Club Factorage, LLC v. Wood Duck Hiding, LLC et al, No. 4:2015cv00264 - Document 52 (S.D. Ga. 2017)
Court Description: ORDER granting in part and denying in part 38 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 6/26/17. (wwp)
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Club Factorage, LLC v. Wood Duck Hiding, LLC et al Doc. 52 j ",m;il:l-' COT]RT FOR ST.dTES DISTRICT THE I'NITED IN THE sorrrHERN DrsrRrcr oF cEoRcrA "nll *i:.J2n Fli l3: t q SAVANNAH DIVISION CLUB FACTORAGE, LLC, Pfaintiff, cAsE NO. CV4r5-264 LLC and WOOD DUCK HIDING, TIMOTHY M. PETRIKIN, Defendants. ORDER the Before Judgment. (Doc. MoLion GRANTED IN wiII is a For :e.) rrrcrceed to breached is Court the for Motion Defendants' following Defendants' reasons, PART ANd DENIED TN PART. friaf on when contract the issue they faifed to pay ThiS CASC Defendants whether of Summary annual club dues to Pfaintiff. BACKGROIIND Hampton cfub Preserve on Hampton Island (Doc. Timofhv with nqrrr v n }el:=sc o y r Attach. 37, Petrikin eu Actach. purchase i 1 at that 1 at entered Isfand Hampton I ^l- 1.) IJLC (the Club, Island 8.) into Defendant to Tql:rr.i Petrikin Defendant Georgia. 2006, Defendant and safe Agreement 11, a Purchase private county, Liberty On JuIy Preservation u:mnt-.1yr property in a is "Club") Inc. Properties, DrFqar.1ra assigned f D.).- the wood Duck rights Hiding, to 4n to LLc Dockets.Justia.com (Id. ("Wood ouck"). the purchased Duck purchased three stated Agreement pay d.ues to (a) twelve date the (tz1 on which Attach. term, Club the Club was to of Course [, ] Eo $l-50,000 yearly along with Purchase Sale and obfigation to Ehe fonger of the fthe of The 66.) 1at waived be mont.hs from a CIub signing Wood Duck's Defendant that Wood Defendant by $50,000, However, a membership buy "for Date Closing golf club's the named] course pIay."t become open for (b) or (Doc. 40, 1 at 3.) in Defendant Wood Duck, personal obl-igations Agreement DairiLir to (Doc. 38, Attach. instal-l-ments of DespiEe signing user." the and Sal-e Purchase a membership deposit 18 hofes colf Ricefields the this in 3]., 2006. (Id. ) palments. dues of agreed Wood Duck Cfu]f, Agreement required be made in As part a membership Agreement on July Wood Duck ultimately Defendant compl-iance with In Cfub. the (Id.) lot. Defendant Agreement, in aE 2.) l-isted (Id. :rrrccd at his officiaf Petrikin under was the Defendant 4.1 F.\ As Lra,^.\ma t At the Lime Defendants the golf Club Agreement, no! yet compfete. the capacity not Club as designated 'l Defendant absofved Agreement. Petrikin ncrcnrr:11rr for i:l-r'la the user, \\f^, all from club The "designated Defendant .l l dlraq fhe l.)f and si oned purchased course was under consLructlon, the but fees, charges (rd. the club. " On and other at ,January president (*Club golf of would L6, 2008, Mr. Leventhal be in the golf (id. be standing from not had withholding by Mr. (Id. at Pl-aintiff C]ub that in 2008. membership aff 29, dues pavments (Id. payments On of bv basis letter 1-7, email At cfub that that 2OO9, towards would course dues pending Instead, Mr. that Defendants compfet.ion Leventhal informed of were entitled CIub, s golf the lri Fr^z by unrecorded n.\l- leave, then Otherwise alI was Defendant 1-i^i n.r f rE>t- side o^ deafs f : i v. Petrikin that and we are in : ,- F \ , . Jl-l r WanE to course. Cfub was bound be 5.) withhofd .r] |r' time, Defendant he golf the should that. each that from basis on the 950,000 that On February and 4-5.) LLC CIub's accourlts 2008 at January Leventhal on the the a second opened. disaqreed not to received Factorage, sometime February withhofd c l-ub dues not open. owing Leventhaf-the S. received that. deposit. informed time Petrikin 9)-indicating opening made two membership to Ronal-d Plaintiff at course had not Defendants Petrikin 4l Clu-b and stating good time Def endant DefendanE PeLrikin members could the at Factorage") course 2 0 08 , 1-7, the from 3.) (rd. correspondence amounts EO pLease do so a g'entl-ernan. as pay'rnentg must be current. prior to Lhe use. further ,anv (Id.) fotherl on 3, on the (Id, dues. responded ag'reements to letter c r/T/l this (Doc. Superior Duck they final- make the pay would Mr. same day, at 7.) it no Leventhal would would not 8, with make the open On October correspondence 1 payments, of was sent, years. Attach. of the at 2008, a formal- any further 9.) Plaintiff that was no development Plaintif 18.) a 2OL4, to at 6, letter final On Jufy When Defendant.s f il_ed a (Doc. Defendants 37, Cfub f Cfub 20'L4, plaintiff from membership the 9, deposit 2QL4, and associated Cobb County. alleged June action 1 received there on this 2009 to Attach. Court The complaint 37, from dues these Mr. advised and a party; not (Id. in payrnent the 40, Eender six rights wood $50,000, not deposit On the email that (Doc. demanding 6.) this for its Defendant Petrikin Wood Duck would did." letter this Factorage. bv l case assigned Defendant. we were I foflowed AfEer in which indicating n^lmart- bound not that Box if Defendants otherwise membership at stating Pandora's 2008, Defendant that installment we are deal. March Leventhaf further Also of interest. refused to in the 1 at G.) complaint Attach. had breached the Club Agreement and at N.)\rcmhpr nn ?O the Northern this Defendarlts (rd. $13s, 300.00. 2014, that request 2014. However, this Court to f il-e Defendants had summary d-L!Lrc urroru n r ^ . i - t s . : r r r-f 's r-Lcrr.u.Lforecfosed by claim barred is Agreement, lj-abfe. and the because on July of the 2016, (Doc. 29.) because information Clrrb limitations, Petrikin 21, that removaf (Doc. and (Doc. 38). Pfaintiff Defendant. of (Doc. 37): judgment. under 25, ordered jurisdicEion. defeci to and sufficient had cl-aim statute that notice provide that granted mot.ion that amended case O n Novernber summary judgment. for Court this District (Doc. 9.) 20L5. to corrected for amount. of transfer The Northern an ascerE.ain whet.her the motion the removed to dismissed failed Defendants in (Doc. 1.) motion a motion fifed Defendant.s their a filed on September 28, Defendants Defendants Georgia. of (Doc. 2.) district. l"iable 11. ) District Defendants were 35.) refifed. Defendants Agreement that repudiated is to not is plaintiff,s the Club personally (Id. ) 2 The Court und.erstands from the (Doc. 36; Doc. 37) filings that Cumberfand Creek Properties, Inc. is a ceorgia principal with corporation its place of business in Georgia. If lhe parties conLest this understanding, they are DIRECTED to inform Lhe Court within ten days from the date of this order, ANALYSIS SUMMARY .fUDGMENT STANDARD I. According move for Fed. to part the of summary j udgmene is the "if any material fact. a matter law. " of to 'pierce to see -^frmi Efec. Indus. (1985) n^t-aa j udgment t- l-r: l- a r^ Co., As the is R. as is proof in order need for trial .' Radio Civ. appropriate showins hirf .t,' I/e!u),PJ.\J(,! Cel-ot.ex Corp. The substantive Abrasive Fed. Corp., P.56 r"ri l t v. ^--^-l-i^l 88? F.2d f . the 1505 explained: to " 475 U S . advisory r- ha (t-lth establ-ish ^t l-"'*/l^- 477 U.S. action nonmovanL the party's t.o that n p T . . ) n . r F . nLr-Lr |J\ . ri . lJ€:u\-,rr\-4 EJ(l a499, Supreme Court ha:r CatretrL, faw gowerninq when sufficient an el-ement essentiaf of r^rh i nh (quoting judgment to the assess zenith as to summary j udgment of qenuine a dispute I make to ." to Co. v. Summary trial and is ff6a existence The *purpose fd. be granted must enLitled or which defense-on no genuine movanE is there 587 "faifs and the of may cfaim each a motion is Ehere whether Matsushj-ta 574, such sought." pl-eadings the cfaim party " [a] identifying each shows that movant 55 (a) , P. Civ. judgment, summary defense-or R. Cir. case, hv^^€ and -f 3 1 7 , 3 2 2 ( l " 9 8 6 1. determines Co. the v. whether WaSh. 1989) . Mi1ls party lAl l-ha summary judgment seeking initi:'l 1.acn.\hcihi l ii-1' nf always bears irfnrminn r-La district court of the basis for its moLion, and portions identifying those of the pleadings, depositions, answers to interrogatories and , f i I a I n.YAt- h ar wi l-h 1-he admi ss ions .jg r Ft.:,t--..: r^ d,lty which it believes I demonstrate the absence of a qenui.ne issue of material fact. Celotex. 477 U.S. at nonmovant to a qenuine is nonmovant's 604, case. (11th 608 The Court factual However, that to facts," 1998) . 1989) the arising at 586. ttran creates Court should v. facts to the 929 Inc., & Cfark. the that material evidence from party "must some metaphysical A mere Prods., Carter more Barfield Coats review must Nevertheless, inference the v. and all in it F.2d where one a doubt genuine refuse as not 135 F.3d issue f^ F.2d of 587-88. evidence. facts, maCerial shord mat.eriaf or See, e.g., 1_425 (l-1th finder and fact, cir. mav that then i l r U d m a rL ' E r r u . .lU Y L f J Y!4uL 923 , the fact the at most simpLy suffice. !422. from to of reasonabfe inference lighc t.he do more than wifl a reasonable 475 U.S. "scintilla" concl-usory allegations, v. t.o to t.he pleadings, beyond as shifts 1991) Cir. nonmoving is fd. Tidwell "draw Clark then the nonmovant. Matsushita, the there simp]y issue inferences favorabfe The burden by going establish, there 323. 933-34 (11th Cir. ,, IT. STATUTE OF LIMITATIONS irriti:1 AS Plaintiff's statute simple a in Ehe after Ann. October of In Code. l-ater no fetEer than stat.ing rn:La 38, frlrt-l.,ar Attach. 2 on October at 24. and pl-aintiff has expired Pl-aintif f offers to the sEat.ute that the CIu-b Agreement of l-imitations statute payment would the statute the dues have of Pfaintiff's due date 5.) 2OI4 has for the (Doc. they yet the deposit. that date g.) run each Accordingly, respect with l-ess the than to six (Id.) complaint. arg'ument addresses membership meanj-nq that payable the with plaj-ntiff First, 40 at were fifed arguments divisible, from has not Pfaintiff second is runs been due. limitations two fimitations. of pal,menLs because from the $50,000 a n r^( r -e I J six CJ-ub Agreement- the complaint limitations response, respect argues Ga. sent (Doc. upon within breached vrnrr'l ^ his actions payable." and the b1/ (Id. ) remedy. years fifed barred that brough! be Defendants lu lh s yr r - ra arg'rJe "Ia]f1 Defendants, dues payments. or Because plainciff stat.ute to when FL-f instal-l"ment shaIl writing-was in 2008, j,-al,r Georgia, writing is cfaim same become due contract 8, -fFiffirF the In S 9-3-24 " According simpfe the contract limitations. contracts years of breach of De f endant s m:fl-ar. outstandinq Ev€rn if the Cl-ub is Agreement years year (rd. at contract that gave the thaE vras $50, Oo0 Wood Defendant Plaintiff is If cfub when counter-performance. App. 103 ca. .\mi t- t- F.l\ when Thrr< Defendants longer pay statute Urltil those is contract Fr^.r-Lr.L-1119, -r'r and if it none.' -- - ..,r,^l appearls] " Wood v. if ^ that Ins. ^F the Unified Fh^ f i-41 breach they (citations woul-d no have Georgia, service, ^f t-].a was to take of Belf, occurred "In quantity, 6dd^h-a v. of may not fimitations contracL cov't Co. that whofe an an instalment for ini as either became payable. 'the ;d of each pa).'Tnent as to due, PfainLiff obl-igations entire 1-he than rather 63, '72 (1961) 119 S.E.2d t.he statute limitations of dj-visibfe, becomes informed dues, under separately f hnr r rrl-r Frralr (fd. ) Pj-edmont Lj-fe " 235, 22s, between an instrument is as a return or Co pay (Id.) i-s run it obliqation indenendent or a 20 year will statute "the contends predecessor. agreement Agreement apply Ag'reement Pfaintiff's to not does obligation the sale this that performance the to and and subject the entire, or rise that Pfaintiff Instead, to Ga. Code. Ann. S 9-3-23. pursuant run Duck argues seal- which 9.) Purchase the period six argues Pfaintiff l-imitations payment. that to of statule than was due more deposit As a resulE, suit. this before six the that divisj-bIe, a or -^n|-rr-t- the whol-e Athens-cfarke ctv., Piedmont, 103 Ga. App. a divisible contracL or is thing Broxton v. Lifsey, 19 Ga. 46 crant, 518, App. App. Ga. Supreme CourL has hefd is is when it payable in Baker v. " 559 S.E.2d 749, 274 Ga. 745, Georgia The Iis] period. v. Glass divisibfe which amount uncerEain Ian] Brannen/Goddard co., (1933)). a contract Dol-an v. (19].7), 913 " (citing 72 38 (1898); '727 S.E. total over insEallments 16? that indefinite an "for at S.E.2d 91 S.E. 519, 32'7, performances. 30 S.E. 103 Ga. 327, Nelson, servlce, 119 235, aE quantity, "ttle successive by accepted (quoting 2015) cir. S . E . 2 d a L 7 2 r ,. H o w e v e r , \19 235, one where App. 103 Ga. Piedmont, at is be to (11th 1247 L244, F.3d 818 ca., 453 450. (2002). those Applying concludes that Agreement in the the that rrraarf ri to, n the nari Attach. n^ to for Club a home or at. maintain so long M.\ralr\7ar 4.\ /l,,^^ club homesite a membership Accordingly, a membership as they l- h^ Court The divisible. of 3 required c l-ub are and pay dues l-rnma_:n 34, the case, and maintain acquire (Doc. the owner "each Communities members of in, the Club. " is cl-r-rb Agreement requires in this to standards own tLleir f aa- 5n,.1 P e ! * v q . charges are modified at at 19.) set by the wiff-resuftinq Based on this owner in analysis, 1_0 of an the Club indefinite the and may amount. Cl-ub Agreement be (rd. is a of as DENIED As date' 2014 are Defendants' ' fimitati-ons is to 2009 from pal,ments ,fudgment summary fo]r. Motion pay on each successive run to begin not did dues the contract' the statute the by barred not divisible dues for claims result, a As to failed Defendants until payabfe on fimitations of statute a period. uncertain an over j-nstal-lments in are that amount totat indefinite an for palments incfudes it becausd contract divisibfe Eo dues the pal.ment. s . j"nstall-ment membership Defendants' and deposit Club Agreement with the Pfaintiff did not 10.) 1 contract cfaim based on the Purchase this stage in proceedings. at with this that clear through of " [a] 2OO4) for Appeals plaintiff argr-1ment in Gi]mour v. Cir. stating that of balance the a breach of (Doc' 37 ' C]ub. " bring and Sale the a breach of Agreement ' At Pfaintiff is stuck decision. The court iL the single constituted dues annuaf Attach. least at t.o pay and refusaf fail-ure "Defendants' complaint its in a raised Plaintiff barred. claim contract of breach is pa)ment $50, 000 third the to claim Plaintiff's However, a the opposing brief Shanahal v. 11 Circuit amend [its] may not Gates, McDonald & co., (citing El-eventh summary has made complairrt judgrnent. " 382 F.3d 1312, 1315 (11th City of Chi., a2 F.3d 776' l (7t.h 781 amend its Purchase the and Sale payment of deposit, than Motj,on for of to Lhe save claim its to may noL do. the Clr.rb Aqreement was the on due date the instaffment limitat.ions as to pursuant claim after Summary Judgment seeks Thj-s Plaintiff based $50,000 statute the a and thereby years six final the bring claim Plaintiff case, palment. Plaintiff's more this Agreement, instaflment Because In to compfaint third fifed 1996) ) . Cir. of has to the the run. for membership Defendants' finaf is $50,000 GRAMTED. fII. ANTICIPATORY REPUDIATION Defendants payment any (Doc. 38, to afso because AtEach. Pfaintlff's determining wtrether deafs prior to terms of the the time that it arry such lne., the not Shealyl owed dues. be (Id. '.when occurs obligation performance is Textife Rubber ' App. point 491, bound & at by in In party perform under Chem. 494, 6.) one to required E. wad.e Sheafy was the pfior manager of person who inltially sold Dpfendant Petrikin ) 12. contract. ag.reement contractual 301 ca. recover Defendants woufd repudiation contract." T h e r m g _ I I S > < _: e s h . s - r Specificatly, or his cannot repudiated Plaintj-ff anticipatory repudiates Pfaintiff Pfaintiff staLement side thereto that 2 aL 5-6.) unrecorded Georgia, argue Co- the v. 6A7 S.E.2d the Ch:b and his home . the olo d1. ca. r92, happens :rrd /rnnq) lmtnrinn L93, raamrar S.E.2d 366 party other the in rnr:qi breach, or contract wait 35, 119 S.E.2d at this a pa)4nents. After that Mr emails Defendant would the this contract ronrrdial-irlrr ^q ,a performance of the 103 Ga. App. for and at 234- Petrikin a dispute informed further informed Petrikin Defendant during make no T,Fventhal when ?qR ommitted). Pfaintiff of l-he Piedmont, (citations series Defendants q ne\,|mehj- breach. 7I rescind. to time qa.'h.i \r (1988) ) . 673 fra:l- the case, exchanged 672, may elect until qir., PrrFlar .6nl-r.ar-f and sue for In C^+F6a as to Leventhal- Mr. inst.alfment Defendant dues or Petrj-kin dues that t.he Club was not our bound by rmrecorded side deafs and we are view .rot b.ing fair; treated if you want I eave. then ofease so do as e rrFnl- l Fmarl payments must be current Otherwise aff further use. Also, we are otherwise not any Shealy deal . (Doc. this 38, Attach. 1 at Defendant 34.) f am sorry that the current Hampton Isfand Club wilf not reached by Wood Duck Hiding cnj- i j-\/ h^tf in:l prior to bound by Petrikin replied by stating emaif that in to iir no ,Trrl\/ one l-hj hlin<l- membership i I al in ?OOK 1s i lmanf the Sirrr.a bound -'l by best nrrmanr- Cl-ub. 13 management of the tronor the agreement and Wade sheal-y's il- those i< rrnrrr agreements, interest fn nn<irian nrrral.rrco to I make a do the trustee to fTd I Mr T,errent- hal T that Petrikin Defendant ^rhn_\f l-.r aY 1urs a a s (r . : a , a ,l A n j 4evL r AT1r,, L rrnrr is argue tshat allowed round f irst of couple months. to repudiated Plaintiff Agreement. lerms with which Ho\never. Pfaintiff cfub alt.ernatiwely repudiated th.e Purchase i f f it by rcnrrdi:l- 2 aL 6. ) Because the .\f har court suggests I4 wi1li-ng the but s is that to afEer payment motion of for this Plaintiff that \\,a.rrcpmFnl- itseff in and Sal-e disentangling and Sal-e Agreement pd court appears Defendants' in the allegedly zurchase delaying help littfe the it appears guarantee. an appropriate of by or successful- glance, also Agreement as Dilint- was Pl-aintiff be bound f Plaj-ntif contract to refusinq contract exchange / the From this At. first conundrum Attach. Agreement contract. is final and Safe that summary j udgment the paying not turn, which cfear, less the in payments. whether of which, zurchase determine is evidence dues and repudiating 1 .h r 1 - contract by clear is exchange breach repudiated-the unable this fuLure any or Agreement-is dues would open a guaranty the the to Defendants Plaintiff the next the repudiating f j-nstaf Lment is r:nt i I l. 32. ) Pl-aintif club de'l :w in Defendants of narrmpnf by Steve played at (rd. nf l-r) :arr.FAmAnfq it which we were not a party, [sic] I can with Box if I did. the Pandora's f rnm informing by exchange the ended afso '/ alleges (Tlor- unclear 1R which grant j udgment summary rnrestion clf far:t- remains a was allegedly not are Defendants as stage this contract !"hich as to Accord.ingfy, repudiated. at Defendants to to improvident be would it repudiated, been has contract to entitled summary judgrnent. against never a contract (Id.) Plaintiff be jointly "shafl Pl-aintif f points disagrees. User for atf dues, fees, time to time owing to 66 I D e f e n d a n t - -P -e -t r- rtrr--r -l r . : L. cfub Agreement courts ." (citinq 304 Ga. -rr < -:-1 1r1 P App. Point S. I ---"-^^ -1d.119 Lrd.Y c Dal.riLih Accordingly, je . 2rO, Retail 4a9, App. aE Enters SCSJ 319 Ga. w.r.5 422; ^+ 6 a r c! ^ r - lr1 '-d, rv l PL the -L-Ly Defendants' that on elsewhere, its pfain Hansen & Hansen Enters. v. 696 s.E.2d contract Iiahl6 l-5 user with '734 S.E.2d Partners Motion 1 at as v. 2L2, Attach. accordance in Inc. Y Duck from Georgia, In b5.) wood amou-nts 38, ' ^ - ' *f n a t e d uc- Lrtc a contract "interpret ]anquaqe rnc., (1d. (Doc. Ehe Club. " terms of the other and charges . each Designated with liable and severafly to was Pl'aintiff Defendant that state which Agreement, Club and Petrikin Defendant between contract there because faifs Petrikin Defendant claim of breactl Plaintiff's that allege Defendants t.he INDIVIDUAL OBLIGATION DEFENDANTPETRIKIN'S IV. 21-A (20L2) N. Am. Props. Atlanta, ]-36 (2010)). Here states r 4 for 2r4, that d s -e Yrrrrn :uf e u ua fi q the Defendant. cd Summary Judgment llqar on the basis lhat not is Petrikin Defendant liable indiwidual]y is DENIED. CONCLUSION For the Summary ,fudgment. (Doc. PART. whether This case Defendants oav annuaf reasons. foregoing dues to wilf 38) for GRANTED IN PART and DENIED IN is proceed breached Motion Defendants' to triaf a contract on the when they issue failed of to Plaintiff. Elii" 26+^y so oRDERED of ,rune 2017. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA Lt)
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