Glissman v. Gross et al, No. 2:2017cv00039 - Document 22 (S.D. Ga. 2018)
Court Description: ORDER DENYING Gross's 19 Motion for Summary Judgment on all claims. Defendant W.H. Gross Construction Company's 19 Motion for Summary Judgment on all claims is GRANTED. Signed by Judge Lisa G. Wood on 8/2/2018. (csr)
Download PDF
<![CDATA[
Glissman v. Gross et al Doc. 22 Sn tl^e ?Ktiiteb States! Court tor tl^e ^outl^em Btotrict ot 4leorsta Pntttsdntrii Biiiiotoii MARC F. GLISSMAN, Plaintiff, No. 2:17-cv-39 V. WILLIAM GROSS and W.H. GROSS CONSTRUCTION COMPANY, Defendants. ORDER This Summary matter Judgment comes of before Defendants the Court William on Gross Construction Company {''Gross Construction"). Motion is ripe for review. the Motion and W.H. Dkt. No. 19. for Gross This For the following reasons. Gross's Motion is DENIED, and Gross Construction's Motion is GRANTED. BACKGROUND FACTS This dispute concerns the existence of a contract in the context of Georgia. Resort I, a failed water park development in Kingsland, Specifically, Michael Elzufon formed Epic Adventures LLC ("Epic Adventures") in 2012 in pursuit of a destination tourism concept ("the Project") to include a water park, amusement park, lodging, retail, and entertainment. A0 72A (Rev. 8/82) Dockets.Justia.com Defendants' Statement of Undisputed Material Facts (^^SUMF"),^ Dkt. No. 19-1 t 1; Dkt. No. 19-2, Ex. A. Epic Adventures, in turn, entered into a project agreement with the Georgia Gateway Improvement District and the city of Kingsland, Georgia. 3 2; Dkt. No. 19-2, Ex. B. SUMF Defendant Gross and others entered into an agreement to sell certain properties to Epic Adventures for the location of the Project. C. SUMF SI 4; Dkt. No. 19-2, Ex. The sale included owner financing and the subordination of Defendants' security interest to a $500,000 (later increased to $650,000) loan by a third party to Elzufon. SUMF SI 5; Dkt. No. 19-2, Exs. D, T. To get Plaintiff the Project Glissman for off his discussions Elzufon between the following ground, experience operation of water parks. After the in Elzufon the contacted development and SUMF SI 6; Dkt. No. 21-1, 17:6-10. Elzufon email on and Glissman, January 8, Glissman 2015 (^'the sent Jan. 8 email"): Previously we discussed the best route to take regarding compensation and I wanted to share some of my thoughts with you. 1099 Compensation: $2800 weekly (payable plus any applicable travel expenses bi-weekly) W-2 Compensation: $130,000 annually (payable bi weekly) plus any applicable travel expenses (Please note: no insurance benefits necessary, as my wife handles these through her employer.) ^ Throughout this order, the Court cites only those paragraphs Defendants' SUMF that Plaintiff specifically fails to dispute. from If you prefer an hourly rate, I'm happy to provide those numbers as well. However, with the amount of work we have to do, I feel this option may be more costly overall. Regarding travel, please advise on how you wish to handle these expenses. Would I absorb these costs on a personal credit card and submit for reimbursement or would I have access to a company credit card? I really appreciate the opportunity to work with you on this outstanding project. I am extremely excited to be on the front end of this project forward to seeing it through to completion. and Please let me know if you have any questions. forward to hearing your thoughts. look I look Thanks, Marc SUMF SI 7; Dkt. No. 19-2, Ex. F. A that few Epic days Adventures management team. these later, Elzufon had transmitted named Glissman a notice to its Glissman never discussed Gross executive SUMF SI 9; Dkt. No. 19-2, Ex. H. interactions, to Throughout with Elzufon, Gross, or anyone related to the Project which entity employed him. Dkt. No. 21-1, pp. 41-42. After some compensation.^ period of time, Glissman was not receiving To address this problem, he spoke first with Elzufon then with Gross. Dkt. No. 21-1, p. 30. Glissman that funding would be coming in any day. told Glissman the same thing. Id. Elzufon told Id. Gross More specifically. Gross told Glissman he wanted to ensure that he (Glissman) would get It is unclear in the record presently before the Court exactly when this occurred. paid and that he (Gross) was working every angle on bridge loans to fulfill that obligation. Id. 51-52. Elzufon was criminally indicted in February 2015, ceasing his involvement with the Project. Dkt. No. 21-1 51:5-7. Glissman testified that, at that point. Gross became his main contact for the Project. that he and Gross Id. 51:8-12. then had Glissman also testified discussions regarding his (Glissman's) compensation, that Glissman forwarded the previous terms to Gross, and that Gross agreed to those same terms. Id. 51-53. Elzufon defaulted on his promissory note subsequently terminated the sales agreement. No. 19-2, formed Ex. the I. Following entity Epic Elzufon's Destinations, SUMF SI 11; Dkt. No. 19-2, Ex. J. with Gross, SUMF SI 10; Dkt. unavailability. LLC on who April 10, Gross 2015. Epic Destinations, in turn, entered into a project agreement (as had Epic Adventures) with the Georgia Gateway CID and the city of Kingsland. Dkt. No. 19-2, Ex. K. funds" were to be SUMF SI 12; Defendants contend that """the bridge loan used in connection with the Project successful for compensation of persons including Glissman. No. 19-1 contends, SI 13 to (citing the Dkt. contrary, No. that 19-2, his Ex. L). compensation if Dkt. Plaintiff was never contingent upon financing and that he never discussed making his compensation contingent upon a bridge loan. Dkt. No. 20-1 H 13 (citing Dkt. No. 21-1 53:4-17). Defendant produced a spreadsheet reflecting three payments made to Glissman with the line item ^^Epic Project (Job)." No. 19-2, Ex. P. 2015. Id. A $5,000 payment was made on September 1, A $3,500 payment was made on November 11, 2015, and a $4,000 payment was made on December 9, 2015. contends Dkt. these payments represent partial Id. Plaintiff compensation; Defendant contends these payments were an advance for expenses. In any event, Glissman worked on the Project from January 2015 to March 2016. He now brings a breach of contract claim (or, in the alternative, quantum meruit) seeking $168,000 and bad faith damages from Gross and Gross Construction. LEGAL STANDARD Summary judgment is required where ^^the movant shows that there is no genuine dispute as to any material fact movant is entitled to judgment as a matter of law." Civ. P. 56(a). V. (quoting (1986)). FindWhat.com, Anderson the Fed. R. A fact is ^^material" if it ''might affect the outcome of the suit under the governing law." Grp. and v. 658 F.3d Liberty 1282, Lobby, 1307 Inc., FindWhat Inv^ r (11th 477 Cir. U.S. 2011) 242, 248 A dispute is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw Johnson all v. reasonable Booker T. inferences Washington in Broad. that party's Serv., Inc., favor. 234 F.3d 501, 507 (11th Cir. 2000). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. V. Catrett, 477 U.S. 317, 323 (1986). court that nonmoving there party's is an case. absence Id. at of Celotex Corp. The movant must show the evidence 325. If to the support moving the party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257. The nonmovant may satisfy this burden in one of two ways. First, the nonmovant ^'may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was ^overlooked or ignored' by the moving party, who has thus failed to meet the initial burden absence of evidence." Fitzpatrick of showing an v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)). forward directed with additional verdict evidentiary motion deficiency." Second, the nonmovant ^^may come evidence at Id. sufficient trial at based 1117. to on Where withstand the the a alleged nonmovant attempts to carry this burden instead with nothing more ^^than a repetition of his conclusional allegations, summary judgment for the defendants [is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing Fed. R. Civ. P. 56(e)). DISCUSSION In their Motion for Summary Judgment, Defendants argue that there was no contract as a matter of law, that they are not parties to any contract Glissman may have had with Elzufon, and that the Statute of Frauds bars Glissman's claims. The Court will take up each argument in turn. I. Is -there a contract? ^'To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, matter upon which the contract can operate." and a subject O.C.G.A. § 13-3-1. ^'The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition." O.C.G.A. § 13-3-2. Viewed in the light most favorable to him. Plaintiff has produced sufficient evidence from which a reasonable juror could conclude that he and Elzufon made a contract. While Plaintiff does not assert that the Jan. 8 email constituted the contract. he argues correctly that it reflected an oral agreement between them, sufficient to Defendant. withstand an award of summary judgment to Plaintiff testified that: Elzufon sought him out for his related experience in waterpark development and management; Elzufon hired him; Elzufon agreed to compensate him at a rate of $2,800 weekly. Finally, the record shows that Elzufon notified Gross that Glissman had been added to the executive management team. Viewed in the light most favorable to him. Plaintiff has also produced sufficient evidence from which a reasonable juror could was conclude indicted. Plaintiff to that he and Plaintiff remain on Gross made testified the a contract that, Project, in after order Gross to agreed Elzufon entice to pay Plaintiff under the same terms that he and Elzufon had initially agreed upon. Dkt. No. 21-1, pp. 51-53. Plaintiff's testimony supports the following: after Elzufon was indicted in February 2015, Gross Project; became Glissman regarding Glissman's and Glissman's main Gross point of subsequently compensation; contact had Glissman on the conversations sent Gross in writing the terms of his previous agreement with Elzufon; Gross agreed to those same terms. Id. True, Gross argues that he did not assent to the terms that Glissman there is articulated. a genuine But Glissman issue of testified that he material 8 fact regarding did. So whether Gross agreed to compensate Glissman for his continued services on the Project. law that Therefore, the Court cannot hold as a matter of Glissman and Gross made no contract, and Gross's request for summary judgment on the existence of the contract must be denied. Defendants existed also lacked enforceable. argue that sufficient whatever material agreement terms to may be have legally They cite Burns v. Dees for the proposition that a contract cannot be enforced if its terms are incomplete, vague, indefinite, or uncertain and Dong v. Shepeard Community Blood Center for the proposition that an employment contract for an indefinite period of time is unenforceable. 557 S.E.2d 32 (Ga. Ct. App. App. 2001); 522 S.E.2d 720 (Ga. Ct. 1999). His reliance on both is misguided. The court held the agreement in Burns unenforceably indefinite where the promisor allegedly promised ^'an unspecified interest" for his work on '''other ventures." 557 S.E.2d at 35. Such terms do not govern the present contract. Dong is not a breach of contract case at all. court there held that the plaintiff's claim Instead, the for tortious interference with her employment relationship failed where her employment was at-will. The effect of the indefinite period of employment was not—as Defendant would have the Court hold here— that there was no employment relationship or that there was no contract. No, the effect of the indefiniteness of the period was that the employment was terminable at will and thus could not support a cause O.C.G.A. § 34-7-1). for wrongful termination. Id. (citing Here, the Court cannot say at this stage that the contract is unenforceably vague. II. Does the Statute of Frauds bar Glissman's claims? Plaintifff contends that the email he sent to Elzufon reflected the terms of an oral agreement they had made. While an oral agreement is no less valid than a written one, Georgia's Statute of Frauds requires some agreements to be in writing in order to be enforceable. Notably here, '^any agreement that is not to be performed within one year from the making thereof" and ^^a promise to answer for the debt, default, or miscarriage of another." in O.C.G.A. § 13-5-30(2), (5). Such agreements must be writing and signed by the person to be charged therewith. Id. Defendant first contends that the agreement was not to be performed within a year. He argues in support that Glissman's period of employment lasted thirteen or fourteen months. agreement year," not limited to Defendant argues, and Glissman's is deposition a period "[i]t testimony that which his claim of a contract existed year requirement." Dkt. No. 19, p. 8. 10 of is the time clear less from period of than "The one Plaintiff time for was in excess of the one On this point, Georgia law is clear: "[T]o fall within the ambit of this statutory provision, a contract must be incapable of being performed within a year; the possibility of performance of the contract within one year is sufficient to remove it from the Statute of Frauds." 721 S.E.2d possibly 577 be (Ga. Ct. performed this provision." Bithoney v. Fulton-DeKalb Hosp. Auth., App. within 2011). a """[Ilf year, it does the promise not fall may within Henry v. Blankenship, 621 S.E.2d 601 (Ga. Ct. App. 2005). A promise which is not likely to be performed within a year, and which in fact is not performed within a year, is not within the statute of frauds if at the time the contract is made there is a possibility in law and in fact that full performance such as the parties expiration of a year. intended may be completed before the Vernon v. Assurance Forensic Accounting, LLC, 774 S.E.2d 197 (Ga. Ct. App. 2015). More specific to the employment context, the at-will employment actually lasts ^'fact that several an years does contract not bring of the contract within the statute, since either party could put an end to the contract within one year, and the contract would thereby be fully performed." Williston on Contracts § 24:3 (citing Parker v. Crider Poultry Inc., 565 S.E.2d 797 (Ga. 2002)). The Supreme Court, too, has spoken on the subject: ^^The parties may well have expected that the contract would continue in force for more than one year, it may have been very improbable that it 11 would not do so; and it did in fact continue in force for a much longer time. But they made no stipulation which in terms, or by reasonable inference, required that result. The question is not what the probable, performance contract was, or but expected, whether or the actual contract, according of to the the reasonable interpretation of its terms, required that it should not be performed within the year." Warner v. Tex. & P. Ry. Co., 164 U.S. 418, 434 (1896) (the contractual duration was ""as long as he needed it," which turned out to be thirteen years, and still it did not fall within the statute). Here, Glissman there and is Elzufon no evidence specified that a the definite agreement duration. between Nor is there any evidence that the agreement between Glissman and Gross specified a indefinite definite duration Frauds. . . . duration. does not ''A contract fall of employment within the Statute of of This is so because, at its inception, a contract of employment for an indefinite duration is an agreement capable of being performed performance of the within contract one year, within and one remove it from the statute of frauds." the year is possibility of sufficient to Parker, 565 S.E.2d at 798-99. Defendant Inc., for the cites Morgan proposition v. that American Insurance employment Managers, agreements for a definite term not to be performed with a year fall within the 12 statute of Frauds. correct. 521 S.E.2d 676 (Ga. Ct. App. 1999). That is But as previously pointed out, this agreement had no definite term of duration. Defendants next argue—less fulsomely—that the agreement falls within the Statute of Frauds because it is a promise to answer for the debt of another. The applicability of this provision turns on whether the promise at issue is ^'collateral," "secondary," or "superadded" to that of another party or whether the promise is undertaking is an one "original where the undertaking." An original promisor is "furthering his interests rather than underwriting the debt of another." K. Larkins, Jr., Ga. Contracts Law and Lit. § 6.3 (2d own John ed.). Statements such as "I'll see that he gets paid" or words to that effect ordinarily indicate an original undertaking whereas a statement like "if he fails to pay, then I'll pay" indicates a collateral promise. Id. (citing Lewis v. Dan Vaden Chevrolet, Inc., 236 S.E.2d 866 (Ga. Ct. App. 1977); Bennett Oil Co. v. Harrell, 238 S.E.2d 267 (Ga. Ct. App. 1977)). An original undertaking exists where one debtor is substituted for another. Id. (Ga. (citing Ct. original Donald App. H. Gordon 1987)). undertaker and The an Co. v. crucial Carswell, 362 S.E.2d distinction underwriter promisor is furthering his own interests. 13 is between whether the 483 an new Robin C. Larner, Ga. Jur. § 1:46 (citing Schwab U.S.A., Inc. v. Perpetual Machine Co., 525 S.E.2d 719 (Ga. Ct. App. 1999)). ^'[T]hose promises required by the statute to be in writing do not include an original undertaking in which the new promisor, for valuable consideration, substitutes himself as the party who is to perform and the original promisor is released." Donald H. Gordon Co. v. Carswell, 362 S.E.2d 483 (Ga. Ct. App. 1987). In this case. Plaintiff has produced sufficient evidence to withstand summary judgment that Gross made an original undertaking instead of a promise to pay for the debt of another. Because Gross remained on the Project after Elzufon had been removed from it. Gross was furthering his own interests rather than Elzufon's interests in maintaining Glissman's employment on the Project. Glissman testified that Gross ^Vanted to ensure me that I was going to be paid and that he was working every angle on bridge loans and so forth to make sure that he could fulfill that obligation. He also discussed with me that he would look into his tax credit business and possibly pay me through his tax credit business funds." Dkt. No. 21-1 51:23-52:4. This statement is more like "I'll see that he gets paid" than "if somebody else fails to pay, I'll pay." The Court cannot hold as a matter of law that Gross's promise to compensate Glissman was 14 the promise to answer for the debt of another. Gross is not precluded from presenting this argument to a jury. Because this agreement does not fall within the Statute of Frauds, the Court need not analyze whether partial performance provided clear and convincing evidence of the contract. Ill. Is there sufficient evidence for Glissxnan's quantum meruit claim? Plaintiff meruit in the has brought event that the his alternative breach of claim contract of claim quantum fails. (Where an express contract exists, there can be no recovery in quantum meruit. Blueshift, Inc. v. Advanced Computing Techs., Inc., 616 S.E.2d 816 (Ga. Ct. App. 2005)). summary judgment on the quantum meruit Defendant requests claim, arguing that Plaintiff has failed to produce any evidence of value conferred on Defendants. Quantum meruit under Georgia law has four elements: (1) the performance of valuable services (2) that are accepted or requested by the defendant (3) for which failure to compensate the provider would be unjust and (4) the plaintiff performed with the expectation of compensation. Amend v. 485 Props., 627 S.E.2d 565, 568-69 (Ga. 2006). ^Value' means value to the owner rather than the cost of producing the result to the workman." Co., Inc., 244 S.E.2d 646, 647 15 (Ga. Bowen v. Ken-Mar Constr. Ct. App. 1978) (citing Brumby v. Smith & Plaster Co. of Ga., 181 S.E.2d 303, 305 (Ga. Ct. App. 1971)). rendered to Proof of and accepted reasonable value of services by [a defendant is] an essential to recovery on a quantum meruit basis." element Dieqert v. Cedarbrook Homes, Inc., 599 S.E.2d 211, 212 (Ga. Ct. App. 2004). ^Value, as any other circumstantially positively.'" or matter to be proved, inferentially as well may as be shown directly or Nextel S. Corp. v. R.A. Clark Consulting, Ltd., 596 S.E.2d 416, 419 (Ga. Ct. App. 2004) (quoting Centre Pointe Invs. V. Frank M. Darby, 549 S.E.2d 435, 439 (Ga. Ct. App. 2001)). Here, Plaintiff testified that typical value for his services. $120,000 annually was a He also testified that Elzufon valued his services in the present case at $2,800 weekly. The Georgia Court of Appeals has specifically held that testimony regarding the typical charge for services is evidence of value conferred in a quantum meruit claim. Thus, at this sufficient stage evidence of that the he Nextel, 596 S.E.2d at 419. case, conferred Glissman a has benefit produced to Gross. Further, Glissman has produced sufficient evidence of each element of performed quantum services meruit. as an He executive presented the one who initially hired 16 that he management team member for the Project from January 2015 to March 2017. not evidence Glissman Though Gross was for the job, he accepted the benefit of those services before and after Elzufon was indicted. had hired Project. Specifically, Elzufon relayed to Gross that he Glissman onto the executive management team for the After Elzufon was' indicted. Gross initiated contact with Glissman expressing an expectation that Glissman's services would continue. Plaintiff testified compensation of $2,800 weekly for that his services. he expected He presented evidence that it would be unjust for him to have conferred such services to the Project without compensation. IV. Claims against Gross Construction Plaintiff Glissman has brought both of his claims—breach of contract and quantum meruit—against both Defendants. However, he has not produced sufficient evidence as to either cause of action to proceed against Gross Construction. In fact. Gross Construction is never mentioned in the record evidence before the Court—not in Glissman's deposition, not in any other exhibit. While Glissman did testify that he was unsure about exactly which entity employed him, he has made no suggestion that it was Gross Construction. evidence that any of his conversations—whether He produced no orally or in writing—with Gross were in his representative capacity for Gross Construction. Nor has Glissman produced evidence that Gross Construction received the benefit of his services. 17 He produced no evidence of Gross benefit Construction's it received connection for having to the Project Glissman on nor the of any Project. Moreover, Plaintiff's responsive brief failed to address Gross Construction's argument that Glissman's claims against it be dismissed. CONCLUSION Defendant Gross's Motion for Summary Judgment on all claims is DENIED. Defendant W.H. Gross Construction Company's Motion for Summary Judgment on all claims is GRANTED. SO ORDERED, this 2nd day of August, 2018. HON. ^SA\50D«EY(W00D, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA 18
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
