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Morgan v. American Insurance Managers Inc.8/17/1999
In the Court of Appeals of Georgia
In this action concerning the viability of a contract for employment, Norman W. Morgan appeals the trial court's order granting summary judgment to both American Insurance Managers, Inc. (AIM) and David Dennett-Smith, contending that the trial court erred by: (1) ruling the statute of frauds barred Morgan's oral employment agreement with AIM; (2) improperly construing deposition testimony on AIM's motion for summary judgment; and (3) failing to consider facts and law concerning Morgan's part performance of the alleged employment agreement. Based on Morgan's own testimony, we find that the employment agreement falls within the statute of frauds and affirm the trial court's grant of summary judgment.
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. 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. . . . Our review is de novo. (Citations and punctuation omitted.) Brown v. Brewer, 237 Ga. App. 145, 146 (513 SE2d 10) (1999).
Viewing the evidence in favor of Morgan, the non-movant, the record reveals that Morgan sought employment with AIM's Medical Stop Loss (MSL) Division on May 26, 1992. After negotiating with Dennett-Smith, AIM's President, Morgan and AIM entered into an oral employment agreement to begin June 1, 1992.
Morgan agreed to work for AIM in return for AIM's promise to provide him with an annual salary of $120,000, an automobile allowance of $950 per month, and a bonus equal to ten percent of annual MSL Division profits pursuant to a twelve-month rolling agreement. Pursuant to the oral agreement, Morgan reported to work on June 1, 1992, and continued to work until he was terminated on May 23, 1994.
When AIM terminated Morgan, it paid him his salary and auto allowance to date, and gave him one month's salary as severance pay. Morgan did not receive any bonuses. He contends that AIM owes him salary for 11 months and automobile allowance for 12 months pursuant to the 12-month rolling agreement, as well as unpaid bonuses for partial year 1992, full year 1993, and partial year 1994.
1. Morgan claims the trial court erred in ruling that his employment agreement with AIM is barred by the statute of frauds. We disagree.
The common law statute of frauds codified in Georgia states:
"To make the following obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him: . . . (5) Any agreement that is not to be performed within one year from the making thereof." OCGA § 13-5-30 (5).
Morgan deposed that the agreement entitled him "to be [employed] for the next 12 months" in exchange for "each day show up for work" and that, in the event of termination, he was entitled to receive compensation "for the next 12 months." According to this testimony, Morgan's alleged contract could, at its minimum duration, be performed in a year and a day. Thus, Morgan's own interpretation of the 12-month rolling agreement renders the agreement an employment contract impossible of being performed in one year, and therefore, subject to the statute of frauds.
An oral employment contract for a definite term not to be performed within one year, such as the one we have here, is with
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