Spearman et al v. Wyndham Vacation Resorts, Inc. et al

Filing 148

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 11/10/2014. (KAM, )

FILED
2014 Nov-10 AM 09:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
WILLIAM M. SPEARMAN, et al.,
Plaintiffs;
vs.
WYNDHAM VACATION
RESORTS, INC., et al.,
Defendants.

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7:11-cv-03960-LSC

MEMORANDUM OF OPINION
Before the Court is Defendants Wyndham Vacation Resorts, Inc. and Wyndham
Vacation Ownership’s motion for summary judgment. (Doc. 78). Also pending is a
motion to strike portions of the Plaintiffs’ undisputed fact section and certain exhibits
admitted in support of the Plaintiffs’ response to Defendants’ motion for summary
judgment. (Doc. 129). For the reasons stated below, the motion for summary judgment
is due to be granted in part and denied in part, while the motion to strike is due to be
denied as moot.

Page 1 of 39

I.

Facts1
Defendants Wyndham Vacation Resorts, Inc. and Wyndham Vacation

Ownership (collectively “Wyndham”) are one of the largest timeshare companies in
the world.2 Wyndham develops and sells vacation ownership interests, which are
reflected by an allocation of “points” proportionate to each owner’s interest. These
points can be used to make reservations at various resorts.
Plaintiffs William M. Spearman (“Mr. Spearman”) and Young-Rang Spearman
(“Mrs. Spearman”), together with a trust created by the Spearmans known as the
Spearman Family Trust (“Spearman Trust”), own approximately 15,600,000
Wyndham points. They are among the largest Wyndham point holders in the world
and are Platinum VIPs, the highest level of a three-tiered VIP benefit program.
Plaintiffs purchased some of their points directly from Wyndham, but accumulated
most of their points through purchases from third-party owners.
Plaintiffs made an initial timeshare purchase from Defendants in 2001, but

1

The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed
to be undisputed, their respective responses to those submissions, and the Court’s own examination
of the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the
nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.
2002). These are the “facts” for summary judgment purposes only. They may not be the actual
facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).
2

Wyndham was formerly known as Fairfield Resorts, Inc. However, for ease of
understanding this court will refer to the timeshare company as Wyndham throughout this opinion.
Page 2 of 39

rescinded the contract because Mr. Spearman believed he had been tricked into
making the purchase by the salesperson. After later discussing the possibility and
mechanics of running a timeshare rental operation using Wyndham points, Mr.
Spearman began to purchase Wyndham points from third parties in August of 2003.
Mr. Spearman made his first purchase directly from Defendants on September
4, 2003. The 2003 purchase was made from Wyndham salesman Stan Banks at the
Fairfield Glade resort in Tennessee. While making the sale, Stan Banks represented
to the Plaintiffs’ that they could rent out their points; that they could make enough
money renting their points to cover their expenses; that they could start a rental
business using points; and that they could use Wyndham’s systems to run their rental
business. In 2005, the Plaintiffs’ made another purchase of points directly from
Wyndham, at which time the two Wyndham sales personnel involved in the sale made
these same representations to the Plaintiffs. On February 16, 2006, another Wyndham
sales person made these same representations to the Plaintiffs while making a sale of
Wyndham points. The Plaintiffs’ final purchase of points directly from Wyndham
occurred on June 10, 2006, where the sales personnel again made the same
representations to the Plaintiffs concerning the ability to rent points, run a rental
business, and do so using Wyndham’s systems. While they no longer purchased any
points directly from Wyndham after this point, the Plaintiffs did continue to purchase
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points from third parties. Plaintiffs’ final purchase of Wyndham points of any kind
came on April 18, 2011.
Wyndham has an internal sales compliance manual that establishes standards
for sales presentations. That manual explicitly describes a variety of prohibited sales
practices, including promoting the rental of points as a reason for purchasing
additional timeshare units. The manual contained specific provisions stating that:
•

Discus ing the likelihood of an owner being able to rent the
-s
product or the amount an owner could expect to receive for the
rental of the product is prohibited.

•

Providing examples, third party experiences, opinions regarding
the amount an owner could expect to receive, or indicating that
owners typically receive a certain amount of money when renting
their timeshare is prohibited.

•

Suggesting that an owner can rent their timeshare to cover their
maintenance fees or that an owner can pay for their purchase by
renting out their timeshare is prohibited.

•

Recommending or endorsing a particular rental company is
prohibited.

Page 4 of 39

(Doc. 123-3 at 3.3)
Notwithstanding these prohibitions, Plaintiffs have introduced evidence to show
that Wyndham sales personnel regularly promoted the potential income from the
rental of points when encouraging customers to make purchases. This evidence
includes the testimony of several former Wyndham employees who testified that, with
encouragement from management, sales representatives would discuss the promise of
rental income in “the thousands of dollars,” (Doc. 123-4 at 26,) the likelihood of
renting out properties, (Doc. 123-8 at 9,) success stories from other Wyndham owners
who had used their points to rent out properties, (Id. at 18,) and the idea that rental
income could offset the cost of purchasing and owning a timeshare interest. (Id. at 11.)
Former Wyndham employees testified that the “rental pitch” was used extensively
by Wyndham salespeople and that “higher ups” in the company were well aware of
the practice, (Id. at 14,) and that salesmen were specifically instructed to use the
“rental pitch” and promises of rental income when speaking to buyers. (Doc. 123-4
at 26.)
Wyndham owners who accumulate a certain amount of points are eligible for
membership in the FairSharePlus VIP Program (“VIP Program”), which offers special

3

Unless otherwise noted, pinpoint citations refer to CM/ECF document stamp pagination.
Page 5 of 39

benefits. Each successive membership level offers greater benefits than are available
at lower levels. VIP benefits are particularly advantageous to owners like the Plaintiffs
who use their points to operate vacation rental businesses, and the continued existence
of the VIP membership benefits has a tangible effect on the profitability of such
businesses.
Wyndham published a yearly members directory, which detailed the benefits
available to Wyndham owners and the membership rules for the program. The
members directory is a lengthy publication with hundreds of pages. Included within
each directory is a table outlining the VIP Program benefits available to VIP owners.
In 2003, Wyndham placed a small-print disclaimer at the bottom of the VIP Program
benefits table which provided that benefits were subject to change without notice. This
was again modified in 2006 to say that benefits were subject to change or elimination
without notice. Mr. Spearman has acknowledged receipt of the member directory
every year.
Wyndham was aware that the Plaintiffs were using their points to operate a forprofit rental business, and the Plaintiffs’ situation was discussed among several upper
level Wyndham employees. However, when making purchases from Wyndham,
Plaintiffs signed documents stating that the purchases were made “for our own
personal vacation use and enjoyment,” (Doc. 77-36 at 4; Doc. 77-37 at 7; Doc. 77-38
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at 5; Doc. 77-39 at 4,) and that Wyndham did not guarantee to assist in the rental of
Plaintiffs’ points. (Doc. 77-36 at 4; Doc. 77-37 at 7; Doc. 77-38 at 5; Doc. 77-39 at 4.)
The contract documents also provided that any representations made outside of a
delineated list of documents could not be relied on and were not part of the purchase
agreement. (Doc. 77-36 at 4; Doc. 77-37 at 7; Doc. 77-38 at 5; Doc. 77-39 at 4.)
As early as 2005, Wyndham began to notice problems associated with allowing
a group of large point owners, sometimes referred to as “Megarenters,”4 to run large
rental businesses using Wyndham points. A Wyndham internal presentation from 2005
noted that the company supported owners running rental businesses at the time, but
recommended limiting transactions and tightening rules because of the negative effects
Megarenters were having on Wyndham’s business. A March 2006 presentation
recommended altering many of the VIP Program benefits, such as limiting the number
of free guest confirmations available to VIPs, changing the VIP cancellation policy, and
limiting the ability of VIPs to upgrade their rooms, in order to deal with the problems
created by Megarenters.
Many of these changes were actually implemented on July 15, 2006. Among

4

Wyndham employees sometimes used the term “Megarenter” to describe high-volume
owners, such as the Plaintiffs, who used their points to operate rental businesses. The exact origin
and scope of the term within Wyndham are unclear, and the Court uses the term within the opinion
solely for convenience.
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these changes were a change in the upgrade policy from allowing VIP owners to
upgrade a reserved unit to the largest available unit to only allowing an upgrade to the
next larger unit available. Another change was that VIPs would only receive free guest
confirmations if the guest was actually traveling with a VIP member. After hearing
about the potential change to the guest confirmation policy, Mr. Spearman created
the Spearman Trust in order to have additional “owners” of his Wyndham Points
available to check guests into resorts, and in order to “protect himself” if Wyndham
“successfully put [him] out of business with one of these rule changes.” (Doc. 77-1 at
13.) However, after outcry from owners Wyndham ultimately decided not to
implement the rule change regarding guest confirmations. (Id. at 12.)
Wyndham continued to implement rule changes that had the effect of restricting
rental activity. In 2007, Wyndham changed the rule giving VIP owners unlimited free
guest certificates to one providing a tiered system for VIP owners, starting out with 5
free guest confirmations per year and topping out with 15 free guest confirmations per
year for every million points owned for VIP Platinum owners. In 2008, Wyndham
made further changes, including a significant increase in the guest confirmation fee for
confirmations in excess of the limited complimentary amount, changed the
cancellation policy from same day to 15 day, and created a “Do Not Sell” list so that
Megarenters would not be taken on tours and marketed to by Wyndham sales
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personnel. A Wyndham employee noted in an internal email that these changes were
“implemented to impact the profitability of the Megarenter’s rental activity.” (Doc.
123-31 at 3.)
Sometime in 2010, Wyndham began work on a new computer software system
known as “Voyager.” The program, which has not yet been implemented, is
apparently intended to more strictly enforce the existing rules and close what
Wyndham views as loopholes, such as the ability to cancel and then immediately rebook a reservation. (Doc. 123-53, at 4-5.) Wyndham added a provision to the 2011-2012
member directory which stated that “The Program is for a Member’s own personal
use and enjoyment and not for any commercial purposes.” (Doc. 123-75 at 3.)
Additionally, an enforcement provision was added, stating that “manipulation of the
program rules and/or Wyndham employees to gain an unfair advantage” could result
in refusal of services or access to Wyndham services and employees for a duration of
time determined at Wyndham’s sole discretion. (Id. at 4.)
The final relevant change came in 2012. Wyndham points contracts designate
a “use year,” which is the year long term in which points could be used. Megarenters
would intentionally purchase contracts with different use years, so that they would still
be able to make use of points gained at the end of one contract’s use year on a contract
with a different use year. In 2012, Wyndham changed the rules so that all owners who
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had contracts with different use years would have all of their contracts converted to
a single use year. In Plaintiffs’ case, their contracts were all converted to a JanuaryDecember use year. All of the contracts that Plaintiffs had purchased directly from
Wyndham already had a January-December use year, but several of the contracts that
the Plaintiffs had purchased from third parties originally had different use years.
Mr. Spearman was not one to suffer in silence what he saw as negative changes.
Throughout the period when Wyndham was making these changes to the VIP program
benefits, he regularly complained and asserted his distrust of Wyndham through emails with Wyndham employees and online message board postings. On Dec. 25, 2008,
Mr. Spearman posted that then Wyndham VP Deanne Gabel (“Gabel”) had “lied at
least three times” about guest certificates, and said he could only recall one thing in
the recent past about which Gabel had been completely truthful. (Doc. 77-17 at 6-7.)
On Feb. 27, 2009, Mr. Spearman made an online post about “Wyndham taking
draconian measures to limit your ability to rent” points. (Doc. 77-13 at 3.) On Jan 22,
2009, he posted that Wyndham was “trying to eliminate their competition to rent
timeshares.” (Doc. 77-15 at 2.) On Feb. 28, 2009, Mr. Spearman posted that
“Wyndham is destroying what we own.” (Doc. 77-18 at 2.) In 2008, he wrote in an email to Gabel that he was “starting to join the conspiracy theory that there are
elements within Wyndham that are purposely trying to make large [owners’] lives
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difficult,” (Doc. 77-29 at 2), and in another email that he “would be hiding as well if
I were an honorable person who was the fall guy for a crooked company.” (Doc. 77-32
at 2.) Mr. Spearman was in regular contact with Gabel, who assisted him with account
issues on multiple occasions, and informed him that if he filed a lawsuit against
Wyndham she would no longer be able to work with him directly and he would have
to contact her only in writing.
Plaintiffs filed this lawsuit on November 18, 2011.
II.

Standard
Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). There is a “genuine dispute” as to a material fact

“if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248. The trial judge should not weigh the evidence but must simply determine
where there are any genuine issues that should be resolved at trial. Id. at 249.
In considering a motion for summary judgment, trial courts must give deference
to the non-moving party by “considering all of the evidence and the inferences it may
yield in the light most favorable to the nonmoving party.” McGee v. Sentinel Offender
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Services, LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (citing Ellis v. England, 432 F.3d
1321, 1325 (11th Cir. 2005)). In making a motion for summary judgment, “the moving
party has the burden of either negating an essential element of the nonmoving party’s
case or showing that there is no evidence to prove a fact necessary to the nonmoving
party’s case.” Id. Although the trial courts must use caution when granting motions
for summary judgment, “[s]ummary judgment procedure is properly regarded not as
a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as
a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555 (1986).
III.

Discussion
Wyndham asserts that summary judgment is due to be granted on each of the

Plaintiffs’ claims because they all fail for various procedural or substantive reasons.
Each of the Plaintiffs’ claims will be addressed below.
A.

Fraud

The Plaintiffs allege that Wyndham committed fraud by representing that the
Plaintiffs would be able to rent their points, earn enough money doing so to cover their
expenses, start a rental business with their points, and have the support of Wyndham’s
systems and facilities in running a rental business. The Plaintiffs argue that these
representations were fraudulent because Wyndham was actively working against
Megarenters through their “Megarenter strategy” and its plans concerning
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“Voyager,” and ultimately altered the Membership Directory to state that points
could not be used for any “commercial purpose,” which the Plaintiffs argue forbids
their rental business.
The necessary elements of a fraud claim are as follows: “(1) there must be a false
representation; (2) the false representation must concern a material existing fact; (3)
the plaintiff must rely upon the false representation; and (4) the plaintiff must be
damaged as a proximate result.” Jarrard v. Nationwide Mut. Ins. Co., 495 So. 2d 584,
586 (Ala. 1986). Expressing an opinion is not treated “as a statement of ‘existing fact’
under the fraud statute,” unless the plaintiff supplies proof of an intent to deceive at
the time the statement was made. Crowne Investments, Inc. v. Bryant, 638 So. 2d 873,
877 (Ala. 1994). Similarly, when the alleged misrepresentation relates to a future event,
to constitute fraud the plaintiff must show that “at the time the statement or promise
about the future was made, there was actual fraudulent intent not to perform the act
promised and intent to deceive plaintiff.” D.H. Holmes Dept. Store v. Feil, 472 So. 2d
1001, 1003 (Ala. 1985). The failure to perform a promised act “is not in itself evidence
of intent to deceive at the time a promise is made.” Id. “Speculation is insufficient to
prove that a party had a present intent to deceive.” McCutchen Co. v. Media General,
Inc., 988 So. 2d 998, 1003 (Ala. 2008).
In Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256, 258 (Ala. 1991),
Page 13 of 39

the Alabama Supreme Court addressed statements made by a car salesman who sold
the plaintiff on a yet to be released car. Although the car was not available for sale at
the time, the salesman told the plaintiff that the car was a “fine car,” well-suited for
the plaintiffs purposes, and that the car was dependable and reliable. Id. The Alabama
Supreme Court determined that these statements were “statements of opinion
amounting to nothing more than ‘puffery’ or predictions concerning the anticipated
performance of” the car, and therefore the plaintiff had failed to make out a fraud
claim. Id. at 259.
The McCutchen case involved the sale of advertising, where the seller told the
plaintiff that he could expect at least 50 new clients per month from the purchase of
the advertising package. 988 So. 2d at 1000. The sales person admitted that the
statement could induce someone to enter into the advertising contract, and her
superviser testified that he could see no other reason to make such a statement other
than to induce the buyer to enter into the contract. Id. The court found that this
statement was not a misrepresentation of a material fact but a statement of opinion or
prediction as to future events. Id. at 1002. The court also found no evidence of intent
because the defendants’ admissions did not “demonstrate that [the sales person]
thought the statement was untrue or that she had a present intent to deceive when she
made the statement.” Id. at 1003. See also D.H. Homes Dept. Store, 472 So. 2d at 1004
Page 14 of 39

(statement that a treatment would effect a permanent removal of plaintiffs’ facial hair
related to a future event, and the treatments failure to successfully do so was not
evidence of a present intent to deceive when the statement was made.)
In the case at hand, it is clear that when the representations were made to the
Plaintiffs in 2003-2006 they were accurate statements of fact, because the Plaintiffs did
indeed start a business renting out their points using Wyndham’s systems. These
statements can only be actionable fraud to the extent that they told the Plaintiffs that
they would be able to run a rental business using Wyndham’s systems in the future.
Such representations clearly relate to future events and therefore to make out a prima
facie case the Plaintiffs must provide evidence of intent to deceive at the time the
statements were made.
The Plaintiffs argue that Wyndham’s internal sales policies prohibiting the
“Rental Pitch,” the inclusion of the “no commercial purpose” language in the 20112012 membership directory, statements by Wyndham that the program was always
intended for a member’s personal use and not for commercial purposes, and the fact
that the representations were made at the same time as the “Megarenter strategy” and
Project Voyager were being developed, demonstrate such an intent to deceive. These
arguments will be addressed in turn.
First, both parties agree that the sales policies forbidding the use of the “Rental
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Pitch” were in place to prevent Wyndham’s timeshares from being classified as
securities and becoming subject to securities regulations. (Doc. 123-13 at 10-11; Doc.
123 at 10.) The “Rental Pitch” was not forbidden by Wyndham because Wyndham or
its employees believed it was false. Therefore the existence of these policies provides
no evidence of intent to deceive for the purpose of proving Plaintiffs’ fraud claim.
Turning now to the “no commercial purpose” language, the inclusion of this
language in the 2011-2012 member directory cannot possibly establish a present intent
to deceive when the representations were made in 2003-2006 because it happened a
number of years afterward. However, the Plaintiffs also point to statements by
Wyndham that the program was always intended to be for personal use and not for
commercial purposes. As an initial matter, the representations were not false at the
time they were made as evidenced by the fact that the Plaintiffs did run a profitable
rental business with the support of Wyndham’s systems from 2003 to 2006. Second,
the mere fact that Wyndham intended the program to be for personal use, rather than
commercial purposes, does not establish that Wyndham’s sales personnel intended to
deceive the Plaintiffs’ by informing them that they could run a rental business with the
support of Wyndham’s systems. This is especially true because the Plaintiffs were able
to run a business renting out their points with the help of Wyndham’s systems from
2003, when they made their initial purchase of Wyndham points, up until the present
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day, (Doc. 77-1 at 37,) and that the business has been profitable every year. (Doc. 77-1
at 127.)
Finally, the “Megarenter strategy” and Project Voyager also fail to establish an
intent to deceive at the time the representations were made. Work did not begin on
Voyager until 2010, years after the relevant statements were made by Wyndham’s
sales personnel. Wyndham was formulating a “Megarenter strategy” beginning in
2005, but the Plaintiffs’ own extensive evidentiary submissions make it clear that this
was an evolving, changing strategy. According to the Plaintiffs submission, the
Megarenter strategy developments were a reaction to the Plaintiffs’ conduct in
successfully running a rental business with their points. There is no evidence that in
2006, when the last of the relevant representations was made, that the Megarenter
strategy was intended to shut down rental by owners; rather, at that point the strategy
only involved changing the rules of the program to help reduce the perceived problems
created by Megarenters. Therefore, the existence of this strategy does not establish an
intent to deceive at the time the representations were made.
The Plaintiffs have failed to provide any proof of the falsity of the
representations when they were made or a present intent to deceive at that time, and
therefore have failed to make out a prima facie case of fraud. In fact, the Plaintiffs
continue to successfully rent out points using Wyndham’s systems. (Doc. 77-1 at 37.)
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The Plaintiffs have produced less evidence of intent to deceive than the unsuccessful
plaintiffs in McCutchen and D.H. Homes Dept. Store, who were at least able to show that
the statements concerning future events proved to be ultimately untrue. The Plaintiffs
have failed to make out a prima facie case of fraud, and therefore summary judgment
is due to be granted concerning this claim.
B.

Suppression5

The Plaintiffs also assert a claim for fraudulent suppression. They argue that the
relationship between the Plaintiffs and Wyndham required Wyndham to disclose its
intent to eliminate or reduce the benefits offered under the VIP program, to study
Megarenters and implement specific program changes designed to target them, and
to prevent Plaintiffs from being able to run their business within Wyndham’s systems.
To make out a valid claim, the Plaintiffs must show “(1) a duty on the part of the
defendant to disclose facts; (2) concealment or nondisclosure of material facts by the
defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her
injury.” Freightliner, L.L.C. v. Whatley Contract Carriers, L.L.C., 932 So. 2d 883, 891
(Ala. 2005) (quoting Lambert v. Mail Handlers Benefit Plan, 682 So. 2d 61, 63 (Ala.

5

Both Wyndham and the Plaintiffs do not make separate arguments concerning the merits
of the suppression claim apart from their general arguments on the fraud claims. However, because
there are different requirements for a fraudulent suppression and fraudulent misrepresentation claim,
the Court will address them separately.
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1996)). “The obligation to communicate may arise from the confidential relations of
the parties or from the particular circumstances of the case.” Ala. Code § 6-5-102.
When looking to the “circumstances of the case” to determine whether there is a
duty, the court should look to “(1) the relationship of the parties; (2) the relative
knowledge of the parties; (3) the value of the particular fact; (4) the plaintiff’s
opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant
circumstances.” Bethel v. Thorn, 757 So.2d 1154, 1162 (Ala. 1999) (quoting State Farm
Fire & Cas. Co. v. Owen, 729 So.2d 834, 842-43 (Ala. 1998)). The existence of a duty
is a legal question to be determined by the trial court. Ex Parte Farmers Exchange Bank,
783 So.2d 24, 27 (Ala. 2000). “Superior knowledge of a fact, without more, does not
impose upon a party a legal duty to disclose such information.” State Farm Fire and
Cas. Co. v. Owen, 729 So.2d 834, 843 (Ala. 1998). If no special relationship or
circumstance creates a duty to disclose, “no duty to disclose exists when information
is not requested.” Bank of Red Bay v. King, 482 So.2d 274, 285 (Ala. 1985). However,
if a party undertakes to speak, even without a duty, he or she must also “disclose those
facts that are material to the ones already stated so as to make them truthful.”
Freightliner, 932 So. 2d at 895. At the same time, the party “does not assume a duty to
divulge all information that may be or may become relevant to the other party.” Id.
(emphasis in original).
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The initial question in the analysis of this suppression claim is whether
Wyndham owed the Plaintiffs a duty to disclose information about their plans
concerning Megarenters. The relationship between a timeshare salesman and his or
her customers is not a confidential relationship. See Sirmon v. Wyndham Vacation
Resorts, Inc., 922 F.Supp.2d 1261, 1286 (N.D.Ala. 2013) (finding no confidential
relationship in a similar case between Wyndham and another customer; therefore, the
duty to disclose must arise out of the “circumstances of the case”).
The analysis of these circumstances begins by looking at the relationship of the
parties. While the parties were not in a confidential relationship, they still interacted
with each other regularly—the Plaintiffs made regular use of Wyndham’s systems and
personnel in order to run their rental business, and the evidence establishes that Mr.
Spearman was in regular e-mail and phone contact with various Wyndham personnel
such as Gable. At the same time, the evidence makes clear that the Plaintiffs distrusted
Wyndham from the very start of their relationship. Mr. Spearman stated that he
became skeptical of Wyndham after his first purchase (which he rescinded, because he
believed he had been tricked into it by the salesman), and that his skeptical attitude
towards Wyndham increased as time went on. (Doc. 77-1 at 35.) The evidentiary
record provides many examples of this skepticism, such as calling Wyndham a
“crooked company” on October 10, 2008, (Doc. 77-32 at 2) and expressing a belief
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that Gabel was lying to owners on Dec. 25, 2008. (Doc. 77-17 at 6-7.) Finally, the last
time the Plaintiffs purchased points directly from Wyndham was in 2006, and the
Plaintiffs acknowledge that at some point they were put on a “Do Not Sell” list,
meaning Wyndham specifically instructed its sales personnel not to attempt to sell the
Plaintiffs further contracts. (Doc. 77-1 at 75.) While Mr. Spearman also testified that
despite being told he was on a “Do Not Sell” list, Wyndham sales personnel did
attempt to take him on further sales tours several times, he also testified that he
refused these offers. (Id.) Thus, while the Plaintiffs and Wyndham maintained an
active, longstanding relationship that was closer than the ordinary relationship
between a buyer and a seller, the Plaintiffs were at the same time very skeptical
towards Wyndham, and Wyndham in fact stopped actively selling to the Plaintiffs.
The next consideration is the relative knowledge of the parties. As the allegedly
suppressed information relates to internal Wyndham plans, Wyndham obviously had
full knowledge of the suppressed information. However, the Plaintiffs were not
oblivious to Wyndham’s plans to target Megarenters and alter the program and
benefits in order to hinder them. For instance, Mr. Spearman wrote in e-mails to Gabel
that he was starting to believe that people at Wyndham were “purposely trying to
make large [owners’] lives difficult,” (Doc. 77-29 at 2,) and that following the rule
changes in 2006 she had told him that she would “continue to monitor owners who
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work within the loopholes and try to ‘stay ahead of them’ with additional changes as
necessary.” (Doc. 123-76 at 7.) Mr. Spearman also made online posts that he “believed
Wyndham was purposefully making rental more difficult for owners in favor of its own
rental arm,” (Doc. 77-14 at 3,) and that Wyndham was “‘cracking down’ on owners
like [the Plaintiffs].” (Doc. 77-15 at 2.) This evidence, and Plaintiffs’ further e-mail
and online posting history, demonstrate that the Plaintiffs had some knowledge, or at
least belief, that Wyndham had a plan or intent to harm megarenters. While Wyndham
undoubtedly had superior knowledge of their own internal plans, this was not a
situation where the Plaintiffs were completely in the dark.
The next consideration is the value of the facts allegedly suppressed. If, as the
Plaintiffs contend, Wyndham has plans to completely eliminate Megarenters’
businesses, this would obviously be very valuable information to the Plaintiffs, who
possess more Wyndham points than they could ever use for their own vacation use
alone.
The final applicable consideration is the Plaintiffs’ ability to discern the
undisclosed information. The Plaintiffs would likely not have been able to determine
the full extent of Wyndham’s plans through independent investigation or research.
However, the Plaintiffs were able to determine the existence of a general antiMegarenter scheme from the comments Wyndham made about large owners
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“hoarding” inventory and causing problems, (Doc. 77-1 at 56; Doc. 77-9 at 3,) and the
many rule changes that the Plaintiffs believed, even at the time, were intended to limit
owners’ rental ability in favor of Wyndham’s own rental arm. (Doc. 77-14 at 3; Doc.
77-3 at 3.) Moreover, the Plaintiffs signed documents along with each of their
purchases from Wyndham that stated the purchases were for “personal vacation use
and enjoyment,” and acknowledged that Wyndham did not guarantee to assist in the
rental of owners’ points. (Doc. 77-36 at 4; Doc. 77-37 at 7; Doc. 77-38 at 5; Doc. 77-39
at 4.) This language is very similar to the language in the 2011-2012 member directory,
stating that the program was for a “Member’s own personal use and enjoyment and
not for any commercial purposes” that the Plaintiffs argue demonstrates Wyndham’s
intent to eliminate rental activity. While Plaintiffs may have lacked the ability to
independently discover the full extent of Wyndham’s plans, they were able to discover
the general existence of a scheme by Wyndham to limit owners’ rental activity.
After considering these factors, it is evident that the relationship between the
parties in this case does not create a legal duty to disclose on the part of Wyndham.
Therefore, the Plaintiffs can only make out a claim of suppression if they made a direct
inquiry on the subject to Wyndham, or Wyndham voluntarily undertook to speak in
a way that required full disclosure.
The Plaintiffs argue that Mr. Spearman asked direct questions of Wyndham
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on this subject, but they do not point to any evidence in support of this assertion.
Plaintiff’s evidentiary submissions do contain Gabel’s deposition, which states that at
a meeting with Mr. Spearman in May of 2006 she informed him that there would be
“no surprises and no changes that would adversely affect [his] ownership.” (Doc. 12314 at 15.) However, the changes that were currently planned at that point in time were
actually instituted a few months later, and therefore even if this constituted fraudulent
suppression in response to a direct question by Mr. Spearman (a conclusion which on
its own would require the Court to make several inferential leaps from the available
evidence), Mr. Spearman should have discovered the fraud when the rule changes
were instituted . In that case, the two year statute of limitations on a suppression claim,
a defense plead and argued by Wyndham, would have run long before the instant
action was filed. See Ala. Code § 6-2-38(l) (fraudulent suppression has a two year
statute of limitations).
The Court was only able to discover a few further pieces of evidence in the
Plaintiffs’ voluminous evidentiary submission that could lend any support to the idea
that Mr. Spearman asked a direct question on this subject, or that Wyndham
undertook to speak. A June 13, 2005 email from Mr. Spearman states that Gabel
suggested that he take a “wait and see” approach in response to his concerns over
Wyndham’s approach to VIP benefits. (Doc. 123-77 at 5.) The Plaintiffs also point to
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an August 4, 2010 email from Gabel to Spearman, in response to Mr. Spearman
complaining about Wyndham call centers, stating that Project Voyager would fully
automate Wyndham’s service, which would in turn improve consistency and “ensure
improved service for our owners.” (Doc. 123-61 at 2.) This evidence simply does not
support the assertion that Mr. Spearman ever made a direct inquiry that would require
Wyndham to fully disclose any of its plans. Additionally, neither of the statements
made by Gabel are of the sort that would constitute an affirmative undertaking to
speak thus requiring full disclosure. To hold otherwise would be to require a speaker
to affirmatively disclose the full details of anything he or she happens to reference
anytime it could have an effect on the listener. This is especially true in the case of the
Voyager email, which was sent in August of 2010 during the early stages of Project
Voyager, which has still not actually been implemented.
Under the circumstances of this case, Wyndham did not have a duty to inform
the Plaintiffs of its plans and intent to make changes in order to limit and control rental
activity. The evidence also does not establish that the Plaintiffs ever made direct
inquiries or that Wyndham undertook to speak in a way that could also have
established a duty of full disclosure. Finally, even if a duty to disclose did exist, the
evidence shows that the Plaintiffs continue to profitably rent out their points, (Doc.
77-1 at 127,) and therefore the only evidence available as to damages, one of the
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required elements of a fraudulent suppression claim, are conclusory statements by the
Plaintiffs that their points have lost value or that their profits are lower than in the
past. Therefore, Plaintiffs have failed to make out a prima facie case of fraudulent
suppression and summary judgment is due to be granted on the Plaintiffs suppression
claim.
C.

Negligence; Wantonness; and Negligent and Wanton Hiring,
Training, and Supervision Claims6

The Plaintiffs allege that Wyndham’s actions of making changes to actively
damage Megarenters, engaging in deceptive sales tactics, and failing to follow its own
internal sales procedures were negligent and wanton. They also allege that Wyndham
negligently and wantonly failed to exercise reasonable care in the hiring, training,
supervision and retention of its employees.
Wyndham contends that all of the Plaintiffs’ claims based on negligence and
wantonness are barred by the statute of limitations. Alabama provides a two year
statute of limitations for each of these claims. Ala. Code § 6-2-38(l). Therefore, if the
Plaintiffs’ claims are based on injuries that accrued prior to November 18, 2009, they

6

In Defendants’ motion for summary judgment, as well as the Plaintiffs’ response and the
Defendants’ reply, the parties also discuss unjust enrichment and civil conspiracy claims that were
included in the Plaintiffs’ initial complaint. However, after the initial filing of the Defendants’
motion for summary judgment the Plaintiffs’ filed an amended complaint, (Doc. 116), which dropped
those causes of action, and therefore they will not be discussed by this Court.
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are barred by the statute of limitations.
The Plaintiffs argue that the savings clause of Ala. Code § 6-2-3 saves these
claims. This savings clause states that a fraud claim is not considered to have accrued
until the aggrieved party has discovered the acts constituting the claim. While the
statute on its terms only applies to fraud claims, the Alabama Supreme Court has held
that § 6-2-3 also applies to other claims where the defendants fraudulently conceal the
existence of the cause of action from the aggrieved party. DGB, LLC v. Hinds, 55 So.
3d 218, 224 (Ala. 2010); see also Holdsbrooks v. Central Bank of Ala., N.A., 435 So.2d
1250, 1251 (Ala. 1983).
The Plaintiffs only argument against the statute of limitations on these claims
is that the following facts were concealed from them by Wyndham until discovery in
the Sirmon case, thus tolling the statute of limitations: the existence and violation of
Wyndham’s internal sales manuals; Wyndham training its employees to lie to make
sales; the existence of the Megarenter strategy to eliminate Megarenters; and the
Voyager Projects’ functions to control inventory and stop the cancel/rebook option
to further this elimination of Megarenters. These contentions will be addressed in
turn.
First, there is the matter of Wyndham’s internal sales manuals. Under Alabama
law, a duty can be created out of a company’s own internal policies, but the Alabama
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Supreme Court has found this to be the case only where “the duty that supported the
negligence claim was a common-law duty arising from the foreseeability of physical
harm resulting from the defendant’s failure to follow its policies concerning the safety
of the public.” Armstrong Bus. Serv., Inc. v. AmSouth Bank, 817 So.2d 665, 680 (Ala.
2001). However, when the policy is intended for the company’s own benefit rather
than for the safety of the public, no cognizable duty to follow the policy is created. Id.
at 681; see also Flying J Fish Farm v. Peoples Bank of Greensboro, 12 So.3d 1185, 1194-95
(Ala. 2008) (no duty where bank’s policies are intended solely for the bank’s benefit).
In this case, according to both Plaintiffs and Wyndham, the relevant policies
forbidding using rental or potential rental income as part of the timeshare sales pitch
were in place so that the timeshares would not be considered securities and therefore
regulated under stringent securities regulations. (Doc. 123-13 at 10-11; Doc. 123 at 10.)
Avoiding classifying Wyndham’s timeshares as securities is clearly to Wyndham’s
benefit, and is not intended to benefit the Plaintiffs or protect the public from harm.
Therefore, no duty is created in Wyndham to follow that policy, no tortious liability
is created by Wyndham’s failure to do so, and the fact that the Plaintiffs were unaware
of the internal sales policy manual has no effect on the statute of limitations.
Second, the Plaintiffs’ online posting history demonstrates that they have long
been aware of the fact that Wyndham’s representatives were lying in order to make
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sales. On Mar. 11, 2009, Mr. Spearman posted that he had considered taking a job with
in-house sales at a nearby resort, but turned the offer down because Mrs. Spearman
told him that “the sales manager made a living at promises backed with only lies.”
(Doc. 77-6 at 3.) On Jan. 12, 2009, he posted that “[t]he ‘Statement of Understanding’
is the legal size two-page list of about 40 items that we affirm that we understand, even
though many of them are specifically written to inform us that what our salesman told
us are lies.” (Doc. 77-16, at 2.) On Feb. 28, 2009, he warned another online poster that
Wyndham salesmen would “take a testimonial like what [he] just said and lie to you
to make it seem like it is the norm.” (Doc. 77-18, at 2.) These postings make clear that
the Plaintiffs already believed that Wyndham salesmen lied in making their sales
pitches. While Plaintiffs may not have believed that Wyndham’s salesmen were
specifically trained to tell lies, they were certainly aware that the salesmen in Plaintiffs’
opinion told lies to make sales, which is all that is required for any of these actions to
begin to accrue. Therefore, this also does not prevent the statute of limitations from
having run.
Third, as discussed above in part III.A.1, supra, while Plaintiffs may not have
been aware of the specific term “Megarenter strategy,” they certainly repeatedly
expressed a belief that Wyndham had a strategy in place to harm Megarenters more
than two years before they filed this action. Therefore, the fact that the Plaintiffs were
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unaware of the name “Megarenter strategy” or the exact details of Wyndham’s plan
does not prevent the statute of limitations from having run under the § 6-2-3 savings
clause.
The Plaintiffs’ final argument against the statute of limitations on this group of
claims is Wyndham’s “Project Voyager,” and the new functions it will implement to
control inventory and prevent the cancel/rebook feature that is a particularly useful
part of the Plaintiffs’ rental business model. However, the Plaintiffs make it clear that
Voyager has not yet been implemented, and will be implemented sometime in
“2014/2015." (Doc. 123 at 32; Doc. 123-65 at 2). As pointed out by Wyndham, the
anticipation of a possible future development is not enough to overcome the statute
of limitations.
Because the Plaintiffs filed these claims outside of the applicable limitations
period, they will only go forward if Wyndham is estopped from asserting the statute
of limitations as a defense. When determining whether a defendant is estopped from
asserting the statute of limitations as a defense, the Court must “balance the purpose
of the statute of limitations with the injustice that would result from allowing the
defendants to claim it as a defense.” City of Birmingham v. Cochrane Roofing & Metal
Co., Inc., 547 So.2d 1159, 1167 (Ala. 1989). The Supreme Court of Alabama has
summarized the law applicable to determining whether a party is equitably estopped
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from asserting the statute of limitations as a defense in this way:
In Mason v. Mobile County, 410 So.2d 19 (Ala. 1982), this Court held that
if a defendant either fraudulently or innocently represents to the plaintiff
that he will remedy a problem, and relying on these representations the
plaintiff is induced not to file a lawsuit or take any action, the defendant
may be estopped from raising the statute of limitations as a defense.
Additionally, in Arkel Land Co. v. Cagle, 445 So.2d 858 (Ala. 1983), we
held that if a defendant represents that a lawsuit is unnecessary because
he intends to take care of the problem he is likewise estopped from
raising the statute of limitations as a defense.
Cochrane Roofing, 547 So. 2d at 1167. The type of action which is sufficient to prevent
a defendant from asserting the statute of limitations “must amount to an affirmative
inducement to the claimant to delay bringing action.” Seybold v. Magnolia Land Co.,
376 So.2d 1083, 1085 (Ala. 1979). The Court must also apply a “standard of
reasonableness” to these estoppel principles, looking to see whether a reasonable
person would have allowed the statute of limitations to expire based on the
defendant’s actions. Cochrane Roofing, 547 So. 2d at 1167; see also McCormack v.
AmSouth Bank, N.A., 759 So.2d 538, 543 (Ala. 1999).
In Mason v. Mobile County, the plaintiffs failed to sue based on alteration to a
drainage ditch that resulted in flooding to their home because the County assured
them that the problem would be fixed. 410 So.2d at 20. The Alabama Supreme Court
determined that the County was estopped from asserting the statute of limitations as
a defense because it had represented that it would correct the problem, and the
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plaintiffs had relied on those representations in choosing not to file a lawsuit. Id. at 21.
Similarly, in Sirmon, the plaintiff made multiple complaints about the loss of his VIP
benefits. 922 F.Supp.2d at 1278. Wyndham’s representatives responded with false
promises that the benefits would be restored, and responded to a demand letter
threatening legal action by promising that Wyndham would come up with a “complete
collaborative response” after “substantial amounts of research.” Id. After plaintiff
agreed to wait for this response, an internal Wyndham email said that they had
“bought some time” with the plaintiff. Id. In Sirmon, this Court determined that these
representations provided evidence of the defendant’s motive to lull the plaintiff into
not filing a lawsuit. Id.
The plaintiffs in Moore v. Nat’l Sec. Ins. Co., 477 So.2d 346, 347 (Ala. 1985)
attempted to purchase additional life insurance coverage on their already existing
policies but were instead sold brand new policies by their agent. Because the plaintiffs
were unaware that they had been sold new policies, they ceased making payments on
their already existing policies, causing them to lapse. Id. When the plaintiffs finally
discovered the error and spoke to their insurance company about it, they were told by
multiple people that company employees were “checking into the problem.” Id. No
corrective action was ever taken by the insurance company, but the plaintiffs did not
bring their fraudulent concealment suit against the company until two years later, after
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the statute of limitations had already run. Id. at 348. The Alabama Supreme Court
determined that the defendants were not estopped from asserting the statute of
limitations because the defendants “never assured [the plaintiffs] they would receive
all they believed they were entitled to receive” and had only given the plaintiffs
“vague assurances and did not affirmatively induce” them to inaction. Id.
The Plaintiffs argue that Wyndham should be estopped from asserting the
statute of limitations as a defense because of Mr. Spearman’s testimony and emails
showing that Gabel had helped him in the past, had informed him that if he brought
a lawsuit any further communication with her would have to be in writing, and had told
Mr. Spearman that she could not directly help him with his account any longer if he
brought a lawsuit. Mr. Spearman also testified that Gabel had “made it very clear
without coming right out and saying [Wyndham] is going to destroy your business if
you contact a lawyer or have a lawsuit against us.” (Doc. 77-1, at 72.)
These statements more closely resemble the “vague assurances” of Moore than
the affirmative inducements of Mason and Sirmon. A statement that Wyndham’s
representative would no longer be able to interact as freely with and provide special
assistance to Mr. Spearman should he bring a lawsuit is not a threat or an affirmative
attempt to get him to forego a lawsuit. Rather, it is a statement of the reality that the
relationship between parties changes when one of them brings a lawsuit against the
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other, especially when the defendant is a large corporation with a legal department that
would have an interest in controlling what the defendant’s representatives says after
a lawsuit is initiated. Finally, Mr. Spearman’s impression that Wyndham would
“destroy” the Plaintiffs if they ever brought suit, even if it rose to the level of an
“affirmative representation,” could not have been reasonably relied upon by the
Plaintiffs. The Plaintiffs’ suit is already essentially based upon the idea that
Wyndham’s actions were destroying his rental business. Therefore it was not
reasonable to delay bringing suit upon those actions because of an impression, based
upon unidentified statements, that Wyndham would destroy his business if he brought
suit. Therefore, Wyndham’s motion for summary judgment is due to be granted with
respect to Plaintiffs’ claims for negligence, wantonness, and negligent and wanton
hiring, training, and supervision.
D.

Breach of Contract

The Plaintiffs contend that Wyndham breached a contract by unilaterally
altering the “use years” on several of their contracts.7 In order to sustain this breach
of contract claim, the Plaintiffs must prove: “(1) the existence of a valid contract
7

The Plaintiffs are also seeking a judicial declaration that Wyndham does not have the right
to unilaterally change the “use year” in the Plaintiffs’ contracts. Because this question is obviously
closely related to whether Wyndham committed a breach of contract by changing the “use year,”
and neither party has addressed the declaratory judgment claim in relation to summary judgment,
that claim will either stand or fall with the breach of contract claim on summary judgment.
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binding the parties in the action, (2) his own performance under the contract, (3) the
defendant’s nonperformance, and (4) damages.” Ex parte Alfa Mut. Ins. Co., 799 So.
2d 957, 962 (Ala. 2001) (internal quotation marks omitted). Wyndham argues that
summary judgment is proper on the breach of contract claim for three reasons: because
Plaintiffs fail to cite to a breached contractual provision in a contract between the
Plaintiffs and Wyndham, because the Plaintiffs fail to include sufficient facts regarding
damages, and because the Plaintiffs fail to allege their own performance.
As a general matter, contract rights may be freely assigned unless an assignment
would add to or materially alter the duties or risks undertaken by the parties, the
assignment would violate a statute, or something in the contract restricts assignability.
See Stuart v. Ennis, 482 So. 2d 1168, 1171 (Ala. 1985). Wyndham contends that
Plaintiffs are unable to cite to any contractual provision that has been violated in any
contract between the Plaintiffs and Wyndham, because the “use year” on the
contracts Plaintiffs purchased directly from Wyndham have always been and still
remain from January to December. While this appears to be correct, the Plaintiffs’
other contracts, some of which had their use years altered, were bought on the resale
market from third parties. There is no apparent reason—and Wyndham has not
provided any—why these timeshare contracts, purchased from third parties, should
not be assignable, as almost all contracts are; or why the Plaintiffs’ purchase of the
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contract from a third party did not assign to the Plaintiffs the right to sue upon a
breach of that contract.
Wyndham also argues that, because the Plaintiffs have been unable to produce
the actual timeshare contracts that form the basis of the third party contracts,
Plaintiffs’ claim fails in that they are unable to point to a specific contractual provision
that Wyndham breached. The Defendants are correct that neither party has been able
to produce any actual contracts that have had their use year changed. However, the
Plaintiffs have produced evidence supporting the existence of a such a contractual
term. Among other things, the Plaintiffs have provided a deposition wherein a
Wyndham employee stated that all contracts have a “use year” after which their
points expire. (Doc. 123-72 at 212.) They have produced “Transfer of Ownership
Acknowledgements” for several contracts in which Wyndham acknowledged that the
Plaintiffs were now the owners of contracts purchased from third parties and
acknowledging a use year other than January-December. (Doc. 123-84.) They have also
provided testimony from Mr. Spearman that all of his contracts were altered to have
a January-December use year. (Doc. 77-1 at 79.) Taking all evidence and making all
inferences in favor of the non-movant, there is enough evidence for a reasonable jury
to determine that there was a term in these contracts, assigned to the Plaintiffs by third
parties, that established a use year other than Janurary-December. A reasonable jury
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could also determine that Wyndham breached these contracts by unilaterally altering
the Plaintiffs’ contracts to all have the same use year.
As to Wyndham’s contention that Plaintiffs have not shown damages, the
Plaintiffs have produced evidence that they lost a significant number of Wyndham
points and reservations due to the use year change. (Doc.77-1, at 80.) A reasonable jury
could determine that this economically damaged the Plaintiffs. Finally, there is no
evidence in the record that the Plaintiffs have not performed under the contract.
Taking all evidence and making all inferences in favor of the non-movant, a reasonable
jury could determine that the Defendants have breached a contract they have with the
Plaintiffs. Therefore, summary judgment is due to be denied regarding Plaintiffs’
breach of contract and declaratory judgment claims.
E.

Injunctive Relief

Plaintiffs also seek an injunction requiring Wyndham to restore the original “use
years” to Plaintiffs’ contracts and permanently enjoining Wyndham from changing
these “use years” in the future. Any motion or suit for an injunction must be based
upon a cause of action; an injunction is a type of relief rather than an independent
cause of action. Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1127 (11th Cir.
2005). Because an injunction is an “extraordinary remedy, it is available not simply
when the legal right asserted has been infringed, but only when that legal right has been
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infringed by an injury for which there is no adequate legal remedy and which will result
in irreparable injury if the injunction does not issue.” Id. Therefore, to obtain a
permanent injunction, a plaintiff must show: “(1) that he has prevailed in establishing
the violation of the right asserted in his complaint; (2) there is no adequate remedy at
law for the violation of this right; and (3) irreparable harm will result if the court does
not order injunctive relief.” Id. (citing Newman v. Alabama, 683 F.2d 1312, 1319 (11th
Cir. 1982)).
Both Wyndham and the Plaintiffs base their arguments on summary judgment
solely upon whether the Plaintiffs will succeed on the merits of their breach of contract
claim. The Court is allowing the breach of contract claim to move forward, meaning
that the Plaintiffs have the potential to succeed on the merits of their claim. While the
Court does have questions concerning the inadequacy of a legal remedy or the
irreperability of the harm, the Court will also allow the possibility of injunctive relief
to move forward and be addressed at the end of the trial. Therefore, summary
judgment is due to be denied regarding the Plaintiffs’ claim for injunctive relief.
F.

Motion to Strike

Wyndham has also filed a motion to strike portions of the Plaintiffs’ undisputed
fact section and certain exhibits offered by the Plaintiffs in support of their response
to Wyndham’s motion for summary judgment. It was unnecessary for the Court to
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look to the particular exhibits at issue in the motion in making its decision, and the
Court performed an independent examination of the evidence rather than relying on
the Plaintiffs’ statements of the undisputed facts. Therefore, Wyndham’s motion to
strike is due to be denied as moot.
IV.

Conclusion
For the foregoing reasons, Wyndham’s motion for summary judgment (Doc.

78) is due to be DENIED as to Count I, the claim for breach of contract, Count VIII,
seeking declaratory judgment, and Count IX seeking injunctive relief. The motion is
due to be GRANTED as to all other counts. Wyndham’s motion to strike, (Doc. 129),
is due to be DENIED as moot.
A separate order will be entered.
Done this 10th day of November 2014.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
177825

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