Harris v. Jan

Filing 35

OPINION and ORDER granting plaintiff's 26 Motion for Summary Judgment. See Opinion and Order for Details. Signed by Judge John E. Steele on 6/21/2019. (CMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LARRY HARRIS, an individual,
Plaintiff,
v.

Case No:

2:18-cv-383-FtM-29MRM

HENRY JAN, an individual,
Defendant.

OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion for
Summary Judgment (Doc. #26) filed on January 11, 2019.
filed a Response (Doc. #28) on January 31, 2019.

Defendant

For the reasons

set forth below, the motion is granted.
I.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A

court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004)(citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.
Co.

v.

M/V

Nan

Fung,

695

F.2d

1294,

1296-97

(11th

Cir.

1983)(finding summary judgment “may be inappropriate even where
the parties agree on the basic facts, but disagree about the
factual inferences that should be drawn from these facts”)).

“If

a reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces
a genuine issue of material fact, then the court should not grant
summary judgment.”

Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).
II.
The undisputed facts are as follows: On February 4, 2016,
Defendant

Henry

Jan

(Defendant)

2

executed

and

delivered

to

Plaintiff Larry Harris (Plaintiff) a promissory note (the Note) in
the principal amount of $300,000, to “be repaid in full on July
3rd, 2017.”

(Doc. #1-1, p. 2; Doc. #26-1, p. 2.)

The Note allowed

Defendant to make payments prior to July 3, 2017 without penalty.
(Doc.

#26-1,

p.

2.)

The

Note

consolidated

two

prior

loans

Plaintiff had made to Defendant in the amounts of $100,000 and
$75, 000 on June 10, 2010 and August 2, 2010, respectively.
p. 3.)

(Id.

The Note provides that interest accrues on the unpaid

principal at the interest rate of 12% per annum.

(Id. p. 2.)

The

Note further provides that, in the event of Defendant’s default,
the Note accrues interest at the rate of 15% per annum.
The Note matured on July 3, 2017.

(Id.)

(Id.)

On June 4, 2018, Plaintiff filed a Complaint (Doc. #1) against
Defendant, in which he asserts a claim for breach of a promissory
note.1

Plaintiff alleges in the Complaint that Defendant failed

to make any payments under the terms of the Note and owes Plaintiff
the principal amount of $300,000, plus interest.
III.
Plaintiff now moves for summary judgment on his breach of a
promissory note claim.

Under Florida law, the elements of a claim

for breach of a promissory note “are the same as those used for a

Plaintiff filed the Complaint with this Court on the basis
of diversity jurisdiction.
1

3

breach of contract claim.”

Regions Bank v. Legal Outsource PA,

No. 2:14-CV-476-FTM-29DN, 2014 WL 7014559, at *3 (M.D. Fla. Dec.
11,

2014)(citation

omitted).2

The

elements

for

a

breach

of

contract claim under Florida law are “(1) a valid contract; (2) a
material breach; and (3) damages.”

J.J. Gumberg Co. v. Janis

Servs., Inc., 847 So. 2d 1048, 1049 (Fla. 4th DCA 2003)(citation
and quotation omitted).
“A promissory note, mature and regular on its face . . . is
sufficient to establish a prima facie case” for breach of a
promissory note.
5th DCA 1981).

Haycook v. Ostman, 397 So. 2d 743, 743–44 (Fla.
“A payee's possession of an original uncanceled

promissory note raises a presumption of non-payment that shifts
the burden of proof to the payor to establish payment or another
defense.”

Cole Taylor Bank v. Shannon, 772 So. 2d 546, 550 (Fla.

1st DCA 2000).
Here, Plaintiff has submitted as evidence the Note, which
provides that Defendant was to pay Plaintiff $300,000 in principal,
plus interest, by July 3, 2017.

(Doc. #26-1.)

Plaintiff has also

submitted an affidavit, in which Plaintiff avers that Defendant
has made no payments on the Note and remains in default.
#26-2.)

(Doc.

Accordingly, Plaintiff has established a prima facie case

This action is governed by Florida law because the Note
provides that it “will be construed in accordance with and governed
by the laws of the State of Florida.” (Doc. #26-1, p. 2.)
2

4

for breach of a promissory note.

Haycook, 397 So. 2d at 743–44.

The burden thus shifts to Defendant “to establish payment or
another defense.”
Defendant

Shannon, 772 So. 2d at 550.

argues

Plaintiff

is

not

entitled

to

summary

judgment because he “believes he will demonstrate” that he signed
the Note under duress.

(Doc. #28, p. 2.)

Defendant, however, has

submitted no evidence supporting his contention that he signed the
Note under duress, and his speculation that he can establish such
a defense is insufficient to rebut Plaintiff’s prima facie case.
See Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th
Cir. 1995)(noting that in opposing summary judgment, the nonmoving
party must “designate specific facts showing that there is a
genuine issue for trial” by using “affidavits, [] depositions,
answers to interrogatories, [or] admissions on file” (citation and
quotation omitted)).
Defendant

also

argues

summary

judgment

is

inappropriate

because he “believes that he will demonstrate” that Plaintiff “has
received payments and stock” from Defendant for the June 10, 2010
and August 2, 2010 debt underlying the Note.

(Doc. #28, p. 2.)

In support thereof, Defendant has attached an authorized stock
certificate (Certificate), which provides that Plaintiff is the
record holder of 16,667 shares of Healthcare of Today, Inc.
#28-1.)

The

Certificate

does

not

provide

that

(Doc.

Defendant

transferred these shares to Plaintiff, and Defendant provides no

5

explanation

for

how

the

Certificate,

furnished

in

2009,

establishes payment by Defendant on the 2016 Note or on the 2010
underlying debt. Thus, this evidence is also insufficient to rebut
Plaintiff’s prima facie case.

See Walker v. Darby, 911 F.2d 1573,

1577 (11th Cir. 1990)(noting that to create a genuine issue for
trial, “[a] mere scintilla of evidence supporting the [nonmoving]
party's position will not suffice; there must be enough of a
showing that the jury could reasonably find for that party”
(citation and quotation omitted)).
For the foregoing reasons, the Court finds Defendant has
failed to rebut Plaintiff’s prima facie case for breach of a
promissory note, and Plaintiff is therefore entitled to summary
judgment.

Thus, Plaintiff is entitled to recover $300,000 in

principal, plus past-due interest at the per diem rate of $98.63
(12% per annum), for a total of $350,893.15.

Pursuant to the Note,

Plaintiff is also entitled to post-default interest accruing at
the per diem rate of $144.20 (15% per annum), from July 3, 2017
through the date of judgment.3
Plaintiff also seeks post-judgment interest in this case “at
the statutory rate.”

(Doc. #26, p. 6.)

Post-judgment interest

The Court uses the $350,893.15 figure in
per diem rate because the Note provides that,
default, “all amounts outstanding under this
interest at the rate of 15.00 percent per annum
#26-1, p. 2.)
3

6

calculating this
in the event of
Note will bear
. . . .” (Doc.

“shall be allowed on any money judgment in a civil case recovered
in a district court.”

28 U.S.C. § 1961(a).4

“Such interest shall

be calculated from the date of the entry of the judgment, at a
rate equal to the weekly average 1-year constant maturity Treasury
yield, as published by the Board of Governors of the Federal
Reserve System, for the calendar week preceding.”
is computed daily and compounded annually.

Id.

The rate

28 U.S.C. § 1961(b).

The weekly average 1-year constant maturity Treasury yield rate
for the preceding week is 2.02%.

Applying this weekly average

rate, Plaintiff is entitled to post-judgment interest at the per
diem rate of $19.42.5
Accordingly, it is now
ORDERED:
1.

Plaintiff’s Motion for Summary Judgment (Doc. #26) is

GRANTED.
2.

The Clerk is directed to enter judgment in favor of

Plaintiff and against Defendant, providing that Plaintiff shall
recover from Defendant as follows:

The applicable post-judgment interest rate is governed by
federal law in this diversity action. See Ins. Co. of N. Am. v.
Lexow, 937 F.2d 569, 572 n.4 (11th Cir. 1991)(“[I]n awarding
postjudgment interest in a diversity case, a district court will
apply the federal interest statute, 28 U.S.C. § 1961(a).”).
4

Formula applied: Weekly average 1-year constant maturity
Treasury yield (0.0202) x principal amount ($350,893.15) =
$7,088.04/365 days = per diem rate ($19.42).
5

7

a.

The principal sum of $300,000;

b.

Unpaid interest in the amount of $50,893.15;

c.

Post-default interest at the per diem rate of
$144.20, from July 3, 2017 through the date of
judgment;

d.

With post-judgment interest accruing at the per
diem rate of $19.42 from the date of judgment
until paid.

3.

Any motion for attorney’s fees and/or costs shall be

filed within FOURTEEN (14) days of the entry of judgment.
4.

The Clerk is further directed to terminate all pending

matters and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2019.

Copies: Counsel and Parties of record

8

21st

day of