Synovus Bank v. Vessel ACCU V
Order granting 74 MOTION for Partial Summary Judgment filed by Synovus Bank. The final pretrial conference is indefinitely continued. The MagistrateJudge will direct the parties as to filing a supplemental Rule 26(f) report, following which she will enter an amended Rule 16(b) scheduling order that will establish new dates for the final pretrial conference and trial. Signed by Chief Judge William H. Steele on 3/19/2012. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SYNOVUS BANK, etc.,
) CIVIL ACTION 11-0116-WS-B
The vessel ACCU V, etc., et al.,
This matter is before the Court on the plaintiff’s motion for partial summary
judgment against defendant Stryker Emmerton, (Doc. 74), pursuant to which the plaintiff
seeks partial summary judgment “as to Emmerton’s obligations to pay under his
Guaranty,” with the quantum of damages to be determined subsequently. (Doc. 75 at 2).
The parties have filed briefs and other materials in support of their respective positions,
(Docs. 75-77, 86, 101, 105), and the motion is ripe for resolution.
According to the amended complaint, (Doc. 58), the defendant Accumarine
Transportation, L.P. (“Accumarine”) borrowed several million dollars from the plaintiff,
secured by a preferred ship mortgage (“PSM”) on the defendant vessel and other security.
Several individuals and entities executed guaranties of payment of Accumarine’s debt.
Accumarine defaulted in payment and has not made full and final payment. The plaintiff
brought this action against the in rem defendant and purchased it at a marshal’s sale. It
also sold in another jurisdiction two other vessels as to which it held PSMs.
By amended complaint, the plaintiff added Accumarine and five guarantors as
defendants. According to the amended complaint, “[a]pplication of the sale proceeds
from all three vessels less expenses in custodia legis from all three vessels will leave a
deficiency still due and owing to Plaintiff in the amount owed by Defendants herein.”
(Id. at 6). Count Four alleges that Emmerton has breached his guaranty and is liable to
the plaintiff for all outstanding indebtedness. (Id. at 9-10).
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).
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact: it must support its motion
with credible evidence ... that would entitle it to a directed verdict if not controverted at
trial. [citation omitted] In other words, the moving party must show that, on all the
essential elements of its case on which it bears the burden of proof, no reasonable jury
could find for the nonmoving party.” United States v. Four Parcels of Real Property,
941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick,
2 F.3d at 1115.
“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; 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 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, 599 (11th Cir. 1995), and the Court
accordingly limits its review to those arguments the parties have expressly advanced.
Emmerton’s guaranty provides that it “shall be governed by the laws of the State
of Alabama.” (Doc. 58, Exhibit F at 4, ¶ 14). “Every suit on a guaranty agreement
requires proof of the existence of the guaranty contract, default on the underlying contract
by the debtor, and nonpayment of the amount due from the guarantor under the terms of
the guaranty.” Delro Industries, Inc. v. Evans, 514 So. 2d 976, 979 (Ala. 1987).
Emmerton initially questioned the plaintiff’s proof of Accumarine’s underlying
obligation, on the grounds that, although the note and its two modifications were in
evidence, no affiant authenticated them. (Doc. 86 at 3-6). The plaintiff then submitted
an affidavit doing precisely that. (Doc. 101, Hammond Affidavit, ¶ 9). The Court
offered Emmerton the opportunity to challenge the adequacy of this authentication, (Doc.
102), and Emmerton declined to do so. (Doc. 105 at 1-2). The existence of the
underlying obligation has been fully established.
The original Hammond affidavit reflects that Accumarine has made no payments
on its debt since March 2010 and has not paid the balance due. (Doc. 75, Hammond
Affidavit, ¶¶ 4-5). This establishes “default on the underlying contract by the debtor,”
and Emmerton makes no argument to the contrary.
The original Hammond affidavit authenticates the Emmerton guaranty attached to
the amended complaint and negates any cancellation of the guaranty. (Doc. 75,
Hammond Affidavit, ¶¶ 7-8). This establishes “the existence of the guaranty contract,”
and Emmerton makes no argument to the contrary.
The original Hammond affidavit states that Emmerton has not paid the balance
due under Accumarine’s note as modified and negates the existence of any unsatisfied
prerequisite to demand under the guaranty. (Doc. 75, Hammond Affidavit, ¶¶ 5-6).1 This
establishes “nonpayment of the amount due from the guarantor under the terms of the
guaranty,” and Emmerton makes no argument to the contrary.
The original Hammond affidavit reflects that the plaintiff has received funds from
the sale of a vessel and a settlement with two other guarantors. (Doc. 75, Hammond
Affidavit, ¶ 17). Emmerton objects that the plaintiff cannot obtain partial summary
judgment without proving the existence of a deficiency and its amount. (Doc. 86 at 610). The elements of a claim on a guaranty, however, are set forth in Delro Industries,
and they do not include proof of a deficiency remaining after the proceeds of collateral
and other guaranties are taken into account; Emmerton’s reading to the contrary is
The guaranty makes Emmerton “liable for … all reasonable attorneys’ fees,
collection costs and enforcement expenses referable” to the note. (Doc. 58, Exhibit F at
1, ¶ 4). It likewise requires Emmerton to “pay or reimburse Lender for all costs and
expenses (including reasonable attorneys’ fees and legal expenses) incurred by Lender in
The guaranty appears to be continuing. “[T]o recover under a …continuing guaranty,
an additional element, notice to the guarantor of the debtor’s default, must be proved.” Delro
Industries, 514 So. 2d at 979. However, “[t]he language of the guaranty is controlling in
determining whether the holder of the guaranty is under a duty to notify the guarantor of a
default by the principal, and notice need not be given when the terms of the guaranty expressly
dispense with the need for it.” Sharer v. Bend Millwork Systems, Inc., 600 So. 2d 223, 226 (Ala.
1992) (applying the rule to a continuing guaranty). Because the guaranty provides that
Emmerton waives notice of dishonor or nonpayment, (Doc. 58, Exhibit F at 3, ¶ 11), the plaintiff
is not required to plead or prove such notice.
Emmerton remains free to insist on such proof at the damages phase.
connection with the protection, defense or enforcement of this Guaranty in any litigation
….” (Id. at 2, ¶ 5). These provisions establish that Emmerton is liable for such fees and
costs, and Emmerton makes no argument to the contrary.
Based on the foregoing, there is no genuine issue of material fact or law, and
Emmerton’s liability to the plaintiff under his guaranty, including for attorney’s fees and
expenses, stands established. Accordingly, the plaintiff’s motion for partial summary
judgment as to Emmerton’s obligations to pay under the guaranty is granted.
The plaintiff asks the Court to enter judgment in its favor and allow it to prove up
its damages by affidavit in “post-judgment pleadings.” (Doc. 74 at 3; Doc. 75 at 2, 1011). This is not possible. Without a determination of the amount of the judgment to be
entered, no judgment can or will be entered.3 Nor can the determination be made at this
time on affidavit, unless Emmerton agrees. The plaintiff declined to move for summary
judgment as to damages, and the time for filing dispositive motions has passed.
This case is set for final pretrial conference on April 17, 2012, but it clearly is not
ready for trial. Of the four in personam defendants that have not settled with the plaintiff,
one was served only on February 22, 2012, (Doc. 100), and another filed his answer the
same date. (Doc. 96). The Court will not be put to the inefficiency of resolving the
This is so with respect to costs and attorney’s fees as fully as with respect to principal
and interest. Rule 54(d) allows a claim for attorney’s fees and related nontaxable expenses to be
made by post-judgment motion “unless the substantive law requires those fees to be proved at
trial as an element of damages.” Fed. R. Civ. P. 54(d)(2)(A). “As noted in subparagraph (A), it
[Rule 54(d)(2)] does not, however, apply to fees recoverable as an element of damages, as when
sought under the terms of a contract ….” Id. 1993 advisory committee notes; see also Brandon,
Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349, 1355
(11th Cir. 2002) (“In this Circuit, a request for attorneys’ fees pursuant to a contractual clause is
considered a substantive issue ….”); Ierna v. Arthur Murray International, Inc., 833 F.2d 1472,
1476 (11th Cir. 1987) (“When the parties contractually provide for attorneys’ fees, the award is
an integral part of the merits of the case.”).
plaintiff’s claims against these defendants and Emmerton in separate trials.4
Accordingly, the final pretrial conference is indefinitely continued. The Magistrate
Judge will direct the parties as to filing a supplemental Rule 26(f) report, following which
she will enter an amended Rule 16(b) scheduling order that will, inter alia, establish new
dates for the final pretrial conference and trial.
DONE and ORDERED this 19th day of March, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
After the Court prepared this order, the plaintiff filed an application for entry of default
against the non-answering defendant, (Doc. 106), which remains under consideration. It does
not affect the reasoning or result of this opinion.
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