Jackson v. JHD Dental, LLC et al, No. 1:2010cv00173 - Document 34 (N.D. Ga. 2011)

Court Description: 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)

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FILIID IN CHAMBERS IN TEE UNITED STATES DISTRICT COURT FOR THE NORTHERN DIS:::RICT OF GEORGIA DIVISION U.s,D,C, Atlnnta RANDA:::'I, JACKSON, Plaintiff, CIVIL ACTION NO. v. 1:10­CV­00173­JEC JHD DENTAL, LLC, and DOBBS SERVICE, LLC, Defendants. ORDER & Ol?rNrON This case is presently before the Court on defendants' Motion for Summary Judgment [20J. The Court has reviewed arguments of the parties and, record and the for the reasons set out below, cor:cludes that defendants' Motion for Summary [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 Dockets.Justia "for cause." motion for I. (Defs.' Mot. for Summ. J. [20J.) 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 10­11, 15.) (Defs.' Statement of Material Facts ("DSMF") ,20 J at To generate inter'est in his business venture, plaintiff created a presentation that outlined his plan for developing the clinics. (Id. at 'ii'll 15­16.) On September 14, 2007, plaintiff presented his plan to defendant Dobbs Management Services ("Dobbs Management"). (Smile Time Presentation, attached to Pl.'s Dep. [20J at Ex. 2.) In the Dobbs Management presentation, plaintiff proposed to open twenty­two clinics in several states over a five year period. [20: at 'II 25.) (DSHF For each clinic, plaintiff projected a time frame 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. (Id. at 'II 27.) He represented to defendants that revenues and after­tax income would steadily increase over the following five years. (Id. 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 1 6 . ) 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 with experience in launching pediatric dental groups. (DSMF [20) at 16.) Plaintiff anticipated that his former colleague, Dan Houser ("Ho:1ser"), would be named as the vice president. (PI.' s Dep. [201 at 42.) In early 2008, 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. 5.) (Smile Time Presentation, attached to Pl.'s Dep. However, the 2008 presentation expanded on the original plan by proposing "target" states for initial clinic development. (Id.) The kickoff presentation also incl:1ded a more detailed timeline, itemizing specific tasks to be completed during each stage of clinic develop:r,ent. II. (DSMF [20] at 32.) The Relevant Contracts Based on the information provided in the original plan and the kickoff presentation, defendants decided to invest in plaintiff's dental clinic business. (Id.) execution of two doc:1ments: The business was launched through the (1) an Agreement of Limited Liability as to JHD Dental, LtC ("JHD Dental Agreement") and (2) an Offer of Employment Letter ("Employment Agreement") 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 capital and future voluntary [20] at 'Il at § 3.1(b) and DSMF (rd. Dental Agreement required JHD Management for management services, In retain Dobbs financial oversight controls, risk management, benefits to 41.) and aci'ninistration, and contractual or other administrative support. (DSMF [20] at 'Il 41.) The Agreerr,ent named plaintiff as the JHD, and set forth the general terrr.s and conditions of employment. (Id. at 'Il 35.) § s Pursuant to the Agreement, plaintiff was entitled LO a monthly salary of $14,583.33. [14J at of (Employment Agreement I.' Plaintiff was also eligible for bonus opportunities, subject to certain earnings. related to openings and (DSMF :20] at 'Il'll 36, 38.) In 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, or willful or intentional misconduct; (iii) Your unprofessional or unethical conduct as determined 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 is 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. (Id. ) III. Opening Delays Within the first two months of his employment, plaintiff a location [20] at 'l[ 47.) Georgia as a potential clinic site. (DSMF However, after regulatory issues made opening a clinic in Georgia unfeasible, plaintiff started the process over again in Louisiana. (Id. ) As plaintiff's efforts to secure a 5 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. 10.) ( JHD On May 15, 2008, plaintiff notified defendafits of his plan to submit 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, 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 an attorney who would assist plaintiff with the lease language. (Id. ) After t.he lease was signed, plaintiff sent an email identifying himself as the party responsible for t'cle lease signing. 54.) HOVlever, (Id. at , the parties disagree as to who ultimately was responsible for obtaining the lease. (P 1. ' s Resp. Br. [23] at 14- 15. ) Prior to signing the lease at t'cle defendants learned that the location was remediation. (PSMF [24] at 'II 27.) 'clad an existing tenant. (Id. Delmont· Village site, in need of asbestos The Delmont Village location also at , 29.) Both of these factors are alleged to have delayed the opening, but the parties disp:1te the extent of the delay. The Delmont Village lease for the Baton RO:1ge cl.inic VIas finally executed on July 30, 2008, five months after 6 plaintiff selected Louisiana as a priority target and four after designating Rouge as a likely site. Michael Orians, the treasurer of Dobbs (DSMF [20] at 55.) met with plaintiff and Houser in September 2008 to discuss the effect of the opening delays on the business plan. at ! (Id. 58.' This meeting led to the first revision of the financial data provided in plaintiff's original plan. (Id. at 64., In October 2008, plaintiff sub:1'.itted a revised financial model to Orians, which prOjected one clinic to open in 2008 (down from three in the original model) and four open in 2009. 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 (DSMF [20} at ! Baton Rouge clinic buildout. 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 was delayed for various permitting and equipment reasons. at 145­146.) (Id. at 67 and Pl.'s Dep. L20] As a result of the construction delays, plaintiff pushed the target opening date of the Baton Rouge clinic back to January 2009. (DSl"­!F 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.) Plaintiff responded with a third revision on January i8, 2009. at 'll 83.) (Id. The third revision reflected the fact that no clinics were opened and no revenue was generated in 2008. (Id.) It projected two clinic openings in 2009 and one clinic opening in 2010, with revenues of only $2.67 million for 2009. (Id. ) Plaintiff claims that JHD's performance in February and March of 2009 was consistent with the third revised financial (PSMF model. [24} at 'll'J[ 20­21. ) Nonetheless, another capital call to the investors was roade on or about March IV. Personnel 2009. (DSMF [20] at 'll 84.) Based or. plaintiff's recommendation, and simultaneously with plaintiff's employment, defendants hired Houser as Senior Vice (Id. President of OperatioCls for JHD. at 'll 45.) As early as November 2008, 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. (Id. at 'll 90.) The parties dispute the extent to which pc.aintiff was responsible for Houser's poor performar.ce. (Id. at 'll 88 and PSMF 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 presen­ced 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 at 73.) After the original opening date was missed, plaintiff represented that he would hire thirteen individuals by 24, 2009. (Id. at 74.) In fact, plaintiff had only hired two part­time dentists when the Baton Rouge clinic finally opened in February 2009. (Id. at 77.) Consequently, the cl:'nic was only open two days a week for :'ts first two months of operation. 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. (Id. at 94.) Ultimately, an offer was extended ':0 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, and there were still no full­time dentists at the clinic. v. (Id. at 80.) 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. (PSMF [24] at , l5.) A month later, defendants decided to terminate plaintiff's employment as a 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 Dobbs met with plaintiff to notify him of the termination. '103.) (Id. at At that meeting, Orians and Dobbs gave plaintiff a letter, dated April 30, 2009, formally terminatir.g his employment. (Id. ) Prior to receiving the above letter, defendants never notified plair.tiff that he was at risk of being terminated" for cause." (PSt1F [24) at 'l[ 17.) However, the termination letter purported to terminate plaintiff as a result of his "failure to meet reasonable financial goals responsibilities." and failure to perform assigned (Termination Letter [14J at Ex. B.) job The letter stated that plaintiff would be paid four mor.ths of his base compensation in severance, totaling $58,333.32. payment was (Id.) conditioned on plaintiff executing a settlement agreement. (Id. ) The severanCe release and Plaintiff declined to accept the severance or to sign the release. (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 in JHD. reappraisal, plaintiff was (PSMF [24) at , 39.) After a paid $183,211.00 for his ownership :0 (Id. interest in JHD. at 'll 40.) The only additional payments plaintiff received following his termination were .for (=­) one day of wages for May 1, 2009 and (2) unused vacation time. (DSMF [20J at 'll 106. } VI. The Present Suit P:aintiff filed this s"elit on November 5, 2009 in the State Court (Compl. [lJ.) of Fulton County. Defendants removed the action on the basis of diversity jurisdiction. (Notice of Removal [1J.) Plaintiff subsequently filed an Amended Complaint [14] asserting claims for: (1) breach of contract, (2) unjust enrichnent, and attorney's fees under O.C.G.A. §§ 9­15­14 and 13­6­11. [::'4J at 'lI'lI 26­35.) (3) (Am. COr.\pl. As the basis for his breach of contract and unjust enrichment claims, plaintiff contends that he is owed addi tlonal severance pay and bonus payments under the Employment Agreer.\ent. (Id.) In addition, plaintiff argues that he is entitled to attorney's fees as a result of defendants' 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 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Clark v. Coats & Where the movant bears the burden of proof on an issue, it "must sho'" tr.at, on all the essential elements of its case for the non­moving 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 case, affirmative evidence demonstrating that the nonmovant to prove its case at trial. There is no "genuine" or be unable Id. at 1115­1116. issue for "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 (1986). materc.al. The substantive law determines which facts Id. at 248. "Only dis?utes over facts that might affect the outcome of the suit under the governing law ?reclude the entry of surrunary judgmenL." 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 Governor of Fla., 405 F.3d 12::'4, ::"217 the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts." Herzog v. Castle Rock Entm't, Grp., LLC :'93 F.3d 1241, 1246 (::"lth Cir. 1999). See also Prof.iTel v. PolyOne 2007) (holding same). Corp., 238 Fed. App'x 444, 450 (11th Cir. Where reasonable minds cculd differ on the inferences raised from the undisputed facts, the court should deny sum!'!",ary judgment. II. Herzog, 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 1115­1117. 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 plead and prove all of the essential elements of this O.C.G.A. § 13­3 I and Broughton v. Johnson, See 247 Ga. App. 819, 819 (2C01) (recovery for breach of contract requires plaintiff to prove "[the] subject of the contract, consideration, and I:lutual assent by all parties to all contract terms"). This includes performance and the satisfaction of any conditions precedent. Motorhomes, Inc. Sagon v. Southtrust Bank of Georgia, lV.A., 225 Ga. App. 348, 350 (1997). Neither party contends that the Employment Agreement is ambiguous with respect to the severance clause. 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 (as defined below) ." (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, 879­880 (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 26­35 and Defs.' Br. [20].) 14 condition precedent). of As such, plaintiff bears the burden at trial that the has been he was terminated without cause. that is, that Sagon Motorhomes, 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 facts of [the] petitior: but sets up other facts in justification or avoidance." See Carver v. Jones, 166 Ga. App. 197, 198 (1983). However, this proposition does not apply l:ere because defendants do not admit tl:e essential facts of the petition. [2) at 'lI (Answer Rather, defendants offer affirmative evidence 12.} atte:rpting to negate plaintiff's contention tl:at his termination was "witho'ut [clause." defense by Id. (a defendant does not raise an affirmative facts attempting to negate the the plair:tiff complied with a 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 clai'1'.ing the termination was "for cause." See ISS Int'l Servo Sys., 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 affirmative defense. Hildebrand, 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. As mentioned above, the burden of proving that the prerequisite has been met falls squarely on plaintiff. Sagen Metorhomes r I Inc., 225 Ga. App. at 35C. Thus, 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." Fitzpatrick, 2 F.3d at 1115 1116. B. 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 "with cause" as a result of: plaintiff's "I­lillful neglect to perform the duties and responsibilities" of his position, (2) conduct by iff that was "detrimental to the reputation, character, bus JHD, (3) plaintiff's "failure to 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 JHI) determined in ," and (4) the to rrceet "reasonable targeted financial goals as reasonable discretion 16 of the (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. 1. Neglect of duti.§'lLand responsibilities Defendants have not offered any facts, much less undisputed evidence, U:at plaintiff willfully or intentionally neglected to perform the duties and responsibil ities of his position. 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." HR Acquisition I Corp. v. Twin City Fire Ins. Co., 547 L3d 1309, 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. Tift Heart Ctr. / P. C., 260 Ga. App. 799, 801 (2003). Moreover, 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. In support of their argument to the contrary, defendants cite record evidence showing that JHD consistently failed to meet the financial and other goals set by plaintiff in his original and revised projections. [20].) (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 less than stellar performance. (Employment [14J at 5.) As an initial matter, the Court rejects defendants' position that the performance­related provisions of the Employment .zl,greement should be interpreted to encompass plaintiff's own sched".1ling and financial projections. The relevant contractual language is not ar.Ibiguous, and tht:s not subject to judicial construction. Ainsworth v. Perreault, See 254 Ga. App. 470, 476 (2002) ("where the 18 la:1guage of a CO:1tract is clear, ;]nambiguo;]s, and capable of 0:11y one reasonab::'e interpretation, no constr;]ction is necessary or even permissible by the trial cou.!:'t"). The lang;]age itself does not reference, and cannot be ass;]med to incorporate, plaintiff's own projections as to clinic openings and revenue. It simply requires that plaintiff "perform assigned job duties" in a reasonably competent manner and that JHD meet "reasonable targeted financial goals" in the "reasonable discretion" of the managers. (Id. ) Moreover, 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, the merger clause bars consideration of such evidence. Int'l, Inc. v. Ocmulgee Fie.Ids, Inc., 222 Ga. 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"). Alternatively, to the extent defendants are s;]ggesting that the thi.!:'d revised plan provided a new standard by which plaintiff's conduct would be judged, there is nothing in the record to suggest that the parties intended to modify the Employment Agreement. Id. ("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, 178­80 (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 one­sided 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 remain for resolution by the jury. Essentially, these facts involve a dispute over the reasonable 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 "reasonable discretion" of the managers. (3 ) Whether plaintiff willfully or intentionally neglected to perform the duties and responsibilities of his position. (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, plaintif: asserts a claim for unjust enrichment. Unjust enrichment is an equitable claim that only applies in the absence of an enforceable contract. Ins. Co. v. Meeks, 270 Ga. 136, 137 (1998). St. Paul Mercury Thus, when pleading unjust enrichment, a plair­tiff may not allege or incorporate by reference an agreement. 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.) estoppel where (prohibiting an equitable the existence of a contract of was undisputed) Count II of plai:1tiff's complaint adopts and incorporates allegations that specifically assert the existence of a valid contract. (Am. Compl. :14] at 'IT 29.) 21 plair­tiff does not offer his enrichment claim as alternative. "'ather, he expressly clairr.s in the same cou"t in he asserts the unjust contract. though it were in the claim that the parties had a valid Under the circunstances, plaintiff's unjust (Id. ) enrichment claim must be dismissed as a matter of law. Accordingly, the Cot.:rt GRANTS defendants' motion for summary 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. §§ 9­15­14 and 13­6­11. 35.) (Am. CampI. [14] at 'lI'II 34- O.C.G.A. § 9­15­14 is "at ava,­lable to civil litigants in federal court. See Bruce v. Wal-Mart Stores, Inc., 699 F. Supp. 90S, 906 (N.D. Ga. 1988) (Forrester, J.) Serv., Inc., ar.d, NCI Grp., Inc. v. Cannon 2009 WL 2411145 at *17 (N. D. Ga. 2009) (Mart'­r., C'.) • Defe"dants' motion for sumrr.ary judgment as to pla::'ntiff's claim under O.C.G.A. § 9­15­14 is therefore GRANTED. However, attorney's fees may be available to plaintiff under O.C.G.A. § 13­.6­11. That statute allows a jury to award fees "where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense." O.C.G.A. § 13­6­11. 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. § 13­6­11, and the open question of whether the jury will award damages to plaintiff on Count I complaint, of his summary judgment on plaintiff's claiI:1 for fees inappropriate at this time. is Defendants' motion for sunmary judgrr.ent as to plaintiff's claiI:1 for attorney's fees under O.C.G.A. § 13­6­11 is thus DENIED. CONCLUSION For the foregoing reasons, defendants' Motion for Sunmary Judgrr.ent [20 1 is GRANTED with respect to pLaintiff's for unjust enrichment and attorneys' fees under O.C.G.A. § 9­15­14 and DENIED for the remainder of plaintiff's claims. SO ORDERED, this day of June, 2011. i LIE E. HIEF UNITED STATES DISTRICT JUDGE 23

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