Tribuilt Construction Group, LLC v. International Fidelity Insurance Company

Filing 64

AMENDED OPINION. Signed by Honorable Paul K. Holmes, III on June 14, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TRIBUILT CONSTRUCTION GROUP, LLC
V.

PLAINTIFF

No. 2:10-CV-02052

INTERNATIONAL FIDELITY INSURANCE
COMPANY
ALAN M. HARRISON, GAYE P.
HARRISON, JOSEPH E. MARRONE,
STACY M. MARRONE, and SOUTHLAND
ENTERPRISES, LLC

DEFENDANT

THIRD-PARTY DEFENDANTS

AMENDED OPINION
The Court’s Opinion entered June 13, 2011 is hereby amended as
follows:
Currently before the Court is Defendant and Third Party
Plaintiff, International Fidelity Insurance Company’s (“IFIC”)
Motion to Set Aside Order of Dismissal and to Enforce Settlement
Agreement (Doc. 59) and brief in support (Doc. 60). The time period
for response has run with no response being filed by the opposing
parties.
Although the Court was informed by the parties that a
settlement agreement had been reached in March of this year, it now
appears that no agreement was actually consummated by the parties.
IT APPEARING to the Court that no settlement agreement was ever
effectuated by the parties herein, the Court hereby VACATES its
Order dated April 1, 2011 (Doc. 58) dismissing IFIC’s claims with
prejudice. The above-captioned action is, therefore, REOPENED.
Since no agreement was ever reached by the parties, the Court

DENIES IFIC’s Motion to the extent that it requests enforcement of
the settlement agreement.
Having thus restored the case to its active docket, the Court
will immediately address IFIC’s pending Motion for Summary Judgment
on the Counterclaim and Third-Party Complaint. (Doc. 46) The Motion
was ripe for ruling at the time the Court entered its order
dismissing the remaining claims, and thus, remains ripe for ruling
upon the instant reopening of the case. For the reasons set forth
below, the Court finds that ISIC’s Motion for Summary Judgment
should be GRANTED.
IFIC filed its Motion for Summary Judgment on January 13,
2011. On January 31, 2011, Counter-Defendant Tribuit Construction
Group,

LLC

(“Tribuilt”)

and

Third

Party

Defendants

Alan

M.

Harrison, Gaye P. Harrison, Joseph E. Marrone, Stacy M. Marrone,
and Southland Enterprises, LLC were granted an extension of time,
to February 24, 2011, to file a response. On February 7, 2011, the
Court granted a motion for counsel representing Tribuilt and the
Third Party Defendants to withdraw. (Doc. 54). In that same Order,
Tribuilt and the Third Party Defendants were instructed to notify
the Court by February 22, 2011 of their intentions to hire new
counsel. No such notification was received by the deadline. On
February 24, 2011, the case was reassigned to the undersigned. The
Court then extended the deadline for Tribuilt and the Third Party
Defendants to notify the Court of their intention, ordering that
such notification be provided by March 18, 2011. (Doc. 56). The

extended deadline passed again with no notification having been
made to the Court. Before the Court entered any further orders, the
parties informed that they had reached a settlement. Relying upon
such

information,

the

Court

entered

an

Order

dismissing

the

remaining claims with prejudice. (Doc. 58).
During the time that the action progressed, the

extended

deadline for Tribuilt and the Third Party Defendants to respond to
IFIC’s Motion for Summary Judgment passed with no response having
been filed. The Court, then, views IFIC’s Motion for Summary
Judgment as unopposed. The Court notes, further, that the failure
of the opposing parties to comply with the Court’s orders regarding
notification could have resulted in a default judgment being
entered

against

them.

In

fact,

both

Tribuilt

and

Southland

Enterprises, LLC were technically in default when they failed to
obtain substitute counsel, as the law does not allow a corporation
or other business entity to proceed pro se. Fingerhut Corp. V.
Ackra Direct Mktg. Corp., 86 F.3d 852, 856 (8th Cir. 1996).
In determining whether summary judgment is appropriate, the
burden is placed on the moving party to establish both the absence
of a genuine dispute of material fact and that it is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106
S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Nat’l. Bank of Commerce of El
Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). The
Court must review the facts in a light most favorable to the party

opposing a motion for summary judgment and give that party the
benefit of any inferences that logically can be drawn from those
facts. Canada v. Union Elec. Co., 135 F.3d 1211,

1212-13 (8th Cir.

1998) (citing Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983). In order for there to be a genuine issue of material fact,
the non-moving party must produce evidence “such that a reasonable
jury could return a verdict for the nonmoving party.” Allison v.
Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986)).
In its Motion for Summary Judgment, IFIC claims that there is
no genuine dispute of material fact that the General Agreement of
Indemnity

(“GAI”)

executed

by

Tribuilt

and

the

Third

Party

Defendants required those parties to indemnify IFIC from all losses
resulting from IFIC’s execution of eight payment bonds, issued by
IFIC as surety for Tribuilt with respect to the Country Inn and
Suites project in Faulkner County, Arkansas. Upon review of the
relevant provision of the GAI, it appears to the Court that
Tribuilt and the Third Party Defendants were, in fact, required to
indemnify IFIC from losses resulting from IFIC’s execution of the
aforementioned bonds. Tribuilt and the Third Party Defendants have
produced no evidence in response to IFIC’s Motion and, therefore,
no genuine issue of material fact has been raised as to IFIC’s
counterclaim and claims contained in its third party complaint.
Indeed, in their Answer to the Third Party Complaint, the Third

Party

Defendants

admitted

the

allegations

contained

in

the

Complaint, only reserving the right to challenge the exact amount
and to demand that IFIC obtain lien waivers from all subcontractors
paid. (Doc. 45). There being no genuine issues of material fact,
summary judgment in this case is appropriate.
IFIC entered notice on May 19, 2011 that separate defendants
Joseph and Stacy Marrone had filed a Chapter 13 Petition in
Bankruptcy on May 12, 2011. (Doc. 61). All remaining claims against
the Marrones are, therefore, subject to an automatic stay. 11
U.S.C. § 362(a). The claims against the Marrones will be STAYED
PENDING THEIR BANKRUPTCY PROCEEDING, and the Marrones are directed
to promptly inform the Court once their bankruptcy proceeding has
concluded.
Accordingly, upon VACATING its previous Order (Doc. 58) and
REOPENING the instant matter, the Court finds that IFIC’s Motion
for Summary Judgment on the Counterclaim and Third-Party Complaint
(Doc. 46) should be, and hereby is GRANTED. IFIC is entitled to
judgment

against

Tribuilt

Construction

Group,

LLC,

Alan

M.

Harrison, Gaye P. Harrison, and Southland Enterprises, LLC, jointly
and severally, for the sum of $492,828.57. The Court will enter
judgment for IFIC in this amount. The parties are to bear their own
costs and fees.

IT IS SO ORDERED this 14th day of June, 2011.

/s/ Paul K. Holmes, III
Paul K. Holmes, III
UNITED STATES DISTRICT JUDGE