United States District Court, N.D. Georgia, Atlanta Division
RICHARD W. STORY, UNITED STATES DISTRICT JUDGE.
case comes before the Court on Defendants' Jerry Dehner
and Hyde Park CG, LLC's Motion for Summary Judgment of
the Cross-Claims of Defendants Ext-Indy Suites, LLC and
Ryszard and Claire Zadow (“Motion for Summary
Judgment”) . After reviewing the record, the Court
enters the following Order.
action arises out of an arrangement between Plaintiff Access
Point Financial, Inc. (“APF”) and Defendant
Ext-Indy Suites, LLC (“Ext-Indy”). Ext-Indy and
APF entered into several agreements in an effort to secure
funds to transform a hotel, owned by Ext-Indy, into a more
profitable enterprise. These agreements were facilitated by
Ext-Indy's broker, Defendant Hyde Park CG, LLC
(“HPCG”). On December 29, 2017, APF's claims
against HPCG and Defendant Jerry Dehner (collectively the
“HPCG Defendants”) were dismissed with prejudice
by stipulation. (Stipulation of Dismissal, Dkt. .) On
March 8, 2018, the claims between APF, Ext-Indy, Ryszard J.
Zadow, and Claire J. Zadow (collectively the “Ext-Indy
Defendants”) were dismissed with prejudice by
stipulation. (Order, Dkt. .) The cross-claims asserted
by the Ext-Indy Defendants against the HPCG Defendants are
therefore all that remain pending.
initial financing involved a loan with Private Capital Group
(“PCG”). Ext-Indy entered into an agreement with
HPCG in order to secure new financing prior to the maturity
date on the loan with PCG. Ext-Indy and HPCG signed a written
Advisory Engagement Agreement on July 30, 2013, under which
HPCG would act as a broker for Ext-Indy. (Statement of
Material Facts in Supp. of HPCG Defs.' Mot. for Summ. J.
(“HPCG Defs.' SOMF”), Dkt. [153-2] ¶ 1.)
HPCG facilitated the loan between APF and Ext-Indy.
their cross-claims, the Ext-Indy Defendants bring claims for
breach of fiduciary duty, fraud, negligent misrepresentation,
breach of contract, and other subsidiary claims. These
claims, in large part, stem from the terms of the loan from
APF. The Closing Statement, signed by Claire Zadow for
Ext-Indy, stated that Ext-Indy would be required to make an
equity contribution of $115, 610 prior to the first draw.
(Id. ¶ 5.) The Ext-Indy Defendants allege that
the inclusion of this term amounts to a breach of contract
and a breach of fiduciary duty by the HPCG Defendants, as
well as fraud and negligent misrepresentation. They further
allege that Henry Dehner's representations that he would
have the equity requirement removed after the Closing
Statement was signed amounts to fraud and negligent
misrepresentation. Finally, they allege that Henry Dehner
shared confidential financial information with PCG, thus
breaching the fiduciary duty owed to the Ext-Indy Defendants.
Rule of Civil Procedure 56 requires that summary judgment be
granted “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.” “The moving party
bears ‘the initial responsibility of informing the . .
. court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.'” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.
2004) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). Where the moving party makes such a
showing, the burden shifts to the non-movant, who must go
beyond the pleadings and present affirmative evidence to show
that a genuine issue of material fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
applicable substantive law identifies which facts are
material. Id. at 248. A fact is not material if a
dispute over that fact will not affect the outcome of the
suit under the governing law. Id. An issue is
genuine when the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Id.
“the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). No. genuine issue of
material fact exists “since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 323. Thus, if a party who has the burden of
proof fails to make a showing sufficient to establish the
existence of any essential element to a claim, summary
judgment may be properly granted against him.
in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the
light most favorable to the non-moving party. Patton v.
Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.
2002). But, the court is bound only to draw those inferences
that are reasonable. “Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). “If the
evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once
the moving party has met its burden under Rule 56(a), the
nonmoving party “must do more than simply show there is
some metaphysical doubt as to the material facts”).