [20) at

experience

~

16.)

in

launching

pediatric

Plaintiff anticipated that his

former colleague, Dan Houser ("Ho:1ser"), would be named as the vice
president.

(PI.' s Dep.

In early 2008,

[201 at 42.)

plaintiff and Houser prepared a more detailed

"kic:<off presentation" for Dobbs Management.

(DSMF [20) at

~

29. i

The kickoff presentation did not add any new financial projections to
the original plan.
[20)

at Ex.

original

development.

However,

5.)

plan

(Smile Time Presentation, attached to Pl.'s Dep.

by

the

proposing

2008 presentation expanded on the

"target"

states

for

initial

clinic

(Id.)

The kickoff presentation also incl:1ded a more

detailed timeline,

itemizing specific tasks to be completed during
(DSMF [20] at

each stage of clinic develop:r,ent.
II.

~

32.)

The Relevant Contracts

Based on the information provided in the original plan and the
kickoff presentation,
dental clinic business.

defendants decided to invest in plaintiff's
(Id.)

execution of two doc:1ments:
to JHD Dental,

LtC

Employment Letter

The business was launched through the

(1) an Agreement of Limited Liability as

("JHD Dental Agreement")
("Employment Agreement")

and

(2)

an Offer of

from JHD to plaintiff.

(JHD Dental Agreement [20] at Ex. E and Employment Agreement [14J at
Ex. A.)
The JHQ Dental Agreement established defendant JHD as a separate
corporate entity organized as an LtC.

3

(uHD Dental Agreement [20].)

The Dental Agreement narr.ed plaintiff as a shareholder of defendant
JHD, subject to an
capital

calls.

addiLion,

the

i~itial

at

(rd.

Dental

con~ribu~ion

capital

3.1(b)

§

Agreement

DSMF

[20]

'Il

at

i~cludi~g

financial oversight

ma~agerr,ent

retain

In

JHD

risk management, benefits

to

41.)

required

Management for management services,
controls,

and

and future voluntary

Dobbs
a~d

and aci'ninistration,

and contractual or other administrative support.

(DSMF

[20]

at 'Il

41.)

The

Employme~t

Agreerr,ent named plaintiff as the

preside~t

JHD, and set forth the general terrr.s and conditions of
(Id. at 'Il 35.)

employment.

I.'

§

subject

to

s

(Employment Agreement

Plaintiff was also eligible for bonus opportunities,
certain

conditio~s

related

to

cli~ic

openings

and

(DSMF :20] at 'Il'll 36, 38.)

earnings.
In

plai~tiff'

Pursuant to the Agreement, plaintiff was

entitled LO a monthly salary of $14,583.33.

[14J at

of

addition

to

the

above

terms,

the

Employment

Agreement

incorporated a clause providing fo:::: severance and bonus payments in
the event that plaintiff's employrr,ent was terminated "without cause."
(Employment Agreement

[14J

at

§

5.)

The Agreement defined "cause"

to include:
(i)

Your willful 0:::: intentional neglect to perfo::::m
the duties and responsibilities of your
position;

(ii)

Your commission of an act of dishonesty, fraud,
rr,aterial violation of any written Corr.pany ::::ule or
procedure, intentional violation of law or
governmental regulation,
nisappropriation of
4

funds or property,
misconduct;

or

willful

or intentional

(iii)

Your unprofessional or unethical conduct as
determined i~ a final adjudication of any board,
insti tution, organization or governrr.enta:C agency
having any privi:ege or right to pass upon your
condelct;

(iv)

Your intentional or willful conduct '"hich
detrimental to the repeltation, character,
business or standing of Company;

(v)

Your use of alcohol or drugs in such a rranner as
will or could materially injure or have a
material adverse effect on your ability to
perforrr. your duties hereunder or the reputation
of Company;

(vi)

Your willful violation of specific written
reasonable, ethical and lawful directions of a
majority of the Company's Managers;

(vii)

Your failt;re to perforrr. assigned job
responsibilities in a rratiner which is at least
comparable to performance which could be expected
from a person of average competence who is
working with average diligence; or

(viii)

The failelre of the Company to meet reasonable
targeted financial goals as determined in the
reasonable discretion of the Managers.

is

(Id. )

III. Opening Delays

Within

the

first

ide~tified

a location

[20]

47.)

at

'l[

two

i~

months

However,

in Louisiana.

his

employment,

plaintiff

Georgia as a potential clinic site.
after

clinic in Georgia unfeasible,
again

of

(Id. )

regulatory

plaintiff
As

issues made opening a

started the

plaintiff's

5

(DSMF

efforts

process over
to

secure

a

location for the first. clifiic continued, he represented t.o defendants
that a clinic would "optimally" opefi in the S:1mmer of 2008.
Dental

Status Meetifig Agenda

[20]

at

Ex.

plaintiff notified defendafits of his

10.)

plan

to

( JHD

On May 15,
submit

2008,

a

letter of

intent to lease a space at Delmont Plaza in Baton Rouge,

and again

proclai:r,ed an optimal opening date of S:1!rmer 2008.

(Id. at Ex. 11.)

As time passed, and the lease for the first clinic was still not
execut.ed, Dobbs Management became involved in the lease negotiations.
(DSMF [20J at. '51.)

Specifically,

~obbs

Management put plaintiff in

cOfitaCt. with a company that. could expedite t.he negot.iation process,
provided

plaintiff

feedback

on

the

lease

terms,

and

engaged

attorney who would assist plaintiff with the lease language.
After

t.he

lease

was

signed,

plaintiff

sent

an

email

HOVlever,

the

parties

disagree

as

responsible for obtaining the lease.

to

who

(P 1. ' s Resp.

(Id. )

identifying

himself as the party responsible for t'cle lease signing.
54.)

at ,

(Id.

ultimately
Br.

an

[23]

was

at 14­

15. )
Prior
defendants
remediation.

to

signing

learned

that

the
the

lease

(Id.

cl.inic VIas

finally

Delmont· Village

was

in

need

of

site,

asbestos

The Delmont Village location also

at ,

29.)

alleged to have delayed the opening,
extent of the delay.

t'cle

location

(PSMF [24] at 'II 27.)

'clad an existing tenant.

at

but

Both of these factors are
the parties disp:1te the

The Delmont Village lease for the Baton RO:1ge
executed on

July

6

30,

2008,

five months

after

plaintiff selected Louisiana as a priority target and four

mon~hs

after designating

~

Ba~on

Michael Orians,

Rouge as a likely site.

(DSMF [20] at
l-1anagerr,en~,

the treasurer of Dobbs

55.)

met with

plaintiff and Houser in September 2008 to discuss the effect of the
opening delays
led

to

the

first

plaintiff's
plaintiff

on the business plan.
revision

original

sub:1'.itted

of

plan.
a

the

revised

~

financial

This meeting

data

financial

at

(Id.

58.'

at !

(Id.

provided

in

64.,

In

October

2008,

model

to

Orians,

which

prOjected one clinic to open in 2008 (down from three in the original
model)

and four

open in 2009.

~o

Revenue projections were

(Id. )

revised to $29,000 in 2008 and $6.2 million in 2009.

(Id. )

Plaintiff hired a construction manager in September 2008 for the
Baton Rouge clinic buildout.

(DSMF

[20}

at !

66.)

Based on the

timing of the construction contract, the target opening date for the
Baton Rouge clinic was pusr.ed back to approximately December 15,
2008.

(Id. )

However,

the

cons~ruction

permitting and equipment reasons.
at

145-146.)

As

a

(Id.

result of the

at

was
~

delayed for

various

67 and Pl.'s Dep.

construction delays,

L20]

plaintiff

pushed the target opening date of the Baton Rouge clinic back to
January 2009.

(DSl"-!F

~20l

at 'lI 70.)

However,

the Delmont Village

Clinic in Baton Rouge did not actually open until February 2, 2809.
(PSl"-!F

[2 4]

at

'lI

6.)

The parties dispute

wr.ether the

delay was

unreasonable under the circumstances.
At the end of December 2008, Dobbs Management asked plaintiff to

7

present a third revised financial model to account for the additional
delays

in

the

first

clinic opening date.

(!)SMi"

[20]

at

'll 81.)

(Id.

Plaintiff responded with a third revision on January i8, 2009.
at 'll 83.)

The third revision reflected the fact that no clinics were

(Id.)

opened and no revenue was generated in 2008.

It projected two

clinic openings in 2009 and one clinic opening in 2010, with revenues
Plaintiff claims that JHD's

(Id. )

of only $2.67 million for 2009.

performance in February and March of 2009 was consistent with the
third

revised

Nonetheless,
about March
IV.

financial

model.

(PSMF

at

[24}

'll'J[

20-21. )

another capital call to the investors was roade on or
~6,

Personnel

2009.

(DSMF [20] at 'll 84.)

Dela~

Based or. plaintiff's recommendation,
plaintiff's

employment,

President

of

OperatioCls

November

2008,

defendants

hired

for

(Id.

and simultaneously with

JHD.

Houser
at

'll

as

45.)

Senior
As

Vice

early as

plaintiff and Dobbs Managemer.t begar. experienciClg

problems with Houser's performance.

(Id.

at

'll'J[

8,

85.)

Houser

u:Ctimately was terminated "for cause" in i"ebruary 2009, due to his
inability to perform tasks delegated to him, including those relating
to the constructioCl process, staffing of the clinic, aCld preparation
of busi ness and pol icy manual s.
the

extent

performar.ce.

(Id. at 'll 90.)

to which pc.aintiff was

(Id. at 'll 88 and PSMF

responsible
~24]

The parties dispute
for

Houser's poor

at 'll 22.)

In addition to Houser's terminatior., plaintiff experienced and
8

arguably caused other delays in retaining the necessary personnel to
implement

the

business

plan.

When plaintiff

presen-ced the

2008

revised financial proj ections to Dobbs Managerr,ent, he indicated that
he planned to hire approximately sixteen individuals prior to the
first clinic opening, which at that tirr.e was scheduled for December
20, 2008.

(DSMF

[20~

at

~

73.)

After the original opening date was

missed, plaintiff represented that he would hire thirteen individuals
by

~anuary

24,

2009.

(Id.

at

74.)

~

In fact,

plaintiff had only

hired two part-time dentists when the Baton Rouge clinic finally
opened in February 2009.

at

(Id.

~

77.)

Consequently,

the cl:'nic

was only open two days a week for :'ts first two months of operation.
(Id.at~77.)

In particular, the hiring of a lead dentist for the Baton Rouge
clinic was a point of contention between plaintiff and defendants.
Orians

repeatedly

expressed

frustration

to

plaintiff

over

his

reluctance to move forward with offering the position to Dr. Hall, a
dentist with thirty years of experience.
an offer was extended

':0

(Id. at

~

94.)

Ultimately,

Hall in .!l.prL 2009, but Hall had not started

working by the time defendants terminated plaintiff's employment on
April 30, 2009.

(DSMF [20] at

~

79.)

At that time, one of the part

time dentists hired by plaintiff had quit,
full-time dentists at the clinic.

v.

Pla~nt~ff's

(Id.

at

and there were still no
~

80.)

Term~nat~on

In March 2009, Dobbs Management solicited and accep':ed a $40,000

9

investment from plair.tiff, as part of a capital call made to all of
JHD's investors.
decided

to

(PSMF

terminate

[24]

at ,

l5.)

plaintiff's

A month later,

employment

as

a

defendants

result

of

his

ccr.tinued failure to achieve the goals of JHD's original or revised
business plan.

(DSMF [20]

at

'l[

101.)

On May 1,

2009,

Orians and

(Id. at

Dobbs met with plaintiff to notify him of the termination.
'103.)

At that meeting, Orians and Dobbs gave plaintiff a letter,

dated April 30, 2009,

(Id. )

formally terminatir.g his employment.

Prior to receiving the above letter, defendants never notified
plair.tiff that he was at risk of being terminated" for cause."
[24)

at

17.)

'l[

However,

the

termination

letter

(PSt1F

purported

to

terminate plaintiff as a result of his "failure to meet reasonable
financial

and

goals

responsibilities."
stated

that

failure

to

perform

(Termination Letter [14J at Ex. B.)

plaintiff

would

be

paid

four

mor.ths

compensation in severance, totaling $58,333.32.
payment

was

settlement

conditioned

agreement.

severance or

to

assigned

on

plaintiff

Plaintiff

(Id. )

sign the

executing

release.

declined

The letter

of

(Id.)

job

his

base

The severanCe
a

release

and

accept

the

to

(Letter from Peeler to

uobbs

Management and JHD [14) at Ex. C.)
In

a

June

2,

2009

letter,

Dobbs

Managemer.t

offered to

pay

plaintiff six months of severance pay if he accepted $90,500 for his
owr.ership

interest

reappraisal,

in

JHD.

plaintiff

was

(PSMF
paid

[24)

at

$183,211.00

:0

,
for

39.)
his

After

a

ownership

interest

in JHD.

(Id.

at

'll

The only additional payments

40.)

plaintiff received following his termination were .for (=-) one day of
(DSMF [20J at 'll

wages for May 1, 2009 and (2) unused vacation time.
106. }
VI.

The Present Suit

P:aintiff filed this s"elit on November 5, 2009 in the State Court
of Fulton County.
the

basis

Plaintiff

of

(Compl.

diversity

[lJ.)

jurisdiction.

subsequently filed

claims for:

(1)

Defendants removed the action on
(Notice

of

an Amended Complaint

breach of contract,

(2)

Removal

[14]

at 'lI'lI 26-35.)

unjust

enrichment

addi tlonal
Agreer.\ent.

to attorney's

(3)

(Am. COr.\pl.

As the basis for his breach of contract and
claims,

plaintiff

contends

that

severance pay and bonus payments under

(Id.)

asserting

unjust enrichnent, and

attorney's fees under O.C.G.A. §§ 9-15-14 and 13-6-11.
[::'4J

[1J.)

he

is

owed

the Employment

In addition, plaintiff argues that he is entitled

fees as a

result of defendants'

~wholly

unfounded H

position that they are not required to make the specified paymen::s.

(Id. at 'lI 35.)

DefendaClts have moved for summary judgment on all of

plaintiff's claims.

(Defs.' Mot. for Summ. J.

[20J.)

DISCUSSION
I.

Summary Judgment Standard

The court mus:: grant summary judgment if the movant shows tha::
there is no genuine dispute as to any material fact and the ;r,ovant is

11

entitled to judgment as a matter of law.

FED. R. ClV. P. 56(a).'

The

party seeking summary judgment bears the initial burden to show that
there are

no

genuine

issues of material

Catrett, 477 U.S. 317, 323 (1986).

fact.

Celotex Corp.

v.

If that burden is not discharged,

the motion IT,ust be denied and the court need not consider any showing
rr.ade by the, nonmovant.

Fitzpatrick v. City of Atlanta, 2 F.3d 1112,

1116 (11th Cir. 1993).
If,

on

the

other

hand,

the

movant

satisfies

its

initial

responsibility, the burden shifts to the nonmoving party to show the
existence of a genuine issue of material fact.

Clark v.

Clark,

Where the movant

Inc.,

929 F.2d 604,

608

(11th Cir.

1991).

Coats

&

bears the burden of proof on an issue, it "must sho'" tr.at, on all the
essential elements of its case
for the non-moving party."

no reasonable jury could find

Fitzpatrick, 2 F.3d at 1115.

Where the

nonmovant bears the burden of proof, the moving party need only show
the

absence

of

evidence

to

support

the

nonmovant's

affirmative evidence demonstrating that the nonmovant

is

no

or

be unable

Id. at 1115-1116.

to prove its case at trial.
There

wi~l

case,

"genuine"

issue

for

tria~

"unless

there

is

sufficient evidence favoring the nonmoving party ::or a jury to return
a verdict for that party."

Anderson v. Liberty Lobby, Inc., 477 U. S.

Rule 56 was amended as of December 1, 2010 .
However, the
Advisory Committee Notes clarify that "[tJhe standard for granting
sUIT.rr.ary judgment relnains unchanged." Advisory Committee's Notes on
2010 lI.mendIT.ents to FEel. R. Crv. P. 56.
12

242,

249

materc.al.

The substantive law determines which facts

(1986).

Id. at 248.

the outcome of

the

a~e

"Only dis?utes over facts that might affect

suit

under

the governing

?reclude the entry of surrunary judgmenL."

law

prope~ly

Id.

In deciding a motion for surrunary judgment, the court must view
all evidence and draw all

reasonable

inferences

in

favor

of the

nonmoving parLY.

Johnson v.

(11th Cir. 2005).

"Sumrr.ary judgment may be inappropriate even where

the

parties

agree

on

the

405 F.3d 12::'4, ::"217

Governor of Fla.,

basic

facts,

but

disagree

inferences that should be drawn from these facts."
Rock Entm't,
Grp.,

LLC

PolyOne

2007) (holding same).

Corp.,

238

Fed.

App'x

sum!'!",ary judgment.

the

Castle

See also Prof.iTel

444,

450

(11th Cir.

Where reasonable minds cculd differ on the

inferences raised from the undisputed facts,

II.

Herzog v.

:'93 F.3d 1241, 1246 (::"lth Cir. 1999).

v.

about

Herzog,

the court should deny

193 F.3d at 1.246.

Plaintiff's Breach of Contract Claim
A.

Burden of Proof

As the procedure for ruling on a motion for surrunary judgment
depends on which party bears the burden of proof at trial, the Court
initially must resolve a dispute between the parties on this issue.
Fitzpatrick,

2

F.3d at

1115-1117.

In Count

I

of his complaint,

plaintiff asserts a breach of contract claim against defendants for
their fajlure to make severance payments allegedly required by the
Employment Agreement.

Under Georgia law, plaintiff is req·c1ired to
13

clai~.'

plead and prove all of the essential elements of this
O.C.G.A.

§

13-3 I and Broughton v.

Johnson,

247 Ga. App.

See

819,

819

(2C01) (recovery for breach of contract requires plaintiff to prove
"[the]

subject

~atter

assent

by

parties

all

of the contract,
to

all

consideration,

contract

terms").

and I:lutual

This

includes

performance and the satisfaction of any conditions precedent.

Motorhomes,
348, 350

Inc.

Sagon

v. Southtrust Bank of Georgia, lV.A., 225 Ga. App.

(1997).

Neither

party

contends

that

the

Employment

ambiguous with respect to the severance clause.

Agreement

is

The clause requires

JHD to make severance payments "subj ect to" certain "cond:'. tions."
(Employment

Agreement

[14 1

at

5.)

§

As

one

of

the

specif:'.ed

conditions, the clause provides that JHD is "liable for such payment
only if" plaintiff's employment is terminated "without [c]a;;tse
defined below) ."

(as

(Id. )

The Agreement's express mention of "conditions" SClggestS that
the severance obligation is SUbject to the condition precedent of
plaintiff being terminated "without

[clause.

H

That conclusion is

confirmed by the Agreement's use of the terms "subject to" and "only
if./I

See

Va.

Props.,

Inc.

v.

Rose,

210

Ga.

App.

878,

879-880

(1993) (contractual language requiring a bonus "if the Company's net
sales and net profits •

exceed the applicable levels" imposes a

2
The parties agree that Georgia law governs this dispute.
(PI.'s A.T. Compi. [14] at 'll'll 26-35 and Defs.' Br. [20].)

14

condition precedent).
of

demo~strating

As such, plaintiff bears the burden at trial

that the

conditio~

has been

sat~sfied:

Sagon Motorhomes,

he was terminated without cause.

that is, that

Inc.,

225 Ga.

App. at 350.
Plaintiff cites authority for the proposition that a defendant
has the burder: of proving an affirmative defense when it "ad:rits tl:e
esse~tial

facts

of

[the]

petitior:

(1983).

However,

sets

up

other

'lI

at

12.}

in

this proposition does not apply l:ere because

defendants do not admit tl:e essential facts of the petition.
[2)

facts

See Carver v. Jones, 166 Ga. App. 197,

justification or avoidance."
198

but

Rather,

defendants

offer

affirmative

(Answer
evidence

atte:rpting to negate plaintiff's contention tl:at his termination was
"witho'ut

Id.

[clause."
asserti~g

defense by

(a defendant does not raise an affirmative
propos~tion

facts attempting to negate the

the plair:tiff complied with a

co~dition

that

precedent).

Tl:e apparent confusior: over the burden of proof seems to arise
from cases where an employer terminates an employee in violation of
a contract for a set term, and then tries to avoid its obligation by

See ISS Int'l Servo Sys.,

clai'1'.ing the termination was "for cause."

Inc. v. Widmer, 264 Ga. Z\pp. 55 (2003) and Savannah ColI. of Art and
Design,

Inc.

v.

NUlph,

265

Ga.

662

(1995).

In

that

cor:text

"termination for cause" is muddled shorthand for a material breach,
whicl:

is

an

Hildebrand,

affirmative

defense.

See

City

of Douglasville

v.

175 Ga. App. 434, 436 (1985) and Shared Med. Res., Inc.

15

v. P.mericus and Sumter Cnty. Hosp. llUth., 672 F. Supp. 509, 513 (I".D.
Ga. 1987) ("The true issue in Hildebrand was whether or not the city
had borne its burden of showing a material breach").
In this case, to the contrary, termination "without [clause" is
a prerequisite to the additional benefit of severance pay under an
otherwise valid contract.
that

the prerequisite

Sagen Metorhomes r
I

As mentioned above, the burden of proving

has been met

Inc.,

225 Ga.

App.

falls
at

squarely on plaintiff.
Thus,

35C.

in order to

on their motion for summary judgment, defendants :nust show

either "[the] absence of evidence to support [plaintiff's] casel, or]
affirmative evidence demonstrating that [plaintiff] will be unable to
prove [his] case at trial."
B.

Fitzpatrick, 2 F.3d at 1115 1116.

Analys:i.s

In support of their motion for summary judgment on pl.aintiff's
breach of contract claim, defendants contend that their termination
of

's employment was

plaintiff's

"I-lillful

"with cause"
neglect

to

as

a

result of:

perform

the

(2) conduct by

responsibilities" of his position,

(3)

plaintiff's

"failure

to

and

iff that was

"detrimental to the reputation, character, bus
JHD,

duties

or standing" of

perform

assigned

job

responsibilities" in a manner that would be expected from a person of
"average competence" working with "average dll
failure

of

determined

JHI)

in

to

rrceet

"reasonable

reasonable

targeted

discretion

16

of

," and (4) the
financial
the

goals

as

[m~anagers."

(Employment

Agreement

[14]

at

§

5.l

Contrary

to

defendants'

argument, there are questions of material fact as to whether any of
the above definitions of "cause" was met in this case.
Neglect of duti.§'lLand responsibilities

1.

Defendants
evidence,

U:at

have

not

offered any facts,

plaintiff willfully or

much

less undisputed

intentionally neglected

perform the duties and responsibil ities of his position.

to

As the

moving party, defendants bear the initial burden of "informing the
court of the basis for its motion" and identifying record
evidence demonstrating the "absence of a genuine issue of material
fact."
1309,

HR Acquisition I Corp. v. Twin City Fire Ins. Co., 547 L3d
1314

(11th Cir.

2008).

Defendants have not come close to

meeting that burden with respect to their contention that plaintiff
"neglect [edl the duties and respcnsibilities" of his position.

In

fact, Orians admitted in his deposition that he had no information to
support such a claim.

(Orians Dep. [20] at 50.)

Thus, a question of

fact remains as to whether plaintiff's termination was justified by
his willful neglect of the duties of his job.
2.

Conduct that was detrimental to JHD

Likewise, defendants fail to present conclusive evidence that
plaintiff engaged in intentional conduct that was "detrimental to the
reputation, character, business, or standing" of JHD.

As a general

matte.r t wheLher an em.ployee acts unprofessionally or in a manner that
discredits his employer's "reputation, character and standingJ'l is a

17

question of credibility that r.mst be resolved by the jury.

Salhab v.

260 Ga.

Moreover,

Tift

Heart

Ctr. /

P. C.,

App.

799,

801

(2003).

defendants to not cite any legal authority or record evidence to
support their argument that plaintiff's conduct, as a matter of law,
was detrimental to JHD's reputation or standing.

3.

The remaining bases for plaintiff's tesmJnation

Neither is the Court able to find, as a matter of law, that the
undisputed facts satisfy either of the remaining two definitions of
"cause" under the Employment ll,greement.
to the contrary,

In support of their argument

defendants cite record evidence showing that JHD

consistently failed to meet the financial and other goals set by
plaintiff
[20].)

in his

original and revised projections.

(Defs.'

Br.

In spite of plaintiff's admitted failure to adhere to the

original or second revised plan, there are remaining questions of
fact as to whether plaintiff's termination was justified either by
his

own incompetence

or by JHD's

(Employment Agree~,ent [14J at
As an initial matter,

~l

less

than stellar performance.

5.)

the Court rejects defendants'

position

that the performance-related provisions of the Employment .zl,greement
should be interpreted to encompass plaintiff's own sched".1ling and
financial
ar.Ibiguous,
Ainsworth

projections.
and
v.

tht:s

not

Perreault,

The relevant contractual language is not
subject
254

Ga.

to
App.

18

judicial
470,

476

construction.

See

(2002) ("where the

la:1guage of a CO:1tract is clear, ;]nambiguo;]s, and capable of 0:11y one
reasonab::'e

interpretation,

permissible by

constr;]ction

cou.!:'t").

is

necessary

even

The lang;]age

itself does not
plaintiff's own

projections as to clinic openings and revenue.
that

or

and cannot be ass;]med to incorporate,

reference,

the trial

no

plaintiff

"perform

assigned

job

It simply requires

duties"

in

a

reasonably

competent manner and that JHD meet "reasonable targeted financial
goals" in the "reasonable discretion" of the managers.
Moreover,

(Id. )

the Employment Agreement contains a m.erger clause,

which states that:
Any prior or contemporaneous agreements Or representations
whether oral or written, which may have been made or
discussed but which are not included herein, are of no force
or effect whatsoever or at all.
(Employment

Agreement

[14J

at

§

6.)

Thus,

to

the

extent

that

defendants and plaintiff discussed using the first or second revised
plan as a basis for judging plaintiff's or JHD's performance,
merger clause bars consideration of such evidence.
Int'l,

Inc.

v.

Ocmulgee

Fie.Ids,

222

Inc.,

Ga.

the

Cheice Hetels

App.

185,

187

(1996) ("Particularly when a contract contains a merger clause, parol
evidence is inadmissible to challenge the unambiguous terms of the
contract").
that

the

Alternatively, to the extent defendants are s;]ggesting

thi.!:'d

revised

plan

provided

a

new

standard

by

which

plaintiff's conduct would be judged, there is nothing in the record
to

suggest

Agreement.

that
Id.

the

parties

intended

to

modify

the

Employment

("parol evidence of a mere understal'.ding arrived at
19

subsequent to the contract as to the meaning of the prior writing is
inadmissible") .

In any case,

the evidence as to whether plaintiff

complied with the third revised plan is in dispute.
In

the

final

analysis,

the

objective

benchmarks

in

the

Employment Agreement place limitations on defendants' discretion, and
thus precl '-1de sUlrunary disposi tioD of this case.

See

ULQ,

LLC v.

Meder, 293 Ga. App. 176, 178-80 (2008) (where the termination decision

is not subject to absolute or uncontrolled discretion, a good faith
obligation is implicated).

Questions of reasonableness and "average"

competence and diligence,

which are necessarily implicated by the

express language of the Agreement, raise issues of fact for the jury
except in the clearest cases.

Id. at 180.

The evidence in this case

is not so one-sided as to authorize a ruling on these issues as a
matter of law.

Accordingly. the Court DENIES defendants' motion for

summary judgment on plaintiff's breacr', of contract claim.

Based on the evidence in the record, there are four issues of
fact that
facts

remain for

resolution by the jury.

involve a dispute over the reasonable

Essentially,

inferences raised by

otherwise undisputed evidence:
(1) Whether plaintiff performed in a manner which is
at least comparable to the performance that
could De expected from a person of "average
competence"
who
is
working
with
"average
diligence.o
(2) Whether JHD failed to meet "reasonable targeted
financial
goals·
as
determined
in
the
20

these

"reasonable discretion" of the managers.
Whether plaintiff willfully or intentionally
neglected
to
perform
the
duties
and
responsibilities of his position.

(3 )

(4) Whether plaintiff intentionally or willfully
conducted
himself
in
manner
which
was
"detrimental to the
reputation,
character,
business or standi:1g" of JHD.
These questions will be presented to the jury after a trial of the
case on the merits.
III. Unjust Enrichment

In Count II of his complaint,
unjust enrichment.

plaintif: asserts a claim for

Unjust enrichment is an equitable claim that only

applies in the absence of an enforceable contract.
Ins.

Co.

unjust

270 Ga.

v. Meeks,

enrichment,

reference
agreement.

an

136,

(1998).

137

St. Paul Mercury

Thus,

when pleading

a plair-tiff may not allege or incorporate by

allegation

that

the

parties

had

ar-

enforceable

Ga. Tile Distrib., Inc. v. Zumpano Enter., Inc., 205 Ga.

App., 487, 491 (1992)

(the theory of unjust enrichment applies only

":iln the absence of a contractual agreement").

See .also Am. Casual

Dining, L.P. v. Moe's Sw. Grill, L.L.C., 426 F. Supp. 2d 1356, 1371
(N.D.

Ga.

promissory

2006) (Thrash,J.)

(prohibiting

estoppel

the

where

an

existence

equitable
of

a

clai~

contract

of
was

undisputed)
Count
allegations
contract.

II

of

that
(Am.

plai:1tiff's
specifically

Compl.

complaint
assert

:14] at 'IT 29.)

21

adopts

the

and

existence

~loreover,

incorporates
of

a

valid

plair-tiff does not

offer

his

enrichment

:.m~t.:st

alternative.

as

though

it

were

e"ricr~ent

Under

(Id. )

the

Cot.:rt

GRANTS

defendants'

the

Wh'-C~l

claim that the parties had a valid
circunstances,

plaintiff's

enrichment claim must be dismissed as a matter of law.
the

in

"'ather, he expressly clairr.s in the same cou"t in

he asserts the unjust
contract.

claim

motion

for

summary

unjust

Accordingly,

judgment

as

to

plaintiff's unjust enrichment claim.

IV.

Attorney's Fees
In Count III of h::'s complaint, plair.'tiff seeks attorney's fees

under O.C.G.A. §§ 9-15-14 and 13-6-11.
35.)

O.C.G.A.

§

[14] at 'lI'II 34­

(Am. CampI.

9-15-14 is "at ava,-lable to civil

litigants

in

federal court.

See Bruce v. Wal-Mart Stores, Inc., 699 F. Supp. 90S,

906

1988) (Forrester,

(N.D.

Serv.,

Ga.

Inc.,

2009 WL

2411145

J.)

at

ar.d, NCI Grp.,

*17

(N. D.

Ga.

Inc.

v.

Cannon

2009) (Mart'-r., C'.) •

Defe"dants' motion for sumrr.ary judgment as to pla::'ntiff's claim under
O.C.G.A. § 9-15-14 is therefore GRANTED.
However,
O.C.G.A.

§

attorney's fees may be available to plaintiff under

13-.6-11.

That statute allows a jury to award fees "where

the defendant has acted in bad faith, has been stubbornly litigious,
or

has

O.C.G.A.

caused
§

the

13-6-11.

plaintiff

unnecessary

trouble

and

expense."

Recovery under the statute is ancillary to an

award of damages on an independent cause of action, and is generally
left to the jury.

ISS Int'l Servo Sys., 264 Ga. App. at 62.

G::'ver. the preference under Georgia law for jt.:ry resolution of a

22

claim for fees under O.C.G.A.

13-6-11,

§

and the open question of

whether the jury will award damages to plaintiff on Count I
complaint,

summary

judgment

inappropriate at this time.

on

plaintiff's

claiI:1

for

of his

fees

is

Defendants' motion for sunmary judgrr.ent

as to plaintiff's claiI:1 for attorney's fees under O.C.G.A. § 13-6-11
is thus DENIED.
CONCLUSION

For
Judgrr.ent

the

foregoing

reasons,

[20 1 is GRANTED with

defendants'

respect

unjust enrichment and attorneys'

to

Motion

for

Sunmary

pLaintiff's

fees under O.C.G.A. § 9-15-14 and

DENIED for the remainder of plaintiff's claims.

SO ORDERED, this

~

day of June, 2011.

~ {Jl~1U~

~

i

for

LIE E. CA~R-N~E~S~~----------HIEF UNITED STATES DISTRICT JUDGE

23