Gary Flanigan d/b/a Curry, Street, Gardner & Flanigan v. Executive Office Ctrs. Inc.

The binding liquidated damages provision in the parties' service agreement entitled defendant to summary judgment on the plaintiff's negligence claim.

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In August 1998, Plaintiff-appellant Gary Flanigan, d/b/a Curry, Street, Gardner & Flanigan “Flanigan”, a movie production company, and defendant-appellee Executive Office Centers, Inc. d/b/a HQ Business Centers of Atlanta “Executive”1 entered into a business identity service agreement “service agreement”. Under the service agreement, Executive provided Flanigan its basic identity service, a service inclusive of telephone answering, a business address for use on client stationery, use of a facsimile number and a telephone number, and mail and package handling. By other provisions of the service agreement, the parties agreed to waive any claims for damages arising under the agreement,2 substituting therefor liquidated damages limited to an adjustment in the client’s billing in an amount equal to the charge for such service for the period during which the failure, delay or disruption continues.”

A dispute as to alleged overcharges arose between the parties as a result of a bill Executive sent Flanigan in October 1998. After adjusting the billing downward approximately a month later, appellee-defendant Julie Rainey “Rainey”, an Executive employee, demanded payment within twenty-four hours. Letters were thereafter exchanged in which Flanigan accused Rainey of a “PMS” approach to management, and Executive terminated its services to Flanigan, stating that the account was past due. Subsequently, Eugene D. Vezzani, President of Universal MetroMedia Capital Corporation “UMMCC”, informed Flanigan by letter that UMMCC had rescinded its $6,000,000 commitment to fund a movie which Flanigan was to produce—this, because of his inability to contact Flanigan at its Executive-provided telephone number or business address.

Gary Flanigan d/b/a Curry, Street, Gardner & Flanigan v. Executive Office Ctrs. Inc.

The binding liquidated damages provision in the parties' service agreement entitled defendant to summary judgment on the plaintiff's negligence claim.

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