Opinion
Civil Action No. 2:23-CV-78-RWS
2023-11-06
Rachel C. EDDLEMAN, D.V.M., and Eddleman Property Management, LLC, Plaintiffs, v. PETVET CARE CENTERS (GEORGIA), LLC d/b/a Mt. Yonah Animal Hospital, Defendant.
Carson Modrall, Lea C. Dearing, Berman Fink Van Horn P.C., Atlanta, GA, for Plaintiffs. Tiana Scogin Mykkeltvedt, Solesse Lane Altman, Bondurant Mixson & Elmore, LLP, Atlanta, GA, for Defendant.
Carson Modrall, Lea C. Dearing, Berman Fink Van Horn P.C., Atlanta, GA, for Plaintiffs.
Tiana Scogin Mykkeltvedt, Solesse Lane Altman, Bondurant Mixson & Elmore, LLP, Atlanta, GA, for Defendant.
ORDER
RICHARD W. STORY, United States District Judge.
This case comes before the Court on Defendant PetVet Care Centers (Georgia), LLC's ("PVCC") Motion to Dismiss [Dkt. 7]. After reviewing the parties' briefs, the Court enters the following Order.
BACKGROUND
I. Factual Background
This case arises out of a breakdown in a relationship between Dr. Rachel C. Eddleman ("Dr. Eddleman"), a veterinarian, and PVCC, the company that bought her practice.
Dr. Eddleman is a veterinarian licensed to practice veterinary medicine in Georgia. [Dkt. 1-1, at ¶ 1]. She owned and operated a practice known as the Mt. Yonah Animal Hospital ("MYAH"). [Id. at ¶ 6]. She also owns the real estate and improvements where MYAH is located ("the Property") through her company, Eddleman Property Management, LLC ("the Landlord"). [Id. at ¶ 7]. In addition to her ordinary services, Dr. Eddleman also practiced "holistic and Eastern veterinary medicine." [Id. at ¶¶ 9-10].
On May 6, 2021, Dr. Eddleman agreed to sell her practice to PVCC, which resulted in three separate contracts: the Asset Purchase Agreement, the Employment Agreement, and the Lease Agreement. First, under the Asset Purchase Agreement, PVCC acquired Dr. Eddleman's MYAH practice. [Id. at ¶ 11]. Second, under the Employment Agreement, PVCC permitted Dr. Eddleman to remain an employee of MYAH. [Id. at ¶ 13]. And third, under the Lease Agreement, Dr. Eddleman, as owner of Eddleman Property Management, LLC, entered into a new lease with PVCC as the tenant. [Id. at ¶ 21].
Following PVCC's acquisition of MYAH, disputes over MYAH's operations arose, and the parties' relationship began to deteriorate. According to Dr. Eddleman, PVCC made significant changes to MYAH's operations, including shifts in employee training practices, changes to routine maintenance of the hospital facility, departures from established protocols, and alleged failures to comply with various state and federal laws. [Id. at ¶¶ 28-29, 31-32, 55-56, 59-62]. Dr. Eddleman also claims that PVCC neglected to maintain the Property by failing to: service medical equipment, operate dehumidifiers to prevent the buildup of mold, replace light bulbs, and prevent the deterioration of the flooring. [Id. at ¶¶ 39-42].
In response to these changes, Dr. Eddleman voiced her concerns to PVCC. She did so several times between May 2021 and January 2022. [Id. at ¶¶ 33, 63]. On
January 10, 2022, Dr. Eddleman formally communicated her concerns at a meeting with PVCC, where she gave PVCC leadership a twenty-six-page letter (the "January Letter") detailing the alleged deficiencies in its operation of MYAH. [Id. at ¶ 64]. At that same meeting, she also gave PVCC a two-page list of "action items" to prompt PVCC to action. [Id. at ¶ 65]. Thereafter, Dr. Eddleman and PVCC convened on four separate occasions—January 13, 19, 20, and 26—to further discuss the January Letter. [Id. at ¶ 66].
Instead of addressing Dr. Eddleman's concerns amicably, PVCC allegedly dismissed them, and the parties' relationship continued to decline. [Id. at ¶ 34]. On March 15, 2022, PVCC met with Dr. Eddleman and placed her on a Performance Improvement Plan. [Id. at ¶ 69]. During that meeting, PVCC leadership accused Dr. Eddleman of being "disrespectful," "aggressive," and "overly critical." [Id. at ¶ 76]. PVCC also revealed that it had asked MYAH staff to "report any 'dirt' on Dr. Eddleman or anything she did wrong." [Id. at ¶ 75]. At some point, PVCC called Dr. Eddleman "emotionally abusive" in a meeting with MYAH staff present. [Id. at ¶ 121]. On March 22, 2022, PVCC expressed to Dr. Eddleman that "things were not working out" and attempted to mutually part ways with her. [Id. at ¶ 77]. Dr. Eddleman refused, citing her commitment to her patients. [Id.]. Two weeks later, on May 5, 2022, PVCC again attempted to convince Dr. Eddleman to agree to a mutual separation, but Dr. Eddleman again refused. [Id. at ¶ 78].
On May 20, 2022, PVCC placed Dr. Eddleman on indefinite administrative leave. [Id. at ¶ 79]. Despite Dr. Eddleman's "on-leave" status, PVCC continued to issue and refill prescriptions in Dr. Eddleman's name without her knowledge or consent. [Id. at ¶¶ 49, 80]. Eventually, PVCC terminated Dr. Eddleman's employment, purportedly without cause. [Id. at ¶ 81].
After Dr. Eddleman's separation from MYAH, PVCC initially permitted the Landlord to inspect the Property for purposes of determining whether maintenance or repairs were necessary. [Id. at ¶ 90]. Accordingly, on October 28, 2022, the Landlord performed a routine inspection of the Property. [Id. at ¶ 91]. During this inspection, the Landlord discovered "extensive serious maintenance and repair deficiencies." [Id.]. The inspection allegedly revealed that PVCC failed to (i) restart facility dehumidifiers, resulting in mold and mildew growth; (ii) replace HVAC filters; (iii) maintain or repair the flooring, resulting in "scratched" or "gouged down" floors; and (iv) maintain or repair the seals on elevated kennels, resulting in the discoloration of the kennel door jamb. [Id. at ¶¶ 92-95]. Thereafter, the Landlord scheduled a follow-up inspection to take place in November. [Id. at ¶ 99]. Prior to the follow-up inspection, the Landlord also discovered that PVCC's pest control company was unable to treat part of the Property for termites because PVCC did not provide access to the crawl space. [Id. at ¶ 98].
On November 22, 2022, the Landlord conducted the follow-up inspection, which revealed "further grievous repair and maintenance failures," including mold and mildew in the crawl space, fire hazards caused by an accumulation of dryer lint, and fallen insulation. [Id. at ¶¶ 99-100]. In light of these discoveries, the Landlord planned to perform monthly inspections of the Property until PVCC completed the necessary repairs. [Id. at ¶ 101]. However, PVCC refused to coordinate any further inspections with the Landlord. [Id. at ¶ 102]. Instead, on February 13, 2023, PVCC provided the Landlord with estimates for mold remediation and floor repairs, declared these repairs as "capital
repairs," and demanded that the Landlord pay both estimates. [Id. at ¶¶ 103-04].
On February 17, 2023, the Landlord provided PVCC with a notice of default under the Lease Agreement for failure to comply with the maintenance and repair obligations set forth therein. [Id. at ¶ 107]. On March 3, 2023, PVCC responded by informing the Landlord that it would not provide the Landlord with (i) access to the property, (ii) any mold cultures or proposed remedies from the mold inspector, or (iii) any repairs unless the Landlord agreed to pay for them. [Id. at ¶ 108].
II. Procedural History
On March 14, 2023, Dr. Eddleman and the Landlord (collectively, "Plaintiffs") filed this action against PVCC in the Superior Court of White County, Georgia, asserting the following claims in their complaint ("the Complaint"): breach of contract under the Employment Agreement, Asset Purchase Agreement, and Lease Agreement (Counts I, II, III); and appropriation of likeness (Count IV). [Id. at ¶¶ 109-35, 136-142]. Separately, Dr. Eddleman requests a declaratory judgment regarding the scope of the Employment and Asset Purchase Agreements' non-compete provisions (Count V). [Id. at ¶¶ 143-52]. The Landlord also requests a declaratory judgment clarifying its right of entry under the Lease Agreement (Count VI). [Id. at ¶¶ 153-58]. Finally, Plaintiffs both seek attorneys' fees (Count VII). [Id. at ¶¶ 159-61].
On May 1, 2023, PVCC removed the case to this Court. [Dkt. 1]. On May 30, 2023, PVCC then moved to dismiss the Plaintiffs' complaint. [Dkt. 7]. Plaintiffs filed a response in opposition to PVCC's Motion to Dismiss. [Dkt. 11]. PVCC then filed a reply in support of their motion [Dkt. 12]. On September 20, 2023, Plaintiffs filed a notice of mediation, notifying the Court that the parties had attempted mediation. [Dkt. 21]. The Court thereafter directed the parties to file supplemental briefs concerning the notice of mediation. [Dkt. 22]. PVCC filed a response to the notice of mediation. [Dkt. 23]. Plaintiffs filed a reply. [Dkt. 24].
DISCUSSION
I. Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). While this pleading standard does not require "detailed factual allegations," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)). To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 127 S. Ct. at 1974). A claim to relief is plausible on its face when the plaintiff pleads factual content necessary for the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Id.
At the motion to dismiss stage, "all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff." Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949). "Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. Furthermore, the Court does not "accept as true a legal conclusion couched as a factual allegation." Twombly, 127 S. Ct. at 1965.
II. Analysis
PVCC moves to dismiss Plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. PVCC makes several arguments in support of their motion: (1) Dr. Eddleman fails to state a claim for breach of the Employment Agreement because PVCC terminated her with cause and because the agreement does not create a 30 hour per week limit (Count I); (2) she fails to state a claim for breach of the Asset Purchase Agreement because, inter alia, none of the challenged statements qualify as disparaging (Count II); (3) the Landlord fails to state a claim for breach of the Lease Agreement because the allegations made in the Complaint do not pertain to obligations that PVCC is required to fulfill (Count III); (4) Dr. Eddleman fails to state a claim for appropriation of likeness because she fails to allege any facts indicating that PVCC has benefited from appropriating her likeness (Count IV); (5) her request for declaratory judgment regarding the scope of the non-compete provisions should be denied and dismissed because holistic and Eastern veterinary medicine is a type of "small animal veterinary service" (Count V); (6) the Landlord's request for declaratory judgment clarifying its right of entry to inspect the MYAH property should be dismissed because the Lease Agreement provides no such right (Count VI); and (7) Plaintiffs are not entitled to attorneys' fees because their underlying substantive claims fail (Count VII). [Dkt. 8-1].
The Court will now address each of the Plaintiffs' claims and requests, and PVCC's respective arguments for dismissal, in turn.
A. Breach of the Employment Agreement
Dr. Eddleman asserts a breach of contract claim against PVCC for breach of the Employment Agreement. [Dkt. 1-1, at ¶¶ 111-15]. She specifically claims that PVCC breached the agreement by (1) requiring her to work more than the contractually obligated 30 hours per week; and (2) terminating her employment without cause and without agreement. [Id. at ¶¶ 112-13]. The Court will address each basis for Dr. Eddleman's claim in turn.
1. Contractually Obligated 30 Hours Per Week
Dr. Eddleman contends that PVCC breached the Employment Agreement by requiring her to work more than the contractually obligated 30 hours per week. [Id. at ¶ 113]. In response, PVCC contends not only that the agreement contemplates that Dr. Eddleman may be scheduled to work more than 30 hours per week, but also that Dr. Eddleman herself agreed to work more than 30 hours per week. [Dkt. 8-1, at 7-8]. Notably, Dr. Eddleman has not responded to PVCC's Motion to Dismiss on this particular point.
Under Georgia law, "[C]ourts interpret contracts in three steps: first, the court determines whether the contract language is clear and unambiguous." Tims v. LGE Cmty. Credit Union, 935 F.3d 1228, 1237 (11th Cir. 2019) (citing City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 30, 743 S.E.2d 381 (2013)). "If the language is clear, the court applies its plain meaning; if it is unclear, the court proceeds to step two." Id. "At step two, the court attempts to resolve the ambiguity using Georgia's canons of contract construction." Id. "If the ambiguity cannot be resolved using the canons, then the court proceeds
to step three, where the parties' intent becomes a question of fact for the jury." Id.
"The cardinal rule of construction is to ascertain the intention of the parties." Id. (quotation omitted). "A contract is ambiguous when it 'leave[s] the intent of the parties in question—i.e., that intent is uncertain, unclear, or is open to various interpretations.'" Id. (alteration in original) (quoting Capital Color Printing, Inc. v. Ahern, 291 Ga. App. 101, 106, 661 S.E.2d 578 (2008)). On the other hand, "[a] contract is unambiguous when, after examining the contract as a whole and affording its words their plain meaning, 'the contract is capable of only one reasonable interpretation.'" Id.
With these principles in mind, the Court turns to Section 1 of the Employment Agreement, entitled "Responsibilities," which is the only relevant portion of the agreement. It states the following:
As a salaried employee, you agree to devote an amount of time to the performance of your duties hereunder commensurate with your position, which averages thirty (30) hours per week.... In the event adequate veterinarian coverage at the Hospital cannot be secured at a rate reasonably consistent with past practices and comparable market rates, you agree to work additional hours at the Hospital as needed to help maintain adequate veterinarian coverage at the Hospital.
[Dkt. 1-1, at Ex. 1, at § 1].
The plain and unambiguous meaning of Section 1 does not indicate any limit on Dr. Eddleman's weekly hours. Rather, it specifies the minimum number of hours Dr. Eddleman must work to fulfill her contractual duties, which the agreement characterizes as an "average" of 30 hours per week. Thus, Dr. Eddleman misinterprets Section 1 as setting a maximum number of hours she can work. In fact, it establishes a minimum number of hours she must work. Further, Section 1 contemplates that Dr. Eddleman may work more than 30 hours per week "[i]n the event adequate veterinarian coverage at the Hospital cannot be secured at a rate reasonable consistent with past practices and comparable market rates." [Id.]
Thus, Dr. Eddleman's breach of contract claim, based on PVCC requiring her to work in excess of any contractually obligated hours, cannot stand because the contract does not limit her hours at all. However, Dr. Eddleman asserts a separate basis for her claim, which the Court addresses next.
2. Termination Without Cause
Dr. Eddleman also claims that PVCC breached the Employment Agreement by unilaterally terminating Dr. Eddleman's employment without cause and without agreement. [Dkt. 1-1, at ¶ 113]. In response, PVCC argues that it terminated Dr. Eddleman for cause pursuant to Section 10(c) of the Employment Agreement. [Dkt. 8-1, at 4-5]. Section 10(c), entitled "Termination by Company for Cause," states the following:
The Company also reserves the right to terminate your employment for cause at any time and without advance notice or obligation to provide severance pay. For the purposes of this Agreement, "cause" shall mean: ... (ii) failing to perform satisfactorily, faithfully and/or diligently the reasonable duties assigned to you provided you previously received at least one notice in writing from the Company of such failure; ... or (v) committing any material breach of this Agreement.
[Dkt. 1-1, at Ex. 1, at § 10(c) (emphasis added)]. PVCC also relies on Section 8, entitled "Conflict Avoidance," which provides that Dr. Eddleman is "expected to
conduct [herself] in a professional manner at all times during [her] employment." [Id. at § 8].
With these provisions in mind, PVCC identifies several allegations in the Complaint which purportedly concede that Dr. Eddleman either: (1) failed to "perform satisfactorily, faithfully, and/or diligently" her assigned duties; or (2) failed to conduct herself in a "professional manner" such that she committed a "material breach" of the agreement. Namely, PVCC relies on the allegation that Dr. Eddleman was accused of being "disrespectful, aggressive, overly critical, and scaring the other staff at MYAH" as evidence of her unprofessional conduct and failure to perform satisfactorily. [Dkt. 8-1, at 5].
While the Court understands PVCC's contentions, the Court cannot, at this stage, dismiss Dr. Eddleman's breach of the Employment Agreement claim. The Court bases this conclusion on two reasons.
First, Dr. Eddleman has properly pled her breach of contract claim. The Employment Agreement does not permit PVCC to terminate Dr. Eddleman without cause. [Dkt. 1-1, at Ex. 1, at § 10(a)-(d)]. Here, the Complaint alleges that PVCC did just that. [Dkt. 1-1, at ¶¶ 19, 112]. Taking these allegations as true, as it must at this stage, the Court finds that Dr. Eddleman has sufficiently stated her breach of contract claim.
Second, PVCC's contentions that cause existed to terminate Dr. Eddleman raise issues of fact that prevent the Court from dismissing the claim as a matter of law. For example, while PVCC accuses Dr. Eddleman of being "disrespectful," "aggressive," and "overly critical," these accusations were pled as just that—mere accusations. [Id. at ¶ 76]. Nothing on the face of the Complaint indicates that Dr. Eddleman admitted to or acknowledged acting that way. And whether Dr. Eddleman actually behaved in such a manner, such that dismissal may be proper, is a question better left for summary judgment.
Because Dr. Eddleman adequately alleges that she was terminated without cause and without agreement, she has alleged sufficient facts to state a breach of contract claim for breach of the Employment Agreement. PVCC's Motion to Dismiss Dr. Eddleman's breach of contract claim for breach of the Employment Agreement is DENIED.
B. Breach of the Asset Purchase Agreement
Dr. Eddleman also asserts a breach of contract claim against PVCC for breach of the Asset Purchase Agreement. [Dkt. 1-1, at ¶ 119]. More specifically, Dr. Eddleman contends that PVCC disparaged her to her clients, the community, Dr. Eddleman herself, and the MYAH staff, in violation of the agreement's non-disparagement provision. [Id. at ¶¶ 120-22, 127]. In response, PVCC argues that this claim should be dismissed because Dr. Eddleman (1) fails to allege that she complied with the agreement's mediation provision prior to filing this lawsuit; and (2) the Complaint fails to specify who from PVCC made the allegedly disparaging comments. [Dkt. 8-1, at 8-10]. Even on the merits, however, PVCC argues that Dr. Eddleman's claim should be dismissed because "none of the alleged
In light of Dr. Eddleman's notice of mediation, the parties have agreed that "it is appropriate for the Court to address [PVCC]'s Motion to Dismiss as to Count Two on the merits." [Dkts. 23, 24]. Accordingly, the Court will not address whether Dr. Eddleman has fulfilled her obligations under the Asset Purchase Agreement's mediation provision.
statements relied upon by Dr. Eddleman qualify as disparaging." [Id. at 10-12].
"In construing contracts, [courts] are bound to ascribe to words 'their usual and common signification.'" Eichelkraut v. Camp, 236 Ga. App. 721, 723, 513 S.E.2d 267 (1999) (quoting O.C.G.A. § 13-2-2(2)). Accordingly, Georgia courts use a dictionary definition of "disparagement" when addressing non-disparagement provisions. See, e.g., id. (using Webster's Dictionary to define "disparagement" in a settlement agreement's non-disparagement clause); City Grp., Inc. v. Ehlers, 198 Ga. App. 709, 709, 402 S.E.2d 787 (1991) (using Webster's Dictionary to define "disparagement" in a severance agreement's non-disparagement clause); Sullivan v. Harper, 352 Ga. App. 427, 434, 834 S.E.2d 921 (2019) (using Webster's Dictionary to define "disparagement" in a divorce decree's non-disparagement clause). "The term, 'disparagement,' is defined in Webster's Third New Intl. Dictionary (1961) as 'diminution of esteem or standing and dignity; disgrace ..., the expression of a low opinion of something; detraction.'" Eichelkraut, 236 Ga. App. at 723, 513 S.E.2d 267.
With these principles in mind, the Court turns to the relevant provision of the Asset Purchase Agreement. Section 5.1(d), entitled "Non-Disparagement; Non-Interference" ("the Non-Disparagement Provision"), states the following:
Each Restricted Party agrees that in order to fulfill the purpose and intent of this Article 5, none of the Restricted Parties will in any way intentionally make false or disparaging comments or other false or disparaging communications about Buyer or its affiliates, its business or business practices, products or services, employees or independent contractors. Correspondingly, members of executive management of Buyer shall not in any way intentionally make false or disparaging comments or other false or disparaging communications about any Seller Party.
[Dkt. 8-2, § 5.1(d) (emphasis added)].
At the outset, the Court notes a deficiency in the Complaint. The Non-Disparagement Provision only prohibits members of PVCC's executive management from disparaging Dr. Eddleman. However, Dr. Eddleman has failed to allege who made the alleged statements. In response, Dr. Eddleman has expressed her willingness to amend the Complaint to satisfy this requirement. [Dkt. 11, at 10-11]. Thus, in an effort to be thorough and exhaustive, the Court will address the merits of Dr. Eddleman's claim. Accordingly, the Court now reviews the allegedly disparaging statements that PVCC made to (1) Dr. Eddleman's clients; (2) the community; (3) Dr. Eddleman herself; and (4) the MYAH staff.
1. Dr. Eddleman's Clients
Dr. Eddleman alleges PVCC disparaged her to her former clients. She relies on the following two allegations to support her claim: (1) after placing Dr. Eddleman on leave, PVCC continued to take messages from clients on her behalf, but refused to pass those messages along to Dr. Eddleman; and (2) when a client asked about Dr. Eddleman's extended absence, PVCC gave "multiple inconsistent explanations" and then stated that "it did not know." [Dkt. 1-1, at ¶¶ 123, 125]. PVCC argues that neither action constitutes disparagement. [Dkt. 8-1, at 11-12]. The Court agrees.
First, PVCC's refusal to pass along client messages falls outside the scope of the Non-Disparagement Provision. The provision prohibits PVCC from making "false or disparaging comments or other false or disparaging communications." [Dkt. 8-2, § 5.1(d) (emphasis added)]. But PVCC's alleged inaction cannot be considered
a comment or communication in the ordinary sense. To the extent that PVCC's inaction could be construed as a communication, it is not a communication that "dimin[ishes] esteem or standing and dignity" or amounts to "an expression of a low opinion of something." Therefore, PVCC's alleged inaction falls outside the scope of the Non-Disparagement Provisions.
Second, PVCC's allegedly inconsistent explanations, or lack thereof, when explaining Dr. Eddleman's extended absence to her clients, does not qualify as disparaging. The Complaint does not specify what these "inconsistent explanations" were; it alleges only that PVCC stated "it did not know" in response to a client's question. Taking this allegation as true, the Court finds that there is no reasonable interpretation of that statement that could be considered disparaging. Merely replying "I don't know" does not amount to a comment that "dimin[ishes] esteem or standing and dignity." Nor does it "express[]... a low opinion of something." Therefore, PVCC's statement that it "did not know" cannot constitute disparagement.
Thus, the Court finds that both PVCC's inaction and its statement toward Dr. Eddleman's former clients are not disparaging. Accordingly, Dr. Eddleman's claim cannot stand on this basis.
2. The Community
Dr. Eddleman also alleges that PVCC spoke disparagingly about her to "the community." [Dkt. 1-1, at ¶ 127]. But the Complaint does not specify what the contents of the allegedly disparaging statements were, nor to whom the statements were made. Instead, Dr. Eddleman bases her allegation merely "[u]pon information and belief." [Id.]. As a result, Dr. Eddleman's complaint contains insufficient facts from which the Court could even draw a reasonable inference that PVCC disparaged Dr. Eddleman to "the community." Accordingly, Dr. Eddleman's claim cannot stand on this basis.
3. Dr. Eddleman Herself
Dr. Eddleman also alleges that PVCC spoke disparagingly to her personally by calling her "disrespectful" and "aggressive" and by accusing her of "failing to perform her employment responsibilities." [Dkt. 1-1, at ¶ 120]. In response, PVCC contends that its comments cannot be disparaging because, under tort law principles of defamation, they were never "published." [Dkt. 8-1, at 10-11]. Dr. Eddleman argues that PVCC's reliance on defamation law is misplaced, emphasizing that "there are no non-disparagement cases articulating that [publication] requirement." [Dkt. 11, at 11]. PVCC counters by stating that Dr. Eddleman "fails to cite any example where an unpublished statement does support such a claim." [Dkt. 13-1, at 4].
As an initial matter, the Court agrees with PVCC and concludes that a statement must be "published"—shared with someone other than the disparaged—to be considered disparaging under the Non-Disparagement Provision. The Court bases its decision on three separate reasons.
First, some definitions of disparagement contemplate the publication or sharing of a statement. Merriam-Webster defines "disparagement" as "the publication of false and injurious statements that are derogatory of another's property, business, or product." Disparagement, MERRIAM-WEBSTER.COM LEGAL DICTIONARY (emphasis added), https://www.merriam-webster.com/legal/disparagement (last visited Oct. 23, 2023). Similarly, Black's Law Dictionary defines "disparagement" as "[t]he act or an instance of unfairly castigating or detracting from the reputation of someone or something." Disparagement, BLACK'S LAW
DICTIONARY (11th ed. 2019) (emphasis added). Both definitions of "disparagement" contemplate that the disparager must communicate with someone other than the person being disparaged. This is because one cannot "castigate" another's "reputation" by merely speaking to them personally.
Second, disparagement is sometimes understood as a type of defamation, which requires publication. The Georgia Court of Appeals, in addressing a non-disparagement clause, acknowledged that "disparagement is identified as a form of slander or defamation under O.C.G.A. § 51-5-4(a)(4)." Eichelkraut, 236 Ga. App. at 723, 513 S.E.2d 267. The Eichelkraut court continued, however, by stating that "this statutory definition of a tort does not dispense with the cardinal rule of contract construction that in interpreting contracts, we must ascertain the intent of the parties." Id. (citing O.C.G.A. § 13-2-3). The Court reads Eichelkraut as stating that tort law principles of defamation or slander—like publication —may be applicable when addressing non-disparagement clauses unless the intent of the parties indicates otherwise. With that in mind, the Court recognizes that "a requisite element of ... slander,..., is that the allegedly ... slanderous comment be 'published' to a third party." Nida v. Echols, 31 F. Supp. 2d 1358, 1374 (N.D. Ga. 1998). This suggests that publication is also a requisite element of disparagement, just as it is for defamation.
Third, the parties likely did not intend the Non-Disparagement Provision to extend to personal, non-published communications between each other. The provision's placement and context strongly imply that it is aimed at preventing the parties from damaging each other's businesses through unfair competition. For example, the Non-Disparagement Provision is located within Article 5 of the Asset Purchase Agreement, entitled "Covenant Not to Compete; Confidentiality." [Dkt. 8-2, at § 5.1 (emphasis added)]. Article 5 houses other provisions relating to unfair competition, including Section 5.1(b), entitled "Non-Competition; Non-Solicitation." [Id. at § 5.1(b) (emphasis added)]. Further, the Non-Disparagement Provision itself is entitled "Non-Disparagement; Non-Interference." [Id. at § 5.1(d) (emphasis added)]. And, in addition to prohibiting disparagement, Section 5.1(d) also prohibits the parties from "induc[ing] or attempt[ing] to induce, any client, ... or prospective client ... to cease or curtail their business relationship with the Business...." [Id.]. Thus, given that the Non-Disparagement Provision is meant to prevent economic harm, the parties likely never intended for it to extend to non-published communications that never reach anyone other than Dr. Eddleman herself. This is because such private communications cannot cause economic harm or otherwise constitute unfair competition.
In light of the foregoing, the Court finds that the doctrine of publication is both instructive and applicable here. Therefore, PVCC's statements must have been communicated to someone other than Dr. Eddleman to fall under the Non-Disparagement Provision. Here, however, PVCC's statements toward Dr. Eddleman were never communicated to anyone but her and, therefore, were never published. Accordingly, PVCC did not violate the Non-Disparagement Provision, and Dr. Eddleman's claim cannot stand on this basis.
4. MYAH Staff
Lastly, Dr. Eddleman alleges that PVCC spoke disparagingly about her to MYAH staff. [Dkt. 1-1, at ¶ 121]. She bases this claim on two specific allegations: (1) PVCC's request to MYAH staff "to report any 'dirt' on Dr. Eddleman or anything she did wrong"; and (2) PVCC's
statement that Dr. Eddleman was "emotionally abusive" during a meeting where MYAH staff was present. [Id. at ¶¶ 75, 121]. PVCC argues that neither communication constitutes disparagement because they were never "published" under the intracorporate communications exception. [Dkt. 8-1, at 11]. In response, Dr. Eddleman contends that principles of defamation are inapplicable, and, alternatively, that the intracorporate communications exception does not apply here. [Dkt. 11, at 11].
A requisite element of defamation is that the allegedly defamatory comment be "published" to a third party. See Nida, 31 F. Supp. 2d at 1374. "[P]ublication is achieved by communicating a defamatory statement to anyone other than the person being defamed." Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 133, 670 S.E.2d 818 (2008) (quotation omitted). "An exception to that broad definition has evolved over time, however, and it now excludes communications that are 'intracorporate, or between members of unincorporated groups or associations, and... heard by one who, because of his/her duty or authority has reason to receive... information.'". Id. Thus, "when the communication is intracorporate, and is received in the course of a duty or by virtue of an authority, there is no publication." Atlanta Multispecialty Surgical Assocs., LLC v. DeKalb Med. Ctr., Inc., 273 Ga. App. 355, 357, 615 S.E.2d 166 (2005). "The rationale behind this rule is that such a communication is the equivalent of 'speaking to one's self.'" Nida, 31 F. Supp. 2d at 1374 (quoting Kurtz v. Williams, 188 Ga. App. 14, 15, 371 S.E.2d 878 (1988)). Although Dr. Eddleman does not assert a claim for defamation, the Court nonetheless finds that the intracorporate communications exception is instructive and applicable. This exception to publication is especially pertinent here because publication is a necessary element of disparagement under the Non-Disparagement Provision. The Court now turns to the relevant allegations.
The Court finds that PVCC's request to MYAH staff to "report any dirt on Dr. Eddleman" does not constitute disparagement. PVCC's request cannot be considered disparaging because it does not in any way "dimin[ish] esteem or standing and dignity." Nor does it "express[] ... a low opinion of something." Notably, PVCC's statement does not accuse Dr. Eddleman of anything. On the contrary, the plain import of PVCC's request indicates that PVCC was looking to discover any wrongdoings committed by Dr. Eddleman, as opposed to accusing Dr. Eddleman of any wrongdoings. Therefore, PVCC's request to MYAH staff cannot constitute disparagement.
On the other hand, PVCC's comment that Dr. Eddleman is "emotionally abusive" could constitute disparagement. At the outset, the Court notes that PVCC's comment meets the definition of disparagement. A remark that someone is "emotionally abusive" is one that "dimin[ishes] esteem or standing and dignity." Furthermore, the comment itself was published because PVCC shared it with someone other than Dr. Eddleman—the MYAH staff.
Having determined that this comment could constitute disparagement, the Court must now ask whether the intracorporate exception applies. Here, PVCC clearly owns and operates MYAH, and, therefore, comments made between PVCC and the MYAH staff should be treated as comments made within a single entity for purposes of Dr. Eddleman's claim. The only remaining question, then, is whether MYAH staff members received this communication "in the course of a duty or by
virtue of an authority." Atlanta Multispecialty Surgical Assocs., LLC, 273 Ga. App. at 357, 615 S.E.2d 166. If so, then no publication has occurred, and PVCC did not violate the Non-Disparagement Provision.
The Court concludes that the Complaint lacks sufficient allegations to answer this question in the affirmative. The Complaint does not identify the purpose of the meeting wherein PVCC made the allegedly disparaging comment. Nor does the Complaint identify the duties or responsibilities of the MYAH staff members that were present at that meeting. In fact, the Complaint does not identify any MYAH staff members at all. PVCC maintains, however, that it made the alleged comment during an "intra-corporate investigation." [Dkt. 13-1, at 4-5]. But there are no allegations in the Complaint that suggest that such an investigation ever occurred. Rather, Dr. Eddleman merely alleges that PVCC called her "emotionally abusive" "in a meeting with PVCC leadership and MYAH staff." [Dkt. 1-1, ¶ 121 (emphasis added)]. As a result, there is some factual ambiguity which precludes the Court from concluding that the intracorporate exception applies.
Given this ambiguity, the Court cannot dismiss Dr. Eddleman's claim. The Court notes that, at this stage, it must construe all reasonable inferences in the light most favorable to Dr. Eddleman. As a result, the Court must presume a circumstance in which PVCC made its allegedly disparaging comment to a member of MYAH staff who had no authority or duty to receive it and that therefore the intracorporate exception does not apply. A brief development of the record, however, could reveal the purpose of the meeting in question, as well as the duties of each MYAH staff member that was present at that meeting. For these reasons, the Court finds that Dr. Eddleman's claim is better left for summary judgment.
Accordingly, PVCC's Motion to Dismiss Dr. Eddleman's breach of contract claim for breach of the Asset Purchase Agreement is GRANTED in part and DENIED in part. It is DENIED in so far as Dr. Eddleman's claim is based on PVCC's comment to MYAH staff that Dr. Eddleman is "emotionally abusive." It is GRANTED as to all other bases for Dr. Eddleman's claim.
C. Breach of the Lease Agreement
The Landlord asserts a breach of contract claim against PVCC for breach of the Lease Agreement. [Dkt. 1-1, at ¶ 130-31]. In support, the Landlord alleges that PVCC (1) failed to have various medical equipment regularly serviced, [id. at ¶ 39]; (2) failed to replace lightbulbs, [id. at ¶ 42]; (3) declined to hire a professional cleaning service for MYAH, thereby failing to comply with state and federal regulations, [id. at ¶¶ 44-46]; (4) failed to replace HVAC filters, [id. at ¶ 43]; (5) failed to maintain or repair seals on the elevated kennels, resulting in discoloration of the kennel door jamb, [id. at ¶ 95]; (6) failed to treat the crawl space for termites, [id. at ¶ 98]; (7) failed to restart the dehumidifiers, leading to the development of mold and mildew in the basement of the facility, [id. at ¶ 92]; and (8) failed to maintain or repair the floor of the facility [id. at ¶¶ 41, 94]. In response, PVCC contends that none of the Landlord's allegations constitute breaches of the Lease Agreement because they are either not obligated under the agreement, or because they are actually obligations of the Landlord and not PVCC. [Dkt. 8-1, at 12-13].
In taking the aforementioned allegations as true, and construing the reasonable inferences drawn therefrom in the light most favorable to the Landlord, the Court finds
that the Complaint pleads sufficient facts to state a claim for breach of contract under the Lease Agreement. However, instead of engaging with each allegation as it pertains to every relevant provision of the Lease Agreement, the Court believes it would be prudent to allow the parties to first gather evidence. The Court recognizes that there are potential issues of fact here requiring development of the record before it can rule as a matter of law. Accordingly, PVCC's Motion to Dismiss the Landlord's breach of contract claim for breach of the Lease Agreement is DENIED.
D. Appropriation of Likeness
Dr. Eddleman asserts an appropriation of likeness claim against PVCC. [Dkt. 1-1, at ¶¶ 136-42]. She alleges that PVCC continues to write, renew, and refill prescriptions for its patients under Dr. Eddleman's name and license, despite having terminated her employment. [Id. at ¶¶ 137-39]. She further alleges that she has not consented to the use of her name for such purposes. [Id. at ¶ 140]. In response, PVCC argues that Dr. Eddleman has failed to allege the facts required to establish a necessary element of an appropriation of likeness claim—namely, that the appropriator (here, PVCC) has benefited or derived value from the appropriation. [Dkt. 8-1, at 17-19]. As a result, PVCC asserts that Dr. Eddleman has merely stated a legal conclusion couched as a factual allegation. [Id.]. The Court disagrees with PVCC and finds that Dr. Eddleman has alleged sufficient facts that plausibly state a claim for appropriation of likeness.
An appropriation of likeness claim involves the "appropriation of the plaintiff's name or likeness for the defendant's advantage." Thomas v. Food Lion, LLC, 256 Ga. App. 880, 883, 570 S.E.2d 18 (2002) (emphasis added). "[A]n appropriation of likeness claim in Georgia consists of the following elements: '[1] the appropriation of another's name and likeness[] ... [2] without consent [, and] [3] for the financial gain of the appropriator.'" Bullard v. MRA Holding, LLC, 292 Ga. 748, 752, 740 S.E.2d 622 (2013) (alterations in original) (quoting Martin Luther King, Jr., Ctr. For Soc. Change, Inc. v. Am. Heritage Prods., Inc., 250 Ga. 135, 143, 296 S.E.2d 697 (1982)).
Here, the Complaint alleges that PVCC, after terminating Dr. Eddleman, continued to use her name and license for the purposes of issuing and refilling prescriptions. [Dkt. 1-1, at ¶¶ 49, 137, 139]. The Complaint also alleges that PVCC did so without Dr. Eddleman's consent. [Id.]. Based on these allegations, and construing the reasonable inferences drawn therefrom in the light most favorable to Dr. Eddleman, the Court finds that Dr. Eddleman has successfully alleged enough facts to satisfy each element of her appropriation of likeness claim. Further, the Court can reasonably infer that PVCC is deriving some "financial gain" from the appropriation of Dr. Eddleman's name.
PVCC contends, however, that the Complaint contains no allegations indicating that PVCC financially benefited from the alleged appropriation. [Dkt. 8-1, at 17-18]. PVCC is correct if it is arguing that Dr. Eddleman failed to plead a dollar value or other specified amount of enrichment attributable to PVCC's appropriation. But "detailed factual allegations" are not required to survive a motion to dismiss. Twombly, 127 S. Ct. at 1959. All that is needed here are facts from which the Court can draw a reasonable inference that PVCC financially benefited from its appropriation. And the Complaint contains enough facts to permit such an inference. PVCC is in the business of providing veterinary
services. One such service involves the issuing and refilling of prescriptions. The Court finds it difficult to imagine why PVCC would be issuing and filing prescriptions other than in the course of treatment of patients, for which PVCC expected to be paid and thus receive financial gain.
Thus, taking the allegations in the Complaint as true, the Court can reasonably infer that PVCC is deriving some commercial value from the use of Dr. Eddleman's name. As a result, Dr. Eddleman has alleged sufficient facts to plausibly state a claim for appropriation of likeness. Accordingly, PVCC's Motion to Dismiss Dr. Eddleman's appropriation of likeness claim is DENIED.
E. Declaratory Judgment (Scope of Non-Compete)
Dr. Eddleman requests a declaration clarifying the scope of both the Employment Agreement and Asset Purchase Agreement's non-compete provisions ("the Non-Compete Provisions"). [Dkt. 1-1, at ¶¶ 144-45, 150]. More specifically, Dr. Eddleman seeks a declaration that practicing "holistic and Eastern veterinary medicine" will not violate her obligations under the Non-Compete Provisions. [Id. at ¶ 150]. PVCC seeks dismissal of this claim, contending that the plain and unambiguous language of the Non-Compete Provisions prohibits Dr. Eddleman from practicing holistic and Eastern veterinary medicine. [Dkt. 8-1, at 19-22].
As stated above, the Court must begin its analysis by interpreting the plain language of the contractual provision at issue. Turning to the Employment Agreement, the Court focuses on Section 11(b), entitled "Non-Competition." [Dkt. 1-1, at Ex. 1, at § 11(b)]. It states the following:
Except with respect to the Petandim Distribution Agreement, the Animal Health Practice, and Employee's Personal Livestock but in each case subject to the restrictions set forth in Section 11(m)(b), during the Restricted Period, Employee will not directly or indirectly be employed by, become engaged in, invest in, or otherwise provide services to or on behalf of a Competing Business within the Territory.
[Id. (emphasis added)]. Similarly, Section 5.1(b) of the Asset Purchase Agreement, entitled "Restrictive Covenants," states the following:
During the Restricted Period, none of the Restricted Parties will directly or indirectly (whether on his, her or its own behalf, on behalf of a Competing Business, or any other entity, or otherwise): (i) except with respect to the Petandim Distribution Agreement, the Animal Health Practice and Owner's Personal Livestock but in each case subject to the restrictions set forth in Section 5.1(j)(ii), establish, conduct, invest in, open or reopen or become engaged by or in a Competing Business, directly or indirectly, as an individual, employee, consultant, agent or member of a partnership, owner, officer, equity holder or otherwise within the Territory, or prepare to do any of the foregoing....
[Dkt. 8-2, at § 5.1(b) (emphases added)]. Both agreements define "Competing Business" as "small animal veterinary services." [Id. at § 5.1(a)(i); Dkt. 1-1, at Ex. 1, at § 11(b)].
The Court finds that the plain and unambiguous meaning of the Non-Compete Provisions bars Dr. Eddleman from providing any "small animal veterinary services," and, by extension, from practicing "holistic and Eastern veterinary medicine." The Court comes to its conclusion in two steps: (1) by identifying the scope of prohibited activities under the Non-Compete Provisions; and then, (2) by determining
whether "holistic and Eastern veterinary medicine" falls under that scope. In addressing both questions, the Court is mindful that "[t]he cardinal rule of construction is to ascertain the intention of the parties." Tims, 935 F.3d at 1237 (quotation omitted).
The Court finds that the Non-Compete Provisions' scope of prohibited activities encompasses "small animal veterinary services." The Employment Agreement bars Dr. Eddleman from "engag[ing] in," or "otherwise provid[ing] services to or on behalf of a Competing Business." [Dkt. 1-1, at Ex. 1, at § 11(b) (emphasis added)]. Similarly, the Asset Purchase Agreement bars Dr. Eddleman from "conduct[ing], invest[ing] in," or "becom[ing] engaged by or in a Competing Business." [Dkt. 8-2, at § 5.1(b) (emphasis added)]. Both agreements define "Competing Business" as "small animal veterinary services." [Id. at § 5.1(a)(i); Dkt. 1-1, at Ex. 1, at § 11(a)]. Accordingly, the Non-Compete Provisions bar Dr. Eddleman from providing "small animal veterinary services." The Court must next determine whether "holistic and Eastern veterinary medicine" falls under that category of services.
The Court finds that the practice of "holistic and Eastern veterinary medicine" is a type of "small animal veterinary services," and therefore falls under the scope of the Non-Compete Provisions' prohibited activities. Dr. Eddleman herself implicitly admits as much because the Complaint reveals that "holistic and Eastern veterinary medicine" is an alternative treatment option to the ordinary veterinary services she offers. [Dkt. 1-1, at ¶ 9]. To find otherwise would be to frustrate the intent of the parties. The Non-Compete Provisions' purpose is to prevent Dr. Eddleman from "taking unfair advantage of ... [her] past employment to compete against [PVCC]," so that PVCC's investment remains valuable. [Dkt. 1-1, at Ex. 1, at § 11]. If Dr. Eddleman were permitted to practice "holistic and Eastern veterinary medicine"—the very service she provided during her time at MYAH—then it would likely frustrate the purpose of PVCC's investment in MYAH, and therefore the intention of the parties. Thus, the Court finds that the Non-Compete Provisions prohibit Dr. Eddleman from practicing holistic and Eastern veterinary medicine.
Dr. Eddleman, however, argues that practicing holistic and Eastern veterinary services would not violate her non-compete obligations because PVCC no longer provides such services. [Dkt. 1-1, at ¶¶ 148-49]. Put simply, Dr. Eddleman contends that she cannot compete with PVCC because she offers a specific kind of service that PVCC does not provide. [Id.]. In support, Dr. Eddleman points to language from the Georgia Restrictive Covenant Act ("RCA"), which provides that "[t]he scope of competition restricted is measured by the business of the employer or other person or entity in whose favor the restrictive covenant is given." O.C.G.A. § 13-8-56(3) (emphasis added). The Court disagrees.
The RCA provision that Dr. Eddleman relies on does little to support her position. As an initial matter, the Court notes that the cited provision relates to presumptions the Court must make when determining the reasonableness of a restrictive covenant. Id. ("In determining the reasonableness of a restrictive covenant ... the court shall make the following presumptions...."). But here, the Court has not been called on to address the reasonableness of the provisions; rather, it is required to declare the scope of the Non-Compete Provisions. [Dkt. 1-1, at ¶¶ 144-45, 150]. Even assuming that Code section 13-8-56(3) is the operative provision here, its language is just as consistent with PVCC's position as it is with Dr. Eddleman's position.
If PVCC's business encompasses "small animal veterinary services," then against that measure, Dr. Eddleman cannot practice holistic and Eastern veterinary medicine because doing so would be providing the same business as PVCC.
Instead, the Court believes that the more pertinent language in the RCA is found in Code section 13-8-53(c)(1), which applies to restrictive covenants generally. O.C.G.A. § 13-8-53(c)(1). It provides that "services that are competitive with the ... services of an employer shall include ... services that are the same as or similar to the services of the employer." Id. (emphasis added). Here, holistic and Eastern veterinary medicine is, at the very least, similar to small animal veterinary services. This is because holistic and Eastern veterinary medicine is a type of small animal veterinary service. Dr. Eddleman, however, contends that such an interpretation would be overbroad and unreasonable, and therefore unenforceable, under the RCA. [Dkt. 11, at 23]. But, contrary to Dr. Eddleman's assertions, Georgia law has long upheld the validity of other, similarly situated non-compete provisions under the RCA. See, e.g., Glob. Payments Inc. v. Green, 484 F. Supp. 3d 1372, 1379 (M.D. Ga. 2020) (finding non-compete covenants' scope of prohibited activities reasonable because "they only prohibit [the former employee] from performing the type of activities he performed while at [former employer], and they only prohibit [the former employee] from performing those activities for competitors who provide the same types of services [the former employer] provides" (emphases added)).
For these reasons, Dr. Eddleman's request for declaratory judgment as to the scope of the noncompete is DENIED. Accordingly, PVCC's Motion to Dismiss Dr. Eddleman's request for declaratory judgment is GRANTED.
F. Declaratory Judgment (Right of Entry)
The Landlord also seeks a declaration clarifying whether it can inspect the MYAH property for repairs and maintenance. [Dkt. 1-1, at ¶ 158]. The Landlord maintains that it can, based on Section 20 of the Lease Agreement. [Id. at ¶ 155]. PVCC, however, contends that Section 20 provides no such freestanding right of inspection. [Dkt. 8-1, at 22-24]. More specifically, PVCC argues that Section 20 enumerates four, exclusive circumstances under which the Landlord may enter the Property, and inspection for repairs and maintenance is not one of those listed circumstances. [Id.]. The Landlord counters by arguing that PVCC makes an unwarranted assumption in interpreting Section 20 as an exhaustive list. [Dkt. 11, at 23-24]. Rather, the Landlord contends that Section 20's exhaustiveness is ambiguous. [Id.].
Under Georgia law, courts "construe a contract in a manner that does not render any of its language meaningless or mere surplusage." H&E Innovation, LLC v. Shinhan Bank Am., 343 Ga. App. 881, 886, 808 S.E.2d 258 (2017). "[A]nd under the 'expressio unius est exclusio alterius' rule of construction, 'the express mention of one thing [in a contract] implies the exclusion of another.'" Id. at 886-87, 808 S.E.2d 258 (alteration in original) (quotation omitted); see also , e.g., George L. Smith II Ga. World Congress Ctr. Auth. v. Soft Comdex, Inc., 250 Ga. App. 461, 464, 550 S.E.2d 704 (2001) ("[U]nder the maxim 'expressio unius est exclusio alterius,' the list of 'Facilities Licensed' in the contract is presumed to exclude any facility not specifically listed."). With these principles in mind, the Court turns to the relevant provision of the Lease Agreement. Section 20 of the Lease Agreement, entitled "Landlord's Entry of Premises," states the following:
Landlord may advertise the Premises "For Rent" or "For Sale" and may enter the Premises with reasonable prior notice and at reasonable hours to exhibit same to prospective purchasers or tenants.... Although Landlord shall have no obligation to inspect the Premises. In addition, Landlord may enter the Premises at any time during the term of this Lease in the event of an emergency without Tenant's advance permission and on other occasions with reasonable prior notice and at reasonable hours to exhibit same to prospective mortgagees and to make repairs required of Landlord under the terms hereof.
[Dkt. 1-1, at Ex. 2, at § 20 (emphases added)].
A plain reading of Section 20 reveals an exhaustive list, permitting the Landlord to enter the Property under four circumstances: (1) to show the Property to prospective tenants and purchasers; (2) in the event of an emergency; (3) to show the Property to prospective mortgagees; or (4) to make repairs required of the Landlord under the lease terms. This list of enumerated circumstances is presumed to exclude any circumstance not enumerated. See H&E Innovation, 343 Ga. App. at 886, 808 S.E.2d 258. And nothing in this provision explicitly provides the Landlord with a general right to inspect the Property for repairs and maintenance.
The Landlord, however, argues that Section 20 is ambiguous as to whether it provides an exhaustive list because Section 20 does not explicitly state it is exhaustive. [Dkt. 11, at 23-24]. Accordingly, the Landlord interprets Section 20 to provide the Landlord with a freestanding right to enter the Property. [Id.]. It argues that this interpretation is consistent with the remainder of Section 20, which states the following:
Landlord shall have the right to hold passkeys and security system codes necessary for access to the Premises. Tenant shall not change the locks or install additional locks or security systems at the Premises without Landlord's consent, which consent will not be unreasonably withheld, conditioned or delayed, and Landlord shall be provided duplicates of any new keys, or passkeys, and security system codes. No entry shall constitute an eviction or a breach of Landlord's covenant for quiet enjoyment or entitle Tenant to an abatement of rent.
[Dkt. 1-1, at Ex. 2, at § 20 (emphases added)]. The Landlord emphasizes that Section 20 ensures the right of the Landlord to maintain current keys and access to the Property; prohibits PVCC from changing the locks; and clarifies that "[n]o entry [by the Landlord] shall constitute ... a breach of Landlord's covenant for quiet enjoyment...." [Dkt. 11, at 24]. According to the Landlord, "[t]hese specified rights ... ensure that [it] is always able to access the Property." [Id. at 24 (emphasis added)]. The Court disagrees.
As mentioned before, the Court finds that Section 20's list of enumerated circumstances is presumed to exclude any circumstance not enumerated. To interpret the list otherwise would be to render the entirety of the list as mere surplusage. Furthermore, interpreting Section 20's list as exclusive does not render the remainder of the provision meaningless. Ensuring the Landlord's right of access is consistent with limiting its right of entry to specific circumstances. For example, Section 20 could forbid PVCC from changing the locks to ensure that the Landlord can enter the Property, but only when the Landlord enters for the limited purpose of
showing it to prospective buyers. Thus, contrary to the Landlord's contentions, Section 20's exhaustiveness can easily be reconciled with its explicit assurance that the Landlord have access to the Property. Therefore, the Court finds that Section 20's list is best understood as an exhaustive one. And because the list does not permit entry for inspection, the Landlord is not entitled to enter for that purpose— at least not based on Section 20.
The Landlord alternatively requests the Court to declare that the Landlord may enter the Property on the basis of an "emergency"—one of the circumstances enumerated in Section 20. [Id.]. However, the Landlord's request for declaratory judgment, as alleged in the Complaint, sought clarification of the right of entry for purposes of inspection, not on the basis of an emergency.
The Court, however, notes some contractual ambiguity surrounding whether the Landlord has an implied right of entry to inspect for repairs and maintenance. Under Section 8 of the Lease Agreement, entitled "Repairs by Landlord," the Landlord retains obligations to make certain repairs to the Property. [Id. at § 8]. PVCC itself agrees as much. [Dkt. 8-1, at 16 ("[C]apital repairs and replacements are the obligation of the Landlord."); Dkt. 13-1 (contending that floor replacements and mold remediation are "the responsibility of the Landlord")]. Indeed, Section 20 even permits the Landlord to enter the Premises "to make repairs required of Landlord under the terms hereof." [Dkt. 1-1, at Ex. 2, at § 20]. But the Landlord cannot hope to fulfill its repair obligations without first being made aware of when such repairs are necessary. And the Landlord cannot be made aware unless: (1) the tenant notifies the Landlord, or (2) the Landlord is able to enter and inspect the Property. Otherwise, the Landlord might unknowingly be in breach of the Lease Agreement for failure to undertake any contractually obligated repairs.
Thus, to protect itself from such a breach, the Landlord may be entitled to at least periodically enter and inspect the Property. Doing so would also allow the Landlord to protect its long-term interest in preventing the Property from falling into disrepair. See Flanders v. N.H. Sav. Bank, 90 N.H. 285, 7 A.2d 233, 236 (1939) ("Whether or not the tenant fails to repair..., the landlord's interest to protect his property ought to give him the right [to enter] when the exercise of the right does not interfere with the tenant's comfort and convenience."); Sproul v. Gilbert, 226 Or. 392, 359 P.2d 543, 549 (1961) ("Even in the absence of express reservations in the creating instrument, ... the landlord always has the right to enter to ... make repairs."). Therefore, the Landlord's contractual obligation to repair may imply a concomitant right of entry to inspect for repairs. See, e.g., Grimmeissen v. Walgreen Drug Stores, 229 S.W.2d 593, 598 (Mo. Ct. App. 1950) ("[T]here was an obligation imposed on the lessor to make structural repairs, and a right to enter for that purpose must be implied as a condition of the lease." (emphasis added)). Even so, any implied right of entry for inspection is likely limited. If the Landlord does in fact retain an implied right of entry, it must be "commensurate with the scope of the obligation to repair." Cf. Ladson Investments v. Bagent, 151 Ga. App. 24, 25, 258 S.E.2d 718 (1979) (finding that "the duty to inspect arising from [] a reservation clause is only commensurate with the scope of the obligation to repair" in the premises liability context). Put simply, if the Landlord is entitled to enter the premises under its implied right of entry, that entry may be limited to such entry as is necessary to in connection with its duties of repair under the contract. For example, if the Landlord's repair obligations only extend to the roof or the sewers, then the Landlord is only allowed to enter those areas of the Property which allow it to inspect the roof or the sewers. But here, the scope of the Landlord's repair obligations is unclear. And therefore, the scope of any implied right of entry is also unclear.
To be sure, the Court notes that the last clause of Section 8 obligates the tenant to give the Landlord notice of any need for repair. [Dkt. 1-1, at Ex. 2, at § 8]. More specifically, it states: "Tenant shall promptly report in writing to Landlord any defective condition known to it which Landlord is required to repair." [Id.]. This clause permits the Landlord to fulfill its repair obligations without having to enter the Property. However, the existence of this clause does not necessarily mean that it is the only method by which the Landlord can fulfill its repair obligations. In any case, a right of entry for inspection could still be implied from the Landlord's repair obligations.
Given the uncertainty surrounding (i) whether the Landlord has an implied right of entry to inspect for repairs and maintenance; and, if so, (ii) what the Landlord's precise repair obligations are under the Lease Agreement, the Court cannot, at this stage, determine whether the Landlord has a right of entry to inspect for repair and maintenance. Accordingly, PVCC's Motion to Dismiss the Landlord's request for declaratory judgment is DENIED.
G. Attorneys' Fees and Punitive Damages Claims
Finally, Plaintiffs assert a claim for attorneys' fees under O.C.G.A. § 13-6-11 and Section 25 of the Lease Agreement. [Dkt. 1-1, at ¶¶ 160-61]. Though the Court has dismissed Dr. Eddleman's request for declaratory judgment, it has not dismissed Dr. Eddleman's breach of the Employment Agreement claim, breach of the Asset Purchase Agreement claim, appropriation of likeness claim, and the Landlord's breach of the Lease Agreement claim. Because a substantive claim remains pending in this case, and because the breach of the Lease Agreement claim still stands, so too can the Plaintiffs' claims for attorneys' fees. PVCC's Motion to Dismiss Plaintiffs' attorneys' fees claim is therefore DENIED.
CONCLUSION
For the foregoing reasons, PVCC's Motion to Dismiss [Dkt. 7] is GRANTED in part and DENIED in part. It is GRANTED as to Dr. Eddleman's breach of the Asset Purchase Agreement claim based on PVCC's statements to Dr. Eddleman, to her clients, to the community, and to PVCC's request that MYAH staff "report any dirt" on Dr. Eddleman (Count II); and Dr. Eddleman's request for declaratory judgment seeking clarification of the Non-Compete Provisions (Count V). It is DENIED as to Dr. Eddleman's breach of the Employment Agreement claim (Count I); Dr. Eddleman's breach of the Asset Purchase Agreement claim based solely on PVCC's comment to MYAH staff that Dr. Eddleman is "emotionally abusive" (Count II); the Landlord's breach of the Lease Agreement claim (Count III); Dr. Eddleman's appropriation of likeness claim (Count IV); the Landlord's request for declaratory judgment seeking clarification of its right of entry (Count VI); and Plaintiffs' attorneys' fees claim (Count VII).
SO ORDERED this 6th day of November, 2023.