BARNES, P. J., MCMILLIAN and MERCIER, JJ.
May appeals the trial court's grant of summary
judgment to his former employer, S.E. GA Ford, Inc. d/b/a
Lilliston Ford of Kingsland ("Lilliston"), on
May's claims for breach of his employment contract,
unpaid commissions, and attorney fees and litigation costs,
as well as on Lilliston's counterclaim seeking to recover
what it contends were overpayments in compensation to May.
Because we find that genuine issues of material fact remain
as to the claims in this case, we reverse.
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." (Citation
and punctuation omitted.) St. Joseph's Hosp. of
Atlanta, Inc. v. Hall, Ga.App. (806 S.E.2d 669) (2017).
Viewed in that light, the record shows that Lilliston hired
May as the dealership's general sales manager with a
start date of December 11, 2012, and over seven months later,
the parties executed a document entitled "General Sales
Manager Payment Plan, " which provided that May was
entitled to a "Draw against Commission" of $6, 000
per month (the "Contract"). The remainder of the
Contract provided in its entirety:
5.5 % Commission of total Gross - Front & Back minus
wholesale losses, F&I Chargebacks & policy (New/Used)
If CSI is below Region Standards Percentage of Gross is 4.5%.
avers that in late October 2014, the parties reached an oral
agreement to change the terms of his compensation to a
guaranteed monthly salary of $8, 000.00, plus a 5.5%
commission, but Lilliston failed to memorialize this
agreement in a written contract. Although Lilliston does not
dispute that May's compensation was changed at that time,
Jedon Lilliston, Lilliston's president, states the
parties agreed only to increase May's monthly draw
against commissions to $8, 000. The record reflects that the
parties' Contract was altered on or about November 3,
2014 by striking the $6, 000 draw amount and writing $8, 000
in its place. However, only Lilliston signed off on this
alteration. May did not sign off on the change and asserts
that he was unaware that the Contract had been altered.
Approximately three months later, on January 31, 2015,
Lilliston terminated May's employment citing
"[f]ailure to perform at the managerial position
level" on his separation notice, although May says that
he was simply told that the dealership wanted to go in a new
direction. May asserts that Lilliston did not pay him his
guaranteed $8, 000 salary, from November 2014 through January
2015 and still owed him commissions.
filed suit seeking to recover these unpaid amounts, and
Lilliston counterclaimed to recover amounts it asserts it
overpaid May. Lilliston subsequently moved for summary
judgment on May's claims and its own counterclaim, and
the trial court granted that motion, ruling in favor of
Lilliston on May's claims and awarding the company $19,
085.27 in overpaid draws on its counterclaim. May contends on
appeal that the trial court erred in granting summary
judgment to Lilliston because genuine issues of material fact
exist as to the terms of the new compensation agreement the
parties negotiated in late 2014. We agree.
review of the record reveals that a genuine issue of material
fact exists as to whether the parties agreed in late 2014
that May would receive a guaranteed monthly salary of $8,
000, plus a commission, or merely an increased monthly draw
against commissions as each party has submitted affidavits
supporting their relative positions. The Contract does not
resolve this issue because May did not sign off on the
handwritten alteration to the draw amount and states he was
unaware of the altered agreement. Additionally, although
Lilliston presented records showing that it treated the $8,
000 monthly payment to May as a draw and not as salary, May
averred that he never received his $8, 000 monthly salary
payments for November 2014 through January 2015, and instead
he only received commissions, and May questioned the
shortfall by email soon after his termination. Therefore, we
find that the evidence raises issues of material fact
regarding the terms of the amended contract, and the trial
court erred in granting summary judgment to Lilliston on
Additionally, we find that genuine issues of material fact
exist as to Lilliston's counterclaim because the
parties' Contract and the evidence of record do not
establish Lilliston's right to recover the amounts sought
as a matter of law. Lilliston asserted counterclaims for
breach of contract and unjust enrichment,  and Lilliston
seeks to recover two elements of damages: (1) overpayment of
monthly draws for three months where the amount of the draw
exceeded the commissions May earned for the month and (2)
overpayment of 1% in commissions during the months of April
2014 to January 2015 when, according to Jedon Lilliston,
gross sales did not meet the requirements of the Contract.
Draw/commission shortfalls - Lilliston asserts that
it is entitled under the Contract for reimbursement of the
amount of draw payments it made to May in excess of
commissions he earned. We find, however, that the Contract
language is ambiguous, containing numerous undefined terms
and abbreviations apparently used in the car sales industry.
Under the rules of contract construction,
words generally bear their usual and common signification;
but technical words, words of art, or words used in a
particular trade or business will be construed, generally, to
be used in reference to this peculiar meaning. Ambiguities in
terms used in written contracts, and their meanings as
understood in the trade and by the contracting parties, may
be explained by parol proof of this trade usage and custom.
Parol evidence is admissible to explain the meaning of
technical terms employed in written contracts.
(Citation and punctuation omitted.) Southland Dev. Corp.
v. Battle, 272 Ga.App. 211, 214 (612 S.E.2d 12) (2005).
Lilliston provided parol evidence regarding the meaning of
only one of the industry terms used in the Contract:
"Draw against commissions." Jedon Lilliston defined
the term as "a commonly understood pay structure [in]
which an employee is prepaid or advanced money to be deducted
from future earned commissions." He explained that it
is an industry standard to alleviate the cash flow concerns
sales representatives encounter. The dealership pays a set
bi-weekly stream of income, otherwise known as a draw, and at
the end of the month, the draws are deducted from the monthly
commission earned and a check is written for the balance, if
there is any. This ...