PGT Industries, Inc. v. Harris & Pritchard Contracting Services LLC et al

Filing 43

ORDER: Plaintiff PGT Industries, Inc.'s Motion for Default Judgment Against Defendant Harris & Pritchard Contracting Services, LLC 42 is GRANTED. Plaintiff PGT Industries, Inc.'s Motion to Consider Plaintiff's Motion for Summary Judg ment as Unopposed and to Enter Summary Judgment in Favor of Plaintiff 39 is GRANTED to the extent that the Court considers Plaintiff PGT Industries, Inc.'s Motion for Summary Judgment 33 as unopposed. Plaintiff PGT Industries, Inc.'s Mo tion for Summary Judgment 33 is GRANTED as to Defendant David M. Harris and DENIED as moot as to Defendant Harris & Pritchard Contracting Services, LLC. Entry of judgment will be reserved until the amount of costs, fees, and prejudgment interest is determined. Plaintiff PGT Industries, Inc. may file with the Court a motion addressing prejudgment interest, fees, and costs on or before April 12, 2013. Additionally, Plaintiff PGT Industries, Inc. is directed to submit a proposed judgment to the Court on or before April 12, 2013. Signed by Judge Virginia M. Hernandez Covington on 3/29/2013. (LRM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PGT INDUSTRIES, INC.,
Plaintiff,
v.

Case No. 8:12-cv-358-T-33TGW

HARRIS & PRITCHARD CONTRACTING
SERVICES, LLC and DAVID M. HARRIS,
Defendants.
____________________________________/
ORDER
This

cause

Plaintiff
Default

PGT

before

Industries,

Judgment

Contracting

comes

Against

Services,

LLC

the

Inc.‟s
Defendant
(Doc.

#

Court

Motion
Harris
42),

pursuant
for
&

filed

Entry

to
of

Pritchard
March

20,

2013; PGT‟s Motion for Summary Judgment against Harris &
Pritchard and Defendant David M. Harris (Doc. # 33), filed
on

December

13,

2012;

and

PGT‟s

Motion

to

Consider

Plaintiff‟s Motion for Summary Judgment as Unopposed and to
Enter Summary Judgment in Favor of Plaintiff (Doc. # 39),
filed on February 19, 2013. As of the date of this Order,
neither Harris & Pritchard as a corporate defendant nor
Harris in his individual capacity have filed any response
in opposition to any of the motions; the time to do so has
now passed. Accordingly, the Court considers the motions as

unopposed. For the reasons that follow, the Court grants
PGT‟s Motion for Default Judgment as to Harris & Pritchard,
grants

PGT‟s

Summary

Motion

Judgment

to

as

Consider

Unopposed,

Plaintiff‟s

grants

PGT‟s

Motion

for

Motion

for

Summary Judgment as to Harris, and denies as moot PGT‟s
Motion for Summary Judgment as to Harris & Pritchard.
I.

Background
According to PGT, Harris & Pritchard executed a credit

application and Domestic Terms and Conditions of Sale with
PGT. (Doc. # 2 at 1, 6). PGT also states that Harris signed
a personal guaranty, and, therefore, he is responsible to
PGT for payment of all amounts owed to PGT by Harris &
Pritchard. (Id. at 4, 11). Although “Harris & Pritchard
Contracting
agreement

Services

above

both

LLC”

is

written

on

the

the

line

labeled

“Company

guaranty
Name

or

Account Name” and the line labeled “Name of Guarantor,”
Harris also signed his name at the end of the Personal
Guaranty

Agreement

on

the

line

labeled

“Guarantor”

and

provided his social security number in the space provided
for it. (Id. at 11). PGT claims that it sold window and
tile products to Harris & Pritchard in accordance with the
terms of the agreement. (Id. at 2, 10).

2

PGT states that Harris & Pritchard made no objection
or complaint with respect to the products sold to them and
that, although Harris & Pritchard has made partial payments
to

PGT,

it

still

owes

PGT

$107,374.53

principal

plus

statutory interest. (Id. at 2). Additionally, PGT alleges
that “[p]ursuant to the Domestic Terms and Conditions of
Sale,

Harris

&

Pritchard

is

responsible

for

payment

of

[PGT‟s] attorney‟s fees and costs.” (Id.).
PGT originally filed this action in state court, and
Harris & Pritchard

and Harris

removed the

case to

this

Court on February 21, 2012. (Doc. # 1). PGT‟s three count
Complaint alleges counts for breach of written contract and
for unjust enrichment against Harris & Pritchard, as well
as one count for breach of guaranty against Harris in his
individual capacity. (Doc. # 2). Harris & Pritchard filed
its Answer and Affirmative Defenses on March 6, 2012. (Doc.
# 5). After filing an unsuccessful Motion to Dismiss (Doc.
#

6),

Harris

filed

his

Answer

and

Affirmative

Defenses

(Doc. # 25), on August 21, 2012.
On

November

27,

2012,

counsel

for

both

Harris

&

Pritchard and Harris filed a Motion to Withdraw as counsel.
(Doc. # 30). On December 13, 2012, PGT filed a motion for
summary judgment. (Doc. # 30). The Court granted Harris &
3

Pritchard

and

Harris‟

counsels‟

Motion

to

Withdraw

on

December 14, 2012, and notified Harris & Pritchard that it
had

thirty

days

to

file

a

notice

of

appearance

of

new

counsel. (Doc. # 34). No such notice was filed. On January
22,

2013,

this

Court

entered

an

Order

noting

Harris

&

Pritchard‟s failure to comply with the Court‟s instruction
and

stating,

“Absent

a

notice

of

appearance

of

counsel

filed on behalf of Harris & Pritchard by February 6, 2013,
this Court will entertain an appropriate motion to strike
Harris

&

Pritchard's

pleadings.

Thereafter,

Harris

&

Pritchard will be poised for the entry of default against
it.” (Doc. # 36 at 5-6). As of the date of this Order,
Harris & Pritchard has not filed a notice of appearance of
new counsel. In the January 22, 2013, Order, the Court also
stated:
Defendant David M. Harris has until February 6,
2013, to notify the Court if he intends to
proceed in this action pro se or to file a notice
of appearance of counsel. If he intends to
proceed pro se, Harris is directed to file a
response to Plaintiff PGT Industries, Inc.'s
motion for summary judgment by or on February 6,
2013. If Harris fails to so file, the Court will
consider PGT's motion for summary judgment as
unopposed.
In the event that new counsel is
retained, Harris is directed to file a response
to the motion for summary judgment on or before
February 20, 2013.

4

(Id. at 6). As of the date of this Order, Harris has not
filed a response to PGT‟s Motion for Summary Judgment.
PGT filed the Motion to Strike Harris & Pritchard‟s
Answer and to Enter Default Judgment on February 19, 2013.
(Doc. # 38). On the same day, PGT also moved the Court to
consider PGT‟s Motion for Summary Judgment as an unopposed
motion and to enter summary judgment in favor of PGT. (Doc.
# 39). The Court granted the motion to strike, construed
the

motion

to

enter

default

judgment

as

a

motion

for

Clerk‟s entry of default, and granted the construed motion.
(Doc. # 40). Thus, Harris & Pritchard‟s answer was stricken
(Doc. # 5), the Clerk entered default on March 18, 2013
(Doc. # 41), and PGT filed a Motion for Default Judgment
against Harris & Pritchard on March 20, 2013 (Doc. # 42).
II.

Motion for Default Judgment Against Harris & Pritchard
A.

Legal Standard

Federal Rule of Civil Procedure 55(a) sets forth the
following regarding an entry of default:
(a) Entering a Default.
When a party against
whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that
failing is shown by affidavit or otherwise, the
clerk must enter the party‟s default.
Pursuant

to

Federal

Rule

of

Civil

Procedure

55(b)(2),

following the entry of a Clerk‟s default and upon motion by
5

the

plaintiff,

the

Court

may

enter

a

default

judgment

against a defaulting party. Fed. R. Civ. P. 55(b)(2); see
also DirecTV, Inc. v. Griffin, 290 F. Supp. 2d 1340, 1343
(M.D. Fla. 2003).

The mere entry of a default by the Clerk

does not, in itself, warrant the Court entering a default
judgment,

as

a

Clerk's

default

is

not

treated

as

an

absolute confession by the defendant of his liability and
of the plaintiff's right to recover.

See Tyco Fire & Sec.

LLC v. Alcocer, 218 F. App‟x 860, 863 (11th Cir. 2007)
(citing Nishimatsu Constr. Co. v. Houston Nat‟l Bank, 515
F.2d

1200,

1206

(5th

Cir.

1975)).

Rather,

a

defaulted

defendant is only deemed to admit the plaintiff's well-pled
allegations

of

fact.

Id.

Therefore,

before

entering

a

default judgment for damages, a court must ensure that the
well-pleaded allegations in the complaint, which are taken
as true due to the default, actually state a substantive
cause of action and that there is a substantive, sufficient
basis in the pleadings for the particular relief sought.
Id. A default judgment has the effect of establishing as
fact the plaintiff‟s well-pled allegations of fact and bars
the defendant from contesting those facts on appeal. Id.
B.

Analysis

6

The Complaint alleges three counts in total: Count I
for breach of written contract as to Harris & Pritchard,
Count II for unjust enrichment as to Harris & Pritchard,
and Count III for damages as to David Harris under personal
guaranty. The Motion for Default Judgment applies only to
Harris & Pritchard, and so the Court will evaluate only
Counts I and II at this time.
1.

Count I – Breach of Contract

This is a diversity action and therefore the Court is
“required to apply the substantive law of the forum state,
namely Florida.” Fioretti v. Mass. Gen. Life Ins. Co., 53
F.3d 1228, 1235 (11th Cir. 1995) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938)). In order to plead a breach
of

contract

assert

the

claim

under

existence

of

Florida
a

law,

contract,

a
a

plaintiff
breach

of

must
such

contract, and damages resulting from such breach. Bray &
Gillespie Mgmt. LLC v. Lexington Ins. Co., 527 F. Supp. 2d
1355,

1365

Corp.,

346

(M.D.
So.

Fla.
2d

2007)

1042,

(citing

1043

Knowles

(Fla.

1st

v.

DCA

C.I.T.
1977)).

Additionally, “while a breach may be a breach anywhere,
that

is

not

the

end

of

the

legal

test

for

breach

of

contract in Florida. Florida contract law requires that in
a breach of contract action, the breach in question must be
7

material.” Marino v. Home Depot U.S.A., Inc., 245 F.R.D.
729, 734 (S.D. Fla. 2007) (citing J.J. Gumberg Co. v. Janis
Servs., Inc., 847 So. 2d 1048, 1049 (Fla. 4th DCA 2003));
see also Great Lakes Reins. (UK) PLC v. Morales, 760 F.
Supp. 2d 1315, 1328 (S.D. Fla. 2010) (“Under Florida law, a
breach of contract action requires three elements: (1) a
valid contract; (2) a material breach of that contract; and
(3) damages.”) (citing Beck v. Lazard Freres & Co., LLC,
175 F.3d 913, 914 (11th Cir. 1999)).
In

the

Complaint,

PGT

alleges

that

it

executed

a

credit application and “Domestic Terms and Conditions of
Sale”

with

Harris

&

Pritchard

(Doc.

#

2

at

¶

5).

PGT

attached a copy of that document to the Complaint for the
Court‟s review (Id. at 6-9). PGT alleges, “Pursuant to the
terms

of

the

[Credit]

Application,

Plaintiff

sold

tile

products to Harris & Pritchard, as shown in the invoice
attached

[to

the

Complaint]

.

.

.

.”

(Id.

at

¶

7).

Furthermore, PGT alleges Harris & Pritchard did not object
to or complain about the sold goods (Id. at ¶ 8), and
Harris & Pritchard breached the contract by failing to pay
the total amount owed for the delivered goods (Id. at ¶ 9).
PGT also alleges it suffered damages in the form of the

8

unpaid

balance

on

the

contract

in

the

amount

of

$107,374.53. (Id.).
Taking the well-pled allegations of the Complaint as
true, the Court finds that the contract entered into by PGT
and

Harris

&

Pritchard

is

valid

and

PGT‟s

allegations

concerning damages are sufficiently pled. Furthermore, nonpayment of the amount due under a contract is a material
breach of the contract. See, e.g., Whitney Nat. Bank v. R &
S

Dev.

of

SW

Fl,

LLC,

8:09-CV-2315-T-30TGW,

2010

WL

2367137, at *2 (M.D. Fla. June 14, 2010). Accordingly, the
elements of breach of contract under Florida law are met;
therefore, the Court finds that there is a sufficient basis
in the pleadings

for default judgment to be entered in

favor of PGT as to the breach of contract claim.
2.

Count II – Unjust Enrichment

Unjust enrichment is an equitable claim, “based on a
legal fiction created by courts to imply a „contract‟ as a
matter of law.” Tooltrend, Inc. v. CMT Utensili, SRL, 198
F.3d 802, 805 (11th Cir. 1999) (citing Commerce P‟ship 8098
Ltd. P‟ship v. Equity Contracting Co., 695 So. 2d 383, 386
(Fla.

4th

enrichment,

DCA
the

1997)).
law

Through

can,

in

a

claim

essence,

for

unjust

“„create‟

an

agreement” in a situation where “the parties may have never
9

by word or deed indicated in any way that there was any
agreement between them,” but “it is deemed unjust for one
party to have received a benefit without having to pay
compensation for it.” Id. “It derives, not from a „real‟
contract but a „quasi-contract.‟” Id.
To successfully state a claim for unjust enrichment a
plaintiff must prove that:
(1) the plaintiff has conferred a benefit on the
defendant, who has knowledge thereof; (2) the
defendant has voluntarily accepted and retained
the benefit conferred; and (3) the circumstances
are such that it would be inequitable for the
defendant to retain the benefit without paying
the value thereof to the plaintiff.
Id.
Because the Court has found sufficient basis to grant
default judgment as to PGT‟s claim for breach of written
contract, PGT‟s claim for unjust enrichment is superfluous.
However, in the interest of thoroughness, the Court will
briefly discuss PGT‟s unjust enrichment claim as well.
PGT
benefit

alleges
on

in

Harris

its
&

Complaint

Pritchard

that

in

the

it

“conferred

form

of

a

window

products, as reflected in the invoices attached hereto . .
. .” (Doc. # 2 at ¶ 13). Furthermore, PGT states that
“Harris

&

Plaintiff”

Pritchard

knew

(Id.

¶

at

of

14)

the
and

10

benefit
“retained

conferred
the

by

benefit

conferred by Plaintiff”
Plaintiff

$107,374.53

(Id.

at ¶ 15), but “still owes

principal

plus

statutory

interest”

(Id. at ¶ 9). PGT also states, “In the ordinary course of
common events, a reasonable person receiving the benefits
set forth in the [Complaint] normally would expect to pay
for the same” (Id. at ¶ 18); accordingly, PGT alleges that
it “would be inequitable for Harris & Pritchard to retain
the

benefit

conferred

by

Plaintiff

without

paying

the

reasonable value thereof.” (Id. at ¶ 16). The Court agrees.
Therefore, the Court finds that even if PGT had not
successfully
still

stated

successfully

through

its

a

claim

states

claim

for

a

of

breach

of

substantive

unjust

contract,

cause

enrichment.

of

PGT

action

There

is

sufficient basis in the pleadings for the relief sought;
thus,

default

judgment

is

granted

against

Harris

&

Pritchard.
III. Motion to Consider Plaintiff’s Motion for Summary
Judgment as Unopposed and to Enter Summary Judgment in
Favor of Plaintiff
As

stated

above,

PGT

filed

the

Motion

for

Summary

Judgment (Doc. # 33) on December 13, 2012. Without legal
counsel, corporate defendant Harris & Pritchard cannot file
a response in opposition to the motion. See Palazzo v. Gulf
Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) (“The rule
11

is well established that a corporation is an artificial
entity that can act only through agents, cannot appear pro
se, and must be represented by counsel.”).
Regardless, neither Harris & Pritchard nor Harris in
his

individual

capacity

have

attempted

to

file

such

a

response, despite an Order of this Court notifying Harris
that if he failed to file a response, “the Court [would]
consider PGT‟s motion for summary judgment as unopposed.”
(Doc.

#

36).

After

the

time

for

responses

to

be

filed

passed, PGT filed a Motion to Consider Plaintiff‟s Motion
for

Summary

Judgment

as

Unopposed

and

to

Enter

Summary

Judgment in Favor of Plaintiff. (Doc. # 39).
Because no timely response in opposition to the Motion
for

Summary

Judgment

has

been

filed,

the

Court

will

consider the Motion as unopposed and “consider the fact[s]
undisputed for purposes of the motion.” Fed. R. Civ. P.
56(e)(2). PGT‟s Motion to Consider Plaintiff‟s Motion for
Summary Judgment as Unopposed and to Enter Summary Judgment
in Favor of Plaintiff (Doc. # 39) is granted to the extent
that

the

Court

will

consider

PGT‟s

Judgment (Doc. # 33) as unopposed.
IV.

Motion for Summary Judgment
A.

Legal Standard
12

Motion

for

Summary

Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed.

R.

enough

Civ.
to

P.

56(a).

defeat

a

A

factual

properly

pled

dispute
motion

alone
for

is

not

summary

judgment; only the existence of a genuine issue of material
fact will preclude a grant of summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,
742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun
Publ‟g Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is
material if it may affect the outcome of the suit under the
governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642,
646 (11th Cir. 1997). The moving party bears the initial
burden of showing the court, by reference to materials on
file, that there are no genuine issues of material fact
that

should

be

decided

at

trial.

Hickson

Corp.

v.

N.

Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)
(citing

Celotex

Corp.

v.

Catrett,

477

U.S.

317,

323

(1986)). “When a moving party has discharged its burden,
the non-moving party must then „go beyond the pleadings,‟
13

and by its own affidavits, or by „depositions, answers to
interrogatories,

and

admissions

on

file,‟

designate

specific facts showing that there is a genuine issue for
trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
Furthermore,

because

the

movant

bears

the

initial

burden of proving that summary judgment is appropriate, a
court cannot “base the entry of summary judgment on the
mere fact that the motion was unopposed, but, rather, must
consider the merits of the motion.” United States v. One
Piece of Real Prop. Located at 5800 SW 74th Ave., Miami,
Fla.,

363

F.3d

1099,

1101-02

(11th

Cir.

2004)

(citing

Dunlap v. Transam. Occidental Life Ins. Co., 858 F.2d 629,
632 (11th Cir. 1988)). “The district court need not sua
sponte review all of the evidentiary materials on file at
the time the motion is granted, but must ensure that the
motion itself is supported by evidentiary materials.” Id.
Additionally, “so that there can be an effective review of
the case on appeal, the district court's order granting
summary

judgment

motion

were

must

indicate

addressed.”

Id.

quotations omitted).
B.

Analysis
14

that

the

(internal

merits

of

citations

the
and

1. Counts I and II
As
contract

stated
and

above,

Count

II

Count
for

I

for

unjust

breach

of

enrichment

written

are

stated

against Harris & Pritchard only. Because the Court has now
found

that

default

judgment

should

be

entered

against

Harris & Pritchard, summary judgment as to Counts I and II
is denied as moot.
2. Count III – Breach of Personal Guaranty
Count

III

of

the

Complaint

alleges

“damages

as

to

David Harris under personal guaranty.” (Doc. # 2 at ¶ ). As
previously stated, the Court applies Florida law in this
case.

Fioretti,

contract

of

53

F.3d

guaranty

is

at

1235.

the

Under

promise

to

Florida
answer

law,
for

a

the

payment of the debt, default, or performance of another.
See, e.g., Amerishop Mayfair, L.P. v. Billante, 833 So. 2d
806, 809 (Fla. 3rd DCA 2002) (citing Nicolaysen v. Flato,
204

So.

2d

547,

549

(Fla.

Dist.

Ct.

App.

1967));

Fort

Plantation Inv., LLC v. Ironstone Bank, 85 So. 3d 1169,
1171 (Fla. 5th DCA 2012) (“A guaranty is a promise to pay
the debt of another on the default of the person primarily
liable for payment or performance.”). As such, a claim for
breach of guaranty is simply a breach of contract claim.
See, e.g., Swan Landing Dev., LLC v. Fla. Capital Bank,
15

N.A., 19 So. 3d 1068, 1070 (Fla. 2d DCA 2009) (noting that
the action stated a “breach of contract action on a . . .
guaranty”
guaranty

and
was

noting
a

that

“valid

the

parties

contract[]”).

agreed

that
the

Therefore,

the
same

elements of proof that are required for breach of contract
are required for breach of guaranty: (1) a valid contract,
(2) a material breach, and (3) damages. Beck, 175 F.3d at
914.
PGT claims that a valid contract existed between PGT
and Harris in the form of the Personal Guaranty Agreement
(Doc. # 2 at ¶ 28-30; Doc. # 33 at 4), and PGT included a
copy

of

the

Personal

Guaranty

Agreement

with

the

filed

Complaint (Doc. # 2 at 11). As discussed above, PGT alleges
a material breach of contract in that Harris & Pritchard
failed to pay for the goods delivered to them by PGT, and
now Harris has breached by failing to provide payment as
required by the Personal Guaranty Agreement. (Doc. # 33 at
2). Again, PGT claims that it suffered damages in the form
of non-payment. (Doc. # 2 at ¶ 1, 9; Doc. # 33 at 2, 4).
Concerning

the

Agreement,

the

does

“Harris

list

Court
&

validity
notes

of

the

Pritchard

the
actual

Personal

Guaranty

guaranty

document

Contracting

Services

LLC”

above both the line labeled “Company Name or Account Name”
16

and the line labeled “Name of Guarantor.” (Doc. # 2 at 11).
However,

Harris

signed

his

own

name

at

the

end

of

the

Personal Guaranty Agreement on the line labeled “Guarantor”
and

provided

his

social

security

number

in

the

space

provided for it. (Id.). In the Report and Recommendation of
United States Magistrate Judge Thomas G. Wilson, which the
Court accepted and adopted on August 7, 2012 (Doc. # 24),
the Court acknowledged that “there is an ambiguity in the
[Personal Guaranty Agreement] regarding whether Harris is
the

personal

guarantor

of

Harris

&

Pritchard

Contract

Services LLC‟s debt . . . .” (Doc. # 21 at 20-21).
However, PGT‟s Motion for Summary Judgment claims that
the Personal Guaranty Agreement was “executed and delivered
to

PGT”

by

Harris

and

the

signed

Personal

Guaranty

Agreement makes Harris “liable to PGT for the amounts owed
by Harris & Pritchard.” (Doc. # 33 at 1-2). PGT‟s factual
allegations concerning Harris‟ execution of the Personal
Guaranty Agreement are undisputed and, as such, the Court
finds no reason to dispute them. Harris signed his name on
one of the lines labeled “guarantor,” provided his personal
information on the guaranty contract, and has not opposed
PGT‟s

Summary

Furthermore,

it

Judgment
would

be

Motion.

(Doc.

nonsensical
17

for

#

2
a

at

11).

company

to

guarantee its own debt. See Tampa Bay Econ. Dev. Corp. v.
Edman, 598 So. 2d 172, 174 (Fla. 2d DCA 1992) (“„For a
corporation to guarantee its own debt would add nothing to
its

existing

obligation

and

would

be

meaningless.‟”)

(quoting Roy v. Davidson Equip., Inc., 423 So. 2d 496, 497
(Fla. 4th DCA 1982)). Where, as here, there is clearly a
separate

individual

contract,

the

ordinary

or

Court

guaranty

entity

declines

as

executing
to

the
an

construe

superfluous.

Id.

guaranty
otherwise

Accordingly,

the

Court finds that the Personal Guaranty Agreement was valid
and obligated Harris for the debt of Harris & Pritchard.
Guaranties

can

be

either

absolute

or

conditional.

Mullins v. Sunshine State Serv. Corp., 540 So. 2d 222, 223
(Fla.

5th

guarantor

DCA

1989).

becomes

“As

liable

to

an

absolute

immediately

guaranty,

upon

default

the
in

payment by another, whereas under a conditional guaranty,
the guarantor does not become liable until the occurrence
of certain conditions.” Fort Plantation Inv., LLC, 85 So.
3d at 1171. The guaranty signed by Harris unambiguously
states

that

unconditionally

the

“undersigned

hereby

Guarantor

guarantee[s]

the

.

payment

.
of

.
the

Debtor‟s existing indebtedness . . . .” (Doc. # 2 at 11)
(emphasis

added).

Therefore,
18

Harris

became

liable

immediately upon Harris & Pritchard‟s default. For these
reasons, the Court grants summary judgment against Harris
for damages under personal guaranty.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff PGT Industries, Inc.‟s Motion for Default
Judgment

Against

Defendant

Harris

&

Pritchard

Contracting Services, LLC (Doc. # 42) is GRANTED.
(2)

Plaintiff PGT Industries, Inc.‟s Motion to Consider
Plaintiff‟s Motion for Summary Judgment as Unopposed
and to Enter Summary Judgment in Favor of Plaintiff
(Doc. # 39) is GRANTED to the extent that the Court
considers Plaintiff PGT Industries, Inc.‟s Motion for
Summary Judgment (Doc. # 33) as unopposed.

(3)

Plaintiff

PGT

Industries,

Inc.‟s

Motion

for

Summary

Judgment (Doc. # 33) is GRANTED as to Defendant David
M. Harris and DENIED as moot as to Defendant Harris &
Pritchard Contracting Services, LLC.
(4)

Entry of judgment will be reserved until the amount of
costs, fees, and prejudgment interest is determined.
Plaintiff PGT Industries, Inc. may file with the Court
a motion addressing prejudgment interest, fees, and
costs

on

or

before

April
19

12,

2013.

Additionally,

Plaintiff PGT Industries, Inc. is directed to submit a
proposed judgment to the Court on or before April 12,
2013.
DONE and ORDERED in Chambers, in Tampa, Florida, this
29th day of March, 2013.

Copies: All Counsel and Parties of Record

20