In this employment dispute, appellee Henry Blake, the former president of appellant Brock Built, LLC, sued Brock Built alleging that Brock Built breached his contract of employment by terminating him and failing to pay the severance and incentive compensation due under the terms of the contract. Blake further alleged that Brock Built tortiously breached its duty of good faith and fair dealing in determining its annual net profit for the purposes of calculating Blake’s incentive compensation. Brock Built filed a counterclaim alleging that it was Blake who breached both the contract and his fiduciary duties to Brock Built by engaging in certain conduct during his employment. Both parties filed cross-motions for summary judgment. The trial court granted Blake summary judgment on his claims for incentive and severance compensation and on Brock Built’s counterclaim for breach of fiduciary duty. In turn, the trial court denied Brock Built’s motion for summary judgment on Blake’s claims for incentive compensation and tortious breach of the duty of good faith and fair dealing. On appeal, Brock Built challenges the trial court’s ruling. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 c. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Once the moving party discharges this burden, the nonmovant may not rest on its pleadings, but instead must come forward with evidence establishing a triable issue. Footnotes and emphasis omitted. Hanson Staple Co. v. Eckelberry , 297 Ga. App. 356, 357 677 SE2d 321 2009. On appeal from a grant or denial of summary judgment, we review the evidence de novo, construing all inferences in the light most favorable to the nonmovant in order to determine whether the trial court erred in concluding that the movant was entitled to judgment as a matter of law. Id. So viewed, the evidence shows that Blake was hired by Brock Built as a construction manager in 2003. Blake subsequently was promoted first to vice president and then, in October 2005, to president of the company.
In connection with Blake’s promotion to president, he negotiated with Brock Built a contract of employment the “Contract”. Pursuant to the terms of the Contract, Brock Built agreed to employ Blake as president through September 2007 at a designated annual base salary, after which time the contract would automatically renew for one-year terms. Brock Built agreed to provide Blake “incentive compensation” by sharing with him a set percentage of Brock Built’s “profit margin.” The Contract defined “profit margin” as the net profit of the Company before federal and state income taxes, determined in accordance with accepted accounting practices by the accounting firm employed by the Company and adjusted to exclude the IRS inventory adjustment. The Contract further allowed termination of the employment relationship with or without cause by either Blake or Brock Built, provided, however, that “any termination . . . shall be communicated by written notice of termination to the other party.” Finally, the Contract guaranteed Blake “severance” payments equal to one year of his annual base salary if he was terminated by Brock Built without “cause,” as that term was narrowly defined in the Contract, but did not entitle him to severance payments if he voluntarily resigned or was terminated for cause.
