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Stamey Cattle Co., LLP v. Wright

United States District Court, S.D. Georgia, Waycross Division

February 19, 2019

STAMEY CATTLE CO., LLP, Plaintiff,
v.
WILLIAM P. WRIGHT, JR.; WILLIAM P. WRIGHT, JR., D/B/A THE WRIGHT FAMILY DAIRY FARMS, LLC; THE WRIGHT FAMILY DAIRY, LLC, D/B/A, THE WRIGHT FAMILY DAIRY FAMRS, LLC; W.P. WRIGHT FAMILY, LLC, D/B/A, THE WRIGHT FAMILY DAIRY FARMS, LLC; LOWER APPLING COUNTY HOLSTEINS, LLC; FIRST BANK SHARES OF THE SOUTHEAST, INC., D/B/A FIRST NATIONAL BANK SOUTH, GLENDA WRIGHT, ASBURY FARMS, LLC, LEVI WRIGHT, AND STAMEY CATTLE COMPANY, LLP,' Defendants. And SUNSHINE HEIFERS, LLC, Intervening Plaintiff,

          ORDER

          HON. LISA GODBEY WOOD, JUDGE.

         Before the Court are the following motions: Defendants William P. Wright, Jr., and William P. Wright, Jr., d/b/a The Wright Family Dairy Farms, LLC (collectively "Pete Wright")'s Motion for Summary Judgment, dkt. no. 100, Defendant The Wright Family Dairy, LLC, d/b/a The Wright Family Dairy Farms, LLC ("WFD")'s Motion for Summary Judgment, dkt. no. 101, Defendant W.P. Wright Family, LLC, d/b/a The Wright Family Dairy Farms, LLC ("WPW")'s Motion for Summary Judgment, dkt. no. 103, and Plaintiff Stamey Cattle Company, LLP ("Plaintiff")'s Motion for Partial Summary Judgment, dkt. no. 104.[1]These motions have been fully briefed and are ripe for review. For the reasons set forth below, Plaintiff's Motion, dkt. no. 104, is GRANTED with respect to Count One and Crossclaim Count VIII and DENIED as MOOT with respect to Counts Two and Three; Defendants Pete Wright, WFD, and WPW's Motions, dkt. nos. 100, 101, 103, are GRANTED with respect to Counts Seven and Eight and Crossclaims Counts II and IV; Defendants Pete Wright and WFD's Motions, dkt. nos. 100, 101, are DENIED with respect to Counts One, Four, Six, Ten, Eleven, and Twelve and Crossclaim Counts I, III, V, VI, and VIII, and their Motions are DENIED as MOOT as to Counts Two and Three; Defendant WPW's Motion, dkt. no. 103, is GRANTED with respect to all counts. Counts Five and Nine and Crossclaim Count VII[2] are DISMISSED as MOOT. Defendants' Motion in dkt. no. 102 is MOOT and WITHDRAWN.[3] Default Judgment against Defendant Lower Appling County Holsteins ("LACH") is GRANTED.

         BACKGROUND

         This case involves a purchase of cattle between two family businesses and a forty-year history of doing business together gone awry. Specifically, this case involves the purchase of cattle by Pete Wright or one of his business entities from Plaintiff, Stamey Cattle Company, LLP. Plaintiff is a North Carolina based company in the business of raising and selling registered and grade cattle, primarily dairy cattle, domestically and abroad. Dkt. No., 1171 l.[4] Plaintiff has two partners-David Stamey and Robert "Bob" Stamey. Dkt. No. 118-1 ¶ 2.[5]

         A. The Parties

         Defendants in this case include Pete Wright, his family members, and various business entities that he or his family are involved with in some capacity. Pete Wright is a dairy farmer who lives in Georgia with his wife, Glenda Wright, and his sons, Raymond and Levi Wright. Id. ¶ 6. Pete and Glenda are the sole members of the Wright Family Dairy, LLC, ("WFD") with Pete being the principal owner and managing member. Id. ¶ 9; Dkt. No. 117 ¶ 3. WFD formerly ran a dairy operation. Dkt. No. 118-1 ¶ 10. Pete and Glenda Wright also owned W.P. Wright Family, LLC ("WPW"), which at least at one point functioned as a landholding company. Id. ¶ 12. Raymond Wright is the sole member of Lower Appling County Holsteins, LLC ("LACH"), and Pete Wright, as an employee of LACH, was in charge of all of LACH's finances.[6] Dkt. No. 117 ¶¶ 31-32. LACH was created in order to lease the dairy operation of WFD. Id. ¶ 24. Pete Wright's residence, WPW's registered office and the dairy operations and offices of WFD and LACH were located at the same address: 18 Holstein Lane, Baxley, Georgia 31513 ("Dairy Property"). Dkt. No. 1 ¶ 4; Dkt. No. 7 ¶ 4; Dkt. No. 117 ¶ 46; Dkt. No. 104-3 at 2, 72, 77. Pete Wright, WFD, WPW, and LACH are the only Defendants at issue before the Court in the Parties' Motions. However, other Defendants relevant to the facts in this Order include Hurricane Creek Dairy, LLC-a dairy owned by Levi Wright as the sole member-and Asbury Farm, LLC-an entity that Pete Wright testified was created to hide money and avoid creditors. Dkt. No. 117 ¶¶ 55-58; Dkt. No. 104-2 at 55. At the time of this Order, the property on which WFD and LACH's dairy operated has been foreclosed, and WFD, WPW, and LACH are now dissolved. Dkt. No. 117 ¶ 64; Dkt. No. 104-2 at 1, 14, 18-20, 55.

         B. Pete Wright's Involvement with WFD and LACH

         Pete and Raymond Wright formed LACH around August 1, 2016. Dkt. No. 118 ¶ 14. LACH leased the dairy and equipment on the Dairy Property owned by WFD from WFD. Dkt. No. 117 ¶ 24. At the time that LACH was formed, Pete Wright and WFD had substantial debts, including debts to First National Bank South ("FNB South"), Sunshine Heifers, LLC ("Sunshine Heifers"), the IRS, and other creditors. Id. ¶ 25. Raymond Wright testified that this lease arrangement between LACH and WFD would allow LACH to operate the dairy and collect proceeds from the dairy's milk production while allowing WFD to avoid its creditors. Dkt. No. 104-5 at 7. WFD and LACH were located on the same property-the Dairy Property-and employed many of the same employees, such as Harvey Prater, Pete Wright's office manager. Dkt. 119-4 at 7.

         Moreover, Pete, while continuing as the managing member of WFD, simultaneously worked for LACH managing all of LACH's finances. Dkt. No. 104-2 at 40. While Raymond was the sole member of LACH, he did not handle "the office stuff." Dkt. No. 104-5 at 7. As Pete testified, he was "in control of the money" for the entire existence of LACH. Dkt. No. 104-2 at 40. While in control of LACH's finances, Pete Wright transferred significant amounts of money from LACH's bank account to WFD, from LACH's bank account to his personal account, and from WFD's bank account to his personal account. See, e.g., Dkt. No. 117 ¶¶ 34-35, 37-40; Dkt. No. 104-2 at 40-49. Some of this money was transferred from LACH to pay off WFD's and Pete Wright's debts. Dkt. No. 104-2 at 41; Dkt. No. 104-5 at 8. Some of this money was used to pay for Pete Wright's personal expenses such as a speeding ticket and repairs for his personal truck. Dkt. No. 104-2 at 41, 45. These transfers between accounts were substantial-Glenda Wright testified that in 2016 transfers from the businesses to her and Pete's personal accounts exceeded $200, 000. Dkt. No. 104-6 at 10. Glenda Wright testified that "[t]ransfers were made, yes, from all accounts simply because we had to pay everything either by cash, cashier's check. Nobody would take our checks at that point." Dkt. No. 104-6 at 9. Despite being LACH's sole member, Raymond was not aware of these transfers or why Pete was making them. Dkt. No. 140-5 at 10 ("I don't really know what he was paying with any of that money.").

         C. The Purchase of Cattle from Plaintiff

         During the time that WFD was leasing dairy operations to LACH in February 2017, Pete Wright, by or through WFD and LACH, traveled to North Carolina to select cattle to purchase from Plaintiff. Dkt. No. 117 ¶¶ 11-12. Pete Wright's businesses had been buying cattle from Plaintiff for 40 years and had purchased approximately $40 million in cattle from Plaintiff. Id. ¶¶ 7-8. Typically, in their past dealings, Pete Wright would travel to Plaintiff's farm in North Carolina and select specific cattle to purchase, and those cattle would be shipped to Pete Wright's operations in Georgia. Id. ¶¶ 9-10. On this occasion, in February 2017, Pete Wright selected cattle for purchase, and Plaintiff evidenced the sale of the cattle in invoices prepared by Plaintiff. Dkt. No. 118-1 ¶¶ 25-26. The invoices included who the cattle were sold to, address, a phone number of the seller, the date, cattle identification, the itemized price per cattle, and a total invoice price. Id. ¶ 27. A table provided by Defendants summarizes the invoices for cattle purchased by WFD and LACH from Plaintiff in 2017:

Load

Sold To

Date

Invoice No.

Invoice Amount

"Load 1"

WFD

2/8/17

2017-501

$16, 775.00

"Load 2"

LACH

2/21/17

2017-503

$70, 000.00

"Load 3"

LACH

2/23/17

2017-504

$74, 000.00

"Load 4"

LACH

3/2/17

2017-505

$72, 000.00

"Load 5"

LACH

3/7/17

2017-506

$57, 900.00

"Load 6"

LACH

3/25/17

2017-510

$28, 000.00

"Load 7"

WFD

6/5/17

2017-514

$96, 800.00

         Dkt. No. 118-1 ¶ 29.[7] Plaintiff shipped the cattle to WFD and LACH on these dates with health papers and identification tags in the ears of the cattle. Dkt. No. 117 ¶ 17.[8] Payments for the cattle were to be made through milk check assignments from WFD and LACH's dairy operations, Id. ¶ 14; Dkt. No. 7 ¶ 23.

         D. Termination of the Lease and WFD's Takeover of LACH

         In early May of 2017, Pete and Raymond Wright had a disagreement concerning the management of LACH. Dkt. No. 117 ¶ 47. Pete Wright testified that they "had a dispute about the milk check before I ran him off." Id. ¶ 48. This dispute escalated into a lawsuit between WFD and LACH, which ultimately ended with WFD terminating the lease with LACH on May 11, 2017, retaining control over all dairy operations, property, and equipment, and absorbing LACH's assets-including LACH's cattle. Dkt. No. 104-2 at 3, 18; Dkt. No. 104-5 at 8. Pete Wright testified that when WFD took over LACH's cattle, it took "all of the cows over," including those sold by Plaintiff to LACH that Pete selected in February. Dkt. No. 104-2 at 18.

         After the termination of the lease and WFD's taking over of LACH's cattle, Plaintiff made the final delivery of cattle, Load 7, on June 5, 2017. Dkt. No. 117 ¶ 19. Defendants admit that at the time of this delivery, WFD and LACH were insolvent and that Plaintiff had not been fully paid for the prior loads of cattle purchased. Id. ¶ 19. Prior to this point, LACH had been paying a milk assignment check to Plaintiff to pay for the cattle. Dkt. No. 104-4 at 2. However, after the termination of the lease, WFD initiated a monthly recurring milk check assignment to Plaintiff of $35, 823.00 to replace the initial milk check assignment from LACH. Id. at 3; Dkt. No. 104-2 at 19. The assignment stated that "[s]uch payments to the assignee are to continue until I provide written notice of termination to the Association. Consent of the assignee is not required to terminate this assignment." Dkt. No. 104-4 at 3. In accordance with this provision, WFD cancelled its milk check assignment to Plaintiff on July 12, 2017, id. at 4, because WFD did not have enough money to pay Plaintiff and chose to pay other creditors with what money was left from its milking operations, dkt. no. 104-2 at 32. When Plaintiff found out about the cancelation of the milk check assignment, it made overtures to Pete Wright to finalize payment for the satisfaction of the outstanding debt on the cattle purchased from Plaintiff. Dkt. No. 117 ¶ 53.

         E. Pete Wright Sells Off the Cattle

         On or about July 18, 2017, Pete and Levi Wright organized a sale and purchase of cattle with Gutman Brothers, Ltd. ("Gutman"). Dkt. No. 118-1 ¶¶ 57-58. In this transaction, WFD sold cattle to Gutman for $500, 000. Id. ¶ 58. At least some of the cattle sold in this transaction included cattle sold to WFD and LACH by Plaintiff, and money was still owed to Plaintiff for those cattle at that point. Dkt. No. 104-2 at 35. Pete had his bank, FNB South, place the money from the Gutman sale in escrow to be used by Levi to purchase new cattle from Gutman for Levi's dairy, Hurricane Creek. Id. at 35-36. Pete discussed the Gutman transactions with Levi and FNB South before it occurred. Id. at 35. Pete did not tell Plaintiff about the Gutman sale in advance. Id. at 36.

         On or about August 23, 2017, WFD sold cattle to New Holland Stable Sales ("New Holland"). Dkt. No. 118-1 ¶ 63; Dkt. No. 104-2 at 34. Pete Wright testified that some of the cattle sold to New Holland could have included cattle sold to WFD and LACH from Plaintiff. Dkt. No. 104-2 at 34. Moreover, Pete testified that he set up the company Asbury Farm, and he directed New Holland to send money from the sale to Asbury Farm. Id. He testified that he did this to try to keep the money from that sale out of creditors hands and "hide it." Id. at 34, 55. When asked why he created Asbury Farm and if it was done to move assets from WFD to Asbury Farm, to liquidate those assets and sell cattle and receive the proceeds from those assets and cattle, Pete invoked the Fifth Amendment. Id. at 17. Pete Wright's plan of having the money from the New Holland sale sent to Asbury Farm ultimately did not occur after someone at New Holland noticed brands or tags on the cattle. Id. at 34. Around this same time, WFD also sold cattle, including eleven Holstein bulls purchased from Plaintiff, to Dixie Livestock. Id. at 27.

         Sometime around September 2017, Pete Wright called Robert and David Stamey and told them "to come get" their cattle, and Pete testified that at the time,, he believed he owed Plaintiff about $200, 000 for the cattle. Id. at 38. Pete testified that "I told [Robert and David Stamey] to come get enough cows that was left to cover the rest of their money." Id. Robert Stamey testified that Pete called him and said "Bob, I can't pay for those Jerseys. You need to come get them." Dkt. No. 110-1 at 111. Pete maintained in his deposition that the Stameys decided not to come retrieve their cattle, dkt. no. 104-2 at 39, but Robert Stamey testified that he and David traveled to the Dairy Property in early September 2017 only to learn that Pete had already sold the Jersey cattle that they came to retrieve, dkt. no. 110-1 at 101. Robert also testified that when they asked Pete how many of their cows were left there, Pete responded, "I don't know." Id. Pete Wright testified that he asked Robert and David to work with him while he tried to sell his dairy to a buyer to pay the balance of the cattle to Plaintiff, but that sale never occurred. Dkt. No. 104-2 37-38.

         F. The Final Cattle Sale and Plaintiff's Invoices

         On October 6, 2017, Plaintiff, and other creditors of Pete Wright, WFD, and LACH, which included FNB South and Sunshine Heifers, met together to organize a final sale to liquidate the remaining cattle in Pete Wright and WFD's possession. Dkt. No. 118-1 ¶¶ 66-67; Dkt. No. 117 ¶¶ 62-63. The proceeds of the sale resulted in $188, 681.86, and that amount was held in trust. Dkt. No. 118-1 ¶ 68.

         Also, on October 6, 2017, the Stameys met with Pete Wright to sign five invoices-for loads 1, 4, 5, 6, and 7-and two statements of account for the balances owed by WFD and LACH. Id. ¶ 33. These documents included the statement "Title will transfer when full payment is received" next to the signature line. Id. Pete Wright signed them on October 6, 2017, with the signature "W.P. Wright, Jr." Id. ¶¶ 33-34, 38. However, invoices for "Load 2" and "Load 3," which also included the statement "Title will transfer when full payment is received," were signed upon delivery in February of 2017. Dkt. No. 110-1 at 43-45. But, Pete Wright testified that the signature on those two invoices-"Pete Wright"-was not his signature; he stated that he signs his name "W.P. Wright, Jr." Dkt. No. 104-2 at 19-20; Dkt. No. 119-4 at 9. As of October 6, 2017, the statements of account signed by Pete Wright showed that WFD owed a balance to Plaintiff of $44, 960.97 and LACH owed a balance of $182, 798.29 for the cattle purchased from Plaintiff. Dkt. No. 116-1 Ex. H, I.

         G. Procedural History

         On November 3, 2017, Plaintiff sued Pete Wright, WFD, LACH, WPW, and FNB South over its sale of cattle to Pete Wright, WFD, and LACH and for the bank's involvement in Pete Wright's subsequent sales of the cattle. Specifically, Plaintiff brought claims for breach of contract (Count One), promissory estoppel (Count Two), unjust enrichment (Count Three), fraud and fraud in the inducement (Count Four), implied trust (Count Five), enforcement and foreclosure of a purchase-money lien (Count Six), civil conversion (Count Seven), civil conspiracy (Count Eight), and declaratory judgment (Count Nine). Dkt. No. 1 at 11-20. Plaintiff also requests prejudgment interest (Count Ten), attorneys' fees and litigation costs (Count Eleven), and punitive damages (Count Twelve). Io\ at 20-21.

         After Plaintiff filed its initial Complaint, Sunshine Heifers filed suit as an intervening plaintiff on March 6, 2018, against WFD, LACH, Pete Wright, Glenda Wright, Asbury Farms, Levi Wright, FNB South, Hurricane Creek, Raymond Wright, and Stamey Cattle Company. Dkt. No. 27. In response, Plaintiff filed counter claims against Sunshine Heifers and added crossclaims against several defendants. Id. at 64-80. Specifically, Plaintiff added crossclaims of fraud (Count I), civil conversion, livestock theft and theft by deception (Count II), tortious interference with a security interest (Count III), civil conspiracy to commit civil conversion, livestock theft and theft by deception (Count IV), civil conspiracy to commit tortious interference with a security interest (Count V), fraudulent transfers (Count VI), constructive trust (Count VII), [9] and successor liability (Count VIII). Id. at 67-80. Some of these crossclaims were against new Defendants not included in the original Complaint including Raymond Write, Glenda Wright, Asbury Farms, Levi Wright, Hurricane Creek, and Lower' Appling County, LLC. Id. at 74-80.

         On July 16, 2018, Sunshine Heifers, FNB South, and Plaintiff informed the Court that they had reached a settlement resolving all claims against each other. Dkt. No. 95. On September 24, 2018, the Court approved the dismissal with prejudice as to claims between and among Plaintiff, Sunshine Heifers, and FNB South. Dkt. No. 123. On November 15, 2018, Sunshine Heifers informed the Court that it had entered into a settlement with the remaining Defendants, which resolved its remaining claims, and the following day, the Court approved the dismissal with prejudice of Sunshine Heifers's remaining claims. Dkt. Nos. 129-130. As a result of these settlements, Sunshine Heifers is no longer a party to the case, all claims against FNB South in the original Complaint and the Crossclaims have been resolved (Counts Three, Five, Six, Seven, Eight, Nine, Ten, and Eleven in the original Complaint and Crossclaim Counts III, IV, V, and VII), Counts Five and Nine in the original Complaint and Crossclaim Count VII (incorrectly listed as Count VIII) are moot, and Pete Wright and WFD's Motion for Summary Judgment against Sunshine Heifers claims, dkt. no. 102, is moot.

         Additionally, Plaintiff filed a motion for default judgment against LACH for failure to appear and respond in this case on August 30, 2018. Dkt. No. 98. The clerk signed the proposed order for default judgment against LACH, but it noted the order as an entry of default on the Court's docket. Dkt. No. 99. Under Federal Rule of Civil Procedure 55, a party may seek an entry of default and, subsequently, a default judgment against another party who has failed to plead or otherwise defend a lawsuit. Rule 55(a). It is a two-step process. "First, the party seeking a default judgment must file [an application] for entry of default with the clerk of a district court by demonstrating that the opposing party has failed to answer or otherwise respond to the complaint, and, second, once the clerk has entered a default, the moving party may then seek entry of a default judgment against the defaulting party." Gladden v. Homewood Florist, Inc., No. 2:09-CV-01547-HGD, 2011 WL 13286008, at *1 (N.D. Ala. July 6, 2011)(alteration in original)(citations omitted); see also Bank of Am., N.A. v. Harris, No. 1:17-CV-1201-CAP-JSA, 2017 WL 8186606, at *3 (N.D.Ga. Nov. 30, 2017), report and recommendation adopted, No. 1:17-CV-1201-CAP, 2017 WL 8186601 (N.D.Ga. Dec. 20, 2017) (describing the "two-step procedure for obtaining a default judgment"). Here, Plaintiff did not follow the proper procedure by prematurely filing a motion for default judgment before filing a motion for default and the clerk incorrectly filed a default judgment before entering default. However, because LACH has never appeared in this case and because the amount owed by LACH to Plaintiff is a sum certain-$182, 798.29-the Court enters DEFAULT JUDGMENT against LACH in that sum certain amount.

         Therefore, currently at issue before the Court are Pete Wright's Motion for Summary Judgment, dkt. no. 100, WFD's Motion for Summary Judgment, dkt. no. 101, and WPW's Motion for Summary Judgment, dkt. no. 103. These motions request summary judgment on all counts of the Complaint and the crossclaims. Plaintiff's Cross Motion for Partial Summary Judgment is also before the Court. Dkt. No. 104. Plaintiff requests summary judgment on Count One for breach of contract, Count Two for promissory estoppel, and Count Three for unjust enrichment and Crossclaim Count VIII for successor liability. Id. Plaintiff's Motion is only directed at Defendants Pete Wright and WFD. Id. Therefore, this Order will only resolve the parties and claims at issue before it in 'these four motions. Claims against other Defendants not at issue in these motions are not before the Court, and those claims continue in this case.

         LEGAL STANDARD

         Summary judgment is required where "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." Fed.R.Civ.P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Find What Inv'r Grp. v. Find What.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

         The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257.

         The nonmovant may satisfy this burden in two ways. First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)). Second, the nonmovant "may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. Where the nonmovant attempts to carry this burden instead with nothing more "than a repetition of his conclusional allegations, summary judgment for the [movant is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing Fed.R.Civ.P. 56(e)).

         DISCUSSION

         I. Contract Related Claims and Liability

         A. Breach of Contract

         Plaintiff and Defendants have filed cross motions for summary judgment on Plaintiff's claim of breach of contract against WFD. Plaintiff argues that the record supports all of the elements of a breach of contract claim and asserts that the amount owed to Plaintiff under the contract that it had with WFD is not in dispute. Defendants argue that Plaintiff's claim fails because Plaintiff has been paid in full for the contract between WFD and Plaintiff out of the $75, 000 settlement between Plaintiff, Sunshine Heifers, and FNB South. Moreover, Defendants contend that to the extent Plaintiff disputes that it has been paid in full, a material dispute of fact exists as to how the proceeds from the $75, 000 settlement are to be applied.

         In Georgia, the elements of a breach of contract claim are "(1) a valid contract; (2) material breach of its terms; and (3) damages arising therefrom." Brooks v. Branch Banking & Tr. Co., 107 F.Supp.3d 1290, 1295 (N.D.Ga. 2015) (citation omitted). "To constitute 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 (2018).

         First, Pete Wright, acting by or through WFD as the owner and managing member, was the buyer, and Plaintiff was the seller. Second, the consideration in this case was an exchange of cattle sent in loads from Plaintiff s farm in North Carolina to WFD's dairy property in Georgia in exchange for payment by WFD. Specifically for WFD, it is undisputed based on invoices in the record that WFD purchased two loads of cattle from Plaintiff on or around February 2, 2017, for $16, 775.00 and on June 5, 2017, for $96, 800.00. This money-along with the balance owed by LACH-was to be to be paid out of milk check assignments from an account with Maryland and Virginia Milk Producers Cooperative, Inc. This milk check assignment originated with LACH but was changed to WFD after WFD took over LACH's milking operations once the lease with LACH was terminated. Other money was paid directly from Pete Wright to Plaintiff (for LACH's debts), see dkt. no. 104-10 at 2 (showing a payment of $17, 000 on August 22, 2017), and a payment of $68, 000 was paid to Plaintiff on WFD's behalf from the Gutman sale, dkt. no. 104-2 at 22, 37.[10] Moreover, WFD accepted the deliveries of cattle from Plaintiff, and Plaintiff accepted WFD's payments. These payments and the acceptance of the cattle deliveries, along with other documentary evidence of the invoices and statements of accounts, demonstrate the Parties' assent to the terms of the contract-delivery in exchange for payment via milk assignment-and the subject matter of that contract-the purchase of cattle. Thus, the Court finds that Plaintiff and WFD had a valid contract.

         Plaintiffs argue that WFD breached this contract by not paying fully for the cattle. Defendant does not dispute this assertion, but instead, argues that any payment obligation owed by WFD to Plaintiff has been fulfilled. First, it is undisputed that WFD's statements of account shows that WFD owed $44, 950.97 to Plaintiff for the cattle in September of 2017. The record demonstrates that WFD has not paid Plaintiff this remaining amount. However, Defendants argue that this payment obligation has been satisfied by a $75, 000 payment to Plaintiff out of the settlement with Sunshine Heifers and FNB South. Defendants believe that this $75, 000 payment should be credited to WFD's debt because WFD sold its remaining cattle on October 6, 2017, in the Final Cattle Sale, and they allege that the $75, 000 settlement money was distributed from the proceeds of that cattle sale.

         However, despite the fact that Plaintiff admits the $75, 000 came from the trust account that contained the funds from the Final Cattle Sale, dkt. no. 118-1 ¶ 69, Defendants have not pointed to any evidence in the record to establish that the $75, 000 settlement payment fulfills WFD's contractual debt to Plaintiff. The trust account holding that money included funds owed to Sunshine Heifers and FNB South. Plaintiff, FNB South, and Sunshine Heifers disputed how much each of the three parties were entitled to from the trust account. Additionally, Plaintiff had claims against FNB South and counterclaims against Sunshine Heifers that included tort claims. Thus, to meet their burden Defendants would have to show that despite these facts, evidence in the record shows that the $75, 000 in the settlement payment came from funds that WFD owed to Plaintiff, not funds owed to FNB South or Sunshine Heifers. From the standpoint of the moving party in their Motion for Summary Judgment, without pointing to any evidence in the record, Defendants fail to show the absence of a genuine issue of material fact that the $75, 000 settlement covers WFD's debts to Plaintiff under the breach of contract claim. From the standpoint of the non-moving party responding to Plaintiff's Motion for Summary Judgment, Defendants fail to point to evidence in the record that creates a genuine issue of material fact as to Plaintiff being paid in full under the contract. Thus, the Court finds that Plaintiff and WFD had a contract, WFD breached that contract through non-payment, and Plaintiff has suffered damages in the remaining balance of $44, 950.97 as evidenced by the statement of account.

         Therefore, with respect to Count One against WFD, Plaintiff's Motion, dkt. no. 104, is GRANTED and Defendant WFD's Motion, dkt. no. 101, is DENIED. Because Plaintiff has an adequate remedy at law under Count 1 for breach of contract, the Parties' Motions with respect to Count 2 for promissory estoppel and Count 3 for unjust enrichment are hereby DENIED as MOOT.

         B. ...


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