In Nissan Motor Acceptance Corp. v. Sowega Motors Inc., 2012 WL 3987417 (M.D.Ga. 2012), Judge Land entered summary judgment in favor of a floor plan lender against a dealer guarator on the Guaranty in the sum of $1,418,059.73, and against the dealer guarantor on his cross-complaint for breach of oral contract. On the latter, Judge Land explained:
In his Counterclaim, Mr. Doll alleges that NMAC had promised to provide “100% financing” for the new Rob Doll Nissan facility in north Columbus. Answer & Countercl. 20 ¶ 16, ECF No. 12. Mr. Doll further alleges that when the new building was 90% complete, Mr. Doll found out that NMAC’s $9 million loan under the RWD Note was not enough to complete the building. Id. at 19 ¶ 10. Therefore, Mr. Doll in his Counterclaim appears to assert that NMAC breached an agreement to provide RWD Real Estate with 100% financing for the new construction project by only lending RWD Real Estate $9 million. ¶ The RWD Note provided that NMAC would lend RWD Real Estate “up to” $9 million. Doll Dep. Ex. 7, RWD Note 1, ECF No. 54–1 at 19. The RWD Note contained a merger clause stating: “This Note and the other Loan Documents contain the entire agreement between Lender and Borrower in connection with the Loan and supersede all prior agreements and negotiations, whether written or oral.” Id. ¶ 6.2, ECF No. 54–1 at 30. The RWD Note further provided: “This Note and the other Loan Documents may be amended only by a writing signed by Lender and each other party against whom enforcement of such amendment may be sought.” Id. Mr. Doll did not point to any provision in the RWD Note under which NMAC promised to lend RWD Real Estate more than $9 million. Based on the merger clause, Mr. Doll cannot state a claim against NMAC for failing to honor an alleged promise that was not memorialized in the written agreement. See, e.g., O.C.G.A. § 13–2–2(1) (“Parol evidence is inadmissible to add to, take from, or vary a written contract.”); O.C.G.A. § 24–6–1 (“Parol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.”). ¶ Perhaps to avoid the merger clause, Mr. Doll presented a different theory of his breach of contract claim in his response to NMAC’s summary judgment motion. Mr. Doll now asserts that when he discovered that the $9 million loan under the RWD Note was not sufficient to complete construction on the new dealership facility, NMAC’s agent Al Jones “agreed to fund the $900,000 shortfall.” Defs.’ Resp. to Pl.’s Mot. for Summ. J. 11, ECF No. 58 (citing Doll Dep. 149:12–19). It is undisputed that Mr. Doll did not receive anything in writing from NMAC committing to fund more than the $9 million NMAC funded under the RWD Note. ¶ At this stage in the litigation, the Court must accept as true Mr. Doll’s statement that NMAC’s agent agreed to provide the additional $900,000. Mr. Doll, however, did not point to sufficient evidence of a breach of contract by NMAC with regard to the alleged $900,000 promise. First, it is not entirely clear from Mr. Doll’s testimony whether Mr. Jones promised the money to Rob Doll personally, to RWD Real Estate or to Rob Doll Nissan. See Doll Dep. 149:15–19 (“Al Jones told me no problem, we’ll get [$900, 000]. We’re not going to let you fail, Rob. We can’t afford that. Al Jones, quote, unquote. Just we’ll get you the money.”). Second, and more importantly, a critical element of a breach of contract claim is the existence of a contract; to have a valid contract, “there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” O.C.G.A. § 13–3–1. Mr. Doll pointed to no evidence of any consideration for the alleged $900,000 promisea significant modification of the written contract. Therefore, Mr. Doll’s counterclaim based on the alleged $900,000 promise fails.