BMO Harris Bank N.A. v. Alton Bean Trucking, Inc. et al

Filing 83

ORDER granting in part and denying in part 80 MOTION FOR COMPENSATORY DAMAGES. Defendant shall pay Plaintiff $100,263.28. Signed by Honorable Susan O. Hickey on March 17, 2020. (mjm)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
BMO HARRIS BANK N.A.
v.

PLAINTIFF
Case No. 6:16-cv-6118

ALTON BEAN TRUCKING, INC.
and GARY BEAN

DEFENDANTS
ORDER

Before the Court is Plaintiff BMO Harris Bank N.A.’s Motion for Compensatory Damages.
(ECF No. 80). Defendants Alton Bean Trucking, Inc. (“ABT”) and Gary Bean1 have not
responded and their time to do so has passed. See Local Rule 7.2(b). The Court finds the matter
ripe for consideration.
I. BACKGROUND
On November 23, 2016, Plaintiff filed this action, alleging that Defendants were in default
under certain loan agreements and guarantees. Plaintiff sought replevin, specific performance,
injunctive relief, and damages for breach of contract. On April 4, 2017, the Clerk of Court entered
default against Defendants. On April 11, 2017, the Court entered default judgment against
Defendants, ordering, inter alia, that they must deliver all retained collateral to Plaintiff and, if
not, the U.S. Marshal or a local sheriff could assist Plaintiff in gaining possession of the retained
collateral.2 On March 4, 2019, the Court granted Plaintiff’s motion to reopen this case on the basis

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The parties have indicated that Defendant Gary Bean passed away prior to the initiation of this case. His son, Gary
Bean Jr., has appeared before the Court in his sole capacity as ABT’s president and corporate representative. Plaintiff
has conceded that ABT is the only defendant in this case for present purposes. Although Plaintiff has not filed a
motion to dismiss Defendant Bean from the action, the remainder of this order shall relate only to ABT.
The parties’ loan agreements identified certain tractors and trailers as collateral and granted Plaintiff a first-priority
security interest in the same. As of April 11, 2017, nine trailers remained in Defendants’ possession, one of which
was later destroyed.
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that ABT had not complied with the Court’s judgment, despite being served with the same, and
that some of the retained collateral remained in ABT’s possession.
Following a series of contempt motions filed by Plaintiff and hearings on the same, the
Court entered an order on June 27, 2019, holding ABT in civil contempt of court for violating the
Court’s April 11, 2017 judgment; the Court’s April 4, 2019 contempt order; and the Court’s May
6, 2019 show cause order. The Court gave ABT an opportunity to purge itself of contempt and
avoid paying a coercive fine by gathering all eight trailers comprising the remaining retained
collateral, in road-ready condition, at ABT’s place of business in Amity, Arkansas, and
relinquishing possession of them to Plaintiff by June 28, 2019. The Court also ordered Plaintiff
to, within fourteen days of the date of that order, file a motion for attorneys’ fees and costs incurred
since the April 3, 2019 contempt hearing. Finally, the Court stated that after Plaintiff received the
eight remaining trailers from ABT, Plaintiff could move for a determination of the amount of the
trailers’ depreciated value, if any, that should be awarded to Plaintiff as compensatory damages.
On July 2, 2019, ABT relinquished the retained collateral to Plaintiff as ordered. Plaintiff
did not file a motion for attorneys’ fees and costs by the Court-imposed deadline. On February
27, 2020, Plaintiff filed the instant motion for compensatory damages. Defendants have not
responded to the motion.
II. DISCUSSION
Plaintiff seeks the diminished value of the trailers for the period they were wrongfully
possessed by ABT, in addition to attorneys’ fees and costs incurred since April 3, 2019. Plaintiff
states that, although all eight trailers have been held out for sale, it has only been able to sell four
of them, for a total of $25,237.00. Plaintiff states that the remaining trailers have an appraised
value of $51,400.00.

Plaintiff requests the diminished value of the trailers, in the amount of

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$77,403.00.3 Plaintiff arrives at this number by taking the 2018 total average sale price of similar
equipment, totaled at $154,040.00,4 less the $25,237.00 Plaintiff received from selling four trailers
and the $51,400.00 appraisal value of the four unsold trailers. In the absence of any opposition to
the instant motion, the Court finds that Plaintiff is entitled to $77,403.00 in compensatory damages,
representing the diminished value of the trailers.
Plaintiff also seeks $22,860.28 in attorneys’ fees and costs incurred since the April 3, 2019
contempt hearing. As stated above, the Court ordered Plaintiff to move for fees and costs within
fourteen days after entry of the Court’s June 27, 2019 contempt order. (ECF No. 43, p. 10).
However, Plaintiff did not move for fees and costs until it filed the instant motion on February 27,
2020. Plaintiff does not acknowledge this or explain why it failed to either move for fees and costs
or for an extension of time to do so by July 11, 2019. Ordinarily, this would cause the Court to
deny the request for fees and costs as untimely. However, Defendants have not responded to the
instant motion, which is an independent basis for granting a request for non-dispositive relief. See
Local Rule 7.2(f). The Court will award the requested fees and costs for that reason. Thus, the
Court finds that Plaintiff is entitled to $22,860.28 in attorneys’ fees and costs incurred since the
April 3, 2019 contempt hearing.

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Plaintiff begins the motion by seeking $82,923.00 for the diminished value of the trailers, contending that it should
receive compensatory damages dating back to 2017. However, on June 27, 2019, the Court determined that Plaintiff
was entitled to compensatory damages for the diminished value of the trailers dating back to September 2018, when
the record showed that Plaintiff first attempted to enforce the April 11, 2017 judgment against Defendants. (ECF No.
43, pp. 7-8). Plaintiff has not asked the Court to reconsider its June 27, 2019 order, nor would such a request likely
be timely. See Nelson v. Am. Home Assur. Co., 702 F.3d 1038, 1043 (8th Cir. 2012) (instructing that a motion to
reconsider a nonfinal order should be analyzed under Federal Rule of Civil Procedure 60(b)); Fed. R. Civ. P. 60(c)(1)
(providing that Rule 60(b) motions must be brought “within a reasonable time”). In any event, the Court declines to
revisit its prior determination or award Plaintiff $82,923.00 for diminution of value dating back to 2017. Failing that,
Plaintiff asks for $77,403.00 in compensatory damages, which is covered above.
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Plaintiff calculated this number by multiplying the 2018 average sale price of similar equipment, $19,945.00, by
eight units of collateral.

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III. CONCLUSION
For the above-stated reasons, the Court finds that Plaintiff’s motion for compensatory
damages (ECF No. 80) should be and hereby is GRANTED IN PART AND DENIED IN PART.
Defendant shall pay Plaintiff $100,263.28, representing $77,403.00 in compensatory damages for
the diminished value of the trailers and $22,860.28 in attorneys’ fees and costs incurred since the
April 3, 2019 contempt hearing.
With this issue resolved, the Court sees no immediate reason for this case to remain open.
The Clerk of Court is DIRECTED to close this case.
IT IS SO ORDERED, this 17th day of March, 2020.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge

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