CALDWELL et al.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
the terms of a written contract that contains a merger
clause, Emil and Joanne Caldwell sold all of the assets of a
business, a bar and grill, to Virginia Church. Then, on the
basis of a claim that Church had breached an alleged
contemporaneous oral agreement modifying that written
contract, the Caldwells reentered the premises, ejected
Church, changed the door locks, and resumed operating the
business as their own.
then brought this action. She asserts claims for breach of
contract and fraud against Emil Caldwell and claims for
trespass, conversion, attorney fees, and punitive damages
against both Caldwells. The Caldwells answered and
counterclaimed for breach of contract. The trial court
granted summary judgment to Church on her breach of contract
claim; granted judgment on the pleadings to Church on her
trespass, conversion, attorney fees, and punitive damages
claims; dismissed the Caldwells' counterclaim for failure
to state a claim; and denied the Caldwells' motion for a
protective order as to the further deposition of Emil
Caldwell. The Caldwells appeal, challenging the trial
trial court correctly found that the Caldwells' claim of
a breach of the alleged contemporaneous oral agreement was
meritless. So he properly granted summary judgment in favor
of Church on her breach of contract claim. The trial court
also correctly ruled that the pleadings established that
Church was entitled to judgment on her trespass and
conversion claims. But the trial court erred in entering
judgment on the pleadings as to Church's attorney fees
and punitive damages claims because those are matters for a
trier of fact to decide. The trial court correctly dismissed
the counterclaim because it rested on the Caldwells'
meritless breach-of-the-alleged-oral-agreement argument and
therefore failed to state a claim for which relief could be
granted. Finally the trial court properly denied the
Caldwells' motion for a protective order and allowed
Church, in furtherance of her claim for punitive damages, to
conduct discovery of Emil Caldwell's net worth.
Accordingly, we affirm in part and reverse in part the
rulings of the trial court.
judgment is appropriate when the moving party can "show
that there is no genuine issue as to any material fact and
that the movant is entitled to a judgment as a matter of
law[.]" OCGA § 9-11-56 (c).
Summary judgments enjoy no presumption of correctness on
appeal, and an appellate court must satisfy itself de novo
that the requirements of OCGA § 9-11-56 (c) have been
met. In our de novo review of the grant of a motion for
summary judgment, we must view the evidence, and all
reasonable inferences drawn therefrom, in the light most
favorable to the nonmovant.
Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697
S.E.2d 779) (2010) (citations and punctuation omitted).
viewed, the evidence shows that Church and Emil Caldwell
entered into a written agreement for Church to purchase from
Caldwell all of the assets of a business known as Sugar
Daddy's Bar and Grill in McDonough, Georgia. The contract
provided for a $100, 000 purchase price, set forth a payment
schedule, established that the closing date was September 15,
2014, and stated that on that closing date all of the
"inventory, equipment, and fixtures to be transferred
will be located at [the business address] and will not be
removed without the written consent of the Buyer." The
contract also included a merger clause entitled "Entire
Agreement, " which provided:
This Agreement constitutes the sole and only agreement
between Buyer and Seller respecting the Business or the sale
and purchase of it. This Agreement correctly sets forth the
obligations of Buyer and Seller to each other as of its date.
Any additional agreements or representations respecting the
Business or its sale to Buyer not expressly set forth in this
Agreement are null and void, unless required by law.
to the agreement, Church made payments and Caldwell
transferred the business to her on September 15, 2014. Church
operated the bar and grill from that date until January 2015.
During that time, she did not have a liquor license in her
name, but operated the business with the liquor license in
Joanne Caldwell's name.
January 10, 2015, the Caldwells went to the bar and grill,
ordered the patrons to leave, ejected Church from the
premises, and changed the door locks. Thereafter, the
Caldwells denied Church access to the business, prohibited
her from operating the business, and began operating the
business as their own. The Caldwells operated the bar and
grill until May 23, 2015, when they closed the business. The
Caldwells subsequently removed inventory and equipment from
the business premises and placed the items in their private
moving for summary judgment on her breach of contract claim
against Emil Caldwell, Church cited the contract clause
providing that the business inventory and equipment
"will not be removed without the written consent of
[Church]" and pointed to specific deposition testimony
of the Caldwells admitting that Emil Caldwell had violated
that contract provision by removing equipment from the
business premises without Church's written consent.
Because Church properly supported her motion for summary
judgment with specific evidence in the record, Emil Caldwell,
as the adverse party, "may not rest upon the mere
allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided in [OCGA § 9-11-56],
must set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary judgment,
if appropriate, shall be entered against him." OCGA
§ 9-11-56 (e). See also Lau's Corp. v.
Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991) (if the
party moving for summary judgment has discharged its burden,
the nonmoving party cannot rest on its pleadings, but rather
must point to specific evidence giving rise to a triable
response, Emil Caldwell has failed to point to any evidence
showing that there is a genuine issue for trial. Rather, he
argues that although the written contract did not mention
licenses, permits, or insurance, Church had orally agreed at
the time the contract was entered into and when business was
turned over to her on September 15, 2014, to obtain a liquor
license, business permits, and insurance in her name; that
she failed to do so; and that a jury could therefore find
that Emil Caldwell retained title to the business under that
oral modification to the written contract. In support of this
argument, Caldwell ...