Food distributor granted summary judgment

Reformer File PhotoConstruction in process on the base lodge at the Hermitage Club in Dover in 2014.

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NEWFANE — Hermitage Club entities were ordered to pay a national food distributor about $1,592,280 for failure to make loan payments and pay for other services.

Reinhart Food Services LCC "is entitled to judgment as matter of law," Treadwell wrote in a decision filed Wednesday in Windham Superior Court, Civil Division. "There are no genuine issues of material fact of law on all counts of the complaint."

Treadwell granted Reinhart's motion for summary judgement. The defendants in the case — the Hermitage Real Estate Holding Company LLC, the Hermitage Club LLC, the Hermitage Inn and the Hermitage founder Jim Barnes — had executed a promissory note with Reinhart in October 2016 for about $1,363.719, agreeing to repay the balance at an interest rate of 5 percent by the following year.

If scheduled payments were not made, the entire note would become immediately due and Reinhart would be entitled to recoup attorney fees, according to the arrangement. Barnes signed a personal guaranty of the debt, making him responsible if the Hermitage missed the payments.

Missed installment payments resulted in the balance being due in December 2016, according to the decision. By this February, about $1,304,453 was alleged to be owed to Reinhart.

Reinhart had also provided about $230,391 in additional goods and services for the Hermitage, specially ordered items for the Hermitage worth about $21,881 that the Hermitage failed to take delivery of, and did not receive payments for delivery of food and supplies from another division of the company, according to the decision.

"The court must enforce contracts as they are written," wrote Treadwell.

He said Vermont Rules of Civil Procedure say that failure to dispute a properly supported statement may result in the court considering the facts undisputed. Barnes and the Hermitage had not responded to Reinhart's statements to the court after Reinhart filed statements regarding the Hermitage's opposition to summary judgement. No attorney replaced the one who had withdrawn as Hermitage counsel for this case, citing lack of payment.

"Defendants argue that summary judgment should be denied because the note includes a Wisconsin choice of law provision and plaintiff's motion relies upon Vermont law," Treadwell wrote. "As plaintiff notes, defendants fails to identify any relevant differences between Vermont and Wisconsin law."

The Hermitage had also questioned whether deliveries could be considered a part of this legal action as Reinhart had not shown the court a contract for them. But Treadwell said there was "an enforceable implied agreement between the parties concerning the goods after the note was signed," adding that Reinhart 's account statements show that it made deliveries as requested and the Hermitage made some payments for those goods.

Reach staff writer Chris Mays at cmays@reformer.com, at @CMaysBR on Twitter and 802-254-2311, ext. 273.

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