Nissan Motor Acceptance Corporation v. SOWEGA Motors Inc et al

Filing 61

ORDER granting in part and denying in part 55 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 09/11/2012. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
NISSAN MOTOR ACCEPTANCE
CORPORATION,

*
*

Plaintiff,
*
vs.

CASE NO. 4:10-CV-111 (CDL)
*

SOWEGA MOTORS INC., ROBERT W.
DOLL and SANDRA W. DOLL,
Defendants.

*
*

O R D E R
In

this

action,

Plaintiff

Nissan

Motor

Acceptance

Corporation (“NMAC”) seeks to enforce personal guaranties made
by Defendant Robert W. Doll (“Mr. Doll”) in connection with
NMAC’s loans to Mr. Doll’s car dealership businesses.

NMAC also

alleges that Mr. Doll fraudulently transferred certain property
to his wife, Defendant Sandra W. Doll (“Mrs. Doll”), in order to
keep NMAC from collecting sums due under the loan agreements.
NMAC contends that there is no genuine fact dispute that Mr.
Doll is liable to NMAC based on the personal guaranties.

NMAC

also asserts that there is no genuine fact dispute that Mr. Doll
fraudulently

transferred

certain

property

to

Mrs.

Doll.

Finally, NMAC argues that Mr. Doll’s counterclaims against it
fail as a matter of law.

As discussed below, NMAC’s Motion for

Summary Judgment (ECF No. 55) is granted in part and denied in

part.
law

The Court concludes that NMAC established as a matter of

that

Mr.

guaranties.

Doll

is

liable

to

NMAC

on

the

personal

NMAC also established that Mr. Doll’s counterclaims

against it fail as a matter of law.
however,

based

exists

as

to

NMAC’s

A genuine fact dispute,

fraudulent

transfer

claim,

and

NMAC’s summary judgment motion as to that claim is denied.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

In determining whether a

genuine

Fed. R.

dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc., 477

A fact is material if it is relevant or

necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

DEFENDANTS’ OBJECTION TO BROOKS AFFIDAVIT
Before the Court recounts the evidence viewed in the light
most favorable to Mr. and Mrs. Doll (“Defendants”), the Court
must determine whether it may rely on the affidavit of Randy
Brooks

(“Brooks”),

which

NMAC

submitted

2

in

support

of

its

summary judgment motion.

Defendants argue that certain portions

of the affidavit are inadmissible.
Procedure

56(c)(4),

an

affidavit

Under Federal Rule of Civil
used

to

support

a

summary

judgment motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant . . . is competent to testify on the matters stated.”
Defendants
Brooks’s
subsidiary

first

affidavit
of

argue

testimony

Nissan

North

that

the

that

Court

NMAC

America,

is

Inc.

should
a

wholly-owned

(“NNA”)

separate and distinct legal entity from NNA.

ignore

and

is

a

Pl.’s Mot. for

Summ. J. Attach. 3, Brooks Aff. ¶ 5, ECF No. 55-3.

Defendants

contend that the affidavit does not contain a sufficient basis
for the Court to conclude that Brooks has personal knowledge of
these

facts.

In

the

affidavit,

Brooks

states

employed in the Special Credit Division of NMAC.

that

he

Id. ¶ 2.

is
He

states that the affidavit is based on his personal knowledge and
his review of certain NMAC business records.

Id. ¶ 3.

Brooks

provides a basic corporate overview of NMAC and NNA, stating
that both are California corporations, that they are separate
legal entities, that NMAC provided certain financing for car
dealerships owned by or previously owned by Mr. Doll, and that
NNA previously maintained a franchisor/franchisee relationship
with Mr. Doll.

Id. ¶¶ 4-7.

Based on Brooks’s representation

that he is an employee of NMAC and his representation that his

3

affidavit is based on personal knowledge and a review of certain
NMAC business records, the Court may rely on Brooks’s affidavit
with regard to the corporate structure of NMAC and NNA.
Defendants

also

assert

that

the

Court

should

ignore

Brooks’s affidavit testimony regarding certain account balances
allegedly owed to NMAC by Mr. Doll and several of his companies
under

promissory

notes

and

related

guaranties,

as

well

amounts due to NMAC for certain contractor expenses.

as

Citing

Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756, 400 S.E.2d 8,
9 (1991), Defendants argue that the affidavit is insufficient
because

NMAC

affidavit.
58.

failed

to

attach

“account

statements”

to

the

Defs.’ Resp. to Pl.’s Mot. for Summ. J. 4, ECF No.

Even

if

Taquechel

were

applicable

to

this

federal

evidentiary issue, it does not stand for the proposition that
“account statements” must be attached in support of an affidavit
regarding

outstanding

loan

balances.

It

stands

for

the

proposition that an affidavit is insufficient if records relied
on and referred to in the affidavit are not attached to the
affidavit or included in the record.
400 S.E.2d at 9.

Taquechel, 260 Ga. at 756,

Here, Brooks relied on NMAC business records

such as monthly dealer statements in support of his testimony,
and he attached those business records to his affidavit.

E.g.,

Brooks Aff. Ex. E, Monthly Summaries, ECF No. 55-3 at 33-45.
Brooks states that the business records were prepared in the

4

ordinary course of NMAC’s business and that the transactions and
events reflected in the records were documented by NMAC at or
near

the

time

they

occurred

pursuant

conducted business activities.
therefore

satisfied

that

to

NMAC’s

Brooks Aff. ¶ 13.

Brooks’s

regularly

The Court is

affidavit

is

properly

supported by business records that are admissible under Federal
Rule of Evidence 803(6).
Defendants
disregard

also

Brooks’s

outstanding

appear

to

affidavit

balances

argue

that

regarding

because

Brooks

the

certain

does

not

Court

should

expenses

explain

how

and
he

derived the totals and does not explain why certain expenses
were necessary.

The Court rejects this argument.

Brooks does

explain generally how he calculated the outstanding balances,
e.g.

Brooks

Aff.

expenses,

id.

¶¶

disregard

Brooks’s

¶

19,

and

25-28.1

he

The

affidavit

did

explain

Court

testimony

the

therefore

contractor
declines

regarding

to

outstanding

balances and contractor expenses.
FACTUAL BACKGROUND
The following facts are undisputed for purposes of NMAC’s
summary judgment motion.
Mr.

Doll

is

the

sole

shareholder

of

Doll

&

Doll

Motor

Company (“Rob Doll Nissan”) and RWD Real Estate, LLC (“RWD Real
1

If Defendants wished to obtain more detail about NMAC’s damages
calculations, Defendants could have taken the deposition of a NMAC
corporate representative pursuant to Federal Rule of Civil Procedure
30(b)(6) during discovery.

5

Estate”), and he is the owner of Sowega Motors, Inc. (“Sowega
Motors”).
I.

The Loans and Guaranties
Rob

Doll

Nissan

entered

a

floorplan

with NMAC (“Doll & Doll Floorplan”).

financing

agreement

Under the Doll & Doll

Floorplan, NMAC periodically advanced funds to Rob Doll Nissan
for the purchase of vehicle inventory for the Rob Doll Nissan
dealership in Columbus, Georgia.
provided

that

if

there

was

a

The Doll & Doll Floorplan

default,

then

Rob

Doll

Nissan

“shall pay all costs and expenses, including NMAC’s attorneys
fees”

in

connection

collateral,

with

collecting

locating

amounts

and

due

taking

under

the

possession
Doll

&

of

Doll

Floorplan, and enforcing NMAC’s rights under the Doll & Doll
Floorplan.

Brooks Aff. Ex. F, Doll & Doll Floorplan ¶ 5.2, ECF

No. 55-3 at 49-50.
Sowega Motors entered a floorplan financing agreement with
NMAC (“Sowega Floorplan”).

Under the Sowega Floorplan, NMAC

periodically advanced funds to Sowega Motors for the purchase of
vehicle inventory for Mr. Doll’s General Motors dealership in
Americus, Georgia.
was

a

default,

The Sowega Floorplan provided that if there

then

Sowega

Motors

“shall

pay

all

costs

and

expenses, including NMAC’s attorneys[’] fees” in connection with
locating and taking possession of collateral, collecting amounts
due

under

the

Sowega

Floorplan,

6

and

enforcing

NMAC’s

rights

under the Sowega Floorplan.

Brooks Aff. Ex. A, Sowega Floorplan

¶ 5.3, ECF No. 55-3 at 13.
RWD Real Estate entered into a $9 million loan with NMAC
(“RWD

Note”).

construct

a

RWD
new

Real

Estate

dealership

planned

facility

to

for

business operations in Columbus, Georgia.

use

Rob

the
Doll

loan

to

Nissan’s

The RWD Note provided

that RWD Real Estate shall pay “fees and out-of-pocket expenses
of

any

legal

counsel”

in

connection

attempted enforcement” of the RWD Note.

with

“enforcement

or

Brooks Aff. Ex. H, RWD

Note ¶ 6.8, ECF No. 55-3 at 79.
In

a

Cross-Guaranty,

Cross-Collateral

and

Cross-Default

Agreement dated September 15, 2008, Rob Doll Nissan guaranteed
all liabilities and obligations of RWD Real Estate and Sowega
Motors

to

NMAC.

See

generally

Brooks

Aff.

Ex.

N,

Cross-

Guaranty, Cross-Collateral and Cross-Default Agreement, ECF No.
55-3

at

132-43.

In

the

same

agreement,

RWD

Real

Estate

guaranteed all liabilities and obligations of Rob Doll Nissan
and Sowega Motors to NMAC, and Sowega Motors guaranteed all
liabilities and obligations of Rob Doll Nissan and RWD Real
Estate to NMAC.

In addition, Mr. Doll personally guaranteed all

liabilities and obligations of Rob Doll Nissan, RWD Real Estate
and Sowega Motors to NMAC.

7

II.

The Defaults
A.

Rob Doll Nissan

Rob Doll Nissan defaulted on its payment obligations to
NMAC under the Doll & Doll Floorplan by failing to make payments
when due.

On April 23, 2009, NMAC notified Rob Doll Nissan of

its default and of NMAC’s intention to enforce its rights and
remedies under the Doll & Doll Floorplan.
Rob

Doll

Nissan

of

its

default

and

of

NMAC again notified
NMAC’s

intention

to

enforce its rights and remedies under the Doll & Doll Floorplan
on April 29, 2009.

According to Mr. Doll, however, the April

2009 default was due to a bookkeeper’s mistake and was quickly
corrected.

Doll Dep. 88:16-89:8, ECF No. 54.

Mr. Doll, individually and on behalf of Rob Doll Nissan,
RWD

Real

agreement

Estate
with

and

NMAC

Sowega
on

June

Motors,
5,

executed

2009.

In

a

forbearance

the

forbearance

agreement, Rob Doll Nissan and Mr. Doll acknowledged that Rob
Doll Nissan had defaulted on the Doll & Doll Floorplan.

NMAC’s

counsel sent Mr. Doll another notice of default on June 18,
2009.

As a result of the default, NMAC suspended all financing

to Rob Doll Nissan and accelerated the outstanding balance of
the Doll & Doll Floorplan.
Based on NMAC’s calculations, the outstanding balance due
to NMAC under the Doll & Doll Floorplan is $71,746.18.
Aff.

¶ 19.

This

amount

includes

8

$51,940.89

in

Brooks

outstanding

principal

and

$19,805.29

in

interest

($14,017.88

through

September 20, 2010 and $5,787.41 for September 21, 2010 to April
27, 2012).

Id.

Though Mr. Doll contends that NMAC has not

adequately established the amount due under the

Doll & Doll

Floorplan, Mr. Doll did not point to any evidence to controvert
NMAC’s evidence on this point.
As a result of the default on the Doll & Doll Floorplan,
NMAC

hired

an

independent

contractor

to

locate,

monitor

and

protect NMAC’s interest in Rob Doll Nissan’s vehicle inventory.
As discussed in more detail below, Sowega Motors also defaulted
on

its

obligations

to

NMAC,

and

NMAC

hired

an

independent

contractor to safeguard NMAC’s collateral at the Sowega Motors
dealership site.

NMAC incurred more than $83,200.00 to pay the

contractors to safeguard the collateral at the Rob Doll Nissan
dealership site and the Sowega Motors dealership site.
Aff. ¶ 26.

Brooks

Mr. Doll did not point to any evidence to controvert

NMAC’s evidence regarding the contractor expenses.
B.

Sowega Motors

Sowega Motors defaulted on the Sowega Floorplan in April
2009.2

NMAC notified Sowega Motors of its default and of NMAC’s

intention to enforce its rights and remedies under the Sowega
Floorplan on April 23, 2009.

On April 29, 2009, NMAC again

2

Mr. Doll contends that Sowega Motors did not default on the Sowega
Floorplan in April 2009, but the evidence he cited in support of this
proposition does not actually support it.

9

notified Sowega Motors of its default and of NMAC’s intention to
enforce

its

rights

and

remedies

under

the

Sowega

Floorplan.

General Motors terminated the franchise of Sowega Motors, and
the parties entered into a wind-down agreement on June 1, 2009.
As discussed above, Mr. Doll, individually and on behalf of
Rob Doll Nissan, RWD Real Estate and Sowega Motors, executed a
forbearance

agreement

with

NMAC

on

June

5,

2009.

In

the

forbearance agreement, Sowega Motors and Mr. Doll acknowledged
the defaults on the Sowega Floorplan.

Sowega Motors defaulted

again later in June 2009, and NMAC’s counsel sent Mr. Doll a
notice of default on June 18, 2009.

As a result of the default,

NMAC suspended all financing to Sowega Motors and accelerated
the outstanding balance of the Sowega Floorplan.
NMAC repossessed all remaining vehicle inventory by consent
in September 2009.

NMAC later obtained a deficiency judgment

against Sowega Motors by default for more than $2.6 million.
Around the same time that NMAC repossessed the remaining vehicle
inventory,

Sowega

Motors

surrendered

its

real

estate

to

its

mortgage lender.
Based on NMAC’s calculations, the outstanding balance due
to NMAC under the Sowega Floorplan is $277,125.16.
¶ 13.
and

Brooks Aff.

This amount includes $203,601.07 in outstanding principal

$73,524.09

in

interest

($53,673.28

through

September

20,

2010 and $19,850.81 for September 21, 2010 to April 27, 2012).

10

Id.

Though

Mr.

Doll

contends

that

NMAC

has

not

adequately

established the amount due under the Sowega Floorplan, Mr. Doll
did not point to any evidence to controvert NMAC’s evidence on
this point.
C.

RWD Real Estate

RWD Real Estate defaulted on the RWD Note by failing to
make payments when due.

NMAC notified RWD Real Estate of its

default and NMAC’s intention to enforce its rights and remedies
under the RWD Note on April 23, 2009.
again

notified

RWD

Real

Estate

of

On April 29, 2009, NMAC
its

default

and

NMAC’s

intention to enforce its rights and remedies under the RWD Note.
As discussed above, Mr. Doll, individually and on behalf of
Rob Doll Nissan, RWD Real Estate and Sowega Motors, executed a
forbearance

agreement

with

NMAC

on

June

5,

2009.

In

the

forbearance agreement, RWD Real Estate and Mr. Doll acknowledged
the defaults on the RWD Note.
Based on NMAC’s calculations, the outstanding balance due
to NMAC under the RWD Note is $864,569.32.

Brooks Aff. ¶ 24.

This amount includes $591,546.59 in outstanding principal and $
$273,022.73 in interest ($250,114.49 through November 30, 2010
and $22,908.24 for December 1, 2010 to April 27, 2012).
Though

Mr.

Doll

contends

that

NMAC

has

not

Id.

adequately

established the amount due under the RWD Note, Mr. Doll did not

11

point to any evidence to controvert NMAC’s evidence on this
point.
III. Mr. Doll’s Personal Guaranties and Financial Background
In

a

Agreement

Cross-Guaranty,
dated

July

9,

Cross-Collateral
2008

(“First

and

Cross-Default

Guaranty”),

Mr.

Doll

personally guaranteed all of the liabilities and obligations of
Rob Doll Nissan, RWD Real Estate and Sowega Motors to NMAC.
NMAC never agreed to modify, waive or release Mr. Doll from any
provisions of the First Guaranty.3

Brooks Aff. ¶ 30.

Mr. Doll

later executed a Continuing Guaranty Agreement in favor of NMAC
(“Second Guaranty”).

NMAC never agreed to modify, waive or

release Mr. Doll from any provisions of the Second Guaranty.
Id. ¶ 31.4

Mr. Doll also executed a Payment Guaranty in favor of

NMAC (“Third Guaranty”).

NMAC never agreed to modify, waive or

release Mr. Doll from any provisions of the Third Guaranty.
¶ 32.5

Id.

Finally, as discussed above, Mr. Doll executed a Cross-

Guaranty,

Cross-Collateral

September

15,

2008

and

(“Fourth

Cross-Default
Guaranty”),

in

Agreement
which

Mr.

dated
Doll

personally guaranteed all of the liabilities and obligations of
Rob Doll Nissan, RWD Real Estate and Sowega Motors to NMAC.

3

Mr. Doll denies this fact but did not point to any evidence to
controvert it.
4
Mr. Doll denies this fact but did not point to any evidence to
controvert it.
5
Mr. Doll denies this fact but did not point to any evidence to
controvert it.

12

NMAC never agreed to modify, waive or release Mr. Doll from any
provisions of the Fourth Guaranty.

Id. ¶ 33.6

In May or June of 2009, Mr. Doll solicited investors for
Rob Doll Nissan, seeking to raise $1.5 million for Rob Doll
Nissan.

Nonetheless,

it

is

undisputed

that

the

financial

outlook for Mr. Doll’s businesses became bleak by mid-summer
2009; by August 2009, Mr. Doll admitted that his businesses were
struggling.

It is also undisputed that by the fall of 2009 Rob

Doll Nissan and RWD Real Estate were in bankruptcy.

By late

2009, Mr. Doll had lost his investments in these businesses and
several others, including Sowega Motors.

And in 2010, Mr. Doll

lost his personal residence.
IV.

Real Estate Transfers from Mr. Doll to Mrs. Doll
Mr. Doll transferred three parcels of real estate to Mrs.

Doll on April 30, 2009.

All three properties were unencumbered

at the time of the transfers to Mrs. Doll.
Mrs.

Doll,

the

transfers

were

based

on

According to Mr. and
an

estate-planning

recommendation from their estate-planning attorney.

See, e.g.,

Doll Dep. Ex. 13, Letter from C. Cheves to R. Doll (June 4,
2009), ECF No. 54-2 at 8 (stating that transfer was pursuant to
2008 estate planning discussion between Mr. and Mrs. Doll and
their attorney).

6

Mr. Doll denies this fact but did not point to any evidence to
controvert it.

13

The first parcel was a single family home located at 502
Gulf Boulevard in Panama City Beach, Florida (“Gulf Boulevard
property”).

The

Gulf

Boulevard

property

had

a

tax-assessed

value of $195,597 in 2009 and a tax-assessed value of $175,000
in

2011.

Mr.

and

Mrs.

Doll

agree

that

the

Gulf

Boulevard

property was worth at least $115,000 in April 2009, and Mr. Doll
believed that the property was worth $500,000 in 2007.

Mr. Doll

voluntarily conveyed his interest in the Gulf Boulevard property
to Mrs. Doll on April 30, 2009.

He did not receive any monetary

consideration in return.
The

second

parcel

was

a

four-acre

real

estate

parcel

located at 27555 Bonita Grand Drive in Bonita Springs, Florida
(“Bonita Grand Drive property”).
Grand

Drive

$56,000.

property

from

his

Mr. Doll purchased the Bonita
parents

in

November

2006

for

He believed that the property was worth $2 million in

2007 and represented to NMAC that the property was worth as much
as $2 million.

The Bonita Grand Drive property had a tax-

assessed value of $138,600 in 2008 and a tax-assessed value of
$39,600 in 2009.

Mr. Doll voluntarily conveyed his interest in

the Bonita Grand Drive property to Mrs. Doll on April 30, 2009.
He did not receive any monetary consideration in return.
The

third

parcel

was

a

75’

x

120’

real

estate

parcel

located at 127 13th Street in Bay County, Florida (“13th Street
property”).

The 13th Street property had a tax-assessed value

14

of $129,200 in 2009 and currently has a tax-assessed value of
$83,400.
worth

Mr. Doll believed that the 13th Street Property was

$500,000

in

2007.

Mr.

Doll

voluntarily

conveyed

his

interest in the 13th Street property to Mrs. Doll on April 30,
2009.
V.

He did not receive any monetary consideration in return.
NMAC’s Claims Against Defendants
NMAC asserts three claims against Mr. Doll to enforce the

personal guaranties he made with regard to loans NMAC made to
Mr. Doll’s businesses.
Sowega

Floorplan

enforcement

of

First, NMAC seeks enforcement of the

against

the

Doll

Mr.
&

Doll.

Doll

Second,

Floorplan

NMAC

against

Mr.

seeks
Doll.

Third, NMAC seeks enforcement of the RWD Note against Mr. Doll.
NMAC also asserts three claims against Mr. and Mrs. Doll
for fraudulent transfer.
fraudulently
Doll.

transferred

Second,

transferred

the

First, NMAC alleges that Mr. Doll
the

Gulf

NMAC

alleges

Bonita

Grand

Boulevard

that
Drive

Mr.

property
Doll

property

to

Mrs.

fraudulently

to

Mrs.

Doll.

Third, NMAC alleges that Mr. Doll fraudulently transferred the
13th Street property to Mrs. Doll.
VI.

Mr. Doll’s Counterclaims
Mr.

Doll

asserts

two

counterclaims.

First,

Mr.

Doll

asserts a counterclaim against NMAC arising from its alleged
failure to perform a verbal promise to fund the entirety of the
construction costs for Mr. Doll’s new dealership facility in

15

north Columbus.

Second, Mr. Doll alleges that NNA treated him

prejudicially by demanding that he move Rob Doll Nissan to north
Columbus.
DISCUSSION
I.

Enforcement of Guaranties
To prevail on its claim for enforcement of the guaranties,

NMAC must prove that the loans and guaranty agreements were duly
executed and that the loans are in default.

E.g., Big Sandy

P’ship, LLC v. Branch Banking & Trust Co., 313 Ga. App. 871,
871-72, 723 S.E.2d 82, 84 (2012).

If NMAC establishes that the

loans and guaranty agreements were duly executed by Mr. Doll and
that the loans were in default, NMAC has established “a prima
facie right to judgment as a matter of law,” and the burden of
production
defenses.
Mr.

shifts

to

Mr.

Doll

to

establish

any

affirmative

Id.
Doll

contends

that

NMAC

cannot

prevail

at

summary

judgment without piercing each affirmative defense he pled in
his

Answer.

As

discussed

above,

however,

it

is

Mr.

Doll’s

burden to establish his affirmative defenses at this stage in
the litigation.

Although Mr. Doll need not establish them as a

matter of law at this stage in the litigation, he must point to
sufficient

facts

in

support

genuine factual dispute.

of

those

defenses

to

create

a

E.g., Johnson v. Bd. of Regents of

Univ. of Ga., 263 F.3d 1234, 1264 (11th Cir. 2001) (noting that

16

defendant has burden to adduce evidence supporting affirmative
defenses and that summary judgment movant does not have burden
to negate their existence); accord Big Sandy P’ship, LLC, 313
Ga. App. at 872, 723 S.E.2d at 84 (stating that where lender
established prima facie right to judgment as a matter of law
based on debtors’ default on promissory notes, debtors “were not
entitled to rest on allegations in their pleadings to establish
affirmative defenses on which they had the burden of proof at
trial,

but

specific

were

facts

required

defenses”).

in

to

the

come

record

forward
to

with

establish

or

point

to

affirmative

Mr. Doll pointed to no evidence in support of his

affirmative defenses.

As explained below, NMAC has established

that the loans and guaranty agreements were duly executed by Mr.
Doll

and

were

in

default.

Therefore,

NMAC

is

entitled

to

judgment as a matter of law on these claims.
A.

Doll & Doll Floorplan

It is undisputed that Mr. Doll personally guaranteed all of
the liabilities and obligations of Rob Doll Nissan, including
the Doll & Doll Floorplan.

While Mr. Doll disputes that Rob

Doll Nissan was in default as of April 2009, there is no fact
dispute that Mr. Doll acknowledged Rob Doll Nissan’s default by
June 2009.
Mr. Doll.

Therefore, NMAC may enforce the guaranties against
The remaining question is the amount due.

NMAC’s

evidence establishes that the outstanding balance due under the

17

Doll & Doll Floorplan is $71,746.18.

Brooks Aff. ¶ 19.

Mr.

Doll pointed to no evidence to create a genuine fact dispute as
to

this

amount.

Therefore,

NMAC

is

entitled

to

recover

$71,746.18 based on the default under the Doll & Doll Floorplan.
In addition, NMAC is entitled to attorney’s fees based on
the attorney’s fees provision in the

Doll & Doll

Floorplan.

Under O.C.G.A. § 13-1-11, “obligations to pay attorney’s fees
upon any note or other evidence of indebtedness shall be valid
and enforceable.”7

Pac. Mut. Life Ins. Co. v. Wise, 878 F.2d

1398, 1399 (11th Cir. 1989) (per curiam).

Where, as here, the

note or other evidence of indebtedness provides for a payment of
attorney’s

fees

without

specifying

a

percent,

the

statute

provides a mathematical formula for calculating the amount: “15
percent of the first $500.00 of principal and interest owing on
such note or other evidence of indebtedness and 10 percent of
the amount of principal and interest owing thereon in excess of
$500.00”.
1400.

O.C.G.A. § 13-1-11(a)(2); accord Wise, 878 F.2d at

Based on the formula in O.C.G.A. § 13-1-11(a)(2), the

attorney’s fee for enforcement of the Doll & Doll Floorplan is

7

Mr. Doll argues that the attorney’s fees provision in the Doll & Doll
Floorplan does not fall within the purview of O.C.G.A. § 13-1-11
because the Doll & Doll Floorplan does not use the word “reasonable”
to describe the amount of recoverable attorney’s fees.
Mr. Doll has
pointed to no authority in support of his theory that an attorney’s
fees provision in a note or other evidence of indebtedness must
contain the word “reasonable” in order to trigger O.C.G.A. § 13-1-11,
and the Court rejects this argument.

18

$7,199.62.

Therefore, the total amount due to NMAC under the

Doll & Doll Floorplan is $78,945.80.
B.

Post-Default Contractor Expenses

NMAC incurred more than $83,200.00 to pay the contractors
to safeguard the collateral at the Rob Doll Nissan dealership
site and the Sowega Motors dealership site.

It is undisputed

that the Doll & Doll Floorplan and the Sowega Floorplan make the
dealerships responsible for such expenses, and Mr. Doll did not
point to any evidence to controvert NMAC’s evidence regarding
the amount of contractor expenses.

NMAC is therefore entitled

to recover the $83,200.00 it claims in contractor expenses.
C.

Sowega Floorplan

It is undisputed that Mr. Doll personally guaranteed all of
the liabilities and obligations of Sowega Motors, including the
Sowega Floorplan.

It is also undisputed that Sowega Motors

defaulted on the Sowega Floorplan in April 2009, that Mr. Doll
acknowledged the default in June 2009, and that Sowega Motors
defaulted again in June 2009.

Therefore, there is no genuine

fact dispute that Sowega Motors was in default by June 2009, and
NMAC may enforce the guaranties against Mr. Doll.

The remaining

question is the amount due.

NMAC’s evidence establishes that

the

under

outstanding

$277,125.16.

balance

due

Brooks Aff. ¶ 13.

the

Sowega

Floorplan

is

Mr. Doll pointed to no evidence

to create a genuine fact dispute as to this amount.

19

Therefore,

NMAC is entitled to recover $277,125.16 based on the defaults
under the Sowega Floorplan.
In addition, NMAC is entitled to attorney’s fees based on
the attorney’s fees provision in the Sowega Floorplan.

Based on

the formula in O.C.G.A. § 13-1-11(a)(2), the attorney’s fee for
enforcement of the Sowega Floorplan is $27,737.52.8
the

total

amount

due

to

NMAC

under

the

Sowega

Therefore,

Floorplan

is

$304,862.68.
D.

RWD Loan

It is undisputed that Mr. Doll personally guaranteed all of
the liabilities and obligations of RWD Real Estate, including
the

RWD

Note.

defaulted

on

It

the

is

RWD

also
Note

undisputed
in

April

that

2009

acknowledged the default in June 2009.

RWD

and

Real

that

Estate

Mr.

Doll

Therefore, NMAC may

enforce the guaranties against Mr. Doll.

The remaining question

is

evidence

establishes

the

Note

the

amount

outstanding

due.

balance

Brooks Aff. ¶ 24.

NMAC’s
due

under

RWD

is

that

the

$591,546.59.

Mr. Doll pointed to no evidence to create a

genuine fact dispute as to this amount.

8

Therefore, NMAC is

The Court notes that, perhaps in response to cases like Wise, where
O.C.G.A. § 13-1-11 allowed “unconscionably high fees,” Wise, 878 F.2d
at 1399, the Georgia legislature recently enacted a provision under
which a debtor may challenge the amount of statutory attorney’s fees.
If application of O.C.G.A. § 13-1-11(a)(2) “will result in an award of
attorney’s fees in an amount greater than $20,000.00, the party
required to pay such fees may, prior to the entry of judgment,
petition the court seeking a determination as to the reasonableness of
such attorney’s fees.” O.C.G.A. § 13-1-11(b)(1).

20

entitled to recover $864,569.32 based on the default under the
RWD Note.
In addition, NMAC is entitled to attorney’s fees based on
the attorney’s fees provision in the RWD Note.
formula

in

O.C.G.A. §

13-1-11(a)(2),

the

enforcement of the RWD Note is $86,481.93.

Based on the

attorney’s

fee

for

Therefore, the total

amount due to NMAC under the RWD Note is $951,051.25.
II.

Fraudulent Transfers
NMAC

also

brings

claims

against

Mr.

and

Mrs.

Doll

for

fraudulent transfer under Georgia’s Uniform Fraudulent Transfers
Act, O.C.G.A. §§ 18-2-70 to -80.

Under the Uniform Fraudulent

Transfers Act, a transfer made by a debtor is fraudulent as to a
creditor if the debtor made the transfer:
Without receiving
exchange for the
debtor:

a reasonably equivalent value in
transfer or obligation, and the

(A) Was engaged or was about to engage in a business
or a transaction for which the remaining assets of the
debtor were unreasonably small in relation to the
business or transaction; or
(B) Intended to incur, or believed or reasonably
should have believed that he or she would incur, debts
beyond his or her ability to pay as they became due.
O.C.G.A. § 18-2-74(a)(2).

A transfer made by a debtor is also

fraudulent as to a creditor “if the debtor made the transfer or
incurred

the

obligation

without

receiving

a

reasonably

equivalent value in exchange for the transfer or obligation and
the

debtor

was

insolvent

at

that
21

time

or

the

debtor

became

insolvent

as

a

result

of

the

transfer

or

obligation.”

O.C.G.A. § 18-2-75(a).
NMAC contends that the undisputed evidence shows that, as
of April 30, 2009, Mr. Doll was engaged in businesses for which
his

remaining

assets

were

unreasonably

small

in

relation

to

those businesses and that Mr. Doll should have believed he would
incur debts beyond his ability to pay them as they came due.
NMAC also argues that the undisputed evidence shows that Mr.
Doll was insolvent as of April 30, 2009.

Although the evidence

certainly could support NMAC’s contention, the Court finds that
the evidence is not undisputed, particularly given the evidence
of Mr. Doll’s optimistic efforts to secure additional investors
and shore up the financials of his businesses during the same
approximate

timeframe.

interpretations

of

the

Reconciling
disputed

these

evidence

is

conflicting
a

factually

intensive exercise.

It is best left to a jury and not the Court

as a matter of law.

Accordingly, NMAC’s summary judgment motion

as to its fraudulent transfer claims is denied.
III. Mr. Doll’s Counterclaims
A.
In

Counterclaim Regarding Alleged Oral Promise by NMAC
his

Counterclaim,

Mr.

Doll

alleges

that

NMAC

had

promised to provide “100% financing” for the new Rob Doll Nissan
facility in north Columbus.
No. 12.

Answer & Countercl. 20 ¶ 16, ECF

Mr. Doll further alleges that when the new building was

22

90% complete, Mr. Doll found out that NMAC’s $9 million loan
under the RWD Note was not enough to complete the building.

Id.

at 19 ¶ 10.

Therefore, Mr. Doll in his Counterclaim appears to

assert

NMAC

that

breached

an

agreement

to

provide

RWD

Real

Estate with 100% financing for the new construction project by
only lending RWD Real Estate $9 million.
The RWD Note provided that NMAC would lend RWD Real Estate
“up to” $9 million.
at 19.

Doll Dep. Ex. 7, RWD Note 1, ECF No. 54-1

The RWD Note contained a merger clause stating: “This

Note and the other Loan Documents contain the entire agreement
between Lender and Borrower in connection with the Loan and
supersede all prior agreements and negotiations, whether written
or oral.”

Id. ¶ 6.2, ECF No. 54-1 at 30.

The RWD Note further

provided: “This Note and the other Loan Documents may be amended
only by a writing signed by Lender and each other party against
whom enforcement of such amendment may be sought.”

Id.

Mr.

Doll did not point to any provision in the RWD Note under which
NMAC promised to lend RWD Real Estate more than $9 million.
Based

on

the

merger

clause,

Mr.

Doll

cannot

state

a

claim

against NMAC for failing to honor an alleged promise that was
not

memorialized

in

the

written

agreement.

See,

e.g.,

O.C.G.A. § 13-2-2(1) (“Parol evidence is inadmissible to add to,
take

from,

or

vary

a

written

contract.”);

23

O.C.G.A. §

24-6-1

(“Parol contemporaneous evidence is generally inadmissible to
contradict or vary the terms of a valid written instrument.”).
Perhaps to avoid the merger clause, Mr. Doll presented a
different theory of his breach of contract claim in his response
to NMAC’s summary judgment motion.

Mr. Doll now asserts that

when he discovered that the $9 million loan under the RWD Note
was

not

sufficient

to

complete

construction

on

the

new

dealership facility, NMAC’s agent Al Jones “agreed to fund the
$900,000 shortfall.”

Defs.’ Resp. to Pl.’s Mot. for Summ. J.

11, ECF No. 58 (citing Doll Dep. 149:12-19).

It is undisputed

that Mr. Doll did not receive anything in writing from NMAC
committing to fund more than the $9 million NMAC funded under
the RWD Note.
At this stage in the litigation, the Court must accept as
true Mr. Doll’s statement that NMAC’s agent agreed to provide
the additional $900,000.

Mr. Doll, however, did not point to

sufficient evidence of a breach of contract by NMAC with regard
to the alleged $900,000 promise.

First, it is not entirely

clear from Mr. Doll’s testimony whether Mr. Jones promised the
money to Rob Doll personally, to RWD Real Estate or to Rob Doll
Nissan.

See Doll Dep. 149:15-19 (“Al Jones told me no problem,

we’ll get [$900,000].

We’re not going to let you fail, Rob.

can’t afford that. Al Jones, quote, unquote.
the money.”).

We

Just we’ll get you

Second, and more importantly, a critical element

24

of a breach of contract claim is the existence of a contract; to
have a valid contract, “there must be parties able to contract,
a

consideration

moving

to

the

contract,

the

assent

of

the

parties to the terms of the contract, and a subject matter upon
which the contract can operate.”

O.C.G.A. § 13-3-1.

Mr. Doll

pointed to no evidence of any consideration for

the alleged

$900,000

the

contract.

promise—a

significant

Therefore,

Mr.

modification

Doll’s

of

counterclaim

based

written
on

the

alleged $900,000 promise fails.
B.

Counterclaim
Regarding
Treatment of Mr. Doll

NNA’s

Mr.

Doll

NNA

also

alleges

that

Alleged

treated

prejudicial manner by demanding that

Mr.

Prejudicial
Doll

in

a

Mr. Doll move Rob Doll

Nissan to another location in Columbus.

NMAC asserts that it is

entitled to judgment as a matter of law on this counterclaim
because it cannot be legally responsible for the alleged conduct
of NNA.

Though Mr. Doll contends that NMAC has not shown that

it is a separate entity from NNA, the undisputed evidence in the
present

record

establishes

that

NMAC

is

a

wholly-owned

subsidiary of NNA and is a separate and distinct legal entity
from its parent, NNA.

Brooks Aff. ¶ 5.

Mr. Doll has pointed to

no evidence in support of his theory that NMAC and NNA are not
separate and distinct legal entities.

He has also pointed to no

reason why NNA’s conduct should be attributed to NMAC.

25

For

these reasons, Mr. Doll’s counterclaim against NMAC for NNA’s
conduct fails.
CONCLUSION
For the reasons set forth above, NMAC’s summary judgment
motion (ECF No. 55) is granted in part and denied in part.

A

genuine fact dispute exists as to NMAC’s fraudulent transfer
claims, and NMAC’s summary judgment motion as to those claims is
denied.

The remainder of NMAC’s motion is granted.

counterclaims
dismissed.

fail

as

a

matter

of

law

and

are

Mr. Doll’s
therefore

In addition, NMAC is entitled to enforcement of the

guaranties made by Mr. Doll.

Based on the undisputed evidence,

Mr. Doll is liable to NMAC in the following amounts:
Sowega Floorplan
Doll & Doll Floorplan
Contractor Expenses
RWD Note
Total

$304,862.68
$78,945.80
$83,200.00
$951,051.25
$1,418,059.73

IT IS SO ORDERED, this 11th day of September, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

26