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Souza v. Berberian

Court of Appeals of Georgia, Fifth Division

June 28, 2017

SOUZA
v.
BERBERIAN.

          MCFADDEN, P. J., MCMILLIAN and BETHEL, JJ.

          McFadden, Presiding Judge.

         John Souza appeals the partial grant of summary judgment to John Berberian in Souza's action arising from a business dispute. The trial court granted Berberian's motion for summary judgment on Souza's claims that depend on the existence of a contract between them. The court also granted Berberian's motion for summary judgment on Souza's claim for breach of fiduciary duty; his claim alleging breach of a non-disclosure agreement entered into by two non-parties; and his claim for punitive damages. Souza's claims for unjust enrichment, quantum meruit, and attorney fees remain pending in the trial court.

         Souza appeals the grant of Berberian's motion for summary judgment on the contract-based claims and on the claim for breach of a non-disclosure agreement. Souza argues that whether he and Berberian entered a contract depends on disputed facts, but the email on which he relies to establish contract terms is too indefinite to be enforceable as a contract. Souza argues that the trial court erred by granting Berberian summary judgment on Souza's claim for breach of the non-disclosure agreement, but as the trial court found, Berberian was not a party to that agreement, so it cannot be enforced against him. Accordingly, we affirm the trial court.

         1. Contract-based claims.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). 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.

Burns v. Dees, 252 Ga.App. 598, 599 (557 S.E.2d 32) (2001) (citation and punctuation omitted).

         So viewed, the record shows that Souza knew both Berberian, who was associated with a company called United Allergy Services, and Jeff Gallups, the owner of Milton Surgical Associates d/b/a The ENT Institute. Souza introduced Berberian and Gallups, believing that they could enter a profitable business relationship whereby United Allergy Services would provide allergy testing services and treatment to ENT Institute patients.

         According to Souza, he and Berberian agreed to form and co-own an entity that would sign a contract with ENT Institute to facilitate its relationship with United Allergy Services. He alleges that the terms of the agreement are set out in an August 19 email from Berberian, which is the basis of his contract-based claims.

         But while that email sets out many details of the contemplated agreement, it does not set out the terms essential to a contract. And no other evidence fills the gaps. Berberian wrote that he and Souza "came to terms of what the deal points are." He outlined what he referred to as the "unofficial points, " including that Souza would have 21 percent of "equity" but that his percentage was subject to change if Gallups "negotiate[d] a better deal on his side." Berberian believed that the operating agreement for one of his companies could serve as a model operating agreement, but that they "will need to go over it in detail to maybe add or change some points." He outlined some of the points that he "remember[ed] off the top of [his] head." Berberian concluded that, "The [United Allergy Services] licensing agreement will be signed by our Newco which I will purchase tonight. It will have references to ENT Institute. . . . I'm certain I have not covered all the points, no[r] is this set in stone. But it is however a high level view of what we have discussed."

         Two days after sending this email, on August 21, 2014, Berberian formed Pinnacle MSO, LLC. On September 13, 2014, Pinnacle entered an agreement with ENT Institute, and United Allergy Services began providing services to ENT Institute.

         In the meantime, Berberian and Souza, themselves and through counsel, continued to exchange correspondence regarding their relationship. On August 22, 2014, Berberian emailed his counsel that "Deal has been accepted by all parties. Souza will not be a member of Pinnacle MSO. He will have phantom shares. Deal is at 55/45. Souza gets 16 percent." In September or October, Berberian emailed Souza a draft of a "phantom unit agreement, " that granted Souza "phantom units" equal to 16 percent "of the Units of [Pinnacle]." Souza did not sign.

         On November 11 Souza's counsel emailed Berberian's counsel that there was "an agreement on payment of 16% on allergy testing, " although the August 19 email upon which Souza bases his contract claims stated that Souza's interest was 21 percent. The parties continued to disagree about exactly what Souza had a percentage of. In December, his counsel emailed Berberian's counsel that Souza "had never agreed to 16% net of anything." (Emphasis supplied). The next day, Souza's counsel emailed Berberian's counsel that "[r]ather than a phantom share agreement, Mr. Souza, through Reliant Biomedical Group, LLC, [apparently one of Souza's companies] will enter into a fee sharing agreement with Pinnacle" under which "Pinnacle will pay to Reliant 16% of the invoiced amount by the 25th of each month. . . ." Counsel added that "[i]n the event of a sale of the company (assets or entity), Reliant will get 16% of the gross sales price at closing." Berberian's counsel responded that he would consult his client.

         On December 5, Berberian's counsel emailed Souza's counsel a draft agreement between Souza and Pinnacle. The agreement provided that Souza would have an unspecified amount of phantom shares in Pinnacle and would "be paid 16% of the net profits of the Company." Souza's counsel responded with a draft of his own that omitted the references to phantom shares and provided that Reliant Biomedical Group would "be entitled to receive ...


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