Window World of N. Atlanta Inc. v. Window World, Inc.
| Decision Date | 22 September 2021 |
| Docket Number | 18 CVS 70 |
| Citation | 2021 NCBC 61 |
| Parties | WINDOW WORLD OF NORTH ATLANTA, INC.; MICHAEL EDWARDS; and MELISSA EDWARDS, Plaintiffs, v. WINDOW WORLD, INC.; WINDOW WORLD INTERNATIONAL, LLC; and ANDREW SAVILLE, Defendants. |
| Court | Superior Court of North Carolina |
Brooks, Pierce, McLendon, Humphrey & Leonard LLP, by Charles E. Coble, Andrew L. Rodenbough, Benjamin R. Norman and Robert J. King, III, and Keogh Cox & Wilson, Ltd., by John P. Wolff, III, Virginia J. McLin, and Richard W. Wolff for Plaintiffs Window World of North Atlanta, Inc., Michael Edwards, and Melissa Edwards.
Wilson Ratledge, PLLC, by Reginald B. Gillespie, Jr. and Alexandra M. Bradley, for Defendant Andrew Saville.
Manning, Fulton & Skinner, P.A., by Judson A. Welborn, Michael T. Medford, Natalie M. Rice, and Jessica B. Vickers, and Laffey, Leitner & Goode LLC, by Joseph S. Goode, Mark M. Leitner, Sarah E. Thomas Pagels, John W. Halpin, and Jessica L. Farley, for Defendants Window World, Inc. and Window World International, LLC.
Louis A. Bledsoe, III Chief Business Court Judge.
1. THIS MATTER is before the Court upon (i) Defendants Andrew Saville ("Saville"), Window World, Inc. ("Window World"), and Window World International, LLC's (together, the "Window World Defendants"; collectively with Saville, "Defendants") Joint Motion for Leave to Amend Their Answers to Assert Additional Affirmative Defenses (the "Motion to Amend") filed 25 November 2020, (ECF No. 137), and (ii) Defendants' Motion for Summary Judgment (the "Summary Judgment Motion"; together with the Motion to Amend, the "Motions") filed 22 December 2020, (ECF No. 153), [1] in the above-captioned case.
2. Through the Motion to Amend, Saville seeks leave to amend his answer to assert the affirmative defenses of statute of limitations and waiver and the Window World Defendants, having already asserted waiver as a defense, seek leave to amend their answer to assert the affirmative defense of statute of limitations. Defendants contend that their Motion to Amend is timely because the information upon which it is based arose during the 8 October 2020 deposition of Plaintiff Michael Edwards ("Edwards").
3. On the Summary Judgment Motion, Defendants argue that Plaintiffs have failed to offer evidence that Edwards and Todd Whitworth ("Whitworth"), the now-deceased Chief Executive Officer of Window World, entered into a valid oral contract in 2008 granting Edwards the exclusive right to operate Window World stores in fifty-five counties in the Atlanta, Georgia area. Defendants further contend that, even if Edwards and Whitworth entered into a valid oral contract, Plaintiffs' declaratory judgment and breach of contract claims are barred by the applicable statute of limitations and waiver.
4. Having considered the Motions, the related briefs, the arguments of counsel at the hearing on the Motions, and other appropriate matters of record, the Court hereby GRANTS in part and DENIES in part the Motion to Amend and DENIES the Summary Judgment Motion as set forth below.
5. The Court does not make findings of fact on a motion for summary judgment. See Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C.App. 138, 142 (1975). Rather, the Court summarizes the relevant evidence of record, including both the facts in dispute and those that are uncontested, to provide context for the claims and the motion. The Court may consider relevant evidence of record in resolving a motion to amend.
6. Window World licenses the use of its trademarks to businesses, permitting such businesses to purchase, resell, and install vinyl replacement windows, doors, and siding under the Window World name. (Answer & Countercls. Defs. Window World & Window World International, LLC 2 ] Window World currently operates as a franchise system.
7. Edwards and his wife, Plaintiff Melissa Edwards, previously owned and operated a Window World store in Huntsville, Alabama.
8. Two brothers, Tony and Mark Turner, each operated a separate Window World store in the Atlanta, Georgia area. (Defs.' Mot. Summ. J. [CORRECTED - Original Filed Dec. 11, 2020] [hereinafter ] Tony Turner operated in the Northeast Georgia ("NEGA") trade area, which consisted of six counties, and Mark Turner operated in the South Metro Atlanta ("South Metro") trade area, which consisted of eight counties. (Newton Aff. ¶¶ 10-16.) Due to the Turner brothers' alleged mismanagement of the stores, Window World sought to license the trade areas to another store owner in the fall of 2008.
9. In November 2008, Whitworth called Edwards and offered him the Atlanta territory, which Edwards accepted. (Edwards Dep. 27:9-10, 30:8-10, 41:1-3.) According to Edwards, the alleged oral agreement was for Edwards to receive the "whole Atlanta DMA" (Designated Marketing Area)[2] as his sales trade area. (Edwards Dep. 25:14-20; see also Pls.' Br. Opp'n Defs.' Mot. Summ. J. ] Ex. B Excerpts Dep. Michael Edwards, dated Oct. 8, 2020, at 34:17-25 [hereinafter "Additional Excerpts Edwards Dep."] It was Edwards's understanding that, together, Tony and Mark Turner controlled the entire Atlanta DMA, (Edwards Dep. 33:18-25), which consisted of fifty-five counties in and around Atlanta, ( ).
10. According to Edwards, he and Whitworth "come [sic] to an agreement about the Atlanta DMA [during] the initial phone call[, ]" (Edwards Dep. 28:17-19), which was then "hashed . . . out in the coming days" through additional telephone conversations with other Window World representatives, .
11. Edwards took over Tony Turner's store in December 2008, before entering into any written contract. (Edwards Dep. 94:4-96:12; Newton Aff. ¶¶ 20, 22-24; see also Additional Excerpts Edwards Dep. 156:10-158:3.) But Edwards knew other Window World store owners had operated their stores pursuant to oral agreements they made with Whitworth, including agreements related to trade areas. (Additional Excerpts Edwards Dep. 314:17-19; see also Gallagher Aff. ¶ 9 ( ).)
12. Shortly after Edwards began operating the store, Edwards testified that Whitworth made a "caveat" to their oral agreement, requesting that Edwards assume the debt previously incurred by Tony Turner. (Edwards Dep. 96:14-99:15.) Edwards agreed to do so "because [he]was getting the whole DMA." (Edwards Dep. 98:9-10.) Whitworth then made another "caveat" to the "original deal," asking Edwards to allow Mark Turner to remain in the South Metro trade area until his operating license expired in October 2009. (Edwards Dep. 48:17-51:7, 53:3-19, 55:15-56:7, 135:4-5.) Although "[i]nitially that wasn't the deal," (Edwards Dep. 50:21), Edwards testified that he again acquiesced to Whitworth's request because "when Mark [Turner]'s license was pulled and [Edwards] acquired that [trade area], then [Edwards] got the whole DMA at that point[, ]" (Edwards Dep. 49:18-20).
13. In July 2009, Plaintiffs entered into a licensing agreement with Window World, which defined Plaintiff Window World North Atlanta, Inc.'s ("North Atlanta") trade area as the same six counties included in Tony Turner's former NEGA trade area. Plaintiffs executed a second licensing agreement with Window World in February 2010, which added the eight counties that were formerly included in Mark Turner's South Metro trade area to the North Atlanta trade area.
14. Whitworth passed away in February 2010. (Edwards Dep. 84:23-25.)
15. In November 2017, Window World created a Carrollton, Georgia trade area, composed of seven counties included in the Atlanta DMA, and subsequently licensed that trade area to Saville and Michael Harkins. (See Defs.' Mot Summ. J. Attach. I Aff. Zach Luffman, dated Dec. 2, 2020, at ¶ 15(g), ECF No. 153.10; Defs.' Mot. Summ. J. Attach. L Aff. Andrew Saville, dated Dec. 10, 2020, at ¶¶ 41-43, ECF No. 153.13.) Edwards testified that he viewed this as a breach of his oral agreement with Whitworth, ...
To continue reading
Request your trial