United States District Court, S.D. Alabama, Southern Division
ORDER
WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the plaintiff's motion for
summary judgment. (Doc. 32). The parties have filed briefs
and evidentiary materials in support of their respective
positions, (Docs. 32-33, 37-39), and the motion is ripe for
resolution.
The
plaintiff sold materials to the predecessors of the entity
defendant (“7 General”) pursuant to certain trade
credit applications (“the TCAs”). Defendants Toni
Mason (“Toni”) and Tally White (“White)
executed personal continuing guaranties guaranteeing payment
of sums coming due under the TCAs. The account fell into
arrears, and in November 2016 the plaintiff filed suit
against Toni, White and the entity defendant's
predecessor. Jackson Supply Co. v. Development
Consulting, Inc., Civil Action No. 16-0563-KD-C. The
parties entered a forbearance and settlement agreement
(“the Agreement”), which established a sum to be
paid by the defendants and a schedule for such payments. The
entity defendant's president (“Heath”) signed
a personal guaranty of the defendants' obligations under
the Agreement. With these documents in hand, the parties
stipulated to dismissal of the lawsuit without prejudice.
The
defendants for a time made the monthly payments required by
the Agreement as amended but ceased doing so in February
2019. This action followed. Count One asserts a claim for
breach of contract: against 7 General for breach of the TCAs,
and against Toni and White for breach of their guaranties
regarding the TCAs. Count Two asserts a claim against 7
General for unjust enrichment. Count Three asserts a claim
against 7 General, Toni and White for breach of the
Agreement, and Count Four asserts a claim against Heath for
breach of his guaranty. The plaintiff seeks summary judgment
with respect to Counts One, Three and Four.[1]
With
respect to Counts Three and Four, the plaintiff's
uncontroverted evidence establishes the existence and
contents of a contract between the plaintiff and each
defendant. The uncontroverted evidence likewise establishes
these defendants' breach of those contracts. These
defendants admit their liability under the Agreement and
Heath's guaranty and dispute only the amount of interest
owed. (Doc. 10 at 4-5; Doc. 11 at 3-4; Doc. 32-3 at 3; Doc.
32-5 at 1).
The
uncontroverted evidence establishes the principal amount owed
for breach of the Agreement and Heath's guaranty as $211,
817.15, which the defendants admit is correct. (Doc. 33 at 2;
Doc. 37 at 1; Doc. 38 at 1). The parties initially disputed
the calculation of interest, but the plaintiff has accepted
the defendants' position that simple (not compound)
interest at the rate of 1.5% per month runs from the February
2019 date of breach (not from the Agreement's execution
in January 2017). (Doc. 37 at 3-4; Doc. 39 at 2-3). The
parties have not, however, presented a calculation of the
correct amount of interest, and the Court declines to enter
judgment without it.
The
Agreement and Heath's guaranty provide for an award of
attorney's fees. The plaintiff seeks leave under Rule
54(d) to file a post-judgment motion for such fees. (Doc. 32
at 3). As the Court has explained in previous cases, the
contractual nature of the plaintiff's claim for such fees
precludes a post-judgment award. E.g., Wells Fargo Bank
v. Raymond & Associates, LLC, 2015 WL 772137 at *3
(S.D. Ala. 2015).
For the
reasons set forth above, the plaintiff's motion for
summary judgment is denied as to Count One
and is granted in part as to Counts Three
and Four. The principal amount of liability under Counts
Three and Four is established as $211, 817.15. The
plaintiff's entitlement to interest under Counts Three
and Four is established, with the amount to be determined as
1.5% per month simple interest, running from the February
2019 breach until entry of judgment, with post-judgment
interest at the statutory rate. To the extent the plaintiff
seeks a greater award of pre-judgment interest, its motion is
denied.
The
parties are ordered to confer in an effort
to reach agreement regarding: (1) the dollar amount of
interest to be awarded (within the parameters established
above); (2) the dollar amount of attorney's fees to be
awarded; (3) the dollar amount of costs to be awarded; (4)
resolution of Counts One and Two; (5) the form of judgment;
and (6) anything else required to bring this matter to final
resolution. The parties are ordered to file
their joint statement regarding these matters on or before
January 13, 2020.
DONE
and ORDERED
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Notes:
[1] The plaintiff's motion is thus one
for partial summary judgment. However, the plaintiff
considers its unjust enrichment claim “resolved”
if it obtains summary judgment as to the other claims. (Doc.
33 at 9 n.3).
Although the plaintiff purports to seek summary
judgment as to Count One, its argument focuses exclusively on
Counts Three and Four. Because the plaintiff has not
addressed Count One (including without limitation the
question whether the Agreement works a novation or otherwise
negates relief under the TCAs and ...