MCFADDEN, P. J., MCMILLIAN and BETHEL, JJ.
McFadden, Presiding Judge.
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.
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.
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).
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
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
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
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.
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.
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.
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 ...