Spina Mktg. Servs., Inc. v. J. Michael Mcfadden, Michael G. O'Mara & Meridian Energy Grp., LLC.
| Decision Date | 20 August 2015 |
| Docket Number | 2:14-cv-00330-JEO |
| Parties | SPINA MARKETING SERVICES, INC., Plaintiff, v. J. MICHAEL MCFADDEN, MICHAEL G. O'MARA and MERIDIAN ENERGY GROUP, LLC., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
This action involves a business dispute between Spina Marketing Services, Inc. ("Spina Marketing") and J. Michael McFadden, Michael G. O'Mara and Meridian Energy Group, LLC (collectively "the defendants"). The defendants have moved for summary judgment on Spina Marketing's claims. (Doc. 11). Spina Marketing has moved to strike the reply brief of the defendants as it is untimely. (Doc. 17). The motions are fully briefed. The court finds that the motion to strike is due to be denied and the motion for summary judgment is due to be granted in part and denied in part.
Rick Spina ("Spina"), the President of Spina Marketing, had a long term relationship with Belle Foods ("Belle") and its predecessors. (Spina Dep. at 17).2 Belle used Spina Marketing for remodeling and re-branding its stores. (Id.) Spina Marketing was in charge of painting the stores, obtaining new signage, refurbishing the food display cases, and installing LED lighting. (Id.)
Spina Marketing did its first work for Belle in June 2012, remodeling and installing lighting at Belle's Hoover store. (Id. at 19). Spina Marketing did additional remodeling and lighting work for Belle at its stores in Florence, Tuscaloosa, Mobile, Brewton and Alabaster, Alabama and Athens, Georgia. (Id. at 19, 23). The projects were intended to make the stores look better and be more energy efficient. (Id. at 21). Typically, the renovation process was commenced with Spina Marketing quoting a price for certain work. (Id. at 23). Belle would accept via a purchase order. (Id.) Spina's primary contact at Belle was Greg Triola ("TRiola"), the Director of Real Estate Construction. (Id. at 24; Triola Dec.at 1).3
In September 2012, while Spina Marketing was working at the Belle store in Tuscaloosa, Alabama, Defendant J. Michael McFadden ("McFadden") approached William White ("White"), the President of Belle, with a proposal to fund the purchase and installation of energy-saving lighting so long as Belle would share the subsequent electricity cost savings with Boyd Energy Group ("Boyd"). (White Dec. at 2).4 McFadden represented that he was working for Boyd at that time. (Id.) However, records from the Florida Secretary of State demonstrate that Boyd did not exist at this time. (Doc. 15-6 at 2 (Ex. J)). It was not formed until October 16, 2012. (Id.)
White introduced McFadden to Triola. (White Dec. at 3). McFadden explained to Triola "that they would provide the funds for the purchase and installation of energy saving projects specifically including the lighting in this instance [the Tuscaloosa project] and they would be repaid by sharing the energy savings costs with the customer." (Triola Dec. at 3; White Dec. at 2-3). Based on McFadden's representations about funding, Belle expanded the number ofproposed projects to be undertaken. (White Dec. at 5). McFadden told Triola to have Spina Marketing's invoices billed to Boyd instead of Belle. (Id. at 2).
Triola told Spina that McFadden would call him about the deal. (Spina Dep. at 42; Triola Dec. at 3). According to Spina, McFadden contacted him and said that, via Defendant Meridian Energy Group, LLC ("Meridian")5, they would finance the purchasing of the products for the Belle projects up front and would pay Spina Marketing for its labor as the jobs were completed. (Spina Dep. at 42-45, 59). This was consistent with what Triola had told Spina. (Id. at 43; Triola Dec. at 2). McFadden also told Spina that Belle wanted Spina Marketing to continue the change-out to LED lighting in the stores. (Spina Dep. at 44). Spina was told to bill the Tuscaloosa invoices to Boyd rather than Belle. (Spina Dec. at 3).6
Spina subsequently contacted McFadden by email and requested financial information and the terms of their understanding. McFadden responded (Id.) Specifically, on October 2, 2012, Spina emailed McFadden at his Boyd email address and reminded McFadden that he needed "your company info/credit, for billing etc." on the Tuscaloosa project. (Doc. 15-8 at 2 of 27 (Pl. Ex. 1); Spina Dep. at 47). McFadden responded as follows:
If the project makes sense for Belle-Foods and they go forward we will pay for the equipment up front. The only thing we carry until completion is your installation costs. In our Energy Investment Program the client puts up no capital, the energy savings pays (sic) for the equipment over times (sic). All sub contractors are fully paid on competition of the project. I will get back to you [after] I talk to Greg.
(Doc. 15-8 at 2 of 27 (Pl. Ex. 1)). Spina replied, "Sounds good, thanks." (Id.)7
Spina Marketing initially invoiced Boyd as directed. (See Doc. 13-6 at 46 (Pl. Ex. 3) (10/24/2012 Invoice)). Thereafter, Spina was told by McFadden to bill Meridian, not Boyd, going forward on the Tuscaloosa project. (Spina Dep. at 25-30; McFadden Dep. at 62).8
About this time, on October 5, 2012, there was a meeting in Mobile,Alabama that White, McFadden, and someone from Pemco Capital ("Pemco")9 attended. White recalled being introduced at that meeting to a person who was identified as working with Meridian. (White Dec. at 4). According to White, there were no requests for financial information at the meeting, and he did not recall "any mention that the payment for the work or the performance by Mr. McFadden was contingent upon any separate funding from a third party." (Id.) According to White, funding did not become an issue "until after the work was well on its way and almost completed." (Id.)
On October 24, 2012, at 7:01 p.m., Spina received an email confirming that Belle was going forward on the projects. (Spina Dep. at 30, 49). Spina Marketing began installing the equipment. (Spina Dep. at 50-51). Spina Marketing invoiced Meridian for the costs and the labor as directed. (McFadden Dep. at 52; Doc. 13-3 at 20 to 45 (Exs. C-G)). About half of the invoices are for work done on or before November 16, 2012. Meridian did not contest the invoiced work or amounts.10 (McFadden Dep. at 52-53). However, SpinaMarketing was not being paid for the supplies as promised. (Spina Dep. at 51). McFadden considered Spina Marketing as a creditor and carried the debt on Meridian's accounts payable list. (Id. at 103).
Sometime after Thanksgiving 2012, White was contacted by McFadden, who requested financial information from Belle so that he could obtain financing for the projects from Pemco. (White Dec. at 4). This was the first time Pemco was mentioned to White as the funding source for the projects. (Id.) Spina also testified that Pemco came into the picture around November 2012. (Spina Dep. at 31). Spina believed they - Boyd, Meridian, and Pemco - "were all one and the same." (Id.)
Despite not being paid, Spina Marketing kept working because Spina was being told that he would be paid by Meridian within "the next day or the next week or whatever." (Id. at 51). Spina asked Triola to help with the situation of not being paid. (Id. at 37, 51). Triola told Spina he would try to call White or someone at Meridian to see what he could find out. (Id. at 37).
On December 12, 2012, O'Mara contacted Spina, informing him that he (O'Mara) was the chief financial officer of Meridian. (Spina Dep. at 67-68, 72). O'Mara sent Spina a email with a contract identifying Spina as a subcontractor and requesting that Spina sign the same. (Pl. Ex. 5). The email referenced thatO'Mara believed that Belle and Pemco had signed the finance agreement and that "[f]unding/[p]ayment was expected next week." (Id.) Spina signed the agreement, but Spina Marketing still was not paid. (Doc. 13-6 at 49 of 50 (Pl. Ex. 6)). O'Mara and Spina also talked about revising various invoices to reflect a 15% add-on for Meridian's services. (Id. at 68-71, 75; Doc 13-7 at 4 of 27 (Pl. Ex. 8); Doc. 13-3 at 41-42 of 44 (Def. Exs. 2 & 3)).
By December, Spina was asking questions on a daily basis about the money Spina Marketing was owed. (Spina Dep. at 31-32). Spina Marketing stopped working after completing jobs on December 13, 2012. (Id. at 52). Spina Marketing refused to do any further jobs without payment up front and payment of the past due amounts. (Id.)
In late December or early January 2013, Triola finally learned and conveyed to Spina that the problem was with the financing at Pemco. (Id. at 37-38). In January 2013, after finally receiving contact information from McFadden, Spina contacted Josh Heald at Pemco. (Id. at 32-33, 96). They talked around January 17, 2013. (Id. at 97). Heald told Spina that they (Pemco) were waiting on some financial information from Belle and that they would be closing the transactions on seven stores and the outstanding invoices would be paid. (Id. at 98). Heald updated Spina on January 26, 2013, that everything was looking good. (Id. at 98-99). At some later time, however, Heald informed Spina, as well as others, that he was not going to fund the deals and he "wished [them] well." (Id. at 113-14). As late as May or June 2013, McFadden and O'Mara were still attempting to find funding for the Belle projects. (Id. at 117-19).
McFadden transferred his interest in Meridian to O'Mara on April 25, 2013, after he was indicted on criminal charges. (McFadden Dep. at 64-65).
Belle filed for bankruptcy protection on October 17, 2013. (Doc. 13-12 at 1). Spina Marketing filed a proof of claim and an addendum thereto in the amount of $319,565.00. (Id. at 3).
Pursuant to Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, a party is authorized to move for summary...
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