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Glissman v. Gross

United States District Court, S.D. Georgia, Brunswick Division

August 2, 2018

MARC F. GLISSMAN, Plaintiff,
v.
WILLIAM GROSS and W.H. GROSS CONSTRUCTION COMPANY, Defendants.

          ORDER

          HON. LISA GODBEY WOOD JUDGE

         This matter comes before the Court on the Motion for Summary Judgment of Defendants William Gross and W.H. Gross Construction Company ("Gross Construction"). Dkt. No. 19. This Motion is ripe for review. For the following reasons, Gross's Motion is DENIED, and Gross Construction's Motion is GRANTED.

         BACKGROUND FACTS

         This dispute concerns the existence of a contract in the context of a failed water park development in Kingsland, Georgia. Specifically, Michael Elzufon formed Epic Adventures Resort I, LLC ("Epic Adventures") in 2012 in pursuit of a destination tourism concept ("the Project") to include a water park, amusement park, lodging, retail, and entertainment. Defendants' Statement of Undisputed Material Facts ("SUMF"), [1] Dkt. No. 19-1 ¶ 1; Dkt. No. 19-2, Ex. A. Epic Adventures, in turn, entered into a project agreement with the Georgia Gateway Improvement District and the city of Kingsland, Georgia. SUMF ¶ 2; Dkt. No. 19-2, Ex. B. Defendant Gross and others entered into an agreement to sell certain properties to Epic Adventures for the location of the Project. SUMF ¶ 4; Dkt. No. 19-2, Ex. C. The sale included owner financing and the subordination of Defendants' security interest to a $500, 000 (later increased to $650, 000) loan by a third party to Elzufon. SUMF ¶ 5; Dkt. No. 19-2, Exs. D, T.

         To get the Project off the ground, Elzufon contacted Plaintiff Glissman for his experience in the development and operation of water parks. SUMF ¶ 6; Dkt. No. 21-1, 17:6-10. After discussions between Elzufon and Glissman, Glissman sent Elzufon the following email on January 8, 2015 ("the Jan. 8 email"):

Previously we discussed the best route to take regarding compensation and I wanted to share some of my thoughts with you.
1099 Compensation: $2800 weekly (payable bi-weekly) plus any applicable travel expenses
W-2 Compensation: $130, 000 annually (payable biweekly) plus any applicable travel expenses (Please note: no insurance benefits necessary, as my wife handles these through her employer.)
If you prefer an hourly rate, I'm happy to provide those numbers as well. However, with the amount of work we have to do, I feel this option may be more costly overall.
Regarding travel, please advise on how you wish to handle these expenses. Would I absorb these costs on a personal credit card and submit for reimbursement or would I have access to a company credit card?
I really appreciate the opportunity to work with you on this outstanding project. I am extremely excited to be on the front end of this project and look forward to seeing it through to completion.
Please let me know if you have any questions. I look forward to hearing your thoughts.
Thanks, Marc

         A few days later, Elzufon transmitted a notice to Gross that Epic Adventures had named Glissman to its executive management team. SUMF ¶ 9; Dkt. No. 19-2, Ex. H. Throughout these interactions, Glissman never discussed with Elzufon, Gross, or anyone related to the Project which entity employed him. Dkt. No. 21-1, pp. 41-42.

         After some period of time, Glissman was not receiving compensation.[2] To address this problem, he spoke first with Elzufon then with Gross. Dkt. No. 21-1, p. 30. Elzufon told Glissman that funding would be coming in any day. Id. Gross told Glissman the same thing. Id. More specifically, Gross told Glissman he wanted to ensure that he (Glissman) would get paid and that he (Gross) was working every angle on bridge loans to fulfill that obligation. Id. 51-52.

         Elzufon was criminally indicted in February 2015, ceasing his involvement with the Project. Dkt. No. 21-1 51:5-7. Glissman testified that, at that point, Gross became his main contact for the Project. Id. 51:8-12. Glissman also testified that he and Gross then had discussions regarding his (Glissman's) compensation, that Glissman forwarded the previous terms to Gross, and that Gross agreed to those same terms. Id. 51-53.

         Elzufon defaulted on his promissory note with Gross, who subsequently terminated the sales agreement. SUMF ¶ 10; Dkt. No. 19-2, Ex. I. Following Elzufon's unavailability, Gross formed the entity Epic Destinations, LLC on April 10, 2015. SUMF ¶ 11; Dkt. No. 19-2, Ex. J. Epic Destinations, in turn, entered into a project agreement (as had Epic Adventures) with the Georgia Gateway CID and the city of Kingsland. SUMF ¶ 12; Dkt. No. 19-2, Ex. K. Defendants contend that "the bridge loan funds" were to be used in connection with the Project if successful for compensation of persons including Glissman. Dkt. No. 19-1 ¶ 13 (citing Dkt. No. 19-2, Ex. L). Plaintiff contends, to the contrary, that his compensation was never contingent upon financing and that he never discussed making his compensation contingent upon a bridge loan. Dkt. No. 20-1 ¶ 13 (citing Dkt. No. 21-1 53:4-17).

         Defendant produced a spreadsheet reflecting three payments made to Glissman with the line item "Epic Project (Job)." Dkt. No. 19-2, Ex. P. A $5, 000 payment was made on September 1, 2015. Id. A $3, 500 payment was made on November 11, 2015, and a $4, 000 payment was made on December 9, 2015. Id. Plaintiff contends these payments represent ...


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