Farm Credit of Northwest Florida, ACA v. Pittman
MEMORANDUM OPINION AND ORDER; that Plaintiff's Motion for Summary Judgment 8 is GRANTED. The Court will enter a separate final judgment consistent with this Memorandum Opinion and Order. Signed by Hon. Chief Judge Mark E. Fuller on 8/30/2010. (jg, )
Farm Credit of Northwest Florida, ACA v. Pittman
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION F A R M CREDIT OF NORTHWEST F L O R ID A , ACA, P la in tif f , v. W IN D H A M TODD PITTMAN, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )
C A S E NO. 1:10-cv-352-MEF (W O )
M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION O n April 23, 2010, Farm Credit of Northwest Florida, ACA ("Plaintiff") filed this la w s u i t against Windham Todd Pittman ("Defendant") for money allegedly owed under a p ro m iss o ry note. (Doc. #1). On June 24, 2010, Plaintiff moved for summary judgment p u rs u a n t to Rule 56 of the Federal Rules of Civil Procedure. (Doc. #8). Defendant did not o p p o se this motion. For the reasons set forth in this Memorandum Opinion and Order, that m o tio n will be GRANTED. I I . JURISDICTION AND VENUE J u ris d ic tio n over Plaintiff's claims is proper under 28 U.S.C. § 1332 (diversity). The p a rtie s do not contest personal jurisdiction or venue, and the Court finds adequate allegations in support of both personal jurisdiction and venue.
III. LEGAL STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tr e tt, 477 U.S. 317, 322 (1986). The party asking for summary judgment "always bears th e initial responsibility of informing the district court of the basis for its motion, and id e n tif yin g those portions of `the pleadings, depositions, answers to interrogatories, and a d m is sio n s on file, together with the affidavits, if any,' which it believes demonstrate the a b s e n c e of a genuine issue of material fact." Id. at 323. The movant can meet this burden b y presenting evidence showing there is no dispute of material fact, or by showing the nonm o v in g party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to in te rro g a to rie s , and admissions on file,' designate `specific facts showing that there is a g e n u i n e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a c ts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). T h o u g h a court ruling on a motion for summary judgment must believe the evidence
of the non-movant, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), here the nonm o v a n t failed to submit any evidence to oppose the motion for summary judgment. Where th e non-movant fails to respond, "summary judgment should, if appropriate, be entered a g a in s t that party." Fed. R. Civ. P. 56(e). However, the court must still draw all justifiable in f e re n c e s from the evidence in the non-moving party's favor. Anderson, 477 U.S. at 255. The court must grant summary judgment if there is no genuine issue of material fact and the m o v in g party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). I V . FACTUAL AND PROCEDURAL BACKGROUND A . Facts 1 . Note Modification Agreement P la in tif f extended credit, jointly and severally, to Defendant and Land Ventures for 2 , LLC ("Land Ventures"), a limited liability company of which Defendant is a member, u n d e r a Note Modification Agreement ("NMA") dated March 22, 2008. The NMA provides te rm s for the repayment of three loans (the "Notes") Plaintiff issued. The NMA is secured b y mortgages to Plaintiff on property located in Alabama and Florida and owned by Land V e n tu re s . D e f e n d a n t and Land Ventures defaulted under the NMA as a result of their failure to m a k e payments to Plaintiff in accordance with the terms of the NMA. In response, Plaintiff a c c e le ra te d the debt owed under the NMA so that all amounts are due and payable in full. Land Ventures and Defendant are jointly and severally liable under the NMA. The NMA
also states that Land Ventures and Defendant are responsible for Plaintiff's collection costs. In December 2009, Plaintiff commenced a judicial foreclosure action as to the m o rtg a g e on the property located in Florida. On March 16, 2010, Land Ventures filed a p e titio n for relief under Chapter 11 of the United States Bankruptcy Code in the United S ta te s Bankruptcy Court for the Middle District of Alabama (the "Bankruptcy Court"), filed a s case number 10-30651. As of that date, Plaintiff was scheduled to publish, on March 18, 2 0 1 0 , its notice of foreclosure on the mortgage of the property located in Alabama. Because o f the bankruptcy case, Plaintiff was stayed under 11 U.S.C. § 362 from its efforts to f o re c lo s e on its mortgages or otherwise collect the debt owed to it by Land Ventures. A s of June 23, 2010, Defendant owed Plaintiff $728,276.09, exclusive of collection c o s ts incurred by Plaintiff's counsel, under the NMA. This amount includes principal of $ 6 5 6 ,2 6 8 .2 5 ; interest of $67,974.61; late fees of $3,058.23; and miscellaneous collection and e n f o rc e m e n t expenses, other than attorneys' fees and expenses, of $975.00 for an appraisal. Interest accrues at the contract default rate of $188.79 per day. 2 . Attorneys' Fees and Expenses T h e NMA also provides that Defendant and Land Ventures are jointly and severally lia b le for attorneys' fees and expenses Plaintiff incurs in collecting on the debt. Plaintiff e m p lo ye d the law firm of Gardner, Bist, Wiener, Wadsworth & Bowden, P.A. ("Gardner B is t" ) to assist it in connection with the collection of the debt owed under the NMA and the e n f o rc e m e n t of its rights under the NMA and under the mortgage on the property located in
Florida. Plaintiff employed the law firms of Walston Wells & Birchall, LLP ("Walston W e l ls " ) and, later, Stone Sumblin Law LLC ("Stone Sumblin"), to assist it in connection w ith the foreclosure of the mortgage on the property located in Alabama and, later, to re p re se n t Plaintiff in Land Ventures's Chapter 11 case and in this case. T h ro u g h June 22, 2010, with regards to Gardner Bist, a total of $9,621.50 in attorneys' f e e s and $480.00 in other recoverable expenses has been incurred. Through June 21, 2010, w ith regards to Walston Wells and Stone Sumblin, a total of $19,422.00 in attorneys' fees 1 a n d $1,192.56 in other recoverable expenses has been incurred. B . Procedural History P la in tif f brought suit on April 23, 2010, claiming that Defendant breached the Notes a n d the NMA by failing to pay the Notes and honor the terms of the NMA. Plaintiff alleges th a t it is owed the principal, interest, default interest, late fees, and costs of collection and e n f o rc e m e n t. Furthermore, Plaintiff alleges that it is owed money had and received by D e f e n d a n t but not returned to Plaintiff. O n June 24, 2010, Plaintiff moved for summary judgment on these claims. Defendant f a ile d to respond with an argument or any evidence.
Anne Stone Sumblin states in her affidavit that she incurred attorneys' fees of $ 2 0 ,6 4 7 .0 6 . However, she also says in her affidavits that she had billed 97.6 hours, with two m o re expected. She said that she billed Plaintiff at a rate of $195 per hour. Billing records s u b m itte d with that affidavit also show 97.6 billed hours at $195 per hour. Adding the e x p e c te d two hours to that total, 99.6 hours at $195 per hour equals $19,422.00. -5 -
V. DISCUSSION U n d e r Alabama law, the elements of a breach-of-contract claim are (1) a valid c o n tra c t binding the parties, (2) the plaintiff's performance under the contract, (3) the d e f e n d a n t's nonperformance, and (4) resulting damages. Reynolds Metals Co. v. Hill, 825 S o . 2d 100, 105 (Ala. 2002). An action for money had and received is "maintainable in all c a s e s where one has received money under such circumstances that in equity and good c o n s c ie n c e he ought not to retain it because in justness and fairness it belongs to another." Jewett v. Boihem, 23 So. 3d 658, 661 (Ala. 2009) (inner quotations omitted). "It aims at the a b s tra c t justice of the case, and looks solely to the inquiry, whether the defendant holds m o n e y, which . . . belongs to the plaintiff." Id. (inner quotations omitted). P la in tif f correctly states that it has submitted evidence showing the existence of the N o te s and the NMA, that it extended credit under the NMA, Defendant's default under the N M A , the acceleration of the debt pursuant to the terms of the NMA, the damages owed p u rs u a n t to the terms of the NMA, and that those damages are owed jointly and severally by D e f e n d a n t and Land Ventures. The evidence showing these facts is clear and unambiguous, a n d Defendant, having submitted no evidence, has failed to designate specific facts showing th a t there is a genuine issue for trial on any of these issues. Therefore, Plaintiff has met its b u rd e n of putting forward evidence establishing a prima facie case of its claims of breach of c o n tra c t and money had and received, and Defendant has failed to meet its burden to go b e yo n d the pleadings to show a genuine issue of fact in response.
The automatic stay in effect in Land Ventures's bankruptcy proceeding does not c h a n g e this determination. Defendant is jointly and severally liable with Land Ventures for th e damages owed to Plaintiff. The evidence presented shows that Land Ventures, and not D e f e n d a n t, owns the property used as security for the NMA. Therefore, collecting damages a g a in s t Defendant would not affect Land Ventures's bankruptcy proceedings. See In re M u r a ll, Inc., 118 B.R. 400, 40203 (D. S.C. 1989). The Court has been presented with no e v id e n c e that the Bankruptcy Court extended the stay to cover civil proceedings against D e f e n d a n t, a jointly and severally liable third party non-debtor. V I . CONCLUSION F o r the foregoing reasons, it is hereby ORDERED that Plaintiff's Motion for S u m m a ry Judgment (Doc. #8) is GRANTED. The Court will enter a separate final judgment c o n s is te n t with this Memorandum Opinion and Order. D O N E this the 30 day of August, 2010.
/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE
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