This case arises from Healthcare.com Corporation’s “Healthcare” purchase of computer software and other assets from WirelessMD, Inc. Consideration for the sale included Healthcare’s forgiveness of almost $3 million WirelessMD owed to Healthcare, plus Healthcare’s promise to pay royalties to WirelessMD based on a percentage of the net profits from the resale of the software. When Healthcare failed to sell the software and generate any royalties, WirelessMD sued Healthcare for breach of contract and common law fraud. The trial court granted summary judgment to Healthcare on all counts, and WirelessMD appeals. We affirm for the reasons set forth below. To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 c; Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991. A defendant carries this burden by demonstrating the absence of evidence as to one essential element of the plaintiff’s case. Id. If the defendant does so, the plaintiff “cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Citation omitted. Id. Our review is de novo. Pyle v. Cedartown, 240 Ga. App. 445, 446 524 SE2d 7 1999.
So viewed, the evidence shows that in 2000, WirelessMD entered into two intellectual property licensing agreements with Healthcare. By June 30, 2001, however, WirelessMD was delinquent in paying almost $3 million under the licensing agreements. It is undisputed that WirelessMD was unable to pay the debt. Because Healthcare was not in a financial position to “write off” the debt as a loss, Healthcare considered forgiving the debt in exchange for computer software developed by WirelessMD.1 Healthcare engaged a third party, Phillips Hitchner Group, Inc. “PHG”, to appraised WirelessMD’s software. PHG returned a valuation of $3,300,000. In calculating the value of the software, PHG used budget projections, including sales and marketing expenses, which had been provided by Healthcare management.
