Opinion
02 CIV. 7992 (DLC)
March 27, 2003
Michael E. Geltner, Geltner Associates, P.C., Washington, D.C., Attorneys for Plaintiff.
Dasil E. Velez, Carro, Velez, Carro Mitchell, LLP, New York, NY., Attorneys for Plaintiff.
Miles A. Baum, Bruce M. Ginsburg, Davis Gilbert LLP, New York, NY., Attorneys for Defendants Panoramic Communications LLC and epb.communications, inc.
OPINION AND ORDER
This diversity action, which arises out of a default on an equipment lease agreement, was filed by plaintiff ePlus Group, Inc. ("ePlus") on October 8, 2002. The complaint alleges claims for breach of contract, negligence, breach of insurance contract, breach of warranty, breach of the covenant of good faith and fair dealing, interference with contractual relations, fraudulent conveyance and conspiracy to effect fraudulent conveyance. The plaintiff has moved for summary judgment on its claim of breach of contract against defendants Panoramic Communications LLC ("Panoramic") and epb.communications, inc. ("epb") (collectively "Defendants"), and seeks enforcement of the liquidated damages provision of the contract. The Defendants contend that genuine issues of material fact exist as to both liability and damages, and argue in the alternative that plaintiff's motion is premature as discovery has not yet been conducted in this action. For the reasons stated below, the plaintiff's motion for partial summary judgment is granted in part as to liability and denied as to damages.
Defendants Heinz Waegli, Mark Griffin, The Destination Group, Redland Insurance Company, and National Casualty Company have been dismissed from the case. Defendants TDG EPB Investors, LLC and PubliGroupe, S.A., have moved to dismiss the claims against them. Subsequent to the filing of the instant motion for summary judgment and the motion to dismiss, the plaintiff filed a motion to amend its complaint. The motions to dismiss and to amend are currently sub judice. Federal Insurance Company, Travelers Indemnity Company, Panoramic and epb.com LLC have answered. Defendants epb.communications, inc. and Jeremy Brown are in default.
Background
The following facts are undisputed or as asserted by Defendants unless otherwise noted. ePlus is a commercial equipment leasing company. On May 24, 1999, ePlus and epb, then known as Earle Palmer Brown, entered into a lease agreement for computer equipment ("Master Lease"). The parties subsequently entered into twenty-five schedules ("the Schedules") which provided specific information, such as equipment lists, lease dates and rental amounts, for the individual leases covered by the Master Lease. (The Master Lease and the Schedules will be referred to collectively as the "Lease.") On April 26, 2001, the Master Lease was modified to make Panoramic a co-lessee. During the summer of 2002, the Defendants began to experience difficulty in making timely lease payments. According to a former vice president at epb, at a meeting on August 1 (the "August 2002 Meeting"), Panoramic and ePlus agreed that the purchasers of three Panoramic-related entities would retain certain of the leased equipment and that, once ePlus was able to complete new lease arrangements with these purchasers, ePlus would look exclusively to these purchasers for future rent payments.
On September 30, 2002, ePlus notified epb and Panoramic by letter that they were in default. In the letter, ePlus declared the Master Lease and the Schedules terminated as of September 1, and demanded payment of unpaid rent in the amount of $106,463.81, late fees in the amount of $3,285.73, and a casualty value payment in the amount of $1,088,445.33, for a total of $1,198,194. It is not disputed that the Defendants have not made any payments since receiving ePlus' written demand. The total amount that the plaintiff would have received had the Lease been fully performed from the date of default is $361,010.02.
Lease Terms
The Master Lease provides that the "nonpayment by Lessee of Rent or any other payable sum upon written notice by its due date" constitutes an event of default. Master Lease ¶ 14(a). In the "event of default," ePlus has several nonexclusive remedies. Id. at ¶ 14(b). ePlus may "terminate any or all Schedules," "[p]roceed by appropriate court action to enforce the performance of the Schedule and/or recover damages, including all of Lessor's economic loss for the breach," and "upon notice to Lessee, take possession of the Asset(s) wherever located." Id. Under ¶ 14(b) of the Master Lease, the lessee, upon an event of default, agrees to return the equipment to ePlus. Id.
Under the liquidated damages clause, ePlus may also require the lessees, upon notice, to pay immediately:
the sum of (a) the Casualty Value set forth on the Schedule as of the date of default, or if Casualty Values are not shown on such Schedule, all Rent due during the remainder of the Schedule Term; (b) all Rent and other amounts due and payable on or before the date of default; and (c) costs, fees (including all reasonable attorneys' fees and court costs), expenses and (d) interest on (a) and (b) from the date of default at 1½% per month or portion thereof (or the highest rate allowable by law, if less) and, on (c) from the date the Lessor incurs such fees, costs or expenses.
Id. (emphasis supplied).
The Master Lease explains that the Casualty Value is set forth in each of the respective Schedules. Id. In each Schedule the Casualty Value represents a percentage of the "Total Asset Unit Cost Value" of the leased asset. The Total Asset Unit Cost Value represents the original cost of the equipment to ePlus.
The Casualty Value varies according to the pay period in which the default occurs. For example, in one Schedule the Casualty Value rate varies from 109% of the Total Asset Unit Cost Value if a default occurs during the first pay period, to 79.6% if a default occurs during the thirty-sixth or final pay period. Thus, if a default occurs in the thirty-sixth pay period, the lessee would be obligated to pay 79.6% of the Total Asset Unit Cost as a Casualty Value. All of the Schedules have substantially the same provisions, differing only with respect to equipment specifications, length of term and amount of rent.
The Master Lease also provides an offset or credit to the lessee against the total amount of liquidated damages in certain circumstances. Id. at ¶ 14(c). In the event of default, the lessee is obligated to return the leased assets or allow the lessor to repossess them. Id. at ¶ 14(b). Upon the return or repossession of the equipment, ePlus is required to:
[U]se reasonable efforts to sell, re-lease or otherwise dispose of such Asset(s) in such manner and upon such terms as Lessor may determine in its sole discretion (the amount, if any, which Lessor certifies it obtained through remarketing shall be conclusively presumed to be the Asset(s) fair market value).
Id. at ¶ 14(c) (emphasis supplied).
Upon the disposition of the equipment, the Master Lease provides a formula for crediting the "Net Proceeds" of any sale or re-lease against the liquidated damages paid or payable by the Defendants. Id. The Net Proceeds are the proceeds from a sale less the Casualty Value, or certain proceeds from a re-lease, after "all costs and reasonable expenses" have been deducted. Costs and expenses include costs for the repair, recovery, storage, remarketing and disposition of the equipment. Id. The relevant portion of the Master Lease provides:
Upon disposition of the Asset(s), Lessor shall credit the Net Proceeds (as defined below) to the damages paid or payable by Lessee. Proceeds upon sale of the Asset(s) shall be the sale price paid to Lessor less the Casualty Value in effect as of the date of default. Proceeds upon a re-lease of the Asset(s) shall be all rents to be received for a term not to exceed the remaining Schedule Term, discounted to present value as of the commencement date of the re-lease at the Lessor's current applicable debt rate. "Net Proceeds" shall be the proceeds of sale or re-lease as determined above, less all costs and reasonable expenses incurred by Lessor in the recovery, storage and repair of the Asset(s), in the remarketing or disposition thereof, or otherwise as a result of Lessee's default, including any court costs and reasonable attorneys' fees and interest on the foregoing at eighteen percent (18%) per annum (or the highest rate allowable by law, if less), calculated from the dates such costs and expenses were incurred until received by Lessor. Lessee shall remain liable for the amount by which all sums, including liquidated damages, due from Lessee exceed the Net Proceeds. Net Proceeds in excess thereof are the property of and shall be retained by Lessor.
Id. (emphasis supplied).
As this passage indicates, only that portion of the proceeds from a sale which exceeds the Casualty Value as of the date of default is used to offset the liquidated damages. In the case of a re-lease, the amount of credit is limited to the present value of the total amount of rents to be received under the new lease for the number of months that remained under the term of the defaulted lease.
In the event the lessee is not in default, the lessee had the option to purchase the equipment at its fair market value at the end of the Lease. Schedule No. 1 ¶ 6. The relevant portion of the provision states:
Provided Lessee is not in default hereunder and Lessee gives Lessor written notice not less than ninety (90) days prior to the expiration of the Initial Lease Term, Lessee may elect to purchase all of the Asset(s) at the then current fair market value. The term "fair market value" shall mean the fair market value price, in place, that would be obtained in an arm's-length transaction between an informed and willing buyer under no compulsion to buy and an informed and willing seller under no compulsion to sell.
Id. (emphasis supplied).
Post-Default Disposition of Assets
On October 7, ePlus entered into a leasing agreement with Creative Partners LLC to re-lease some of the equipment formerly leased by Panoramic. The present value for all rents under this agreement is $18,110.08. On October 10, ePlus entered into a leasing agreement with BEN Marketing Acquisition LLC to re-lease some equipment formerly leased by Panoramic. The present value for all rents under this agreement is $61,584.06. ePlus is currently in negotiations with another company, The Michael Allen Company, to lease equipment formerly leased by the Defendants. The anticipated present value for all rents under this agreement is $12,028.56. On November 25, 2002, Panoramic returned a substantial portion of the equipment to ePlus. ePlus sold equipment returned by Panoramic through a blind bid process for $34,100.
In its reply papers, ePlus reduced its requested damages by $113,794.14 from $1,198,194.40 to $1,084,400.30. This reduction reflects a $79,694.14 credit for the re-leases and a $34,100 credit for the sale of returned equipment. Crediting the $34,000 for the sale of leased equipment does not appear to follow the procedures outlined in ¶ 14(c) of the Master Lease, which would have required this sum to exceed the Casualty Value before it could be used as a credit against the amount of liquidated damages owed by the lessee. Similarly, it is unclear if the credit given for the new leasing arrangements follows the formula in the Master Lease which would limit a credit to the present value of the payments to be made for only those months that remained under the Defendants' Lease. The parties have yet to conduct substantial discovery in this action.
Discussion
Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002). Thus, in determining whether to grant summary judgment, this Court must (1) determine whether a genuine factual dispute exists based on evidence in the record; and (2) determine, based on the substantive law at issue, whether the fact in dispute is material.
The Master Lease contains a Virginia choice of law provision. A federal court sitting in diversity must apply the choice of law rules of the forum state. See Klaxon Co. v. Stentor Elec. Mtq. Co., 313 U.S. 487, 496 (1941). Given that there are sufficient contacts between Virginia and the contract — ePlus is incorporated in Virginia and Virginia is its principal place of business — New York's choice of law rules require that the choice of law provision be enforced and that Virginia law be applied to the interpretation of the Lease. See Hartford Fire Ins. Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 556 (2d Cir. 2000).
A. Breach of Contract
The essential elements of a cause of action for breach of contract under Virginia law are: (1) a legal obligation of a defendant to the plaintiff, (2) a violation or breach of that obligation, and (3) a consequential injury or damage to the plaintiff. See Brown v. Harms, 251 Va. 301, 306 (1996); Westminister Investing Corp. v. Lamps Unlimited, 237 Va. 543, 546 (1989).
The plaintiff has established that no genuine issue of material fact exists as to its claim for breach of contract, except for those pieces of equipment re-leased as a result of the August 2002 Meeting. ePlus entered into a lease agreement with the Defendants. The terms of the Lease clearly indicated that the failure to make timely lease payments by the due date constitutes an event of default. The Defendants defaulted on their payments under the Lease — a fact not disputed by the Defendants. As a direct consequence of the Defendants' breach, ePlus suffered damage in the form of unpaid lease payments.
The Defendants have shown, through evidence that is undisputed by ePlus, that ePlus agreed at the August 2002 Meeting that certain of the Lease obligations could be transferred to entities that purchased Panoramic affiliates. The Defendants assert on informed belief, that those entities have made their required lease payments. ePlus does not dispute their assertion, and does not even address this issue in its reply brief. There is an issue of fact, therefore, as to whether a breach of contract can be found at this time as to the equipment that was re-leased as a result of the August 2002 Meeting. The motion for summary judgment on the breach of contract claim against Panoramic and epb is therefore granted to the extent it is addressed to equipment other than that re-leased pursuant to the agreement at the August 2002 Meeting.
B. The Liquidated Damages Clause
ePlus has also moved for a declaration that it is entitled to damages based upon the liquidated damages provision in the Master Lease in the amount of $1,084,400.30. The Defendants argue that the liquidated damages clause is an unenforceable penalty that seeks to recover approximately three times as much as the plaintiff would have received had there been no breach. The Defendants argue in the alternative that they are entitled to discovery on whether the clause is reasonable and whether the plaintiff has used reasonable efforts to mitigate its damages. The dispute between the parties on the issue of liquidated damages therefore involves two separate questions: (1) whether the liquidated damages clause is enforceable, and (2) whether the plaintiff has properly calculated the amount of damages given its obligation under the Master Lease to mitigate.
1. Virginia Law on Liquidated Damage Clauses in Commercial Leases
Under Virginia common law, which governed liquidated damage clauses in commercial leases until 1991, liquidated damage clauses were enforceable. Perez v. Capital One Bank, 258 Va. 612, 615 (1999). Where damages are hard to predict at the time a contract is entered, a liquidated damage clause was enforced if it was "not out of all proportion to the probable loss." Id. at 616. Where the amount of damages is predictable, such clauses were enforced when they did not "grossly exceed actual damages." Id.
In 1991, Virginia adopted Article 2A ("Article 2A") of the Uniform Commercial Code ("UCC"), which covers commercial lease agreements. 1991 Va. Acts ch. 536. Liquidated damages provisions in such leases are governed by Va. Code Ann. § 8.2A-504 (2002) ("Section 2A-504"). The relevant portion of Section 2A-504 provides:
Damages payable by either party for default, or any other act or omission, including indemnity for loss or diminution of anticipated tax benefits or loss or damage to lessor's residual interest, may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default or other act or omission.
Va. Code Ann. § 8.2A-504(1) (emphasis supplied).
The fact that a party enters into a contract containing a liquidated damages clause does not prevent that party from later litigating the validity of the clause. O'Brian v. Langley School, 256 Va. 547, 551 (1998). The party challenging the validity of the liquidated damages clause bears the burden of demonstrating its invalidity. Id.
Section 2A-504 has not yet been interpreted by a Virginia court. Virginia courts have routinely relied upon the Official Comments to the UCC, however, when construing a UCC provision adopted by Virginia. See, e.g., Ainslie v. Inman, No. 020595, 2003 WL 648139, at *3-*4 (Va. Feb. 28, 2003); Nat'l Title Ins. Corp. Agency v. First Union Nat'l Bank, 263 Va. 355, 362 (2002); Woo v. Smart, 247 Va. 365, 370 (1994). Official Comments may not, however, be used as "devices for expanding the scope of Code sections where language within the sections themselves defies such an expansive interpretation." Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 102 (2001).
As the Official Comment explains, Section 2A-504 is intended to "invite the parties to liquidate damages." Va. Code Ann. § 8.2A-504, Official Comment ("Cmt."). Through a series of significant revisions to UCC Section 8.2-718 ("Section 2-718"), the section which governs liquidated damages in sales contracts, the drafters intended to introduce "greater flexibility" in lease agreements in recognition of the fact that the "ability to liquidate damages is critical to modern leasing practice." Id.; see also 1A Thomas M. Quinn, Quinn's Uniform Commercial Code Commentary and Law Digest § 2A-504[A][2] (2d ed. 2002).
For example, Section 2A-504 does not condition the enforceability of liquidated damage provisions on the demonstration of the difficulty of proof of loss or nonfeasibility of obtaining an adequate remedy — two factors found in Section 2-718. The Section also removed the last sentence of Section 2-718 which prohibits "unreasonably large" liquidated damages so that leasing parties could liquidate damages regarding anticipated tax benefits from the contract. Cmt.
The freedom of parties to contract regarding liquidated damages is, however, still constrained by a "rule of reasonableness." Cmt. According to the Official Comment, whether a particular formula for liquidated damages is enforceable "will be determined in the context of each case by applying a standard of reasonableness in light of the harm anticipated when the formula was agreed to." Cmt. Thus, the overall effect of the revisions, as commentators have explained, is to create a standard which supports the "power of the parties to impose their own rules" and "tells the court not to substitute its judgment for the parties' agreed liquidated damages, which should be imposed unless they are unreasonable in light of the harm anticipated at signing." 2 James J. White Robert S. Summers, Uniform Commercial Code § 14-4 (4th ed. 1995); see also 5 Lary Lawrence, Lawrence's Anderson on the Uniform Commercial Code § 2A-504:3 (3d ed. 2001).
While the Official Comment does not explain how a court should determine whether a contract provision is reasonable in light of the anticipated harm, commentators have explained that "the theory of remedy [under Article 2A] is to place the lessor roughly in the same position the lessor would have been in had the first lease deal gone through." 2 James J. White Robert S. Summers, Uniform Commercial Code § 14-3. This theory of recovery is evident in the list of examples provided in the Official Comment to Section 2A-504.
The Official Comment provides four examples of common formulas used to compute liquidated damages. One example requires that proceeds from a sale or re-lease be credited against the total amount of liquidated damages. Cmt. In this formula, the "sum of lease payments past due, accelerated future lease payments, and the lessor's estimated residual interest, less the net proceeds of disposition (whether by sale or re-lease) of the leased goods" constitutes the liquidated damage. Cmt. The other examples are a "periodic depreciation allocation as a credit" to mitigate damages, a fixed number of periodic payments, and stipulated loss and damages schedules. Cmt. Commentators have interpreted the listing of these formulas as an implicit endorsement of the formulas, constrained always by the rule of reasonableness embodied in the statute. 2 James J. White Robert S. Summers, Uniform Commercial Code § 14-4.
Additional provisions of the UCC support the conclusion that the drafters of Section 2A-504 intended that a liquidated damage clause should not place a lessor in a better position than it would have been in had the lease been fully performed. The Official Comment to UCC Section 2A-523, the provision outlining generally what a lessor's remedies are in the event of breach by the lessee, explains:
Whether, in a particular case, one remedy bars another, is a function of whether lessor has been put in as good a position as if the lessee had fully performed the lease contract. Multiple remedies are barred only if the effect is to put the lessor in a better position than it would have been in had the lessee fully performed under the lease.
Id. Va. Code Ann. § 8.2A-523, Official Comment ¶ 4(emphasis supplied); see also Va. Code Ann. § 8.2A-528(2) (providing that measure of damages should place lessor "in as good a position as performance would have").
In applying Section 2A-504, courts in other jurisdictions have found a liquidated damages clause to be reasonable if it "leaves [the lessor] in no better position than it would be in had the lease been fully performed." Montgomery Ward Co., Inc. v. Meridian Leasing Corp., 269 B.R. 1, 9 (D.Del. 2001) (citing Case Credit Corp. v. Baldwin Rental Centers, Inc., 228 B.R. 504, 509 (Bankr.S.D.Ga. 1998)) (emphasis removed); Coastal Leasing Corp. v. T-Bar S Corp., 128 N.C. App. 379, 385 (N.C.Ct.App. 1998). Nonetheless, a reasonable liquidated damages agreement that has proved in hindsight to be an inaccurate estimation of loss is not invalid. Coastal Leasing Corp., 128 N.C. App. at 383. "[T]he fact that there is a difference between the actual loss, as determined at or about the time of the default, and the anticipated loss or the stipulated amount or formula . . . does not necessarily mean that the liquidated damages clause is unreasonable." Id. (citation omitted).
A liquidated damages provision has been held to violate Section 2A-504 where it permitted the lessor to collect the present value of all future rent and the present value of the equipment's fair market value at the end of the lease, and permitted the lessor to sell the repossessed equipment immediately without providing the lessee with any credit for the proceeds of the sale. Carter v. Tokai Fin. Services, Inc., 231 Ga. App. 755, 759 (Ga.Ct.App. 1998). See also Sun v. Mercedes Benz Credit Corp., 254 Ga. App. 463, 467 (Ga.Ct.App. 2002). Such a provision allows the lessor to have "the benefit of both the property and the value of all future rent payments," placing it in a "superior position following default to that which it was in before" the default. Carter, 231 Ga. App. at 759; see also 2 James J. White Robert S. Summers, Uniform Commercial Code § 14-4.
2. Enforceability of the Liquidated Damages Clause in the Master Lease
The plaintiff has failed to show in this motion that the liquidated damages clause in the Master Lease is reasonable under Section 2A-504. The Defendants have raised questions of fact as to whether the clause is in effect a penalty by placing ePlus in a far better position than it would have been had the lease been fully performed.
Had the Lease been fully performed, the plaintiff would have received the computer equipment back or, at the lessee's option, sold the equipment to the lessee for — according to the Lease — its fair market value. The plaintiff would also have been paid by that time the full amount due under the Lease, which in this case amounts to $361,010.02 in additional lease payments. Under the Lease, in the event of a default, the lessor receives the equipment back but has the responsibility to sell or re-lease it and provide a credit from that transaction's proceeds to the lessee under the formula set forth in the Lease. In addition, the lessor is due a Casualty Value. In this case, the Casualty Value amounts to $1,088,445.33. There are at least two ways in which the liquidated damages clause may be shown to be unreasonable. The first is the rate at which the Casualty Value is set.
In this case the Casualty Value is approximately three times the amount of the lease payments lost through the default. ePlus readily admits that the Casualty Value is also set "substantially" above the fair market value of the equipment. According to ePlus, the Casualty Value rate is based on its assumption that it can frequently sell or re-lease the equipment to the lessee for an amount above the equipment's fair market value. The defendants contend that, given the fact that three-year-old used computer equipment has a negligible sale or re-lease value, the Casualty Value rate grossly overstates what a purchaser of the equipment — including a lessee in possession of the equipment — would be willing to pay for such equipment. ePlus has not submitted evidence to establish that it has historically been able to sell or re-lease equipment to a lessee at the expiration of the initial lease term, or that, when it has sold or re-leased equipment to the lessee, it has done so at the rate above fair market value. Moreover, the Lease itself permits the lessee to purchase the equipment at its fair market value as of the end of the Lease. Thus, based on plaintiff's own affidavits and the terms of the Lease, there are questions of fact regarding the reasonableness of the Casualty Value.
ePlus asserts that the Casualty Value is intended to compensate it for its lost profits in the event of default, including its experienced estimate of the percentage of equipment which is never returned to ePlus, the probable renewal rents and buy-outs by lessees of in-place equipment, and unpaid rent.
The second way in which the liquidated damages clause may be shown to be unreasonable concerns the formula for crediting the proceeds from the sale of repossessed equipment against the damages owed by the Defendants. The formula specifies that only that portion of the proceeds from a sale which exceeds the amount of the Casualty Value in effect as of the date of default will be credited against the damages payable under the clause. Since the sale of the equipment is unlikely to exceed the Casualty Value, because, as already discussed, it is undisputed that the Casualty Value exceeds the fair market value of the equipment, this formula means that in the ordinary course there would be no opportunity for the lessee to have the proceeds of a sale credited against the liquidated damages it owes.
The formula for crediting proceeds for the re-lease of repossessed equipment raises separate issues. Given the result reached here, however, it is unnecessary to address the questions that can be raised about the reasonableness of that separate formula.
Thus, the Defendants may be able to show that ePlus knew that in practice the liquidated damages formula would operate to provide it with a windfall by permitting it to receive substantially more than the lost lease payments and to keep the entire proceeds from an immediate sale of the repossessed equipment.
The fact that ePlus does not seem to have followed the credit formula in the liquidated damages clause does not alter the conclusion that it has failed to show that the liquidated damages clause is enforceable as written. See Carter, 231 Ga. App. at 758 n. 1.
ePlus' argument that the "flexibility" and freedom to contract referred to in the Official Comment of Section 2A-504 support the enforceability of its liquidated damages clause is unpersuasive. The Official Comment and the text of Section 2A-504 itself require any such clause to be reasonable. The Defendants have raised questions of fact regarding the reasonableness of the Lease's clause which prevent summary judgment from being entered in favor of the plaintiff prior to discovery.
ePlus relies upon the decisions in Sun and Case Credit Corp. to support the enforceability of the liquidated damages clause in the Master Lease. This reliance is misplaced. Neither of these cases reviewed a liquidated damages clause that contained a provision equivalent to the Lease's Casualty Value, and each case endorsed a formula in which the lessee received a credit from the sale of repossessed goods. The court in Sun upheld a liquidated damages clause which permitted recovery on an accelerated basis of the future lease payments, with a deduction to account for the present value of the amount owed. Sun, 254 Ga. App. at 467. It rejected the argument that this formula was deficient because it did not account for unearned interest. Id. It cited with approval the decision in Carter, supra, that refused to enforce a clause in which the lessor was allowed to recover not only the present value of future rents, but also the proceeds from any sale of the repossessed equipment. Id. The liquidated damages clause in Case Credit Corp. required that the defaulting lessee be given a credit in the amount of the proceeds from a sale or re-lease of the returned goods. Case Credit Corp., 228 B.R. at 509.
Finally, the plaintiff relies on Gordonsville Energy, L.P. v. Virginia Electric Power Co., 40 Va. Cir. 448 (Va.Cir.Ct. 1996), in which the trial court applied Virginia common law to enforce a liquidated damages clause in an energy sales contract. Id. at 450. In Gordonsville, the court analyzed the liquidated damage provision on the basis of a developed record following trial. Id. at 453. At the very least, in this case, discovery will be necessary to determine whether the plaintiff is able to enforce this clause as one that meets the test set forth in Section 2A-504.
ePlus also cites to other decisions applying the common law rather than Section 2A-504. As was true with Gordonsville, these decisions do not suggest that it is appropriate to enter summary judgment in the plaintiff's favor at this stage of the proceedings on the basis of the liquidated damage clause contained in the Lease. See DAR Associates, Inc. v. Uniforce Services, Inc., 37 F. Supp.2d 192, 199 (E.D.N.Y. 1999); Landover Mall Ltd. P'ship v. Kinney Shoe Corp., 944 F. Supp. 443, 445 (D.Md. 1996); PacifiCorp Capital, Inc. v. Tano, 877 F. Supp. 180, 183-84 (S.D.N.Y. 1995).
Conclusion
For the reasons stated, the plaintiff's motion for summary judgment is granted in part as to liability for its breach of contract claim against defendants Panoramic and epb.communications, inc. and denied as to its request for a declaration that the liquidated damages clause in the Master Lease is enforceable.