Flournoy v. CML-GA WB, LLC et al

Filing 62

ORDER granting Defendants CML-GA WB, LLC and Rialto Capital Advisors, LLC'S 36 Motion for Summary Judgment; granting Defendants REX Property and Land, LLC and Paul Gregory King's 41 Motion for Summary Judgment and 46 Amended Motion for Summary Judgment; denying as moot Defendants' [41, 44] motions for oral argument; directing that the Clerk shall close this case and enter judgment in favor of Defendants against Plaintiff; and further directing the Clerk to enter judgment i n favor of CML-GA WB, LLC and Rialto Capital Advisors, LLC against REX Property and Land, LLC and Paul Gregory King regarding the crossclaim of REX Property and Land, LLC and Paul Gregory King, and in favor of REX Property and Land, LLC and Paul Gregory King against CML-GA WB, LLC and Rialto Capital Advisors, LLC regarding the crossclaim of CML-GA WB, LLC and Rialto Capital Advisors, LLC. Signed by Judge J. Randal Hall on 12/10/2015. (jah)

IN THE UNITED
FOR THE

STATES DISTRICT COURT

SOUTHERN DISTRICT OP GEORGIA
AUGUSTA DIVISION

PATRICIA C.

FLOURNOY,

*

Plaintiff,

*

v.

*

CML-GA WB, LLC; RIALTO
CAPITAL ADVISORS, LLC; REX
PROPERTY AND LAND, LLC; and
PAUL GREGORY KING,

CV

114-161

*
*
*
*
*

Defendants.

ORDER

The

following

Defendants

CML-GA

motions
WB,

LLC

are
and

Motion for Summary Judgment

40);

(3)

Defendants

(doc. 36);

REX

before

Rialto

LLC and Rialto Capital Advisors,
(doc.

now

the

Capital

(2)

Court:

Advisors,

(1)
LLC's

Defendants CML-GA WB,

LLC's Motion for Oral Argument

Property and

Land,

LLC

and

Paul

Gregory King's Motion for Summary Judgment (doc. 41) and Amended
Motion

for

Summary Judgment

Property and Land,
Argument

46);

and

(4)

Defendants

REX

LLC and Paul Gregory King's Motion for Oral

(doc. 44).

I.

This

(doc.

case

arises

out

Background

of

Plaintiff

Patricia

Flournoy's

attempt to lease commercial space in the JB Whites building in

Augusta,

Georgia.

She

claims she was

denied an opportunity to

lease space in that building because of her race.
A.

The parties

Plaintiff
who

owns

and

Defendant

Whites

WB,

building

in

LLC

Rialto,

is

building.

a

LLC

is

hair

an

("Rialto")

41,

in

owns

and

manages

(Doc.

African-American

salon

("CML-GA")

Augusta,

Defendants").

Bradley Kentor,

Flournoy

operates

CML-GA

Advisors,
Rialto

Patricia

a

Augusta,
portion

Defendant
CML-GA

Ex.

4

woman

Georgia.
of

Rialto

the

Capital

(collectively,

("Kentor

Dep.")

JB

"the

at

7.)

the vice president of commercial real estate at

the

primary

(Id^ at 6.)

landlord

contact

at

the

REX Property and Land,

JB

Whites

LLC ("REX")

is

owned and managed by Paul King, who is the general manager and
sales broker at the JB Whites building.
Dep.")

(Doc. 41, Ex. 5 ("King

at 6; Kentor Dep. at 9.)

B.

Defendants'

relationship

REX manages the JB Whites building pursuant to a management

agreement.

(See

Agreement").)
managing,
(King
Whites

Doc.

Under

advertising,

Dep.

at 11-15.)

building

negotiations.

to

37,

the

Ex.

B,

agreement,

and marketing
REX employees
prospective

(Kentor Dep.

at 79.)

Ex.

REX

18

is

("Management

responsible

for

the JB Whites building.
show spaces in the JB

tenants

and

begin

lease

But Rialto provides all

lease forms, and only Rialto can sign a lease agreement.

(King

Dep. at 33-35.)

Rialto also handles pricing buildout costs if a

space needs building out.
C.

In

Plaintiff's negotiations

2012,

Plaintiff began

her salon and,
In

August

at some point,

2012,

Plaintiff

manager for REX,
building.

(Doc.

41,

in

the

application

fee

and

long

after

searching

for

a

new

location

for

discovered the JB Whites building.
met

with

Andrea

Carr,

a

property

and toured a commercial space at the JB Whites

interested

Not

(Kentor Dep. at 22.)

Ex.

1

("Carr

space,

agreed

Plaintiff

Dep.")

Plaintiff

to

a

credit

toured the

at

16.)

paid

and

a

Apparently

fifty-dollar

background

property,

King

check.

spoke

with

Kentor and informed him about Plaintiff's interest in the space,

at which time Kentor told King that he did not want a salon in

the building because of concerns about fumes and odors, the high
cost of building out the area,
the

lack

56-57,

of

the failure rate of salons, and

cross-shopping customers.

(Kentor

Dep.

at 26-27,

107.)

Nevertheless,

King

and

Carr

Plaintiff

regarding her interest

maintains

that

he

continued

continued

in leasing the space.

talks

wanted to help her lease the space.

discussions

with

Plaintiff

with

King

because

(King Dep. at 53.)

he

At some

point, Plaintiff learned through Carr that she needed to submit
a business plan.

According to King, the plan needed to include,

among other things, how she would be able to contribute to any
necessary buildout expenses in the space.

(Id. at 54-55.)

But

Plaintiff

claims

that

no

one

ever

buildout costs in the plan.
107.)

Regardless,

consultant,

At

instructed her

Plaintiff's

Plaintiff hired Catherine Maness,

point

during

salon.

(See

these

King

Specifically,

types of races,
Plaintiff

was

he

at

to

a business

72.)

King

And

visited

either

asked

her

"if

(Id. )

create

a

she

serviced

informed

credit score.

visited

Maness

(PI.

King's

that

there

was

business

an

Dep. at 143-45.)

office

and

all

And sometime after
plan,

Maness

called Carr about sending Plaintiff's business plan to
Carr

right

King asked Plaintiff about her

and genders . . . ."
instructed

the

(Id. at 115-16.)

negotiations,

Dep.

after or right before that visit,

clientele.

address

(See Doc. 41, Ex. 2 ("PI. Dep.") at

to draft her business plan.

some

to

issue

with

REX,

and

Plaintiff's

Plaintiff and Maness then

attempted

to

present

the

business

plan, at which time Plaintiff claims that King informed her that
she would not be permitted to lease space in the building.
at

148.)

was

Plaintiff maintains

that her credit

that

the

only reason he

score was too low.

(See id.

at

(Id.

gave

150.)

her
King

claims that the low credit score was not the only reason he gave

Plaintiff.

acknowledge

decision.

(See

that

King

Dep.

Plaintiff's

at

137.)

credit

But

score

REX

was

and

part

King

of

the

King testified that Kentor had recently instructed

him to allow only tenants with credit scores of 700 or higher.
(Id.

at

56-57.)

Kentor,

however,

recollection of that instruction.

testified

(Kentor Dep.

that
at 33.)

he

has

no

Sometime
and

King

after

began

Plaintiff's

negotiations

negotiating' with

fell

Jennifer

through,

Ellis,

an

interior

decorator who wanted to lease space in the building.
54,

Exs.

2-4.)

apparently

traded

(See Doc.

Ellis

and

rent,

discussed costs,

King

REX

e-mails

and other details and a draft

that

lease,

but

Ellis ultimately did not lease any space.
Following
initiated
lease

King's

this

because

denial

action,
of

her

of

claiming
race.

her

that

She

for judgment on the pleadings
(doc.

48) .

All

Plaintiff's

Rialto

King,

Defendants

discrimination

filed

a

and REX

crossclaim

denied

CML-GA

and

her

Rialto

CML-GA and Rialto moved

now

move

for

for

summary

judgment

Additionally,

indemnification

CML-GA

against

REX

on
and

and

All

Defendants

now move

for

summary

judgment

crossclaims.

Summary

genuine

judgment

dispute

entitled

the

sued

REX

(doc. 11), which the Court denied

claim.

II.

56(a).

and

Plaintiff

and King responded with their own crossclaim for

indemnification.
on the

King

also

under a theory of vicarious liability.

application,

to

as

judgment

Legal Standard

is

to
as

appropriate

any

material

a matter

of

only

fact
law."

if

and

"there

the

Fed.

is

no

movant

is

R.

Civ.

P.

Facts are "material" if they could affect the outcome of

suit

under

the

governing

substantive

law.

Anderson

v.

Liberty Lobby,

view

the

party,
U.S.
in

facts

587

[its]

omitted)

(1986),

242,

248

most

Indus.

(1986).

favorable

Co.

v.

The

the

to

Zenith

Court must

non-moving

Radio

Corp.,

475

and must draw "all justifiable inferences

United States
1437

(11th

v.

Four

Cir.

Parcels

1991)

(en

of Real
banc)

Prop.,

(citation

(internal quotation marks omitted).
moving

by

motion.

party

reference
Celotex

to

carry

this

(11th Cir.

has

to

the

initial

materials

Corp.

proof at trial.
1115

U.S.

light

Elec.

1428,

The
Court,

477

the

favor."

F.2d

How

in

Matsushita

574,

941

Inc.,

v.

Catrett,

burden

depends

Fitzpatrick v.
1993) .

on

When

burden

file,
477

on

the

U.S.

who

of

basis

317,

bears

non-movant

has

the

for

323

the

City of Atlanta,

the

showing

the

(1986).

burden

of

2 F.3d 1112,
the

burden

of

proof at trial, the movant may carry the initial burden in one
of two ways—by negating an essential element of the non-movant's
case

or by

showing that

there

is no evidence to prove

necessary to the non-movant's case.
Inc. , 929 F.2d 604, 606-08
v.

S.H.

Catrett,

Kress

477

& Co.,

U.S.

398

317

See Clark v. Coats & Clark,

(11th Cir. 1991)
U.S.

144

(1986)).

a fact

(1970)

(explaining Adickes

and Celotex Corp.

Before the

Court

can

v.

evaluate

the non-movant's response in opposition, it must first consider
whether

there

the

movant

has

met

its

are no genuine issues

initial

burden

of material

entitled to judgment as a matter of law.

of

showing

that

fact and that it is
Jones v.

City of

Columbus,
mere

120

F.3d 248,

conclusory

254

statement

(11th Cir.

that

the

burden at trial is insufficient.
If—and

non-movant
that

only

if—the

may

avoid

is

indeed

there

summary judgment."

proof at

trial,

a

Id.

cannot

meet

A
the

929 F.2d at 608.

carries

its

judgment

material

(per curiam).

non-movant

Clark,

movant

summary

1997)

only

issue

of

initial

by

burden,

the

"demonstrat[ing]

fact

that

precludes

When the non-movant bears the burden of

the non-movant must

tailor

method by which the movant carried its

its

response

initial burden.

to

the

If the

movant presents evidence affirmatively negating a material fact,
the

non-movant

withstand

a

"must

directed

respond
verdict

motion

fact sought to be negated."
the movant

shows

non-movant

must

an absence
either

with

evidence
at

Fitzpatrick,
of evidence

show

trial

that

the

sufficient
on

the

material

2 F.3d at 1116.

on a material
record

fact,

contains

to

If
the

evidence

that was "overlooked or ignored" by the movant or "come forward
with

additional

verdict

motion

deficiency."

evidence

at

Id.

sufficient

trial

based

at 1117.

on

to

withstand

the

alleged

a

directed

evidentiary

The non-movant cannot carry its

burden by relying on the pleadings or by repeating

conclusory

allegations contained in the complaint.

See Morris v. Ross, 663

F.2d

Rather,

1032,

1033-34

(11th

Cir.

1981).

the

non-movant

must respond with affidavits or as otherwise provided by Federal
Rule of Civil

Procedure 56.

In

this

action,

the

Clerk

gave

Plaintiff

appropriate

notice of the motions for summary judgment and informed her of
the

summary

judgment

rules,

the

other materials in opposition,

(Docs.

39,

45,

47.)

are

opposition

has

the

772 F.2d 822,

satisfied.

The

expired,

to

file

affidavits

or

and the consequences of default.

Therefore,

Griffith v. Wainwright,
curiam),

right

and

notice

825

time

requirements

(11th Cir.

for

motion

the

filing

is

1985)

of
(per

materials

now

ripe

in

for

consideration.

Ill.

All

Defendants

§ 1981 claim.

And all

the crossclaims.
A.

The

basic

is

defendant

the

for

summary

judgment

Defendants move

on

Plaintiff's

for summary judgment on

The Court addresses these issues below.

Plaintiff's §

plaintiff

that

move

Discussion

1981 claim

elements

of

member

of

a

a

a

§ 1981

racial

claim

are:

minority;

"(1)

(2)

that

the

that

the

intended to discriminate on the basis of race;

discrimination

concerned one

enumerated in the statute."

490 F.3d 886, 891
omitted)
activities

(11th Cir. 2007)

(internal
in

modification,

the

Kinnon v.

quotation
statute

Arcoub,

the

"the

(3)

activities

Gopman & Assocs.,

omitted).

and termination of contracts,
8

of

(footnote omitted)

marks

include

or more

and

making,

(citation
Enumerated

performance,

and the enjoyment of

all

benefits,

contractual
prove

a

privileges,

relationship."

§ 1981

claim

circumstantial evidence.

645

F.

Supp.

Plaintiff

2d

has

evidence

42 U.S.C.
either

conditions

§ 1981.

through

1008,

1017,

1020

that

she

A

of

direct

(M.D.

Ala.

evidence

sufficient

Here,

has

not

presented

Br.

Opp'n.

circumstantial

evidence that

or

Inc.,

2009).

direct

at

in order to succeed on her § 1981 claim,

must present

the

plaintiff may

(PL's

discrimination.

Accordingly,

and

See Long v. Aronov Realty Mgmt.,

conceded

of

terms,

13.)

Plaintiff
Defendants

discriminated against her during the negotiation process.
In

a

§ 1981

burden-shifting
Green,

411

plaintiff

must

[defendant]

based

derived

792

on

first

circumstantial

from

(1973),

applies.

establish

its

a

446

F.3d

discriminated

1160,

1162

to

actions.

discriminatory

Douglas

Under

prima

against

(11th

the

Corp.

that

v.

test,

facie

offer
Id.

legitimate,
If

reasons,

the

then

her."

Cir.

(internal quotation marks omitted).

demonstrates a prima facie case,
defendant

McDonnell

evidence,

case

a

of

which "creates a rebuttable presumption that the

unlawfully

Comm'n,

omitted)

test

U.S.

discrimination,

Cty.

case

Brooks

2006)

v.

(citation

If the plaintiff

then the burden shifts to the
non-discriminatory

defendant

the

offers

burden

reasons

legitimate,

shifts

back

to

for
non

the

plaintiff to rebut those reasons and show that they are merely

pretext

for discrimination.

Id.

"Although the intermediate

burdens
of

of production shift back and forth,

persuading

intentionally

the

trier

of

discriminated

fact

against

all times with the plaintiff."

Id.

the

the ultimate burden

that

the

[defendant]

[plaintiff]

remains

(citation omitted)

at

(internal

quotation marks omitted).

In

a

requires

non-employment

a plaintiff
(2)

protected class;
concerned

statute;

one

or

. . . and

to

§ 1981

show:

that

"(1)

the

more

of

(3)

that

case,

that

the

she

prima

is

facie

case

a member

of a

allegedly discriminatory conduct

the

the

activities

defendants

enumerated

treated

in

the

plaintiff

less favorably with regard to the allegedly discriminatory act
than the defendants treated other similarly situated persons who

were outside plaintiff's
Props.,

Inc.,

230

F.

protected class."

Supp.

2d

1351,

1370

Benton v.
(N.D.

Cousins

Ga.

2002).

"[T]he third prong requires plaintiff to show an apt comparator
of

a

different

race

who

was

not

10

subjected

to

the

same

harsh

treatment

with

regard

the plaintiff.,a

case

fails

evidence

she is a member of a

involves
at

this

showing

Jennifer Ellis

enforcement

failed to establish a

one disputes that
matter

the

an

step because

an

is

enumerated

apt

a

as

was

case.

No

was

interested in

that

argument

is

unconvincing.

different
type

space

of

are

protected class or that

has

in

not

business,
simply

too

she

leasing

is

a

argues

for

interior

significant

that

small business

wanted

building

i.e.,

Plaintiff's

presented adequate

commercial

Ellis

the

But

Plaintiff

comparator because

she

differences

contract

prima facie

comparator.

and

different

a

activity.

she

owner

entirely

of

Id.

Plaintiff has

this

to

space.

to

an

But

lease

entirely

design.

for

an

These

Plaintiff

to

overcome.

Although the Court
to establish a
the

Court

prima

will

burden-shifting

is

facie

satisfied that
case,

nevertheless

test.

If

for

the

analyze

the

Court

Plaintiff has

failed

sake of completeness,

the

remainder

were

to

of

assume

the

that

1 The Court recognizes that there is some uncertainty as to the exact
requirements of a prima facie case in a § 1981 case.
See Kinnon, 490 F.3d at
894.

But the cases on topic that the Court has located require some type of

comparator evidence.
See Benton, 230 F. Supp. 2d at 1370 (requiring a
similarly situated person); Brooks v. Collis Foods, Inc., 365 F. Supp. 2d
1342, 1356 (N.D. Ga. 2005) (finding that, in certain cases, a plaintiff may
establish a prima facie case by showing "markedly hostile treatment" instead
of an apt comparator).
The Court finds that, because this cases involves a
business dispute, instead of a retail transaction, an apt comparator is
necessary to establish a prima facie case.
See Benton, 230 F. Supp. 2d at
1378.

The

issue, and
comparator.

Court

also

notes

that

none

of

the

parties

has

addressed

this

they all seem to agree that a prima facie case requires a
Plaintiff only argues that the burden-shifting test is not

required.
11

Plaintiff established a prima facie case,
have

to

offer

actions.

legitimate,

See Brooks,

a number of reasons,

tenant

in

Kentor

found

would
tend

the

emit
to

non-discriminatory

446 F.3d at 1162.

salon

fumes

have

cross-shopping

for

their

Defendants have offered

Specifically,

tenant

and

high

reasons

including that Kentor did not want a salon

building.
a

Defendants would then

odors

undesirable

that

failure

may

rates,

customers.

it

The

is

because

disturb

and

Court

undisputed

business

residents,

salons

is

the

do

not

satisfied

that

salons

generate

that

these

reasons are legitimate and non-discriminatory.

Accordingly,
evidence

that

Plaintiff must rebut those reasons and produce
shows

discrimination.
Plaintiff's

Brooks,

contradictions in
actions

v.

Cir. 2005)
the

lines

pretext."
2002).

at

merely

1163.

To

reveal

pretext
show

such

for

pretext,

weaknesses,

incoherencies

or

[Defendants'] proffered legitimate reasons for
a

Atlanta

reasonable

Long,

Indep.

(per curiam)).

Rojas

F.3d

are

inconsistencies,

that

on what

they

"'must

unworthy of credence. '"
Vessels

446

evidence

implausibilities,

its

that

evidence

v.

factfinder

645 F.

Sch.

Sys.,

could

find

them

Supp. 2d at 1021 (quoting
408

F.3d

763,

771

(11th

And it is the Court's job to "draw[]
is

Florida,

sufficient to create

285

F.3d 1339,

1344

an

issue on

(11th Cir.

It is not the Court's responsibility to second-guess a

business decision and it will not do so.
12

See id.

That "kind of

inquiry—whether a business decision is wise or nice or accurate—

is precluded by
defendant

may

[Eleventh Circuit precedent]."

act

"for

a

based on erroneous facts,

[]

is

for

a

Co.,

Motor

not

939

F.2d

original)

she

reason,

discriminatory
946,

attempts

argues

a

bad

951

that

reason."

(11th

as

Brown

Cir.

In fact,

reason,

or for no reason at all,

(citation omitted)

Plaintiff's
First,

good

Id.

1991)

a

a

reason

long as it

v.

Am.

Honda

(alteration

in

(internal quotation marks omitted).
to

rebut

Kentor

Defendants'

failed

reasons

produce

to

fail.

evidence

supporting his concerns about the failure rate of salons and the
lack of cross-shopping customers.

undisputed

including

that

the

nearly

unit

vacant ....

every

one

Plaintiff

Certainly,

And Plaintiff claims "[i]t is

was

of

the

interior

interested

a rent-paying

tenant,

in,
even

units,

remain
one

who

doesn't promote 'cross-shopping', is preferable from a business
standpoint than a largely vacant building."

25.)

(PL's Br. Opp'n at

She also argues that Kentor's concerns about the failure

rate of salons

lack merit because Plaintiff's business has been

established for several

years.

Additionally,

Plaintiff argues

that she could have convinced Defendants that these reasons were

unfounded had she been able to negotiate longer.

arguments lack merit.

second-guess

a

permitted to do.

All of these

Plaintiff is simply asking the Court to

business

judgment,

which

the

See Rojas, 285 F.3d at 1344.
13

Court

is

not

Defendants are

not

required

salons
that

to

actually
these

also

light

that

requirement.
implemented

falls

most

the

minor

show

pieces

discrimination,

pretext:
King's

never

does

not,

of

evidence

the

Isolated

supervisor's

comment

pieces

"weaknesses,

of

to

rebut
in

the

Plaintiff's

requirement,

when viewed

instructed King

however,

the

to

establish

requirement

for

a

evidence

implement

that

the

King

discriminatory

are

Cf. Rojas,

comment

about

support a different

often

285 F.
one

not

enough

3d at 1343

female

female employee's

to

(finding

employee

was

claim of

even though she worked under that supervisor

was

discriminatory

evidence,

without

in Defendants'

on

more,

its

face) .

simply

inconsistencies,

These

do

legitimate business

2d at 1021 (citation omitted).
14

not

two

reveal

incoherencies or
reasons

that a jury could find them "unworthy of credence."

Supp.

to

about

Plaintiff,

comments

implausibilities,

contradictions"

F.

which

discrepancy

question

credit-score

credit-score

sex discrimination,
the

Plaintiff must

for

sound

King's question about Plaintiff's clientele similarly

insufficient to

and

that

Instead,

favorable

Kentor

It

short.

a

or

two

to

and

establish discrimination.
that

were

mask

show

Regarding the

establishes

purpose.

and

requirement

clientele.

reasons

fail.
a

points

decision

credit-score

the

are

these

failed to do.

Plaintiff
Defendants'

that

frequently

reasons

Plaintiff has

in

show

Long,

such

645

Because Plaintiff has

failed to present evidence from which a reasonable jury could
infer intentional discrimination,
law

and

Defendants'

Additionally,

claim

motions

because

fails,

the

the

Court

her claim fails as a matter of
on

Court

this

finds

finds

it

issue

that

are

GRANTED.2

Plaintiff's

unnecessary

§ 1981

to

separately

Rialto

Defendants

address the Rialto Defendants' vicarious liability.
B.

Defendants'

Following
filed

a

(Doc.

Plaintiff's

crossclaim

2 6.)

crossclaim

(Doc.

REX
for

2 9.)

for
and

complaint,

all

the

indemnification
King

answered

indemnification

They

indemnification

The

crossclaims

now

and

against

move

for

against

the

REX

included
Rialto

summary

and

King.

their

own

Defendants.

judgment

on

the

issues.

from

the

management agreement between REX and the Rialto Defendants.

The

Rialto

parties'

Defendants'

indemnification

crossclaim against

claims

arise

REX and King

is

based on

paragraph 7.2(a) of the management agreement, which provides, in
part:

Manager

shall,

and

Manager

does,

hereby

agree

to

indemnify Owner and its affiliates, parent, officers,
members and managers . . . against, and hold harmless,
save and defend the Owner Indemnified Parties

2 Recognizing the

lack of comparator evidence,

from any

Plaintiff also argues

that there is a "convincing mosaic" of circumstantial evidence to support
discrimination in this case.
See Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011).
But because the Court has already determined
that
Plaintiff
has
not
presented sufficient
evidence
of
intentional
discrimination, the Court finds it unnecessary to separately address the
convincing mosaic analysis.
15

and all claims, demands, actions, causes of action,
suits, liabilities, damages, losses, cost and expenses
arising from bodily injury, property damage or other
claims . . . which
any
of
the
Owner
Indemnified
Parties may suffer or incur, or which may be asserted
against
the
Owner
Indemnified
Parties,
whether
meritorious or not, if and to the extent the same are
caused by the negligence or willful misconduct of
Manager or its agents or employees ....
(Management

Agreement

crossclaim alleges
the

Rialto

because

that

Defendants

Plaintiff's

Defendants'

alleges

REX

is

in this

Defendants]

cannot

liable

Defendants

extent

they are

if

held

required to

a matter

of

Rialto

[REX]

requested

is

liable

(Doc.

26.

they are

not

But

the

the

Rialto

crossclaim

Defendants

1

are]

[Plaintiff]

to

indemnification

and

indemnify

claim.

law,

First,

"[the

amounts."

liable,

Defendants'

for any amounts that

then

such

have

as

Rialto

underlying

survive.

[Plaintiff]

all

Rialto

Plaintiff's
fails

litigation,

for

The

REX and King are
for

crossclaim

that

7.2(a).)

claim

adjudged liable to
seeks

SI

[the Rialto

12.)

So

only

liable

the

to

the

in

this

case.

Even if the

it

still

fails.

Court

construes

Paragraph

the

7.2(a)

crossclaim more

of

the

management

liberally,

agreement

plainly states that REX must indemnify the Rialto Defendants for
claims

against

misconduct.

merit.

must

the

Rialto

Defendants

that

are

based

on

REX's

And this provision applies even if the claims lack

But, for the provision to apply, the claims against REX

be

meritorious.

The

agreement

16

states

that

REX

will

indemnify

the

Rialto

Defendants

"which may be asserted against

for

claims

and

liabilities

[the Rialto Defendants],

whether

meritorious or not, if and to the extent the same are caused by
the

negligence

or

agents . . . ."

"meritorious

willful

misconduct

(Management

or

not"

Agreement

language

against the Rialto Defendants,
Rialto

Defendants

appear to

do not

argue otherwise.

applies

of
S[

[REX]

or
So

7(a).)

only

to

claims

Accordingly,

the

brought

not claims against REX.

acknowledge this

its

And the

logic because they

the plain meaning of

the

contract supports summary judgment on this issue.

See Begner v.

United States,

428 F.3d 998,

(stating that

when

interprets

a

court

1005

an

(11th Cir.

unambiguous

2005)

contract,

the

court

enforces the contract according to its terms).

The Rialto Defendants also argue that the crossclaim should

survive

because

King

acted

negligently

by

continuing

negotiations with Plaintiff after Kentor indicated that he did
not

want

a

Defendants'

salon.

The

Court

is

not

persuaded.

The

Rialto

crossclaim is based entirely on indemnification for

Plaintiff's discrimination claim.

This negligence claim appears

only in the Rialto Defendants' brief, and it implies that King
and REX breached some duty owed to the Rialto Defendants, which

is separate and distinct from the indemnification claim.
the crossclaim does

supporting it.

not

allege

Accordingly,

this

it
17

cause

fails

to

of

action

state

or

But
facts

a claim for

negligence

or

any

other

breach

Defendants by REX or King.
reasons

discussed

above,

of

a

See Fed.
REX

and

judgment on the Rialto Defendants'

duty
R.

owed

Civ.

King's

P.

to

the

8(a).

motion

Rialto
For the

for

summary

crossclaim is GRANTED.

REX and King's crossclaim against the Rialto Defendants is
based

on

provides,

paragraph

7.2(b)

of

the

management

agreement,

which

in part:

Indemnity

by

Owner.

Owner

shall,

and

Owner

does,

hereby agree to indemnify Manager and its affiliates,
parent,
officers,
members
and
managers
from
and
against, and hold harmless, save and defend Manager
and its
affiliates,
parent,
officers,
members and
managers from any and all claims, demands, actions,
causes of action,

suits,

liabilities,

damages,

losses,

costs
and
expenses
arising
from
bodily
injury,
property damage or other claims . . . which Manager or
its affiliates, parent, officers, members and managers
may suffer or incur, or which may be asserted against
Manager or its affiliates, parent, officers, members
and managers, whether meritorious or not, if and to
the extent the same are caused by the negligence or
willful
misconduct
of
Owner,
and
which
arise
connection with the Project or the performance

in
by

Manager of any of its duties and obligations under
this Agreement [;] . . . provided, however, that in no
event shall the indemnity provided under this Section
extend to any claim . . . caused by the negligence or
willful

misconduct

of

Manager

or

its

agents

or

employees ....

(Management Agreement SI 7.2(b).)

The Rialto Defendants now move

for summary judgment on this issue and argue that there is no
evidence of misconduct or negligence by the

Rialto

Defendants.

And REX and King have not presented any evidence showing that

the Rialto Defendants acted wrongfully or negligently.

In fact,

Plaintiff expressly stated that she based her claims against the
Rialto Defendants on vicarious

liability.

Accordingly,

summary

judgment on this issue is GRANTED.

IV.

For the

and

Rialto

(doc.

Paul

36)

Capital

DENIED

for

LLC's

MOOT.

Defendants

Motion

for

CML-GA WB,

Summary

Motion

for

Summary

Summary

Judgment

Judgment
(doc.

Clerk

shall

are

CLOSE

(docs.

this

and

GRANTED.

40,

case

JUDGMENT in favor of Defendants against Plaintiff.
further directed to ENTER JUDGMENT

41)

resolved this matter on the

motions for oral argument
The

LLC and

(doc.

4 6)

LLC

Judgment

Defendants REX Property and Land,

because the Court has

Defendants'
AS

forth above,

Advisors,

King's

Motion

Additionally,
briefs,

set

is GRANTED.

Gregory

Amended

reasons

Conclusion

44)

and

are

ENTER

The Clerk is

in favor of CML-GA and Rialto

against REX and King regarding REX and King's crossclaim and in
favor of REX and King against CML-GA and Rialto regarding CML-GA
and Rialto's

crossclaim.

ORDER ENTERED
December,

at Augusta,

Georgia __this

10

day of

2015.

HONORABLE J/ RANDAL HALL
UNITED STATES

DISTRICT

JUDGE

SOUTHERN DISTRICT OF GEORGIA

19