The appellant-plaintiffs are minority shareholders in Loyaltyworks.1 They sued the company and its majority shareholder Capital Resource Partners, IV, L.P. CRP to enforce a verbal settlement agreement. The defendants denied reaching an agreement, contending that any agreement had to be in writing to be binding. Loyaltyworks also counterclaimed against plaintiff Rorke on a promissory note he had signed in exchange for exercising his option to buy stock in the company. The trial court granted summary judgment to the appellee-defendants on the main complaint, and to Loyaltyworks on its counterclaim against Rorke. Because we conclude that questions of fact exist regarding whether the parties reached an agreement, we reverse the trial court as to both grants of summary judgment. On appeal we review the trial court’s grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Preferred Real Estate Equities v. Housing Systems , 248 Ga. App. 745 548 SE2d 646 2001. On appeal of the grant or denial of a motion for summary judgment, this court conducts reviews the law and the evidence de novo. Overton Apparel v. Russell Corp. , 264 Ga. App. 306, 307 590 SE2d 260 2003. Further, the court cannot resolve the facts or reconcile the issues when deciding whether summary judgment should be granted. Fletcher v. Amax, Inc. , 160 Ga. App. 692, 695 288 SE2d 49 1981.
Viewed in this light, the record shows that the plaintiffs hired attorney Everette Doffermyre in late 2003 to investigate whether they should sue Loyaltyworks and its two majority shareholders, CRP and Equity-South Partners, L.P., for breach of fiduciary duty. The minority shareholders believed that these entities refinanced the company to dilute their minority shares below two percent, thus rendering them unable to force the company to disclose its financial records. Even before this “downround financing,” the plaintiffs had received little or no communication from Loyaltyworks, had no input into company decisions, and did not know how the company was doing financially. Loyaltyworks’ board of directors would not pursue offers to buy the company in 2002, because it said the company was not for sale. Although Loyaltyworks had issued options at $2 per share in February 2002, it refinanced the company at 26 cents per share in December 2002. Rorke also wanted to return the 100,000 shares of Loyalty stock he obtained in 2000 when he executed his options at $1 per share and cancel his $100,000 note which was paid for and was secured by that stock.
