Nichols Holding, LLC v. Divine Capital Group, LLC

785 S.E.2d 613, 416 S.C. 327, 2016 S.C. App. LEXIS 37
CourtCourt of Appeals of South Carolina
DecidedMarch 30, 2016
DocketAppellate Case No. 2014-000662; No. 5397
StatusPublished
Cited by4 cases

This text of 785 S.E.2d 613 (Nichols Holding, LLC v. Divine Capital Group, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nichols Holding, LLC v. Divine Capital Group, LLC, 785 S.E.2d 613, 416 S.C. 327, 2016 S.C. App. LEXIS 37 (S.C. Ct. App. 2016).

Opinion

GEATHERS, J.

In this breach of contract action, Appellants-Respondents, Divine Capital Group, LLC, John S. Divine, IV, Nathan [330]*330Anderson, and Divine Dining Group, Inc. (collectively, Divine), and Respondents-Appellants, Nichols Holding, LLC and J. Wade Nichols (collectively, Nichols), seek review of the circuit court’s order. Divine appeals that part of the order requiring Divine to pay impact fees to Georgetown County Water and Sewer District (the District) on behalf of Nichols. Nichols challenges that part of the order requiring Nichols to pay Divine’s outstanding trade debt.1

FACTS/PROCEDURAL HISTORY

In March 2011, Nichols filed this breach of contract action against Divine to recover capital contributions made to Divine for the purpose of opening certain restaurants at The Market Commons in Myrtle Beach. Nichols also sought an accounting and the appointment of a receiver to run all of Divine’s restaurant businesses. At the time, two related actions involving the parties were pending in circuit court.2 On May 25, 2012, the circuit court ordered the establishment of a receivership over Divine’s restaurant businesses and appointed Arlene Jaskot, CPA, as the receiver.

Meanwhile, the District sent yearly notices to Divine concerning the District’s imposition of a “Demand Charge,” in addition to regular water and sewer charges, on the accounts of two restaurants located on Parsonage Creek in Murrells Inlet, i.e., Bovine’s Wood Fired Specialties (Bovine’s) and Divine Fish House (collectively, the Restaurants). At least one of these notices was signed by the District’s “Finance/Administration Director,” John F. Buck.3 The notices stated, in pertinent part:

[331]*331In order to more equitably distribute costs associated with providing water and sewer service to commercial customers, the District put in place a “Demand Charge[.”] The “Demand Charge” is applicable only to those commercial customers [who] consistently exceed the water and sewer capacity assigned to them. The capacity assigned is determined by the number of water and/or sewer impact fees previously paid for at a specific service location. Impact fees are determined by the expected water and/or sewer demand required to service a particular commercial activity. The impact fees paid by our customers are used exclusively to pay for the expansion of the plant facilities, storage, and system improvements required [for] serving all users of the water and sewer system during peak demand periods....
The “Demand Charge” is intended to (a) encourage water/sewer conservation, (b) provide capital funds necessary to expand facility capacity associated with excess demand, and (c) ensure fair and equitable rates and charges to all District customers....
You have the option of purchasing the additional capacity by paying the associated impact fees and eliminating or reducing the monthly Demand Charge(s)____
Payment of the Demand Charges shall not be considered as a credit toward the purchase of additional impact fees. A user demand analysis shall be performed each year providing the customer the opportunity to reduce consumption and/or to lower or eliminate the Demand Charge for the following year.
The District encourages you to review your usage records and consider any justification or methods to reduce the usage to the assigned capacities....

(emphases added). Divine did not opt to pay impact fees to purchase additional water and sewer capacity; instead, Divine paid the monthly demand charges.

By the spring of 2013, Nichols and Divine settled their litigation by executing (1) a Consent Order allowing for the entry of judgment in favor of Nichols against Divine in the amount of $8,642,370.70; (2) a “Settlement Agreement and [332]*332Release in Full,” in which Divine agreed to sell certain real estate and intellectual property to Nichols in exchange for Nichols’ (a) assumption of certain debts of Divine, (b) execution of a satisfaction of judgment, and (c) request of the circuit court to terminate the receivership; and (3) an “Agreement of Purchase and Sale,” covering Nichols’ purchase of the real estate and intellectual property, which included Nichols’ optional assumption of certain operating agreements for the Restaurants, and a marina adjacent to Divine Fish House. Specifically, the Agreement of Purchase and Sale required Nichols to pay Divine’s “trade debt” that remained outstanding as of the date of the closing of the sale, which occurred on May 2-3, 2013. “Trade Debt” is defined in the Agreement of Purchase and Sale as follows:

[A]ll amounts outstanding for and from the operation of the Restaurants and Bars [that] are normal operating expenses of the Restaurants and Bars, and [that] are reasonably consistent with past operating expenses of the Restaurants and Bars. The Trade Debt includes the fee for administrative services provided to the Restaurants and Bars by Divine Dining Group, Inc. (“DDG”); provided, however, that the administrative services fees of DDG shall not exceed DDG’s actual cost and shall not exceed normal rates for fees of this kind in the greater Myrtle Beach, South Carolina market area. The Trade Debt shall not include, but specifically excludes, intercompany debt owed to Divine or companies owned by Divine other than the fees due to DDG for its administrative services for the Restaurants and Bars.

The closing of the sale occurred on May 2-3, 2013. At this time, Divine presented Nichols with documentation of the outstanding trade debt. Also, at this time, the Restaurants’ water and sewer accounts with the District did not show any past due charges; rather, the District had just issued a bill on May 2, 2013, the first day of the closing, and those charges were not due for payment until May 25, 2013.

After the closing, Nichols’ new restaurant manager, Ernest Edwards, attempted to change the name on the Restaurants’ water and sewer accounts from “John S. Divine” to “the Nichols Holdings companies” but was informed that to change the ownership of the accounts, Nichols would have to pay impact fees in the approximate amount of $53,000. The [333]*333District’s Engineering Director, Tommie Kennedy, then sent a letter, dated June 17, 2013, to Nichol’s counsel, explaining the District’s policy for changes in ownership of water and sewer accounts as well as the history of the Restaurants’ accounts. Kennedy stated, in pertinent part:

Before the request to transfer[, Divine] had received yearly notices that the account had gone over its allocated capacity of water and sewer. In the notice[, Divine had] the option of buying additional capacity or incurring a penalty. Every year that the usage was over its allowed capacity[, Divine] elected to pay the penalty in lieu of purchasing additional capacity.
According to District policy, change in ownership triggers a review of the account and requires that all additional capacity needed for the commercial business be purchased as if it were a new business opening up for the first time. During this review[,] staff used historical data from the account to calculate the capacity required for the business ....

(emphases added).

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Cite This Page — Counsel Stack

Bluebook (online)
785 S.E.2d 613, 416 S.C. 327, 2016 S.C. App. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-holding-llc-v-divine-capital-group-llc-scctapp-2016.