MORTIMER v. WHITE (2026)

In this action for breach of contract and several related claims, defendants Bruce Mortimer and RutterKey Solutions, LLC (“RKS”) appeal from the trial court's order denying, in part, their motion for summary judgment. Because the evidence shows that no enforceable contract was ever formed, and because plaintiff Jeff White's other claims fail as a matter of law, we reverse.

“On appeal from a ․ denial of summary judgment, we conduct a de novo review of the law and evidence and view the evidence in the light most favorable to the nonmoving party.”¹ So viewed, the evidence shows that Mortimer owns RKS, which provides technology-related services to businesses. In 2018, White, a software developer, began working as RKS's Chief Technology Officer and Vice-President of Product Development to create an in-house product development team to “make and license software solutions[.]” In September 2023, Mortimer “terminate[d] the relationship” with White after he purportedly “became insubordinate.”

In October 2023, White sued Mortimer and RKS for breach of contract, conversion, violation of various trade secrets acts, tortious interference with business relations, promissory estoppel, quantum meruit, injunctive relief, punitive damages, and attorney fees.² Following discovery, the defendants moved for summary judgment on all claims. The trial court granted the motion as to White's claim for tortious interference, but denied summary judgment on the remaining claims. We granted the defendants’ request for interlocutory review,³ and this appeal followed.⁴

1. First, the defendants contend that the trial court erred by denying summary judgment on White's contract claim. In that claim, White alleges that from the beginning of the parties’ business relationship, he and Mortimer discussed creating a “joint venture” as a way for White to share in the profits from the sale of certain products developed by White and/or his team. According to White, the parties entered into an oral agreement in December 2018 that included “formation of an LLC to operate [their joint venture], sharing 30% of profits from the [venture], and allowing Mr. White to operate the [venture] using Mr. White's IP [intellectual property].” White further claims that Mortimer reaffirmed his contractual obligations in a 2022 letter of intent (“LOI”). White alleges that the defendants breached both agreements by failing to form an LLC, failing to share 30% of the profits from the joint venture, and preventing White from operating that venture.

“[T]he party asserting the existence of a contract has the burden of proving its existence and its terms.”⁵ The elements of a valid contract include “the assent of the parties to the terms of the contract,” which “must be certain.”⁶ A contract therefore requires a meeting of the minds to be enforceable;⁷ “[a] contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain” or where the court must ascertain the parties’ intent “by conjecture.”⁸ As with any contract, an agreement to create a joint venture must “state[ ] with reasonable certainty ․ what the parties were obligating themselves to do to effect what they envisioned[.]”⁹

In their motion for summary judgment, the defendants argued that the parties’ purported agreement was incomplete and therefore unenforceable. In opposition, White pointed to his own affidavit, the LOI, and Mortimer's deposition testimony to support his contention that an enforceable agreement existed. At best, however, this evidence establishes an “agreement to agree,” which is not enforceable.¹⁰

In his affidavit, White averred that he and Mortimer orally agreed in December 2018 “to form a partnership ․ and to eventually supersede the [p]artnership with a company.” The affidavit neither shows that any partnership actually was formed in 2018 nor describes any terms of that partnership; it establishes only that the parties agreed to form a partnership, and later a corporation, at some unidentified future point.

In the 2022 LOI, Mortimer confirmed the parties’ “mutual understanding and commitment to enter into a form of partnership with regard to product development under the umbrella of the [RKS] brand.” The LOI stated that the partnership would cover any IP generated from the partnership, as well as profit sharing from “the licensing of software or sale of [IP] at a ratio of 70% to [RKS] and 30% to [White].” The LOI further stated that the

form and structure of this partnership will be mutually arrived at with appropriate professional guidance and support. ․ In general, [White] and [Mortimer] have agreed to enter into a partnership that will be ratified through establishing a company and agreeing to a contract of operation, the form of which to be decided at a later date.

This language does not establish an enforceable agreement. It states only that the parties agreed to enter into a “form of partnership” whose “structure” would be “decided at a later date” with “appropriate professional guidance and support.”

Finally, Mortimer's deposition testimony establishes his acknowledgment that he had agreed to pay White a portion of “the net profits resulting from the products that [RKS] went to market with.” But Mortimer did not testify that the parties ever formed any partnership or other business entity separate from RKS.¹¹ According to Mortimer's affidavit, he and White had “discussed the possibility of a partnership/joint venture/LLC” as a way to “incentivize [ ] White's successful performance in development and delivery of [p]roducts to the market,” but “the creation of a separate entity” was a low priority for Mortimer because White's team never developed any marketable products. Instead, Mortimer said, he “decided to handle the entire enterprise through RKS and to pay ․ White an incentive equal to 30 percent of any net profits derived from sales of products developed by [White] and the product development group.” However, Mortimer claims, “no net profits were realized from product sales,” so White was never eligible for any bonus.

White's own communications to Mortimer show his awareness that no final agreement was ever reached on the terms of a partnership/joint venture. In December 2018, White emailed Mortimer asking him to confirm various details of the parties’ relationship, including that White would have an unspecified “[e]quity share on IP.” And in August 2021, White sent Mortimer another email: “[W]e still do not have the terms of our arrangement worked out and the LLC is not formed. ․ Given some of the comments you have made, I am not looking forward to what I suspect will be a painful negotiation with you if and when we ever solidify the details of the arrangement.”

At his deposition, White acknowledged that he and Mortimer never decided such basic matters as how the purported venture would operate or whether White — as a 30% owner — would be able to veto decisions made by Mortimer. White also conceded that the parties never reached an agreement on “expense allocations, revenue recognition, recapitalization events, [and] tax pass throughs[.]” On appeal, White characterizes these unresolved terms as mere “administrative and accounting details that do not negate agreement on core economic terms.”

However, White testified at his deposition that one of the parties’ unresolved issues was the circumstances under which distributions of profits would be made. He also testified that the parties had only a “general understanding” that 10% of the joint venture's profits would be “run ․ through [RKS] somehow,” in a manner yet to be determined, apparently for distribution to other members of the product development team.¹² White confirmed that he and Mortimer did not discuss how revenue derived from different types of product development work would be allocated as between RKS and the purported joint venture. And White admits on appeal that the parties “disput[e] the scope of what constituted qualifying software and intellectual property” eligible for profit-sharing. Thus, although there is evidence that the parties agreed in theory that White would receive 30% of the profits from something, the record does not show that they ever pinned down what that something would be.

We are not persuaded that the numerous unresolved terms in the parties’ agreement can all be dismissed as immaterial “administrative and accounting details,” as White argues. In the absence of a meeting of the minds on — at the very least — such core issues as how, when, and for what products White was to receive a share of profits, the trial court erred by failing to grant summary judgment to the defendants on his breach of contract claim.¹³

2. Next, the defendants contend that the trial court erred by denying summary judgment on White's alternative promissory estoppel claim. In that claim, White alleged that even if the parties did not have an enforceable contract, their 2018 oral agreement and the 2022 LOI “nonetheless contained promises upon which Defendants knew or should have reasonably expected Mr. White to rely upon and to act or refrain from acting in reliance thereupon.” Specifically, White claimed that the defendants broke their “promise to pay him 30% of profits from the [joint venture].” The trial court denied summary judgment on this claim on the ground that “there were oral discussions between White and Mortimer regarding forming a partnership and the LOI set forth certain terms for the purported partnership[.]” We agree with Mortimer that the denial of summary judgment on this claim was error.

“Promissory estoppel does not apply to a promise that is vague, indefinite, or of uncertain duration.”¹⁴ Thus, “a promise too indefinite to be enforced under a breach-of-contract theory is too indefinite to be enforced under a promissory estoppel theory.”¹⁵ White's promissory estoppel claim is premised on the defendants’ alleged failure to pay him 30% of the profits from a proposed joint venture that, as discussed above, never materialized. Because the purported pledge to create this joint venture was too indefinite to be enforced under a breach-of-contract theory, it is also too indefinite to be enforced under a promissory estoppel theory.

3. The defendants contend that they were entitled to summary judgment on White's alternative claim for quantum meruit. In that claim, White alleged that even if the parties had no enforceable joint venture contract, he is entitled to be paid for the “valuable services” he provided to the defendants, “including development of the IP and other services above and beyond his compensation[.]” The trial court denied summary judgment on this claim because, it concluded, disputed issues of fact remain as to whether White “received reduced compensation to join the partnership based on the promise of 30% of eventual profits.” We agree with the defendants that this ruling also was erroneous.

[T]o recover in quantum meruit, a plaintiff must show: (1) the performance of services valuable to the defendant; (2) either at the request of the defendant or knowingly accepted by the defendant; (3) that the failure to compensate the plaintiff would be unjust; and (4) that the plaintiff expected compensation at the time he rendered the services.16

“Where quantum meruit is applicable, the provider may recover the reasonable value of goods or services transferred ․ in terms of value to the recipient.”¹⁷ The record shows that RKS treated White as a full-time employee from 2019 through 2023, with his yearly salary ranging from approximately $171,000 to $252,000. White's argument that he was inadequately compensated for his work is based on his contention that he is entitled to 30% of the profits of a promised partnership.¹⁸ But no partnership was ever formed, and White identified no record evidence that his salary did not adequately compensate him for the reasonable value — to RKS — of the services he provided.¹⁹ Consequently, summary judgment also was warranted on this claim.

4. In his conversion claim, White alleged that the defendants prevented him from accessing his IP, used it without his authorization, and improperly retained profits from that use. In seeking summary judgment on this claim, the defendants argued — among other things — that White never demanded the return of his IP. The trial court rejected this argument, finding questions of fact as to whether White made such a demand. We agree with the defendants that they were entitled to summary judgment on this claim.

A conversion results when, without authority, a party exercises the right of ownership over, assumes dominion over, or appropriates personal property belonging to another party, in hostility of that other party's rights. To establish a conversion claim, a plaintiff must demonstrate that (1) he or she owns title to or has the right to possess the personal property at issue; (2) the defendant actually possesses the property; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return it. If a defendant lawfully comes into possession of an item, the plaintiff must prove a demand and refusal to return the item to maintain a conversion claim.20

White does not dispute that the defendants came into possession of his IP lawfully; thus, he must prove that he demanded its return and that the defendants refused to return it. White claims that he demanded the return of his IP in an October 2023 email asking RKS to restore his access to company software repositories and servers. However, this email did not identify any specific property that White wanted returned; instead, it sought unfettered access to RKS's repositories and servers after the defendants had terminated the parties’ relationship. Moreover, the defendants’ attorney later explicitly offered to return any of White's IP, if he were to properly identify it, but the record contains no response to this offer. In the absence of evidence that White ever demanded the return of any specific IP, his conversion claim fails as a matter of law.²¹

5. In his trade secrets claim, White asserted that the defendants violated multiple trade secrets acts ²² by obtaining his IP “through false representations and other improper means” and engaging in its “misappropriation and unauthorized use.” In their summary judgment motion, the defendants argued that these claims fail because RKS owns any IP that White created while it employed him. White insisted that he was not an RKS employee after the partnership was formed in 2018 and that any IP created by him or at his direction between 2018 and 2023 belongs to the partnership, not RKS. The trial court concluded that disputed questions of fact remain as to whether White was a partner of the partnership or an RKS employee during the relevant time period. We agree with the defendants that this ruling, too, was erroneous.

The parties and the trial court relied on a federal copyright statute to analyze whether the IP at issue is subject to the “work for hire doctrine.” That statute provides, in relevant part, that a “work made for hire” is “a work prepared by an employee within the scope of his or her employment.”²³ Thus, under federal copyright law, an employer is both the author of “[a]ny work prepared by an employee within the scope of his or her employment” and the owner of the resulting copyright.²⁴

White argues that he was not employee of RKS, but was instead a “joint venture partner.” As we held in Division 1, the evidence shows without dispute that no partnership was ever formed; instead, RKS paid White a salary, withheld taxes, and reported his income on a W-2 form. In addition, White signed a “New Employee Information” form in 2018 listing his job title as Chief Technology Officer; he identified himself on his business letterhead and Linked In profile as RKS's Chief Technology Officer and Vice President of Product Development; and he held himself out to RKS's customers as an RKS employee. Finally, White applied for unemployment compensation benefits after the parties’ relationship ended, identifying RKS as his last employer. Because the record evidence shows that White was an RKS employee when he created the IP at issue,²⁵ the “work for hire” doctrine precludes his recovery under a theory that the defendants stole his IP.²⁶ The trial court therefore erred by denying summary judgment on this claim.

6. White's claims for punitive damages, injunctive relief, and attorney fees are derivative of his substantive claims.²⁷ Accordingly, the defendants also were entitled to summary judgment on these claims.²⁸

In sum, we reverse the trial court's denial of summary judgment on White's claims for breach of contract, promissory estoppel, quantum meruit, conversion, trade secrets violations, injunctive relief, attorney fees, and punitive damages.

Judgment reversed.

FOOTNOTES

1.   Slate v. Turner, 377 Ga. App. 307, 308, 922 S.E.2d 468 (2025).

2.   White also asserted a claim for defamation, but later voluntarily dismissed it.

3.   See Case No. A26I0055 (Oct. 23, 2025).

4.   White does not cross-appeal from the trial court's grant of summary judgment to the defendants on his tortious interference claim.

5.   Hansen v. Doan, 320 Ga. App. 609, 612, 740 S.E.2d 338 (2013) (citation and punctuation omitted).

6.   Gill v. B & R Intl., 234 Ga. App. 528, 531(1)(b), 507 S.E.2d 477 (1998) (citations and punctuation omitted); see also OCGA § 13-3-1.

7.   USA Mfg. Corp. v. Perfection-Schwank, Inc., 271 Ga. App. 636, 638(1), 610 S.E.2d 600 (2005); accord Burns v. Dees, 252 Ga. App. 598, 601(1)(a), 557 S.E.2d 32 (2001) (“[A] contract does not exist unless the parties agree on all material terms.” (citation and punctuation omitted)). See also OCGA § 13-3-2.

8.   Burns, 252 Ga. App. at 601–02(1)(a), 557 S.E.2d 32 (citations and punctuation omitted).

9.   Cherokee Falls Invs. v. Smith, 213 Ga. App. 603, 604–05(1), 445 S.E.2d 572 (1994) (citation and punctuation omitted); see also Sands v. Citizens & So. Nat. Bank, 146 Ga. App. 853, 856(2), 247 S.E.2d 544 (1978) (“The terms of a contract must be certain so that neither party can reasonably misunderstand them.” (citation and punctuation omitted)).

10.   See Miami Heights LT v. Home Depot U.S.A, 283 Ga. App. 779, 782– 84(1), 643 S.E.2d 1 (2007) (holding that the parties’ letter of intent, in which they agreed to negotiate and execute a formal purchase and sale agreement, was an unenforceable “agreement to agree” where the parties deferred agreeing on a material term).

11.   Notably, “a partnership is not created solely by an agreement to share profits.” Larson v. Tandy Corp., 187 Ga. App. 893, 894(1), 371 S.E.2d 663 (1988).

12.   In one email to Mortimer, White noted that they had “tossed around a couple of options” for profit-sharing and that White's proposal was that Mortimer would have 60%, White would have 30%, and there would be a “10% equity share for employees excluding [Mortimer and White] for idea contribution.” The LOI referenced a 70/30 split between RKS and White. But at his deposition, White testified that if Mortimer had decided to keep 70% for himself, White would have told him, “[T]hat violates our agreement.”

13.   See Burns, 252 Ga. App. at 603–06(1)(a)(i), 557 S.E.2d 32 (finding too indefinite an agreement that, among other things, did not address allocation of costs or “encompass a formula for the determination of how the sale proceeds or profits would be calculated ․ or how or when such profits would be distributed” ).

14.   Mariner Healthcare, Inc. v. Foster, 280 Ga. App. 406, 412(5), 634 S.E.2d 162 (2006).

15.   Wnuk v. Doyle, 276 Ga. App. 550, 553(3), 623 S.E.2d 740 (2005).

16.   Guise v. Leoni, 366 Ga. App. 659, 665(b), 883 S.E.2d 892 (2023) (citation and punctuation omitted).

17.   Nelson & Hill v. Wood, 245 Ga. App. 60, 62–63(1), 537 S.E.2d 670 (2000) (emphasis supplied).

18.   White cites Fay v. Custom One Homes, 276 Ga. App. 188, 622 S.E.2d 870 (2005), to support his quantum meruit claim, but that case is distinguishable. In Fay, the plaintiff, a former employee of the defendant, presented evidence that the defendant failed to compensate him for “work [that] fell outside of his job responsibilities”; the plaintiff was the president of a residential home construction company but did extra, unpaid work to build an office building for the defendant. Id. at 192–93(2), 622 S.E.2d 870. White's claim, however, is that he was underpaid for what he did; the complaint does not allege that he performed unpaid work that was categorically outside the scope of job duties as RKS's Chief Technology Officer and Vice President of Product Development.

19.   See Nelson & Hill, 245 Ga. App. at 64(2), 537 S.E.2d 670 (“To recover in quantum meruit, the plaintiff must show that he has not already been compensated the reasonable value for the goods or services he conferred on the defendant.”); Walker v. Gen. Motors Corp., 152 Ga. App. 526, 527(1), 263 S.E.2d 266 (1979) (concluding that the plaintiff “submitted nothing to substantiate his novel contention that the salary which he received for his work was so unreasonably low that he is entitled to a recovery based on quantum meruit or unjust enrichment[ ]”).

20.   Guise, 366 Ga. App. at 667(d), 883 S.E.2d 892 (citations and punctuation omitted).

21.   See Taylor v. Powertel, Inc., 250 Ga. App. 356, 359(2), 551 S.E.2d 765 (2001) (noting that the tort of conversion may apply to “specific intangible property” (emphasis supplied)). As the trial court acknowledged, after RKS told White it could not provide him with access to the company's systems because he was no longer an employee, White “never undertook to identify with any specificity the intellectual property he claimed to have an interest in.”

22.   See 18 USC § 1836 et seq.; OCGA § 10-1-760 et seq.; Conn. Gen. Stat. § 35-50 et seq.

23.   17 USC § 101. A related federal statute provides: “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.” 17 USC § 201(b).

24.   Architects Collective v. Pucciano & English, 247 F.Supp.3d 1322, 1338(III)(B)(1) (N.D. Ga. 2017) (citation and punctuation omitted).

25.   White responds that he was not an RKS employee because he did not execute an employee agreement, did not sign RKS's employee handbook, paid for his own health insurance, and operated the product development team “with substantial autonomy.” But he identifies no authority holding that such facts are determinative of his employment status.

26.   See Architects Collective, 247 F.Supp.3d at 1338(III)(B)(1).

27.   See Hobbs v. Integrated Fire Protection, 357 Ga. App. 790, 802(4), 850 S.E.2d 256 (2020).

28.   See id.

Watkins, Judge.

McFadden, P. J., and Padgett, J., concur.