CLUB CAR, INC. v. CLUB CAR (QUEBEC) IMPORT INC., (S.D.Ga. 2003)

ANTHONY ALAIMO, Senior District Judge

At the close of all evidence at trial, the plaintiff and counterclaim defendant, Club Car, Inc. ("Club Car"), moved for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50 on its contractual claims for costs and attorneys' fees against the defendants, Club Car (Quebec) Import, Inc. ("CCQ") and Martin Murphy. Club Car asserts that it is contractually entitled to its costs and attorneys' fees in this action under the unambiguous terms of the Distributor Agreement between Club Car and CCQ and under the unambiguous terms of the Personal Guaranty signed by Mr. Murphy.

The Distributor Agreement between Club Car and CCQ, which was admitted at trial as plaintiffs Exhibit I, specifically provides:

20. ATTORNEY'S FEES. In any action or proceeding commenced by or against Club Car relating to or arising out of this Agreement, whether such action or proceeding be founded upon contract, tort, statute, regulation or otherwise, Club Car shall be entitled to recover from Distributor its costs and expenses (including but not limited to reasonable attorney's fees) of prosecuting and/or defending any such action or proceeding in which Club Car has substantially prevailed. For purposes of this Agreement, Club Car shall be considered to have "substantially prevailed" in such action or proceeding if its net recovery therein exceeds that of the Distributor in the same action or proceeding, or, in an action or proceeding in which Club Car is the defendant and has asserted no counter-claim against the Distributor, if the Distributor recovers no damages (which for purposes of this Section shall not be considered to include cost or attorney's fees or other litigation expenses, even if the same are awarded by statute or other rule of law) from Club Car or fails to obtain any equitable relief against Club Car.

Likewise, the Personal Guaranty signed by Mr. Murphy, which was admitted at trial as plaintiff's Exhibit 4, specifies:

Guarantor agrees to pay Club Car, Inc. a reasonable attorney's fee, which shall be in the amount of fifteen percent (15%) of the sum owing to Club Car, Inc. hereunder, and all costs and expenses of collection whenever Club Car, Inc. employs an attorney to enforce any obligation of guarantor under this Guaranty, whether by suit or other means.

The construction of a contract is a question of law to for the Court."Magnetic Resonance Plus, Inc. v. Imaging Systems International. Inc., 273 Ga. 525, 526, 543 S.E.2d 32, 34 (2001). If the contrac language is unambiguous, no construction is necessary and the Court must simply enforce the contract according to its clear terms. Caswell v. Anderson, 241 Ga. App. 703, 703, 527 S.E.2d 582, 582 (1000). The Court finds as a matter of law that the contract language quoted above unambiguously permits Club Car to recover its costs and attorneys' fees from both CCQ and Mr. Murphy.

CCQ has asserted that O.C.G. A. § 13-1-11 operates to limit Club Car's recovery of attorneys' fees from CCQ to 15% of the amount owed to Club Car by CCQ under the Distributor Agreement. However, O.C.G.A. § 13-1-11 applies only to "obligations to pay attorneys' fees upon any note or other evidence of indebtedness" and does not apply to every type of contract. See O.C.G. A. § 13-1-11(a); O'Brien's Irish Pub, Inc. v. Gerlew Holdings, Inc., 175 Ga. App. 162, 166, 332 S.E.2d 920, 923 (1985); see also. Holcolmb v. Evans, 176 Ga. App. 654, 657, 337 S.E.2d 435, 438 (1985). The Distributor Agreement at issue is neither a note nor "other evidence of indebtedness" within the meaning of the statute. Consequently, O.C.G. A. § 13-1-11 does not operate to limit Club Car's recovery of attorneys' fees under the Distributor Agreement.

Aside from the contention discussed above, CCQ does not dispute the amount of costs and attorneys' fees claimed by Club Car.

Accordingly, Club Car's Motion for Judgment as a Matter of Law as to its contractual claims for costs and attorneys' fees is hereby GRANTED. The Clerk is directed to enter Judgment in favor of Club Car and against the defendant CCQ in the amount of $479,827.98 (U.S.) and against the defendant Martin Murphy in the amount of $163,904.30 (U.S.), with appropriate interest pursuant to 28 U.S.C. § 1961.

ORDER.

Case Number: 1:00-cv-00195

Date Served: March 27, 2003

Served By: Nita S. Rose

Attorneys Served: James B. Ellington, Esq. Thomas L. Cathey, Esq. Thomas W. Tucker, Esq. Stephen F. Humphreys, Esq. Sam G. Nicholson, Esq. Andrew M. Scherffius III, Esq. Darren W. Penn, Esq. Jeffrey R. Harris, Esq. James W. Purcell, Esq. Amy R. Snell, Esq.

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