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Sundance, LLC v. Se Property Holdings, LLC

United States District Court, S.D. Alabama, Southern Division

December 16, 2014

SUNDANCE, LLC, et al., Plaintiffs,


WILLIAM H. STEELE, Chief District Judge.

This matter is before the Court on the defendant's motion for summary judgment. (Doc. 36). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 37-40, 44-45, 47), and the motion is ripe for resolution. After careful consideration, the Court concludes the motion is due to be granted.


The defendant's predecessor ("Vision") loaned plaintiff Sundance, LLC ("Sundance") the principal sum of $3 million, secured by a mortgage on certain townhomes in which Sundance had an interest. The three individual plaintiffs[1] executed guaranties of the indebtedness. Litigation over the indebtedness resulted in a February 2012 settlement agreement ("the Agreement"), pursuant to which the plaintiffs agreed not to resist foreclosure on the collateral and further agreed to pay approximately $856, 000 over time, evidenced by a promissory note ("the Note").

Seven of the units at issue had been constructed using Chinese drywall, and Sundance was a party to a class action lawsuit over Chinese drywall. Under the Agreement, Sundance assigned the "proceeds" of these claims to Vision, which proceeds would be applied as a credit against the balance owing under the Agreement.

In June 2012, Sundance executed a deed in lieu of foreclosure in favor of the defendant. Between March and July 2013, the defendant sold to third parties the seven units containing Chinese drywall. The class action thereafter settled, on terms that provided for remediation of affected properties.

The single count of the amended complaint, (Doc. 27), asserts a claim for breach of contract. It alleges that the defendant breached the contract "[b]y selling the condominium units for substantially reduced prices before remediation" and "by failing to obtain remediation of the units pursuant to the Chinese Drywall Litigation." ( Id. at 5-6).


Summary judgment should be granted only if "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 seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id .; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

"If, however, the movant carries the initial summary judgment burden..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion....").

In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).

There is no burden on the Court to identify unreferenced evidence supporting a party's position.[2] Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment, " Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, ...

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