Dillard, Presiding Judge. In Case No. A21A0922, SPI Holdco, LLC and Software Paradigms International Group, LLC[1] appeal the trial court’s judgment, awarding Siddhartha Mookerji—SPIG and SPI Holdco’s former global chief executive officer—employment incentive payments totaling $5,400,000 and a Tesla of his choosing. Specifically, these defendants argue that the trial court (1) applied the wrong methodology in determining the amount of incentive payments Mookerji was entitled to receive under the employment agreement and related documents; (2) ignored its own findings that there was no meeting of the minds as to the essential elements of the contract provisions at issue; and (3) erroneously concluded that Mookerji is entitled to a Tesla under the employment agreement. In Case No. A21A0923, Mookerji’s cross appeal, he contends that the trial court erred by denying his pretrial motion for summary judgment and granting, in part, the defendants’ motion for same. Specifically, Mookerji argues that the trial court (1) erred in granting summary judgment to the defendants as to his claim that they owed him a $1,000,000 severance payment under his employment agreement; and (2) abused its discretion in denying his motion to amend the pretrial order to add a claim that the defendants owed him 30 days’ salary. For the reasons set forth infra, we affirm in both cases.[2] Case No. A21A0922 – The Bench Trial Viewing the evidence in the light most favorable to the trial court’s judgment,[3] the record shows that, in 1994, Mookerji and his wife founded Software Paradigms International, Inc. and were the company’s first two employees. In the years that followed, this business grew into a multi-national, information technology services and solutions provider for retailers around the globe. Then, on May 14, 2015, Mookerji formed SPI Holdco for the purpose of selling an interest in SPIG—one of its subsidiaries—to Tower Arch Capital, a private equity investor.[4] On May 15, 2015, Mookerji entered into a three-year written employment agreement with SPI Holdco and SPIG to serve as their global chief executive officer. It is undisputed that Mookerji was not involved in negotiating the employment agreement, but instead, authorized Thomas Delbrook—his company’s chief financial officer—to negotiate the terms of the contract with two Tower Arch corporate representatives, Rhett Neuenschwander and David Topham. Thereafter, on May 22, 2015, Tower Arch purchased a controlling interest in SPI Holdco. And on the same day, Mookerji signed SPI Holdco’s operating agreement (the “2015 operating agreement”). In addition to his employment, Mookerji maintained an approximately 48 percent ownership interest in SPI Holdco. And while the term of employment provided for in the employment agreement expired in May 2017, the defendants terminated Mookerji’s employment early on September 8, 2016. It is undisputed that this termination was without cause. Thereafter, on November 23, 2016, Mookerji filed a complaint against the defendants, alleging claims for breach of contract, breach of implied covenant of good faith and fair dealing, and attorney fees. Specifically, Mookerji contended that his termination violated the employment agreement because it occurred prior to the expiration of the term set forth in the agreement and it was done without cause or proper notice. Mookerji also alleged that SPIG and SPI Holdco failed to pay him certain incentive compensation and other benefits—including a Tesla of his choosing—that he is owed under his employment agreement. Discovery ensued, and the parties eventually proceeded to a bench trial.[5] Following trial, the court issued a detailed and thorough final judgment, finding, in relevant part, that (1) under Section 3.3 of the employment agreement, Mookerji was entitled to $5,400,000 in incentive payments for the years 2015 and 2016; (2) he was entitled to a Tesla of his choosing under Section 3.4 of the agreement; but (3) he was not entitled to attorney fees and litigation expenses. This appeal follows. In reviewing a bench trial, we view the evidence in “the light most favorable to the trial court’s rulings, defer to the trial court’s credibility judgments, and will not set aside the trial court’s factual findings unless they are clearly erroneous.”[6] Indeed, the court is the trier of fact in a bench trial, and “its findings will be upheld on appeal if there is any evidence to support them.”[7] Bearing these guiding principles in mind, we turn to the defendants’ specific claims of error. 1. In their first two claims of error, the defendants argue that the trial court erred in concluding that the methodology used to calculate “Adjusted EBITDA”[8]—defined infra—for purposes of Section 3.3 of the employment agreement includes revenue attributable to acquisitions SPI Holdco made after that agreement was executed in May 2015 (“future acquisitions”). They further contend that, relying on this improper method, the court erroneously awarded Mookerji $5,400,000 in incentive payments provided for in Section 3.3. Finally, they argue that the trial court also erred in ignoring its own finding that there was no meeting of the minds between the parties as to the conditions under which Mookerji would receive such payments. We disagree. It is well established that the construction of a contract is “a question of law for the court,”[9] involving three analytical steps: The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury [or the trial court at a bench trial].[10] Significantly, the cardinal rule of contract construction is “to ascertain the intention of the parties, as set out in the language of the contract.“[11] And when the language of the agreement is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve that ambiguity and ascertain the intent of the parties.[12] Significantly, when the language of a contract is plain and unambiguous, “judicial construction is not only unnecessary but forbidden.”[13] Turning to the provision at issue, Section 3.3 of Mookerji’s employment agreement provides that he would receive an additional TEV incentive payment of 0.5% of [SPI Holdco's] Total Enterprise Value (“TEV”) determined at the time of any Sale of the [SPI Holdco] which shall be earned for each year that [SPI Holdco] meets or exceeds the Adjusted EBITDA number for such year as presented to the lender in the Agent Presentation being, more specifically, Adjusted EBITDA 2015 = $18.0 million Adjusted EBITDA 2016 = $22.4 million Adjusted EBITDA 2017 = $26.5 million which TEV incentive payment in total shall not exceed one and onehalf percent (1.5%) of the TEV at the time of any Sale of the [SPI Holdco]. The TEV incentive payment shall be payable to Executive by [SPI Holdco] upon a Sale of [SPI Holdco]. For purposes of the foregoing, “Adjusted EBITDA” and “Agent Presentation” shall have the meanings assigned to such terms in [SPI Holdco's] Amended and Restated Operating Agreement of even date herewith (“[SPI Holdco's 2015] Operating agreement”).[[14]] And “Company” is specifically defined as SPI Holdco at the outset of the employment agreement.[15] Furthermore, the 2015 operating agreement referred to in Section 3.3 contains the following definitions: “Adjusted EBITDA” shall mean[ ], at any date of determination, an amount equal to the consolidated net income or loss of [SPI Holdco] and its Subsidiaries plus the following to the extent deducted in calculating such consolidated net income or loss (without duplication): (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest), in each case to the extent treated as interest in accordance with GAAP, (b) the provision for federal, state, local and foreign income taxes payable, and (c) depreciation and amortization expense, as adjusted consistent with the methodology used to calculate “Adjusted EBITDA” in the management projections set forth in the Agent Presentation.[[16]] “Agent Presentation” means that certain Management Presentation to Lenders, dated as of April 21, 2015, presented on behalf of [SPI Holdco] and its Subsidiaries to Agent on or about April 21, 2015. In 2018, SPI Holdco was sold for $540,000,000, which is when Mookerji was entitled to receive incentive compensation, if any, that he earned while employed by SPI Holdco under Section 3.3. Specifically, Mookerji is entitled to incentive payments for each year SPI Holdco met or exceeded the Adjusted EBITDA bench marks set forth in Section 3.3 and the agent presentation.[17] Significantly, the parties stipulated to the following: If revenue attributable to businesses acquired by [SPI Holdco] is counted in calculating its Adjusted EBITDA, the thresholds for Mr. Mookerji to receive incentive compensation as described in Section 3.3 would have been met for years 2015 and 2016. If, however, revenue attributable to businesses acquired by [SPI Holdco] is not counted in calculating its Adjusted EBITDA, the thresholds for Mr. Mookerji to receive incentive compensation as described in Section 3.3 would not have been met for years 2015 and 2016.[18] The trial court—after considering the plain language of the relevant contract provisions, as well as testimony and other evidence presented at trial—found that revenue attributable to acquisitions made by SPI Holdco after May 2015 was to be included in calculating SPI Holdco’s Adjusted EBITDA for 2015 and 2016. As a result, it awarded Mookerji $5,400,000 in incentive payments.[19] In its order, the trial court found that those who negotiated the employment agreement—Delbrook on behalf of Mookerji; and Neuenschwander and Topham on behalf of Tower Arch—failed “to clearly articulate in the language of the contract that future acquisitions would not be included [in calculating SPI Holdco's Adjusted EBITDA],” thus creating “an ambiguity in Section 3.3 [of the employment agreement].” As a result, the trial court considered evidence other than the plain language of the agreement and related documents in order to determine the intent of the parties in this regard. For example, although the court noted that Delbrook, Neuenschwander, and Topham all testified that their understanding and intent in drafting Section 3.3 was that future acquisitions would be excluded, it also found that they never discussed this understanding with Mookerji prior to August 2016. Further, the court found that relying on the negotiators’ self-serving testimony would essentially require it to revise the provision at issue. Indeed, the relevant evidence shows that each of the negotiators—including Delbrook—stood to gain financially if Mookerji did not receive the incentive payments at issue. The court also discredited the testimony of the defendants’ expert that it would not be standard or customary to include future acquisitions in this type of incentive provision because, on cross-examination, he could not “reference a single document, book, textbook, treatise, or journal article” to support this assertion. Needless to say, we are required to defer to the these findings so long as they are not clearly erroneous, but we apply “a de novo standard of review to any questions of law decided by the trial court.”[20] And importantly, the “existence or nonexistence of ambiguity in a contract is a question of law for the court.”[21] Here, we agree with the trial court that adopting the defendants’ interpretation of Section 3.3 would essentially require us to go beyond construing that provision and revise it. That said, we part ways with the trial court’s assessment that this provision is ambiguous as a matter of law. Indeed, it is of no consequence that neither Section 3.3 nor the applicable definition of Adjusted EBITDA specify that any particular types of SPI Holdco revenue be excluded from the relevant calculations, much less one that explicitly excludes SPI Holdco’s future acquisitions. As previously mentioned, if the language of a contract is plain and unambiguous, “judicial construction is not only unnecessary but it is forbidden.”[22] So, in the absence of “words of limitation, words in a [contract] should be given their ordinary and everyday meaning.”[23] It is the function of this Court to “construe the contract as written and not to make a new contract for the parties.”[24] But the trial court went beyond construing the language of the relevant provisions and also considered evidence presented at trial, even though “parol evidence is inadmissible to add to, take from, or vary a written contract . . . .”[25] In this case, the entire dispute is over whether to include future acquisitions as part of SPI Holdco’s income when calculating its Adjusted EBITDA and that issue is determinative of whether Mookerji is entitled to the incentive compensation he seeks. And as detailed supra, Section 3.3 broadly provides that Mookerji was to receive a TEV incentive payment of 0.5 percent of SPI Holdco’s TEV determined at the time the company was sold, and the payment is earned for each year SPI Holdco meets or exceeds the projected Adjusted EBITDA number. But as previously noted, Section 3.3 does not include any exclusions from the type of revenue to be considered in calculating that number. Furthermore, Adjusted EBITDA is defined in the 2015 operating agreement as “an amount equal to the consolidated net income or loss of SPI Holdco and its Subsidiaries,”[26] subject to various enumerated deductions “in calculating such net income or loss.” So, unlike these specified deductions from SPI Holdco’s income and losses, revenue attributable to future acquisitions is not enumerated as such a deduction in the definition of Adjusted EBITDA. As a result, under the maxim “expressio unius est exclusio alterius”—which means “the express mention of one thing implies the exclusion of the other”—income attributable to future acquisitions is presumed to be included in determining SPI Holdco’s income for the purpose of calculating EBITDA.[27] In short, had the parties wished to exclude revenue attributable to future acquisitions from SPI Holdco’s income for purposes of calculating the company’s Adjusted EBITDA, they easily could have done so expressly in Section 3.3 or in the 2015 operating agreement. Indeed, if we were to adopt the defendants’ construction of Section 3.3, nearly every contract provision could be considered ambiguous for not including or addressing a particular matter. The defendants are essentially asking us to create or add an exception out of whole cloth to the type of SPI Holdco’s revenue to be included in calculating the company’s Adjusted EBITDA that has no basis in the plain language of Section 3.3 or any of the related documents. This, we cannot do.[28] In sum, while we reject the trial court’s conclusion that Section 3.3 is ambiguous, the plain language of the documents at issue supports its ultimate ruling that all SPI Holdco revenue is to be included in determining the incentive payment owed to Mookerji, as well as its accompanying award of $5,400,000.[29] Finally, the defendants briefly argue, in passing, that the trial court erred in not considering the “obvious mutual mistake” in Section 3.3 regarding the parties’ intent to exclude future acquisitions from the pertinent calculations. But the trial court did not address a mutual-mistake argument in its lengthy and detailed order, so there is nothing in that order suggesting that it implicitly ruled on such a claim. And more importantly, the parties never raised this issue at trial or in the pretrial order.[30] Indeed, in the pretrial order, the defendants frame the issue regarding Section 3.3 as being whether Mookerji satisfied certain “conditions precedent” for receiving incentive payments, not whether the parties labored under any mutual misconception while drafting the document.[31] Needless to say, this Court will not “address arguments raised for the first time on appeal.”[32] 2. Next, the defendants argue that the trial court erred in finding that Mookerji is entitled to a Tesla of his choosing under Section 3.4 of the employment agreement. Again, we disagree. Section 3.4. of the employment agreement provides: Additional Performance Incentive. If Tower Arch Capital, L.P. and its affiliates receive equity returns in excess of 3.0x invested capital into [SPI Holdco], [SPI Holdco] shall promptly deliver to Executive a Tesla automobile of Executive’s choosing, fully paid for and free and clear of all encumbrances. At trial, Mookerji testified that Tower Arch invested “$26,708,103 and a few cents” in SPI Holdco, and it ultimately received more than $90 million from its deal with SPI Holdco. In doing so, Mookerji refreshed his recollection with a 2015 “waterfall document,” which lists “the sources of funds and use of funds when the Tower Arch transaction was done in May of 2015.” Mookerji also entered into evidence a 2018 “waterfall document,” which showed that Tower Arch and its affiliates received distributions of over $90 million upon the sale of SPI Holdco, which is more than three times their approximately $27 million investment. Based on this testimony, the trial court found that Mookerji was entitled to receive a Tesla under Section 3.4. And while the court acknowledged that Topham testified otherwise, it found the weight of the evidence established that the requirements of Section 3.4 were satisfied. The defendants now argue the trial court erred in this regard because it “ignored” testimony from Topham that Tower Arch and its affiliates did not receive equity returns in excess of three times their invested capital. At trial, Topham testified that Mookerji’s testimony only reflected Tower Arch’s initial invested capital, and their total overall investment was approximately $32 or $33 million. Topham testified that while it was “close,” Tower Arch and its affiliates did not receive revenue in excess of three times their capital investment. But unlike Mookerji, the defendants did not rely on or submit any documentary evidence to support Topham’s testimony. In essence, the defendants contend that we should disregard the trial court’s determination that Mookerji’s testimony was more credible than Topham’s testimony. But contrary to the defendants’ contention, the trial court did not “ignore” Topham’s testimony. Indeed, the court acknowledged Topham and Mookerji’s conflicting testimony, as well as the documents used to support Mookerji’s testimony, and concluded the weight of the evidence established that the requirements of Section 3.4 were satisfied. And while the defendants appear to suggest that the trial court was somehow required to credit Topham’s unsupported testimony over Mookerji’s testimony and his supporting documents, we have already explained that in reviewing a bench trial, we “view the evidence in the light most favorable to the trial court’s rulings, defer to the trial court’s credibility judgments, and will not set aside the trial court’s factual findings unless they are clearly erroneous.”[33] Again, the trial court is the trier of fact in a bench trial, and its findings “will be upheld on appeal if there is any evidence to support them.”[34] As a result, the trial court was entitled to credit Mookerji’s testimony, and we are not at liberty to set aside that factual finding. Case No. A21A0923 – Summary Judgment In his cross-appeal, Mookerji argues that the trial court erred by denying his motion for summary judgment as to his claim that he is entitled to a lump-sum $1,000,000 severance payment under Section 8.1 (c) of his employment agreement, and instead, granting summary judgment to the defendants as to that claim. He also contends that the trial court erred in denying his motion to amend the pretrial order. Summary judgment is proper when “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.”[35] Furthermore, a de novo standard of review “applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”[36] Moreover, at the summary-judgment stage, “[w]e do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution.”[37] With these guiding principles in mind, we will address Mookerji’s specific claims of error.[38] 1. In his first two claims of error, Mookerji argues that the trial court erred in denying his motion for summary judgment and granting the defendants’ motion for same as to his claim that he is entitled to a $1,000,000 severance payment under Section 8.1 (c) of the May 2015 employment agreement. We disagree. On the same day Mookerji signed the employment agreement in May 2015, he also signed SPI Holdco’s 2015 operating agreement, portions of which are incorporated into several of the employment agreement’s provisions. Relevant here, Section 8 of the employment agreement provides: 8. Obligations of Company Upon Termination: 8.1 Termination by [SPI Holdco] for a Reason Other than Cause and Termination by Executive for Good Reason. Executive’s employment with [SPI Holdco] and SPIG may be terminated only in accordance with Section 8.15 of [SPI Holdco's] Operating Agreement. If Executive’s employment is terminated (y) by [SPI Holdco] for any reason other than Cause or (z) by Executive for Good Reason: . . . (c) When and as required by Section 8.15 of the Company Operating agreement, and in accordance with the requirements of such provision, [SPI Holdco] shall pay Executive the “Without Cause Separation Payment” (as defined in the Company Operating agreement), which shall be in the amount of One Million Dollars ($1,000,000) before deducting all applicable withholdings, and which amount shall be payable to Executive in a lump sum.[39] And Section 8.15 (c) of the 2015 operating agreement provides: Separation Payment Following Without Cause Removal Prior to Third Anniversary. Unless [Mookerji] otherwise agrees to accept a role as a member of [SPI Holdco's] senior management team and continue on following such removal as an employee of SPIG, if [Mookerji] is actually removed by the Board from his roles in accordance with Section 8.15 (b) without Cause during the time period commencing on the next day following the eighteen (18) month anniversary of the date hereof and ending on the three year anniversary of the date hereof, and, [SPI Holdco] shall pay, or cause to be paid, within fifteen (15) Business Days following the later to occur of (i) the delivery of a removal notice pursuant to clause (iii) of Section 8.15 (b), and (ii) the date of the expiration of the revocation period of a release of claims which [Mookerji] executes and delivers to [SPI Holdco], on [SPI Holdco's] standard and customary reasonable form of release of claims regularly obtained from individuals leaving the employment of [SPI Holdco], a separation payment equal to one million dollars (the “Without Cause Separation Payment”) . . . . It is undisputed that on May 23, 2016, one year after the parties entered into the employment agreement and the 2015 operating agreement, they amended the latter by entering into SPI Holdco’s Second Amended and Restated Operating agreement. (the “2016 amended operating agreement”). And at the outset of the 2016 amended operating agreement, it provides that “in consideration of the promises and covenants contained herein, the parties hereto agree to amend and restate the Original Operating agreement in its entirety.”[40] Significantly, in this amended agreement, the entirety of Section 8.15 of the 2015 operating agreement was removed.[41] In denying Mookerji’s motion for summary judgment, the trial court found that several genuine issues of material fact remained as to whether he satisfied the prerequisites in Section 8.15 of the 2015 operating agreement, including, inter alia, a requirement that he execute and deliver a release of claims to SPI Holdco. Nevertheless, the trial court granted the defendants’ motion for summary judgment as to this claim, finding that because the 2016 amended operating agreement replaced the original agreement in its entirety, Mookerji was not entitled to the severance provided for in the outdated and superseded 2015 operating agreement. Importantly, Mookerji signed and executed the 2016 amended operating agreement in his personal capacity and as CEO of SPIG. On appeal, Mookerji argues, as he did below, that the employment agreement unambiguously incorporates the 2015 operating agreement, and thus, the 2016 amended operating agreement did not amend Section 3.4 of the employment agreement such that he was no longer entitled to the severance payment. And in support, he primarily focuses on the following language in Section 3.3 of the employment agreement: “For purposes of the foregoing, ‘Adjusted EBITDA’ and ‘Agent presentation’ shall have the meanings assigned to such terms in [SPI Holdco's] Amended and Restated Operating Agreement of even date herewith (‘Company Operating agreement’).”[42] Mookerji contends that—because the 2015 operating agreement was the only one executed on the same day as the employment agreement—the phrase “of even date herewith” means that Section 8.1 (c) still incorporates Section 8.15 of the initial 2015 operating agreement, even though the latter was superseded by the 2016 amended operating agreement. In addressing this argument, the trial court first found that the phrase “even the date herewith” in Section 3.3 of the employment agreement creates an ambiguity as to whether that agreement still incorporates the initial 2015 operating agreement. Nevertheless, the trial court found that the ambiguity could be “resolved by basic contract construction.” Indeed, Section 8.1 (c) of the employment agreement states that Mookerji is entitled to the $1,000,000 severance payment “[w]hen and as required by Section 8.15 of the Company Operating agreement, and in accordance with the requirements of such provision.”[43] But by the time Mookerji was terminated, the language of Section 8.15 of the 2015 operating agreement had been superseded by a later agreement, with his consent, and thus the operating agreement no longer “required” a severance payment under any circumstances. Furthermore, while the 2016 operating agreement omitted the severance-payment provision, it restated and included many of the provisions of the original agreement. Suffice it to say, this is strong evidence of the parties’ intent to eliminate the severance-payment requirement.[44] Thus, even though the employment agreement was not itself amended, by the time Mookerji’s employment was terminated, there was simply no enforceable severance-payment requirement under Section 8.1 (c) of the employment agreement. As a result, the trial court did not err in granting partial summary judgment to the defendants as to his severance-payment claim. 2. Lastly, Mookerji argues that the trial court abused its discretion in denying his motion to amend the pretrial order to add a breach-of-contract claim, seeking 30 days’ salary based on SPI Holdco’s failure to give him the requisite 30-day notice prior to his termination. But any potential error in this regard was harmless. On March 9, 2019, the trial court entered the consolidated pretrial order, which was submitted jointly by the parties and did not include a breach-of-contract claim for 30 days’ salary. Shortly thereafter, Mookerji filed a motion to amend the pretrial order to add such a claim. Importantly, as to this claim, Mookerji specifically requested damages in the amount of $38,059.83. And while the defendants initially consented to Mookerji’s motion, it is undisputed that, prior to trial, they paid Mookerji the exact amount of salary he requested in his motion. As a result, at the outset of trial, the trial court denied Mookerji’s motion to amend the pretrial order, explaining later, it its written order, that the defendants had cured the alleged breach by making the requested payment. On appeal, Mookerji acknowledges that the defendants made the payment, but claims that they did so unilaterally, without negotiating with him, only to avoid liability for attorney fees under OCGA § 13-6-11.[45] But he fails to explain how the defendants’ reason for paying him the exact amount of damages he sought matters for purposes of deciding whether the claim was ultimately satisfied. And although Mookerji emphasizes that the defendants did not negotiate the amount of the payment with him, the trial court found and the record shows that $38,059.83 was the full amount of damages Mookerji sought as to the claim he wanted to add. Thus, any potential error the trial court may or may not have made in denying his motion to amend the pretrial order was harmless. And it is well settled that “an appellant must show harm as well as error to prevail on appeal.”[46] For all these reasons, we affirm the trial court’s final judgment in Case No. A21A0922, as well as its summary-judgment order in Case No. A21A0923. Judgments affirmed. Mercier and Pinson, JJ., concur.
