Nissan Motor Acceptance Corporation v. SOWEGA Motors Inc et al, No. 4:2010cv00111 - Document 61 (M.D. Ga. 2012)

Court Description: ORDER granting in part and denying in part 55 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 09/11/2012. (CGC)
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION NISSAN MOTOR ACCEPTANCE CORPORATION, * * Plaintiff, * vs. CASE NO. 4:10-CV-111 (CDL) * SOWEGA MOTORS INC., ROBERT W. DOLL and SANDRA W. DOLL, Defendants. * * O R D E R In this action, Plaintiff Nissan Motor Acceptance Corporation (“NMAC”) seeks to enforce personal guaranties made by Defendant Robert W. Doll (“Mr. Doll”) in connection with NMAC’s loans to Mr. Doll’s car dealership businesses. NMAC also alleges that Mr. Doll fraudulently transferred certain property to his wife, Defendant Sandra W. Doll (“Mrs. Doll”), in order to keep NMAC from collecting sums due under the loan agreements. NMAC contends that there is no genuine fact dispute that Mr. Doll is liable to NMAC based on the personal guaranties. NMAC also asserts that there is no genuine fact dispute that Mr. Doll fraudulently transferred certain property to Mrs. Doll. Finally, NMAC argues that Mr. Doll’s counterclaims against it fail as a matter of law. As discussed below, NMAC’s Motion for Summary Judgment (ECF No. 55) is granted in part and denied in part. law The Court concludes that NMAC established as a matter of that Mr. guaranties. Doll is liable to NMAC on the personal NMAC also established that Mr. Doll’s counterclaims against it fail as a matter of law. however, based exists as to NMAC’s A genuine fact dispute, fraudulent transfer claim, and NMAC’s summary judgment motion as to that claim is denied. SUMMARY JUDGMENT STANDARD Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Civ. P. 56(a). In determining whether a genuine Fed. R. dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party=s favor. U.S. 242, 255 (1986). Anderson v. Liberty Lobby, Inc., 477 A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id. DEFENDANTS’ OBJECTION TO BROOKS AFFIDAVIT Before the Court recounts the evidence viewed in the light most favorable to Mr. and Mrs. Doll (“Defendants”), the Court must determine whether it may rely on the affidavit of Randy Brooks (“Brooks”), which NMAC submitted 2 in support of its summary judgment motion. Defendants argue that certain portions of the affidavit are inadmissible. Procedure 56(c)(4), an affidavit Under Federal Rule of Civil used to support a summary judgment motion “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated.” Defendants Brooks’s subsidiary first affidavit of argue testimony Nissan North that the that Court NMAC America, is Inc. should a wholly-owned (“NNA”) separate and distinct legal entity from NNA. ignore and is a Pl.’s Mot. for Summ. J. Attach. 3, Brooks Aff. ¶ 5, ECF No. 55-3. Defendants contend that the affidavit does not contain a sufficient basis for the Court to conclude that Brooks has personal knowledge of these facts. In the affidavit, Brooks states employed in the Special Credit Division of NMAC. that he Id. ¶ 2. is He states that the affidavit is based on his personal knowledge and his review of certain NMAC business records. Id. ¶ 3. Brooks provides a basic corporate overview of NMAC and NNA, stating that both are California corporations, that they are separate legal entities, that NMAC provided certain financing for car dealerships owned by or previously owned by Mr. Doll, and that NNA previously maintained a franchisor/franchisee relationship with Mr. Doll. Id. ¶¶ 4-7. Based on Brooks’s representation that he is an employee of NMAC and his representation that his 3 affidavit is based on personal knowledge and a review of certain NMAC business records, the Court may rely on Brooks’s affidavit with regard to the corporate structure of NMAC and NNA. Defendants also assert that the Court should ignore Brooks’s affidavit testimony regarding certain account balances allegedly owed to NMAC by Mr. Doll and several of his companies under promissory notes and related guaranties, as well amounts due to NMAC for certain contractor expenses. as Citing Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756, 400 S.E.2d 8, 9 (1991), Defendants argue that the affidavit is insufficient because NMAC affidavit. 58. failed to attach “account statements” to the Defs.’ Resp. to Pl.’s Mot. for Summ. J. 4, ECF No. Even if Taquechel were applicable to this federal evidentiary issue, it does not stand for the proposition that “account statements” must be attached in support of an affidavit regarding outstanding loan balances. It stands for the proposition that an affidavit is insufficient if records relied on and referred to in the affidavit are not attached to the affidavit or included in the record. 400 S.E.2d at 9. Taquechel, 260 Ga. at 756, Here, Brooks relied on NMAC business records such as monthly dealer statements in support of his testimony, and he attached those business records to his affidavit. E.g., Brooks Aff. Ex. E, Monthly Summaries, ECF No. 55-3 at 33-45. Brooks states that the business records were prepared in the 4 ordinary course of NMAC’s business and that the transactions and events reflected in the records were documented by NMAC at or near the time they occurred pursuant conducted business activities. therefore satisfied that to NMAC’s Brooks Aff. ¶ 13. Brooks’s regularly The Court is affidavit is properly supported by business records that are admissible under Federal Rule of Evidence 803(6). Defendants disregard also Brooks’s outstanding appear to affidavit balances argue that regarding because Brooks the certain does not Court should expenses explain how and he derived the totals and does not explain why certain expenses were necessary. The Court rejects this argument. Brooks does explain generally how he calculated the outstanding balances, e.g. Brooks Aff. expenses, id. ¶¶ disregard Brooks’s ¶ 19, and 25-28.1 he The affidavit did explain Court testimony the therefore contractor declines regarding to outstanding balances and contractor expenses. FACTUAL BACKGROUND The following facts are undisputed for purposes of NMAC’s summary judgment motion. Mr. Doll is the sole shareholder of Doll & Doll Motor Company (“Rob Doll Nissan”) and RWD Real Estate, LLC (“RWD Real 1 If Defendants wished to obtain more detail about NMAC’s damages calculations, Defendants could have taken the deposition of a NMAC corporate representative pursuant to Federal Rule of Civil Procedure 30(b)(6) during discovery. 5 Estate”), and he is the owner of Sowega Motors, Inc. (“Sowega Motors”). I. The Loans and Guaranties Rob Doll Nissan entered a floorplan with NMAC (“Doll & Doll Floorplan”). financing agreement Under the Doll & Doll Floorplan, NMAC periodically advanced funds to Rob Doll Nissan for the purchase of vehicle inventory for the Rob Doll Nissan dealership in Columbus, Georgia. provided that if there was a The Doll & Doll Floorplan default, then Rob Doll Nissan “shall pay all costs and expenses, including NMAC’s attorneys fees” in connection collateral, with collecting locating amounts and due taking under the possession Doll & of Doll Floorplan, and enforcing NMAC’s rights under the Doll & Doll Floorplan. Brooks Aff. Ex. F, Doll & Doll Floorplan ¶ 5.2, ECF No. 55-3 at 49-50. Sowega Motors entered a floorplan financing agreement with NMAC (“Sowega Floorplan”). Under the Sowega Floorplan, NMAC periodically advanced funds to Sowega Motors for the purchase of vehicle inventory for Mr. Doll’s General Motors dealership in Americus, Georgia. was a default, The Sowega Floorplan provided that if there then Sowega Motors “shall pay all costs and expenses, including NMAC’s attorneys[’] fees” in connection with locating and taking possession of collateral, collecting amounts due under the Sowega Floorplan, 6 and enforcing NMAC’s rights under the Sowega Floorplan. Brooks Aff. Ex. A, Sowega Floorplan ¶ 5.3, ECF No. 55-3 at 13. RWD Real Estate entered into a $9 million loan with NMAC (“RWD Note”). construct a RWD new Real Estate dealership planned facility to for business operations in Columbus, Georgia. use Rob the Doll loan to Nissan’s The RWD Note provided that RWD Real Estate shall pay “fees and out-of-pocket expenses of any legal counsel” in connection attempted enforcement” of the RWD Note. with “enforcement or Brooks Aff. Ex. H, RWD Note ¶ 6.8, ECF No. 55-3 at 79. In a Cross-Guaranty, Cross-Collateral and Cross-Default Agreement dated September 15, 2008, Rob Doll Nissan guaranteed all liabilities and obligations of RWD Real Estate and Sowega Motors to NMAC. See generally Brooks Aff. Ex. N, Cross- Guaranty, Cross-Collateral and Cross-Default Agreement, ECF No. 55-3 at 132-43. In the same agreement, RWD Real Estate guaranteed all liabilities and obligations of Rob Doll Nissan and Sowega Motors to NMAC, and Sowega Motors guaranteed all liabilities and obligations of Rob Doll Nissan and RWD Real Estate to NMAC. In addition, Mr. Doll personally guaranteed all liabilities and obligations of Rob Doll Nissan, RWD Real Estate and Sowega Motors to NMAC. 7 II. The Defaults A. Rob Doll Nissan Rob Doll Nissan defaulted on its payment obligations to NMAC under the Doll & Doll Floorplan by failing to make payments when due. On April 23, 2009, NMAC notified Rob Doll Nissan of its default and of NMAC’s intention to enforce its rights and remedies under the Doll & Doll Floorplan. Rob Doll Nissan of its default and of NMAC again notified NMAC’s intention to enforce its rights and remedies under the Doll & Doll Floorplan on April 29, 2009. According to Mr. Doll, however, the April 2009 default was due to a bookkeeper’s mistake and was quickly corrected. Doll Dep. 88:16-89:8, ECF No. 54. Mr. Doll, individually and on behalf of Rob Doll Nissan, RWD Real agreement Estate with and NMAC Sowega on June Motors, 5, executed 2009. In a forbearance the forbearance agreement, Rob Doll Nissan and Mr. Doll acknowledged that Rob Doll Nissan had defaulted on the Doll & Doll Floorplan. NMAC’s counsel sent Mr. Doll another notice of default on June 18, 2009. As a result of the default, NMAC suspended all financing to Rob Doll Nissan and accelerated the outstanding balance of the Doll & Doll Floorplan. Based on NMAC’s calculations, the outstanding balance due to NMAC under the Doll & Doll Floorplan is $71,746.18. Aff. ¶ 19. This amount includes 8 $51,940.89 in Brooks outstanding principal and $19,805.29 in interest ($14,017.88 through September 20, 2010 and $5,787.41 for September 21, 2010 to April 27, 2012). Id. Though Mr. Doll contends that NMAC has not adequately established the amount due under the Doll & Doll Floorplan, Mr. Doll did not point to any evidence to controvert NMAC’s evidence on this point. As a result of the default on the Doll & Doll Floorplan, NMAC hired an independent contractor to locate, monitor and protect NMAC’s interest in Rob Doll Nissan’s vehicle inventory. As discussed in more detail below, Sowega Motors also defaulted on its obligations to NMAC, and NMAC hired an independent contractor to safeguard NMAC’s collateral at the Sowega Motors dealership site. NMAC incurred more than $83,200.00 to pay the contractors to safeguard the collateral at the Rob Doll Nissan dealership site and the Sowega Motors dealership site. Aff. ¶ 26. Brooks Mr. Doll did not point to any evidence to controvert NMAC’s evidence regarding the contractor expenses. B. Sowega Motors Sowega Motors defaulted on the Sowega Floorplan in April 2009.2 NMAC notified Sowega Motors of its default and of NMAC’s intention to enforce its rights and remedies under the Sowega Floorplan on April 23, 2009. On April 29, 2009, NMAC again 2 Mr. Doll contends that Sowega Motors did not default on the Sowega Floorplan in April 2009, but the evidence he cited in support of this proposition does not actually support it. 9 notified Sowega Motors of its default and of NMAC’s intention to enforce its rights and remedies under the Sowega Floorplan. General Motors terminated the franchise of Sowega Motors, and the parties entered into a wind-down agreement on June 1, 2009. As discussed above, Mr. Doll, individually and on behalf of Rob Doll Nissan, RWD Real Estate and Sowega Motors, executed a forbearance agreement with NMAC on June 5, 2009. In the forbearance agreement, Sowega Motors and Mr. Doll acknowledged the defaults on the Sowega Floorplan. Sowega Motors defaulted again later in June 2009, and NMAC’s counsel sent Mr. Doll a notice of default on June 18, 2009. As a result of the default, NMAC suspended all financing to Sowega Motors and accelerated the outstanding balance of the Sowega Floorplan. NMAC repossessed all remaining vehicle inventory by consent in September 2009. NMAC later obtained a deficiency judgment against Sowega Motors by default for more than $2.6 million. Around the same time that NMAC repossessed the remaining vehicle inventory, Sowega Motors surrendered its real estate to its mortgage lender. Based on NMAC’s calculations, the outstanding balance due to NMAC under the Sowega Floorplan is $277,125.16. ¶ 13. and Brooks Aff. This amount includes $203,601.07 in outstanding principal $73,524.09 in interest ($53,673.28 through September 20, 2010 and $19,850.81 for September 21, 2010 to April 27, 2012). 10 Id. Though Mr. Doll contends that NMAC has not adequately established the amount due under the Sowega Floorplan, Mr. Doll did not point to any evidence to controvert NMAC’s evidence on this point. C. RWD Real Estate RWD Real Estate defaulted on the RWD Note by failing to make payments when due. NMAC notified RWD Real Estate of its default and NMAC’s intention to enforce its rights and remedies under the RWD Note on April 23, 2009. again notified RWD Real Estate of On April 29, 2009, NMAC its default and NMAC’s intention to enforce its rights and remedies under the RWD Note. As discussed above, Mr. Doll, individually and on behalf of Rob Doll Nissan, RWD Real Estate and Sowega Motors, executed a forbearance agreement with NMAC on June 5, 2009. In the forbearance agreement, RWD Real Estate and Mr. Doll acknowledged the defaults on the RWD Note. Based on NMAC’s calculations, the outstanding balance due to NMAC under the RWD Note is $864,569.32. Brooks Aff. ¶ 24. This amount includes $591,546.59 in outstanding principal and $ $273,022.73 in interest ($250,114.49 through November 30, 2010 and $22,908.24 for December 1, 2010 to April 27, 2012). Though Mr. Doll contends that NMAC has not Id. adequately established the amount due under the RWD Note, Mr. Doll did not 11 point to any evidence to controvert NMAC’s evidence on this point. III. Mr. Doll’s Personal Guaranties and Financial Background In a Agreement Cross-Guaranty, dated July 9, Cross-Collateral 2008 (“First and Cross-Default Guaranty”), Mr. Doll personally guaranteed all of the liabilities and obligations of Rob Doll Nissan, RWD Real Estate and Sowega Motors to NMAC. NMAC never agreed to modify, waive or release Mr. Doll from any provisions of the First Guaranty.3 Brooks Aff. ¶ 30. Mr. Doll later executed a Continuing Guaranty Agreement in favor of NMAC (“Second Guaranty”). NMAC never agreed to modify, waive or release Mr. Doll from any provisions of the Second Guaranty. Id. ¶ 31.4 Mr. Doll also executed a Payment Guaranty in favor of NMAC (“Third Guaranty”). NMAC never agreed to modify, waive or release Mr. Doll from any provisions of the Third Guaranty. ¶ 32.5 Id. Finally, as discussed above, Mr. Doll executed a Cross- Guaranty, Cross-Collateral September 15, 2008 and (“Fourth Cross-Default Guaranty”), in Agreement which Mr. dated Doll personally guaranteed all of the liabilities and obligations of Rob Doll Nissan, RWD Real Estate and Sowega Motors to NMAC. 3 Mr. Doll denies this fact but did not point to any evidence to controvert it. 4 Mr. Doll denies this fact but did not point to any evidence to controvert it. 5 Mr. Doll denies this fact but did not point to any evidence to controvert it. 12 NMAC never agreed to modify, waive or release Mr. Doll from any provisions of the Fourth Guaranty. Id. ¶ 33.6 In May or June of 2009, Mr. Doll solicited investors for Rob Doll Nissan, seeking to raise $1.5 million for Rob Doll Nissan. Nonetheless, it is undisputed that the financial outlook for Mr. Doll’s businesses became bleak by mid-summer 2009; by August 2009, Mr. Doll admitted that his businesses were struggling. It is also undisputed that by the fall of 2009 Rob Doll Nissan and RWD Real Estate were in bankruptcy. By late 2009, Mr. Doll had lost his investments in these businesses and several others, including Sowega Motors. And in 2010, Mr. Doll lost his personal residence. IV. Real Estate Transfers from Mr. Doll to Mrs. Doll Mr. Doll transferred three parcels of real estate to Mrs. Doll on April 30, 2009. All three properties were unencumbered at the time of the transfers to Mrs. Doll. Mrs. Doll, the transfers were based on According to Mr. and an estate-planning recommendation from their estate-planning attorney. See, e.g., Doll Dep. Ex. 13, Letter from C. Cheves to R. Doll (June 4, 2009), ECF No. 54-2 at 8 (stating that transfer was pursuant to 2008 estate planning discussion between Mr. and Mrs. Doll and their attorney). 6 Mr. Doll denies this fact but did not point to any evidence to controvert it. 13 The first parcel was a single family home located at 502 Gulf Boulevard in Panama City Beach, Florida (“Gulf Boulevard property”). The Gulf Boulevard property had a tax-assessed value of $195,597 in 2009 and a tax-assessed value of $175,000 in 2011. Mr. and Mrs. Doll agree that the Gulf Boulevard property was worth at least $115,000 in April 2009, and Mr. Doll believed that the property was worth $500,000 in 2007. Mr. Doll voluntarily conveyed his interest in the Gulf Boulevard property to Mrs. Doll on April 30, 2009. He did not receive any monetary consideration in return. The second parcel was a four-acre real estate parcel located at 27555 Bonita Grand Drive in Bonita Springs, Florida (“Bonita Grand Drive property”). Grand Drive $56,000. property from his Mr. Doll purchased the Bonita parents in November 2006 for He believed that the property was worth $2 million in 2007 and represented to NMAC that the property was worth as much as $2 million. The Bonita Grand Drive property had a tax- assessed value of $138,600 in 2008 and a tax-assessed value of $39,600 in 2009. Mr. Doll voluntarily conveyed his interest in the Bonita Grand Drive property to Mrs. Doll on April 30, 2009. He did not receive any monetary consideration in return. The third parcel was a 75’ x 120’ real estate parcel located at 127 13th Street in Bay County, Florida (“13th Street property”). The 13th Street property had a tax-assessed value 14 of $129,200 in 2009 and currently has a tax-assessed value of $83,400. worth Mr. Doll believed that the 13th Street Property was $500,000 in 2007. Mr. Doll voluntarily conveyed his interest in the 13th Street property to Mrs. Doll on April 30, 2009. V. He did not receive any monetary consideration in return. NMAC’s Claims Against Defendants NMAC asserts three claims against Mr. Doll to enforce the personal guaranties he made with regard to loans NMAC made to Mr. Doll’s businesses. Sowega Floorplan enforcement of First, NMAC seeks enforcement of the against the Doll Mr. & Doll. Doll Second, Floorplan NMAC against Mr. seeks Doll. Third, NMAC seeks enforcement of the RWD Note against Mr. Doll. NMAC also asserts three claims against Mr. and Mrs. Doll for fraudulent transfer. fraudulently Doll. transferred Second, transferred the First, NMAC alleges that Mr. Doll the Gulf NMAC alleges Bonita Grand Boulevard that Drive Mr. property Doll property to Mrs. fraudulently to Mrs. Doll. Third, NMAC alleges that Mr. Doll fraudulently transferred the 13th Street property to Mrs. Doll. VI. Mr. Doll’s Counterclaims Mr. Doll asserts two counterclaims. First, Mr. Doll asserts a counterclaim against NMAC arising from its alleged failure to perform a verbal promise to fund the entirety of the construction costs for Mr. Doll’s new dealership facility in 15 north Columbus. Second, Mr. Doll alleges that NNA treated him prejudicially by demanding that he move Rob Doll Nissan to north Columbus. DISCUSSION I. Enforcement of Guaranties To prevail on its claim for enforcement of the guaranties, NMAC must prove that the loans and guaranty agreements were duly executed and that the loans are in default. E.g., Big Sandy P’ship, LLC v. Branch Banking & Trust Co., 313 Ga. App. 871, 871-72, 723 S.E.2d 82, 84 (2012). If NMAC establishes that the loans and guaranty agreements were duly executed by Mr. Doll and that the loans were in default, NMAC has established “a prima facie right to judgment as a matter of law,” and the burden of production defenses. Mr. shifts to Mr. Doll to establish any affirmative Id. Doll contends that NMAC cannot prevail at summary judgment without piercing each affirmative defense he pled in his Answer. As discussed above, however, it is Mr. Doll’s burden to establish his affirmative defenses at this stage in the litigation. Although Mr. Doll need not establish them as a matter of law at this stage in the litigation, he must point to sufficient facts in support genuine factual dispute. of those defenses to create a E.g., Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1264 (11th Cir. 2001) (noting that 16 defendant has burden to adduce evidence supporting affirmative defenses and that summary judgment movant does not have burden to negate their existence); accord Big Sandy P’ship, LLC, 313 Ga. App. at 872, 723 S.E.2d at 84 (stating that where lender established prima facie right to judgment as a matter of law based on debtors’ default on promissory notes, debtors “were not entitled to rest on allegations in their pleadings to establish affirmative defenses on which they had the burden of proof at trial, but specific were facts required defenses”). in to the come record forward to with establish or point to affirmative Mr. Doll pointed to no evidence in support of his affirmative defenses. As explained below, NMAC has established that the loans and guaranty agreements were duly executed by Mr. Doll and were in default. Therefore, NMAC is entitled to judgment as a matter of law on these claims. A. Doll & Doll Floorplan It is undisputed that Mr. Doll personally guaranteed all of the liabilities and obligations of Rob Doll Nissan, including the Doll & Doll Floorplan. While Mr. Doll disputes that Rob Doll Nissan was in default as of April 2009, there is no fact dispute that Mr. Doll acknowledged Rob Doll Nissan’s default by June 2009. Mr. Doll. Therefore, NMAC may enforce the guaranties against The remaining question is the amount due. NMAC’s evidence establishes that the outstanding balance due under the 17 Doll & Doll Floorplan is $71,746.18. Brooks Aff. ¶ 19. Mr. Doll pointed to no evidence to create a genuine fact dispute as to this amount. Therefore, NMAC is entitled to recover $71,746.18 based on the default under the Doll & Doll Floorplan. In addition, NMAC is entitled to attorney’s fees based on the attorney’s fees provision in the Doll & Doll Floorplan. Under O.C.G.A. § 13-1-11, “obligations to pay attorney’s fees upon any note or other evidence of indebtedness shall be valid and enforceable.”7 Pac. Mut. Life Ins. Co. v. Wise, 878 F.2d 1398, 1399 (11th Cir. 1989) (per curiam). Where, as here, the note or other evidence of indebtedness provides for a payment of attorney’s fees without specifying a percent, the statute provides a mathematical formula for calculating the amount: “15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00”. 1400. O.C.G.A. § 13-1-11(a)(2); accord Wise, 878 F.2d at Based on the formula in O.C.G.A. § 13-1-11(a)(2), the attorney’s fee for enforcement of the Doll & Doll Floorplan is 7 Mr. Doll argues that the attorney’s fees provision in the Doll & Doll Floorplan does not fall within the purview of O.C.G.A. § 13-1-11 because the Doll & Doll Floorplan does not use the word “reasonable” to describe the amount of recoverable attorney’s fees. Mr. Doll has pointed to no authority in support of his theory that an attorney’s fees provision in a note or other evidence of indebtedness must contain the word “reasonable” in order to trigger O.C.G.A. § 13-1-11, and the Court rejects this argument. 18 $7,199.62. Therefore, the total amount due to NMAC under the Doll & Doll Floorplan is $78,945.80. B. Post-Default Contractor Expenses NMAC incurred more than $83,200.00 to pay the contractors to safeguard the collateral at the Rob Doll Nissan dealership site and the Sowega Motors dealership site. It is undisputed that the Doll & Doll Floorplan and the Sowega Floorplan make the dealerships responsible for such expenses, and Mr. Doll did not point to any evidence to controvert NMAC’s evidence regarding the amount of contractor expenses. NMAC is therefore entitled to recover the $83,200.00 it claims in contractor expenses. C. Sowega Floorplan It is undisputed that Mr. Doll personally guaranteed all of the liabilities and obligations of Sowega Motors, including the Sowega Floorplan. It is also undisputed that Sowega Motors defaulted on the Sowega Floorplan in April 2009, that Mr. Doll acknowledged the default in June 2009, and that Sowega Motors defaulted again in June 2009. Therefore, there is no genuine fact dispute that Sowega Motors was in default by June 2009, and NMAC may enforce the guaranties against Mr. Doll. The remaining question is the amount due. NMAC’s evidence establishes that the under outstanding $277,125.16. balance due Brooks Aff. ¶ 13. the Sowega Floorplan is Mr. Doll pointed to no evidence to create a genuine fact dispute as to this amount. 19 Therefore, NMAC is entitled to recover $277,125.16 based on the defaults under the Sowega Floorplan. In addition, NMAC is entitled to attorney’s fees based on the attorney’s fees provision in the Sowega Floorplan. Based on the formula in O.C.G.A. § 13-1-11(a)(2), the attorney’s fee for enforcement of the Sowega Floorplan is $27,737.52.8 the total amount due to NMAC under the Sowega Therefore, Floorplan is $304,862.68. D. RWD Loan It is undisputed that Mr. Doll personally guaranteed all of the liabilities and obligations of RWD Real Estate, including the RWD Note. defaulted on It the is RWD also Note undisputed in April that 2009 acknowledged the default in June 2009. RWD and Real that Estate Mr. Doll Therefore, NMAC may enforce the guaranties against Mr. Doll. The remaining question is establishes the amount outstanding due. balance Brooks Aff. ¶ 24. NMAC’s due evidence under the RWD Note is that the $591,546.59. Mr. Doll pointed to no evidence to create a genuine fact dispute as to this amount. 8 Therefore, NMAC is The Court notes that, perhaps in response to cases like Wise, where O.C.G.A. § 13-1-11 allowed “unconscionably high fees,” Wise, 878 F.2d at 1399, the Georgia legislature recently enacted a provision under which a debtor may challenge the amount of statutory attorney’s fees. If application of O.C.G.A. § 13-1-11(a)(2) “will result in an award of attorney’s fees in an amount greater than $20,000.00, the party required to pay such fees may, prior to the entry of judgment, petition the court seeking a determination as to the reasonableness of such attorney’s fees.” O.C.G.A. § 13-1-11(b)(1). 20 entitled to recover $864,569.32 based on the default under the RWD Note. In addition, NMAC is entitled to attorney’s fees based on the attorney’s fees provision in the RWD Note. formula in O.C.G.A. § 13-1-11(a)(2), the enforcement of the RWD Note is $86,481.93. Based on the attorney’s fee for Therefore, the total amount due to NMAC under the RWD Note is $951,051.25. II. Fraudulent Transfers NMAC also brings claims against Mr. and Mrs. Doll for fraudulent transfer under Georgia’s Uniform Fraudulent Transfers Act, O.C.G.A. §§ 18-2-70 to -80. Under the Uniform Fraudulent Transfers Act, a transfer made by a debtor is fraudulent as to a creditor if the debtor made the transfer: Without receiving exchange for the debtor: a reasonably equivalent value in transfer or obligation, and the (A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (B) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. O.C.G.A. § 18-2-74(a)(2). A transfer made by a debtor is also fraudulent as to a creditor “if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that 21 time or the debtor became insolvent as a result of the transfer or obligation.” O.C.G.A. § 18-2-75(a). NMAC contends that the undisputed evidence shows that, as of April 30, 2009, Mr. Doll was engaged in businesses for which his remaining assets were unreasonably small in relation to those businesses and that Mr. Doll should have believed he would incur debts beyond his ability to pay them as they came due. NMAC also argues that the undisputed evidence shows that Mr. Doll was insolvent as of April 30, 2009. Although the evidence certainly could support NMAC’s contention, the Court finds that the evidence is not undisputed, particularly given the evidence of Mr. Doll’s optimistic efforts to secure additional investors and shore up the financials of his businesses during the same approximate timeframe. interpretations of the Reconciling disputed these evidence is conflicting a factually intensive exercise. It is best left to a jury and not the Court as a matter of law. Accordingly, NMAC’s summary judgment motion as to its fraudulent transfer claims is denied. III. Mr. Doll’s Counterclaims A. In Counterclaim Regarding Alleged Oral Promise by NMAC his Counterclaim, Mr. Doll alleges that NMAC had promised to provide “100% financing” for the new Rob Doll Nissan facility in north Columbus. No. 12. Answer & Countercl. 20 ¶ 16, ECF Mr. Doll further alleges that when the new building was 22 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 NMAC that 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. at 19. Doll Dep. Ex. 7, RWD Note 1, ECF No. 54-1 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.”); 23 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. can’t afford that. Al Jones, quote, unquote. the money.”). We Just we’ll get you Second, and more importantly, a critical element 24 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. pointed to no evidence of any consideration for $900,000 contract. promise—a significant Therefore, Mr. modification Doll’s of counterclaim Mr. Doll the alleged the based written on the alleged $900,000 promise fails. B. Counterclaim Regarding Treatment of Mr. Doll NNA’s Mr. Doll NNA also alleges that Alleged treated prejudicial manner by demanding that Mr. Prejudicial Doll in a Mr. Doll move Rob Doll Nissan to another location in Columbus. NMAC asserts that it is entitled to judgment as a matter of law on this counterclaim because it cannot be legally responsible for the alleged conduct of NNA. Though Mr. Doll contends that NMAC has not shown that it is a separate entity from NNA, the undisputed evidence in the present record establishes that NMAC is a wholly-owned subsidiary of NNA and is a separate and distinct legal entity from its parent, NNA. Brooks Aff. ¶ 5. Mr. Doll has pointed to no evidence in support of his theory that NMAC and NNA are not separate and distinct legal entities. He has also pointed to no reason why NNA’s conduct should be attributed to NMAC. 25 For these reasons, Mr. Doll’s counterclaim against NMAC for NNA’s conduct fails. CONCLUSION For the reasons set forth above, NMAC’s summary judgment motion (ECF No. 55) is granted in part and denied in part. A genuine fact dispute exists as to NMAC’s fraudulent transfer claims, and NMAC’s summary judgment motion as to those claims is denied. The remainder of NMAC’s motion is granted. counterclaims dismissed. fail as a matter of law and are Mr. Doll’s therefore In addition, NMAC is entitled to enforcement of the guaranties made by Mr. Doll. Based on the undisputed evidence, Mr. Doll is liable to NMAC in the following amounts: Sowega Floorplan Doll & Doll Floorplan Contractor Expenses RWD Note Total $304,862.68 $78,945.80 $83,200.00 $951,051.25 $1,418,059.73 IT IS SO ORDERED, this 11th day of September, 2012. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 26