Courts orders Hermitage Club golf equipment repo
NEWFANE- Windham County Superior Court Judge John Treadwell granted a motion for summary judgment on Tuesday, in favor of a company that financed golf course equipment for the Hermitage Golf Course.
Judge Treadwell also granted a motion for a writ of repleven, an order that will allow the finance company to recover the leased golf equipment.
TCF Equipment Finance filed a lawsuit against the Hermitage in February, seeking $194,360.73 in delinquent payments and other damages. According to the complaint, TCF entered into several contracts with the Hermitage, supplying 70 golf carts, four luxury carts. a Cushman 1200 beverage vehicle, a Cushman 800x driving range vehicle, and a Toro turf aerator.
On April 16, TCF's attorney, Paul Kulig, filed a motion for summary judgement, after the Hermitage failed to file a notice of appearance of any attorney in the matter, or submit an answer to the complaint. By Tuesday's hearing, the Hermitage still had not responded to the suit, and no counsel or other representative appeared on their behalf. "Normally, in a case in which the defendant had not appeared, we would not schedule a hearing for a motion for default judgement," Judge Treadwell said, "but the court had a couple of questions."
Testifying by phone from Minnetonka, MN, TCF Assistant Vice President David Mulnix explained that he calculated the amount the Hermitage owes based on the terms of their contract with the Hermitage. The amount includes payments due and past due, as well as other fees. Mulnix also explained that the total also included state tax collected and paid by TCF on some of the items. "Most golf courses have a retail certificate and charge sales tax on the rental of golf carts, therefore we do not have to collect tax on the payment stream. Other equipment is not for use by customers, but for use by the golf course, so they don't charge for the use of it and we're required to collect the tax and remit it to the state."
Treadwell asked Kulig about his motion for a writ of replevin. "In most cases, repleven is used as a pre-judgement mechanism seeking the return of goods or chattels subject to a dispute."
Kulig said TFC sought the writ so the company would have a legal order detailing the equipment their agent is to recover from the Hermitage Golf Course. "We sought a writ so the sheriff will have an order detailing what will be picked up," Kulig said. "A lot of equipment is going to have to be hauled away. That's the reason we sought repleven rather than self-help, showing up with a tractor-trailer and hauling stuff away."
Judge Treadwell said he would take the matter under advisement and issue his decision later. Kulig asked when the decision could be expected, noting that the Hermitage must be served with the court's decision before it can take effect. "And we have to serve them at their corporate headquarters in Hartford, CT, because they have no agent in Vermont. Their agent quit!"
The judge said that the decision would be issued shortly after the hearing.
Dozens of Hermitage companies listed with the Vermont Secretary of State had their status changed to "terminated" after former Hermitage Chief Legal Officer Ken Davis notified the state on February 12, 2018 of his resignation, effective March 25.
Judge granted the motion for summary judgement, ordered the clerk to issue a writ of repleven, and Kulig left with certified copies in hand.