STERLING PLANET, INC. v. GRP HOLDCO, LLC еt al; and vice versa.
A24A1281, A24A1282
In the Court of Appeals of Georgia
March 11, 2025
RICKMAN, Presiding Judge.
FIFTH DIVISION. MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, P. J. NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
In this business dispute involving renewable energy certificates, Sterling Planet, Inc. appeals the Georgia State-wide Business Court‘s Order on Pending Motions and, in Case Number A24A1281, contends that the business court erred in striking certain portions of an affidavit submitted in support of Sterling‘s motion for partial summary judgment, granting GRP Holdco, LLC, GRP Madison, LLC, and GRP Franklin, LLC‘s (collectively, “GRP“) motion for summary judgment on Sterling‘s prоmissory estoppel claim, and denying Sterling‘s motion for summary judgment on GRP‘s conversion claim. GRP cross-appeals the same order and, in Case No. A24A1282, contends that the business court erred in denying its motion for partial summary
“On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.” (Citation and punctuation omitted.) Phillips v. Adams, Jordan & Herrington, P.C., 350 Ga. App. 184, 184 (828 SE2d 414) (2019). “On cross-motions for summary judgment, each party must show there is no genuine issue of material fact and that each, respectively, is entitled to summary judgment as a matter of law; either party, to prevail by summary judgment, must bear its burden of proof.” (Citation and punctuation omitted.) White v. Gens, 348 Ga. App. 145, 146 (1) (820 SE2d 254) (2018).
At the outset, we note that renewable electricity generation can be split into two parts: the electricity produced by a renewable generator and the renewable or environmental “attributes” of that generation. See Katrina M. Wyman & Adalene Minelli, Propertizing Environmental Attributes, 39 Yale J. on Reg. 1391, 1397 (2022) (defining environmental attributes). The environmental attributes can be unbundled
Here, the record shows that GRP Holdco indirectly owns two renewable energy power plants located in Georgia: GRP Franklin Renewable Energy Facility, which is operated by GRP Franklin, LLC; and GRP Madison Renewable Energy Facility, which is operated by GRP Madison, LLC.1 The GRP Franklin and GRP Madison facilities supply electricity to the power grid for residential and commercial consumption. Because the biomass that powers the GRP facilities’ steam turbines is considered a renewable resource, the facilities quаlify for RECs, which are issued based on the amount of power generated. Each REC at issue here represents the environmental attributes associated with the generation of one megawatt hour (“MWh“) of renewable energy.
Sterling is a self-described marketer of environmental attributes. In May 2021, Sterling CEO and chairman Therrell “Sonny” Murphy, Jr. reached out to GRP seeking to discuss GRP‘s RECs and Sterling‘s ability to “create some real value for GRP.” In two transactions in August 2021, Sterling purchased RECs from GRP for
In July and August 2021, Sterling and GRP discussed the possibility of increasing the market value of GRP‘s RECs by obtaining Green-e certification for the RECs from the Center for Resource Solutions.2 Sterling informed GRP that it needed to execute documents naming Sterling as the “Responsible Party” on the North American Renewables (“NAR“) Registry3 before Sterling could begin the Green-e certification process. In November 2022, GRP executed the necessary documents, which gave Sterling the “full and sole management and authority over the transactions and activities related to the Asset within NAR.”4 In practice, that meant that the GRP facilities were registered with NAR, that the RECs attributable to the renewable energy generated by the facilities would go into Sterling‘s NAR account as the
In February 2022, the newly installed President and CEO of GRP Holdco, Charles Abbott, reached out to Sterling to discuss the GRP facilities. Sonny Murphy responded on Sterling‘s behalf, indicated that he wanted to discuss Sterling‘s relationship with GRP, and forwarded an unsigned 2015 “Renewable Energy Certificate Marketing Agreement” between Sterling and Green Fuels Energy, LLC, which Murphy claimed “was negotiated with the purchase of the plant.”5 The 2015 agreement contemplated that Sterling would market “Project RECs” for a term of six years but contained no contract price for the sale of the RECs. Minutes later, Murphy sent Abbott what he referred to as “a template of the agreement to be used in year 8 of my negotiations,” which was an unsigned 2022 “Renewable Energy Certificate Marketing Agreement” between Sterling and an unnamed “Generator” with an REC contract price provision that would allow Sterling to retain a 20 percent fee for RECs purchased from thе generator by Sterling‘s customers. After reviewing Sterling‘s
On July 21, 2022, Abbott contacted the NAR Registry and requested the rescission of Sterling‘s Responsible Party designation for the GRP facilities on the registry. That same day, Charles Li, the senior administrator of APX and the manager of the NAR Registry, contacted Sterling‘s vice president of client services, Valerie Johnson, and notified her of Abbott‘s request that the GRP facilities and all RECs associated with the facilities be transferred to GRP‘s account. Li attached a list of the RECs to the July 21 email, on which Abbott was copied, and asked Johnson, “Can you confirm?” That same day, Johnson responded, “No, I cannot confirm at this time. Some of the RECs are already committed to customers and have not yet been transferred or retired.” Minutes later, Abbott requested that Johnson “[p]lease provide a reconciliation of those RECs that you believe cannot be transferred because they are ‘committed.‘”
On August 23, 2022, Sterling, through counsel, sent GRP a table showing the number of active, retired, and transferred RECs. GRP responded through counsel that the information provided was not sufficient and requested specific additional information about the REC transactions. Sterling never responded directly to this request. Sterling did, however, continue to sell GRP RECs during this time period, with sales occurring on four different dates in August 2022 (the “August REC Sales“).
On September 8, 2022, GRP sent Sterling a proposed letter addressed to Li at the NAR Registry pursuant to which the parties would jointly request the transfer of
GRP commenced litigation on October 31, 2022, by filing a verified complaint for declaratory judgment, injunctive relief, and damages as well as an emergency motion for an interlocutory injunction in which it sought to require Sterling to transfer control of the GRP facilities and RECs on the NAR Registry to GRP. Ten days later, Sterling contacted the NAR Registry about the necessary steps for Sterling to transfer the assets and remaining RECs to GRP‘s NAR account. And on November 18, 2022,
In its verified complaint, GRP asserted, inter alia, claims against Sterling for conversion, money had and received, intentional interference with business relations, and intentional interference with property rights. In a verified answer and counterclaim, which was amended three times, Sterling asserted claims against GRP for breach of contract or, in the alternative, “promissory estoppel/quantum meruit/unjust enrichment,” and sought specific performance of the “valid and enforceable written agreement” that would require GRP to upload to Sterling‘s NAR account “all RECs created by both plants from February 1, 2022,” as well as attorney fees and expenses pursuant to
GRP moved to dismiss Sterling‘s counterclaims and, following a hearing, the business court dismissed Sterling‘s claims for breach of contract and specific performance. The business court denied GRP‘s motion to dismiss Sterling‘s claims for promissory estoppel, quantum meruit, and unjust enrichment as well as its claim for litigation expenses pursuant to
Following a hearing, the business court granted in part GRP‘s motion to strike the Sonny Murphy affidavit and, as a result, declined to consider those portions of the affidavit that the court found to be irrelevant, unsupported conclusions of law, or conclusory statements not supported by fact or circumstances. The business court then granted summary judgment to GRP on Sterling‘s promissory estoppel claim,
Case No. A24A1281
1. Sterling contends that the business court erred by disregarding portions of the Murphy affidavit that was submitted in support of its summary judgment motion.
Affidavits submitted in support of or opposition to summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
Sterling also argues that the business court should not have disregarded other portions of the Murphy affidavit because they were “made on the basis of personal knowledge, not speculation.” But this argument presents nothing for our rеview. The business court did not strike any portions of the affidavit because they were not based on personal knowledge, and Sterling fails to address the actual basis for the business court‘s actions with respect to those paragraphs - that they constituted conclusory statements lacking substantiating facts or unsupported conclusions of law - both of which are valid bases for disregarding statements within an affidavit. See Whitcomb v. Bank of America, N.A., 365 Ga. App. 795, 804 (5) (c) (880 SE2d 310) (2022) (“In the absence of substantiating facts, a self-serving and conclusory affidavit is insufficient to create an issue for trial.“); Crouch v. Bent Tree Community, 310 Ga. App. 319, 322 (3) (713 SE2d 402) (2011) (Affidavits that contain “mere legal conclusions and allegations present no issues of fact on a motion for summary judgment,” and “such legal conclusions are to be disregarded in considering the affidavit in connection with the motion for summary judgment.“) (citations and punctuation omitted).
2. Sterling contends that the business court erred by granting GRP‘s motion for summary judgment on Sterling‘s promissory estoppel claim.
Sterling‘s promissory estoppel claim requires proof that
(1) [GRP] made a promise or promises; (2) [GRP] should have reasonably expected [Sterling] to rely on such promise; (3) [Sterling] relied on such promise to [its] detriment; and (4) an injustice can only be avoided by the enforcement of the promise, because as a result of the reliance, [Sterling] changed [its] position to [its] detriment by surrendering, forgoing, or rendering a valuable right.
(Citation and punctuation omitted.) Woodstone Townhouses v. Southern Fiber Worx, 358 Ga. App. 516, 530 (4) (855 SE2d 719) (2021); see
“Although a promise need not meet the formal requirement of a contract to support a claim for promissory estoppel, it must have been communicated with sufficient particularity to be enforced.” Woodstone Townhouses, 358 Ga. App. at 531 (4) (a). “Promissory estoppel cannot be based upon vague, indefinite promises.” Id.
Sterling contends that its promissory estoppel claim is supported by allegations in its verified amended counterclaim in which it alleged that GRP promised that all RECs produced by the GRP facilities would be uploaded to Sterling‘s NAR account on a monthly basis for resale, that this arrangement would last for a period of six years, and that Sterling would be paid twenty percent of the net sales price for the REC sales. As a counterclaim defendant, GRP need not affirmatively disprove Sterling‘s claim; “instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party‘s case.” Lau‘s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). If GRP discharges this burden,
In its motion for summary judgment, GRP challenged the promissory estoppel claim on the grounds that there was no evidence that GRP madе the promises alleged by Sterling, that the promises alleged were vague and uncertain, and that Sterling‘s reliance on any such promise was not reasonable. GRP pointed to deposition testimony from David Shaffer, former president of a GRP-related entity, who recanted portions of an affidavit Murphy created for him that was relied upon to support Sterling‘s second amended answer and counterclaim. Shaffer testified that during his tenure as president, from 2015 to 2019, he never discussed any specific terms of a deal for Sterling to market GRP‘s RECs, such as dates, methodology, or economics, and that a split of the proceeds from the sale of RECs was never discussed. GRP also pointed out that Carey Davis, executive vice president of GRP Madison and GRP Franklin from January 2018 to January 2022, had discussions with Sterling regarding the transaction of RECs beginning in 2021. Davis deposed that he communicated with Johnson at Sterling regarding the GRP RECs, and that no one at Sterling ever communicated to him that Sterling intended to take a twenty percent fee on the sale
Sterling did not respond to GRP‘s arguments or substantively address the promissory estoppel claim in its own summary judgment motion. The business court nonetheless addressed the claim on the merits and concluded that summary judgment was appropriate, inter alia, because promissory estoppel does not apply to vague or indefinite promises.
“The existence of an enforceable promise is the ‘threshold requirement’ for a claim of promissory estoppel[.]” Underwood v. Colony Bank, 362 Ga. App. 548, 556 (2) (869 SE2d 535) (2022). Here, there is no evidence that the unnamed person who made the alleged рromise to Sterling had authority to bind GRP or evidence as to when the agreement with Sterling would commence. Because promissory estoppel does not apply to vague or indefinite promises, the trial court did not err in granting summary judgment to GRP on Sterling‘s promissory estoppel claim. See Underwood, 362 Ga. App. at 556 (2) (“promises that are vague, indefinite, or of uncertain duration are not enforceable“); Ga. Investments Intl. v. Branch Banking & Trust Co., 305 Ga. App. 673, 676 (1) (700 SE2d 662) (2010) (promise that was vague and indefinite as to
3. Sterling contends that the business court erred in denying its motion for summary judgment on GRP‘s conversion claim.7
“A conversion results when, without authority, a party exercises the right of ownership over, assumes dominion over, or appropriates personal property belonging to another party, in hostility of that other party‘s rights.” Rubenstein v. Palatchi, 359 Ga. App. 139, 142 (1) (857 SE2d 81) (2021). In order to establish a conversion claim, “a plaintiff must demonstrate that (1) [it] owns title to or has the right to possess the personal property at issue; (2) the defendant actually possesses the property; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return it.” Id.; see
As recognized by the business court, “[t]angible personalty or specific intangible property may be the subject for an action for conversion[.]” Taylor v. Powertel, 250 Ga. App. 356, 358-359 (2) (551 SE2d 765) (2001). Although Georgia
Case No. A24A1282
4. GRP contends that the business court erred in denying its motion for partial summary judgment as to liability on the fourth element of its conversion claim, refusal.
In addressing the refusal issue, the business court concluded that issues of faсt remained as to whether Sterling could transfer control of GRP‘s facilities and RECs to GRP because GRP had not established an account at the NAR Registry, which precluded summary judgment as to liability on GRP‘s conversion claim with respect to the August REC Sales and the Returned RECs. GRP challenges this conclusion and argues that nothing in the record shows that Sterling‘s failure to transfer the RECs was based on anything other than its refusal to do so. In fact, Sterling submitted an affidavit from Johnson, who averred that Sterling could not transfer the GRP facilities
5. GRP contends that the business court erred in denying its claim for sanctions under
A party is entitled to reasonable and necessary attorney fees and expenses of litigation under
Here, Sterling alleged in its breach of contract claim that it had a “valid and enforceable” agreement with GRP “[a]t all times herein.” Sterling cited to three agreements, which it attached as Exhibit C, in support of its claim of a written exclusive marketing agreement with GRP for its RECs.11 In its order dismissing Sterling‘s breach of contract claim, the business court held that the first two
In its motion for fees and expenses under
On appeal, GRP contends that the business court failed to recognize that each claim, defense, or position asserted by a party may independently be subject to sanctions. GRP argues that fees and expenses under
The business court‘s order denying GRP‘s motion for sanctions specifically addressed Sterling‘s reliance on the Exhibit C agreements, noting that one of the agreements was partially executed by GRP Franklin and Sterling believed that similar agreements had been executed by the other GRP entities in order to obtain financing for the GRP facilities, which arguably had some support in emails exchanged in connection with the partially-executed agreement. The court also noted that it found the issue of whether Sterling hаd sufficiently pled the partial performance exception to the Statue of Frauds to be a “closer question.” Because there is at least some evidence to support the business court‘s ruling, we must affirm. See Chadwick v. Brazell, 331 Ga. App. 373, 382 (5) (771 SE2d 75) (2015).
Judgments affirmed. Mercier, C. J., and McFadden, P. J., concur.