Coffee Butler Service, Inc. v. Sacha

Beasley, Presiding Judge,

concurring in part and dissenting in part.

I respectfully dissent.

1. The movant in summary judgment, Sacha, did not by the evidence “conclusively eliminate all issues” as to the claim for lost profits allegedly caused by breach of his obligations under the employment contract. Kem Mfg. Corp. v. Sant, 182 Ga. App. 135 (355 SE2d 437) (1987). Respondent Coffee Butler was entitled to “all reasonable and favorable inferences,” id., and any doubt must be construed in its favor. Scott v. Owens-Illinois, 173 Ga. App. 19, 20 (325 SE2d 402) (1984).

With this in mind, the evidence showed the following: As vice president, Sacha was responsible for sales and account retention. Within the ten months of his employment, approximately a third of *8the accounts he had brought into the merger ceased, some for reasons not related to Sacha’s servicing of them, but many for reasons unexplained. There is no evidence of new accounts being opened. Yet in the seven years prior to the merger, Sacha had increased sales.

Decided March 18, 1993. Whicker, Gandy & Rice, L. Spencer Gandy, Jr., for appellant. Mozley, Finlayson & Loggins, C. David Hailey, Eric T. Johnson, for appellee.

During the period of his employment, Sacha spent time and energy servicing some accounts which were not included in the merger. He was responsible for transitioning his merged accounts into the combined operations. But he did not call on problem accounts, did not share his knowledge about specific accounts which he required other personnel to deal with, did not guide or direct the sales force or conduct sales meetings, did not devote full workdays to his responsibilities, did not assist other personnel when needed, did not give guidance to the in-office customer service staff, and failed to formulate programs to ease the transition for old customers or to increase sales in low-volume accounts. He admitted that some losses in revenue occurred from lost rapport. He took no action to rectify the losses that were occurring.

The accounts brought to the merger by Coffee Butler did not suffer from loss of gross profit as did the accounts which Sacha brought. Coffee Butler’s other acquisitions did not result in loss of gross profit but instead resulted in increased volume, even though the owner was not retained to personally bring the business’ good will.

All of this, together with the norms in the industry which were testified to, raises a reasonable inference that loss of profits was attributable to Sacha’s inattention to sales. Sacha did not pierce the evidence of causal connection.

2. I concur in Division 1.