This Opinion is Uncorrected and subject to revision by the court.
ANDREWS, Presiding Judge. Miller and Branch, JJ., concur.
Andrews, Presiding Judge.
Kirk Willis, an attorney and the former managing member of the Dallas, Texas office of Helms & Greene, LLC, filed an action against Helms & Greene in the trial court to recover incentive and bonus compensation he alleged he was owed following his departure from that law firm. Helms & Greene asserted counterclaims, including a counterclaim for breach of fiduciary duty. In an order granting in part and denying in part the parties' cross motions for summary judgment, the trial court, among other things, granted summary judgment in Willis' favor on the breach of fiduciary duty counterclaim to the extent that it was based on Willis' conduct in marketing his own professional corporation while still employed by Helms & Greene. Helms & Greene appeals, arguing that it did not need to prove that it suffered damage or that the marketing efforts were lucrative to Willis in order to pursue a breach of fiduciary duty claim based on those marketing efforts. Concluding that an available remedy for breach of fiduciary duty is recovery of compensation the principal paid to the agent during the time the agent breached a fiduciary duty, we reverse.
On appeal from a grant of summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. 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.
(Footnotes omitted.) Crippen v. Outback Steakhouse Intl., L.P., 321 Ga.App. 167, 167-168 (741 S.E.2d 280) (2013). So viewed, the record shows that in June 2009, Willis entered into an Employment Agreement (the " Agreement" ) with Helms & Greene under which Willis was to serve as the Managing Member of Helms & Greene's Dallas office. Under the Agreement, Willis agreed to " perform ... well and faithfully the duties and responsibilities ... assigned to [him]," to " devote all of [his] time, energy and skill during regular business hours to the performance of the duties of [his] employment," and that, with certain exceptions, he would not engage, during normal business hours or otherwise, " in any other business or professional activity, whether or not such activity is pursued for gain, profit or other pecuniary advantage." The Agreement provided that Willis would receive a base salary of $225,000. He was also entitled to certain incentive compensation. Specifically, Willis was to receive a bonus in the amount of 20 percent of attorney and paralegal fees Helms & Greene collected for work originated by Willis but performed in an office other than the Dallas office. Additionally, he was entitled to a bonus equal to 35 percent of the
gross cumulative profit (as defined in the Agreement) generated by the Dallas office. The Agreement permitted either party to terminate it for any reason with 60 days prior written notice.
When Willis was hired, he had a number of valuable relationships with insurance industry clients. As Managing Member of the Dallas office of Helms & Greene, Willis was authorized to pursue new engagements from these clients, manage those relationships, and set billable rates for those clients' matters. Willis was also authorized to pursue new business. According to Willis, he had " complete autonomy of the Dallas office."
Willis testified that Helms & Greene paid him through a professional corporation he formed in 2000, Kirk Willis, P.C. The record includes evidence that Willis attempted to obtain new legal business through his P.C. while he was employed with Helms & Greene. The record shows that in May 2011, Willis, with assistance from his Helms & Greene secretary, submitted a letter of proposal for Kirk Willis, P.C. to provide legal services to the Texas A& M University System. The letter used the address of the Dallas office of Helms & Greene as the address of Kirk Willis, P.C. The letter identified Helms & Greene lawyers -- including the firm's Managing Member, Steve Greene -- as the attorneys likely to work on matters for the university. Willis maintained that he pursued legal work from Texas A& M University and other government entities through Kirk Willis, P.C. because his P.C. was a minority-owned business with a historically underutilized business certification from the State of Texas. He believed that the certification would give the P.C. a competitive advantage. Willis, however, did not inquire whether anyone at Helms & Greene had experience representing colleges or universities or seek advice from anyone within Helms & Greene on how to submit a successful proposal for legal work for a university.
Willis later hired consultants to assist him in responding to requests for proposal but did not submit this expense to Helms & Greene for reimbursement. The consultants assisted in preparing a joint response to a request for proposal by the North Texas Tollway Authority (" NTTA" ) on behalf of Kirk Willis, P.C. and another Dallas law firm. This response also included biographies of Helms & Greene's attorneys and listed the Helms & Greene address as the address of Kirk Willis, P.C. While Willis maintained that the response was for Helms & Greene's benefit, he did not tell Steve Greene about it. Also beginning in or around January 2012, Willis, with assistance of another consultant and support from his Helms & Greene secretary, attempted to obtain approval for Kirk Willis, P.C. to provide legal services for the General Services Administration (" GSA" ).
One of Willis' responsibilities at Helms & Greene was to lead a monthly conference call about his marketing efforts for the firm. Willis never disclosed in these calls that he was soliciting business from Texas A& M, the NTTA, or the GSA. The parties do not dispute that Willis' efforts ...