United States District Court, M.D. Tennessee, Nashville Division
WISCHERMANN PARTNERS, INC., et al., Plaintiffs/Counter-Defendants,
NASHVILLE HOSPITALITY CAPITAL LLC, Defendant/Counter-Plaintiff,
PAUL WISCHERMANN, Defendant.
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE
before the Court is the Motion for Summary Judgment filed by
Defendant Paul Wischermann (“Wischermann”). (Doc.
No. 120). Plaintiff Nashville Hospitality Capital LLC
(“NHC”) filed a Response in Opposition (Doc. No.
123) and Wischermann filed a Reply. (Doc. No. 128). For the
reasons discussed below, the Motion for Summary Judgment is
owns the Westin Hotel in downtown Nashville (“the
Westin”). (Doc. No. 64 ¶ 1). Wischermann is the
sole owner and president of Plaintiff/Counter-Defendant
Wischermann Partners, Inc. (“Wischermann
Partners”). (Id. ¶ 3). In November of
2014, NHC and Wischermann Partners entered in a Management
Agreement for Wischermann Partners to manage the Westin Hotel
on NHC's behalf. (Id. ¶ 10). NHC alleges it
terminated the Management Agreement with Wischermann Partners
in May of 2017 for cause. (Id. ¶¶ 72-80).
23, 2017, Plaintiffs/Counter-Defendants Wischermann Partners
filed an Amended Complaint against NHC, alleging breach of
contract, tortious interference with business relationships,
misrepresentation, and promise without intent to perform.
(Doc. No. 23). On June 5, 2018, NHC filed Amended
Counterclaims adding, in pertinent part for purposes of the
instant motion, Wischermann as a party and alleging claims
against him individually for breach of fiduciary duty,
inducement of breach of fiduciary duty, fraudulent
misrepresentation, and fraudulent concealment. (Doc. No. 64).
Wischermann moves for summary judgment on all of NHC's
claims against him, arguing NHC is not entitled to recover
against him in his individual capacity. (Doc. No. 120).
STANDARD OF REVIEW
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The party bringing the summary judgment
motion has the initial burden of informing the Court of the
basis for its motion and identifying portions of the record
that demonstrate the absence of a genuine dispute over
material facts. Rodgers v. Banks, 344 F.3d 587, 595
(6th Cir. 2003). In evaluating a motion for summary judgment,
the court views the facts in the light most favorable for the
nonmoving party, and draws all reasonable inferences in favor
of the nonmoving party. Bible Believers v. Wayne Cty.,
Mich., 805 F.3d 228, 242 (6th Cir. 2015); Wexler v.
White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th
The Management Agreement
argues he is entitled to summary judgment because the
Management Agreement between NHC and Wischermann Partners
bars all claims against him individually. (Doc. No. 120-1 at
7). The parties do not dispute that the Management Agreement
is governed by Tennessee law. (See Doc. No. 120-2,
Tennessee law, the interpretation of a contract is a question
of law. Guiliano v. CLEO, Inc., 995 S.W.2d 88, 95
(Tenn.1999). In resolving a dispute concerning contract
interpretation, the Court's task is to ascertain the
intention of the parties based upon the usual, natural, and
ordinary meaning of the contract language. Planters Gin
Co. v. Fed. Compress & Warehouse Co., Inc., 78
S.W.3d 885, 889-90 (Tenn. 2002) (citing Guiliano,
995 S.W.2d at 95). If a contract is unambiguous, a court must
interpret it as written and not in accordance with a
party's unexpressed intent. Pitt v. Tyree Org.
Ltd., 90 S.W.3d 244, 252 (Tenn. Ct. App. 2002); see
also Kafozi v. Windward Cove, LLC, 184 S.W.3d 693, 698
(Tenn. Ct. App. 2005) (“The parties' intent is
presumed to be that specifically expressed in the body of the
argues the Court should dismiss all claims against him
individually as barred by the Management Agreement because
“Wischermann Partners  and NHC contracted very
specific rights and remedies in their Management Agreement
that did not include causes of action against principals,
including Paul Wischermann in his individual capacity, and
therefore NHC is limited to those rights and remedies.”
(Doc. No. 120; see also Doc. No. 120-1 at 5-7
(citing Articles 16-19 and Article 23.27 of the Management
Agreement)). Wischermann contends “[i]mplicit in these
very specific rights and remedies is that NHC waived its
right to pursue claims against Paul
Wischermann…” (Doc. No. 120-1 at 6).
response, NHC contends summary judgment is not appropriate
because “the Management Agreement does not contain any
limitation on actions against officers or third
parties...” (Doc. No. 123 at 5). NHC argues Articles
16-19 of the Management Agreement “do not in any way
waive NHC's right to sue Mr. Wischermann or insulate him
from liability for his intentional misconduct” in part
because those provisions “do not address a party's
right to bring suit against the other party, let alone
against an officer/non-party.” (Id. at 5-6).
Rather, NHC asserts Articles 16-19 “…address
events of default, the parties' rights and ability to
terminate the Management Agreement for acts of
default, and the effect of termination.” (Id.
at 5). Further, NHC argues “the parties expressly
agreed that the right to terminate following an event of
material default was ‘in addition to and cumulative of
any and all rights and remedies available to Owner under this
Agreement, at law or in equity.'” (Id.
(quoting Article 17.2 and citing Article 16)). NHC also
points to Article 23.20, which provides:
The remedies provided for in this Agreement are not
exclusive. Either party is free to pursue such other remedies
as may be available at law or in equity, subject ...